Attorney General Becerra Files Motion to Protect $3.6 Billion in Military Construction Funds from Being Diverted for Rejected Border Wall

SACRAMENTO – California Attorney General Xavier Becerra, leading a multistate coalition, filed a motion for partial summary judgment to block the Trump Administration from unilaterally and unlawfully diverting $3.6 billion in military construction funds toward construction of a border wall. The funds in question were appropriated by Congress for specific military construction projects, not a border wall. Congress has rejected multiple attempts to fund the border wall through budget appropriations, and has twice passed resolutions – in March 2019 and again in September 2019 – terminating President Trump’s false national emergency declaration. The states ask the court to enjoin the Trump Administration from diverting this funding on the basis that doing so is unlawful and unconstitutional and would cause the states irreparable harm by: damaging the environments of California and New Mexico where the border barriers would be built; eliminating over $500 million for military construction projects within the states’ jurisdictions resulting in the loss of thousands of jobs and millions of dollars of tax revenue; and increasing risks to the health and safety of both military personnel and surrounding communities.

“President Trump’s power is not unlimited,” said Attorney General Becerra. “Congress, which holds the power of the purse, has repeatedly rejected the President’s proposals to fund a border wall. President Trump treats the rule of law with utter contempt in order to advance thoughtless and obnoxious campaign promises.”

President Trump is unlawfully attempting to divert a total of $3.6 billion from over 120 military construction projects to build 11 sections of border fencing, including seven in California and New Mexico located on federal, state, and private lands. On September 3, 2019, the Secretary of Defense identified half of the funds, $1.8 billion, to divert from 60 domestic military construction projects. Specifically at risk in California are $8 million for the construction of a flight simulator facility used to train military personnel on aerial firefighting and rescue operations.

The states further assert that the Trump Administration is:

• Violating the U.S. Constitution’s separation of power doctrine and the Appropriations and Presentment Clauses. Congress has the “power of the purse”, not the President. Congress refused to appropriate this funding for a border barrier and instead limited the appropriation to $1.375 billion for fencing in a specified area. President Trump exceeds his authority in bucking the will and role of Congress;
• Exceeding its lawful authority under 10 U.S.C. section 2808 to construct a border barrier across vast swaths of the U.S.-Mexico border, as it fails to meet the conditions imposed by Congress to undertake military construction projects in a national emergency;
• Violating the Administrative Procedure Act’s prohibition on arbitrary and capricious agency action by failing to address any of the harms to public health and safety arising from the defunding of over 120 military construction projects, including the elimination of a project that would have enabled the California Air National Guard to provide its flight crews with enhanced aerial firefighting training;
• Failing to meet the required environmental review by the National Environmental Policy Act, which would harm California and New Mexico’s water and air quality, wildlife, land, environmental resources, and would harm public health.

Joining Attorney General Becerra in filing the motion are the attorneys general of Colorado, Hawaii, Maryland, New Mexico, New York, Oregon, Virginia, and Wisconsin.

A copy of the motion and other supporting documents are attached to the electronic version of this release here.