A federal appeals court raked both the Trump administration and border wall opponents over the coals Thursday, struggling with “ambiguous” law and complicated arguments to try to settle whether the president’s emergency wall-building plans can go forward.
At least two of the judges on the three-judge panel seemed skeptical of the Justice Department’s contention that Congress, while refusing to give President Trump all the money he sought, didn’t outright ban him from an end-run around them.
“They made that request to Congress and Congress declined to fund it,” said Judge Richard Clifton, an appointee of President George W. Bush to the 9th U.S. Circuit Court of Appeals.
The court is being asked to lift a lower court’s injunction that halted the president’s wall-building operations under the Defense Department.
Mr. Trump had asked for more than $5 billion in wall money, and Congress approved just $1.375 billion. The president signed that bill, then issued an emergency declaration saying he could tap nearly $7 billion in other money, most of it at the Pentagon, to have the Defense Department build more than Congress approved.
At issue in Thursday’s case was about $1 billion in money the Pentagon said it was using to build barriers in drug-smuggling corridors, under Section 8005 of the defense spending measure.
Trump opponents, including the Sierra Club and Democrat-led states, say the president’s move is illegal and tramples on Capitol Hill’s ability to determine where money goes.
“The executive can’t spend a penny unless Congress authorizes,” said Dror Ladin, the lawyer who argued the case for the Sierra Club.
The Justice Department, though, says Congress has given the president some leeway to move money around, particularly in the defense spending bill, and it never explicitly prohibited funds from being spent on the drug-smuggling corridor barriers.
That seemed to resonate with Judge N. Randy Smith, another Bush appointee.
“Not denied by Congress is the thing we’re really talking about here,” he told Mr. Ladin.
He said the law governing the spending was vague, and said that leaves a lot of decisions — and potentially power — in the hands of judges.
“What these words mean in 8005 is certainly ambiguous. And if ambiguous, at that point I’ve either got to give some deference to the agency … or I’ve got to make that determination myself,” he said.
The third member of the panel, Judge Michelle Friedland, an Obama appointee, was less impressed with the government’s defense or her colleague’s conundrums.
“Do you think these terms are ambiguous?” she demanded of Mr. Ladin.
The case is one of several challenges to Mr. Trump’s border wall.
Another case brought by the Democrat-led House was tossed after a judge ruled one chamber of Congress doesn’t have standing to sue. The House has said it is appealing that ruling.
Yet another case is pending in a federal court in Texas.
A Defense Department official told Congress on Thursday that the biggest pot of money — $3.6 billion in military construction money — has yet to be tapped, as the Pentagon tries to decide what to do.
Congress, meanwhile, is moving to prevent a repeat next year, writing language into the 2020 spending bills specifically prohibiting shifting funds. The Justice Department says that could have been done in the current bills — and the fact that it wasn’t is more evidence that Mr. Trump isn’t breaking the law.
The judges did not give a sense for when they might rule, but said they’re aware of the deadlines.
“We are trying to move as quickly as we can,” Judge Clifton said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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