Politics

Trump can use military funds for border wall during legal challenge, appeals court says

Key Points
  • President Donald Trump can use up to $3.6 billion earmarked for military construction projects while his administration challenges a lower federal court's injunction against tapping the funds for that purpose.
  • The 2-1 ruling by a panel of judges on the 5th Circuit Court of Appeals comes on the heels of a Supreme Court decision in July to stay a similar injunction issued by a California federal court judge
  • "This is a victory for the rule of law. We are committed to keeping our borders secure, and we will finish the wall," White House spokeswoman Stephanie Grisham said.
Construction begins along the U.S. border with Mexico where the new border wall will replace old fencing on August 23, 2019 in Calexico, CA.
Carolyn Van Houten | The Washington Post | Getty Images

President Donald Trump can use up to $3.6 billion earmarked for military construction projects while his administration challenges a lower federal court's injunction against tapping those funds for that purpose, a federal appeals court has ruled.

In a 2-1 ruling Wednesday, judges on the 5th Circuit Court of Appeals said plaintiffs in the case — El Paso County, Texas, and the Border Network for Human Rights — likely will be found to lack legal standing to challenge the use of the fund by the Trump administration.

The stay of the lower-court's ruling came six months after the U.S. Supreme Court issued a stay of a similar injunction from a California federal court judge, who had barred the Trump administration from building the wall with another $2.5 billion set aside for military use.

The 5th Circuit ruling Wednesday said the administration is "entitled to the same relief" granted by the Supreme Court in the case pending before the three-judge appeals panel.

The panel in its same ruling denied requests by the plaintiffs to expedite the administration's pending appeal of the lower-court ruling case and to hold oral arguments no later than March.

Final rulings on the legality of the use of the military funds for the planned border wall with Mexico will come later.

The president last February had declared a national emergency in order to tap defense funds for the border wall.

While the Senate had voted to block such use of those funds, the upper chamber of Congress lacked a veto-proof majority.

Trump applauded the latest court ruling on Twitter.

White House press secretary Stephanie Grisham said in a statement that the appeals panel "has lifted an illegitimate nationwide injunction entered by a lower court, and in doing so has allowed vital border wall construction to move forward using military construction funds."

"This is a victory for the rule of law. We are committed to keeping our borders secure, and we will finish the wall," Grisham said.

Fernando Garcia, executive director of the Border Network for Human Rights, criticized the decision.

"A federal judge found that the use of military funds was an illegal act ... and it's very disappointing that the 5th Circuit would allow this illegality to continue," Garcia said.

He said the Trump administration had violated the Constitution by using funds for purposes that had not been approved by Congress.

"President Trump is not a king. He doesn't have the power of the purse," Garcia said.

"The other aspect of this decison is that it ignores the damage that [the wall project] has caused to the border community," he said. "It's created a lot of fear and anxiety in the people that live near the border."

Kristy Parker of Project Democracy, the group that had represented plaintiffs in the case, said, "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."

In a dissent to the ruling, Judge Stephen Higginson said he agreed with the panel's two other judges "that this matter presents 'a substantial case on the merits' and involves a 'serious legal question.'"

But, Higginson added, "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."

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