The Volokh Conspiracy
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On Friday night, Federal District Judge Haywood Gilliam ruled against the administration in what is likely to be the first of many court decisions on the legality of President Trump's plans to reallocate federal defense and and drug interdiction funds to build his border wall. The court concluded that none of the the federal laws that the administration wants to use to reallocate funds for wall construction in California actually permits it to spend more money on the wall than Congress specifically authorized for that purpose. Judge Gilliam also emphasized that the administration's attempts to circumvent Congress' power of the purse threaten to undermine our constitutional system of separation of powers.
In order to build parts of Trump's planned border wall, the administration wants to reallocate funds under 10 USC Section 284, which allows the use of Department of Defense "counternarcotics" funds to provide support for "counterdrug activities" by other agencies, and 10 USC Section 2808, which applies during a "national emergency" that "requires the use of the armed forces" an allows the president to reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." In order to make use of Section 2808, Trump declared a "national emergency" under the National Emergencies Act of 1976.
Since the funds Congress specifically allocated to fund Section 284 during the current fiscal year are nearly exhausted, the Department of Defense wants to tap some $2.5 billion in additional funds by using Section 8005 of the most recent Department of Defense Appropriations Act. As Judge Gilliam explains, Section 8005 "authorizes the Secretary of Defense to transfer up to $4 billion 'of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions … Section 8005 further provides that such authority to transfer may only be used (1) for higher priority items than those for which originally appropriated, and (2) based on unforeseen military requirements, but (3) in no case where the item for which funds are requested has been denied by the Congress." The federal government also plans to utilize some $3.6 billion under Section 2808. This combined total is far more than the $1.375 billion that Congress authorized in new border barrier spending in the deal that ended the government shutdown earlier this year.
For reasons Judge Gilliam outlines, neither Section 2808 nor the combination of Section 284 and Section 8005 actually authorize the president to spend money on border barriers. Moreover, the administration's efforts to tap these funds would seriously undermine the separation of powers of the courts allow them to succeed.
In his opinion, Judge Gilliam concludes that the administration's attempt to use Section 8005 runs afoul of two of that provisions' requirements: that the expenditure in question cannot be for a purpose "denied by Congress", and that it must be for "unforeseen military requirements."
As Judge Gilliam points out, "the Defendants' argument that the need for the requested border barrier construction funding was "unforeseen" cannot logically be squared with the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018." Trump has been lobbying Congress for extensive new border wall funding for a long time now. Their refusal to satisfy his demands does not make the wall an "unforeseen" military need. He notes that if the administration prevails on this issue, virtually any Section 284 spending could qualify as as an "unforeseen" need, based on the theory that the need for the spending was not known until the administration demanded it.
The administration's position on the "denied by Congress" issue is perhaps even more troubling. Judge Gilliam's ruling explains that the administration's demands for new border wall spending beyond the $1.375 billion included in the recent budget deal, were repeatedly rejected by Congress. This surely qualifies as a "denial" by Congress. The administration's attempts to get around this problem pose a serious threat to the separation of powers:
[T]he upshot of Defendants' argument is that the Acting Secretary of Defense is authorized to use Section 8005 to funnel an additional $1 billion to the Section 284 account for border barrier construction, notwithstanding that (1) Congress decided to appropriate only $1.375 billion for that purpose; (2) Congress's total fiscal year 2019 appropriation available under Section 284 for "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States" was $517 million, much of which already has been spent; and (3) Defendants have acknowledged that the Administration considered reprogramming funds for border barrier construction even before the President signed into law Congress's $1.375 billion appropriation….
Put differently, according to Defendants, Section 8005 authorizes the Acting Secretary of Defense to essentially triple—or quintuple, when considering the recent additional $1.5 billion reprogramming—the amount Congress allocated to this account for these purposes, notwithstanding Congress's recent and clear actions in passing the CAA, and the relevant committees' express disapproval of the proposed reprogramming….
[R]eading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an "unbounded authorization for Defendants to rewrite the federal budget…"
Judge Gilliam goes on to emphasize that:
The Court has serious concerns with Defendants' theory of appropriations law, which presumes that the Executive Branch can exercise spending authority unless Congress explicitly restricts such authority by statute…. But it is not Congress's burden to prohibit the Executive from spending the Nation's funds: it is the Executive's burden to show that its desired use of those funds was "affirmatively approved by Congress…
To have this any other way would deprive Congress of its absolute control over the power of the purse, "one of the most important authorities allocated to Congress in the Constitution's 'necessary partition of power among the several departments.'"… (quoting The Federalist No. 51, at 320 (James Madison)..).
On Section 2808, Judge Gilliam concludes that "it is unclear how border barrier construction could reasonably constitute a 'military construction project' such that Defendants' invocation of Section 2808 would be lawful." For reasons he explains, such border barriers do not qualify as a "military construction projects" as that term is defined in Section 2801 (which provides relevant definitions for 2808).
I pointed out some additional reasons why the administration's reliance on Section 2808 is flawed here. Among other things, immigration law enforcement does not qualify as an "emergency" that "requires the use of the armed forces." Indeed, using the armed forces for domestic law enforcement purposes is actually illegal.
Because the administration has not yet decided when and where it intends to use the Section 2808 funds, Judge Gilliam only issued a preliminary injunction against the use of Section 8005/Section 284 funds.
The bottom line in this case is that the president does not have the power to spend money for purposes not authorized by Congress, and he cannot circumvent Congress' power of the purse through creative manipulation of statues. As Judge Gilliam puts it, "Congress's 'absolute' control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one."
This is not the first time the Trump Administration infringed on Congress' power of the purse. It has repeatedly done much the same thing in its efforts to withhold federal funds from "sanctuary cities," a strategy that has led to a long series of well-deserved defeats in court.
Judge Gilliam's decision only deals with the plaintiffs' motion for a preliminary injunction. But it is obvious which way he is likely to rule once the case reaches a final decision on the merits. In addressing the preliminary injunction question, he concluded that the plaintiffs are likely to prevail on the merits on both the Section 2808 and Section 8005/Section 284 issues.
Yesterday's ruling is just the beginning of what is likely to be a prolonged legal battle over Trump's efforts to reallocate funds to "build the wall." This case, filed by the ACLU on behalf of the Sierra Club and other groups, is just one of many lawsuits against the president's plan. It is the first to result in a judicial decision. There will likely be many more before this
Judge Gilliam does not address a number of issues that are likely to be dealt with in other cases, or perhaps even in this one, after the federal government files an appeal. These include whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976 (whose invocation was necessary to trigger Section 2808), and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. Yesterday's ruling did not need to address these issues because Judge Gilliam concluded that the use of Section 2808 was illegal for other reasons, and because the administration has not yet tried to use the new funds to condemn property in the areas in question. Similarly, the ruling does not consider the legality of the administration's plan use federal asset forfeiture funds to build the wall, relying on 31 USC 9705. The Administration intends to use Section 9705 to fund wall construction in Texas, but in areas not covered by the lawsuit before Judge Gilliam.
As Winston Churchill might have put it, this ruling is not the end of the legal struggle over Trump's border wall; it barely even qualifies as the end of the beginning. But Judge Gilliam's decision is still a notable victory for opponents of the wall. It effectively highlights some key flaws in the administration's position.