San Francisco Chronicle

Appeals court: Trump can’t start building wall

- By Bob Egelko Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicl­e.com

A federal appeals court refused Wednesday to allow President Trump to start building his wall at the Mexican border using money set aside for the military, saying funding has been denied by Congress, which has constituti­onal authority over federal spending.

The 21 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco left intact a decision by U.S. District Judge Haywood Gilliam of Oakland barring the Trump administra­tion from transferri­ng $2.5 billion from Defense Department programs to build the first segments of the wall in Arizona, New Mexico and Texas, and near El Centro in Imperial County.

“Congress denied this request,” the court said, and the administra­tion’s attempt to redirect other federal funds “intrudes on Congress’ exclusive power of the purse.”

Trump, who had promised during his presidenti­al campaign that Mexico would pay for the wall, sought $5.7 billion in funding from Congress last year. When lawmakers approved only $1.375 billion for limited barrier constructi­on, the president vetoed an appropriat­ions bill and closed down many government operations for 35 days, starting Dec.. 22 — the longest shutdown in U.S. history.

He then declared a national emergency over illegal immigratio­n on Feb. 15 and said he would fund the wall with $8.1 billion already in the budget for other purposes, mostly military programs.

The administra­tion cited the president’s broad emergency powers under federal law and argued that Congress, when it approved the Defense Department budget last year, had not expressly prohibited the use of those funds for wall constructi­on. Justice Department lawyers asked the appeals court to suspend Gilliam’s ruling and allow constructi­on to begin while they appeal his order.

Trump’s lengthy battle with Congress over wall funding in 2018 “makes it implausibl­e that this need was unforeseen,” said Judges Richard Clifton and Michelle Friedland.

Clifton was appointed by President George W. Bush and Friedland by President Barack Obama. Dissenting Judge N. Randy Smith, a Bush appointee, said the administra­tion’s argument that the wall is “needed to protect national security ... is not the sort of determinat­ion that courts will ordinarily secondgues­s.”

Smith said Trump was legally entitled to build the wall with funds from a Defense Department program to combat drug traffickin­g. Suspending Gilliam’s order and allowing constructi­on to begin is consistent with the Defense Department’s determinat­ion that “drug traffickin­g along our Southern border ... threatens the safety and security of our nation,” Smith said.

The ruling came in a suit by the Sierra Club and the immigrant advocacy group Southern Border Communitie­s Coalition. Their lawyer, Dror Ladin of the American Civil Liberties Union, said, “For the sake of our democracy and border communitie­s, it’s time the president comes to terms with the fact that America rejected his xenophobic wall.”

Attorney General Xavier Becerra, who represente­d California in a separate lawsuit, said the ruling showed that Trump “can’t ignore our country’s constituti­onal and democratic principles just to protect his own vanity.”

 ?? K.C. Alfred / San Diego Union-Tribune ?? President Trump visits wall prototypes. He wanted to shift money from military uses to fund the wall.
K.C. Alfred / San Diego Union-Tribune President Trump visits wall prototypes. He wanted to shift money from military uses to fund the wall.

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