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Appeals court blocks Trump from building border wall with defense funds

A federal appeals court ruled against the Trump administration Wednesday, rejecting an attempt to use $8.1 billion siphoned from the Defense Department to construct several border wall projects, including one near Yuma that was scheduled to begin in March.

In a 2-1 split, a three-judge panel of the 9th Circuit Court of Appeals refused to remove an injunction put in place by a lower court in March that blocked the White House's efforts to redirect military-designated funds for wall construction along the southwestern border, halting a plan to build hundreds of miles of fencing in three states. 

This leaves in place the injunction made by U.S. District Judge Haywood S. Gilliam, who ruled on May 24 that the Sierra Club and the Southern Border Communities Coalition, represented by the ACLU, "have shown a likelihood of success" in their lawsuit. The judge blocked the Trump administration from using a section of an appropriations act voted into place by Congress to "reprogram" around $2.5 billion from Defense Department funds to the Department of Homeland Security to build border barriers in California, Arizona and New Mexico. 

In February 2019, DHS identified nearly a dozen projects that it wanted to build, including five projects in the Tucson Sector and three in the Yuma Sector. This would include wall construction along environmentally sensitive areas, including the Cabeza Prieta Wildlife Refuge, and a segment across the San Pedro watershed east of Nogales. All told, DHS wants to build 213 miles of wall with segments reaching up to 30 feet high, along with patrol roads and lighting. 

Lawyers for the ACLU and the Sierra Club applauded the decision. 

"Congress and now two courts have said no border wall funds. For the sake of our democracy and border communities, it’s time the president come to terms with the fact that America rejected his xenophobic wall — and move on," said Dror Ladin, staff attorney with the ACLU’s National Security Project, who argued the case during oral arguments in June. 

"Today’s ruling protects our fundamental democratic processes, our communities, and our environment against this President's abuses of power," said Gloria Smith, Managing Attorney at the Sierra Club. "We've seen the damage that the ever-expanding border wall has inflicted on communities and the environment for decades. Walls divide neighborhoods, worsen dangerous flooding, destroy lands and wildlife, and waste resources that should instead be used on the infrastructure border communities truly need." 

Section 8005 allows the Secretary of Defense to move money meant for military purposes if that money is "for higher priority items, based on unforeseen military requirements” and “the item for which funds are requested has [not] been denied by the Congress." However, Congress specifically appropriated money for construction of 65 miles in Texas, and the plaintiffs have argued that by using Section 8005 and an emergency declaration, the White House is violating the Constitution. 

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The "crux" of the case is that the White House's methods for funding the "border barrier construction are unlawful," Gilliam wrote.

Following Gilliam's decision, Trump administration lawyers appealed and in June, the 9th Circuit agreed to hear oral arguments. 

In a 48-page decision, appellate court Judges Richard Clifton and Michelle Friedland wrote that there was a "strong likelihood" that the Sierra Club and others "will prevail in this litigation, and Defendants have a correspondingly low likelihood of success on appeal." 

"As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction," the judges wrote. Judges Clifton and N.R. Smith were appointed by President George W. Bush. Judge Friedland was appointed by President Barack Obama.

President Trump has made "numerous requests to Congress" for border wall construction, and after an extended government shutdown, agreed to give $1.375 billion for border barriers, specified for "construction of primary pedestrian fencing...in the Rio Grande Valley," they noted.

But, by March 25, former acting Secretary of Defense Patrick Shanahan approved the transfer of $1 billion in funds from DoD to DHS for three projects, the Yuma Sector Project 1 and Yuma Sector Project 2 in Arizona, and the El Paso Sector Project 1 in New Mexico. 

Barnard Construction Co. Inc., of Bozeman, Mont., was awarded $187,000,000 to design and build primary pedestrian wall replacements with a planned completion date of Sept. 30, 2020. 

Later, on May 8, Shanahan said that he would allocate another $5 billion for projects near San Diego and El Centro, as well as projects in the Yuma and Tucson sectors, and at least 38 companies bid for the contracts. The next day, Shanahan siphoned another $1.5 billion for four other projects, the justices wrote. 

The efforts to spend this money is "not consistent with Congress’s power over the purse or with the tacit assessment by Congress that the spending would not be in the public interest," the justices wrote. They also rejected claims that by keeping Gilliam's injunction in place it would cost the U.S. government money. 

"When DoD awarded contracts on April 9 for El Paso Project Sector 1, and May 15 for Yuma Project Sector 1 and Tucson Project Sectors 1-3, DoD knew this litigation was pending and that the district court had been asked to enter a preliminary injunction," the justices wrote. "Placing significant weight on financial obligations that Defendants knowingly undertook would, in effect, reward them for self-inflicted wounds." 

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In his dissent, Judge N. Randy Smith argued that the other judges were taking an "uncharted and risky approach—turning every question of whether an executive officer exceeded a statutory grant of power into a constitutional issue." Smith argued that the Trump administration officials are likely to succeed on the merits, arguing that the Sierra Club and others do not have a cause of action to file a constitutional claim and that the majority was now analyzing the case "on the fly." 

He also argued that the Administrative Procedures Act—a statutes that guides how the Executive Branch can implement a law, and requires a public comment period and public information before a law can be implemented—was the correct way for organizations like the Sierra Club to file suit. 

"As to the public interest, Defendants argue that their interests in preventing drug trafficking easily outweigh Plaintiffs’ aesthetic, recreational, and generalized environmental injuries," Smith wrote. "In the narrow context of this stay motion, Defendants are correct. Even though environmental injuries may be significant in the long term, the injunction will only be stayed for a short period." 

He argued that Gilliam's injunction would harm the U.S. government, but that "on the other hand, the irreparable harm to Plaintiffs during this relatively short period (if a stay is granted) is less clear." 

The Trump administration has told the court that the projects "are needed to protect national security and must go forward even if there is a possibility that a merits panel may eventually order them to remove whatever was constructed while a stay was in place. This is not the sort of determination that courts will ordinarily second guess," he said. 

"It makes little sense to tie Defendants’ hands while the appellate process plays out, especially given Plaintiffs’ lack of a viable claim and given the national security considerations present in this case," Smith wrote. 

The panel's decision means that the U.S. government cannot use the funds until the case moves through the court in California, limiting the government's ability to fund, and then begin construction on these projects. 

"We are pleased to see the court uphold the foundation of our democracy by denying the Trump Administration’s appeal,” said Vicki B. Gaubeca, director of the Southern Border Communities Coalition. "President Trump’s overreach in attempting to build deadly and wasteful walls in our region — walls that greatly diminish public safety and our quality of life, walls that threaten our diverse wildlife — will not stand, and we will continue to fight for the southern border region." 

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A section of border fence near Lukeville, Arizona along the southern border of the Organ Pipe Cactus National Wildlife Refuge


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