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By Sylvia Longmire
Columnist, In Homeland Security
For years, President Donald Trump has been extremely vocal about his desire to expand fencing along the US-Mexico border. His promise to “build the wall” was one of his signature campaign promises, and he has been obsessed with keeping that promise ever since. Congress denied his funding request for $5.7 billion to construct more border fencing, so he declared a national emergency in order to reallocate funding for this purpose. However, the judiciary has stepped in to halt these plans – at least temporarily.
White House Caught Off-Guard
On May 24, a federal judge in California issued a preliminary injunction barring the government from taking any action to construct a border wall into sectors using funds diverted from the Department of Defense (DoD), according to NBC News. This may have caught the White House by surprise, as construction on sections of fence was scheduled to begin as soon as May 25. According to the Associated Press, the judge’s order applies to two planned projects to add 51 miles of fence in two areas.
‘Congress’s Absolute Control’
In the ruling, U.S. District Judge Haywood S. Gilliam stated, “Congress’s ‘absolute’ control over federal expenditures — even when that control may frustrate the desires of the executive branch regarding initiatives interviews is important – is not a bug in our constitutional system. It is a feature of that system, and an essential one.” Gilliam added that the government’s position “would pose serious problems under the Constitution’s separation of powers principles.” In a statement, Dror Ladin, staff attorney with the ACLU’s National Security Project, told NBC news, “This order is a win for our system of checks and balances, the rule of law and order communities.”
Trump’s National Emergency Declaration
The use of the national emergency declaration by President Trump to secure border fence construction funding is highly controversial. It came about because of the longest government shutdown in American history, and arguably the most contentious standoff between the White House and Congress — mostly over Trump’s demand for money to build 234 miles of additional border barrier. He publicly acknowledged that he didn’t need to declare a national emergency, but it was the only way he could get money reallocated from other government departments in order to start construction. The White House request for $5.7 billion in border funding never specified where or how the money would be used.
More Legal Challenges Inevitable
According to the ACLU, the judge’s decision affected the first announced projects, which reportedly amounts to $1 billion diverted from military pay and pension accounts. The judge wrote that his order applied to two sectors identified as “Yuma Sector Project 1” and “El Paso Sector Project 1.” Although this order applies to only 51 miles of proposed fencing, legal challenges are either in the works or expected for the rest of Trump’s plans under the national emergency declaration.
‘Unforeseen Military Requirement’
A major part of the White House’s argument for the national emergency declaration (and subsequent funding) is that the need for expedited construction of border fencing was due to an “unforeseen military requirement.” This is likely associated with the record-setting influx of illegal immigrants from Central America arriving at the Southwest border in recent months. However, the judge pointed out that the White House has been requesting this money since at least early 2018, and been repeatedly denied. As such, the judge stated that the “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.”