Fight Over Trump Border Wall Lands at Ninth Circuit

Prototypes of the border wall President Donald Trump wants to build along the U.S.-Mexico border.

PASADENA, Calif. (CN) – Competing legal interpretations of an immigration statute used to waive dozens of environmental laws to speed up construction of a wall along the U.S.-Mexico border dominated a Ninth Circuit hearing Tuesday.

The Center for Biological Diversity appealed U.S. District Judge Gonzalo Curiel’s grant of summary judgment this year in favor of the federal government on a legal challenge brought by environmental groups and the state of California. The lawsuits challenged the government’s decision to waive environmental laws to speed up construction of a wall along the U.S.-Mexico border in San Diego.

The Department of Homeland Security used its waiver authority under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to dodge 37 environmental laws which could delay building a wall along a 15-mile stretch from the Pacific Ocean eastward.

At issue during Tuesday’s hearing before U.S. Circuit Judges M. Margaret McKeown, Consuelo Callahan and Jacqueline Nguyen was whether a proper reading of the Immigration Act gives the government the authority to break ground on the project in San Diego and whether it also gives the government the authority to waive environmental laws for this particular project.

Deputy Attorney General Noah Golden-Krasner, arguing for California and environmental groups, said the jurisdictional issue is for the trial court to decide. He argued that while the act gave the government broad authority to waive environmental laws, that waiver only applied to a specific project and expired in 1998.

Judge Callahan, perhaps recognizing the federal government wanted to avoid getting tied up in the type of lengthy environmental litigation California is notorious for, noted the border wall is a security issue.

“People can debate, and there is a lot of debate on this issue. The state of California doesn’t see it the same as the federal government. A lot of citizens don’t see it the same,” Callahan said.

“The borders are a security issue and environmental claims can be tied up in court for decades,” Callahan added in noting the government doesn’t “want it tied up in court forever” and wants to resolve the case by litigating first in the trial court and “then go directly to the Supreme Court.”

Judge McKeown noted the federal government’s authority to build is separate from its authority to waive laws to speed up construction.

Judge Nguyen pointed out a plain reading of the Immigration Act shows the congressional intent behind the act, or the “articulation of priorities that Congress wants the Department of Homeland Security” to focus on.

“Isn’t that a natural reading of the two sections when you read them in tandem? Nguyen asked in suggesting the sections of the act might not be counterintuitive based on interpretations of different sections.

Justice Department attorney Thomas Byron said the government believes the “language of the statute is pretty clear … we would win under any inquiry.”

But McKeown questioned whether the issue before the Ninth Circuit was as simple as Byron made it out to be.

“What you have is a project and question if the United States government has the authority to enter into a project. You need to get to the waiver. What we’re talking about is a foundational legal question: Do they have the authority to have the project at all? If they don’t have the authority to have the project at all, then the waiver is kind of the non-icing on the cake,” McKeown said.

Thomas retorted: “I think Congress was pretty clear here: they could waive all legal requirements, not just environmental laws.”

He added: “The language of the statute is extraordinarily broad and clear.”

The panel did not indicate when it would issue a ruling.


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