AG Kaul Seeks Permanent Injunction for Illegal Diversion of National Guard Funds & Harm to Wisconsin Businesses to Build Border Wall

Mar 31 2020

MADISON, Wis. - Attorney General Josh Kaul today, joining a coalition of eight attorneys general, filed a motion for partial summary judgment in a lawsuit challenging the Trump Administration’s illegal diversion of $3.8 billion in taxpayer dollars for the construction of a border wall. $790 million of the diverted funds were allocated to National Guard units across the country for the purchase of equipment critical to responding to natural disasters and other emergencies. The coalition argues that an immediate permanent injunction is necessary so that the National Guard is fully equipped to protect communities during emergencies, such as the current COVID-19 pandemic.


“President Trump’s unconstitutional effort to pay for the border wall includes an attempt to siphon funds from the National Guard and from manufacturing work that would be done in Wisconsin,” said Attorney General Kaul. “While this illegal diversion of billions of dollars to pay for the border wall would be a poor use of resources in normal circumstances, it’s particularly misguided now, when we need to be marshaling our resources to fight the coronavirus.”


In addition to the effect on the National Guard, the diversion of funds would impose significant economic losses on Wisconsin residents, businesses, and local governments, including:

  • $101 million contract for Oshkosh Corporation’s construction of Heavy Expanded Mobility Tactical Trucks.
  • $44 million dollars for six engines that would have been produced by a subcontractor, Fairbanks Morse, headquartered in Wisconsin, for the now defunded LHA-9 project.
  • $250 million in business sales.
  • $80 million decrease in gross regional product (GRP).
  • $42 million in personal income.
  • At least $4.6 million in state and local revenue taxes.


On March 3, 2020, a coalition of 19 states filed a lawsuit challenging the Trump Administration’s diversion of more than $3.8 billion in funds that Congress appropriated to the Department of Defense (DOD) for resources and equipment for the military and state National Guard units nationwide toward the construction of a wall along the border. This equipment is necessary for the states’ National Guard units to provide public safety support in times of emergencies, including during natural disasters like wildfires and public health crises like the current pandemic.


Given the current national emergency, it is more important than ever to stop the Trump Administration’s illegal actions to fund a border wall. In the motion, the states argue 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 acted in an arbitrary and capricious manner in violation of the Administrative Procedure Act.


Attorney General Kaul joined the attorneys general of California, Connecticut, Massachusetts, Michigan, New Jersey, New Mexico, and Virginia in filing the motion.


A copy of the motion can be found here.