SIERRA VISTA — The Trump administration’s plan to use “reprogrammed” money to build a pedestrian wall along the border with Mexico was dealt a blow Wednesday.
The 9th Circuit Court of Appeals ruled in favor of the Sierra Club and Southern Borders Communities Coalition (SBCC) in a suit brought forward by the American Civil Liberties Union (ACLU) on their behalf and shut down any effort to build a wall along the border in certain locations. The complaint filed requested “declaratory and permanent injunctive relief to prevent construction of the border barrier using the funding at issue.”
The ruling made by Judges Richard Clifton and Michelle Friedland determined the administration erred in proceeding with construction of the wall paid with funds not approved by Congress.
The ruling reaffirmed recent decisions in U.S. District court which blocked $2.5 billion for border barrier construction, opponents of the wall funding said.
The ACLU argued, “The use of the funds to build a border barrier was unsupported by any congressional appropriation and thus unconstitutional.”
The judges found, “Reprogramming and spending those funds therefore violates the Appropriations Clause. In other words, (the move) would simply invite creative repackaging. But putting a gift in different wrapping paper does not change the gift. Identifying the request to Congress as having come previously from DHS instead of from DOD does not change what funding was requested for: a wall along the southern border.”
According to SBCC statements, “The ruling upholds two earlier district court orders that together permanently block the administration from building wall sections along the southern border in New Mexico, Arizona and California using $2.5 billion in diverted military funds.”
Dror Ladin, staff attorney with the ACLU’s National Security Project, stated in a release, “Congress and now two courts have said no to border wall funds. For the sake of our democracy and border communities, it’s time the president come to terms with the fact that America rejected his xenophobic wall — and move on.”
Gloria Smith, managing attorney at the Sierra Club, commented, “The 9th Circuit ruling upholds the basic notion that only Congress can appropriate funds. We’ve seen the damage that the ever-expanding border wall has inflicted on communities and the environment for decades. Walls divide neighborhoods, worsen dangerous flooding, destroy lands and wildlife, and waste resources that should instead be used on the infrastructure border communities truly need.”
Director of the SBCC Vicki B. Gaubeca stated, “We are pleased to see the court uphold the foundation of our democracy by denying the Trump Administration’s appeal. President Trump’s overreach in attempting to build deadly and wasteful walls in our region, walls that greatly diminish public safety and our quality of life, walls that threaten our diverse wildlife, will not stand, and we will continue to fight for the southern border region.”
Activist Tricia Gerrodette, Sierra Vista, said, “I’m glad that some parts of the border wall will be delayed. I think putting a bollard wall in the bed of the San Pedro River will ultimately be damaging, expensive, and stupid, so I hope it doesn’t get built. The buildup of debris behind such a wall and the force of water that will hit it because of some major storm will cause it to blow out. It just seems inevitable to me. That is why I see it as stupid and expensive.”
Speaking for the Sierra Club, spokesperson Sandy Bahr told the Herald/Review, “We are pleased to see the court recognize the rule of law and deny the Trump administration attempt to divert $2.5 billion to erect border walls in our communities. Thank you to the American Civil Liberties Union and the Southern Border Communities Coalition for helping to challenge this abuse of power by the president. There is much more to do — walls slated for southern Texas and serious human rights abuses in our border communities need to be stopped.”
According to the ruling, the judges found the public interest “is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction.”
The question posed to the judges was whether “the Executive Branch of the federal government is attempting to exercise authority that is allocated by the Constitution to the Legislative Branch of the federal government, and whether the Executive Branch is doing so without authorization from the Legislative Branch.”
ACLU attorneys also alleged that the government acted without authority to divert funding without statutory authority and the use of the reprogrammed funds “would injure their members because the noise of construction, additional personnel, visual blight and negative ecological effects that would accompany a border barrier and its construction would detract from their ability to hike, fish, enjoy the desert landscapes and observe and study a diverse range of wildlife in areas near the U.S.-Mexico border.”
The terms of the permanent injunction are identical to those of the preliminary injunction, but it also covers funds reprogrammed for construction in the El Centro and Tucson sectors.
Wall funding battle
The judges laid out the timeline of the administration’s efforts to get certain portions of the wall funded over the past two years and noted the repeated attempts to use misappropriated funds in direct conflict of the U.S. Constitution, going so far as to establish contracts to build the wall.
Throughout the past year, the Congress and Senate tried to get bills passed to fund construction.
February 14, Congress passed the Consolidated Appropriations Act of 2019 (CAA) which included the Department of Homeland Security (DHS) Appropriations Act for the 2019 fiscal year. However, the CAA appropriated $1.375 billion of the $5.7 billion President Donald Trump had sought in border barrier funding and specified that the $1.375 billion was “for the construction of primary pedestrian fencing in the Rio Grande Valley Sector.”
Several limitations on the use of those funds were imposed, which declared certain wildlife refuges and parks off limits to construction.
Then last month, the administration, DOD and DHS through counsel filed an emergency motion with the court and requested a stay pending appeal to follow through on contracts made to construct the border wall.
“Defendants implored our court to act as quickly as possible because they were incurring daily fees and penalties from contractors due to the suspension of construction and because, if the injunction remained in place, Defendants would need to begin the process of reprogramming the funds again by the end of June or else face the risk of being deprived of the use of those funds entirely,” the judges noted.
Though the DOD argued it is “incurring unrecoverable fees and penalties of hundreds of thousands of dollars to its contractors for each day that construction is suspended,” the judges stated the liability “resulted from government’s own decisions about how to proceed in the face of litigation.”
The court did not address The Sierra Club and SBCC assertion of a National Environmental Protection Act (NEPA) claim since no arguments were offered by either side.