A federal judge on Friday temporarily blocked part of President Donald Trump's efforts to use money intended for military use to instead fund construction of a wall along the nation's southern border with Mexico. But this ruling was far from being the final word on the matter, with Trump saying Saturday he intends to appeal the decision.
U.S. District Court Judge Haywood Gilliam Jr. granted a preliminary injunction (see full 56-page document at the bottom of this story) Friday evening temporarily blocking the Trump administration from using money to build the wall that Congress did not appropriate for that purpose.
"The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States," wrote Gilliam. "Instead, this case presents strictly legal questions regarding whether the proposed plan for funding border barrier construction exceeds the Executive Branch's lawful authority under the Constitution and a number of statutes duly enacted by Congress."
The judge concluded that "Congress's 'absolute' control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one."
He wrote that the Trump administration's "position that when Congress declines the Executive's request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds "without Congress" does not square with fundamental separation of powers principles dating back to the earliest days of our Republic."
The injunction currently only impacts about $1 billion in funding that the Department of Defense had taken from Army personnel funds and shifted to the Department of Homeland Security. Additionally the injunction only involves contruction projects in the Yuma Sector in Arizona and the El Paso Sector in western Texas.
The injunction does not involve the additional billions of dollars Trump sought from the Pentagon when he issued an emergency declaration in February. Those funds are slated to be taken from military construction projects, but no money has yet to be transferred for border wall construction. Gilliam will rule on this funding matter at a later date.
Trump declared the national emergency after he ended a 35-day partial government shutdown — the longest in U.S. history — without receiving the billions in wall funding he'd requested from Congress. Lawmakers did, however, provide the president with $1.571 billion for border fencing in specific areas, but under the condition that any new fencing use designs already in place in 2017, thus preventing Trump from using the money to build the wall as he had long described it.
In a footnote in Friday's ruling, Gilliam noted that this $1.571 billion has thus far only been used to build "1.7 miles of fencing."
"This representation tends to undermine Defendants' claim that irreparable harm will result if the funds at issue on this motion are not deployed immediately," wrote Gilliam.
So what happens now?
Though Judge Gilliam set a June 5 date for all parties to meet and "discuss a plan for expeditiously resolving this matter on the merits, whether through a bench trial, cross-motions for summary judgment, or other means," it is highly unlikely this dispute is headed toward a trial or settlement in the near future.
Rather, the matter is in all likelihood destined to be appealed by the Justice Department, particularly since it involves a District Court judge declaring what is effectively a nationwide injunction.
In fact, President Trump tweeted Saturday afternoon during his visit to Japan that he intends to appeal the ruling.
"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!" wrote the president.
While the Justice Department is not commenting on when or if it plans to file an appeal, Attorney General William Barr has made it clear — as recently as this week — that he opposes judges granting far-reaching injunctions.
Nationwide injunctions, said Barr on Tuesday at the American Law Institute, "have frustrated presidential policy for most of the President's term with no clear end in sight." He also accused judges granting these injunctions of "inject[ing] the courts into the political process."
Given Barr's and the administration's attitude toward what they view as judicial overreach, there is little doubt that Gilliam's injunction will be appealed to the Ninth Circuit, a court that Trump has previously publicly derided for ruling against him.
Even if the DOJ is successful at the appellate level, the organizations behind the underlying lawsuit — the American Civil Liberties Union and the Sierra Club — have historically shown little reservation about taking their disputes to the U.S. Supreme Court.
Neither organization has yet to respond directly to Newsweek's questions of how far they are willing to fight this particular battle.
Beyond the appeal, there are still legal matters to be resolved if and when the Trump administration attempts to use its emergency authority to shift additional Pentagon funds around for the purpose of building the wall.
In an emailed statement, Dror Ladin, staff attorney with the ACLU's National Security Project, did note: "The court blocked all the wall projects currently slated for immediate construction. If the administration begins illegally diverting additional military funds, we'll be back in court to block that as well."
And, again, if an injunction is granted in that matter, there will be appeals, and possibly appeals of appeals until the Supreme Court decides whether or not it wants to get involved.
This story has been updated to include statement from President Trump that he plans to appeal Gilliam's ruling.
Below is the full injunction granted Friday by Judge Gilliam:
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