Not surprisingly, a three-person panel on the 9th Circuit Court of Appeals has halted President Trump’s planned use of Defense Department funds to strengthen security on the southern border.
As reported by Politico:
Two of the judges, Richard Clifton and Michelle Friedland, said in a 75-page order released Wednesday that the attempt to move Defense Department construction funds to the Department of Homeland Security appeared to be a violation of federal law and the Constitution’s delegation to Congress of the power to appropriate funds.
“The Constitution assigns to Congress the power of the purse. Under the Appropriations Clause, it is Congress that is to make decisions regarding how to spend taxpayer dollars,” Clifton and Friedland wrote. “Congress did not appropriate money to build the border barriers Defendants seek to build here. Congress presumably decided such construction at this time was not in the public interest. It is not for us to reach a different conclusion.”
The third judge argued that the plantiffs did not have standing to bring suit in the first place, and that is probably accurate, but it is also a lost cause, as standing is primarily used by liberal judges as a mechanism to allow or disallow lawsuits based on their desired outcome.
Nonetheless, there is an easy fix that President Trump can exercise to get back to doing his job and building the wall. I wrote about it first in January in a column entitled “President Trump, just build the wall — Here’s how!”
Here’s the relevant quote from that earlier column:
The president can build the wall using U.S. Code 10 section 284 as long as he has a secretary of defense willing to invoke his powers to “provide support for the counterdrug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government or of any State, local, tribal, or foreign law enforcement agency.”
In other words, if the Border Patrol says they are fighting drug smugglers or cross-border organized crime such as human trafficking, then the Pentagon can support those efforts. Moreover, the secretary of defense can specifically authorize:
“(7) Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
Unfortunately, Trump’s advisers relied on a different legal basis for the president’s executive order — one that was always clearly going to be subject to challenge. In particular, they cited Section 8005 of the Department of Defense Appropriations At of 2019 in order to transfer funds to the Department of Homeland Security for use in building the wall. But that legal provision also forbids spending the money for projects already denied by Congress. That gave border security opponents an easy argument against the funding.
It is now time for the president to go back to the drawing board and do it the right way. No executive order is needed. All that U.S. Code 10 section 284 requires is that the Border Patrol or the Department of Homeland Security ask the secretary of defense to provide support for “construction of roads and fences … to block drug smuggling corridors.” Don’t forget, more than 50,000 Americans die every year as a result of opioid addiction, much of which is fed by drugs smuggled across the border.
President Trump has recently named Mark Esper as the acting secretary of defense. Mark Morgan is the acting director of Immigration and Customs Enforcement. If they want to stop acting and start doing, this is a good place to start.
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