A federal appeals court has ruled that President Trump can’t take money from the military and divert it to the border wall. We hope the Supreme Court agrees. A panel of the 9th U.S. Circuit Court of Appeals ruled Friday that the diversion of funds violates the Constitution, which gives Congress sole authority to allocate funds.
“The Executive Branch lacked independent constitutional authority to authorize the transfer of funds,” Chief Circuit Judge Sidney R. Thomas wrote for the 2-1 majority. “These funds were appropriated for other purposes, and the transfer amounted to ‘drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause.’ Therefore, the transfer of funds here was unlawful.”
The Constitution, Thomas wrote, “exclusively grants the power of the purse to Congress.”
Building a solid wall along the entire length of the U.S.-Mexican border has been one of the president’s primary goals, and a major plank of his 2016 candidacy.
However, Congress has allocated $5 billion for that purpose, but it is a fraction of the expected cost. To make up the difference, Trump has taken another $10 billion that was distributed for various military projects.
We have long held that such reallocations are tantamount to applying a line-item budget veto after the fact: it cancels projects that Congress had approved (and the president had signed), and applies it to budget items that Congress either rejected or never considered.
The Supreme Court has denied the president line-item veto power, most recently in 1998, also citing the Appropriations Clause.
Trump’s removal of funds from approved projects also violates the Impoundment Control Act of 1974, which states that presidents can stop allocations only with congressional approval.
But will the Supreme Court follow its own precedent and uphold the circuit court’s ruling? It’s hard to know; last year the court voided injunctions that had prevented the use of the reallocated funds until the matter was resolved; allowing the president to use the money, even before final rulings had been issued, suggests that the justices might now be willing to accept those reallocations, even if they go against 200 years of rulings that restricted such presidential powers.
Few people question the need for strong border security; even those opposed to big government agree that one of government’s primary, and valid, functions is to provide for national security.
Partial walls and fences that have been erected along the border since Operation Hold the Line was implemented in the El Paso area in 1993.
Before her appointment as attorney general, and consequent defense of border fencing, former Arizona Gov. Janet Napolitano famously said, “Show me a 50foot wall and I’ll show you a 51-foot ladder.”
Their futility over the years has led many to conclude that there are more effective ways to strengthen our borders using technology and better utilization of resources including personnel.
Will the Supreme Court take up the issue or let last week’s ruling stand? We expect the former, and hope the court follows precedent.
Most importantly, we hope the issue is resolved soon, and isn’t allowed once again to become a point of contention that muddles the fall elections.