Appeals court: Trump can’t use Pentagon cash for border wall | TribLIVE.com
U.S./World

Appeals court: Trump can’t use Pentagon cash for border wall

Associated Press
1372636_web1_1372636-12504363f24a44429d81db9f34bb1621
AP
Border Patrol agent Vincent Pirro walks toward prototypes for a border wall in San Diego. An appeals court has upheld a freeze on Pentagon money to build a border wall with Mexico, casting doubt on President Trump’s ability to make good on a signature campaign promise before the 2020 election.
1372636_web1_1372636-997b06e3709f4e43a66ea32d984dcfc6
AP
President Trump talks during a signing ceremony in the Oval Office of the White House in Washington, Monday, July 1, 2019. The president signed a $4.6 billion aid package to help the federal government cope with the surge of Central American immigrants at the U.S.-Mexico border.

SAN DIEGO — An appeals court on Wednesday upheld a freeze on Pentagon money to build a border wall with Mexico, casting doubt on President Trump’s ability to make good on a signature campaign promise before the 2020 election.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco agreed with a lower court ruling that prevented the government from tapping Defense Department counterdrug money to build high-priority sections of wall in Arizona, California and New Mexico.

The decision is a setback for Trump’s ambitious plans. He ended a 35-day government shutdown in February after Congress gave him far less than he wanted. He then declared a national emergency that the White House said would free billions of dollars from the Pentagon.

The case may still be considered, but the administration cannot build during the legal challenge.

“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,” wrote Judges Michelle Friedland, a Barack Obama appointee, and Richard Clifton, a George W. Bush appointee.

A freeze imposed by U.S. District Judge Haywood Gilliam Jr. of Oakland in May prevented work on two Pentagon-funded wall contracts — one spanning 46 miles in New Mexico and another covering 5 miles in Yuma, Ariz.

While the order applied only to those first-in-line projects, Gilliam made clear that he felt the American Civil Liberties Union, which sued on behalf of the Sierra Club and Southern Border Communities Coalition, was likely to prevail in their argument that Trump ignored Congress’ wishes by diverting Defense Department money.

Gilliam went a step further Friday by ruling definitively that the administration couldn’t use Pentagon counterdrug money for the two projects covered in his May order or to replace 63 miles in the Border Patrol’s Tucson, Arizona, sector and 15 miles in its El Centro, Calif., sector.

The administration immediately appealed.

N. Randy Smith, a George W. Bush appointee, strongly disagreed with the appeals court ruling, saying it misread constitutional separation of powers.

“The majority here takes an uncharted and risky approach — turning every question of whether an executive officer exceeded a statutory grant of power into a constitutional issue,” he wrote in his dissent. “This approach is in contradiction to the most fundamental concepts of judicial review.”

The Justice Department didn’t immediately respond to a request for comment Wednesday. Its attorneys argued that the freeze on Pentagon funds showed a “fundamental misunderstanding of the federal appropriations process.”

At stake is billions of dollars that would allow Trump to make progress on a major 2016 campaign promise heading into his race for a second term.

Trump declared a national emergency after losing a fight with the Democratic-led House that led to the 35-day shutdown. Congress agreed to spend nearly $1.4 billion on barriers in Texas’ Rio Grande Valley, the busiest corridor for illegal crossings, which was well below the $5.7 billion the president requested.

Trump grudgingly accepted the money but declared the emergency to siphon cash from other government accounts, finding up to $8.1 billion for wall construction. The money includes $3.6 billion from military construction funds, $2.5 billion from Defense Department counterdrug activities and $600 million from the Treasury Department’s asset forfeiture fund.

Acting Defense Secretary Mark Esper has yet to approve transferring the military construction funds. The Treasury Department funds have so far survived legal challenges.

The president’s adversaries say the emergency declaration was an illegal attempt to ignore Congress.

The administration said the U.S. needed emergency protection to fight drug smuggling. Its arguments did not mention illegal immigration or unprecedented numbers of Central American families seeking asylum at the U.S. border , which have dominated public attention in recent months.

The administration has awarded $2.8 billion in contracts for barriers covering 247 miles, with all but 17 miles of that to replace existing barriers not expand coverage. It is preparing for a flurry of construction that the president is already celebrating at campaign-style rallies.

Trump inherited barriers spanning 654 miles, or about one-third of the border with Mexico. Of the miles covered under Trump-awarded contracts, more than half is with Pentagon money.

The Army Corps of Engineers recently announced several large Pentagon-funded contacts.

SLSCO Ltd. of Galveston, Texas, won a $789 million award to replace the New Mexico barrier. Southwest Valley Constructors of Albuquerque, N.M., won a $646 million award for the work in Tucson. Barnard Construction Co. of Bozeman, Mont., won a $141.8 million contract to replace barrier in Yuma and El Centro.

Categories: News | World
TribLIVE commenting policy

You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.

We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.

While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.

We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers

We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.

We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.

We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.

We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.