- The Washington Times - Friday, May 17, 2019

The administration brought its border emergency wall-building plans before a skeptical federal judge Friday, hoping to win court approval of President Trump’s ambitious and controversial plan to siphon billions of dollars from the Pentagon to the border.

On one side were Democrat-led states, environmental groups and even the House of Representatives, which all said when Congress approved just $1.375 billion for the border wall in February, that was the end of it. They said the president has no power to spend beyond that, or else he’s trampling on Congress’s constitutional power of the purse.

On the other side was James Burnham, the government’s lawyer, who said that while Congress only explicitly approved the $1.375 billion for the wall, it left other money lying around in other accounts, and gave the administration powers to shift it.

As long as lawmakers didn’t explicitly ban Mr. Trump from shifting it, he’s on solid ground, the lawyer said.

“If Congress wanted to restrict it, it needed to do so in a direct way,” Mr. Burnham said.



U.S. District Judge Haywood S. Gilliam Jr., an Obama appointee to the bench in northern California, didn’t issue a ruling. He asked for more briefing on some specific points.

But during a hearing Friday he said it sounded like the president was being shifty in asking for wall money and then, when he didn’t get it, turning around and tapping defense money meant to be moved only in cases of unforeseen needs.

“The [defense] authority is always a backstop?” he demanded. “The request can be made on behalf of DHS, the government can see if it’s accepted or not, and if it’s not accepted [defense money] is always available?”

“I sense some skepticism,” Mr. Burnham said as he encountered the legal turbulence.

The Democrat-led House of Representatives, meanwhile, cheered the judge on, saying what Mr. Trump did, if allowed to stand, would upend the balance of powers between the president and Congress.

“The Executive Branch cannot build this wall without Congress. This Congress of the United States is the only entity that can appropriate funds,” said Douglas Letter, the House’s lawyer, whom judge Gilliam granted time, even though the House is not one of the named parties.

“If it looks like an appropriation, if it swims like an appropriation, if it quacks like an appropriation, it’s an appropriation. There’s just no way of getting around it,” Mr. Letter said.

He and Mr. Burnham will go a second round next week in Washington, D.C., where the House is the chief party in a lawsuit against the administration over the wall.

Mr. Trump signed the spending bill earlier this year that Congress passed with the $1.375 billion for the wall, bringing to an end weeks of government shutdown showdowns.

But Mr. Trump immediately turned around and announced a national emergency, authorizing the Treasury Department to use $601 million from a forfeiture fund to send to Homeland Security for wall-building; to use $2.5 billion from a Pentagon drug interdiction fund for walls; and to siphon $3.6 billion from military construction money to go toward border barriers.

The administration points to portions of spending law that allow the Defense Department secretary to shift money around for unforeseen purposes — so-called reprogramming, or transfer, authority.

Congress tried to cancel the national emergency, approving a bill to do so. But Mr. Trump vetoed it, and his veto was easily sustained.

Now, House Democrats are writing the 2020 spending bills and have included new language restricting transfers in the future, and attempting to claw back the president’s old transfer.

Mr. Burnham said the fact that the House is now writing that language is proof that they could have done that before — and the fact that they didn’t, and actually gave the administration wide latitude in the old bills to move money around, justifies what Mr. Trump did.

“We’re here telling you there’s a statute Congress just passed that gives DOD the authority to do what it’s doing,” the lawyer said.

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