FederalImmigration & BorderStatewide NewsEl Paso Judge Blocks Trump from Diverting Funds to Border Wall

The legitimacy of so-called nationwide injunctions issued from lower court judges is an ongoing debate in legal circles.
December 11, 2019
On Tuesday, a U.S. federal judge in El Paso issued a nationwide injunction to block President Trump from using $3.6 billion in diverted military funds to build a wall along the U.S.-Mexico border.

U.S. District Court Judge David Briones, a Clinton appointee, ruled in favor of El Paso County and Border Network for Human Rights who filed a lawsuit arguing that the president acted unlawfully by declaring a national emergency for border wall construction and that he violated the law by “limiting funding for barriers at the United States-Mexico border.” 

Additionally, the plaintiffs contend that economic and reputational harm will be incurred by the El Paso region, which is home to Fort Bliss Army base, and local community if military construction funds are used to build the border wall. 

In October, Judge Briones previously ruled in favor of El Paso County and Border Network for Human Rights when he found the president’s need for more than $6 billion for border wall construction, after Congress had already allocated $1.375 billion, to be unlawful. 

Despite blocking the Trump administration’s plans to use $3.6 billion in Department of Defense (DOD) funds for border wall construction, Judge Briones did not grant the plaintiffs’ request to ban the use of military funds originally designated for counter-narcotics programs or military construction projects for wall construction.

The Texan Tumbler

In July, the Trump administration won a victory in their fight for the border wall after the Supreme Court ruled that $2.5 billion from a Pentagon counter-narcotics fund could be used for border wall construction. This came after a U.S. district judge in California moved to block the use of the counter-drug funds in June. 

The Supreme Court ruled that the $2.5 billion in the counter-narcotics funding could be used while litigation proceedings continue regarding the June case. 

The injunction issued on Tuesday will only serve to prohibit the use of DOD funds originally meant for military construction activities and will not affect the $2.5 billion from counter-narcotics funds.

In legal circles, there is a robust debate about the constitutionality of nationwide injunctions from lower courts and whether or not courts have the authority to legally bind others not before their courts to their rulings. 

According to Josh Blackman, an associate professor of law at South Texas College of Law in Houston, who specializes in constitutional law among other topics, there is some question as to their legitimacy. 

“Congress has created some ways to accomplish this goal, such as class actions. But there is no specific rule that authorizes nationwide, or what are known as non-party injunctions,” Blackman stated.

Officials in the Trump administration and other opponents of the orders have argued against the validity of nationwide injunctions, viewing them as a practice that side-steps legal processes by allowing one court’s decision to apply to many instead of letting independent judges make their own decisions.

Supreme Court Justice Clarence Thomas, in his concurring opinion with the majority in Trump v. Hawaii in 2018, stated: “These injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently.”

Thomas further elaborated that these nationwide injunctions, “Appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role.”

However, if the Trump administration chooses to ignore a national injunction, like the one issued on Tuesday, Blackman says, “They could be held in contempt of court; that means paying a prohibitive fine or even arrest.”

“I think that outcome is likely. Today, both Congress and the executive branch accept the power of the courts to issue binding judgments; losers can only appeal,” Blackman continued. 

Tuesday’s issuance could be a setback for President Trump, who previously stated his hopes of building at least 450 miles of border wall by the next presidential election in November 2020.

In a press conference on Monday, acting U.S. Customs and Border Protection (CBP) Commissioner Mark Morgan announced that to date, 90 miles of border wall have been completed and more than 148 miles are currently under construction. 


Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.

Get “KB's Hot Take”

A free bi-weekly commentary on current events by Konni Burton.

Sarah McConnell, Reporter for The Texan

Sarah McConnell

Sarah McConnell is a reporter for The Texan. Previously, she worked as a Cyber Security Consultant after serving as a Pathways Intern at the Department of Homeland Security – Citizenship and Immigration Services. She received her Bachelor’s degree in Political Science from Texas A&M as well as her Master of Public Service and Administration degree from the Bush School of Government and Public Service at Texas A&M. In her free time, Sarah is an avid runner, jazz enthusiast, and lover of all things culinary.