A federal judge on Friday expanded a ban on construction of President Donald Trump’s signature southern border wall that would have used money secured under his declaration of a national emergency, but that Congress never approved for the purpose.
US District Judge Haywood S Gilliam Jr, of Oakland, California, blocked construction on four of the administration’s highest-priority projects on the US-Mexico border spanning 79 miles near El Centro, California, and Tucson.
The Pentagon had moved to fund the projects using $1.5bn (£1.18bn) transferred into a Defence Department counter-drug programme from military pay and training accounts.
In his order granting a permanent halt on the construction, Mr Gilliam also cleared the path for an immediate appeal.
Mr Gilliam last month in part of the same case temporarily stopped another $1bn (£787 million) transfer for work on stretches totalling 50 miles in eastern New Mexico and Yuma, Arizona.
But he signalled then that environmentalists and border communities covered in Friday’s ruling were likely to prevail in their claims that the administration illegally shifted money that Congress never intended or approved for the wall.
Mr Gilliam last month cited “Congress’ ‘absolute’ control over federal expenditures – even when that control may frustrate the desires of the executive branch”, and on Friday saw no reason to reverse course.
“Defendants do not have the purported statutory authority to reprogram and use funds for the planned border barrier construction,” Mr Gilliam wrote.
He acknowledged the government’s “strong interest in border security”, but said: ”Absent such authority, defendants’ position on these factors boils down to an argument that the Court should not enjoin conduct found to be unlawful because the ends justify the means. No case supports this principle.”
Mr Gilliam’s latest 11-page opinion delivered a victory to the Sierra Club and Southern Border Communities Coalition, represented by the American Civil Liberties Union (ACLU), which had argued the wall would irreparably harm “recreational and aesthetic interests” in desert expanses that include national monuments, wildlife refuge and reserves and rivers, they said.
Together with the US Justice Department, both sides had asked Mr Gilliam to speed up his ruling and enter final judgment so one of the president’s signature initiatives could quickly go before the US Court of Appeals for the 9th Circuit.
A Justice Department spokeswoman did not immediately respond to a request for comment late on Friday.
However, earlier in the day, attorneys for the Justice Department and ACLU notified Mr Gilliam that the government had said it planned to move ahead by Monday on the El Centro and Tucson border barrier projects and asked Mr Gilliam if he intended to rule before then, so if he didn’t they could file emergency motions over the weekend.
In all, Mr Gilliam’s rulings blocked $2.5bn (£1.97bn) of the $6.7bn (£5.28bn) that the administration planned to transfer for the effort beyond the $1.375bn (£1.08bn) Congress allotted last winter.
When Congress declined to sign off on spending at the levels sought by the president, Mr Trump eventually declared a national emergency in February to redirect mostly military-designated funding to pay for the project.
Mr Gilliam said the administration’s plan to transfer counter-drug funding appeared to be illegal because the law the administration invoked applies only to “unforeseen” needs, whereas Trump had demanded funding since early 2018 and even in his campaign.
“We applaud the court’s decision to protect our Constitution, communities, and the environment today,” said Gloria Smith, managing attorney at the Sierra Club.
“Walls divide neighbourhoods, worsen dangerous flooding, destroy lands and wildlife, and waste resources that should instead be used on the infrastructure these communities truly need.”
“Congress was clear in denying funds for Trump’s xenophobic obsession with a wasteful, harmful wall,” said Dror Ladin, staff attorney with the ACLU’s National Security Project.
“This decision upholds the basic principle that the president has no power to spend taxpayer money without Congress’s approval.”
On a separate legal challenge to wall funding, US District Judge Trevor McFadden in Washington DC, in May tossed out a lawsuit by the Democrat-led House of Representatives to block the spending transfers, arguing that President Trump unconstitutionally diverted appropriated funds in violation of Congress’s power of the purse.
The House has appealed that case to the US Court of Appeals for the DC Circuit.
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