Congress didn’t bar border wall funds, Trump lawyer claims
A Trump administration lawyer told an apparently skeptical federal appeals court panel Tuesday that Congress never actually barred President Trump from redirecting military funds to start building his border wall, even though Trump shut down most government operations for 35 days when lawmakers refused to provide the money he wanted.
“These funds were appropriated by Congress” in September 2018 when it approved the Defense Department budget, which allowed money to be transferred for other Pentagon purposes in unforeseen circumstances, Justice Department attorney Thomas Byron told the Ninth U.S. Circuit Court of Appeals in San Francisco. “The approval of a lower amount (of funding) by Congress is not a denial.”
A member of the threejudge panel, Judge Kim Wardlaw, was clearly dubious.
“This was not just a denial of a greater amount,” she said, noting that Trump had promised voters in 2016 to build a wall at the Mexican border and repeatedly sought funding from Congress. She said the record shutdown, which started Dec. 22, 2018, resulted from “Congress refusing over and over to pay for that” and instead approving $1.375 billion for limited barrier construction in Arizona and Texas, far short of the president’s demands.
After ending the shutdown, Trump declared a national emergency over illegal immigration in February and said he would redirect $8.1 billion from other projects, mostly military, to pay for it. Although a federal judge and another panel of the appeals court ordered a halt to construction in a lawsuit led by the Sierra Club, the Supreme Court voted 54 in July to allow Trump to use up to $2.5 billion in military funds to start building 100 miles of border barriers in California, Arizona and New Mexico while the case proceeds.
The Supreme Court’s order will remain in effect regardless of the Ninth Circuit’s next ruling, expected within a few months. But the appeals court decision on the legality of the $2.5 billion appropriation will move the case a step closer to final resolution by the high court. Another hearing is scheduled next week before a federal judge in Oakland on an additional $3.5 billion in disputed funds.
Opponents, supported by a group of states led by California and the Democraticcontrolled U.S. House of Representatives, say Trump is defying Congress’ constitutional authority to approve all federal spending.
There was a “clear refusal by Congress to fund border barriers beyond $1.375 billion,” said James Zahradka, a California deputy attorney general arguing for the states. “They flew in the face of Congress’ repeatedly expressed will.”
If the administration believed it had the authority to redirect previously approved Pentagon funds for the wall, asked Douglas Letter, lawyer for the House of Representatives, why would it have shut down the government after Congress denied direct funding? He cited the assertion on Fox News in January by Mick Mulvaney, Trump’s acting chief of staff, that the wall would be built “with or without Congress.”
Byron replied that Congress had implicitly approved the funding when it passed the Pentagon budget without expressly forbidding use of the money for wall construction. If lawmakers want to halt the funding, the Justice Department lawyer said, they need to pass a law — one that would require Trump’s signature.
Byron also argued that the plaintiffs in the case, the Sierra Club and the Southern Border Communities Coalition, had no legal right to challenge the funding in court. The groups say construction would damage the environment and the lives of border residents, but Byron said private citizens cannot assert those interests in a lawsuit against military funding.
The plaintiffs’ lawyer, Dror Ladin of the American Civil Liberties Union, countered that private citizens have “always been able to call on the courts” when the government exceeds its constitutional authority.
Chief Judge Sidney Thomas, like Wardlaw an appointee of President Bill Clinton, seemed doubtful of Byron’s argument about the right to sue. The third panel member, Judge Daniel Collins, a Trump appointee, appeared to be more receptive, suggesting that Congress had given the administration broad leeway in spending military funds.