9th Circuit again slaps Trump admin for siphoning Defense funding for border wall

The Trump administration unlawfully siphoned $3.6 billion in construction funds from the Defense Department, the 9th Circuit Court ruled Friday, forcing a halt to 11 border wall projects, including four in Arizona.

The appeals court lifted a stay that had kept a lower court from enforcing a permanent injunction to stop the projects over the issue of illegal funding.

While federal officials have forged ahead on the border wall projects, the legal fight over the diversion of the funds without congressional approval has ranged from a district court judge in California to the U.S. Supreme Court over the last three years. 

On Friday, the Trump administration's legal case took another hit, when the three-judge panel ruled 2-1 that a lower court order from December 2019 was correct, and that the law did not allow for shifting billions from military construction. The panel also agreed that the lower court's order for a permanent injunction should be affirmed, effectively blocking the government from continuing construction at projects in California, Arizona, New Mexico, and Texas. 

In an often sharply-written 78-page opinion, Chief Judge Sidney R. Thomas and Judge Kim McLane Wardlaw criticized Trump declaration of national emergency to pull the funding from the Defense Department for projects along the border. The judges ruled that not only do groups like the Sierra Club and the Southern Border Communities Coalition have standing to sue over the use of the funds, but that 10 states—including California and New Mexico—should be able to sue because the Secretary of Defense had authorized the diversion of billions in funds from 128 military construction projects, including 17 that are included in those states, worth about $500 million. 

Daniel P. Collins, appointed to the bench by Trump in May 2019, dissented from his colleagues, writing that while he agreed that plaintiffs have standing, and should be able to challenge federal officials under the Administrative Procedure Act, in his view "the construction projects are lawful," and that Defense Department officials "properly invoked" federal law in undertaking these projects. 

The ruling is one of several in the complex group of lawsuits launched by environmental groups and several states that have challenged the administration's use of funds from the Defense Department, despite a refusal from Congress to directly fund the president's central campaign promise. 

Even as the coronavirus pandemic has shaken the nation's economy and social structures, Trump has pursued the border wall, spending as much as $100 million per mile in one section to complete what U.S. Customs and Border Protection calls a "border wall system." That includes not only 30-foot high panels of "bollard" walls topped with steel "anti-climbing plates," but also lights and sensors, and a network of roads to make it easier for Border Patrol vehicles to quickly pursue people who get past the new barriers. 

In recent weeks, construction firms under contract with the U.S. Army Corps of Engineers have pushed hard to complete as many miles of wall as possible before December, churning through dozens of miles of desert in wildlife refuges, national forests, and conservation areas. 

On September 18, U.S. Customs and Border Protection said that since January 2017, the agency has planned to build 738 miles of walls—including 663 miles of "primary"  and 64 miles of "secondary" barriers—along the U.S.-Mexico border at a total cost of nearly $15 billion. 

This includes $6.3 billion from money from funding earmarked for counter-narcotics operations, and $2.5 billion that was slated to be shifted from military construction projects before the 9th Circuit intervened this summer, and another $3.6 billion in military construction funding that was shifted under Section 2808 of federal law, which allows the president to use the National Emergency Act to authorize military construction projects that aid the U.S. military. 

That final chunk of funding, authorized under the president's declaration that "a national emergency exists at the southern border of the United States," was challenged Friday.

At issue is the use of Section 2808 of federal law, which "allows the Secretary of Defense to undertake military construction projects in the event of a national emergency requiring the use of the armed forces, but the statute specifies that such projects must be 'necessary to support such use of the armed forces," the judges wrote. However, the use of 2808 funds to construct the 175 miles of border wall, failed to satisfy "two of the statutory requirements: they are neither necessary to support the use of the armed forces, nor are they military construction projects," they wrote. 

Federal officials "have not established that the projects are necessary to support the use of the armed forces," the court wrote, because the "administrative record shows that the border wall projects are intended to support and benefit DHS—a civilian agency—rather than the armed forces," and second, the Trump administration has "not established, or even alleged, that the projects are, in fact, necessary to support the use of the armed forces." 

While Arizona is affected directly both by construction at four sites—all near Yuma and the Cabeza Prieta National Wildlife Refuge—and by the siphoning of military construction funds, the state did not join the lawsuit with California, Colorado, Hawaii, Maryland, New Mexico, Oregon, Virginia, and Wisconsin.

The judges ruled that the states are "suitable challengers" because they have asserted economic interests. Not only are the states losing $493 million from 17 projects in direct construction projects, they may also lose $366 million in lost business sales for the next three years. As one expert told the court, the gross regional product of the states would be "reduced by $165 million" as a result of the diversion of funds, and a loss of $36 million from tax revenues for state and local governments. 

They also agreed that California and New Mexico have environmental interests. The border wall construction in California would harm the gnatcatcher—a small gray bird in the Otay Mesa region—and the burrowing owl, as well as endangered species like the San Diego Fairy Shrimp. Similarly, New Mexico would be harmed because construction in the bootheel part of the state, including in the Animas and Playas Valleys are a "pinch point" for ecological diversity, migration and dispersal into the North American continent, and construction would affect the white-sided jackrabbit, a "rare and threatened species under New Mexico law," as well as the northern jaguar, a federally endangered species. 

The court also noted New Mexico suffered because the construction of the wall was authorized under Section 2808 of federal law, which made it exempt from the state’s "fugitive dust control" rule, and the "high wind fugitive dust mitigation plans," under the Clean Air Act. 

In December 2019, U.S. District Judge Haywood Gilliam ruled against the Trump administration. The court, he wrote,  could not "blind itself to the plain reality presented in this case: 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 DHS’s civilian authority, because Congress would not appropriate the requested funds."

And, he wrote that both Mark T. Esper, the Secretary of Defense and Chad F. Wolf, the acting head of Homeland Security, were " permanently enjoined from using military construction funds appropriated" for the 11 projects. However, Gilliam agreed that use his discretion to stay the permanent injunction.  

The 9th Circuit Court's decision removed the stay. 

This was the second major loss for the Trump administration in less than a month over border wall funding. 

In late September, a three-judge panel at the appellate court in Washington D.C. ruled that the House of Representatives could sue the Trump administration over the movement of funds because they had violated the Appropriations Clause.  

"To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House’s key out of its hands," wrote Judge David B. Sentelle for the three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia.

Environmental groups praise decision, but also note its limitations 

"Today’s decision is monumental for border communities, wildlife and lands. The 9th Circuit court put a stop to Trump’s unconstitutional wall construction with stolen military funds," said Gloria Smith, managing attorney at the Sierra Club. "We should be protecting communities, our democracy, and the environment, not tearing these things apart as Trump was doing. We rise with border communities to stop this administration from further inflicting its relentless agenda-- and will continue fighting illegal wall construction at all levels," she said. 

"The courts have once again confirmed what everyone knows: Trump’s fake ‘national emergency’ was just another pretext for targeting immigrants and border communities," said Dror Ladin, senior staff attorney with the ACLU’s National Security Project. "It’s past time for Trump to finally give up on trying to raid the federal budget for his wasteful and illegal project." 

Laiken Jordahl of the Center for Biological Diversity in Tucson praised the decision, but also noted that for Arizona, the 9th Circuit Court's decision only covers four projects, and other controversial projects are ongoing.  

"This is huge. But let's be clear: the ruling pertains to just $3.6B of $18.5B in total wall funding," Jordahl wrote on Twitter. "The ruling DOES NOT stop the desecration of O'odham sacred sites at Organ Pipe, the blasting of endangered jaguar habitat or the destruction of rugged wildlands across the border.' 

The court's decision will interrupt Yuma Project 2, a $40 million project to replace two miles of pedestrian fencing at the Barry M. Goldwater Range; Yuma Project 3, worth $630 million to replace 31 miles of existing vehicle barriers with 30-foot high bollards, running along Cabeza Prieta Wildlife Refuge to the Yuma County line; Yuma Project 10/27 which would spend $527 million to add 31 miles of secondary fencing to back Yuma Project 3; and Yuma Project 6, which will add one mile of primary fencing and two miles of secondary fencing around the Andrade port of Entry and to the Colorado River. 

Nonetheless, Vicki B. Gaubeca, director of the Southern Borders Coalition called the decision a "much welcomed reprieve for border communities who have been trampled and scarred by deadly walls that undermine our binational and multicultural character." 

"Trump's vanity wall has led to the destruction of our environment, risks extinction of endangered wildlife, and has desecrated tribal, sacred lands, all to become a narcissist's campaign prop. We need to put an end to immoral, inhumane and wasteful border policies and usher in a new era where people are safe and where we treat others with dignity and respect," Gaubeca said. 

Court defines necessity

The court ruled that the wall projects are intended to benefit DHS and its component agencies CBP and Border Patrol "not the armed forces," they said. "The record demonstrates that DoD primarily considered the many benefits to these civilian agencies in determining that physical barriers are necessary, and the Defense Department 'determined that physical barriers would improve CBP's detection, identification, classification, and response capabilities.'" 

And, the court noted that federal officials said that the Defense Department would benefit from barriers because they would solve as "force multipliers," allowing military personnel to cover other high-traffic border areas without existing barriers, a benefit plainly intended to assist DHS." 

The court also wrote that federal officials have "not even alleged, let alone established as a matter of fact, that the border wall construction projects are 'necessary' under any ordinary understanding of the word." The judges even moved to define the word "necessary' digging up a definition from Merriam-Webster's online dictionary to make their case. 

"'Necessary'" as it appears in Section 2808 is best understood as retaining its plain meaning, which means, at the very least, 'required,' or 'needed,'" Thomas wrote.

"The fact that border wall construction might make DoD’s support more efficient and effective does not rise to the level of 'required' or 'needed'—and the Federal Defendants have failed to show that it does. That Congress declined to provide more substantial funding for border wall construction and voted twice to terminate the President’s declaration of a national emergency underscores that the border wall is not, in fact, required or needed." 

"As we have explained, the Federal Defendants have simply claimed 'military necessity' without more, and this alone cannot shield their actions from judicial review," Thomas wrote. "Further, as we have noted, the judgment at issue here is not a military one.  The border wall construction projects further the goals of DHS—a civilian law enforcement agency—and the determination that the projects are necessary, in any sense, is a law enforcement calculation, not a military one." 

The court also criticized how the military and DHS had brought border wall projects under the jurisdiction of military installations, including Fort Bliss. 

"To begin, the projects are not physically connected to Fort Bliss—on their face, they are not 'part' of that military installation," the court ruled. "In fact, most projects are hundreds of miles away from Fort Bliss. Moreover, the projects are not functionally part of Fort Bliss." 

The Trump administration, the court wrote, "cite no operational ties between the projects and any of the military activities conducted at Fort Bliss.  This is contrary to other examples of sites which are geographically separate from the military installation to which they have been assigned." 

The court noted that during the 1960s, the U.S. military launched Athena missiles from Green River, Utah, at White Sands Missile base in New Mexico, "but those sites share a close functional connection," while Fort Bliss and the border wall does not. 

Court ruling hangs on reading of NEA

In February 2019, the president declared a national emergency, arguing that the "current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency." As the judges Thomas and Wardlaw noted, the president said that even though he obtained some border funding, he declared an emergency because although he "'could do the wall over a longer period of time'" by going through Congress, he would 'rather do it much faster.'" Following the president's announcement, Congress attempted to terminate the national emergency twice, first on March 14, 2019. The president vetoed that bill, and again in September 2018, Congress again passed a joint resolution to terminate the emergency declaration, but "once again, the President vetoed this resolution."  The judges noted while the National Emergency Act "empowers presidential action in national emergencies," the NEA also "empowers Congress to check that action." 

A 1983 lawsuit over the NEA had limited Congress's ability to circumscribe the president, but the judges wrote the lawsuit had little impact because, "prior to the President’s declaration of a national emergency on the southern border, Congress had never once voted to terminate a declaration of a national emergency." They also noted that Section 2808 "has only been invoked once to fund construction on American soil, and it has never been used to fund projects for which Congress withheld appropriations. Thus, this case operates against the background of the first serious clash between the political branches over the emergency powers since the passage of the NEA in 1976." 

The 9th Circuit concluded their decision, writing that "although we recognize that in times of national emergency we generally owe great deference to the decisions of the Executive, the particular circumstances of this case require us to take seriously the limitations of the text of Section 2808and to hold the Executive to them." 

"We cannot 'keep power in the hands of Congress if it is not wise and timely in meeting its problems,' the court wrote. However, "where, as here, Congress has clung to this power with both hands—by withholding funding for border wall construction at great effort and cost and by attempting to terminate the existence of a national emergency on the southern border on two separate occasions, with a majority vote by both houses—we can neither pry it from Congress’s grasp." 

Previous challenge on other funding

An earlier challenge over the use of money under Section 8005 of the 2019 defense appropriations act was also successful at the 9th Circuit under Thomas and Wardlaw—with Collins also dissenting. 

In June, the court rejected a claim from the government that both the Sierra Club and the Southern Border Communities Coalition lacked the standing to pursue the lawsuit, and they wrote that the Trump administration "lacked independent constitutional authority to authorize the transfer of funds" and violated the Appropriations Clause of the Constitution when it moved billions from the Defense Department's budget to wall construction projects in Arizona, California, and New Mexico — including projects in protected lands along Arizona's border. 

Collins agreed that the Sierra Club had established standing, in his view the organizations lacked any cause of action to challenge the transfers, and concluded that the transfers were lawful. 

On July 31, the U.S. Supreme Court turned down a request from the Sierra Club and others to put a halt to the border wall's construction. 

In the 5-4 decision, the justices declined to lift a stay put in place last year by the court that allowed the government to continue to spend federal funds on construction while the legal challenges continued.

"Every court to address the question has concluded that the wall construction is illegal," lawyers for the Sierra Club told the Supreme Court. "A year ago, at an early stage of this litigation and the disputed construction, this Court granted an emergency stay of an injunction against the construction. Since then, intervening events have made clear that should that stay remain in effect, it will not preserve the status quo, but hand" the Trump administration "a complete victory despite having lost in every court." 

"When this Court granted its initial stay, it presumably assumed that it was merely granting interim relief, not deciding the merits in the guise of stay. That is no longer the case," they wrote. "At the same time, a series of intervening decisions, from the court below and several other courts, have strengthened Plaintiffs’ claims that Defendants’ actions are both unlawful and subject to judicial redress." 

"Defendants have spent the past year rushing construction of a border wall that Congress denied and that multiple courts have all found unlawful," they wrote. 

Despite these arguments, the court's conservative justices rejected the Sierra Club's request, and responded with a single sentence denying the request. 

However, the four liberal justices, led by Justice Stephen G. Breyer dissented, including Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the dissent. Breyer wrote that last year, he suggested "'a straightforward way' to avoid irreparable harm to the parties in this litigation: stay the District Court’s injunction 'only to the extent' that it 'prevents the Government from finalizing [relevant] contracts or taking other preparatory administrative action, but leave [the injunction] in place insofar as it precludes the Government from disbursing those funds or beginning construction.'" 

"Now, the Government has apparently finalized its contracts, avoiding the irreparable harm it claimed in first seeking a stay," Breyer wrote, and he worried that the court's decision to let construction continue operates as in effect as "a final judgement."