A federal appeals court on Dec. 4 overturned a lower court ruling that blocked the Trump administration’s diversion of military funds toward border wall construction.
In a 2–1 decision (pdf), the 5th U.S. Circuit Court of Appeals ruled that El Paso County and the nonprofit Border Network for Human Rights (BNHR) didn’t have standing to challenge the Trump administration’s decision for $2.5 billion in Department of Defense (DoD) counterdrug activity funds to be “reprogrammed” and for $3.6 billion in DoD money originally slated for military construction projects to be reallocated to building the border wall.
In 2019, President Donald Trump requested that Congress appropriate $5.7 billion for the construction of some 234 miles of border wall, but Congress only approved $1.375 billion for the construction of “primary pedestrian fencing.” Trump then issued a proclamation declaring a national emergency at the southern border, which stated that it “is a major entry point for criminals, gang members, and illicit narcotics,” paving the way for the use of the DoD funds.
The DoD’s transfer of funds was challenged in federal court, with a district court issuing an injunction blocking the use of the $2.5 billion in counterdrug operations funding for a border wall, and the U.S. Supreme Court granting a stay of the injunction, pending appeal.
The Pentagon then announced plans to take the $3.6 billion meant for 127 planned military construction projects in support of Trump’s declaration of emergency, with the closest project affected by the reappropriation of funds located about 100 miles away from El Paso County.
El Paso County and BNHR filed a lawsuit challenging both expenditures, with the district court ruling that the plaintiffs had standing to sue and granting them an injunction preventing the use of the DoD funds.
The appeals court, however, found that El Paso County didn’t show that it was “directly harmed” by the cancellation of the project, adding that even if it was, a favorable decision in the case wouldn’t offer them any meaningful redress.
BNHR also lacked standing, the appeals court said, adding that the organization failed to show evidence that it suffered injury by the diversion of funds, which the nonprofit claimed it did suffer because it “was forced to divert time and resources to help its members deal with the harmful effects of border wall construction.”
A dissenting opinion by one of the appeals court judges argued that El Paso County did have standing to sue due to reputational damage.
Judge James Dennis, the dissenting judge, also argued that Trump had misused emergency powers and that “the majority’s decision today goes a long way toward sanctioning this blatant subversion of the constitutional design,” referring to Congress’s “power of the purse,” which is the idea that Congress decides how federal money is spent.
The border wall was one of Trump’s signature campaign promises in 2016, with the president hailing the measure as one that would both curb the inflow of illegal immigrants and cut down on crime.
Democratic nominee Joe Biden has vowed to halt border wall construction if he prevails in the race for the White House.