WASHINGTON – A federal appeals court in San Francisco ruled Friday that the Trump administration did not have the authority to transfer $ 2.5 billion from the Pentagon to President Trump’s border wall without the approval of Congress, most likely to send the matter to the Supreme Court.
The 2-1 decision, which sided with the environmental groups that filed the lawsuit, is the latest in what has become a legal odyssey centered on Trump’s decision to seize billions of dollars for the wall, even after Congress expressly prohibited it.
But the ruling will not immediately stop construction. Last July, the Supreme Court reversed a separate appeal decision and allowed the administration to move forward with building walls, using $ 2.5 billion originally allocated to anti-drug programs at the Department of Defense.
Dror Ladin, a staff attorney for the American Civil Liberties Union’s National Security Project, called the Ninth Circuit’s decision “a victory for the rule of law” that would help his argument before the Supreme Court.
“President Trump’s xenophobic wall is already leveling protected lands, desecrating cultural sites and destroying wildlife,” said Ladin. “The damage that has been done cannot be undone, but we will return to the Supreme Court to finally stop this destructive wall.”
Justices Sidney R. Thomas and Kim McLane Wardlaw, both appointed by President Bill Clinton, agreed with a lower court decision that the Trump administration did not have the authority to reallocate the funds without the approval of Congress. They relayed their decision a few days after Trump traveled to Arizona to celebrate the construction of more than 200 miles of built wall.
“These funds were allocated for other purposes, and the transfer amounted to ‘withdrawing funds from the Treasury without authorization by law and therefore violating the Allocations Clause,'” Judge Thomas said in his opinion.
Judge Daniel P. Collins, appointed by Trump, disagreed and said that the groups, the Sierra Club and the Coalition of Communities of the Southern Border, lacked justification to stop the transfer.
“To help DHS by building fences to stop international drug smuggling, the acting defense secretary did not even have to consider whether that reprogramming of funds would disturb views of the desert landscape or affect local flora and fauna,” he said. Judge Collins wrote, referring to the Department of Homeland Security.
A department spokesman, Alexei Woltornist, said Friday that he was “very disappointed in this decision.”
The administration faces a separate legal challenge to the similar transfer of $ 3.6 billion of Pentagon construction funds to build the border wall. The White House celebrated a victory in that case in January when the Fifth Circuit Court of Appeals in New Orleans upheld a lower court decision to allow the administration to use military funds.
Despite the court’s challenges, the administration has continued to turn to the Department of Defense for funds from the wall as Trump tries to direct political attention to the border to assist him in his difficult re-election campaign. The administration notified Congress this year that it would take another $ 3.8 billion from the Defense Department for the wall, almost exactly a year after Trump used a national emergency declaration to initially elude Congress for its barriers.
“The funds he is stealing, which were appropriated by Congress, are vital in supporting the safety and well-being of the brave uniformed men and women, as well as their families,” California spokeswoman Nancy Pelosi said in a statement on Friday. . “We will never allow our national security and the strength of our military families to suffer so that the president can deliver on a scandalous campaign promise.”
With approximately $ 15 billion in funds available for the wall, the administration has completed the construction of 216 miles of new border wall. All but three of the miles of wall have replaced much shorter and shabby fences or barriers in Normandy.
“It is the most powerful and comprehensive border wall structure anywhere in the world,” Trump said this week, even as Customs and Border Protection has asked the private sector for ideas on how to prevent people from climbing or crossing the wall.
The White House is aggressively trying to fulfill a mandate set by Trump to complete 450 miles by the end of the year, regardless of tribal lands, archaeological sites, hiring laws, and private property owners who get in the way.
The administration has waived many of those contract laws, and this year brought in a series of lawsuits to acquire privately owned land in South Texas, though the eminent domain process has proven to be arduous as some Texans try to delay construction more beyond November.
Ronald D. Vitiello, a former acting director of Immigration and Customs Enforcement for Mr. Trump and chief of the Border Patrol, said the border wall could be effective in deterring illegal immigration if supplemented by technology and patrol officers.
“In itself, not long ago, but it establishes an anchor, a base, for all the required attributes,” Vitiello said. “You must have technology to support him and agents to make arrests when people are still trying to escalate him.”
Peter Vincent, the highest-ranking former ICE attorney, said the construction of the border wall had really damaged public safety since Trump had transferred billions of dollars from the Defense Department to secure funding.
“I have always said, based on my experience in counterterrorism and counter-narcotics trafficking, that a wall in no way prevents a nefarious and committed actor from breaking our southern border by climbing, surrounding it and digging under it,” said Mr. Vincent, who also served as ICE’s Senior Advisor for International Policy.
“It is pretty obvious that President Trump is looking for any distraction he can get to draw public attention away from his horrible handling of the coronavirus pandemic,” said Vincent. “He has returned to his proven, reliable and true, albeit completely incorrect, view of border security, including promoting his border wall.”
