Border battle goes to courts
‘Forum-shopping’ common, but not choice of judges
WASHINGTON – Congress can’t stop President Trump’s emergency declaration at the Mexican border, but the courts will have the final word.
After the president’s veto Friday of a congressional resolution rescinding his action, three little-known federal district judges have the best chance to block the emergency declaration. They will test Trump’s theory that the judiciary is prejudiced against him.
One is a 25-year veteran of the federal court system who was born near the Mexican border and chosen by President Bill Clinton.
Another was the last judge named by President Barack Obama to the federal district court in Northern California five years ago.
A third is a former police officer named to the federal bench by Trump in 2017.
They run the political gamut from left to right. Whether that matters depends on who’s talking.
To hear Trump tell it, the federal courts are run by “Obama judges” and others who bring their personal ideologies to the bench. He has singled out the U.S. Court of Appeals for the 9th Circuit, based in California, as a “dumping ground for certain lawyers looking for easy wins and delays.”
“They will sue us in the 9th Circuit,” Trump predicted when discussing his emergency declaration last month. “We will possibly get a bad ruling, and then we’ll get another bad ruling, and then we’ll end up in the Supreme Court.”
California and 19 other states did file their case in the San Francisco-based Northern District of California, guaranteeing that any appeal would be brought in the 9th Circuit. The Sierra Club, represented by the American Civil Liberties Union, also filed there.
The states’ case, and possibly the other, will be heard by federal District Judge Haywood Gilliam, an Obama
nominee. Gilliam sided with 13 states and the District of Columbia in their quest to block Trump administration changes to federal rules governing insurance coverage for contraceptives.
To hear Supreme Court Chief Justice John Roberts tell it, there’s no such thing as an “Obama judge.”
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts told The Associated Press this year in a rare rebuke of the president. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Choosing courts, not judges
What’s clear is that not all the lawsuits challenging Trump’s emergency declaration will be heard by liberal judges. Nor is it clear that it matters: Some judges nominated by Republican presidents have ruled against the administration on questions as diverse as the separation of immigrant families at the border and the separation of a CNN correspondent from his White House press credential.
Three liberal groups – Public Citizen, the Center for Biological Diversity and the environmental group Earthjustice –
filed separately in federal district court for the District of Columbia, where 11 of 14 judges were named by Democratic presidents. But the first two suits were assigned to Judge Trevor McFadden, nominated by Trump in 2017, and the third probably will be as well.
In Texas, where El Paso County is challenging the border emergency, District Judge David Briones picked up the assignment.
The U.S. District Court for the Western District of Texas has mostly Republican-named judges, but Briones dates back to the Clinton administration.
“In terms of statistics, it came out differently than one might expect,” Elliot Mincberg, senior fellow at the liberal interest group People for the American Way, said of the D.C. and Texas selections.
Federal district courts spread their caseloads among available judges, usually through a random drawing. At the appeals court level, clerks generally create three-judge panels randomly, mixing up the combinations monthly. Though “forum-shopping” by lawyers seeking friendly courts is common, the judges usually can’t be predicted.
At the district court level, where the border emergency challenges will begin, judges conduct extensive fact-finding. For that reason, Mincberg said, “the political background of judges individually tends to be a little bit less important.”
Later appeals to federal circuit courts and the Supreme Court use the facts to address legal and constitutional questions. Those courts are known for being more liberal – such as the 9th Circuit and the District of Columbia Circuit – or conservative, such as the 5th Circuit, which includes Texas.
It could take some time
The challenges will proceed slowly, partly because the Trump administration has yet to target specific funds not appropriated by Congress. The president’s emergency declaration Feb. 15 is intended to free up $3.6 billion in military construction funds, in addition to nearly $1.4 billion approved by Congress and other money he can access. For the coming fiscal year, Trump seeks an additional $8.6 billion for the wall.
Twenty state attorneys general, led by California’s Xavier Becerra, say the emergency declaration would redirect drug interdiction money and other money that would have gone to their states. The Sierra Club and ACLU argue that a wall would harm border communities and damage the environment.