A federal appeals court in California on Friday ruled that the Trump administration’s use of Pentagon funding to build a wall along the U.S.-Mexico border is illegal.
In a 2-1 ruling, the 9th Circuit Court of Appeals found that President 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.
“These funds were appropriated for other purposes, and the transfer amounted to ‘drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause,’ ” the majority wrote. “Therefore, the transfer of funds here was unlawful.”
Legal challenges arose early last year after Trump declared a national emergency at the southern border. Trump’s declaration sought to free up additional funding after a congressional spending bill allocated some $1.3 billion for border security, far short of the nearly $5 billion Trump said was needed to complete his signature project.
The 9th Circuit dispute is one of several lawsuits filed against the Trump administration over its emergency border wall funding. The court issued two related rulings on Friday, siding with California and more than a dozen states in one case, and private groups in another, all of whom challenged the administration’s move.
“Today, the court reminded the President — once again — that no one is above the law,” California Attorney General Xavier Becerra said after the decision. “While the Trump Administration steals public funds to build an unauthorized wall at the Southern Border, families across the country are struggling to pay their bills.”
The practical effect of the ruling was not entirely clear because the Supreme Court last July ruled 5-4 that Trump could begin spending $2.5 billion in reallocated Pentagon funds to build the border wall while the legal challenges proceeded through the courts.
Robert Tsai, a law professor at American University and constitutional scholar, applauded the ruling.
“This decision is an important win for democratic accountability and a huge blow to President Trump’s pretensions to unilateral power over the purse,” he said. “The Ninth Circuit read federal law closely and found that the shift of funds was not for a military purpose and that the needs he cited were not unforeseen — in other words, that the president has fabricated an emergency to complete his pet project.”
A related challenge brought by House Democrats is pending before the U.S. Court of Appeals for the D.C. Circuit. In April, the D.C. Circuit heard arguments that centered on whether courts have the power to referee the fight between Congress and the White House, or if its resolution should be left up to the political process.
Earlier this week Trump toured and signed a section of the southern border wall in San Luis, Ariz., to mark the construction of 200 miles of the barrier. Critics note that much of the 200 miles is actually rebuilt or reinforced fencing that already existed, though the new construction amounts to a significant upgrade to deter potential border crossings.