The 9th Circuit Court of Appeals voted against removing a major roadblock for Trump's border wall. | Justin Sullivan/Getty Images legal Appeals court declines to green-light Trump border wall projects

A divided federal appeals court panel has declined to remove a major roadblock to President Donald Trump’s plan to spend more than $8 billion for border wall construction despite Congress agreeing to give him only a fraction of that sum.

The 9th Circuit Court of Appeals voted, 2-1, to deny the Justice Department’s request for an emergency stay of a lower court judge’s injunction that blocked a budgetary maneuver the Trump administration sought to use to fund border projects in Arizona, New Mexico and California.


Two of the judges, Richard Clifton and Michelle Friedland, said in a 75-page order released Wednesday that the attempt to move Defense Department construction funds to the Department of Homeland Security appeared to be a violation of federal law and the Constitution’s delegation to Congress of the power to appropriate funds.

“The Constitution assigns to Congress the power of the purse. Under the Appropriations Clause, it is Congress that is to make decisions regarding how to spend taxpayer dollars,” Clifton and Friedland wrote. “Congress did not appropriate money to build the border barriers Defendants seek to build here. Congress presumably decided such construction at this time was not in the public interest. It is not for us to reach a different conclusion.”

The administration sought to fund about $2.5 billion of the border wall efforts through a provision allowing available military construction funds to be spent on unforeseen needs. However, the language Congress provided adding that flexibility says it can’t be used for budget items previously denied by lawmakers.

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The two appeals judges took particular aim at the Justice Department’s contention that Congress never denied that funding when it awarded the administration only $1.375 billion for border barriers, despite Trump’s repeated calls for $5.7 billion for wall-building this fiscal year. The standoff led to a five-week, partial government shutdown before Trump relented in February.

“Congress considered the ‘item’ at issue here — a physical barrier along the entire southern border, including in the Yuma, El Paso, Tucson, and El Centro sectors — and decided in a transparent process subject to great public scrutiny to appropriate less than the total amount the President had sought for that item.” Clifton and Friedman wrote. “To call that anything but a ‘denial’ is not credible.”

The third judge on the panel, N.R. Smith, dissented, saying that the environmental and border area residents who obtained the injunction aren’t entitled to wade into what is essentially a dispute between Congress and the president.

The re-allocation provision “is directed not at private parties or individuals, but at the Secretary of Defense; creates no apparent individual rights, much less an individual remedy; and ‘lacks the sort of rights-creating language needed to imply a private right of action,’” wrote Smith.

A Justice Department spokesman declined to comment Wednesday evening when asked for reaction to the ruling and what next steps federal government lawyers may pursue. They could try to get a larger, 11-judge 9th Circuit panel to take up the stay request or proceed directly to the Supreme Court with an emergency application.

The new 9th Circuit ruling split the Republican appointees on the panel, Clifton and Smith, both of whom are appointees of President George W. Bush. Friedland, who sided with Clifton to deny the stay, is an appointee of President Barack Obama.

The injunction the judges declined to lift Wednesday was issued in a suit brought by the American Civil Liberties Union on behalf of the Sierra Club and the Southern Border Communities Coalition. The groups said allowing the construction to proceed would interfere with outdoor recreational activities and wildlife at the border.

In court papers and at an oral argument session last month, Justice Department lawyers argued that those interests were trivial compared to the public interest in fighting drug trafficking, but Clifton and Friedland sounded deeply skeptical that the wall projects would put a major dent in narcotics smuggling.

“What will be the impact of building the barriers [federal officials] propose? Even more to the point, what would be the impact of delaying the construction of those barriers? If these specific leaks are plugged, will the drugs flow through somewhere else?” the judges asked. “We do not know, but the evidence before us does not support a conclusion that enjoining the construction of the proposed barriers until this appeal is fully resolved will have a significant impact.”

The judges also noted that published federal reports say most drug smuggling through the southern border takes place by people and vehicles crossing at ports of entry, not by sneaking across at other locations.

When Oakland-based U.S. District Court Judge Haywood Gilliam issued his first ruling against the wall projects in May, Trump went after the jurist on Twitter. “Another activist Obama appointed judge has just ruled against us on a section of the Southern Wall that is already under construction,” Trump wrote. “This is a ruling against Border Security and in favor of crime, drugs and human trafficking. We are asking for an expedited appeal!”

Justice Department lawyers argued that court action to lift the injunction was urgently needed now because officials had little time to take various steps necessary to hire contractors and commit the funds before the end of the fiscal year in September.

However, the appeals court said that did not sound like an emergency, but rather a complaint that defying Congress would be even more difficult after September.

“Defendants’ rush to spend this money is necessarily driven by their understanding that Congress did not appropriate requested funding for these purposes in the current budget and their expectation that Congress will not authorize that spending in the next fiscal year, either,” Clifton and Friedland wrote.

The Democrat-led House of Representatives also filed suit to block the disputed border wall spending, but its suit was thrown out by a federal judge in Washington last month. The decision is on appeal to the D.C. Circuit.

