AG Ferguson sues to block diversion of billions for border wall

Washington State Attorney General Bob Ferguson has filed a lawsuit to block the Trump administration’s plan to re-appropriate $3.6 billion in congressionally approved funding for military construction projects to help build a wall along the U.S. border with Mexico.

The move would divert nearly $89 million from the Kitsap Peninsula’s Bangor submarine base.

Ferguson filed the lawsuit in the U.S. District Court for the Western District of Washington and intends to ask the court for an injunction to immediately block any future attempt by the Trump administration to divert the congressionally appropriated funds.

“President Trump’s misuse of his presidential emergency powers to accomplish an ideological political goal is an egregious abuse of power that should concern all Americans, regardless of how you feel about Donald Trump or immigration,” Ferguson said.

Gov. Jay Inslee also made a statement noting that the Trump administration’s “actions “demonstrate a clear disdain of congressional authority and are a serious breach of constitutionally established powers.”

“The president promised that Mexico would pay for his vanity border project, but instead it is U.S. military members, their families, and their communities who are paying for it,” Inslee said.

Inslee also noted that he supports Ferguson’s actions and stands with him, as he has with every other lawsuit the office has filed and won against the administration.

In February, President Trump declared a “national emergency” in order to reallocate funds for his long-promised border wall, despite the fact that Congress has repeatedly refused to approve the funding he requested.

Congress even voted to overturn Trump’s “emergency” declaration with bipartisan support, but Trump vetoed their legislative action.

“We had a war against a king in the American revolution. This would be the first time that a president has ever asked for a certain amount of money from Congress, Congress has refused to provide it, and then the president has declared a national emergency under the 1976 act and said, ‘I’m going to spend the money anyway,’” said Sen. Lamar Alexander, R-Tenn.

The Trump administration declared its intent to divert more than $6 billion for the wall from funds within the federal budget, including the congressionally-approved military construction budget. Until recently, it had not identified the particular projects that would be impacted.

Several lawsuits were filed earlier this year, including a lawsuit by 20 states, after the president’s declaration, but courts have yet to rule on the legality of re-appropriating military construction funds because the administration had yet to detail which projects would lose funding. Ferguson filed his lawsuit after the Department of Defense confirmed a Washington project would lose funding.

The Trump administration’s plan subverts a congressionally-approved $88.96 million project to build a pier and maintenance facility at the base, complete with a boat shop, small-craft fueling station and storage tank, and permanent berthing for two 250-foot blocking vessels.

The Department of Defense asserted in writing that the Bangor pier project is important to sailors and their families.

The Department of Defense stated in writing that when there is no space at the existing pier, sailors are subject to “extensive berth shifts and unnecessary days spent away from home-port.”

The Department of Defense also noted the Bangor pier project’s importance to military readiness, asserting that if the Bangor pier project is not funded, “full operational capability of the transit protection mission cannot be executed. Also, the Nuclear Weapons Security posture will continue to fall short of [Department of Defense] directives and requirements.”

Additionally, a converted barge is currently providing diesel fuel at the facility, which was designed for temporary use. It is costly to operate and carries serious environmental risks, according to the Department of Defense.

In the new lawsuit, one of nearly 50 that Ferguson has filed against the administration, Ferguson asserts that Trump violated Articles 1 and 2 of the U.S. Constitution with his declaration and subsequent diversion of congressionally-appropriated funding. The Constitution grants Congress the exclusive power to appropriate federal funds.

Trump’s “emergency” declaration and seizure of military construction funds constitutes an unconstitutional abuse of power and a violation of separation of powers, Ferguson said.

Ferguson also asserts that Trump’s diversion of military construction projects runs afoul of the plain language of the law.

The statute that the administration is relying on to re-appropriate military construction funding — 10 U.S.C. § 2808 — plainly requires that money diverted because of an emergency must be sent to other military construction projects. The statute anticipates the need to go to war and swiftly deploy armed forces, construct installations and get the resources to support military personnel when Congress has no time to appropriate funding.

Ferguson additionally alleges that Trump’s emergency declaration violates the statute granting him the power to declare emergencies, and thereby access certain emergency powers. There have only been two other times in modern history in which, domestic incidents have been declared national emergencies: the H1N1 flu (swine flu) pandemic, and the Sept. 11 terrorist attacks in 2001.

Assistant Attorneys General Jeff Rupert, Martha Rodriguez Lopez, Tera Heintz, Andrew Hughes, and Brendan Selby are handling the case for Washington.

Ferguson has not lost a case against the Trump administration. He has 21 legal victories against it under his belt, 13 of which are finished and cannot be appealed.