In February, the Department of Defense (DOD) announced that funding reallocated for building some 177 miles of fencing at the border is “required to provide support for counter-drug activities of the Department of Homeland Security (DHS),” according to a request sent to Congress (pdf). The money was originally appropriated to DOD for resources and equipment for the department and National Guard and to the Pentagon’s Overseas Contingency Operations (OCO) fund.
California Attorney General Xavier Becerra and 18 other attorneys general filed the lawsuit (pdf) in the U.S. District Court in Northern California challenging the administration’s move, arguing that the reallocation of funds is unconstitutional because it violates the separation of powers and Congress’s power of the purse. It also argued that the administration violates the National Environmental Policy Act by failing to consider the environmental impact of constructing the wall.
The states also argue that the reallocation would “significantly impact the capacity and capability” of the National Guard Units across the country and put military construction projects at risk.
“Congress has repeatedly and explicitly rejected taxpayer funding for a wasteful Trump wall along the border,” Becerra said in a statement announcing the lawsuit. “We’re going to court—once again—to remind Donald Trump that even the President is not above the law.”
Last year, a similar 16-state coalition filed a lawsuit in California against the Trump administration over its plan to reallocate funding towards the border. This case is pending on appeal before the 9th circuit.
Trump declared a national emergency to address the humanitarian crisis on the southwest border and secure funds for border-wall construction in February last year. The emergency declaration was made at a time when the United States saw an influx of illegal immigrants entering the country across the southern border, overwhelming the immigration facilities and system. Meanwhile, drug smugglers and cartels were taking advantage of the porous border to smuggle vast amounts of drugs into the country, contributing to an already devastating opioid crisis. Building the border wall was one of Trump’s key campaign promises.
After the administration announced that it would shift nearly $4 billion toward the wall, several lawmakers from both sides of the aisle spoke out.
House Armed Services Committee Chairman Adam Smith (D-Wash.) accused Trump of being “obsessed” with fulfilling a campaign promise “at the expense of our national security.”
Similarly, committee ranking member Mac Thornberry (R-Texas) said in a statement that he would be working with his colleagues to determine the “appropriate steps to take.”
“The reprogramming announced today is contrary to Congress’s constitutional authority, and I believe that it requires Congress to take action,” Thornberry said at the time.
California is joined by the attorneys general of Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Wisconsin in the lawsuit.
Since taking office, the Trump administration has faced an unprecedented number of state lawsuits, mostly from Democratic-led states, against a number of the administration’s key policies. As of Feb. 1, the administration has faced 103 lawsuits, according to data compiled by Dr. Paul Nolette, an associate professor of political science at Marquette University. Comparatively, the Obama administration faced 25 lawsuits in its first term and 53 in its second term. Meanwhile, the Bush administration faced 35 lawsuits in its first term and 41 in its second term.
Nolette also found that a majority of the multistate lawsuits are led by New York or California.
The Justice Department declined to comment on the lawsuit.
Ivan Penchoukov and Isabel van Brugen contributed to this report.