President Donald Trump’s use of $2.5 billion in military funds to help pay for construction of his southern border wall is both “unlawful” and a violation of the Constitution, a federal appeals court panel ruled Friday.
“The Executive Branch lacked independent Constitutional authority to authorize the transfer of funds,” said the ruling by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco.
“These funds were appropriated for other purposes, and the transfer amounted to ‘drawing funds from the Treasury without authorization’ .... Therefore, the transfer of funds here was unlawful,” the judges ruled in a 2-to-1 decision.
Trump shifted the money last year after Congress refused to appropriate funds for the wall. He declared a national “emergency” in a bid to justify the transfer. But he conceded in a press briefing shortly afterward that he actually
“didn’t need to” declare an emergency. “But I’d rather do it much faster,” he added, referring to building the wall on the Mexican border.
He also cited part of the Defense Department’s 2019 appropriations act that allows the defense secretary to transfer up to $4 billion “for military functions.” The ruling Friday pointed out, however, that the section of the act that Trump cited specifies such transfers can’t be made “where the item for which funds are requested has been denied by the Congress.”
The Department of Justice is expected to appeal the ruling to the U.S. Supreme Court. Justice Department officials did not immediately comment Friday.
“Today, the court reminded the president — once again — that no one is above the law,” said California Attorney General Xavier Becerra, who heads a coalition of states that had sued to block use of the Pentagon funds for a border wall. “We applaud the court for taking action to immediately halt Trump’s unlawful money grab.”
The appeals panel ruling backed an earlier finding by a lower court that use of the funds was illegal.
After the Trump administration transferred $2.5 billion in military funds to border wall construction, the Pentagon diverted an additional $3.6 billion to the wall that the 5th Circuit appeals court ruled in January could be spent. California is challenging that fund transfer in a separate lawsuit.
The Trump administration has already awarded a large portion of the money, including $1.3 billion for a planned section of the wall in Arizona, which was announced last month. It’s unclear how the funds would be repaid for sections that have already been constructed.
Trump visited Yuma, Arizona, on Tuesday to mark the completion of what he termed 212 miles of border wall during his administration.
In fact, only three of those 212 miles are along parts of the border that previously had no barrier. The rest of the construction has repaired or replaced existing fencing, a process that began under President George W. Bush and continued under President Barack Obama.
Much of the construction has been covered by Pentagon funds. Trump has promised repeatedly that Mexico would pay for the wall. It hasn’t paid a peso.