OAKLAND — In the first court hearing over President Trump’s border wall funding plan, administration lawyers on Friday vigorously pressed their controversial argument that Congress did not in fact deny him the money when lawmakers excluded it from the appropriations bill they enacted in February.
To bar spending, Deputy Assistant Attorney General James M. Burnham told a federal judge here, Congress would have had to explicitly say that “no money shall be obligated” in any form to construct a barrier along the U.S.-Mexico border. Having failed to do that, Burnham argued, the administration is free to tap funds never intended for border security .
“That just cannot be right,” responded Douglas Letter, general counsel for the House of Representatives, which participated as amicus in the case brought by nearly two dozen states and the Sierra Club, an environmental advocacy group. They are challenging Trump’s national emergency declaration to redirect taxpayer money for the wall. The House has filed a separate suit in Washington, D.C. “No money may be spent unless Congress actually appropriates it,” he said.
Letter likened the situation to that of an underage teenager who requires his mother’s signature to join the Army — but she wants him to go to college instead. “He says, ‘Mom, you can just sign this form?’ And mom walks out of the room” instead of signing it.
“Nobody can say that’s not a denial,” Letter said. This is exactly what Congress did when it balked at Trump’s request for more than $4 billion for the border wall beyond the $1.375 billion it did appropriate, he added.
Friday’s hearing in the Northern District of California, before Judge Haywood S. Gilliam Jr., came on a motion by two sets of challengers — the coalition of states led by California and the Sierra Club — seeking a preliminary injunction to halt all contracts and construction while Gilliam considers the cases’ merits.
The plaintiffs allege that Trump’s actions violated the constitutional requirement that no money may be spent without an appropriation from Congress, and breached restrictions in the laws that the administration is attempting to use to transfer money that had been set aside mostly for military projects and programs .
The hearing was as notable for a subject that barely came up, Trump’s declaration of a national emergency, as it was for the issues that occupied the lawyers over three hours.
Trump’s declaration is a requirement for tapping an emergency military construction authority to obtain the wall-construction funds. But since the administration has yet do that, even though it’s by far the largest potential source of money, Burnham said “nothing has happened” for the court to consider.
The lawyers challenging the government expressed concern that the administration could at any time take the military construction money for the wall and asked Gilliam to enjoin such a move in advance.
It “concerns me too,” said Gilliam. “Is the government agreeing to forgo” use of that money, he asked Burnham.
Burnham responded that it was still under consideration but promised to “let the court rule” before “anything happens on the ground” involving military funds.
The hearing is the latest chapter in Trump’s quest for a “big, beautiful wall” along the southern border to keep out undocumented migrants. Construction of the wall, which the president has claimed would be financed by Mexico, was a central promise of his campaign. Trump allowed the federal government to shut down for 35 days over the winter because the Democratic-controlled House refused to appropriate the sum he wanted.
Trump authorized additional funding diversions from the Defense and Treasury departments never intended for wall-building. Billions of dollars have already been transferred from each.
All of the funding sources specified by the administration permit repurposing for certain needs, such as “unforeseen” military necessities. Whether wall-building qualifies as one of those needs is the big statutory question in these cases.
Burnham said it was “unforeseen” that Congress would balk at the money Trump requested, thus satisfying the statute’s definition.
The challengers argued that the law says the purpose for moving money — in this case Trump’s border wall — must have been “unforeseen.” It wasn’t, they contend, citing Trump’s constant pleading during the 2016 campaign and beyond.
Similar suits are pending in Texas, as well as D.C., where a Trump appointee, Judge Trevor McFadden, will hear arguments next week.
Gilliam was appointed by President Barack Obama.
Most expect that the matter will make its way to the Supreme Court.