Trump’s ability to build the wall unencumbered by legal challenges just got a major boost.
days into the Trump presidency, Trump ordered the various departments to take
all necessary steps to begin securing the southern border.
Pursuant to that executive order, the Department of Homeland Security, in conjunction with the Attorney General, looked to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The IIRIRA gives the executive branch wide authority to secure the nation and regulate migration.
executive order did not sit well with various groups. “DEFENDERS OF WILDLIFE, a nonprofit conservation organization; SIERRA CLUB,
a nonprofit public benefit corporation; ANIMAL LEGAL DEFENSE FUND; PEOPLE OF
THE STATE OF CALIFORNIA, by and through Xavier Becerra, Attorney General; CALIFORNIA
COASTAL COMMISSION” all filed suit against the Trump administration. Their main concern being the migratory
patterns and burrowing habits of the “one-eyed, one-horned, flying, purple
people eater.” I’m kidding.
plaintiffs’ “ultra vires claims” alleged that DHS exceeded its statutory
authority in working on the border barrier projects and issuing the related
waivers in violation of the Administrative Procedure Act (“APA”). The
plaintiffs’ “environmental claims” alleged that in planning and building the
border barrier projects, DHS violated federal environmental laws.”
it’s obvious that the APA claims are nothing more than an attempt to bog down the
administration in endless litigation and procedural red tape, the plaintiffs at
least have some basis to sue regarding the environment. The border wall would surely disrupt the
habitat of various species of animals. There is no question that it would. The federal government passed laws that are
designed to protect environmentally sensitive areas for good reason. Those laws exist however, in tension with
other goals and mandates of the federal government.
such mandate is to secure the southern border.
The text of
the IIRIRA is so clear that even the 9th circuit may not weasel
its way out of upholding the Trump Administration’s actions. Here is the
relevant section of the law.
SEC. 102. IMPROVEMENT OF BARRIERS AT BORDER.
(a) IN GENERAL.-The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.
(c) WAIVER.-The provisions of the Endangered Species Act of 1973 and the National Environmental Policy Act of 1969 are waived to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under this section.https://www.uscis.gov/sites/default/files/ocomm/ilink/0-0-0-10948.html#0-0-0-1113
these two crystal clear provisions of law, the 9th circuit ruled accordingly. They said,
“As a threshold matter, the panel held that
they had jurisdiction to consider the “predicate legal question” of whether
IIRIRA authorized the contested projects. Because neither IIRIRA nor the APA
barred the panel’s review, the panel turned to the merits of the ultra vires
and environmental claims. The panel held that the plain text of section 102(a)
of IIRIRA granted DHS authority to construct the border barrier projects, and
that grant of authority was not limited by section 102(b) of IIRIRA. The panel
concluded that the district court correctly granted DHS summary judgment on the
ultra vires claims. The panel further held that the environmental claims were
precluded by the Secretary’s waiver of the National Environmental Policy Act,
the Coastal Zone Management Act, and the APA. The panel held that it lacked
jurisdiction to consider any argument challenging the waivers themselves.”
security of the southern border is important enough that congress decided to
permit the executive branch to waive other considerations. The 9th circuit simply affirms what
the lower court held. The executive
branch does in fact have the authority to construct additional barriers and it
may waive environmental protections in order to do so.
to the 9th Circuit:
The plain language of section 102 dictates
the outcome of this appeal. We have jurisdiction to consider California and the
environmental groups’ ultra vires and environmental claims to the extent those
claims do not “aris[e] from” the Secretary’s waiver determinations under
section 102(c). The Prototype, San Diego, and Calexico Projects are authorized
under section 102(a)’s broad grant of authority, which is not limited by
section 102(b). The environmental claims are precluded by the Secretary’s
waiver of NEPA, CZMA, and the APA.
A surprise to be sure, but a welcome one.
For more information on the ruling, check out this article from The Hill.