Two Federal Courts Hand Trump Defeat On Border Wall

Two Federal Courts have blocked the Administration from diverting Defense Department funds to pay for the President's border wall

Just days apart, the Trump Administration has suffered a setback in connection with its efforts to divert funding from the Defense Department to aid in the construction of the President’s border wall, but the matters are likely headed to appellate courts where the outcome will be less than certain.

In the first case, decided on Tuesday, a Federal District Court Judge in Texas has blocked the Federal Government from diverting money from the Defense Department to the construction of President Trump’s border wall:

A federal judge in El Paso on Tuesday blocked the Trump administration’s plan to pay for border barrier construction with $3.6 billion in military funds, ruling that the administration does not have the authority to divert money appropriated by Congress for a different purpose.

The Trump administration was planning to use those funds to build 175 miles of steel barriers, and the court’s permanent injunction is a setback for Trump’s pledge to erect 450 linear miles of fencing by the end of next year.

District Court Judge David Briones, a Bill Clinton appointee, said in his ruling that the administration’s attempt to reprogram military construction funds by emergency proclamation was unlawful and that the plaintiffs in the case were entitled to a permanent injunction halting the government.

A ruling Briones issued in October placed a temporary hold on Trump’s plan to use the funds, but that decision did not have a nationwide scope.

The Trump administration has budgeted nearly $10 billion for barrier construction to date, so the ruling affects roughly one-third of the money the president plans to spend on his signature project. Briones’s decision does not apply to other money available to the administration, including reprogrammed military counternarcotics funds.

The ruling marked the first instance of a local jurisdiction successfully suing to block construction of Trump’s border barrier.

In the second case, a Federal District Court Judge in California issued an opinion reaching largely the same conclusions:

A federal judge in California ruled Wednesday that the Trump administration may not divert $3.6 billion in Defense Department funds for construction of the wall on the southern border.

The ruling by U.S. District Judge Haywood S. Gilliam Jr. is the second court decision in two days blocking the administration’s effort to reallocate money Congress has appropriated for other purposes.

A federal judge in Texas on Tuesday, in a separate case, ruled that the administration may not use an emergency proclamation to divert funds from military construction projects. U.S. District Judge David Briones issued a permanent injunction blocking the administration’s use of those funds for the border wall project

Gilliam’s ruling comes in response to two suits filed by the state of California and the ACLU on behalf of the Sierra Club.
“This ruling confirms that the president has no authority to raid military construction funds for his xenophobic wall,” said Dror Ladin, staff attorney with the ACLU’s National Security Project,in a statement. “By putting an end to the president’s power grab, this ruling protects our democracy’s separation of powers, the environment, and border communities.”

In his ruling, Gilliam said the administration was trying to circumvent congressional appropriations for military construction projects. He wrote that “the border barrier projects Defendants now assert are ‘necessary to support the use of the armed forces’ are the very same projects Defendants sought — and failed — to build under [the Department on Homeland Security’s] civilian authority, because Congress would not appropriate the requested funds.”

All of this, of course, is rooted in the “national emergency” that President Trump declared in late February at the same time that he signed off on the budget deal reached by the House and Senate. That deal, of course, did not include significant funding for the President’s border wall, something that had been the main issue of contention during the thirty-five-day government shutdown that lasted from December 22nd to January 25th. The President declared this emergency by relying on the authority granted to him under the National Emergencies Act of 1976, which has been used by Presidents in the past but never in the manner that Trump used it to provide funding to a project that had been specifically denied by Congress. 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. 

Although the rulings aren’t exactly the same, they generally follow the same argument, Both rulings 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.

he President’s aforementioned admission that the declaration of a “national emergency” was unnecessary, as well as other facts and circumstances surrounding the President’s declaration of a “national emergency.” Based on this, he determined that the President had acted beyond the scope of the authority allowed to him by the law. The ruling is significant in that, in the past, courts had only given cursory examination to the justification for a President’s declaration of an emergency, a position that of course gave the Chief Executive wide latitude in both determining when a “national emergency” exists and what the law authorizes him to do after declaring such an emergency. If this part of the ruling stands, it could be an important first step in putting a much-needed check on what had previously been considered an area where Presidents could essentially act without very much oversight and virtually no checks and balances.

Judge Gilliam also based a significant portion of his ruling on the issue of the separation of powers and the fact that the Constitution grants Congress with the exclusive authority to appropriate funds for specific funds. While Judge Gilliam did correctly note that there are sum circumstances where Federal law allows the President to use funds designated for one purpose to fund something else, but there are usually strict statutory limits on how or when that can be done. In this case, the President purported to use his declaration of a national emergency at the border to divert certain Defense Department spending to his border wall. Judge Gilliam found that this was not authorized by the law and that the President lacked the statutory authority to divert the money in question to a border wall. This, combined with the fact that the destination of the funding in question was for a project that had been specifically denied by Congress, was, Judge Gilliam found, sufficient basis upon which to conclude that the President had exceeded his authority under the law.

From here the next steps are familiar ones. Judge Gilliam’s ruling in the California case will be appealed to the Ninth Circuit Court of Appeals while Judge Briones’s will be appealed to the potentially friendly (to Trump) Fifth Circuit Court of Appeals. In the meantime, the respective opinions are embedded below.

FILED UNDER: Borders and Immigration, Donald Trump, Law and the Courts, Politicians, 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


  1. Daryl and his brother Darryl says:
  2. Gustopher says:

    Can’t Trump just stiff the contractors, like he usually does?

    If he hires Mexican contractors and then stiffs them, he might make good on his pledge to make Mexico pay for the wall.

  3. Matt says:

    @Daryl and his brother Darryl: There are videos on youtube of various people climbing the wall without ladders including some kids. The trumpsters sputter all kinds of excuses about why those videos are false or not “realistic”..

    Regardless a battery operated reciprocating saw is the quickest way to get through. You only need to make one cut through one vertical slat to get through.

  4. Kathy says:

    Trump joke of the day!

    While spending a summer at one of “his” golf resorts, trump decides to get a pet kangaroo. he hates it, but it looks cool out there in the lawn, inside a chain-link fence enclosure. and people talk about it, lots of people say that.

    But the very next day since getting the kangaroo, Trump finds him well outside his enclosure, playing with a stray cat.

    He gets the staff to round him up and back in the enclosure, were he sees to it the animal will remain enclosed. He also orders the fence to be made higher.

    But the next morning, the kangaroo is out again, playing with the same cat.

    Again the roundup, lock-down, and again the fence is made higher.

    And the next day, the kangaroo again is out playing with the cat.

    so the cycle repeats again.

    That night, while they’re playing, the cat asks the kangaroo, “How tall do you think the orange human will build that fence?”

    The kangaroo shrugs. “If he keeps leaving the door open, I guess there’s no limit.”