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Volokh Conspiracy

Ninth Circuit Rules Against Trump's Diversion of Military Construction Funds to Build his Border Wall

The divided 2-1 decision is the first court of appeals ruling to rule on the legality of a key part of the funding diversion effort.


Yesterday, in Sierra Club v. Trump, the US Court of Appeals for the Ninth Circuit ruled that President Trump's effort to divert military construction funds is illegal. This is the first appellate decision addressing the issue of whether Trump could use a national emergency declaration to divert funds to the border wall by using 10 USC Section 2808, which, says that "In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act…  that requires use of the armed forces," the Department of Defense will have the power  to divert military construction funds "undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces." A previous Ninth Circuit decision ruled it is illegal for Trump to divert funds by using Section 8005 of the the 2019 Department of Defense Appropriations Act.

The majority opinion, written by Chief Judge Sidney Thomas, relies on several obvious shortcomings in the administration's position:

Section 2808 allows the Secretary of Defense to undertake military construction projects in the event of a national emergency requiring the use of the armed forces, but the statute specifies that such projects must be "necessary to support such use of the armed forces." The district court's analysis is persuasive on this issue, and we hold that border wall construction is not necessary to support the use of the armed forces with respect to the national emergency on the southern border. The Federal Defendants have not established that the projects are necessary to support the use of the armed forces because: (1) the administrative record shows that the border wall projects are intended to support and benefit DHS—a civilian agency—rather than the armed forces, and (2) the Federal Defendants have not established, or even alleged, that the projects are, in fact,necessary to support the use of the armed forces.

First, the record illustrates that the border wall projects are intended to benefit [the Department of Homeland Security] and its subagencies, CBP and U.S. Border Patrol ("USBP"), not the armed forces. The record demonstrates that DoD primarily considered the many benefits to these civilian agencies in determining that physical barriers are necessary….

To the extent DoD decision-makers believed that construction would benefit DoD at all, the record demonstrates that the construction is merely expected to help DoD help DHS. DoD determined that the barriers would serve as force multipliers," by allowing military personnel to cover other high-traffic border areas without existing barriers, a benefit plainly intended to assist DHS, which, by statute, is tasked with "[s]ecuring the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States…."

Second, the Federal Defendants have not even alleged, let alone established as a matter of fact, that the border wall construction projects are "necessary" under any ordinary understanding of the word. See MERRIAM-WEBSTER ONLINE DICTIONARY (defining "necessary" as "absolutely needed: required"); OXFORD ENGLISH DICTIONARY ONLINE (defining "necessary" as "[i]ndispensable, vital, essential"). In assessing the necessity of the border wall construction projects, the Federal Defendants concluded: "In short, these barriers will allow DoD to provide support to DHS more efficiently and effectively. In this respect the contemplated construction projects are force multipliers." Efficiency and efficacy are not synonymous with necessity…..

"Necessary" as it appears in Section 2808 is best understood as retaining its plain meaning, which means, at the very least, "required," or "needed." The fact that border wall construction might make DoD's support more efficient and effective does not rise to the level of "required" or "needed"—and the Federal Defendants have failed to show that it does. That Congress declined to provide more substantial funding for border wall construction and voted twice to terminate the President's declaration of a national emergency underscores that the border wall is not, in fact, required or needed.

The key point here is that, far from being a "military installation" or even one "necessary" to support the use of the armed forces, the purpose of the border wall is in fact to aid in civilian law enforcement (in this case with respect to drug and immigration laws).

In his dissenting opinion, Judge Daniel Collins argues that Section 2808 authorizes diversion of funds for pretty much any activity done within an area placed under military jurisdiction. He emphasizes that "military construction" under Section 2808 is understood to mean construction "with respect to a military installation," under 10 USC Section 2801(a). "Military installation," in turn, is defined as "a base, camp, post, station, yard,center, or other activity under the jurisdiction of the Secretary of a military department" (emphasis added by Collins). The Trump administration and Collins argue that "other activity" means any activity the Department of Defense might want to engage in that could, in its view, help address the "national emergency" declared by the President.

As Judge Thomas points out, this theory has the absurd consequence that it "would grant [the Department of Defense] essentially boundless authority to reallocate military construction funds to build anything they want, anywhere they want, provided they first obtain jurisdiction over the land where the construction will occur." This approach becomes even more problematic in combination with the government's position (not contested in this case) that the National Emergencies Act gives the president the power to declare any emergency at any time for virtually any reason he wants. Thus, he could use emergency declarations to transform military construction funds into a slush fund to build almost anything for any purpose whatsoever. Conservatives who might support the use of such power to build a border wall aren't likely to be happy if Joe Biden (or some other Democratic president) uses the same reasoning to declare a national emergency over climate change or gun violence, and then use it to divert funds to build facilities for the Green New Deal, or to promote restrictions on gun rights.

Such boundless authority would raise obvious separation of powers problems, and it makes a hash of the overall structure of Section 2808, which is supposed to limit the relevant authority to divert funds to projects necessary to support military operations, not the use of the military for civilian law enforcement. In context, "other activities" should be understood to mean other military construction similar to those already enumerated (such as bases, camps, and so on).

I think the majority is also right in its approach to the definition of "necessary." This issue is a closer call than the definition of "other activities." As Judge Collins notes—there is a history of courts sometimes defining "necessary" to mean anything that is merely "useful" or "convenient," as in McCulloch v. Maryland's famously expansive definition of "necessary" in the "Necessary and Proper Clause of the Constitution. But Chief Judge Thomas effectively argues that these broad definitions of "necessary" are all taken from unusual contexts where "necessary" is modified by some other term implying a broad construction (e.g.—"reasonably necessary"), or that the the word is supposed to be broad because of the special nature of Article I of the Constitution (in the case of the Necessary and Proper Clause).

My own (admittedly unpopular) view is that Chief Justice John Marshall simply got the meaning of "necessary" wrong in McCulloch, and that James Madison and Thomas Jefferson, among others, were right to argue that it should have been read to mean something like "essential," rather than merely convenient. Regardless, Marshall was careful to emphasize that his broad construction was justified only because of the constitutional context, where broad construction of powers is supposedly needed because "we must never forget that it is a Constitution we are expounding." The same isn't true in the context of a federal statute, where an ultrabroad construction like the one advocate by Collins and the Trump administration would actually have the effect of undermining Congress' constitutional control over federal spending by giving the president virtually boundless discretion to reallocate construction funds however he wants.

The majority and dissenting opinions in this case address a great many other issues, as well, and collectively run to over 120 pages. Among other things, it is notable that both Thomas and Collins conclude that many of the plaintiffs (who include both private organizations and state governments) have standing to sue, and also have legitimate causes of action. Previous rulings against the administration in various border wall cases have been set aside by the the Supreme Court and the Fifth Circuit. This one might not suffer the same fate.

The Trump Administration can take some comfort from the fact that the judges in this case split along ideological lines, with two liberal Democratic appointees in the majority, and a conservative Republican Trump appointee dissenting. If the  case reaches the Supreme Court and the same sort of split happens, the administration will prevail.

However, as a recent DC Circuit decision authored by prominent conservative Judge David Sentelle shows, not all the rulings on these issues necessarily split judges along ideological lines. While Judge Sentelle's decision merely holds that the House of Representatives has standing to challenge the border wall funding diversion, his reasoning also highlights the important separation of powers reasons why the president should not be allowed to claim such broad power to divert federal funds to whatever ends he wishes.

Yesterday's decision is just the latest phase in a prolonged legal battle over the border wall diversion. Unless Joe Biden wins the presidential election and terminates the border wall project (as he has promised to do), the issue could well end up in the Supreme Court.

Still, the combination of this ruling and the recent DC Circuit decision on congressional standing are important victories for opponents of the wall. In combination, they make a strong case against the administration's position on both procedural questions and many of substantive issues at stake in the border wall cases.

The issues addressed in yesterday's ruling are far from the only ones raised by the border wall diversion. Others include  whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976  at all, and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. There is also the issue of whether the kind of virtually unconstrained authority  to divert federal funds claimed by the administration violates the nondelegation doctrine—a problem that is a common thread in many of Trump's immigration and trade policies.

History shows that power accumulated by one president tend to be used by his successors, as well—even by those with very different political agendas. Whether or not he ultimately succeeds in building the border wall, Trump's attempted power grab here could set a dangerous precedent—if the courts allow him to do so.