On Wednesday, a federal appellate court lifted an injunction by a lower court which had prevented $3.6 billion in military funds from being used for the construction of a barrier on the U.S.-Mexico border.
The 5th U.S. Circuit Court of Appeals, based in New Orleans, ruled 2-1 to lift the injunction put in place in December by El Paso-based District Court Judge David Briones, a Clinton appointee.
The court’s two Republican appointees ruled that the plaintiffs in the suit — the city of El Paso and the Border Network for Human Rights — lacked the standing to challenge the administration’s use of the funds as an encroachment on Congress’s appropriation powers.
“The Supreme Court recently stayed a similar injunction from our sister circuit,” wrote 5th Circuit Judges Edith Jones, a Reagan appointee, and Andrew Oldham, who was appointed by President Trump, in the brief ruling.
The Supreme Court in July lifted an injunction by a different lower court blocking military funds for border-wall construction.
“Although I agree with my colleagues that this matter presents ‘a substantial case on the merits’ and involves a ‘serious legal question…’ I am unable to agree…that the government presently has shown either a likelihood of success on the merits or irreparable harm in the absence of a stay,” wrote Judge Stephen Higginson, an Obama appointee, in his dissent.
The plaintiffs’ attorneys expressed disappointment at the ruling but did not disclose whether they would file an appeal.
“A court has already determined that the government can’t lawfully use military construction funds to build Trump’s border wall,” said Kristy Parker of the advocacy group Protect Democracy. “It’s unfortunate that the people of El Paso will continue to suffer harm while the government appeals, but we’re confident that we’ll prevail again in this next stage of litigation.”
President Trump has made the construction of a border wall between the U.S. and Mexico a central campaign promise. In December 2018 House Democrats refused to include funding for the wall in the federal budget, which led to the longest government shutdown in U.S. history.
Trump eventually relented and signed the budget without border-wall funding, opting instead to declare a state of emergency to divert funds from the Pentagon to construct the wall. The tactic has been challenged in court in numerous instances.