President Donald Trump can redirect $3.6 billion in U.S. military funds to build a wall along the Mexican border because Texas groups that challenged the decision have no legal right to complain, a federal appeals court said.

The ruling late Friday from the appeals court in New Orleans overturns a decision by a judge in El Paso, Texas, who said Trump broke the law by declaring a national emergency to redirect military money to the wall project after Congress specifically refused to pay for it.

A three-judge panel, in a split decision, ruled that El Paso County and a group of border-community activists didn’t prove they’ve been sufficiently harmed by Trump’s wall to challenge the funding shift.

The local community may have lost tourism and economic activity because of Trump’s rhetoric alleging the area is dangerous and crime-ridden because of an “invasion” of undocumented immigrants but that harm can’t be tied directly to the Pentagon’s funding shift, the majority ruled.

“A direct link, such as the loss of a specific tax revenue, is necessary to demonstrate standing,” wrote the majority, both of whom appointed by President George W. Bush. “Holding otherwise might spark a wave of unwarranted litigation against the federal government.”

Opponents of the wall, including a bipartisan group of constitutional scholars and former government officials, claim Trump’s funding shift is an abuse of executive power that usurps Congress’s authority to control federal spending. Lawmakers refused to give Trump more than $1.37 billion of the $5.7 billion he sought for the border wall, leading to a standoff that shut down the government for 35 days in early 2019.

U.S. District Judge James Dennis, appointed by President Bill Clinton, dissented, writing that the region’s economic loss of military spending earmarked for nearby Fort Bliss — the second-largest domestic U.S. Army base — and damage to El Paso’s reputation as a safe place for tourists and investors provided sufficient grounds for local officials to sue.

Dennis also chided his colleagues for letting Trump make an end run around Congress’s “power of the purse” and for setting the bar too high in defining conditions under which communities wronged by federal actions can legally sue.

The majority acknowledged it reached the opposite decision than did the San Francisco appellate court, which blocked the Pentagon from shifting a different pot of military funds to border wall construction. The U.S. Supreme Court has agreed to hear the administration’s appeal in that related case, and the Texas border wall opponents are expected to also appeal to the high court.

The case is El Paso County, Texas, et al v Donald Trump et al, 19-51144, U.S. Court of Appeals for the Fifth Circuit (New Orleans)

 

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