Trump’s diversion of billions for border wall faces first U.S. court test

By Tom Hals

(Reuters) – U.S. President Donald Trump’s national emergency declaration to divert more than $6 billion to build a wall on the border with Mexico faced its first court test on Friday, as a lawyer for the House of Representatives said Congress never approved the funding.

The hearing opened with Douglas Letter, on behalf of the House, telling U.S. District Court Judge Haywood Gilliam in Oakland, California, Trump does not have authority to use the money for a border wall.

“As everyone knows the executive branch cannot build this wall without Congress,” Letter said. “The president asked for $8.1 billion to build the wall and Congress said no to that. This money was clearly denied by Congress under immense pressure.”

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In February, Congress approved $1.37 billion for construction of “primary pedestrian fencing” along the border in southeast Texas, well short of Trump’s demand for $5.7 billion to build border walls in Arizona and New Mexico as well as Texas.

To obtain the additional money, Trump declared a national emergency and diverted $601 million from a Treasury forfeiture fund, $3.6 billion from military construction and $2.5 billion earmarked for Department of Defense counter narcotics programs.

The president has said the wall is needed to address a crisis of drugs and crime flowing across the border.

The Trump administration argues that the plaintiffs have not shown any injury caused by the funding decisions and that existing law gives it the leeway to redirect the money for such purposes as “an unforeseen military requirement” or a “law enforcement activity.”

Trump made the border wall a centerpiece of his 2016 election campaign, when he said Mexico would pay for its construction. That pledge went nowhere, and Trump also hit resistance in Congress even as apprehensions of migrants by border agents hit a decade high as of April.

The plaintiffs in Friday’s hearing include 20 states, the Sierra Club environmental group and the Southern Border Communities Coalition, which advocates for immigrants. They argued in court papers that the administration has violated the separation of power principle of the U.S. Constitution, among other claims.

The plaintiffs also said wall construction would harm the environment and the wildlife habitats of Gila monsters and the Mexican wolf, among other animals.

The diversion of Treasury forfeiture funds would undermine state law enforcement, they argued. New York state, for example, has used forfeiture funds to buy bullet-proof vests and naloxone, a drug that counters opioid overdoses.

Although it is not a plaintiff, the Democratic-controlled House of Representatives argued in support of the plaintiffs at the hearing. The House called the diversion of funds a “flagrant disregard for the bedrock principle” that Congress controls federal spending.

The hearing comes as the Trump administration has outlined proposals to beef up security along the southwest border and shift immigration policy to favor well-educated English speakers over a system that emphasizes uniting families.

(Reporting by Tom Hals in Wilmington, Delaware, Editing by Rosalba O’Brien and Tom Brown)