The U.S. Justice Dept. argued in a filing to the federal appellate court in San Francisco earlier this month—in a lawsuit that challenges the shift of billions in military construction funds for border-wall building—that the president has authority under law to divert money during a national emergency. Lawyers for states argued that the executive branch cannot defy congressional intent, noting that Congress intentionally limited wall funding in the current U.S. budget.
At issue is Section 2808 of military law, a rarely used provision that allows military construction funds to be reallocated to critical military building needs during a declared emergency. President Donald Trump issued such a declaration last year to divert $6.7 billion from military construction projects and another $3.6 billion in the fiscal 2020 budget.
For the second year in a row, a large group of states challenged the move. On March 3, 19 states filed a new complaint, with three joining 16 that filed a similar complaint in early 2019. The two suits were consolidated in U.S. district court in San Francisco. The 19 states are California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Wisconsin. They were granted an injunction against the most recent diversion of funds, but the San Francisco appeals court could lift the ban. Both suits claim the administration has no authority to divert the funds and that Congress has the sole authority to appropriate federal money.
States argue that diverting funds from military infrastructure projects and from National Guard units damage state economies. California expects $4 billion in military construction projects to be diverted, and nearly $1 billion from its Guard units, which would be used to respond to natural disasters such as fires, say the complaints. “Military construction projects … remain at risk of being defunded,” the California Attorney General’s office said. Maryland stands to lose $614 million in construction projects, with $1 billion in losses expected in other states. Eight states listed a specific amount they expect to lose in construction funds.
The U.S. Supreme Court in December temporarily allowed wall building with last year’s diverted military while the suits are appealed. Contractors in February began blasting parts of Organ Pipe National Monument in Arizona, considered sacred lands to the Tohono O’odham Nation. Rep. Ken Calvert (R-Calif.) warned at a House Appropriations subcommittee hearing that “this kind of reprogramming has to end,” say press reports. But on March 13, the U.S. Dept. of Homeland Security waived for wall building U.S. environmental, historic preservation and Native American protection laws, following the waiver last month of key procurement regulations.