Stop me if you’ve heard this one before. An Obama appointee judge in California issues an injunction to stop the military from constructing new sections of walls and barriers along the Mexican border. Sound familiar? It should because Northern California District Judge Haywood S. Gilliam Jr. did precisely that back in May, blocking the construction of roughly 50 miles of wall in Texas and Arizona. Well, he’s back. And this time he’s done the exact same thing for an additional 79 miles of wall construction in California and Arizona. And his highly dubious reasoning hasn’t changed a bit. (WaPo)
A federal judge on Friday expanded a ban on construction of President Trump’s signature southern border wall that would have used money secured under his declaration of a national emergency, but that Congress never approved for the purpose.
U.S. District Judge Haywood S. Gilliam Jr., of Oakland, Calif., blocked construction on four of the administration’s highest-priority projects on the U.S.-Mexico border spanning 79 miles near El Centro, Calif., and Tucson. The Pentagon had moved to fund the projects using $1. 5 billion transferred into a Defense Department counterdrug program from military pay and training accounts.
In his order granting a permanent halt on the construction, Gilliam also cleared the path for an immediate appeal.
It’s good that the judge “cleared the path” for an immediate appeal because both of these decisions are badly in need of a fresh look further up the line. Gilliam is once again citing “Congress’s ‘absolute’ control over federal expenditures” in his reasoning, but these weren’t requests for new allocations of funding. Congress already approved that money to go to the Department of Defense two years ago.
As to what the military does with the funding, plans change all the time as the situation demands. And it’s flatly incorrect for the judge to say that the White House had “illegally shifted money” around to do this. As has been pointed out repeatedly, Title 10, Section 2808 allows for such allocations involving construction projects during a declared emergency.
But even if you disagree with the emergency declaration or even if it hadn’t been declared, the President is authorized to assign such military spending and manpower to construct a wall. Under Title 10, Section 284, subsection (b)(7), the military can be employed for the purpose of “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries” provided the work being done is no more than 25 miles from the border or outside the border.
Keep in mind that only a few weeks ago, a different federal judge rejected a separate suit brought by House Democrats attempting to the exact same thing and for the same stated reasons. In doing so, he cited the exact same sections of federal code I linked to in the previous paragraph. Since at least two courts are making opposite calls on the same question, it needs to be booted up the chain, and the quicker the better.