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Court Rules Against Shifting Funds for Border

Thursday, July 2, 2020

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In the latest development of the U.S.-Mexico border wall project, the Ninth Circuit Court of Appeals ruled late last week that President Donald J. Trump cannot divert $2.5 billion of military funds to the construction of the wall.

This ruling is the latest roadblock in funding the work.

Border Wall Funding Saga

In September 2017, the first border wall contracts were awarded to four different companies to develop prototypes that would work in conjunction with the border in the San Diego area. U.S. special forces spent weeks attempting to breach the eight prototype models of the proposed U.S.-Mexico border wall, which proved to withstand jackhammers, torches and climbing tools.

Since then, the government has worked to speed up the project. In October 2018, the U.S. Department of Homeland Security announced that any environmental regulations regarding the construction or repair of a section of the border wall for certain areas in Texas would be waived, drawing ire from environmentalists and private property owners alike.

tzahiV / Getty Images

In the latest development of the U.S.-Mexico border wall project, the Ninth Circuit Court of Appeals ruled late last week that President Donald J. Trump cannot divert $2.5 billion of military funds to the construction of the wall.

In May, the U.S. Army Corps of Engineers shortlisted 12 contractors to bid on construction work sometime during the next five years; the Pentagon moved $1.5 billion to assist with border wall construction; and a previously contested contract, worth $187 million, has been canceled due to the protest.

By mid-2019, a judge first blocked the president’s use of money originally intended for military funding, for work on the border wall. The injunction only accounted for roughly $1 billion in funding for the border wall, money that the Department of Defense had funneled away from Army personnel to the Department of Homeland Security.

However, in September of that year, Secretary of Defense Mark Esper approved $3.6 billion in funding—largely pulled from military construction projects, including housing—to go toward building 175 miles of the border wall. At the end of that same month, Jonathan Hoffman, assistant to the secretary of defense for public affairs, reported that roughly a mile of border wall is being built every day.

Additionally, in November, Trump allowed for construction to begin on a section of the wall in Texas without customary environmental reviews. December also saw funding stemming from canceled military projects being assigned to three new contracts for the construction of over 30 miles of replacement fencing along the U.S.-Mexico border, totaling $316 million in work.

At the beginning of this year, the 5th Circuit Court of Appeals, based out of New Orleans, ruled 2-1 that a certain set of Department of Defense funding could be used for border wall construction and lifted the injunction. The Washington Post reports that due to this ruling, the president and his administration viewed the matter as an invitation to take money again in 2020.

By the end of the month, Trump announced plans to divert $7.2 billion of military funds—roughly five times what Congress authorized to spend in the 2020 budget from Pentagon funding—for border wall construction. According to the plans, the diverted funds would allow the government to complete an additional 885 miles of new fencing by spring 2022, approximately 376 more miles than the administration had slated for the U.S. border with Mexico.

12963734 / Getty Images

By mid-2019, a judge first blocked the president’s use of money originally intended for military funding, for work on the border wall. The injunction only accounted for roughly $1 billion in funding for the border wall, money that the Department of Defense had funneled away from Army personnel to the Department of Homeland Security.

In February, a waiver made by the Department of Homeland Security's Acting Director Chad Wolf went into effect, surrendering certain procurement laws as to expedite construction on portions of the border wall. The following month, Wolf issued several waivers, allowing the Department of Defense to assist with border wall construction, in addition to exempting additional projects from traditional environmental regulations.

By the end of March, though, a $2 trillion coronavirus stimulus package was reported to no longer allow the transfer of funds to border wall efforts.

What Now

The recent federal appeals court ruling upheld a previous district court judge’s ruling that found that the transfer of money from the Pentagon to border wall construction was considered an attempt by the president to skirt Congress.

Even though the funds were transferred under a declaration of national emergency, the court said that the action was a violation of the Appropriations Clause and therefore considered “unlawful.”

Chief Judge Sidney R. Thomas penned the ruling that stated, in part:

“In companion appeal State of California v. Trump, Nos. 19-16299 and 19-16336, slip op. (9th Cir. June 26, 2020) (published concurrently), the panel held that Section 8005 did not authorize the transfers of funds at issue here. The panel reaffirmed this holding here,” the opinion went on.

“The panel held that the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. The panel noted that the Appropriations Clause of the U.S. Constitution exclusively grants the power of the purse to Congress. The panel held that the transfer of funds violated the Appropriations Clause, and, therefore, was unlawful.”

Despite the ruling on funding, the July 2019 stay granted by the Supreme Court allows construction to continue on the wall.

   

Tagged categories: Good Technical Practice; Infrastructure; Laws and litigation; Lawsuits; NA; North America; President Trump

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