Lawsuit Against Border Wall Revived
On Friday (Sept. 25), the U.S. Court of Appeals for the District of Columbia reversed a lower court’s dismissal of House of Democrats’ lawsuit challenging the Trump administration’s authority to use Defense Department funds for construction of the U.S.-Mexico border wall.
Previously, the lawsuit was previously dismissed by U.S. District Judge Trevor McFadden, ruling that the House lacked the authority to sue in April 2019.
Border Wall 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. The announcement detailed exemptions in Cameron County; another announcement made the following day detailed similar measures for Hidalgo County.
Through the course of late 2018 and into 2019, construction began on section of border wall gates in the Rio Grande Valley sector, with several million in border wall contracts being awarded for work elsewhere. In mid-2019, a judge 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 July, over a week after a federal judge blocked the Trump administration from using $2.5 billion in funding for the border wall, CBP and the Army Corps of Engineers awarded a $33 million contract for four miles of border wall work in Texas. Environmental regulations for that section of structure were also waived. August also saw the award of another $305 million in contracts.
In September, 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.
By December, the project saw additional 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.
That same month, a federal judge blocked the Trump administration from transferring $3.6 billion in Pentagon funds for new border wall barriers when it attempted to commander funds for the border wall that had already been authorized by Congress for other purposes.
The following month, 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.
However, it was announced later in January that Trump was gearing up to divert $7.2 billion of military funds to use for barrier construction in the U.S.-Mexico border wall project. To break down where the funds will come from, the President intended to use $3.5 billion from counternarcotic programs and $3.7 billion intended for construction projects.
Most recently, in June, the Ninth Circuit Court of Appeals ruled that Trump wouldn’t be permitted to divert $2.5 billion of military funds to the construction of the wall, as the action was considered an attempt by the president to skirt Congress.
Even though the funds were transferred under a declaration of national emergency, Chief Judge Sidney R. Thomas penned the ruling, proclaiming that the action was a violation of the Appropriations Clause and therefore considered “unlawful.”
Despite the ruling on funding, the July 2019 stay granted by the Supreme Court allows construction to continue on the wall.
In a 3-0 decision, the appeals court issued a decision permitting Democrats in Congress to challenge Trump’s use of military funds for the construction of the border wall.
The appeals panel—made up of Senior Circuit judges David B. Sentelle, Patricia Millett and Robert Wilkins—cited that the House had been cut out of its “constitutionally indispensable legislative role” when Trump unilaterally moved roughly $8 billion to border wall construction.
Congress' power to appropriate spending “is a core structural protection of the Constitution—a wall, so to speak, between the branches of government that prevents encroachment of the House’s and Senate’s power of the purse,” the panel wrote.
While neither the White House nor the Justice Department has responded to reporters’ requests for comment, the lawsuit is slated to return to the court of McFadden.