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9th Circuit Subverts Our Expectations

Trump’s ability to build the wall unencumbered by legal challenges just got a major boost.

Five 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.

This 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. 

 “The 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.”

While 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. 

One 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.


(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.

With 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.”

The 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.

According 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.


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