Bor­der spend­ing blocked in court

Oakland judge says Trump ex­ceeded au­thor­ity on wall

San Francisco Chronicle Late Edition - - FRONT PAGE - By Bob Egelko

A fed­eral judge or­dered a halt to con­struc­tion of Pres­i­dent Trump’s bor­der wall Fri­day, say­ing Trump ex­ceeded his le­gal au­thor­ity by man­dat­ing a project that Congress has re­fused to pay for.

U.S. District Judge Hayward Gil­liam of Oakland, the first judge to con­sider le­gal chal­lenges to Trump’s or­der, granted re­quests by en­vi­ron­men­tal and im­mi­grant ad­vo­cates for an in­junc­tion against trans­fer­ring funds from other fed­eral pro­grams to build the first stage of the wall, in Ari­zona and Texas.

“Congress’ ab­so­lute con­trol over fed­eral ex­pen­di­tures — even when that con­trol may frus­trate the de­sires of the ex­ec­u­tive branch re­gard­ing ini­tia­tives it views as im­por­tant — is not a bug in our con­sti­tu­tional sys­tem,” Gil­liam wrote. “It is a fea­ture of that sys­tem, and an es­sen­tial one.”

Prin­ci­ples of gov­ern­ment “dat­ing back to the ear­li­est days of our Repub­lic,” Gil­liam said, demon­strate that “when Congress de­clines the ex­ec­u­tive’s re­quest to ap­pro­pri­ate funds, the ex­ec­u­tive (may not) ... sim­ply find a way to spend those funds.”

Trump has pro­posed redi­rect­ing $8.1 bil­lion from other projects, mostly mil­i­tary, to build a wall at the Mex­i­can bor­der. The judge’s rul­ing blocks the di­ver­sion of $1 bil­lion in mil­i­tary funds to the Ari­zona and Texas phases.

Gil­liam said he would con­sider the le­gal­ity of ad­di­tional

spend­ing once the ad­min­is­tra­tion is­sues its fi­nal plans for the funds. He de­nied an in­junc­tion sought by Cal­i­for­nia and other states against those projects, say­ing the states had not yet shown that the fund­ing would cause them “ir­repara­ble harm.”

At­tor­ney Dror Ladin of the Amer­i­can Civil Lib­er­ties Union, which rep­re­sents the Sierra Club and the im­mi­grant-ad­vo­cacy group South­ern Bor­der Com­mu­ni­ties Coali­tion, said the rul­ing is “a win for our sys­tem of checks and bal­ances.”

At­tempts to reach the White House and the Jus­tice De­part­ment for com­ment late Fri­day were not suc­cess­ful. The ad­min­is­tra­tion is likely to ap­peal the rul­ing, and the dis­pute could reach the Supreme Court by the end of the year.

Trump, who had promised dur­ing his pres­i­den­tial cam­paign that Mex­ico would pay for a wall on the south­ern U.S. bor­der, 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 De­fense De­part­ment pro­grams.

Lawyers for the ad­min­is­tra­tion cited the pres­i­dent’s broad emer­gency pow­ers un­der fed­eral law and said mil­i­tary funds had been used to build fences near the bor­der for 30 years. They also ar­gued that the lack of con­gres­sional ap­proval of the $5.7 bil­lion sought by Trump did not amount to a re­jec­tion of fund­ing for the wall, be­cause Congress did not expressly for­bid the use of De­fense De­part­ment funds for wall con­struc­tion. Gil­liam dis­agreed. “The re­al­ity is that Congress was pre­sented with — and de­clined to grant — a $5.7 bil­lion re­quest for bor­der bar­rier con­struc­tion,” he said.

He also re­jected Jus­tice De­part­ment ar­gu­ments that the fund­ing was au­tho­rized by a law al­low­ing re­di­rect­ion of the Pen­tagon bud­get to meet “un­fore­seen mil­i­tary re­quire­ments.”

De­scrib­ing the wall as “un­fore­seen” con­tra­dicts “the ad­min­is­tra­tion’s mul­ti­ple re­quests for fund­ing for ex­actly that pur­pose dat­ing back to at least early 2018,” Gil­liam said. Cit­ing an­other law that au­tho­rizes fund­ing for mil­i­tary con­struc­tion projects, he said it was “un­clear how bor­der bar­rier con­struc­tion could rea­son­ably con­sti­tute a mil­i­tary con­struc­tion project.”

On an­other is­sue, Gil­liam said en­vi­ron­men­tal groups and oth­ers who visit the bor­der ar­eas had the right to sue be­cause the planned con­struc­tion would “lead to a sub­stan­tial change in the en­vi­ron­ment,” which would “harm their abil­ity to recre­ate in and other­wise en­joy pub­lic land along the bor­der.”

Sierra Club at­tor­ney Glo­ria Smith praised the rul­ing.

“Walls divide neigh­bor­hoods, worsen dan­ger­ous flood­ing, de­stroy lands and wildlife, and waste re­sources that should in­stead be used on the in­fra­struc­ture these com­mu­ni­ties truly need,” she said in a state­ment. “Yet again, the Amer­i­can peo­ple have had to look to our courts for a check on Pres­i­dent Trump’s un­law­ful power grabs.”

Alex Bran­don / As­so­ci­ated Press

Pres­i­dent Trump’s bor­der wall plan re­ceived a set­back with a judge say­ing he doesn’t have the au­thor­ity to di­vert mil­i­tary funds.

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