Government contractors erect a section of Pentagon-funded border wall along the Colorado River, Sept. 1, 2019 in Yuma, Ariz. The 30-foot high wall replaces a five-mile section of Normandy barrier and post-n-beam fencing along the the International border that separates Mexico and the United States. Construction began as federal officials revealed a list of Defense Department projects to be cut to pay for President Donald Trump's wall. AP Photo: Matt York

OAKLAND—The federal judge who is overseeing a pair of legal challenges to funding for border wall construction Wednesday called the Trump administration's moves to invoke a statute that allows the military to transfer funds to pay for construction in cases of national emergency "an extraordinary invocation of this authority."

U.S. District Judge Haywood Gilliam Jr. of the Northern District of California said during oral argument on dueling motions for summary judgment in the cases that "Congress has already expressed judgment as to the relative merit of this project" when it passed a budget last year that appropriated $1.375 billion in spending limited to barriers in the Rio Grande Valley border sector in Southern Texas. The same day President Donald Trump signed the appropriations bill, he declared a national emergency and announced his intention to pull in $8.1 billion in funding for border barriers—in part by reallocating funds from military construction projects under section 2808 of the U.S. Code.

Gilliam on Wednesday pressed James Burnham, a top attorney in the Department of Justice's civil division on whether anyone in the administration had acknowledged the extraordinary underlying circumstances.

"No I don't think there's ever been a fact pattern exactly like that," Burnham said.

Gilliam, however, also questioned Dror Ladin, staff attorney with the American Civil Liberties Union's National Security Project who represents the Sierra Club and a coalition of border nonprofit groups, about whether there had been a case that found the president's determination that an emergency warranted military intervention was lacking.

U.S. District Judge Haywood Gilliam of the Northern District of California discusses significant criminal law decisions issued by the U.S. Supreme Court over the past year. Photo: Jason Doiy/ALM

Ladin noted that the plaintiffs are not challenging the president's declaration of an emergency at the U.S. Mexico border, but whether emergency military funds could be paid for border security—a law enforcement function he contended fell under the civilian authority of the Department of Homeland Security.

"To allow the president to simply claim that one of these civilian powers is a military function and the military's budget could be drawn upon is a new expansion of executive power," Ladin said.

The U.S. Court of Appeals for the Ninth Circuit is already considering appeals of earlier rulings by Gilliam in the cases brought by a group of Democratic states' attorneys general and nonprofit groups represented by the ACLU. Gilliam issued orders in June and July blocking $2.5 billion in funding for the border barrier in certain locations in Arizona, California and New Mexico, finding that Congress hadn't authorized the administration to redirect funds to the appropriations account the Defense Department uses to fund its counternarcotics efforts.

A Ninth Circuit motions panel in July allowed Gilliam's prior injunction to stay in place, but the U.S. Supreme Court later that month temporarily set the injunction aside until the Ninth Circuit could hear the merits of the case. The high court, voting along ideological lines, found that the administration made a sufficient showing that the plaintiffs did not have a cause of action to seek review of the decision to use Defense Department funds at the border.

At Wednesday's hearing, the plaintiffs were seeking to block the potential transfer of an additional $3.6 billion in funds for border barriers that was originally slated to cover military construction projects.

Gilliam took the matter under submission at the end of Wednesday's hearing and said that he hoped to have a ruling out soon.

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