Skip to main content

Federal Court Signals That President Trump Will Ultimately Lose Battle Over Border Wall


In February, the Sierra Club and the Southern Border Communities Coalition sued the Trump Administration to stop it from using federal funds to construct President Donald Trump’s proposed border wall. The Trump Administration had planned to start using $1.4 billion of counterdrug funding to construct U.S.-Mexico barriers in El Paso, Texas, and Yuma, Arizona.

Ruling that the money cannot be diverted from the Pentagon to fund the border wall, Judge Haywood S. Gilliam, Jr. of the United States District Court Northern District of California, issued a ruling Friday that slammed the Trump Administration for its unconvincing legal arguments; although the ruling was a preliminary one – controlling only during the pending litigation – it doesn’t bode well for Trump.

Judge Gilliam was quick to clarify that this “case is not about whether the challenged border barrier construction plan is wise or unwise,” but rather whether Trump has actual constitutional authority to undertake the plan at all.  Judge Gilliam noted that questions over the wisdom of the border wall are “the subject of extensive, and often intense, differences of opinion,” on which he declines to become involved.  However, on the question central to the judge’s decision – whether Trump has the legal right to fund the border wall – Judge Gilliam had plenty to say.

  1. If Trump actually thought he had authority to do this, he wouldn’t have asked Congress first.

Sometimes, that whole “better to ask forgiveness than permission” thing works for government, too. Judge Gilliam brought up a little legal history that would have been eerily familiar to the Trump Administration if anyone there had ever actually studied constitutional law. During the Korean war, President Harry Truman sought federal control over the steel industry. Just as Trump did with border funding, Truman asked Congress first; when Congress refused, Truman declared that he had independent authority to take control, based on “national emergency” standards. Ruling against executive authority, the Supreme Court called out Truman for making an illogical argument: if he actually believed he had independent authority, why did he bother asking Congress first?

The similarity wasn’t lost on Judge Gilliam, who wasn’t about to endorse the actions of a president looking to “disrespect the whole legislative process and the constitutional division of authority between President and Congress.”

  1. Lack of planning on your part does not constitute an emergency on my part.

Trump’s main argument for border wall funding is based on presidential power to fund “national emergencies.” The entire concept of an “emergency” – both legally and logically – is that it requires circumstances for which advance planning was impossible. Nothing could be further from the truth with regard to Trump and his trumped-up border crisis. “Build a wall” was Trump’s battle cry even before he became president, and little has changed since then (unless you’re counting the edit from “Mexico pays” to “the Pentagon pays”).

Judge Gilliam just wasn’t buying what Trump was peddling; any “need” for a border wall was exactly the opposite of “unforeseen”:

Defendants’ argument that the need for the requested border barrier construction funding was “unforeseen” cannot logically be squared with the Administration’s multiple requests for funding for exactly that purpose dating back to at least early 2018.

The court’s opinion also included a spectacular smack-down in a footnote.  Trump’s argument — that the need for border-wall funding was “unforeseen,” because he thought Congress would simply appropriate the money – actually helps the plaintiffs’ side of this lawsuit.

If … the Administration expected, or hoped, that Congress would appropriate the funds to DHS directly, that highlights rather than mitigates the present problem with Defendants’ position.

  1. This is going to cause serious constitutional problems.

Although Judge Gilliam’s language is more complex than Schoolhouse Rock, his message isn’t far off. Congress is in charge of the federal budget, and the president is not. Judge Gilliam found that if the court were to “permit this massive redirection of funds” it would amount to an “unbounded authorization for [the president] to rewrite the federal budget, and “would pose serious problems under the Constitution’s separation of powers principles.”

In other words, Trump is attempting to step all over Congress’ turf, and he should really just stay in his own damn lane if we’re to avoid a constitutional disaster.

  1. You can’t just dress something in a uniform and call it “military.”

The law allowing a president to appropriate funds for “national emergencies” requires that funds be used for “military installations.” Despite all of Trump’s insistence about the necessity of a border wall, his attorneys didn’t even try to argue that the project constitutes a military need.

Judge Gilliam cited the statutory definition for the requirement – that the project is “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” The judge went on to note that Trump didn’t and couldn’t characterize a wall at the U.S.-Mexico border as any of those things.  A border wall isn’t on the list, and he sure as hell wasn’t about to include a border wall in the catch-all “other activity,” which was clearly meant to refer to actual military expenditures.

“The Court does not readily see how the U.S.-Mexico border could fit this bill,” snapped the judge.

Judge Gilliam predicted that the plaintiffs were likely to prove that the Trump Administration exceeded its statutory authority. While that ruling isn’t the final word on the matter, it’s not a great start for the president.

[image via Win McNamee/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Filed Under:

Follow Law&Crime:

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos