A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, refused to stay Judge Gilliam’s injunction while the court considered the government’s appeal.
The public interest, the majority said, “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 construction.”
In urging the Supreme Court to intercede, Noel J. Francisco, the solicitor general, wrote that the plaintiffs’ “interests in hiking, bird watching and fishing in designated drug-smuggling corridors do not outweigh the harm to the public from halting the government’s efforts to construct barriers to stanch the flow of illegal narcotics across the southern border.”
Mr. Francisco argued that the lower courts had misread two provisions of a federal law in concluding that the transfer was not authorized. The law allows reallocation of money to address “unforeseen military requirements” where the expenditures had not already been “denied by Congress.” Mr. Francisco wrote that the drug enforcement measures were unforeseen when the Defense Department made its budget request and that Congress had never addressed the particular narcotics measures.
In response, the A.C.L.U. said that the central issue in the case was straightforward. The administration, the group wrote, “lacks authority to spend taxpayer funds on a wall that Congress considered and denied.”
“This was a deliberate decision by Congress,” the A.C.L.U.’s brief said. “Less than six months ago, this country endured the longest government shutdown in its history due to Congress’s refusal to appropriate funds for the wall construction at issue here.” That meant, the brief said, that the construction was, in the words of the federal law, “denied by Congress.”
In a separate case, the House also challenged the administration’s actions.
In June, Judge Trevor N. McFadden of the United States District Court for the District of Columbia ruled that the House could not show that it had suffered the sort of injury that gave it standing to sue. Courts, he wrote, should generally resolve disputes between the other two branches as only a last resort.