The 9th U.S. Circuit Court of Appeals in San Francisco last week upheld a freeze on the use of Pentagon money to build a border wall with Mexico.

The divided three-judge panel agreed with a lower court ruling that prevented the government from tapping Defense Department counterdrug money to build high-priority sections of the proposed border wall in Arizona, California and New Mexico.

“As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier constructions,” wrote Judges Michelle Friedland, a Barack Obama appointee, and Richard Clifton, a George W. Bush appointee.

N. Randy Smith, another George W. Bush appointee to the 9th U.S. Circuit Court of Appeals, strongly disagreed with the other two members of the three-judge panel, saying, “The majority here takes an uncharted and risky approach – turning every question of whether an executive officer exceeded a statutory grant of power into a constitutional issue.”

At stake is billions of dollars that would allow President Donald Trump to make progress on a major 2016 campaign promise to build a wall separating Mexico and the United States.

Trump ended a 35-day government shutdown in February after Congress gave him far less money than he wanted to build the border wall. Congress agreed to spend nearly $1.4 billion on barriers in Texas’ Rio Grande Valley, well below the $5.7 billion the president requested.

He then declared a “national emergency” that the White House said provided him with the authority to use billions of dollars Congress had allocated for other uses. The $8.1 billion Trump said was made available through his emergency declaration included $3.6 billion from military construction funds, $2.5 billion from Defense Department counterdrug activities and $600 million from the Treasury Department’s asset forfeiture fund.

While the administration has appealed the Appeals Court’s ruling, it cannot build during the legal challenge.

The separation of powers is a critical element of our democratic form of government. The Appeals Court ruling and the Trump administration’s appeal of that ruling will hopefully result in some much-needed clarification of the president’s emergency powers … and what constitutes a national emergency.

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