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Trump Judge Tries to Allow Continued Construction of Trump Border Wall: Confirmed Judges Confirmed Fears

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Trump Judge Tries to Allow Continued Construction of Trump Border Wall: Confirmed Judges Confirmed Fears
School kid decorations on the US to Mexico border wall in Arizona. Photo courtesy of Shutterstock

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Ninth Circuit judge Daniel Collins tried in dissent to overturn a district court injunction that prohibited as illegal any further construction of the Trump border wall with Mexico. The majority rejected that view and affirmed the district court order in its October 2020 decision in Sierra Club v. Trump.

 After Congress denied funding to the Trump Administration to build Trump’s border wall with Mexico, Trump directed the Department of Defense (DOD) to begin to build it anyway, using $3.6 billion appropriated for military construction projects. In response to suits filed by the Sierra Club, other groups, and nine states, a federal district court decided that the President’s diversion of such funds was illegal and enjoined wall construction, although it agreed to stay its order pending appeal.

On October 9, 2020, the Ninth Circuit decided the appeal, agreed with the district court that Trump’s actions were illegal, and lifted the stay of the district court’s injunction. In an opinion by Chief Judge Sidney Thomas, the court ruled that the federal law that authorizes emergency military construction, 10 U.S.C. 2808 (“2808”), “did not” permit use of the funds for construction of the wall. The court also agreed that it was appropriate to issue a “permanent injunction” stopping the Administration “from using military construction funds appropriated for other purposes to build a border wall.” Although the court recognized the “deference” owed by the courts to the Executive Branch, it explained that where Congress has “clung” to its power to legislate concerning emergencies “with both hands” by “withholding funding for border wall construction” and by “attempting to terminate the existence of national emergency on the southern border on two separate occasions” with a majority in both houses, the court cannot properly “pry” that power “from Congress’ grasp.”

Trump judge Daniel Collins dissented. He argued that under his view of the “plain language” of 2808, the border wall fell under the definition of “other activity” under the jurisdiction of the Secretary of Defense that can be undertaken pursuant to a presidential declaration of emergency.

The majority explained what was wrong with that claim, which was also raised by the Trump Administration. The administration’s broad interpretation of “other activities,” the majority pointed out, would grant “essentially boundless authority to build anything they want, anywhere they want,” if the DOD gains jurisdiction over “the land where the construction will occur.” It would allow the Administration to “redirect funds at will without regard to the normal appropriations process” or the specific statutory language in 1808 that states that “other activities” should relate specifically to a “base, camp, post, station, yard [or] center.” The administration’s broad interpretation, the majority went on, would “run afoul of the separation of powers, which provide Congress with exclusive control over appropriations.”

This case is far from over, since the Trump Administration may well seek a stay from the Supreme Court, as it did in a previous case.  At least as of now, as the Sierra Club has noted, the decision is “monumental for border communities, wildlife, and lands,” as well as “for democracy.” It it had been up to Trump judge Collins, however, wall construction would have continued.