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1 1 (January 16, 2020)

handle is hein.crs/goveatk0001 and id is 1 raw text is: Congressional ______ *.Research Service ~~~ ~~~nformrng the legis aive debate since 1914____________________ The Texas Border Barrier Litigation: Implications for Appropriations Law January 16, 2020 A little-noted rule of appropriations law and an obscure provision of Congress's annual appropriations acts have assumed prominent roles in the Trump Administration's effort to accelerate border-barrier construction using Department of Defense (DOD) funding. In December 2019, Judge David Briones, U.S. District Judge for the Western District of Texas at El Paso, entered an injunction in El Paso County v Trump, barring DOD from using military construction appropriations beyond the $1.375 billion expressly appropriated to Customs and Border Protection (CBP) in the Fiscal Year (FY) 2019 Consolidated Appropriations Act (CAA) for border wall construction. Judge Briones reasoned that Congress's specific limit on funds available to CBP for a border wall precluded use of more general DOD appropriations, and that an appropriations rider barred DOD from funding a border wall using authority outside of an appropriations act. While a divided panel of the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) recently stayed the district court's injunction pending appeal on the ground that the plaintiffs may lack the constitutional standing required to sue, the Fifth Circuit has not yet resolved the appeal or grappled with the important and unsettled questions of appropriations law posed by Judge Briones' decision. This Sidebar compares Judge Briones' approach to determining appropriations availability with that of the Government Accountability Office (GAO), examines statutory interpretation questions posed by the rider, and notes considerations for Congress. Background As discussed in an earlier CRS Report, the Administration's effort to accelerate border barrier construction invokes several statutes. A central issue in El Paso County was the significance of the CAA's appropriation of funds to the CBP for border wall construction. In February 2019, Congress enacted the CAA, expressly appropriating $1.375 billion to CBP for the construction of primary pedestrian fencing in the Rio Grande Valley Sector of south Texas. This amount was far less than the Administration's $5.7 billion request for CBP. Accordingly, the President declared a national emergency at the southern border requiring use of the armed forces and directed DOD to join in border barrier construction. In September 2019, DOD told Congress that to free up $3.6 billion for 11 border barrier projects at sites throughout the southwest, it would defer 127 previously authorized Congressional Research Service https://crsreports. congress.gov LSB10398 CRS Legal Sidebar Prepared for Members and Committees of Congress

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