In a 2-1 decision handed down today by the 9th U.S. Circuit Court of Appeals, the court ruled that the Department of Defense could not re-allocate part of its budget to border wall construction after Congress repeatedly rejected the Administration’s funding request.

Between 2017 and 2019, President Trump frequently asked Congress to appropriate funds for border wall construction. Negotiations stalled over a budget bill in early 2019, due in part to such funding, which resulted in a partial government shutdown. The budget ultimately approved by Congress contained only $1.375 billion of the $5.7 billion requested by the president for the wall.

President Trump then invoked the National Emergencies Act in an attempt to provide more funding for the wall and identified $2.5 billion in the Department of Defense budget that could be re-allocated towards that end. Because of the national emergency declaration, the Acting Director of Homeland Security Kevin McAleenan then waived all legal requirements that would otherwise be observed, including several environmental laws and regulations, and authorized the money be spent on wall construction.

The attorneys general of 16 states plus environmental groups then sued the Department of Defense using a variety of legal theories, including alleged violations of the Administrative Procedures Act, which govern federal agency activity. They found success from a federal district court judge, who ruled the federal government’s actions were not authorized, and the government’s appeal took the case to the 9th Circuit.

The San Francisco-based appellate court’s ruling first found that the states of California and New Mexico, two of the plaintiffs in the case, were sufficiently “injured” by the Administration’s actions to justify bringing the lawsuit in the first place. The injury? The border wall construction would have negative environmental impacts on those states.

The court next found that the Department of Defense did not have authority to re-allocate its budget because Congress is the final authority on appropriations. It also ruled that the statute being used to justify the re-allocation of funds requires that the need be “unforeseen” and for a “military purpose,” requirements which were not met in this situation.

In a 50-page dissenting opinion, Judge Daniel Collins, a 2019 Trump appointee, stated that the Administration’s actions were justified under existing law and the federal government was entitled to judgment in its favor.

The American Civil Liberties Union, which represents the Sierra Club environmental group, issued a press release celebrating the decision:

“This ruling is a win for the rule of law, the environment, and border communities,” said Dror Ladin, staff attorney with the ACLU’s National Security Project. “President Trump’s xenophobic wall is already leveling protected lands, desecrating cultural sites, and destroying wildlife. There’s no undoing the damage that’s been done, but we will be back before the Supreme Court to finally put a stop to this destructive wall.”

At this point, the government can either appeal the decision to a larger panel of 9th Circuit judges or ask the Supreme Court to get involved.

The case is California v. Trump.


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