A divided federal appeals court has lifted a lower court’s order blocking $3.6 billion in military construction funds that President Donald Trump planned to use to finance an expanded and improved border wall.

The New Orleans-based 5th U.S. Circuit Court of Appeals issued a brief order on Wednesday granting the Trump administration’s request to stay the injunction that U.S. District Court Judge David Briones, based in El Paso, Texas, issued last month .


The three-judge appeals court panel split along ideological lines, with two Republican appointees voting to temporarily set aside the injunction and the sole Democratic appointee dissenting.

The 5th Circuit panel’s majority did not provide a detailed explanation for its action, but noted that last July the Supreme Court stayed a similar injunction issued by a federal judge in Oakland, Calif.

Judges Edith Jones, an appointee of President Ronald Reagan, and Andrew Oldham, a Trump appointee, also said there was a “substantial likelihood” that the plaintiffs in the Texas-based suit — the City of El Paso and the Border Network for Human Rights — lacked legal standing to pursue their claims that Trump’s planned spending violated appropriations limits imposed by Congress.

Judge Stephen Higginson, an appointee of President Barack Obama, said he was not convinced that the Justice Department had a winning case or that there was great urgency justifying the stay.


“Although I agree with my colleagues that this matter presents ‘a substantial case on the merits’ and involves a ‘serious legal question…’ I am unable to agree, without focused panel deliberation and discussion — possibly aided by dialogue with counsel — that the government presently has shown either a likelihood of success on the merits or irreparable harm in the absence of a stay,” Higginson wrote in his dissent.

Higginson also took exception to the panel majority’s denying motions by the city and the border group to expedite consideration of the case.

“This constellation of sensitive and complex legal questions, all in the context of a nationwide injunction, warrant expediting the appeal for prompt consideration of the merits,” the judge wrote.

Last February, following a budget standoff with Congress and a partial government shutdown, Trump declared a national emergency and announced a plan to use about over $6 billion in military construction and counterdrug appropriations to finance border wall spending.


The move came after Congress agreed to spend only $1.375 billion in the last fiscal year for border wall improvements, billions less than Trump was demanding. Trump’s actions triggered lawsuits from various quarters, including border groups, environmentalists, 20 states and the Democratic-led House of Representatives.

Last May, a judge in Oakland blocked Trump from tapping an initial $2.5 billion in military construction funds, ruling that the move defied Congress’ constitutional power over federal spending.

A panel of the 9th U.S. Circuit Court of Appeals panel refused to lift that injunction.

Last July, however, the Supreme Court set aside the injunction entirely while the appeal in that case continues.

In his dissent on Wednesday, Higginson called the injunction that the Supreme Court lifted “related but distinct” from the case out of Texas.

Lawyers for the plaintiffs in the Texas case said they were disappointed by the 5th Circuit’s move.

“A court has already determined that the government can’t lawfully use military construction funds to build Trump’s border wall,” said Kristy Parker of the watchdog group Protect Democracy. “It’s unfortunate that the people of El Paso will continue to suffer harm while the government appeals, but we’re confident that we’ll prevail again in this next stage of litigation.”

Asked about the possibility of an immediate appeal to the full bench of the 5th Circuit or to the Supreme Court to try to restore the injunction, Parker said no decision had been reached.


“We, along with our clients, are considering our options,” she said. “We are confident the District Court‘s ruling is correct. The power of the purse belongs to Congress, and we will continue our fight to enforce the separation of powers our Constitution mandates.”

The Justice Department approved of the verdict. “The Department of Justice is pleased with today's decision,” a DOJ spokesman said late Wednesday.