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Federal judge blocks use of military construction funds to build US-Mexico border wall

U.S. military personnel help fortify a border barrier in Sasabe, Arizona, on Feb. 7, 2019.

TAWANNA STARK/U.S. ARMY

By CAITLIN M. KENNEY | STARS AND STRIPES Published: December 10, 2019

WASHINGTON — A federal judge on Tuesday blocked President Donald Trump’s use of military construction funds to build a wall along the U.S.-Mexico border, cutting off a major source of money for the controversial project, according to court documents.

The order comes after the judge, David Briones of the U.S. District Court for the Western District of Texas El Paso Division, ruled in the case of El Paso County, Texas v. Trump that Trump violated the Consolidated Appropriations Act of 2019, which makes it unlawful to use money appropriated for other purposes to fund the construction of the wall on the southern border.

The judge ordered military construction funds beyond what had already been appropriated by law be blocked permanently and declared Trump’s declaration of a national emergency on the southern border as an unlawful use of the money.

Earlier this year, Trump and Congress fought over the amount of border wall funding, causing a monthlong government shutdown that ended in January. On Feb. 15, Trump declared a national emergency at the U.S.-Mexico border and directed the use of military construction funds as well as counter-narcotic funding to pay for border wall construction.

Up to $3.6 billion in unobligated military construction funds were authorized by the declaration to be used for the border wall and have been directed toward 11 barrier projects totaling 175 miles of fencing to be built in Texas, Arizona and California. The Pentagon diverted the money from 127 planned construction projects worldwide.

El Paso County, where a portion of the wall is being constructed, is one of the plaintiffs in the case. They argued in the lawsuit that $20 million that was supposed to go toward a military construction project at Fort Bliss, a local Army installation, was redirected to wall construction Sept. 5, taking away construction jobs for the area.

“And the county is going, ‘That's our biggest employer. That's our biggest source of revenue into the economic engine of this county, and you're taking money away from that,’ ” said David Bookbinder, the chief counsel for the Niskanen Center, a think tank based in Washington, D.C. Bookbinder is one of the lawyers for the plaintiffs in the case.

The judge said Tuesday that “because plaintiffs have demonstrated irreparable harm, an inability of traditional remedies at law to rectify that harm, and the balance of the equities and public interest weigh in their favor, they are entitled to a permanent injunction against defendants’ use of [military construction] funds for border barrier construction.”

By directing more appropriated money for the wall with the emergency declaration than the amount approved by Congress, Trump violated the law, the Texas judge decided.

“The law says if you ask for X and Congress gives you one fifth of X, that's it, you can't put any more money into that pot. And the judge said, the president has violated that,” Bookbinder said of the judge’s decision.

Tuesday’s order prevents Defense Secretary Mark Esper, among a list of senior government department officials, from using billions of dollars of available military construction funds beyond the $1.375 billion that had already been appropriated for wall construction in the Consolidated Appropriations Act, or CAA.

The CAA states in section 739 that “none of the funds made available in this or any other appropriations act may be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the president’s budget request for a fiscal year …”

The $2.5 billion in counter-narcotic funding has also been committed to build about 150 miles of the border wall project, however Tuesday’s decision did not apply to this funding

Lawyers for the defendants, which includes Trump, Esper and Treasury Secretary Steven Mnuchin, argued in their response to the judge’s October decision that a “sweeping injunction” would be inappropriate because they said the CAA is only referring to projects and funding in that law, and not all Defense Department military construction funds.

The defendant’s lawyers on Tuesday appealed the judge’s decision to the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

Kenney.Caitlin@stripes.com
Twitter: @caitlinmkenney 

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