Federal court delivers small win to Trump on border wall

President Trump’s proposed border wall, which ran into a barrier in Congress and triggered a government shutdown, cleared one legal hurdle Monday when a federal appeals court rejected environmental objections by the state of California and advocacy groups to the construction of prototype walls and the replacement and strengthening of some border fences in San Diego and Imperial counties.

The Department of Homeland Security had legal authority to waive dozens of environmental laws in 2017 when it authorized building the model concrete barriers and replacing 28 miles of fencing in San Diego County and 3 miles at the border near Calexico, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

The court cited an immigration law signed by President Bill Clinton in 1996 that allowed Homeland Security to “install additional phys-

ical barriers and roads” near the border and override any laws that would interfere with “expeditious construction.”

The court did not address Trump’s demand for $5.7 billion for a wall at the Mexico border, the rejection of which by congressional Democrats led the president and Republican leaders to shut down many government operations for 35 days. A short-term federal funding bill expires Friday, and there has been no agreement yet on the wall or other security measures.

But the ruling was notable for its source, a court that Trump has called hostile and “disgraceful” for its decisions against him on other issues of immigration and presidential power. And an earlier ruling in the case, which the appeals court upheld, was issued by U.S. District Judge Gonzalo Curiel of San Diego, whom Trump has described as biased because of his Mexican ancestry.

In lawsuits challenging the Southern California projects, state Attorney General Xavier Becerra and environmental groups argued that the 1996 law’s authorization of “additional physical barriers” did not apply to replacements of existing barriers, such as the fencing in the two counties.

But the court said the construction in San Diego County was designed to replace fencing built in the 1990s with a more effective barrier, and the new fencing in Calexico would replace a 14-foot barrier with one that was 18 to 25 feet high. Those qualify as “additional physical barriers,” the court said, and even if they did not, they were covered by the 1996 law.

“To suggest that Congress would authorize [Homeland Security] to build new border barriers but (impliedly) prohibit the maintenance, repair, and replacement of existing ones makes no practical sense,” Judge M. Margaret McKeown said in the lead opinion.

She also said the projects were in areas of “high illegal entry,” another requirement of the 1996 law, as the areas ranked in the top 35 percent of border sectors in the number of undocumented immigrants apprehended there.

Judge John Owens joined McKeown’s opinion. Judge Consuelo Callahan, in a separate opinion, said the court should have dismissed the appeal because the law, in her view, allowed only a direct appeal to the Supreme Court.

Becerra’s office took some solace from the court majority’s willingness to consider its arguments.

“We are disappointed with the ruling, but pleased that the court recognized the Trump administration does not have unlimited power and that the administration’s authority to build a barrier along our border is subject to judicial review,” the office said.