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Original Date Announced
September 3, 2019Defense Secretary Mark Esper agrees to divert $3.6 billion from 127 military construction projects to instead fund President Trump's border wall. Half of the $3.6 billion was to be for construction projects in the United States, and the other half for projects in foreign countries. [ID #427]
See Biden administration action below.
Pentagon approves diversion of military construction funds for Trump’s wallSubsequent Trump-Era and Court Action(s)
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February 13, 2020
Trump Administration Diverts $3.8 Billion In Pentagon Funding To Border Wall
The Trump administration notified Congress that it plans to divert $3.8 billion from the Defense Department's budget to build the border wall. The move drew bipartisan criticism, including from the top Republican on the House Armed Services Committee, Texas Rep. Mac Thornberry. Reprogramming notice at: https://www.documentcloud.org/documents/6776019-FY-20-01-RA-Support-for-DHS-Counter-Drug-Activity.html
Go to article on npr.org -
July 31, 2020
Supreme Court allows border-wall construction to continue
By a vote of 5-4, the Supreme Court declined to lift a stay that allowed the federal government to spend certain federal funds on construction while a legal challenge to the wall continued. On October 19, 2020, the Supreme Court granted certiorari in the Sierra Club v. Trump and California v. Trump cases. See SCOTUS Docket No. 20-138. On February 3, 2021, SCOTUS cancelled the upcoming oral argument in a brief order responding to the new administration's request for time to assess "the legality of the funding and contracting methods used to construct the wall."
View Document
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.** -
October 9, 2020
Sierra Club v. Trump, No. 19-17501 (9th Cir., Oct. 9, 2020).
Ninth Circuit decision holding that Section 2808 did not authorize the challenged border wall construction projects.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
View Document -
December 4, 2020
El Paso County v. Trump
In parallel litigation in Texas, a District Court preliminarily enjoined the diversion of military funds to border wall construction. However, a split Fifth Circuit reversed the injunction on appeal, and dismissed the suit for lack of jurisdiction as the plaintiffs lacked standing. According to the majority, neither El Paso County nor the organization Border Network for Human Rights had standing to bring the challenge. El Paso County v. Trump, 982 F.3d 332 (5th Cir. 2020).
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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July 2, 2021
Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Sierra Club, et al.
On July 2, 2021, SCOTUS granted the government's opposed motion to vacate and remand Biden v. Sierra Club. The order requires vacatur of the Ninth Circuit and district court judgments, adding: "The District Court should consider what further proceedings are necessary and appropriate in light of the changed circumstances in this case."
Go to article on supremecourt.gov -
October 21, 2021
2021.10.21 Missouri v. Biden, No. 6:21-cv-00052 (S.D. Texas, Oct. 21, 2021).
On October 21, 2021, Missouri and Texas filed suit against the Biden administration for refusing to use funds appropriated by Congress for a southern border wall and for terminating contracts to perform construction on the wall.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
View Document -
June 16, 2023
2023.06.16 Missouri v. Biden No. 22-40526 (5th Cir., June 16, 2023)
On June 16, 2023, the Fifth Circuit revived Texas' and Missouri's suit seeking to enjoin the Biden administration's decision to halt construction of the border wall despite congressional allocation of funds for that purpose. The suit had been dismissed by the district court, which ruled that Texas violated the rule against claim-splitting and Missouri lacked standing to sue. The Fifth Circuit reversed the district court ruling and remanded for consideration of the States' motion for preliminary injunction of the Biden administration policy.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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Biden Administration Action: Revoked/Replaced
January 20, 20212021.01.20 Proclamation 10142
This Biden administration policy revokes in its entirety the Trump-era policy identified in this entry.
On January 20, 2021, President Biden issued a proclamation terminating the declared emergency with respect to the Southern border and indicating that a review will determine how to redirect funds diverted for wall construction.
View DocumentBiden Administration Action: Revoked/Replaced
June 11, 20212021.06.11 DHS Releases Plan for Use of Border Barrier Funds
This Biden administration action explains how funds will be redirected in light of the termination of border wall construction.
DHS released a plan for funds the Trump administration planned to use for construction of a border wall. The plan outlines steps DHS will take to end wall expansion to the extent permitted by law and to address life, safety, and environmental concerns.
The prior administration planned to spend over $15 billion on wall construction, and diverted over $10 billion of those funds from military projects and other sources. The Department of Defense is terminating all border wall projects using the diverted funds, and returning the remaining, unobligated funds to their original sources.
View DocumentBiden Administration Action: Revoked/Replaced
October 8, 20212021.10.15 DHS to Terminate Border Barrier Contracts in Laredo and Rio Grande Valley
This Biden administration policy finalizes the revocation of the Trump-era policy identified in this entry.
On October 8, 2021, DHS issued a press release announcing that CBP, in coordination with the U.S. Army Corps of Engineers, "intends to cancel the remaining border barrier contracts located within U.S. Border Patrol's Laredo Sector and all border barrier contracts located in the Rio Grande Valley Sector." This action is consistent with DHS's border barrier plan, announced June 11, 2021.
View DocumentBiden Administration Action: Revoked/Replaced
July 17, 20232023.07.17 Border Wall Settlement with Signature Pages
As part of the final settlement of lawsuits led by California (for a coalition of states), and separately by The Sierra Club and Southern Border Communities Coalition, against the Trump Administration's efforts to extend the border wall, the Biden Administration agreed to stop border construction projects from using either (1) money transferred pursuant to section 8005 of the Department of Defense Appropriations Acts of 2019 and 2020, for work undertaken pursuant to 10 U.S.C. § 284; or (2) military construction funds appropriated to the Department of Defense in fiscal years 2015-2019, for work undertaken pursuant to 10 U.S.C. § 2808. This returns over $427 million to other military construction projects.
In addition, the Biden Administration has agreed to take several measures to remediate the environmental harm caused by border wall construction, including providing funding for the protection of thousands of acres of wildlife habitat in California and for tracking and allowing unimpeded passage of several endangered species.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
View DocumentCurrent Status
Not in effectMost Recent Action
July 17, 2023 Action: Revoked/Replaced 2023.07.17 Border Wall Settlement with Signature PagesJanuary 20, 2021Acted on by Biden Administration
June 11, 2021Acted on by Biden Administration
October 8, 2021Acted on by Biden Administration
July 17, 2023Acted on by Biden Administration
Original Trump Policy Status
Status: Final/Actual In Litigation RescindedTrump Administration Action: Agency DirectiveSubject Matter: BorderAssociated or Derivative Policies
Pre Trump-Era Policies
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July 12, 1982
The funding was originally planned for military construction projects. A U.S. Code provision regarding construction authority in the event of a declaration of war or national emergency, 10 U.S.C. § 2808, allows the Defense Secretary, during national emergencies requiring use of the armed forces, to carry out construction projects supporting the troops without the approval of Congress.
10 U.S.C. § 2808 - Construction authority in the event of a declaration of war or national emergency
Documents
Trump-Era Policy Documents
- New Policy
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Prior Policy
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Subsequent Action
Original Source:
Supreme Court allows border-wall construction to continue
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Subsequent Action
Original Source:
Sierra Club v. Trump, No. 19-17501 (9th Cir., Oct. 9, 2020).
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Subsequent Action
Original Source:
Split 5th Circ. Shuts Down Challenge To Trump Border Wall
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Subsequent Action
Original Source:
Missouri v. Biden, No. 6:21-cv-00052 (S.D. Texas, Oct. 21, 2021).
- Subsequent Action
Commentary
NY Times: Trump Plans to Divert Additional $7.2 Billion From Military to Wall
President Trump plans to divert an additional $7.2 billion in military funding for the construction of a wall on the southern border, according to two people familiar with the plans, as officials rush to show major progress on his signature campaign promise in time for the 2020 election. The money would be stripped from Defense Department construction and counterdrug projects, the officials said, and amounts to even more than the billions the administration transferred from the Pentagon last year to pay for Mr. Trump’s border wall.
Go to article on nytimes.com