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A Federal Appeals Court Ruled Trump Can't Use Military Funds For Border Wall. Why Is Wall Construction Still Underway In Texas?

Construction site of the first border wall in Texas since President Trump took office
Construction site of the first border wall in Texas since President Trump took office as seen near Donna, Texas, U.S. December 8, 2019. REUTERS/Veronica G. Cardenas

Opponents of President Donald Trump’s border wall received a victory from the 9th Circuit Court of Appeals last week. The federal court deemed some funding for the wall projects unlawful and blocked their construction, but advocates say their fight isn’t over.

The fight over border wall funding started in early 2019 when Congress denied President Trump's request for $5.7 billion to build more wall along the Southern Border. The president went around Congress by declaring a State of Emergency at the border and reallocating funds from the Department of Defense to build the wall.

“Border walls are usually built by the Department of Homeland Security's Customs and Border Protection,” said David Donatti, a staff attorney with the American Civil Liberties Union of Texas. “But the Trump administration is using Department of Defense money to do it.”

The ACLU challenged the use of those funds on behalf of the Southern Border Communities Coalition and the Sierra Club. In their lawsuit, they argued against the use of various Defense Department funds.

“Fundamentally, there are two pots of money that are at issue,” Donatti said. “The first one is the Department of Defense, of its own account, can do projects to block, quote, drug smuggling corridors. So that's what we call the counter narcotics money. And the Trump administration has used I want to say at this point about $7 billion worth of that money, which is a Department of Defense authority to allow DOD, the Department of Defense, to build these border walls.”

Federal courts sided with them against the use of $2.5 billion of those funds, but the Supreme Court in the summer of 2019 allowed the Trump administration to continue border wall construction.

“They didn't say that it was legal, what the Supreme Court said was, we're not hearing the case now. We don't have time to hear the case now,” Donatti said. “But before we hear the case, the government can build in the meantime, which is usually reserved for exceptional circumstances.”

But they also challenged Trump’s 2019 national emergency declaration to move $3.6 billion from military construction funds for border wall projects, including in Laredo and El Paso. That’s what the 9th Circuit Court of Appeals ruled on last Friday.

“And what the Court has said is that the administration's effort to use its national emergency declaration to get that money to build in Laredo when it couldn't get it from Congress is unconstitutional. Because under our Constitution, Congress has the power of the purse. Congress has to say whether money can be spent for a project or not. And Congress said no.”

The ruling blocks the construction of border wall projects in Laredo, El Paso, Yuma, Arizona and in San Diego and El Centro in California. That includes roughly 52 miles of privately-owned land in the Northwest part of Laredo, starting from the Laredo-Colombia Solidarity Port of Entry.

But the projects in the case may continue moving forward for now because the court ruling takes seven days to go into effect, Donatti said.

“And we expect that the government may move to extend that time or may take that time to the Supreme Court, and ask the Supreme Court to intervene to allow them to keep building anyway. So what we’re gearing up for is that we want that block to stay in place,” he said.

Donatti said on Tuesday afternoon that they had not yet received a response from the federal government. U.S. Customs and Border Protection deferred TPR’s questions to the Department of Defense, but said in a statement that a construction contract “is anticipated for award once real estate has been acquired” for the Laredo project.

The Department of Defense could not immediately be reached for comment.

If Democratic nominee Joe Biden wins the presidency and stops border wall construction, that could end the legal fight. But Vicki Gaubeca, the director of the Southern Border Communities Coalition, has said they also want to tear down border wall sections already built.

“We've heard Biden say very clearly that he will immediately put a stop to any border wall construction and we find that hopeful. But we would also like to see repairs and remedial effects,” she said.

They also want a restoration of federal protections for landowners, communities and the environment.

“I don't think anybody, not even the President, has the power to waive all of these laws, that were basically passed by Congress to protect us from government overreach, to protect our lands, our water,” she said.

And in the meantime, the Trump Administration has managed to push forward on border wall projects that are either in later stages or are projects that have different funding sources, including some in the Rio Grande Valley and other parts of Laredo.

María Méndez can be reached at maría@tpr.org or on Twitter at @anxious_maria