Court limits cash for border wall

Money budgeted for Pentagon can’t be diverted, ruling says

SAN DIEGO — An appeals court on Wednesday upheld a freeze on Pentagon money to build a border wall with Mexico, casting doubt on President Donald 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, Arizona.

While the order applied only to those first-in-line projects, Gilliam made clear that he felt the American Civil Liberties Union was likely to prevail in their argument that Trump ignored Congress’ wishes by diverting Defense Department money.

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