Appeals court sides with Trump in border wall prototype dispute

President Trump on Monday notched a rare victory in the California-based federal appeals court by winning a dispute over the construction of certain barriers along small stretches of the U.S. border with Mexico.

The 9th Circuit Court of Appeals affirmed a district court ruling that sided with the Trump administration in a lawsuit challenging its authority to waive environmental and public participation laws to expedite the border construction projects.

A three-judge panel ruled 2-1 that the Department of Homeland Security (DHS) has broad authority under the Immigration Reform and Immigrant Responsibility Act of 1996 to construct wall “prototypes,” replace 14 miles of primary fencing near San Diego and replace similar fencing along a three-mile strip close to Calexico, Calif.

{mosads}A coalition of environmental groups, led by the Center for Biological Diversity, challenged the authority of DHS to waive dozens of laws, including the National Environmental Policy Act, the Endangered Species Act and the Religious Freedom Restoration Act, to make it easier to build the border infrastructure. California Attorney General Xavier Becerra (D) also filed suit.

Steven Stafford, a Justice Department spokesman, said Monday that Congress has given the executive branch significant authority to build physical barriers on the U.S. border.

“Today the court has affirmed that authority, and that is a victory for the Trump administration, for the rule of law, and above all, for our border security,” he said in a statement to The Hill.

The appeals court decision narrows the path for environmental groups to launch legal challenges to Trump’s high-profile push for expanding border barriers, including his campaign promise to build a wall along much of the U.S.-Mexico border.

“Congress has ceded its authority to Trump, who has swept aside fundamental public safety and environmental laws to build walls that won’t work,” Brian Segee, a Center for Biological Diversity attorney, said after Monday’s ruling. “This lawlessness is destroying irreplaceable ecosystems and militarizing communities.”

The Supreme Court in December declined to hear the groups’ attempt to bring the case directly to the high court after initially losing in the district court. The groups warned the justices that the environmental impact of the projects authorized by the waivers would be substantial.

“The border walls are within, or in close proximity to, the habitats of rare animal and plant species including the burrowing owl, Quino checkerspot butterfly, Tecate cypress, snowy plover, two species of fairy shrimp, and the Otay Mesa mint,” they said in their petition to the Supreme Court.

A similar coalition is challenging a related legal waiver for border barriers in Texas. The proposed structures would cut through various protected areas, including the National Butterfly Center.

Environmentalists have argued that border barriers are disastrous for ecosystems and wildlife since they disrupt habitats, breeding grounds and migration paths.

Monday’s ruling only affects DHS actions to repair or improve existing border fencing, not Trump’s proposals for a wall.

Trump’s demand for $5.7 billion in border wall funding contributed to the 35-day partial government shutdown that ended on Jan. 25. But authorized spending is slated to expire again on Feb. 15 unless Congress and Trump can agree on spending legislation that involves border security. And the president has raised the possibility of declaring a national emergency to sidestep Congress and build the wall.

Gloria Smith, a managing attorney at the Sierra Club — one of the environmental groups fighting the waivers in California — said her organization would likely be involved in any litigation over a national emergency declaration.

As for the 9th Circuit’s ruling Monday, she said the Sierra Club is in the process of deciding what to do next.

“We’re not saying necessarily the 9th Circuit or any judges got this wrong,” she said. “I think that when Congress passed these statutes in the 90s, it was contemplating specific, real immigration issues. I think the problem is this legislation is so broad that it can fold in what is frankly a racist campaign slogan that turned into some presidential act to build a wall along our southern border without any justification.”

The White House did not provide a comment on Monday’s ruling.

Judge Gonzalo Curiel, an Obama appointee in the District Court for the Southern District of California, ruled in Trump’s favor in the case in February 2018. Trump previously argued that Curiel might be biased against him in an unrelated case regarding Trump University, because of his Mexican heritage.

DHS has issued six wide-ranging legal waivers for border infrastructure construction, most recently last week. The case decided Monday only challenged the first two, which were issued by DHS in 2017.

The ruling marked a win for Trump in a court that has become a particular annoyance for the president. The appeals court has blocked several administrative actions, including his new asylum policy and the travel ban for citizens from six Muslim-majority countries.

“You cannot win, if you’re us, a case in the 9th Circuit, and I think it’s a disgrace when people file — every case gets filed in the 9th Circuit,” Trump told reporters in November after a district court judge in California blocked him from denying asylum to immigrants who cross the border illegally.

Judge M. Margaret McKeown, who was appointed to the court by former President Clinton, issued the court’s majority ruling on Monday. She was joined by Jacqueline Nguyen, an Obama appointee.

Judge Consuelo Callahan, a George W. Bush appointee, dissented from her colleagues. She wrote that under her reading of the 1996 law, the district court’s decision can be reviewed only by the Supreme Court, and appeals courts don’t have the authority to hear cases such as this one.

“If we could reach the merits of these appeals, I would concur in my colleagues’ opinion,” she wrote.

If the litigants decide to challenge the ruling by the three-judge panel, they could ask the full roster of the court’s judges to rehear the case “en banc.” If that fails, they could try again at the Supreme Court.

A spokeswoman for Becerra’s office, which is evaluating its next steps, called the ruling disappointing.

“We are disappointed with the ruling but pleased that the court recognized the Trump administration does not have unlimited power and that the administration’s authority to build a barrier along our border is subject to judicial review,” she said. “California will not be deterred in its efforts to hold the Trump administration accountable under the law and we will continue to protect the people and resources of our state.”

Updated at 6:41 p.m.