The Trump administration erred in using Defense Department funds to build the wall along the border with Mexico, a three-judge panel from the U.S. Court of Appeals for the 9th Circuit has ruled in a 2 – 1 decision.
The June 26 ruling upholds a 2019 U.S. district court decision that the transfer of $2.5 billion in funds to construction of the wall from that year’s military construction budget was unauthorized. The decision was a victory for the 16 states that sued the government to stop the transferal. Two of those states – California and New Mexico – have borders with Mexico where the wall is being built.
The circuit court’s majority opinion agreed with the lower court’s determination that construction of the border wall did not fulfill the need to address “an unforeseen military requirement,” and noted that Congress had previously denied Trump’s request to fund the project. The decision also supported claims made by California and New Mexico that construction of the wall would threaten the local environment, and would impinge upon each state’s sovereignty.
In writing the majority opinion, 9th Circuit Chief Judge Sidney R. Thomas said, “Both the requirement to build a wall on the southern border as well as the DHS request to DoD to build that wall were anticipated and expected.” Hence, Thomas stated, the administration’s claim that using the money to build the wall met the legal threshold for intent to address “unforeseen” threats is invalid. He added that the border wall construction projects offered nothing “related to the use of solders or arms, nor is there a war on the southern border.”
Judge Kim McLane joined Thomas – both appointed by President Clinton – on the majority opinion. Daniel P. Collins, a Trump appointee, wrote the dissent, stating that DoD acted well within the boundaries of its authority by responding to the DHS request for assistance in building the wall.
“Upon request from another federal department, the Secretary of Defense is authorized to ‘provide support for the counter-drug activities’ of that department, by undertaking the ‘construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States,” Collins wrote.
The administration has two avenues of appeal. It could ask a full panel from the 9th Circuit to reconsider the case, or take their argument directly to the Supreme Court.