Ninth Circuit Hands Trump Admin a Big Loss: the Transfer of Military Funds to Build the Wall Was ‘Unlawful’

The U.S. Court of Appeals for the Ninth Circuit, a chief nemesis of the 45th president, ruled against the Trump Administration on Friday in a border wall construction case. The panel was clear that the “Executive Branch lacked independent constitutional authority to authorize the transfer” of military funds to build The Wall.

Bill Clinton-appointed Chief Judge Sidney R. Thomas penned the opinion, with which fellow Clinton-appointed Circuit Judge Kim McLane Wardlaw agreed. President Donald Trump–appointed Circuit Judge Daniel P. Collins penned a lone dissent.

“The panel affirmed the district court’s judgment in an action brought by the Sierra Club and the Southern Border Communities Coalition (collectively the ‘Sierra Club’) challenging the Department of Defense’s budgetary transfers to fund construction of a wall on the southern border of the United States in California, New Mexico, and Arizona,” the opinion began. “At issue is whether Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 (‘Section 8005’) authorized the budgetary transfers to fund construction of the wall. The panel held that the Sierra Club had Article III standing to pursue its claims.”

“In companion appeal State of California v. Trump, Nos. 19-16299 and 19-16336, slip op. (9th Cir. June 26, 2020) (published concurrently), the panel held that Section 8005 did not authorize the transfers of funds at issue here. The panel reaffirmed this holding here,” the opinion went on. “The panel held that the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. The panel noted that the Appropriations Clause of the U.S. Constitution exclusively grants the power of the purse to Congress. The panel held that the transfer of funds violated the Appropriations Clause, and, therefore, was unlawful.”

The circuit court said that the district court “did not abuse its discretion in granting Sierra Club a permanent injunction enjoining the federal defendants from spending the funds at issue”:

First, the panel agreed with the district court that Sierra Club would suffer irreparable harm to its recreational and aesthetic interests absent injunction. Second, the panel agreed with the district court that the balance of equities and the public interest favored injunctive relief. The panel held that the Supreme Court’s decision in Winter v. NRDC, Inc., 555 U.S. 7 (2008), did not require the panel to vacate the injunction.

Circuit Judge Collins wrote that Sierra Club did show that it had Article III standing to sue, but said the “Organizations lack any cause of action to challenge these § 8005 and § 9002 transfers.”

“I agree that at least the Sierra Club has established Article III standing, but in my view the Organizations lack any cause of action to challenge the transfers. And even assuming that they had a cause of action, I conclude that the transfers were lawful,” Collins wrote. “Accordingly, I would reverse the district court’s partial judgment for the Organizations and remand for entry of partial summary judgment in favor of the Defendants. I respectfully dissent.”

Law&Crime’s Elura Nanos previously argued that the district court decision in the Sierra Club case was a sign that the Trump administration would ultimately lose this battle over the border wall.

Legal experts promptly pointed out that, despite the Ninth Circuit’s Friday ruling that the Trump administration acted unlawfully, the Supreme Court’s July 2019 granting of a stay nonetheless allowed the administration to proceed with construction.

Ninth Circuit rules that Trump lacks the authority to transfer military construction funds to build his border wall. The only problem is that, thanks to a stay #SCOTUS issued *11 months ago,* he did it anyway. This is why these stays matter—it’s impossible to un-ring this bell. https://t.co/JFpAdeTkAv — Steve Vladeck (@steve_vladeck) June 26, 2020

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