Homeland Security rushed to the Supreme Court Wednesday seeking the justices’ permission to keep building President Trump’s border wall in Texas’s Big Bend region.
The case pits some of the country’s most iconic environmental protection laws, such as the Endangered Species Act, against Mr. Trump’s marquee campaign promise of sealing off the southern border with a “big, beautiful wall.”
A lower court had issued an injunction in early October halting construction, after finding that the government had illegally waived environmental and historic preservation laws.
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Solicitor General D. John Sauer on Wednesday said nearly 300 miles of the planned wall are imperiled by that “baseless” ruling.
And he said the consequences of halting construction are severe.
“Leaving a 300-plus-mile gap in border defenses would act as a dangerous magnet for cartels and other bad actors to exploit as other routes close off,” he told the justices in his petition seeking to revive construction.
The case is the latest to challenge wall construction, though the first to reach the justices that involves Homeland Security’s waiver powers.
Under a 1996 law, the administration can grant waivers of federal, state and local laws. The 2005 Real ID Act then limited judges’ ability to review those administration decisions, and guaranteed appeals quickly head to the Supreme Court.
The waivers can only be applied in areas of “high illegal entry.”
Waivers have been used several times before, by both Republican and Democrat administrations.
But Mr. Trump’s expansive second-term wall building is testing the limits, with construction in areas previously thought to be so remote that they didn’t need fences.
U.S. District Judge Kathleen Cardone, a George W. Bush appointee to the court in western Texas, ruled that a waiver was inappropriate because the Border Patrol’s Big Bend sector was actually the quietest portion of the border.
Big Bend accounts for about one-quarter of the 1,954-mile border, but less than 2% of total illegal crossings detected over the last 30 years. As for drugs, less than 1% of non-marijuana seizures took place in the sector.
Judge Cardone said if Congress had meant to include the least-active sector, it would have written the law differently, dropping the high-entry language.
She cited the so-called “major questions doctrine,” a legal theory that unless Congress speaks explicitly when granting power to the administration, courts shouldn’t infer it. She said that applied here, where the law was unclear on what high-entry areas entailed.
“Therefore, the court finds that Plaintiffs are likely to succeed on the merits of their major questions doctrine claim that the Big Bend Waivers were issued in excess of the secretary’s authority,” she wrote.
On Wednesday, Judge Cardone declined to put her ruling on hold, which prompted the speedy appeal to the Supreme Court.
Mr. Sauer argued the case never should have gotten this far.
He said those who challenged the wall construction gained legal standing to sue based on their spiritual and aesthetic enjoyment of the remote area. He said it was bizarre to think that trumped the government’s “paramount interest” in stopping illegal smuggling of drugs and people.
But Zeynep Graves, a lawyer at the Center for Biological Diversity, which is one of the challengers in the case, said the Big Bend area — home to the eponymous national park — is one of the country’s “wildest, most extraordinary landscapes.”
“Once Big Bend’s canyons, cultural treasures and wild ecosystems are destroyed, they’ll be lost forever,” she said.
She said Congress must give approval for a wall-building as extensive as Mr. Trump envisions.
The border wall was the most visible of Mr. Trump’s promises from his 2016 campaign, though his first administration struggled to follow through.
Congress was reluctant to give him the money he sought, prompting him to siphon money from Pentagon accounts instead.
He sped construction of fencing but slow-walked the rest of the wall — the roads, sensors and lights that help agents detect illegal crossings and rush to be in place to nab those that made it over.
Mr. Trump has had more success in his second term, winning tens of billions of dollars in wall money from Congress.
As of last week, more than 280 miles of new border barriers had been erected since Mr. Trump took office for his second term. Some 86 of those miles are walls in locations where no barrier existed before. Another 97 miles are secondary barriers, providing a line of defense behind an initial wall.
The rest of the mileage is either water barriers or places where existing barriers, such as outdated fencing or vehicle blockades, have been upgraded.
More than 1,170 additional miles are under construction and another 600 miles are in the design phase.
DHS Secretary Markwayne Mullin said on SiriusXM’s “David Webb Show” this week that they expect to complete the primary wall next year.
He said they have faced “thousands of lawsuits” hindering construction.
“They’re not going to prevent it, but it has slowed us down slightly. That’s not going to prevent us from having the primary wall completed in 2027,” he said.
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