A federal appeals court ruled Friday that President Trump did not have the legal power to siphon money from the Pentagon to build his border wall, erecting another legal hurdle in the path of his most flamboyant campaign promise.
The 2-1 ruling by the 9th U.S. Circuit Court of Appeals comes just two days after Mr. Trump visited the wall in Arizona, signing his name to a plaque marking 200 miles of construction during his term.
In the new decision Judge Sidney R. Thomas, a Clinton appointee, said the wall is not a military project, so Mr. Trump couldn’t transfer $2.5 billion in military money over to the border project.
“The transfer of funds at issue here was unlawful,” Judge Thomas wrote, joined in his decision by Judge Kim McLane Wardlaw, another Clinton appointee.
Dissenting was Judge Daniel P. Collins, a Trump appointee, who said the money transfer was legal.
It’s not immediately clear what effect the ruling will have. The Supreme Court last year ruled Mr. Trump could continue spending the money on the wall while the court battles were proceeding.
Indeed, construction has continued even during the coronavirus pandemic, with the Army Corps of Engineers and Customs and Border Protection completing about five miles per week over the past few months.
Friday’s case turned on Congress’s power to control spending and how explicit it needs to be in laying out its wishes.
Wall opponents argue that Congress only approved $1.375 billion for the wall last year, so anything beyond is illegal. The president argues that Congress didn’t specifically block him from spending other money, and in fact allows transfers of money for some purposes such as defense construction, so the wall money shift is legal.
California Attorney General Xavier Becerra, one of those who sued to stop the wall, hailed the court’s ruling, saying it sends a signal to families struggling during coronavirus.
“They deserve to know that their hard-earned dollars are going where Congress intended — to benefit them and their communities,” he said. “We applaud the court for taking action to immediately halt Trump’s unlawful money grab.”
Mr. Becerra also has another lawsuit pending against a separate $3.8 billion transfer of money to border wall construction this year.