Federal Judge Strikes Down Trump’s Diversion Of Funds To Border Wall

A Federal Court has struck down the President's diversion of funds for his border wall.

President Trump’s border wall suffered another setback late last week when a Federal District Court Judge ruled that the President violated the law when he declared a national emergency so he could divert funds to his border wall:

A federal judge in Texas declared on Friday that President Trump’s proclamation of a national emergency on the southern border is unlawful, blocking the plan to divert funding for a border wall.

Judge David Briones of the U.S. District Court for the Western District of Texas said in his opinion that the plan would be blocked after getting input from both sides in a lawsuit for the scope of an injunction.

The lawsuit was brought by El Paso County in Texas and a group called the Border Network for Human Rights.

Briones, who was appointed to the court by President Bill Clinton, ruled that Trump overstepped his authority to divert more funds to border security than what was appropriated by Congress. 

He also ruled that El Paso has standing to sue the president and members of his Cabinet because the county “suffered reputational and economic injuries” as a result of the administration’s rhetoric on the situation at the border and the construction plans that the proclamation entailed. 

“The longer the President’s Proclamation remains in effect, the more the County’s reputation will be tarnished in the eyes of tourists and developers,” the plaintiffs wrote in a filing in April. 

“Throughout history, democracies have been felled by overzealous leaders who sought to aggrandize their own powers under the banner of real or imagined ’emergencies,'” Kristy Parker, a lawyer with the nonprofit Protect Democracy who represented the plaintiffs, said in a statement.

“Our Founders were wise enough to anticipate that danger and created a strong separation of powers to prevent that from happening here,” Parker added. “Today’s ruling vindicates the Founders’ wisdom and confirms that the president is not a king, and that he cannot override Congress’s power to decide how to appropriate funds.”

The White House and Department of Justice did not immediately respond to requests for comment.

More from Politico:

Another federal judge ruled against President Donald Trump’s unorthodox plan to use billions of dollars in federal funds to extend the wall on the Mexican border, despite Congress’ refusal to appropriate money for that purpose.

El Paso, Texas-based U.S. District Court Judge David Briones’ Friday decision not only rejected the funding scheme, but went further than past rulings by specifically declaring “unlawful” an emergency proclamation Trump issued in February seeking to unlock money to fulfill one of his key campaign promises.

Briones said Congress made clear in a January budget measure ending a partial government shutdown that border wall funding was being denied, beyond $1.3 billion for upgrades of existing barriers.

“The Congressional language in the [bill] reveals Congress’s intent to limit the border barrier funding,” wrote the judge, an appointee of former President Bill Clinton.

Whether the judge’s decision will actually take effect is far from clear, because in July the Supreme Court stayed a ruling from federal courts in California that blocked funding for border wall expansion in California and Arizona.

The rationale for the high court’s action was somewhat murky, but it suggested that a majority of the justices believed the plaintiffs in that suit — an environmental group and a border communities organization— did not to have the legal right to enforce a Congressional budget rider.

It is uncertain whether the justices will view differently the suit Briones ruled on Friday. That case was filed by El Paso County and an immigrant rights group, the Border Network for Human Rights, through a Washington-based watchdog group, Protect Democracy.

Briones said El Paso’s standing was bolstered by indications that $20 million in funds that would otherwise be spent for construction within its borders at the Fort Bliss Army based would be diverted for the border project. He also said the county’s reputation was at risk from the spending because of Trump’s contention that it was needed to check chaos and lawlessness at the border.

The judge appeared intent on halting at least $3.6 billion in spending planned by the administration, but could also sweep in the $2.5 billion in contention in the California case, although the he said he was not taking issue with the Supreme Court’s action three months ago clearing the expenditure of those funds.

Briones not detail the exact scope of the injunction he plans to impose as a result of his ruling. He gave the plaintiffs 10 days to submit specifics for that and five days for the federal government to respond.

The roots of this dispute, of course, lie in the government shutdown that lasted from late December to late January earlier this year and which was rooted in the President’s insistence that he would not agree to any government funding bill that didn’t include funding for his border wall. In the end, of course, the shutdown ended without any funding for the wall and the final funding bill for Fiscal Year 2019. Trump signed both bills but then turned around and, purporting to use the authority granted to him by the National Emergencies Act to declare a national emergency at the border. Since then, he has used the authority under that act to divert funding from a wide variety of projects, most of them military construction projects, to his border wall. It was evident at the time that Trump took this action that there was little merit in the President’s move. Indeed, the President seemed to undermine his own case for a “national emergency” at the news conference where he announced it when he admitted that he “did not need to do this.” Specifically, the President admitted that he could have waited for additional funding from Congress but that he wanted to speed the project along. This admission is an obviously damaging admission on the part of the President because it suggests that there is no “national emergency” and that Trump was merely using the alleged authority the law provides to him to get around the political process that the Constitution contemplates.

Almost immediately after the President took this action, the inevitable lawsuits had begun. One of the first cases was filed by the ACLU on behalf of the Sierra Club and another environmental group, there are also pending cases resulting from lawsuits brought by the Center for Biological Diversity, Defenders and Wildlife, and the Animal Defense Fund as well as other another case filed by the watchdog group Public Citizen on behalf of Texas landowners and an environmental group in Texas. Finally, in late April the House of Representatives filed its own lawsuit seeking to block the President’s emergency declaration and his diversion of funds. There have not been any rulings in those cases issued as of this date. There is also a lawsuit that was filed by California and sixteen other states, but that case was dealt a setback earlier this year when the District Court Judge ruled that the states had not shown the type of irreparable harm necessary to obtain an injunction. That case is currently proceeding along two tracks, with the ruling on the temporary injunction on appeal to the Ninth Circuit while the rest of the case remains pending in the District Court. As noted, the Supreme Court’ dealt the effort to push back against the President’s efforts when it ruled in favor of an Administration effort to lift an injunction issued by a Judge in California and upheld by the Ninth Circuit Court of Appeals. In that ruling, the Court upheld an injunction that had been granted in May by Judge Terry Gilliam of U.S. District Court in San Francisco barring the President from using roughly $25 billion in diverted Defense Department funding for his border wall. 

In his ruling, Judge Briones found that the President’s action violated two separate provisions of the Consolidated Appropriations Act of 2019, the law which officially ended the government shutdown earlier this year. In one respect, Briones found that diverting the funds in the manner that the President did violates specific language in the law designated specific funds for a specific purpose and that he did this in a manner that could not be excused by the declaration of a national emergency. Briones also found that Trump had violated another provision of the law that set forth the authority that the President had to reallocate funding for specific purposes to other purposes. As a result, he found that the funding for these purposes violated the law.

As Ilya Somin notes at The Volokh Conspiracy, this ruling is rather narrow and does not reach the issue of the validity of the invocation of the National Emergencies Act or the question whether or not that act was constitutional in and of itself:

Resolving the national emergency question in this way allows the court to avoid virtually all of the big picture issues surrounding the emergency declaration, such as whether the situation at the border qualifies as “national emergency” under the National Emergencies Act of 1976, whether the relevant provision of the National Emergencies Act (if interpreted in the broad way the administration advocates) is unconstitutional, and even whether the text of Section 2808 actually allows the use of funds for border wall construction (in my view, the answer is an emphatic “no”). It also does not consider whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress.

The narrowness of the ruling might prove attractive to appellate judges (including perhaps some Supreme Court justices) who want to find a relatively simple way to dispose of the national emergency issue, without having to set any broad precedent. But the broader questions could, nonetheless,  come back into play when the administration appeals the decision.

The ruling is also notable for the fact that it comes in a case where the plaintiffs have clear “economic” interests at stake. El Paso County controls land near the area where the wall would be built, and its construction is likely to damage its tourist industry and reduce its revenues. In addition, some $20 million of the money diverted would come from a military construction project in the County, in which the local government has an obvious economic interest, as well.


Given the virtual inevitability of an appeal, this case is far from over.

And there are many other wall-building cases still making their way through the system, whose outcomes remain to be seen.

It is also worth noting that Judge Briones is a Democratic appointee. So far, all of the Democratic-appointed judges who have issued decisions in wall cases have ruled for the plaintiffs, while all but one Republican appointee (Judge Clifton of the Ninth Circuit) have voted against them. It is, possible, therefore, that the wall litigation will continue to split judges largely along partisan lines. On the other hand, all the Republican judges who have voted against the plaintiffs, so far, have done so on procedural grounds. Judge Clifton is the only one who has reached the merits, and he voted for the plaintiffs. At least some other GOP-appointed judges might take similar positions when and if they get the chance to rule on the merits, as well.

Today’s ruling is a notable victory for opponents of the wall. But the outcome of both this case and that of the broader legal struggle over the wall remain uncertain. Stay tuned!

As Somin notes, an appeal to the Ninth Circuit and beyond is inevitable so this case is far from over. That being said, he is correct in noting that this is a potentially significant victory for opponents of the wall and of the President’s extraordinary efforts to make an end-run around Congress to pay for it. Whether it lasts will have to await further legal proceedings.

Here’s the opinion:

El Paso County Et Al v. Tru… by Doug Mataconis on Scribd

FILED UNDER: Borders and Immigration, Donald Trump, Law and the Courts, Politicians, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook