Illegal Diversion of Defense Funds
The ruling from the 9th Court of Appeals a few days ago that Trump violated his Presidential powers when he declared a national emergency to build his wall and that he cannot use $3.6 billion in military construction funds seems very sound.
The Chief Judge of the Ninth (Thomas) wrote the decision, details:
- the history of "national emergency",
- the extent and purpose of the National Emergency Act intended for funding milcon projects while the military is engaged to support such use of the armed forces.
- how the Sec of Def's invocation of relevant Section 2808 has only been invoked once to fund construction on American soil, and it has never been used to fund projects for which Congress withheld appropriations.
- how Congress amended the NEA to allow for the termination of an emergency declaration if “there is enacted into law a joint resolution terminating the emergency.
- how Congress has never before acted to end an emergency declaration but they have now passed resolutions twice to end the emergency declaration, which were vetoed by the President
- how the SecDef ordered wall construction to supercede any state or other federal laws
- how Section 2808 delegates a narrow slice of Congress’s power of the purse to DoD so that it can react quickly in the event of a declaration of war or a declaration of a national emergency.
- how the statute imposes certain obligations upon DoD—i.e., DoD cannot invoke Section 2808 except for military construction that is necessary to support the use of the armed forces in the event of a declaration of a national emergency that requires the use of the armed forces and not to be used to expand Presidential powers
- details the revenue lost by states plaintiffs, which of their laws would be violated, and the closures of military bases
" we hold that border wall construction is not necessary to support
the use of the armed forces with respect to the national emergency on the southern border. The Federal Defendants have not established that the projects are necessary to support the use of the armed forces because: (1) the administrative record shows that the border wall projects are intended to support and benefit DHS—a civilian agency—rather than the armed forces, and (2) the Federal Defendants have not established, or even alleged, that the projects are, in fact, necessary to support the use of the armed forces
The ruling quotes United States v McIntosh on the importance of
“oth federalism and separation-of-powers constraints in the Constitution serve to protect individual liberty, and a litigant in a proper case can invoke such constraints ‘[w]hen government acts in excess of its
lawful powers.’” United States v. McIntosh, 833 F.3d 1163, 1174 (9th Cir. 2016) (discussing and quoting Bond, 564 U.S. at 222). “[The Appropriations Clause] constitutes a separation-of-powers limitation that [litigants] can invoke to challenge” actions that cause justiciable injuries. Id. at 1175
As for whether the terms of Section 2808 the SecDef invoked, the Court found:
We conclude that the projects fail to satisfy two of the statutory requirements: they are neither necessary to support the
use of the armed forces, nor are they military construction projects.
and
The Federal Defendants have not established that the projects are
necessary to support the use of the armed forces because: (1) the administrative record shows that the border wall projects are intended to support and benefit DHS—a civilian agency—rather than the armed forces, and (2) the Federal Defendants have not established, or even alleged, that the projects are, in fact, necessary to support the use of the armed forces.
The Court finds that the record shows that the milcon funds diverted are for law enforcement purposes not military purposes and benefit the Dept of Homeland Security (DHS) and its agencies' goals. Trump cannot divert the $3.6 billion in milcon funds appropriated by Congress for those purposes to fund his wall building.
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/09/19-17501.pdf
Texas Wall Building
Texans in the Rio Grande Valley have been one of the biggest opponents to Trump's wall plans and an obstacle to wall-building. Unlike other states, Texas has been a persistent wrench in wall-building plans because all of the lands are owned by private entities. This decision by the 9th buoys their lawsuits against the federal government. Two projects are in the Laredo and the El Paso areas.
The Laredo City Council oppose the border wall because it will damage neighborhoods, places of worship, parks, a community college, family ranches, and their Catholic orphanage. Laredo is built right up to the bank of the Rio Grande, so the government must risk building in the flood plain or route the barrier through homes and commercial buildings, and because the city has no river levees, the government can’t build on or behind dikes, as it has elsewhere in Texas. (One of the contracted construction companies built the wall of the WeBuildTheWall project, which built the wall on the flood plain and is now sinking into the Rio Grande.) Laredo opposes the transfer land that they have owned for hundreds of years into the hands of the federal government forever against their will. Landowners and residents are also well aware that they received a fraction of the worth of their land when the feds took it by eminent domain.
That fight to prevent the federal land-grab, to preserve their heritage and stop a wall built through their city isn't over since funds other than the milcon ones may be used for those projects and there is pressure from D.C. to complete as much miles of wall as possible before the election.
The 9th's ruling and the lawsuits by Texas landowners may well end up in the Supreme Court.
