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Federal Appeals Court Lets Border Wall Construction Proceed While Administration Appeals Nationwide Injunction

Today, a federal appeals court put on hold a nationwide injunction that had blocked the Trump administration from using Department of Defense military construction funds to build a wall along the southern U.S. border. The ruling, available here, means that the administration can proceed with border wall construction using these funds while it appeals a lower court’s ruling that using those funds is unlawful.

“A court has already determined that the government can’t lawfully use military construction funds to build Trump’s border wall,” said Kristy Parker, Counsel at Protect Democracy. “It’s unfortunate that the people of El Paso will continue to suffer harm while the government appeals, but we’re confident that we’ll prevail again in this next stage of litigation.”

The federal court in Texas issued its injunction on December 10, after ruling on October 11 that the emergency proclamation and use of certain reprogrammed Department of Defense funds to build border barriers were unlawful. Under the Consolidated Appropriations Act of 2019, Congress appropriated $1.375 billion for border barrier construction. Section 739 of the Act prohibits the administration from increasing that funding beyond what Congress expressly approved. The court determined that the administration’s attempts to use the national emergency proclamation to reprogram military construction funding under 10 U.S.C. 2808 was prohibited because it sought to override Congress’s decision not to fund further border wall construction.

On December 16, the Trump administration asked the Fifth Circuit Court of Appeals to lift the injunction, arguing that it would cause “substantial and irreparable harm to the government and public interest in border security and drug interdiction.” The administration also noted that a federal court in another border wall lawsuit, brought in California by the Sierra Club, had stopped its injunction from taking effect while the government appealed. The plaintiffs argued that the government is not likely to succeed in its appeal and the injunction should remain in place.

“President Trump tried to pull a fast one on Congress and the Constitution with his national emergency declaration,” said Jerry Taylor, President of the Niskanen Center. “Allowing him to spend money that he took without Congress’s approval only incentivizes this lawless behavior. We look forward to holding him accountable on appeal.”

For more information about the case, visit EndTheEmergency.org.

The ruling and other case documents can be found at protectdemocracy.org/national-emergency-declaration/case-documents-national-emergency.