The Ninth Circuit Will Very Soon Decide Whether [And For How Long] Trump’s Attempt To Divert Funds To His Wall Will Be Enjoined…

It bears repeating [though under President Obama — since he understood the role of Acts of Congress, and the Constitution’s checks and balances — none of this would have ever come up. . .] to state the obvious (for Trump’s benefit): Presidents do not have the ability to defy Congressial spending limits. It is hard-coded into the founding documents.

Spending limits, as enacted and controlled by the Congress, act as an express check, on any tyrannical urges by. . . Presidents. Now the Ninth Circuit, in the Sierra Club cases, will decide whether the existing premlinary injunction against Trump’s wall building will continue — in the form of a prohibition on accessing funds to build it. Here’s a bit:

. . . .As Plaintiffs point out, the upshot of [Trump]’s 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) [Trump has] acknowledged that the Administration considered reprogramming funds for border barrier construction even before [Trump] signed into law Congress’s $1.375 billion appropriation. See Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019, Pub. L. No. 115-245, div. A, tit. VI, 132 Stat. 2981, 2997 (2019) (appropriating $881 million in funds “[f]or drug interdiction and counter-drug activities” in fiscal year 2019, $517 million of which is “for counter-narcotics support”); Dkt. No. 131 at 4 (indicating that Defendants have not used — and do not intend to use in the near future — any funds appropriated by Congress for counter-narcotics support for border barrier construction); Case No. 4:19-cv-00872-HSG, ECF No. 89-12, at 14 (testimony of Defendant Shanahan before the House Armed Services Committee explaining that the Administration discussed unilateral reprogramming “prior to the declaration of a national emergency”). . . .

Put differently, according to [Trump], 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. See States RJN Ex. 35 (“The committee denies this request. The committee does not approve the proposed use of [DoD] funds to construct additional physical barriers and roads or install lighting in the vicinity of the United States border.”); id. Ex. 36 (“The Committee has received and reviewed the requested reprogramming action . . . . The Committee denies the request.”). Moreover, [Trump’s] decision not to refer specifically to Section 284 in [his] $5.7 billion funding request deprived Congress of even the opportunity to reject or approve this funding item. . . .

We will keep you informed, but we expect briefs by mid next week. And we expect Trump will. . . lose. No wall. [Remember when he said Mexico would pay for the wall? He now nakedly tries to steal money from military projects — to make American taxpayers pay for that impotently vain edifice to his idiocy. Charming.]


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