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9th Circuit: Trump administration unlawfully siphoned Defense funds for border wall

The 9th Circuit Court of Appeals ruled Friday that the Trump administration unlawfully used $2.5 billion in Defense Department funds to build the president's long-promised border wall without congressional approval.

In a 2-1 decision Friday, a three-judge panel also rejected a claim from the government that both the Sierra Club and the Southern Border Communities Coalition lacked the standing to pursue the lawsuit. 

In the ruling, Chief Judge Sidney R. Thomas and Judge Kim McLane Wardlaw 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. 

Daniel P. Collins, appointed to the bench by Trump in May 2019, dissented from his colleagues, writing that while he 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. 

The ruling is one of several in the complex group of lawsuits launched by environmental groups and several states that have challenged the Trump 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, the Trump administration has pursued the border wall, spending as much as $100 million per mile in one section to complete what 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. 

One project, called Yuma A-1 was supposed to run about 6.8 miles along the Colorado River, but was cancelled. However, a second project, called Yuma B, might be one of the most expensive sections yet, costing around $100 million for a half-mile stretch of double-layer border wall that will include lights and remote sensors. 

And, on June 15, CBP held an invitation-only meeting to present plans for a project to build gates across Arizona's San Pedro River, considered to be the state's last "free-flowing" waterway. However, officials would not release the potential costs of such a project.

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Decision called 'monumental' by enviros

Lawyers for the ACLU and the Sierra Club applauded Friday's court decision, and were joined by U.S. Rep. Raúl Grijalva—who joined a similar lawsuit with the Tucson-based Center for Biological Diversity. 

"This ruling is a win for the rule of law, the environment, and border communities," said Dror Ladin, staff attorney with the ACLU’s National Security Project, and one of the lawyers who argued the case in front of the 9th Circuit. "President Trump’s xenophobic wall is already leveling protected lands, desecrating cultural sites, and destroying wildlife. There’s no undoing the damage that’s been done, but we will be back before the Supreme Court to finally put a stop to this destructive wall."

"Today’s decision is monumental for our border communities and desert wildlands. The appeals court put a stop to Trump’s unconstitutional wall construction. We should be protecting communities, our democracy, and the environment, not tearing these things apart as Trump hoped to do," said Gloria Smith, managing attorney for the Sierra Club. "We rise with border communities to stop this administration from further inflicting its relentless agenda — harming the people and places we know and love."

"This court ruling reaffirms what we already knew: The Trump administration broke the law when it stole congressionally-appropriated funds from the Defense Department to build his ridiculous vanity wall," Grijalva said. "I’m pleased the court finally listened to the voices of border communities who have long decried the militarization, destruction, and waste that has accompanied border wall construction in their own communities."

"Trump is not an emperor who can flout the constitutionally-mandated duties of Congress and spend taxpayer dollars on his monument to his racist policies. This ruling is one step closer to ending this destructive construction once and for all," he said.

Trump touts wall project

On Tuesday, President Donald Trump visited Yuma, and praised the construction projects, saying that the Department of Homeland Security, supported by the U.S. Army Corps of Engineers had done a "great job. 

"We’re up to 212 — more than that now, about 220 — but over 212 miles, and we’ll be very close to 500 miles by the end of the year. And that’s the area that we wanted," Trump said. He also claimed that the border wall in California had kept a "catastrophic situation" from forming because of COVID-19, which has killed 124,325 and infected at least 2.4 million people under the president's watch. 

Trump has pursued the border wall since the beginning of his administration, but in 2018, he demanded $5.7 billion to build approximately 234 miles of border wall, but Congress refused. Budget negotiations reached an impasse, triggering the longest partial government shutdown in United States history, the court wrote. 

After 35 days, the shutdown ended with an agreement to provide about $1.375 billion under, and the president signed the budget into law. However, at the same time, the president also signed an executive order announcing a national emergency along the border.

As part of that authority, the White House claimed that the president was using his "legal authority to take executive action to secure additional resources" to build a border wall, and the Trump administration would seek $8.1 billion for 234 miles of wall construction—including  $2.5 billion from defense funding. This included funding meant for counter-drug operations, as well as funding under Section 8005 of the 2019 defense appropriations acts. 

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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. 

At the same time, the Sierra Club and others filed suit. While the Sierra Club requested an injunction to halt the Trump administration from spending the funds and continuing with wall construction, in July 2019, the Supreme Court dismissed ruled that the administration could continue siphoning funds from defense funding to build border barriers, and sent the case back to the 9th Circuit. 

At issue is how a section of the 2019 budget agreement allows the secretary of Defense to move money in the military budget. Section 8005 allows the shifting of 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 Sierra Club and others have argued that by using Section 8005 and an emergency declaration, the White House is violating the Constitution.

As the court noted Friday, while Section 8005 "does not require formal congressional approval of transfers, historically" the Department of Defense "adhered to 'gentleman's agreement' by which it sought approval from congressional committees before transferring the funds." 

Instead, the Defense Department, led then by Patrick M. Shanahan, who served as the acting secretary for about six months, "deviated from this practice," the court wrote. "Further, the House Committee on Armed Services and the House Committee on Appropriations both wrote letters to DoD formally disapproving of the reprogramming action after the fact." 

The court wrote that Shanahan — who was replaced by the current secretary Mark Esper — expressly "directed that the transfer of funds was to occur 'without regard to comity-based policies that require prior approval from congressional committees.'" 

In the end, Section 8005 was used to transfer $2.5 billion in defense funding to fund the wall construction. 

In an unsigned opinion, the court's conservative justices said that the government "made a sufficient showing at this stage" that the Sierra Club and the Southern Border Communities Coalition have "no cause of action to obtain a review" of the Defense secretary's actions, and sent the case back to the 9th Circuit Court of Appeals.

CBP blasting Monument Hill for border wall

This has allowed the Trump administration to continue building walls along the border including in Southern Arizona, pursuing construction in the Organ Pipe Cactus National Monument and the adjoining Cabeza Prieta National Wildlife Refuge, as well as across Arizona's San Pedro River. 

In February, after weeks of controversy, Border Patrol invited media to see how the agency was using explosives to break up the borderline on Monument Hill in Organ Pipe so that the agency could build the wall, removing a shorter 18-foot section of wall that included a mesh screen, for the new 30-foot high design. 

Monument Hill, which juts up along the border line and is visible for miles, is considered sacred by the Tohono O'odham Nation, but nonetheless, contractors set up and detonated a series of small explosions to break up the hill and make it easier for the company to install a concrete footer for the taller design. 

Even as the administration builds, it continues to lose in court. 

In December 2019, the Trump administration was handed a pair of losses in federal courts in California and Texas over the use of funding for the border wall. 

In El Paso, U.S. District Judge David Briones, ruled against the use of the funding, and in Oakland, U.S. District Judge Haywood S. Gilliam Jr. also ruled 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 civilian authority, because Congress would not appropriate the requested funds."

As lawsuit bounces through courts, Trump admin siphons more funding

Undaunted, in February, the Trump administration decided to pull another $3.8 billion from the Pentagon to pay for border wall construction this year, a move critics blasted as "theft," a raid and a money grab.

The Pentagon said that it would shift $2.2 billion from the Defense Department's budget. Along with another  $1.63 billion in overseas contingency funding, those funds will instead pay for the wall, requiring cutbacks to several major programs, including the purchase of the F-35 fighters, C-130J cargo planes, as well as the nation's armed drone program and the Navy's P-8 maritime surveillance planes. 

In a statement, U.S. Sen. Kyrsten Sinema said that the cuts include $156 million in funding for the F-35 program, which includes aircraft that are housed at Luke Air Force Base near Phoenix and the Marine Corps Air Station in Yuma. The cuts will also slash $1.3 billion from the National Guard and Reserve Equipment budget, which primarily funds the 162nd Test Center in Tucson.

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The fund transfers, detailed in Defense Department budget documents uncovered Thursday, would use money that had been budgeted for two F-35 fighters, two C-130J cargo planes, drones and other equipment. The plan also targets $1.3 billion that was originally allocated for National Guard units from all four branches of the military.

In September, the Trump administration moved to siphon $3.6 billion for dozens of military projects, using the money for 11 border wall projects, including $1.3 billion slated for construction along the Barry M. Goldwater bombing range and the Cabeza Prieta National Wildlife Refuge.

In exchange, more than 127 military projects were sidelined, including a $30 million project at Ft. Huachuca, which might have already been delayed because of "unforeseen environmental issues at the construction site." 

The administration has already shifted about $6.7 billion from across the government, and planned to divert a total of $7.2 billion of military funding toward border wall construction in 2019. 

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Paul Ingram/TucsonSentinel.com

Demolition charges go-off during as part of construction on Monument Hill in the Organ Pipe Cactus National Monument, one of four protected areas of public land where the Trump administration has built more than 200 miles of border wall.


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