The administration likely broke the law when it tried to tap Pentagon money to build President Trump’s border wall beyond the limited sections Congress has approved, a federal appeals court ruled Wednesday.
In a 2-1 decision the 9th U.S. Circuit Court of Appeals halted $1 billion in border wall construction, saying Congress, not the president, controls taxpayers’ money.
The judges ruled that while Congress has given the Defense Department some limited powers to shift money around, in this case it was only for “unforeseen” projects — and the wall doesn’t qualify.
“Congress did not appropriate money to build the border barriers defendants seek to build here. Congress presumably decided such construction at this time was not in the public interest,” the two-judge majority wrote. “It is not for us to reach a different conclusion.”
It’s the latest legal setback in what’s becoming an unfortunate pattern for Mr. Trump.
On Tuesday, a district judge in the state of Washington halted his administration’s attempts to keep some asylum-seekers in custody without bond hearings until their cases can be heard.
Judges have also blocked his sanctuary city crackdown, his attempt to phase out President Obama’s DACA deportation amnesty for “Dreamers,” and his move to cancel Temporary Protected Status for migrants from war- and disaster-stricken countries.
But the wall ruling may hurt the most. It blocks most construction on the president’s most prominent 2016 campaign promise.
Mr. Trump, frustrated by the slow pace of money being approved by Congress, earlier this year declared a national emergency at the border, and claimed powers to shift more than $6.7 billion around to speed up construction.
That’s in addition to $1.375 billion Congress did approve, though with substantial strings.
Senior Judge Richard Clifton, who was appointed by President George W. Bush, and Judge Michelle Friendland, a choice of President Barack Obama, said Mr. Trump overstepped.
“The Constitution assigns to Congress the power of the purse. Under the Appropriations Clause, it is Congress that is to make decisions regarding how to spend taxpayer dollars,” they wrote.
The two judges cast themselves as a bulwark for protecting Congress and the public from an overzealous executive.
Senior Judge N. Randy Smith, also a Bush appointee, said his colleagues were aggrandizing themselves, creating a constitutional clash “where none previously existed.”
He said the issue before the court was whether to stay a lower court’s injunction, while that court continues to hear the case. He said his colleagues rushed to expand the case in order to spank the administration.
“We have no right to expand the judiciary’s role in this manner,” he wrote.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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