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Trump Judge Would Allow Trump To Violate The Constitution By Diverting Appropriated Funds To Build Border Wall: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Judge Would Allow Trump To Violate The Constitution By Diverting Appropriated Funds To Build Border Wall: Confirmed Judges, Confirmed Fears
School kid decorations on the US to Mexico border wall in Arizona. Photo courtesy of Shutterstock

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In June 2020, Trump Ninth Circuit judge Daniel Collins would have allowed Trump to violate the Constitution by diverting appropriated funds to construct a wall along the southern border in California, New Mexico, and Arizona.  The case is Sierra Club v. Trump.

Immediately upon Trump taking office in 2017, he began working on his campaign promise to build a border wall. However, he clashed with Congress over funding to build the wall. In 2018, the President announced that he would not sign any legislation that did not allocate substantial funds to border wall construction.  This triggered the “longest partial government shutdown in United States history.”

The government shutdown ended without the President receiving increased border wall funding. Congress later passed the Consolidated Appropriations Act of 2019 (“CAA”), which appropriated only $1.375 billion for border wall construction, imposing the restriction that the funding be only for “the construction of primary pedestrian fencing . . . in the Rio Grande Valley Sector.”

At the same time, the President issued a proclamation stating that a national emergency existed at the southern border of the United States.  “An accompanying White House Fact Sheet explained that the President was “using his legal authority to take Executive action to secure additional resources” to build a border wall and identified several funding sources, including $2.5 billion of Department of Defense (“DoD”) funds.”

On February 19, 2019, the Sierra Club and the Southern Border Communities Coalition filed a lawsuit in district court seeking an injunction to stop Trump from using the transferred funds. They asserted that the President was assuming Congress’s appropriations power by transferring funds, thereby violating the separation of powers under the Constitution.

The district court granted a preliminary injunction and ruled that the President did not have the authority to use the Department of Defense Appropriations Act to transfer budgeted funds for the construction of the wall along the southern border of the United States. The government sought a stay pending appeal with the U.S. Supreme Court.  The Supreme Court granted the stay as the litigation went forward, and the district court then granted partial summary judgment and a permanent injunction on similar grounds. The government appealed.

In a 2-1 decision, the panel affirmed the district court’s judgment explaining that the Executive Branch lacked independent constitutional authority to authorize the transfer of funds.  The majority went on to say the “Appropriations Clause of the U.S. Constitution exclusively grants the power of the purse to Congress.”  Since the transfer of funds violated the constitution’s  Appropriations Clause, the transfers, therefore, were invalid and unlawful. The court reached a similar result in a case involving a lawsuit brought by several states, California v. Trump.

Judge Daniel Collins strongly dissented in both cases, arguing that the provisions of the Appropriations Clause did confer power upon the President to transfer the funds. The majority strongly disagreed, explaining that such a transfer violated the “straightforward and explicit command” of the clause. The Trump Administration may well now take the case to the Supreme Court.


border wall, Confirmed Judges Confirmed Fears, Daniel Collins, Immigration, Ninth Circuit Court of Appeals