On October 11, Judge David Briones of the federal district court in Texas struck a blow for the rule of law, holding that the President’s plan to fund his border wall with money Congress appropriated for other purposes is illegal. 

The judge began by rejecting the government’s argument that neither El Paso County nor the Border Network for Human Rights had standing to challenge the President’s actions. Declaring a “national emergency” on the southern border (to say nothing about his remarks about El Paso itself), the President was saying that El Paso was a dangerous place that people should avoid–a clear injury to El Paso’s reputation, and one that forced County officials to spend considerable time and resources countering this message. (And also untrue, as El Paso is actually one of the safest cities in the U.S.)

What’s more, by taking $20 million that had been slated for an infrastructure project at Fort Bliss (the County’s largest employer) and spending it instead on border wall construction elsewhere, the President had inflicted an even more direct economic injury on the County. Likewise, the President’s “national emergency” declaration forced the Border Network for Human Rights to shift funding and other resources into countering the President’s actions and repairing the damage they did to border communities.  

Getting to the actual claims, the Court held that in the Consolidated Appropriations Act of 2019 (CAA), Congress intended to limit border wall construction to the $1.375 billion it appropriated for border wall construction in one specific sector.  Moreover, unless otherwise authorized, the CAA expressly barred additional spending on projects where Congress appropriated less money than the President had asked for. Because the President requested $5.7 billion for wall construction–but Congress only appropriated $1.375 billion for it–any spending in excess of the $1.375 billion was illegal.  

By limiting his decision to this one claim, the Court did not need to reach any of the plaintiffs’ other claims, such as that the President’s declaration violated the National Emergency Act (NEA), the NEA itself was unconstitutional, that the President’s budgetary sleight-of-hand violated the Constitution’s Appropriations Clause, etc. 

Next stop: the U.S. Court of Appeals for the Fifth Circuit, presumably followed by a trip to the Supreme Court.  We will keep you posted as this story develops.