The Trump administration is trying to free up $1 billion for constructing a wall on the southern border in Arizona and New Mexico. | Joe Raedle/Getty Images legal Court seems split on Trump border wall request

A federal appeals court panel appears divided on the Trump administration’s request for an emergency stay that would allow the Defense Department to begin the process of spending $1 billion to fund border wall construction in Arizona and New Mexico.

A 9th Circuit Court of Appeals panel sitting in San Francisco heard about 90 minutes of heated legal arguments Thursday on the high-profile issue, with a Justice Department attorney and lawyers for wall opponents both facing intense questioning from the three jurists assigned to the case.


Judge N.R. Smith, a George W. Bush appointee, sounded inclined to grant the stay and to overturn the injunction an Oakland, Calif.-based federal district court judge issued last month barring the expenditure as unauthorized by Congress.

Judge Michelle Friedland — an Obama appointee — seemed deeply skeptical of the administration’s arguments, effectively accusing officials of trying to evade Congress’s decision to give President Donald Trump just a small fraction of the wall funding he requested and to limit it to Texas’s Rio Grande Valley.

The decision could turn on the views of the third judge on the panel, Bush appointee Richard Clifton, who was more difficult to read. He initially seemed skeptical of the administration’s arguments, but later seemed to align himself with Smith’s concerns that the suit was asking judges to second-guess matters that agencies like the Pentagon were better suited to assess.

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Justice Department attorney James Burnham argued that the Sierra Club and the Southern Border Communities Coalition, which won the injunction, were not in the “zone of interests” protected by the budget rider limiting shifts in Defense Department funds.

Both Clifton and Friedland seemed troubled that the administration was contending there might be no-one who could enforce the law.

Clifton said the administration seemed to be saying that “nobody can bring a challenge … so we’re unchallengeable.”

Burnham insisted that the provision is intended to protect Congress, which has many ways to vindicate its interests.

“Congress is taking lots of action right now,” he said. “They have the appropriations power. Congress could defund the entire Defense Department if they wanted to.”

“What if you continued to try to do it? Who could enforce it? Who could stop you?” Friedland asked. She later noted that the Justice Department successfully defeated a similar suit brought by the House of Representatives.

“Wouldn’t somebody need to come to court? You’re saying in district court Congress can’t come to court. So, who stops it?” she asked.

Burnham then observed that any official who spent money without proper authority could be prosecuted for a crime. “Even though the executive branch controls the prosecutors, it’s not realistic to think a bunch of federal official public servants are going to be committing knowing federal crimes,” he said.

In the wake of the protracted partial government shutdown earlier this year, Congress appropriated only $1.375 billion for border-wall construction, limited to the Rio Grande Valley sector in Texas. However, in February Trump declared an emergency and announced plans to spend about $8 billion using a variety of tactics, including the fund-shifting measure debated Thursday.

ACLU attorney Dror Ladin, who argued to uphold the injunction, said the administration’s proposal that Congress could pass another law if Trump was ignoring an earlier one bordered on absurd.

“If what the government says sounds extreme, it’s because it’s an extreme position,” Ladin said. “When the remedy is Congress can pass a new law that hardly seems to be the remedy for an existing statutory violation.”

A panel in the 9th Circuit Court of Appeals is hearing the case that could free up money for Trump's border wall. | Marcio Jose Sanchez, File/AP Photo

However, Clifton eventually shifted course. He noted that while the budget provision the administration wants to use rules out funding for “denied” items and says spending should be limited to “unforeseen” needs, another passage in the measure refers to “higher-priority” projects.

“We’re supposed to decide if it’s a higher priority?” the judge asked. “What do we do with the fact that Congress has not specified who makes the call? ... That sounds like a DoD-type decision.”

Smith was even more forceful on that point, repeatedly arguing that the judge who granted the injunction by failing to defer to the Defense Department’s interpretation of the budget rider.

“The District Court did not give any deference to the agency who interpreted the statute,” Smith said. “What these words mean … is certainly ambiguous.”

When Burnham insisted that the funds weren’t “denied” by Congress because it never specifically rejected funding for the wall as a Pentagon-backed counterdrug project, Friedland sounded exasperated.

“You could call it a wall to keep kids from running away from school. ... You could put it in the Department of Education,” Friedland said. “It doesn’t make any sense. It’s what the whole government shut down over.”

“Your honor, I think in the law these formalities matter,” Burnham insisted.

But Clifton also sounded skeptical that relabeling the project as an anti-drug measure made it distinct from the border security Trump proposed and Congress largely rejected. He said under the administration’s theory could have billed the barrier as “an enormous movie screen” and therefore not the same thing Congress rejected.

“You can always come up with a creative provision that packages it differently,” he said.

Friedland also raised some arguments the plaintiffs didn’t, including that they might have standing because the administration’s spending plan frustrated the Sierra Club’s efforts to persuade Congress to limit funding for the wall.

Burnham didn’t mention the judge by name, but said that would be inviting an avalanche of litigation.

“There are a lot of lobbyists who will be coming to court about everything in the budget if the court finds that being injured in the process allows standing to come in and sue about a program. I would discourage the court from going there,” he said.

No immediate decision was announced by the panel Thursday. The Trump administration says it needs to begin the contracting process by the end of June in order to get the funds formally obligated before they become unavailable at the end of the fiscal year in September. Justice Department lawyers have asked the appeals court to rule by this weekend so that the government can go to the Supreme Court for relief if necessary.