Obama-Appointed Judge Blocks Trump's Wall: What's the Correct Ruling?

In the first ruling on the wall, a judge says Trump's plans to divert funds for wall exceeded its executive authority.

The Wall Street Journal reports Federal Judge Blocks Trump’s Border-Wall Plans.

U.S. District Judge Haywood Gilliam in Oakland, Calif., said President Trump’s plans to divert federal money to build a border wall, absent appropriations from Congress, exceeded the executive’s authority.

“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,” Judge Gilliam, an Obama appointee, wrote in a 56-page decision. “It is a feature of that system, and an essential one.”

The judge issued a preliminary injunction that blocks the administration from proceeding on projects slated for immediate construction.

If and when the Trump administration announces additional projects at the border, the challengers in the case—environmentalists and southern border community organizations—can come back to court and seek an injunction against those as well, the judge said.

The ruling is the first of its kind on the issue. Several other border-wall cases are pending around the country, including one in Washington, D.C., where the Democratic-controlled House of Representatives is suing the Trump administration.

Judge Gilliam’s ruling twice quoted a Fox News interview with acting White House Chief of Staff Mick Mulvaney, who said the president would build the wall “with or without Congress.”

“The 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 judge wrote.

Additional Reasons

Fox News notes additional reasons Trump's Border Wall Construction Plans Blocked.

“Defendants’ argument that the need for the requested border barrier construction funding was ‘unforeseen’ cannot logically be squared with the Administration’s multiple requests for funding for exactly that purpose dating back to at least early 2018,” the Obama nominee wrote.

“This order is a win for our system of checks and balances, the rule of law, and border communities,” Dror Ladin, an attorney for the American Civil Liberties Union's National Security Project, said in a statement. “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.”

With or Without Congress

Trump said all along that Democrat-appointed judges would attempt to block his wall but that he would be prevail in the Supreme Court.

I recall even some Republican Senators objected to such an approach out of fear that a Democrat president to do the same thing to fund global warming projects.

I am not a lawyer but it certainly appears Trump weakened his own case by blabbing "with or without Congress."

Court Structure

If Trump appeals the case, the US Court Structure comes into play.

Appeals Process

Most cases start at the district court level. Once a district court judge issues a ruling, or a jury issues a verdict glossary for 'verdict', a case can proceed to the circuit court level, or even all the way up to the Supreme Court. However, cases can move down the structure as well. If a higher court overturns a decision of a lower court, the higher court will usually remand glossary for 'remand' the case to a lower court. A complex case may go back and forth among the different levels one or more times.

After the circuit court issued its decision on the appeal, the case could go in a number of directions. The circuit court could remand the case back to the district court for further consideration. One of the parties could request a rehearing of the case by the circuit court as a whole -- what is referred to as an "en banc" panel of all the judges appointed to that circuit court. One of the parties could also appeal directly to the Supreme Court by requesting certiorari.

If four Supreme Court justices chose to issue a writ of certiorari, the Court would then issue a decision on the case. The Court could then remand the case back to either the district court or the circuit court, depending on its decision.

What's the Correct Ruling?

Whether or not one agrees with the wall is irrelevant. Whether or not Trump has authority to build the wall is the item in question.

Trump will certainly appeal.

If the Court of Appeals sides with the District Court, It's not clear if the Supreme Court would even take the case.

The reasons provided by Judge Gilliam seem solid to me.

Trump says the wall was an emergency. If so, why did Trump try for years to get funding?

Again, this has nothing to do with how one feels about the wall, but rather about authority to build the wall. Congress is supposed to allocate funds, not the executive branch.

Another Theory

Finally, please consider the possibility that Trump knows full well what he did was wrong and his decision would be blocked at the Supreme Court if not sooner.

Under this 4-D thinking theory, Trump simply wanted a hot campaign issue.

While, possible, the simpler explanation is this is just part of the Trump playground bully bluster in which he just acted without much thought process at all.

Mike "Mish" Shedlock

Comments (41)
No. 1-25

The Commander in Chief has Constitutional authority to divert military appropriations to defend against a border invasion.


If the 1.2 million illegals all arrived January 1st each year, having been escorted across Mexico from it's southern border by the Mexican army, our minds would clear and we'd know what to do. As it is, we're being slow-boiled like the proverbial frog, invaded and made fools of by Beltway fools elected to run the country.

Speaking of the rule of law, let's just try enforcing E-Verify for a few months, perp-walking repeat offenders hiring without using it and see if we then need more than a barbed wire fence at the border.


In my opinion, the ruling is correct. While I favor a wall, the Constitution is clear, spending originates in the legislative branch. Now, a complicating factor that I haven't seen discussed is that, I believe, Congress specifically authorized the President to make expenditures without specific authorization in cases of an unanticipated emergency. While there is an emergency, it can't be called unanticipated. Congress was aware of it, and deliberately refused to allow anything to be done about it.

My expectation is that this ruling will be upheld, even in the Supreme Court, and the decision may even be unanimous. In theory, at least, Liberal Justices have at times created new readings where they feel like it, whereas Conservative justices tend to be strict constructionists, reading the Constitution as written, and following accordingly. I doubt that Liberal Justices will want to use this issue to increase Presidential power, and I doubt that Conservative Justices will stray from what the Constitution says.

In the end I have to think that the President's legal advisors told him in advance that this wasn't going to fly. Therefore, I share your opinion that this was nothing more than a campaign stunt.


Maybe we need to investigate where every dime appropriated by congress was actually spent.


I wonder how many times the Federal Court system has intervened in a military/pentagon decision?