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Judge partially blocks Trump border wall plan

POLITICO logo POLITICO 5/25/2019 By Josh Gerstein
a group of people standing in front of a building: 19524-border-wall-gty-773.jpg © Sandy Huffaker/Getty Images 19524-border-wall-gty-773.jpg

A federal judge has partially blocked President Donald Trump’s plan to fund construction of a wall along the U.S.-Mexico border.

The preliminary injunction issued Friday immediately halts a $1 billion transfer of Pentagon counterdrug funding to cover expansions and enhancement of border barriers.

The court order also appears to jeopardize another $1.5 billion of the $8.1 billion the administration planned to use for border construction.

However, Oakland, Calif.-based U.S. District Court Judge Haywood Gilliam’s order only limits construction in specific border areas in Texas and Arizona and does not prevent the administration from tapping other funding sources to advance those projects.

Gilliam said the administration’s plan to transfer counterdrug funding to finance the border-wall construction appeared to be unconstitutional because the legal authority the administration was relying on applied only to “unforeseen” needs.

“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,” the Obama nominee wrote.

Gilliam noted that in the wake of the protracted partial government shutdown earlier this year Congress appropriated only $1.375 billion for border-wall construction, limited to the Rio Grande Valley sector in Texas.

“The position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds ‘without Congress’ does not square with fundamental separation of powers principles dating back to the earliest days of our Republic,” the judge wrote.

Gilliam also said the administration’s claims of urgency were belied by its sluggishness in using appropriated border-wall-construction funds in the fiscal year that ended last September. Officials have said about $1.6 billion set aside for such projects was used to construct only 1.7 miles of fencing that year, which the judge said “tends to undermine Defendants’ claim that irreparable harm will result if the funds at issue … are not deployed immediately.”

While Trump declared a national emergency in February to try to free up additional funding for wall construction, the stream of money the judge blocked Friday was not contingent on the emergency declaration.

The injunction from Gilliam came in a lawsuit brought by the Sierra Club and a border-communities group. The judge said the order rendered moot part of a similar request in a parallel lawsuit filed by 20 states. He denied, for now, the states’ motion to block another aspect of Trump’s plan.

The judge’s order limiting use of the counterdrug funds applies to two sectors: El Paso, Texas, and Yuma, Arizona. The administration had planned to start using the moneys there as soon as Saturday, the judge said.

A Justice Department spokesman declined to comment on the judge’s rulings.

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