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Overnight Defense: Supreme Court to hear case on diversion of Pentagon funds to border wall | Biden campaign cutting retired general from ad after objection | Trump's arms control talks with Russia hit wall

Overnight Defense: Supreme Court to hear case on diversion of Pentagon funds to border wall | Biden campaign cutting retired general from ad after objection | Trump's arms control talks with Russia hit wall
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Happy Monday and welcome to Overnight Defense. I'm Rebecca Kheel, and here's your nightly guide to the latest developments at the Pentagon, on Capitol Hill and beyond. CLICK HERE to subscribe to the newsletter.

THE TOPLINE: The Supreme Court has agreed to hear the Trump administration’s appeal of a lower court ruling on the president’s diversion of military funds to build a wall along the United States' southern border.

The case was one of two immigration-related disputes the court agreed to hear Monday. In addition to the border wall, the Supreme Court will review the administration’s policy requiring asylum-seekers to remain in Mexico while their cases proceed through American courts.

The cases are expected to be heard sometime after the anticipated confirmation of President TrumpDonald John TrumpTrump alludes to possible 2024 run in White House remarks Trump threatens to veto defense bill over tech liability shield Tiger King's attorney believes they're close to getting pardon from Trump MORE’s third justice, Amy Coney BarrettAmy Coney BarrettCuomo likens COVID-19 to the Grinch: 'The season of viral transmission' Conservative justices seem prepared to let Trump proceed with immigrant census plan for now For Thanksgiving, the Supreme Court upholds religious liberty MORE, and are likely to present the first major legal confrontation over Trump immigration policy to the 6-3 conservative majority court.

Border wall background: That case involves Trump’s appeal of a June ruling by a federal appeals court in California that his administration’s use of Pentagon funding to build a wall along the U.S.-Mexico border is illegal.

A three-judge panel of the 9th Circuit Court of Appeals ruled 2-1 that Trump’s diversion of defense, military and other funding — billions of dollars that were not originally earmarked for border wall construction — violated the Appropriations Clause of the Constitution, which gives Congress the exclusive power of the purse.

Several legal challenges arose early last year after Trump declared a national emergency at the southern border to free up additional funding. The president made that move after a congressional spending bill allocated some $1.3 billion for border security, far short of the nearly $5 billion he said was needed to complete his signature project.

Trump then reallocated $2.5 billion in funding that Congress appropriated for defense and military uses.

Despite a lower court ruling that Trump’s maneuver was illegal, the Supreme Court in July declined to block the administration from using reallocated Pentagon funds. The court’s four more liberal justices, including the late Justice Ruth Bader GinsburgRuth Bader GinsburgCuomo likens COVID-19 to the Grinch: 'The season of viral transmission' For Thanksgiving, the Supreme Court upholds religious liberty Cardinal Dolan hails Supreme Court decision on churches, COVID-19 MORE, dissented from the ruling.

BIDEN REMOVING RETIRED GENERAL FROM AD: The Biden campaign will remove images of a former commander of the U.S.-led anti-ISIS military coalition from an ad after he called out the campaign for including him without his permission, a spokesman said Monday.

"As the proud father of a veteran and as someone who has always been a strong ally for our men and women in uniform, Vice President Biden has the utmost respect for those who have served, and in accordance with Lt. Gen. MacFarland's wishes we're in the process of removing his image from this ad,” campaign spokesman Michael Gwin said in a statement.

The issue: The campaign’s statement came after retired Lt. Gen. Sean MacFarland wrote a post on his LinkedIn page over the weekend objecting to the use of his image in the ad.

“Much to my surprise, I have been featured more than once in VP Joe BidenJoe BidenTrump alludes to possible 2024 run in White House remarks Tiger King's attorney believes they're close to getting pardon from Trump Cruz urges Supreme Court to take up Pennsylvania election challenge MORE's political ad campaign,” wrote MacFarland, who served as the commander of the international coalition fighting ISIS in Iraq and Syria from 2015 to 2016.

“A number of people have understandably inferred that my appearance constitutes an endorsement of the former Vice President,” MacFarland added. “It does not. To be clear, I have not endorsed President Trump, either. I'm not a political person, but this isn't about just me. I object to the use of ANY military personnel in uniform in political ads - full stop.”

The ad in question highlighted Biden’s support for mine resistant ambush protected vehicles (MRAPs) as a senator in 2007. Biden was one the senators who led the charge to secure funding for MRAPs, which ultimately received broad bipartisan support.

Context: MacFarland’s post comes about a week after the Trump campaign was criticized for using an image featuring Defense Secretary Mark EsperMark EsperISIS Task Force director resigns from Pentagon post in continued post-election purge The perils of a US troop drawdown to the Afghan army and tribes Acting Defense secretary makes surprise trip to Somalia MORE and Joint Chiefs of Staff Chairman Gen. Mark MilleyMark MilleyOvernight Defense: Mike Rogers slated to be top House Armed Services Republican | Defense bill hits another snag | Pentagon dinged for 0M loan to trucking company using COVID funds Israeli military instructed to prepare for Trump strike on Iran: report Top Pentagon official tests positive for COVID-19 MORE in an ad.

The Trump campaign ad featured a picture of Trump and his advisers watching the 2019 raid on ISIS leader Abu Bakr al-Baghdadi from the Situation Room.

The ad, which appeared to target possibile main-in voters, was captioned, “President Trump wants you to request your ballot,” and linked to the Trump campaign's voter sign-up page.

NEW START IMPASSE: The United States and Russia appear to be at an impasse on talks to replace the expiring New START treaty.

Over the weekend, we took a look at how that impasse means Trump’s efforts to secure foreign policy wins heading into the presidential election have hit a Russian wall, depriving him of an accomplishment he could tout in the remaining days of the campaign.

The Russians, perhaps hedging their bets on a win by Biden in November, recently rejected the Trump administration’s latest offer. On Friday, the administration rejected Moscow’s counteroffer to extend the existing New Strategic Arms Reduction Treaty (START).

Arms control advocates were unsurprised at the latest developments, arguing Trump squandered much of his tenure and treated the talks with urgency only as the election drew near.

“The administration really didn't get serious about talking to the Russians on a potential extension of New START and a broader agreement until this spring. So the first three and a half years, the administration effectively wasted,” said Kingston Reif, director for disarmament and threat reduction policy at the Arms Control Association.

“Our concern had been that the administration's approach here was far more consistent with running out the clock on New START than a serious effort to advance arms control to capture additional types of weapons and to bring in additional additional nuclear armed states,” he added. “To say the least, that concern remains.”

Read up on the struggling talks here.

ON TAP FOR TOMORROW

Air Force Secretary Barbara M. Barrett and other senior Air Force officials will speak at day one of the virtual Air Force Rapid Sustainment Office Advanced Manufacturing Olympics starting at 11 a.m. https://bit.ly/2HgN4oX

Defense Secretary Mark Esper will speak about alliances and partnership at 1 p.m. at a virtual event hosted by the Atlantic Council. https://bit.ly/3m1LPsD

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