9th Circuit rejects Trump admin request to allow use of military funds for border wall

The 9th Circuit Court of Appeals on Wednesday rejected the Trump administration’s request to temporarily halt a lower court order blocking the diversion of military funds for a border wall.

In a 2-1 ruling, the panel of appellate judges found that “the use of those funds violates the constitutional requirement that the Executive Branch not spend money absent an appropriation from Congress.”

The order applies to some of the military funds tapped by President TrumpDonald John TrumpUS-Saudi Arabia policy needs a dose of 'realpolitik' Trump talks to Swedish leader about rapper A$AP Rocky, offers to vouch for his bail Matt Gaetz ahead of Mueller hearing: 'We are going to reelect the president' MORE for a wall along the southern border.

ADVERTISEMENT

In the ruling, Judge Richard Clifton, who was appointed by former President George W. Bush, and Judge Michelle Friedland, an Obama appointee, wrote that they believed the administration was not likely to succeed in appealing the lower court order.

The administration had issued an emergency request to the 9th Circuit asking the judges to lift the lower court injunctions.

But the judges on Wednesday denied that request. They ruled that officials had wrongly reallocated funds under Section 8005 of the Department of Defense Appropriations Act of 2019, which allows for the reappropriation of funds for “unforeseen” military requirements.

“Because section 8005 did not authorize DoD to reprogram the funds—and Defendants do not and cannot argue that any other statutory or constitutional provision authorized the reprogramming—the use of those funds violates the constitutional requirement that the Executive Branch not spend money absent an appropriation from Congress,” the opinion reads.

The judges also stated that there is a “strong likelihood” that groups that are challenging the use of military funds for a border wall, such as the American Civil Liberties Union (ACLU) and the Sierra Club, will succeed in their efforts.

“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.

In a statement, the ACLU said it was time for Trump to "move on," following the judges' decision.

"Congress and now two courts have said no to 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 before the appeals court. 

Gloria Smith, managing attorney at the Sierra Club, said the ruling "upholds the basic notion that only Congress can appropriate funds."

"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," she said in a statement.

Judge N.R. Smith, also a Bush appointee, disagreed with the majority's ruling.

He wrote that the other judges were raising constitutional issues to resolve whether officials had violated a federal statute, which he characterized as being "in contradiction to the most fundamental concepts of judicial review."

"Because [administration lawyers] have satisfied their burden to obtain the requested relief when Plaintiffs’ claim is properly cast as a statutory issue, the majority should grant Defendants’ motion to stay the permanent injunction until the matter is finally determined on appeal," Smith wrote.

The decision marks another legal blow for Trump, who declared a national emergency earlier this year to tap Defense Department funds to construct a wall on the southern border.

Trump had declared the national emergency to reprogram the military funds in January after a standoff with Congress over funds for the border wall.

Lawmakers had refused to include the president’s requested amount of funding in a government spending bill, a battle that led to a record 35-day partial government shutdown that culminated with the national emergency declaration in January.

That order has triggered several lawsuits, including Wednesday's lawsuit led by the ACLU and others brought forward by House Democrats and a group of states.

Judge Haywood Gilliam of the District Court for the Northern District of California, an Obama appointee, had ruled Friday to make his previous preliminary injunction permanent, blocking the use of some of the military funds for the border wall.

However, the case is not over yet, as administration officials are certain to continue to challenge the blocks to their attempts to construct Trump's long-promised border wall.

Read the ruling below.

Updated 7:53 p.m.