Fifth Circuit Lifts Block on $3.6 Billion for Border Wall

By Travis Bubenik, Courthouse News

The Fifth Circuit on Wednesday lifted a lower court’s order that blocked the Trump administration from using $3.6 billion in military construction money for a wall on the Mexican border.

In a 2-1 ruling, the Fifth Circuit agreed to temporarily stay a nationwide junction against use of the funds that was handed down in December, while the government’s appeal of that decision plays out.

On Wednesday the three-judge panel noted that the U.S. Supreme Court previously lifted a similar block on the plan to use a separate pot of $2.5 billion from military counter-drug programs for the wall.

Government contractors erect a section of Pentagon-funded border wall along the Colorado River in Yuma, Ariz., on Sept. 10, 2019. The White House says construction of the U.S.-Mexico border wall will move forward after a federal appeals court freed up construction money with a 2-1 ruling on Wednesday. (Matt York / AP Photo)

The panel found a “substantial likelihood” that plaintiffs El Paso County and the Border Network for Human Rights lack standing to sue the administration.

Two Republican-appointed judges voted to lift the injunction (Edith Jones, appointed by Ronald Reagan, and Andy Oldham, a Trump appointee), while the panel’s lone Democratic appointee, Judge Stephen Higginson, an Obama appointee, dissented.

An advocacy organization backing the plaintiffs called the Wednesday ruling “unfortunate.”

“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,” Kristy Parker, an attorney with Protect Democracy, said in a statement.

President Trump praised the Fifth Circuit ruling on Twitter early Thursday, saying the decision gives the government the “go ahead to build one of the largest sections of the desperately needed Southern Border Wall.”

The Fifth Circuit on Wednesday also denied the plaintiffs’ requests to expedite the appeals process and to set a March 2020 deadline for oral arguments.

El Paso County and the Border Network for Human Rights have argued in court that the president’s declaration of a national emergency at the southern border directly harmed the El Paso region’s reputation and economy.

Plaintiffs’ attorneys also have argued that the government’s plan to divert at least $20 million away from El Paso’s Fort Bliss Army Base for the wall would be a blow to the “lifeblood of the El Paso economy.”

Trump administration lawyers have balked at those suggestions, claiming the El Paso area would not be directly harmed because the closest segments of wall that would be built under the military funding plan would be west of the city, in New Mexico.

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