A federal district judge in Texas was absolutely right this week to issue an injunction blocking President Trump from funneling $3.6 billion in military construction funds toward building his vaunted wall along the Mexican border.
Judge David Briones of the U.S. District Court for the Western District of Texas ruled that Trump does not have the authority to redirect the money from the purposes for which it was originally appropriated by law. As I have argued all year, Trump was wrong to ignore the intent of the appropriation, wrong to declare border crossings an “emergency,” and nonsensical to say that he is using “emergency” powers to erect a wall that will take years to build. The wall does not serve a military function, and the funds have not been officially “authorized” by law for that purpose. That’s why Judge Briones ruled it was an “unlawful deferral of resources.”
Those are some of the legal arguments against the use of those military funds for the wall. On policy grounds, it also is a bad idea, detrimental to the nation’s defenses, to divert the monies from 127 separate projects that are almost uniformly necessary for the training, health, and welfare of American military personnel.
As much as some of us support Trump’s desire to build a border wall, all of us should worry more about a wrongful accretion of power by the president against the careful design of the Constitution. The president is not a king and may not act as a dictator.
The American system’s greatest safeguard against tyranny lies not in the paper protections of the Bill of Rights, important as they are, but in the structural design of our government that separates and partially blends powers and imposes restrictions thereon. By trying to use “emergency powers,” which are by design to be used rarely and under strict limits, in ways far beyond the original understanding and legal definition of “emergency,” Trump would blow a hole in that constitutional design.
The administration almost surely will appeal Judge Briones’s decision, but it should not bother. Instead, it should make a public case and work with Congress to appropriate more funds, through normal processes, to protect our southern border.
