A federal appeals court on Wednesday lifted an injunction blocking the Trump administration from spending $3.6 billion in military construction funds on building physical barriers along the U.S. southern border.

Divided along party lines, the three-judge panel voted 2-1 in favor of President Donald Trump who made the request against a permanent injunction issued last month in Texas preventing the government from using the military construction funds as it appeals a lower court’s decision that the funds’ reallocation was unlawful.

Judges Edith Jones and Andrew Oldham, Republican president appointees, granted Trump’s request as there was “the substantial likelihood” that the plaintiffs the City of El Paso and the Border Network for Human Rights, represented by Protect Democracy, lacked legal standing and that the Supreme Court had earlier stayed a similar injunction.

The sole dissenting voice, Judge Stephen Higginson, said that while he agrees there is substantial merit to the case, he doesn’t believe the Trump administration has proven the stay is causing the government harm as it has claimed.

“Although I agree with my colleagues that this matter presents ‘a substantial case on the merits’ and involves a ‘serious legal question,’ … I am unable to agree, without focused panel deliberation and discussion — possibly aided by dialogue with counsel — that the government presently has shown either a likelihood of success on the merits or irreparable harm in the absence of a stay. Therefore, I dissent,” he wrote.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Chief Justice John Roberts

The decision follows President Donald Trump last February declaring a national emergency at the U.S. southern border and reallocating money from the military to build a border wall after he was denied billions he requested for inclusion in the federal budget to do so.

A court ruled in October that the national emergency declaration and the reallocation of funds was unlawful with an injunction issued two months later.

On Dec. 16, the Trump administration requested that the injunction be lifted as it would cause “substantial and irreparable harm to the government and public interest in border security and drug interdiction.”

Protect Democracy said Wednesday’s ruling was “unfortunate.”

“A court has already determined that the government can’t lawfully use military construction funds to build Trump’s border wall,” Protect Democracy lawyer Kristy Parker said in a statement. “It’s unfortunate that the people of El Paso will continue to suffer harm while the government appeals, but we’re confident that we’ll prevail again in this next stage of litigation.”

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