Ninth Circuit Rules Against Trump’s Diversion of Military Construction Funds to Build his Border Wall
Yesterday, in Sierra Club v. Trump, the US Court of Appeals for the Ninth Circuit ruled that President Trump’s effort to divert military construction funds is illegal. This is the first appellate decision addressing the issue of whether Trump could use a national emergency declaration to divert funds to the border wall by using 10 USC Section 2808, which, says that “In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act… that requires use of the armed forces,” the Department of Defense will have the power to divert military construction funds “undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.” A previous Ninth Circuit decision ruled it is illegal for Trump to divert funds by using Section 8005 of the the 2019 Department of Defense Appropriations Act.
The majority opinion, written by Chief Judge Sidney Thomas, relies on several obvious shortcomings in the administration’s position:
Section 2808 allows the Secretary of Defense to undertake military construction projects in the event of a national emergency requiring the use of the armed forces, but the statute specifies that such projects must be “necessary to support such use of the armed forces.” The district court’s analysis is persuasive on this issue, and we hold that border wall construction is not necessary to support the use of the armed forces with respect to the national emergency on the southern border. The Federal Defendants have not established that the projects are necessary to support the use of the armed forces because: (1) the administrative record shows that the border wall projects are intended to support and benefit DHS—a civilian agency—rather than the armed forces, and (2) the Federal Defendants have not established, or even alleged, that the projects are, in fact,necessary to support the use of the armed forces.
First, the record illustrates that the border wall projects are intended to benefit [the Department of Homeland Security] and its subagencies, CBP and U.S. Border Patrol (“USBP”), not the armed forces. The record demonstrates that DoD primarily considered the many benefits to these civilian agencies in determining that physical barriers are necessary….
To the extent DoD decision-makers believed that construction would benefit DoD at all, the record demonstrates that the construction is merely expected to help DoD help DHS. DoD determined that the barriers would serve as force multipliers,” by allowing military personnel to cover other high-traffic border areas without existing barriers, a benefit plainly intended to assist DHS, which, by statute, is tasked with “[s]ecuring the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States….”
Second, the Federal Defendants have not even alleged, let alone established as a matter of fact, that the border wall construction projects are “necessary” under any ordinary understanding of the word. See MERRIAM-WEBSTER ONLINE DICTIONARY (defining “necessary” as “absolutely needed: required”); OXFORD ENGLISH DICTIONARY ONLINE (defining “necessary” as “[i]ndispensable, vital, essential”). In assessing the necessity of the border wall construction projects, the Federal Defendants concluded: “In short, these barriers will allow DoD to provide support to DHS more efficiently and effectively. In this respect the contemplated construction projects are force multipliers.” Efficiency and efficacy are not synonymous with necessity…..
“Necessary” as it appears in Section 2808 is best understood as retaining its plain meaning, which means, at the very least, “required,” or “needed.” The fact that border wall construction might make DoD’s support more effici
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