Judge Leans Toward Asserting Right To Rule On Border Wall
A judge who was berated by Donald Trump during the presidential campaign said Friday he was inclined to conclude he can decide a lawsuit that challenges the president's proposed border wall with Mexico but gave no indication how he'll rule.
U.S. District Judge Gonzalo Curiel said during 2½ hours of arguments that he was leaning toward deciding he has jurisdiction in a lawsuit that alleges the Trump administration overreached in waiving dozens of laws that require environmental and other reviews. The administration argues he doesn't have jurisdiction.
Curiel asked the administration and wall opponents for additional briefings by the end of Tuesday. He said he planned to decide within days after that whether to dismiss the lawsuit by the state of California and environmental advocates or let it proceed, but cautioned that "there's a lot of work here."
At the start of his first hearing on the case, Curiel acknowledged "keen interest" and told everyone in his wood-paneled courtroom to behave respectfully. Then both sides delved into detailed discussion on a 2005 law that gave the Homeland Security secretary broad authority to waive environmental reviews to build border barriers.
Trump repeatedly attacked Curiel as the judge presided over 2016 lawsuits alleging fraud at the now-closed Trump University neared trial, suggesting that the Indiana-born judge's Mexican heritage exposed a bias because of Trump's stands on immigration and border security. Trump settled the case for $25 million shortly after winning the election, without admitting wrongdoing.
Curiel, who was forced out of his home and needed around-the-clock protection when he prosecuted Mexican drug kingpins in the 1990s, was unfazed by Trump's criticism during the campaign, said Gregory Vega, a former U.S. attorney in San Diego and longtime friend.
"He's had a credible threat made on his life. I don't think when he was called names, I don't think that really bothered him," said Vega.
The Center for Biological Diversity was first to sue over the wall. Three other groups — Sierra Club, Defenders of Wildlife and the Animal Legal Defense Fund — later filed a lawsuit. California Attorney General Xavier Becerra, a Democrat, then filed another lawsuit and Curiel consolidated all three cases into one.
The 2005 law granted powers to waive the National Environmental Policy Act, Clean Air Act, Endangered Species Act and other laws that require time-consuming reviews and are subject to prolonged legal challenges.
The Trump administration has issued three waivers since August, two to build barriers in parts of California and one in part of New Mexico. President George W. Bush's administration issued the previous five waivers, clearing the way for the government to extend barriers to its current 654 miles (1,046 kilometers) of the 2,054-mile (3,286-kilometer) border with Mexico.
Legal challenges to border barriers have failed over the years amid national security concerns. The Congressional Research Service said in a report last year for members of Congress that it saw no legal impediments to construction if deemed appropriate for controlling the border.
On Friday, Michael Cayaban, California deputy attorney general, characterized the administration's position as "waiving any law, anywhere along the border without limitation" and called it "a case of extreme overreach by the executive branch."
The judge showed little interest in California's argument that the 2005 law limits waivers to areas with high numbers of illegal crossings and that California doesn't qualify. Curiel said such discussions were "going into the weeds" and could lead to litigation that Congress sought to avoid in 2005.
Curiel questioned both sides extensively on requirement for the Homeland Security secretary to consult federal agencies, state and local governments, Indian tribes, and property owners "to minimize the impact on the environment, culture, commerce, and quality of life." He asked both sides for additional briefings on the topic.
Galen Thorp, an attorney for the administration, said consultations are made to limit impacts but that allowing them to delay construction could lead to protracted litigation that Congress didn't want.
Trump has insisted on $25 billion for border security measures as part of an immigration deal that would include a path to citizenship for 1.8 million people. A proposal by Customs and Border Protection calls for spending $18 billion over 10 years to extend barriers to nearly half the 2,054-mile (3,286-kilometer) border.
One of the administration's environmental waivers is for San Diego, where private contractors recently built eight imposing prototypes to guide designs for future construction. Another is in the town of Calexico, where construction is scheduled to begin Feb. 15.