President Donald Trump’s vision for a “big, beautiful wall” along the U.S.-Mexico border faced its first substantial legal challenge in a San Diego federal courtroom Friday.
At the center of the case — three lawsuits that have been consolidated into a single matter — is whether the federal government had the authority to waive its compliance with a host of laws in order to rush border construction projects in San Diego and Calexico, including the eight border wall prototypes that have already been completed on Otay Mesa.
In a 2 1/2 -hour afternoon hearing witnessed by a packed courtroom, the California Attorney General’s Office and environmental protection advocates teamed up against the government, arguing that the Department of Homeland Security abused its discretion by broadly interpreting a law that has allowed such waivers.
Attorneys for the government argued that the authority was still valid — and that much of the lawsuit was moot anyway because the law clearly states only constitutional challenges can be brought against it.
U.S. District Judge Gonzalo Curiel, who posed several questions to the attorneys throughout the hearing, held off on making a ruling from the bench and instead asked for additional briefing on a narrow legal issue, due Tuesday. He said he expects to issue a written order a few days after that.
Curiel said the case “raises a number of novel theories” and later acknowledged, “This law isn’t a model of clarity. It’s been amended over and over and there are a number of inconsistencies and discrepancies.”
Curiel’s role in the case adds to the public interest — and likely scrutiny — as he was the judge who recently presided over a pair of Trump University lawsuits in San Diego and was openly criticized by Trump during the campaign.
“Look, he’s proud of his heritage, OK?,” Trump said in a CNN interview in 2016. “I’m building a wall. He’s a Mexican. We’re building a wall between here and Mexico.”
Curiel, a former federal prosecutor who battled Mexican drug cartels, was born in Indiana. He has not publicly responded to the remarks, and the irony of him now presiding over this wall challenge was not mentioned in court Friday.
While Trump’s grand vision for a 2,000-mile contiguous border wall — outlined in an executive order issued shortly after taking office — hasn’t received funding from Congress, his administration has taken some first steps using existing funding.
Those are the projects that the state — as well as the Center for Biological Diversity, Defenders of Wildlife, the Sierra Club and the Animal Legal Defense Fund — are challenging in this case. Besides the prototypes, which were completed in October and are currently undergoing testing, there is a plan to replace 14 miles of existing fencing in San Diego that had been mostly erected in the early 1990s with a design that the government says is “no longer optimal for Border Patrol operations.”
Construction on that isn’t slated until at least June, but another project to fix a 3-mile stretch of border barrier in Calexico is supposed to begin this month.
The San Diego projects would significantly impact vernal pools in the area and habitat to several listed threatened and endangered species, including the Quino checkerspot butterfly and San Diego fairy shrimp, the lawsuits contend.
In both projects, the government invoked a law that allows the secretary of the Department of Homeland Security to waive complying with federal laws to speed along border security infrastructure.
The law was first passed in 1996, then revised as part of the REAL ID Act of 2005.
The lawsuits claim the act was meant to narrowly cover specific projects — at the time, the completion of double- and triple-layer border fencing in San Diego at the time — and not to be used in an unlimited capacity.
The waiver was used again in 2007 and 2008 to expedite construction of more border barriers under the 2006 Secure Fence Act, which called for additional fencing. In one iteration, the act specified certain areas and priorities, but it was then scaled back to give authorities more discretion, calling for no less than 700 miles of fencing where “most practical and effective.”
The section also gave a deadline in which to complete the expedited projects: December 2008.
The Center for Biological Diversity argued that the government’s waiver power also expired with that deadline. Plus, as of last February, DHS had constructed 704 miles of border barrier, meaning the requirements under the law had been fulfilled.
“The deadline expired nine years ago,” said Deputy Attorney General Michael Cayaban.
The Center for Biologlical Diversity, a Tucson, Ariz.,-based nonprofit, argued further that the government’s “expansive and unbounded” interpretation of the waiver is not what Congress intended, and “would bestow a truly extraordinary and unprecedented ‘free pass’ upon DHS to bypass any laws for any border barrier or road construction project at any time, with such authority to persist into the future in perpetuity,” the attorneys argued in its motion for summary judgment.
“If DHS is permitted to utilize the authority in 2017, then what is to prevent future administrations from waiving legal requirements in 2027, or 2057?”
The attorneys pointed out that they aren’t challenging the existing discretion of DHS to secure the border and build infrastructure, but that the department has no authority at this point to waive laws to make it happen.
U.S. Department of Justice attorney Galen Thorp argued that the Center was interpreting the law too narrowly, and that the revisions referring to specific border projects and the 2008 deadline was merely an application of the general provision.
Much of the argument Friday parsed the language of the law. For example, what exactly does “additional” fencing mean? The government interprets it to mean “more” and includes replacement fencing. The plaintiffs contend it applies only to brand new miles of fencing.
The constitutionality of the waiver provision was also examined, with the state calling it “an extensive overreach by the executive branch” and the government likening the authority to the president’s pardon power or prosecutorial discretion.
The judge focused a good deal of his questions on an area that was not well briefed by either side: the requirement of the government to consult with other local, state and federal parties that might be impacted by border construction, such as tribal authorities, environmental agencies, property owners and governments. The requirement is what Curiel has asked for additional written briefing on before making his ruling.
Thorp argued that the duty to consult with other stakeholders has nothing to do with whether the government decides to use its waiver power. Instead, it is merely a chance to communicate with other parties so potential problems can be mitigated during construction. For example, U.S. Customs and Border Protection worked with U.S. Fish and Wildlife Service and conducted site surveys for environmental and endangered species concerns for the prototype project, government attorneys noted.
But the deputy attorney general pointed out that consultation on the Calexico project came too late to be meaningful — just weeks before construction was to begin.
Twitter: @kristinadavis ___
This article is written by Kristina Davis from The San Diego Union-Tribune and was legally licensed via the Tribune Content Agency through the NewsCred publisher network. Please direct all licensing questions to email@example.com.