- The Washington Times - Saturday, May 25, 2019

President Trump said this weekend that he will try to speed an appeal after a federal judge late Friday halted his plans to construct border wall by declaring a national emergency and pulling the money from the Pentagon.

Mr. Trump, writing on Twitter from Japan, where he was traveling, lashed out at Judge Haywood Gilliam, an Obama appointee to the federal court for Northern California, saying he was enabling criminals by ruling against the president’s most prominent campaign promise.

Judge Gilliam said the president and his team overstepped their powers by trying to rearrange money within the Pentagon to make it usable for border wall construction, after Congress had a thorough debate and approved far less than the president wanted.

He issued a preliminary injunction finding that Congress is likely to prevail as the case proceeds, and he blocked the government from carrying out wall-building Mr. Trump said was already underway near El Paso, Texas, and Yuma, Arizona.

“Congress has repeatedly rejected legislation that would have funded substantially broader border barrier construction,” the judge wrote.

The ruling is a substantial blow to Mr. Trump, who orchestrated a government shutdown to try to get his border wall built, then signed a bill to reopen government without getting the wall money he sought.

He had been counting on his emergency powers, which he said allowed him to tap the Pentagon’s money to build border barriers. Indeed, one section of law explicitly authorized the Defense Department to build barriers in drug corridors.

But the pot of money for that construction was limited, and the Defense Department had to siphon money from other accounts to fill the drug corridor fund — something Judge Gilliam said isn’t allowed in this case.

The Justice Department had argued that Congress didn’t explicitly deny the administration the ability to use the money, and in fact included reprogramming abilities in the laws allowing the administration to shift substantial amounts of money within the Defense Department.

Indeed, that’s exactly what House Democrats have done in their new round of spending bills for next year, moving to explicitly prevent the president from a repeat of this year’s emergency declaration money-shifting.

But Judge Gilliam said that’s not necessary. He said the Constitution doesn’t require Congress to foresee every circumstance in which the president might make mischief with money. Instead, the president is bound only to spend on exactly what Congress authorizes.

“Defendants’ reading of these provisions, if accepted, would pose serious problems under the Constitution’s separation of powers principles,” he concluded.

Mr. Trump didn’t comment on Judge Gilliam’s legal reasoning, but on Twitter said he was hurting the country’s safety.

“Another activist Obama appointed judge has just ruled against us on a section of the Southern Wall that is already under construction. This is a ruling against Border Security and in favor of crime, drugs and human trafficking. We are asking for an expedited appeal!”

Mr. Trump initially requests about $1.6 billion in border wall money for 2019, then upped that request to $5 billion, and eventually $5.7 billion.

Congress, after an election, one government shutdown and a change in power in the House, approved $1.375 billion.

Mr. Trump signed that legislation in February — then immediately declared a national emergency and issued a memo authorizing the Defense Department to tap $2.5 billion in drug interdiction accounts and another $3.6 billion in military construction funds to build the wall. He also authorized use of $601 million from a Treasury Department forfeiture fund.

Under the law, the drug interdiction money can be used to build walls in drug corridors, but the fund didn’t have $2.5 billion, so the Defense Department said it would reprogram money from elsewhere to fill out those accounts.

It authorized $1 billion in transfers. That’s the money Judge Gilliam halted.

He did not rule on the government’s plans to tap the $3.6 billion in emergency declaration money, saying that issue is not yet ripe. But given the tenor and reasoning in Friday’s opinion, it’s difficult to imagine Judge Gilliam would find use of that money for a border wall legal at this point.

Judge Gilliam is one of several courts hearing challenges to Mr. Trump’s emergency declaration. Cases in Texas and Washington, D.C., are still proceeding.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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