(Bloomberg) -- A second federal judge barred President Donald Trump from using military construction funds for his Mexico border wall, with a U.S. court ruling Wednesday in Oakland, California, echoing one Tuesday in El Paso, Texas.
The Trump administration and Congress remain at odds over how much taxpayer money to spend on border security as a government shutdown looms next week absent a budget agreement. A year ago, partisan fighting over the wall triggered a record 35-day partial shutdown. Both the El Paso and Oakland judges concluded Trump did an illegal end-run around Congress when he moved to divert billions of dollars of funding toward wall construction after lawmakers refused to earmark more than $1.375 billion.
The president told supporters at a rally in Hershey, Pennsylvania, Tuesday that he had “started winning in court” on the wall. It isn’t clear whether he knew that shortly before he spoke, the El Paso judge issued an order barring the use of $3.6 billion in Defense Department construction funds.
Neither the Tuesday or Wednesday orders prohibit the administration from using about $2.5 billion from the Pentagon’s drug interdiction budget. That’s consistent with a U.S. Supreme Court ruling in July which let the administration move forward with building 100 miles of border fencing while the litigation continues.
But the Oakland judge had sharp words for Trump’s use of the construction funds.
“The executive has made plain its determination to nonetheless proceed with the construction by any means necessary, notwithstanding Congress’ contrary exercise of its constitutionally-absolute power of the purse,” U.S. District Judge Haywood Gilliam said in Wednesday’s ruling. “As Justice Frankfurter explained long ago, that position both disregards the clear will of Congress and disrespects the whole legislative process and the separation of powers enshrined in the Constitution.”
Gilliam, who was appointed by President Barack Obama, ruled in challenges to Trump’s use of military funds brought by the Sierra Club and a coalition of nine states. He put his order on hold pending appeal. The government is already appealing an October ruling by U.S. District Judge David Briones in El Paso, who was appointed by Bill Clinton.
The White House said it will immediately appeal Tuesday’s nationwide injunction, which the president’s press secretary said was focused on the harm to El Paso County’s reputation and economy from the wall. “But the court’s injunction sweeps far broader than that and blocks multiple projects that are hundreds of miles away,” the White House said in a statement.
Trump told rally-goers he was battling with “far-left politicians” to secure the southern U.S. border, which was one of the centerpieces of his campaign for the presidency in 2016.
“They’re fighting me on the wall, you have no idea, but we’re building it and it’s fine, and we have the money coming in from the military,” he said. “I got -- from here from there, believe me -- if I weren’t a good developer you could forget about that wall. I got here, there, boom, bah.”
California Attorney General Xavier Becerra said Wednesday’s ruling sends the message that the White House is not above the law.
“We applaud the court for declaring unlawful President Trump’s desperate attempt to divert money from important military construction projects to build his unnecessary border wall Congress refused to fund,” Becerra, a Democrat, said in a statement.
The Oakland cases are State of California v. Trump, 4:19-cv-00872, and Sierra Club v. Trump, 4:19-cv-00892, U.S. District Court, Northern District of California. The El Paso case is El Paso County, Texas v. Trump, 19-cv-00066, U.S. District Court, Western District of Texas.
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