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  • President Donald Trump reviewing U.S. Customs and Border Protection's wall prototypes on the border in Otay Mesa, California. The President was joined by Homeland Security Secretary Kirstjen Nielsen, CBP Acting Commissioner Kevin McAleenan, Acting U.S. Border Patrol Chief Carla Provost and San Diego Sector Chief Patrol Agent Rodney Scott.

    President Trump reviews wall prototypes on the border in Otay Mesa, Calif. He was joined by Homeland Security Secretary Kirstjen Nielsen, CBP Acting Commissioner Kevin McAleenan, Acting U.S. Border Patrol Chief Carla Provost and San Diego Sector Chief Patrol Agent Rodney Scott. (Photo: White House)

    Donald Trump’s plan to divert $3.8 billion in taxpayer dollars this year for the construction of an unauthorized border wall is facing a new legal challenge by 18 states that call the action an “unconstitutional violation of Congress’s appropriation power.”

    New York Attorney General Letitia James and state attorneys general from 18 other states filed a lawsuit asking a federal court to block use of the funds for construction of Trump’s wall on the southern U.S. border.

    A federal appeals court overturned a lower court ruling in January and approved the Trump administration’s use of military construction funds to build the border wall.

    The 5th Circuit Court of Appeals in New Orleans, lifted an injunction issued blocking expenditure of the funds issued by a court last December in Texas.

    The three-judge appeals panel, in a 2-1 ruling, granted the administration’s request to temporarily stay the injunction, signed by U.S. District Judge David Briones of El Paso.

    Congress appropriated the $3.6 billion to the Department of Defense for 127 construction projects, Briones had ruled.

    The appeals court judges did not provide a reason for the reversal, other than noting that the Supreme Court recently halted a similar injunction.

    Dissenting judge, Stephen Higginson, wrote that the administration did not prove it would suffer irreparable harm under the injunction, according to USAToday.

    “For the second consecutive year, the Trump Administration has circumvented the will of Congress by redirecting billions of dollars appropriated for the procurement of equipment by state National Guard units in order to build a wall along the U.S.-Mexico border,” said James in a statement.

    “President Trump is risking the safety of every American by diverting taxpayer dollars from our military to fund the same xenophobic campaign promises he’s made for the last four years,” James added.

    “The courts have already once rejected the president’s unlawful attempt to shift funds to his hateful pet project, so as long as this Administration continues down the path of illegally subsidizing an ill-advised border wall we will not hesitate to take action. We will not stand for this abuse of power and will fight it using every tool at our disposal.”

    Congress has repeatedly rebuffed the president’s insistence on funding the border wall, providing limited funding for fencing along the border in the 2019 and 2020 budgets.

    Of course, the president’s campaign promise to make Mexico pay for the wall has proved to be hollow.

    The lawsuit argues that the diversion of funds violates the principles of separation of powers, the Presentment Clause, and the Appropriations Clause of the U.S. Constitution by usurping Congress’s appropriation powers.

    The coalition further asserts that the Trump Administration fails to satisfy the legal requirements necessary to divert the funds and disregards the National Environmental Policy Act by failing to consider the environmental impact of construction.

    The diverted funds will be used to construct a wall on the borders of California and New Mexico, which pose imminent environmental harm to more than 100 sensitive plant and animal species.

    Last year, a coalition of attorneys general filed a similar lawsuit challenging President Trump’s 2019 declaration of a national emergency. The declaration was used as a justification to divert $1.6 billion in federal defense department funds appropriated by Congress to build a border wall.

    In December, the U.S. District Court for the Northern District of California ruled that the president’s attempts to use military funding to build his border wall were illegal. An appeal is currently pending in the U.S. Court of Appeals for the Ninth Circuit.

    Joining Attorney General James in filing today’s lawsuit are the attorneys general of California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Wisconsin.

    Trump asked for nearly $6 billion to build the border wall in 2018, but Congress only appropriated $1.4 billion for border wall projects, mainly earmarked for maintenance on existing fences.