Ninth Circuit Correctly Holds Trump Cannot Use DoD Funds For His Adder-Wall® — But It’s Too Late…

This appellate decision is absolutely correct on the law, but because the Supremes stayed the prior trial court level decision — Team Trump has already spent the military-appropriation money Congress sent to the military only — on a short section of the wall. Trump had no lawful power to use that money for the wall, since both his intentions — and the drug crisis he claimed — were not “unforeseen.”

Here is the well-written opinion — but since we are unlikely ever again to see such a despot at 1600 Penn, it won’t be invoked very often in the future. And the Supremes won’t reach the merits of any appeal from the Ninth Circuit by Team Trump, before he is long gone from office. In any event, here’s the bit:

. . . .Congress’s joint resolution terminating the President’s declaration of a national emergency only reinforces this point: there was no unanticipated crisis at the border. Nothing prevented Congress from funding solutions to this problem through the ordinary appropriations process — Congress simply chose not to fund this particular solution. The long, well-documented history of the President’s efforts to build a border wall demonstrates that he considered the wall to be a priority from the earliest days of his campaign in 2015. See, e.g., Here’s Donald Trump’s Presidential Announcement Speech, TIME (June 16, 2015) (“I would build a great wall . . . I will build a great, great wall on our southern border.”); Transcript of Donald Trump’s Immigration Speech, NEW YORK TIMES (Sept. 1, 2016) (“On day one, we will begin working on an impenetrable, physical, tall, power, beautiful southern border wall.”). Moreover, his repeated pronouncements on the subject made clear that federal agencies like DoD might be tasked with the wall’s funding and construction. . . .

Congress’s repeated denials of funding only drew national attention to the issue and put agencies on notice that they might be asked to finance construction. See Securing America’s Future Act of 2018, H.R. 4760, 115th Cong. § 1111 (2018); Border Security and Immigration Reform Act of 2018, H.R. 6136, 115th Cong. § 5101 (2018); American Border Act, H.R. 6415, 115th Cong. § 4101 (2018); Fund and Complete the Border Wall Act, H.R. 6657, 115th Cong. § 2 (2018); Build the Wall, Enforce the Law Act of 2018, H.R. 7059, 115th Cong. § 9 (2018); 50 Votes for the Wall Act, H.R. 7073, 115th Cong. § 2 (2018); WALL Act of 2018, S. 3713, 115th Cong. § 2 (2018). In short, neither the conditions at the border nor the President’s position that a wall was needed to address those conditions was unanticipated or unexpected by DoD. . . .

Now you know. Onward. We will make it through this dark night — into a better dawn, come mid-November 2020.


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