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 Administration’s 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 DOD’s use of military
construction appropriations to fund other border barrier projects.)
The Ninth Circuit’s decisions cover broad ground, but one holding concerns the scope of DOD’s transfer
authority and in particular the limitations on that authority. The majority interpreted the limitations by
giving primary weight to the statute’s ordinary meaning, which it applied in the context of legislative and
executive actions spanning several years. The dissent gave the limitations a more specialized meaning
applied only in the context of the DOD’s FY2019 appropriations process. Given a prior Supreme Court
order entered in one of the two appeals, construction funded through the challenged transfers may
continue for now despite the Ninth Circuit’s decisions. But the decisions are significant all the same, as
they raise important questions for future agency use of funding flexibilities. This Sidebar examines the
Ninth Circuit’s dueling interpretations of DOD’s transfer authority and notes questions raised by the
prevailing view, both for DOD’s transfer authority and, perhaps, for other agencies’ funding flexibilities.
Background
In September 2018, Congress enacted the Department of Defense Appropriations Act, 2019. Congress’s
funding decision followed DOD’s submission, in March 2018, of budget justification materials explaining
the particulars of the Administration’s DOD funding request. As is typical, Congress provided DOD
transfer authority, which is authority to shift budget authority from one appropriation to another. DOD
received general transfer authority to shift funds between the “appropriations or funds” that form its base
budget (generally covering regular DOD expenses other than military construction), and special transfer
authority for overseas contingency operations funds (generally for particular military operations abroad).
