A federal appeals court Wednesday upheld an injunction barring the Trump administration from using military funds to pay for a wall along the southern border.
In a 2-1 decision, a panel of the 9th U.S. Circuit Court of Appeals said Trump was likely to lose his appeal and the injunction by a district judge should remain in place.
After failing to win funding for the wall from Congress, Trump announced in February that he planned to divert $8.1 billion for the border wall from funds slated for military construction and other Department of Defense operations.
The Sierra Club and the Southern Border Communities Coalition sued, winning an injunction in late May against building the wall in parts of California, Arizona and New Mexico.
The Trump administration asked the 9th Circuit to block that order while the case was on appeal.
In rejecting the administration’s request, the 9th Circuit said using the military funds “violates the constitutional requirement that the executive branch not spend money absent an appropriation from Congress.”
The public interest is “best served by respecting the Constitution’s assignment of the power of the purse to Congress,” the 9th Circuit said.
The order was signed by Judges Richard Clifton, appointed by President George W. Bush, and Michelle Friedland, a Barack Obama appointee. Judge N. Randy Smith, appointed by President George W. Bush, dissented.
Smith accused the majority of creating “a constitutional issue where none previously existed.”
“We have no right to expand the Judiciary’s role in this manner,” he wrote.
Congress’ refusal to allocate funds for the wall late last year led to a 35-day partial government shutdown, the longest in the nation’s history. After losing in Congress, Trump declared a national emergency and decided to pay for the project with other federal money.
The president took $2.5 billion from military funds for border construction in California, Arizona and New Mexico, sparking the lawsuit that produced the injunction.
The nonprofit groups said in their suit that wall construction would cause noise, blight and hurt the environment, detracting from the ability of people to hike, fish, enjoy landscapes and study a diverse range of wildlife near the U.S.-Mexico border.
Wednesday’s ruling questioned whether an emergency existed. The panel noted the need for the money was not “unforeseen” and Congress already had refused to allocate it.
California Attorney General Xavier Becerra praised the decision.
“Today, once again, the court has rejected President Trump’s attempted illegal money grab to build an unnecessary border wall,” Becerra said. “The president is not above the law and can’t ignore our country’s constitutional and democratic principles just to protect his own vanity.”
Dror Ladin, staff attorney with the American Civil Liberties Union’s National Security Project, called on Trump to end his efforts to build the wall.
“For the sake of our democracy and border communities,” said Ladin, who argued the case for the challengers, “it’s time the president comes to terms with the fact that America rejected his xenophobic wall — and move on.”
The U.S. Department of Justice could not immediately be reached for comment.
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