SAN DIEGO (CN) – A federal judge in San Diego sided with the Trump administration Tuesday, finding the federal government has the authority to waive environmental laws to speed up construction of a border wall along the U.S.-Mexico border.
Acknowledging the “heated political debate” over President Donald Trump’s aim to build a wall along the U.S.-Mexico border, U.S. District Judge Gonzalo Curiel wrote in a preface to his 101-page order he “cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent.”
Perhaps reinforcing his identity as an American born and raised in Indiana – despite Trump calling Curiel a “Mexican” and questioning his ability to fairly preside over the Trump University class action in San Diego – Curiel quoted “fellow Indiana native” Supreme Court Chief Justice John Roberts in pointing out “courts are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.”
Instead, Curiel considered arguments in the consolidated case brought by environmentalists and California against the Department of Homeland Security over its decision to waive 37 environmental laws – including the National Environmental Policy Act and Endangered Species Act – to speed up construction of the border wall prototypes and a 15-mile replacement wall project in San Diego.
A waiver was also issued for border wall construction along a 3-mile stretch in Calexico, about 115 miles east of San Diego. Construction broke ground there last week.
Curiel found former Homeland Security Secretary John Kelly and former acting Homeland Security Secretary Elaine Duke could not act “in excess of its delegated powers” due to “competing plausible interpretations” of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act and its complicated legislative history.
“Because the DHS secretary, acting as an agent of the Executive Branch, has significant, independent authority over immigration, Congress is justified in delegating broad authority,” Curiel wrote in granting the government’s motion for summary judgment.
Most of the environmentalists’ argument against the government centered on their interpretation of the language of the Immigration Reform Act. But Curiel found the groups did not demonstrate Homeland Security executives violated a “clear and mandatory statutory provision” due to the vagueness of the law.
As for some of the disagreement between the parties over the wording of the act, including phrases such as “additional barriers and roads” and “high illegal entry,” Curiel found a narrow interpretation of the Immigration Reform Act “is not supported by the statutory language nor the legislative history.”
Curiel found while the federal government showed it had consulted with interested parties on the border wall construction projects including Native American tribes and landowners, in addition to local governments, “the belated contact with stakeholders reduces the practical benefit of the consultation process.”
But since the law lacks a “clear and mandatory” requirement regarding the timing of consultation, Curiel found he cannot find the secretaries overstepped their authority in approving waivers or executing construction contracts before consulting interested parties.
“The court does not have serious constitutional doubts,” Curiel concluded in noting initial challenges to the federal government broadening its waiver authority in 2005 have been upheld as constitutional.
California Attorney General Xavier Becerra issued a statement vowing to oppose what he called a “medieval wall” and vaguely suggesting he may appeal the decision.
“We remain unwavering in our belief that the Trump administration is ignoring laws it doesn’t like in order to resuscitate a campaign talking point of building a wall on our southern border,” Becerra stated.
“We will evaluate all of our options and are prepared to do what is necessary to protect our people, our values and our economy from federal overreach.”
Acting Homeland Security press secretary Tyler Houlton said in a statement to Courthouse News border walls are “extremely effective” in preventing the flow of drugs and people across the border.
“Walls have worked in Yuma, Arizona, and San Diego, California, where both areas have seen a 95 percent drop in attempted illegal border crossings. Simply put – walls work. The Department of Homeland Security looks forward to building the wall where our front-line operators say it is needed and in accordance with all applicable laws,” Houlton said.
According to Curiel’s order, construction on the border wall in San Diego is slated to break ground in August. –