Trump Administration Use of DoD Budget for Border Wall Unlawful, Appeals Court Rules

Published by Matt Fishman on

The Trump Administration’s transfer of $2.5 billion from the Department of Defense’s budget to fund construction of a wall on the southern border of the United States in California, New Mexico, and Arizona has been declared unlawful by the U.S. Court of Appeals for the Ninth Circuit.

The court held that the Executive Branch “lacked independent constitutional authority to authorize the transfer of funds”, noting that “the U.S. Constitution exclusively grants the power of the purse to Congress”.

The Department of Defense’s 2019 Budget allocated up to $4 billion of funds that could be transferred, provided that the transfer be used “for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress”. The Secretary of Defense is furthermore required to “notify the Congress promptly of all transfers”. While formal congressional approval of transfers is not required, the Court of Appeals says “historically DoD had adhered to a “gentleman’s agreement,” by which it sought approval from the relevant congressional committees before transferring the funds”. In this instance, the Secretary of Defense “did not request congressional approval before authorizing the transfer”, and the House Committee on Armed Services and the House Committee on Appropriations “both wrote letters to DoD formally disapproving of the [transfer]”.