Yesterday, the U.S. Court of Appeals for the Ninth Circuit in Sierra Club against Trump ruled that President Trump's efforts to divert military construction funds are illegal. This is the first appeal ruling to address the question of whether Trump could use a national emergency declaration to divert funds to the border wall using 10 USC Section 2808, which reads, "In the event of a declaration of war or the declaration of the president a national emergency under the National Emergency Act … which requires the use of the armed forces, "the Department of Defense will have the authority to divert military construction funds," conduct military construction projects that are not otherwise authorized by law to support such use of the armed forces. " An earlier Ninth Circle decision ruled that it is illegal for Trump to divert funds using Section 8005 of the Department of Defense Funds Act of 2019.
The majority opinion drafted by Judge Sidney Thomas is based on several obvious flaws in the position of the administration:
Section 2808 allows the Secretary of Defense to undertake military construction projects in the event of a national emergency that requires the use of the armed forces. However, the law provides that such projects "must be necessary to support the deployment of the armed forces". The District Court's analysis is compelling on this issue and we believe that building a border wall is not necessary to support the deployment of the armed forces in view of the national emergency on the southern border. The federal defendants have not proven that the projects are necessary to support the deployment of the armed forces because: (1) the administrative documents show that the border wall projects are intended to support and promote the DHS – a civil authority – rather than the armed forces and (2) the federal defendants have not proven or even alleged that the projects are actually necessary to support the deployment of the armed forces.
First, the record shows that the Border Wall Projects (the Department of Homeland Security) and its sub-agencies are intended to benefit the CBP and US Border Patrol ("USBP"), not the armed forces. The record shows that the Department of Defense primarily considered the numerous benefits to these civilian agencies in determining the need for physical barriers.
To the extent that DoD policymakers believed that the build would benefit DoD at all, the record shows that the build is only meant to help DoD help DHS. The Department of Defense ruled that the barriers would serve as force multipliers "by allowing military personnel to cover other high-traffic border areas without existing barriers, a benefit clearly intended to aid the DHS, which is legally mandated to operate the barriers secure 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, that the border wall projects are "necessary" in a common sense of the word. See MERRIAM-WEBSTER ONLINE DICTIONARY (definition of "necessary" as "absolutely necessary: required"); OXFORD ENGLISH DICTIONARY ONLINE (definition of "necessary" as "(i) indispensable, vital, essential"). In assessing the need for border wall construction projects, the federal defendants concluded, "In short, these obstacles will allow the Department of Defense to support DHS more efficiently and effectively. In this regard, the planned construction projects are force multipliers." Efficiency and effectiveness are not synonymous with necessity … ..
"Necessary," as it appears in section 2808, is best understood to keep its clear meaning, meaning at least "required" or "required". The fact that building boundary walls could make DoD support more efficient and effective does not rise to the level of "required" or "required" – and the federal defendants have not proven it. That Congress refused to allocate larger funds to building border walls and voted twice to end the president's declaration on a national emergency, underscoring that the border wall is in fact not needed or needed.
The crucial point here is that the border wall is far from being a "military facility" or even a "necessary" facility to support the deployment of the armed forces, but actually supports civil law enforcement (in this case with compliance with the drug and immigration laws).
In his dissenting opinion, Judge Daniel Collins argues that Section 2808 allows funds to be diverted for pretty much any activity in an area under military jurisdiction. He emphasizes that "military construction" under Section 2808 is understood to mean construction "in relation to a military installation" under 10 USC Section 2801 (a). "Military installation", in turn, is defined as "base, warehouse, post office, station, yard, center, or other activity under the jurisdiction of the secretary of a military division" (emphasis added by Collins). The Trump administration and Collins argue that "other activities" mean any activity the Department of Defense wishes to participate in that it believes could help address the president's declared "national emergency".
As Judge Thomas points out, this theory has the absurd rationale that it "would give the Department of Defense essentially limitless powers to reallocate military building funds to build anything they want, wherever they want, provided they get jurisdiction first over the country in which they are located. "This approach becomes even more problematic when combined with the government's position (in this case not disputed) that the National Emergency Act gives the President the power to handle any emergency at any time explain for practically any reason he wants. So he could use emergency letters to convert military construction funds into slush funds and build almost anything for any purpose. Conservatives who could support the use of such power to build a border wall are likely not happy if Joe Biden (or another Democratic president) uses the same reasoning to declare a national emergency due to climate change or gun violence and then use it to use funds divert to build facilities for the Green New Deal or to promote gun rights restrictions.
Such limitless authority would raise obvious problems of separation of powers and upset the overall structure of Section 2808, which is intended to limit the relevant authority to divert funds to projects necessary to support military operations, not for the use of military civil law enforcement. In the context of "other activities", other military structures are to be understood which are similar to those already listed (such as bases, camps, etc.).
I think the majority are also right in defining "necessary". This issue is a narrower appeal than the definition of "other activities". As Judge Collins notes, there is a history of courts that sometimes define "necessary" to mean anything that is merely "useful" or "convenient," as in McCulloch v. Maryland's famously expansive definition of "necessary" in the "necessary and proper clause", however, Chief Justice Thomas effectively argues that these broad definitions of "necessary" all come from unusual contexts where "necessary" is modified by another term which implies a broad construction (e.g., "reasonably necessary"), or that the word is intended to be broad (in the case of the necessary and correct clause) because of the particular nature of Article I of the Constitution.
My own (admittedly unpopular) view is that McCulloch's Chief Justice John Marshall simply misunderstood the meaning of "necessary" and that James Madison and Thomas Jefferson, among others, rightly argued that it should have read something like "reading" "essential" and not just convenient. Separately, Marshall carefully stressed that his broad construction was justified only in the constitutional context in which a broad construction of powers is allegedly required because "
The majority and the dissenting opinions in this case also deal with many other topics and are over 120 pages in total. Among other things, it is noteworthy that both Thomas and Collins conclude that many of the plaintiffs (which include both private organizations and state governments) can and also have legitimate causes of action. Earlier judgments against the administration in various border wall cases have been overturned by the Supreme Court and the Fifth Circle. This one could not suffer the same fate.
The Trump administration can take some comfort that the judges have split on ideological grounds in this case, with two Liberal Democratic candidates in the majority and a conservative Republican Trump candidate disagreeing. If the case reaches the Supreme Court and the same type of split occurs, administration takes precedence.
However, as a recent DC Circuit decision by prominent Conservative Judge David Sentelle shows, not all decisions on these issues necessarily divide judges on ideological grounds. While Judge Sentelle's ruling merely states that the House of Representatives can contest the diverting of Border Wall funding, his reasoning also highlights the important separation-of-power reasons why the President should not be allowed such broad power to divert federal funds for any purpose to claim he wishes.
Yesterday's decision is only the last phase of a protracted legal dispute over the rerouting of the border wall. If Joe Biden doesn't win the presidential election and finish the border wall project (as he promised), the problem could potentially end up in the Supreme Court.
Still, the combination of that judgment and the DC Circuit's recent decision on the position of Congress is a major victory for those who oppose the wall. In combination, they speak out strongly against the position of the administration both in procedural questions and in many content-related questions that are at stake in the border wall cases.
The issues raised in yesterday's decision are far from the only ones raised by the rerouting of the border wall. Others include whether the situation at the border even qualifies as a "national emergency" under the National Emergency Act of 1976, and whether the President has authority to use a significant domain to confiscate property for the construction of the border that is not expressly authorized by Congress was approved. It also begs the question of whether the government's claimed virtually unlimited power to divert federal funds is in violation of nondelegation doctrine – an issue that is a common thread in many of Trump's immigration and trade policies.
History shows that the power accumulated by a president is also used by his successors – even those with very different political agendas. Whether or not he ultimately succeeds in erecting the border wall, Trump's attempted takeover could set a dangerous precedent here – if the courts allow it.