I suppose this was inevitable. As construction is slated to being on several sections of border wall, both new and existing structures requiring upgrades, a judge has issued a preliminary injunction to prevent certain DoD funds from being used for this purpose. The ACLU brought the suit (how this is a civil liberties case remains a mystery) and once again they found a judge in northern California to deliver the ruling. And just to complete the hat trick, yes… the judge is once again an Obama appointee. (CNN)
A federal judge on Friday night blocked President Donald Trump from tapping into Defense Department funds to build parts of his US-Mexico border wall.
In a 56-page ruling, Judge Haywood Gilliam, a Barack Obama appointee in the Northern District of California, blocked the administration from moving forward with specific projects in Texas and Arizona “using funds reprogrammed by DoD under Section 8005 of the Department of Defense Appropriations Act, 2019.”
Friday’s ruling does not prevent the Trump administration from using funds from other sources to build the projects in question.
For the time being, other DoD funds not covered by this injunction will have to be shuffled around so the project can move forward anyway, at least until the appeals can be heard. The border sections in question are located in Arizona and Texas.
The basis for this decision seems sketchy at best. In his ruling, the judge specifically mentions situations where “Congress declines the Executive’s request to appropriate funds.” But that’s not what’s happening here, so I’m not sure what the judge is talking about. It’s true that Congress declined to appropriate new funding for the border wall in the last budget negotiations. That’s their right so that new money was not made available. But this is money that Congress already appropriated for the Department of Defense in previous budgets.
Once the military funding was appropriated, it’s pretty much up to the White House and the Department of Defense as to the specifics of where, when and how it’s spent. Also, as we discussed here previously, there are specific exceptions under federal law that allow for DoD funds to be used for construction projects within a certain distance of the border. The declaration of a national emergency only strengthens that ability.
If this injunction is thrown out on appeal, we really need to ask what’s going on with some of these judges, particularly the ones in the San Francisco / Oakland area. (This judge’s court is in Oakland.) Are they ruling on the basis of existing law or just looking to throw a wrench in the works and score a political victory for the Democrats? We’ve danced around this discussion over the border wall for long enough. It’s time to start building.