[20200721]LSB10522_边境障碍诉讼：国防部转移授权的开放性问题.pdf

CRS Legal Sidebar Prepared for Members and Committees of Congress Legal SidebarLegal Sidebari i Border Barrier Litigation: Open Questions for Department of Defense Transfer Authority July 21, 2020 The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) recently added to the growing body of case law on the Trump Administrations decision to fund border barrier construction using Department of Defense (DOD) appropriations. Over a dissent, the Ninth Circuit ruled in two appeals that DOD acted contrary to law when it used its transfer authority to shift $2.5 billion, previously appropriated for objects such as personnel expenses, to fund border barriers. DOD may transfer funds only for “unforeseen military requirements” and not where the “item for which funds are requested has been denied by the Congress.” The Ninth Circuit held that DOD violated both limitations. (The Ninth Circuit has not yet decided separate appeals challenging trial court decisions that declared unlawful DODs use of military construction appropriations to fund other border barrier projects.) The Ninth Circuits decisions cover broad ground, but one holding concerns the scope of DODs transfer authority and in