Trump broke the law by using military funds for border wall, appeals court rules

A man stands outside the U.S. 9th Circuit Court of Appeals building in San Francisco in 2017.
A man stands outside the U.S. 9th Circuit Court of Appeals building in San Francisco in 2017.
(Marcio Jose Sanchez / Associated Press)

A federal appeals court decided 2-1 Friday that the Trump administration violated the law by using military money to build a wall at the southern border of Arizona, New Mexico and California.

A panel of the U.S. 9th Circuit Court of Appeals said the power of the purse belongs to Congress, and the administration lacked constitutional authority to transfer the military money toward the border project. Two Democratic appointees were in the majority. A Trump appointee dissented.

“The president has long supported the construction of a border wall on the southern border between the United States and Mexico,” Chief Judge Sidney R. Thomas, a Clinton appointee, wrote for the court in one of two decisions on the issue.

“Since the president took office in 2017, however, Congress has repeatedly declined to provide the amount of funding requested by the president.”


Whether the rulings will stand is uncertain. The Supreme Court last year blocked a 9th Circuit injunction that barred the administration from spending $2.5 billion of military money on the wall. The high court acted after the Trump administration filed an emergency appeal.

Friday’s rulings reinstated that injunction, which the Trump administration is almost certain to appeal.

Brian Segee, a lawyer for the Center for Biological Diversity, had called the Supreme Court’s decision “an ominous signal” for the challengers of the wall. The center has a separate lawsuit pending against the administration’s use of military funding for the project.

The high court in July 2019 cleared the way for Trump to spend the money while the issue was litigated in the 9th Circuit, a sign that a majority on the Supreme Court may overturn the 9th Circuit once again. In a one- paragraph decision, the conservatives on the high court voted in favor of Trump, and the liberals dissented.

Friday’s decisions came in two cases, one filed by California and other states, the other brought by the Sierra Club and the Southern Border Communities Coalition. Both suits charged that the wall would harm the environment, including endangered species. The same panel heard both, with Thomas writing for the majority and Trump appointee Judge Daniel P. Collins dissenting.

Trump argued the wall was needed to prevent drug smuggling.

But the 9th Circuit majority said Friday that the law allows for the transfer of Pentagon funds only for unanticipated military purposes, and a border wall “was not an unforeseen military requirement.” Drug smuggling at the border was neither a new nor an unforeseen problem, the majority said.

“There was no unanticipated crisis at the border,” Thomas wrote, joined by Judge Kim McLane Wardlaw, also a Clinton appointee. “Nothing prevented Congress from funding solutions to this problem through the ordinary appropriations process — Congress simply chose not to fund this particular solution.”

Collins, the Trump appointee, said in a dissent that combating illegal drug activity was “plainly” a military function. He argued the court should have upheld the money transfer.

The state of California and the Sierra Clubpraised Friday’s decisions.

“Today, the court reminded the President — once again — that no one is above the law,” Atty. Gen. Xavier Becerra said in a statement.

“While the Trump Administration steals public funds to build an unauthorized wall at the Southern border, families across the country are struggling to pay their bills. They deserve to know that their hard-earned dollars are going where the law intended — to benefit their families and their communities.”

The American Civil Liberties Union, which represented the Sierra Club and Southern Border Communities Coalition, called the decision in its case “a win for the rule of law, the environment, and border communities.”

“President Trump’s xenophobic wall is already leveling protected lands, desecrating cultural sites and destroying wildlife,” said Dror Ladin, staff attorney with the ACLU’s National Security Project. “There’s no undoing the damage that’s been done, but we will be back before the Supreme Court to finally put a stop to this destructive wall.”

The U.S. Department of Justice did not immediately respond to a request for comment.