Appeals court frees up Pentagon money for Trump's border wall

Image: Pentagon-Funded Border Wall Construction
Government contractors erect a section of Pentagon-funded border wall along the Colorado River, in Yuma, Ariz. on Sept. 10, 2019. Copyright Matt York AP
By Pete Williams with NBC News Politics
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President Donald Trump celebrated the ruling on Twitter Thursday morning.


WASHINGTON — A federal appeals court late Wednesday lifted a lower court's order that had blocked the Trump administration from using Defense Department money to build sections of a barrier on the southern border.

"Entire Wall is under construction or getting ready to start!" President Trump tweeted Thursday morning. He said the ruling "gave us the go ahead to build one of the largest sections of the desperately needed Southern Border Wall."

A panel of The Fifth Circuit Court of Appeals based in New Orleans voted 2-1 to remove a legal hold that prevented the government from spending up to $3.6 billion in Pentagon money on the project while a lawsuit over the funding works its way through the courts. The county of El Paso, Texas, and a group called the Border Network for Human Rights contended that the government has no legal authority to use the Defense Department funds for wall construction.

The unsigned appeals court ruling said little about the reason for its decision, noting only that the U.S. Supreme Court recently put a hold on a similar ruling from a federal court in California that had blocked Pentagon money from being diverted to the border wall without congressional approval. In lifting that stay in July, the Supreme Court said the groups opposed to the wall did not have the proper legal status to challenge the project in court.

"The government is entitled to the same relief here," the appeals court said in its brief order. The court found "a substantial likelihood" that the Texas groups also lacked the proper legal standing. Those groups said some of the border wall would be built in southern New Mexico, a two-hour drive from El Paso, and would discourage tourism in the area and harm the community's immigrant population.

In a brief dissent, Judge Stephen Higginson said the case raises "a constellation of sensitive and complex legal questions, all in the context of a nationwide injunction." He said he would have kept the hold on spending the money in place and ordered a fast-track appeal.

Kristy Parker of Project Democracy, which represented the wall's opponents in filing the lawsuit, said, "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."

In December, Federal District Court Judge David Briones of El Paso put a hold on spending the Pentagon money. He ruled that when Congress appropriated $1.375 billion to the Department of Homeland Security for border wall construction, it also prohibited other federal agencies from spending any of their money on the project.

But the Trump administration argued that Congress did not block other agencies, including the Defense Department, from spending their own money on their own priorities. One of those, the government said, was reducing the flow of illegal drugs across the southern border, and using Pentagon money for a border wall was consistent with that goal.

While Wednesday's order lifts the hold on the Pentagon money, the lawsuit over the government's authority to spend it remains alive.

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