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“I thought Trump was using house provided funds first?”

There are actually a few different pots of money, subject to different rules.

The House appropriated about $1.4 billion for border barrier building in FY 2019, tagged for 55 specific miles in the Rio Grande Valley of South Texas. That money has not yet gone onto contracts. They got it in February, and contracting has been running roughly 3-6 months, (which is still quick compared to the norms for Government construction projects).

The first 2019 money getting tapped is $1 billion out of DoD counter-Narcotics accounts, for 57 miles in New Mexico and Arizona. That does not require a declaration of emergency. Legislation specifically authorizes those funds to be spent for border fences, roads and lighting. The Administration has announced that they intend to spend a total of $2.5 billion from that account this year, and another $600 million from Treasury Department asset forfeiture accounts - which also does not require a declaration of emergency.

Altogether, that adds up to around $4.5 billion, before an emergency declaration is needed to tap into unobligated funds in Military Construction (MILCON) accounts. The administration wants to spend $3.6 billion out of MILCON. That is where plaintiffs can challenge the emergency, but also those accounts require taking the money from specific projects - so somebody’s ox gets gored every time. So that is the toughest fight.

Even though the strongest challenge can be brought against raiding existing MILCON projects under an emergency declaration, the legal basis is still mighty weak. Existing law specifically authorizes the President to do specifically that. Congress formally appropriated the funds into that account, and formally authorized the President to use them if he determined there was an emergency.

The bottom line is that most courts would not support the Democrats motion, and the Supreme Court is likely to ultimately support the President on this. The Democrats are careful to only bring cases before carefully selected ideologically liberal judges, whose appeals will handled in the most liberal Ninth Circuit.

DoD was the first this fiscal year to get funds on contract - blazingly fast by normal standards. The House appropriated funds in the Rio Grande Valley have to accommodate more private land disputes, as well as additional restrictions inserted by Congressman Cuellar (D, Los Zetas), like blocking out certain areas, and requiring separate approvals from five different local Governments. If not for those roadblocks, work would have started there in February.