BY TAL AXELROD
A federal appeals court on Friday gave the Trump administration the green light for its plan to divert military funding for border wall construction, overturning a lower court decision.
The 5th U.S. Circuit Court of Appeals in a 2-1 decision ruled that El Paso County and the nonprofit Border Network for Human Rights did not have the standing to go against the administration’s plan to take $3.6 billion from more than 100 military construction projects and that neither plaintiff was able to prove they were harmed by the plan.
The decision overturned a 2019 ruling by U.S. District Judge David Briones.
Judge James Dennis wrote in his minority opinion supporting the county and the nonprofit that he could not join the majority because he believes the “2019 Consolidated Appropriation Act clearly prohibited the redirection of funds that underpins the border-wall.”
The Friday ruling follows an October decision by the 9th Circuit Court of Appeals ruling that the transfer of funds was illegal, upholding a request from the advocacy groups the Sierra Club and the Southern Border Communities Coalition against then-Defense secretary Mark Esper, acting Homeland Security secretary Chad Wolf and “all persons acting under their direction ... from using military construction funds appropriated for other purposes to build a border wall.”
The Supreme Court has already agreed to review that ruling, which the 5th Circuit said it disagreed with and would “decline to follow.”
The border wall was one of President Trump’s top campaign promises in 2016 as he entered office with a vow to curb both legal and unauthorized immigration. He declared a national emergency in 2019 to transfer billions in military funds after he failed to reach a funding deal with Congress, leading to the longest government shutdown in U.S. history.
President-elect Joe Biden has said he intends to try to end the national emergency that allowed Trump to divert the Pentagon funds.
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