Ninth Circuit Rules Against Trump’s Diversion of Military Construction Funds to Build his Border Wall

Ninth Circuit Rules Against Trump's Diversion of Military Construction Funds to Build his Border Wall

Yesterday, in Sierra Club v. Trump , the US Court of Appeals for the Ninth Circuit ruled that President Trump’s effort to divert military construction funds is illegal. This is the first appellate decision addressing the issue of whether Trump could use a national emergency declaration to divert funds to the border wall by using 10 USC Section 2808 , which, says that "In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act … that requires use of the armed forces," the Department of Defense will have the power to divert military construction funds "undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces." A previous Ninth Circuit decision ruled it is illegal for Trump to divert funds by using Section 8005 of the the 2019 Department of Defense Appropriations Act . The majority opinion, written by Chief Judge Sidney Thomas, relies on several obvious shortcomings in the administration’s position: Section 2808 allows the Secretary of Defense to undertake military construction projects in the event of a national emergency requiring the use of the armed forces, but the statute specifies that such projects must be "necessary to support such use of the armed forces." The district court’s analysis is persuasive on this issue, and we hold that border wall construction is not necessary to support the use of the armed forces with respect to […]

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