A federal appeals court on Friday reversed course in the border wall lawsuit, delivering a potential win to House Democrats who sued over President Donald Trump’s transfer of Defense Department funds to construct the wall.
The appeals court disagreed with the lower court over the constitutional claims in the case and sent it back for further review. The decision is a blow to Trump, who has made the border wall a cornerstone of his presidency.
Last summer, the Democratic-controlled House of Representatives appealed a federal judge’s decision not to block Trump from funding a border wall. At the time, Judge Trevor McFadden said the House lacked standing to bring the challenge and that he did not believe the court should step into the fight between the President and Congress.
More than a year later, the US Court of Appeals for the DC Circuit has disagreed. The court ruled that “each chamber has a distinct individual right, and in this case, one chamber has a distinct injury.” Therefore, the House Democrats can challenge the President’s transfer of funds to build the border wall.
“To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House’s key out of its hands,” the appeals court said.
The Pentagon and Department of Homeland Security did not immediately respond to a request for comment.
Trump tapped into Department of Defense funds for the border wall, despite a congressional appropriation of $1.375 billion for barrier construction — a move that kicked off the case. Last April, the House filed a lawsuit alleging that the transfer of funds violated the Appropriations Clause of the Constitution and the Administrative Procedure Act when the administration transferred funds appropriated for other uses to finance the construction of the southern border wall.
The Department of Defense has defended the transfer of the funds, citing past practice and saying that it is not required to obtain congressional approval for moving money around using pre-existing reprogramming authorities.
“I’d say this much: border security is national security and national security is our mission.” Secretary of Defense Mark Esper said in February. “The action we took is legal under the law. I think that should be no surprise and I’ll just leave it at that for now.”
In July, the Supreme Court in a separate case allowed continued construction of a portion of Trump’s border wall while legal challenges play out.
Environmental groups represented by the American Civil Liberties Union, had asked the justices to lift an order from a year ago that allowed the government to continue building the wall pending appeals.
The Trump administration has completed 276 miles of new wall construction, including nine miles of wall where no barrier existed, according to the latest Customs and Border Protection data. The administration has identified $63.billion in DOD counter-narcotics funds and $3.6 billion in military construction funds to build the wall on the US-Mexico border.