While President Trump’s authority to spend money on his border wall remains uncertain, the Supreme Court rejected a challenge Monday to the administration’s power to override environmental laws during construction of 145 miles of barriers in California, Arizona, New Mexico and Texas.
Environmental and wildlife-protection groups argued that Congress violated constitutional standards with laws from 1996 onward that allowed the government to waive other federal, state and local statutes in order to install physical barriers and roads near U.S. borders “to deter illegal crossings in areas of high illegal entry.”
The laws were rarely used for 20 years, but the Trump administration has invoked them repeatedly to clear the way for the president’s signature project, a wall along 450 miles of the U.S.-Mexico border. The Department of Homeland Security has cited the 1996 law and its successors to waive environmental reviews, build on lands inhabited by protected species, take paths through private farmland, and uproot rare saguaro cactus plants in the Organ Pipe National Cactus Monument in Arizona.
Environmental advocates argued that the federal waiver law unconstitutionally ceded lawmaking powers to the executive branch. But a federal judge in Washington, D.C., upheld the law last September, saying Congress had determined in 1996 that the need to discourage illegal entry into the United States outweighed laws governing land use. The 1996 law also cut off normal routes of appeal and required opponents to take their case directly to the Supreme Court, which denied review Monday.
“We’re disappointed that the Supreme Court won’t consider the Trump administration’s flagrant abuse of the law to fast-track border wall construction,” said Jean Su, an attorney at the Center for Biological Diversity, lead plaintiff in the case. “This administration has made a mockery of the Constitution to build an enormously destructive wall. We’ll continue to fight these illegal waivers and do everything possible to prevent further damage to the beautiful borderlands.”
Environmental groups and a number of states, including California, are also fighting Trump’s orders to redirect billions of dollars in military funds for wall construction after Congress refused to appropriate the money.
The Ninth U.S. Circuit Court of Appeals in San Francisco ruled last Friday that Trump had lacked authority to divert $2.5 billion in military funds in order to build 130 miles of walls and barriers in California, Arizona and New Mexico. The 2-1 ruling said Congress, which has constitutional authority over federal spending, had designated the funds for military pay, weapons and other Defense Department purposes, and never allowed Trump to spend them on wall construction.
The Supreme Court, however, has allowed construction to continue during the funding dispute, which is likely to return to the high court in the aftermath of the Ninth Circuit ruling.
In Monday’s case, the environmental and wildlife advocates said the Department of Homeland Security had used the 1996 law, signed by President Bill Clinton, and followup statutes to override more than 40 environmental and land-regulation laws along 145 miles in the four states.
Acting Homeland Security Secretary Chad Wolf has “swept aside a vast breadth of public and private liberties protected by federal, state, local, and tribal statutes in the name of border wall construction — all without an iota of congressional guidance,” the advocates said in their Supreme Court filing.
Among other things, they said, Wolf’s department ignored the impact to “endangered species such as the jaguar, Mexican gray wolf, Sonoran pronghorn, and bighorn sheep, whose continued existence depends on the freedom of cross-border migration.” And they said the same law could conceivably be used to waive an array of legal protections, including minimum wages and bans on racial discrimination, anywhere within 100 miles of a land or sea border, including San Francisco.
In response, the Trump administration said the court has allowed Congress to delegate powers to the executive branch as long as that delegation includes standards, such as the need to prevent illegal immigration.
“It is Congress, and not the executive branch, that made the policy judgment in (this law) that the need for expeditious construction of barriers and roads in areas of high illegal entry in the vicinity of the United States border outweighs the policy interests advanced by other laws,” Justice Department lawyers told the court.
The case is Center for Biological Diversity vs. Wolf, 19-975.
Bob Egelko is a San Francisco Chronicle staff writer. Email: email@example.com Twitter: @BobEgelko