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After Loss in Federal Court, More Sections of Trump’s Border Wall Are Now in Danger


Last Friday, Judge Haywood S. Gilliam, Jr. of the United States District Court Northern District of California ruled that $1.4 billion of counter-drug funding could not be used to construct sections of President Donald Trump’s “border wall” planned for El Paso, Texas, and Yuma, Arizona. Judge Gilliam issued a preliminary injunction stopping (at least for now) the diversion of funds for Trump’s long-promised project.

Perhaps emboldened by the win, The ACLU (again, on behalf of the Sierra Club and the Southern Border Communities Coalition) filed a lawsuit in the same court to halt border wall construction in Southern California and near Tucson, Arizona. Wednesday’s filing— also before Judge Gilliam–alerts the court that its legal arguments and questions are  “virtually identical” to those presented in the prior lawsuit.

The plaintiffs’ arguments for their requested injunction focus primarily on environmental and recreational concerns.  Construction of a border wall would harm wildlife, disrupt migration, adversely affect hiking and fishing conditions, obscure views, and destroy the rich aesthetic of open land.

The plaintiffs also reminded Judge Gilliam of the findings he handed down just a few days ago, and called the Trump Administration’s legal arguments, “crabbed and implausible.” They argued that Trump’s proposed use of funding for the border wall would cause precisely the Constitutional crisis Judge Gilliam warned against, and raised an argument that served them well before – that any “need” for a wall was far from “unforeseen.”

Although Judge Gilliam’s ruling on the El Paso and Yuma sections was preliminary, the tenor of his opinion did not bode well for Trump.  Clearly, the judge was unconvinced that Trump has legal authority to circumvent Congress’ refusal to appropriate border-wall funding.  In his El Paso/Yuma ruling, he clarified that the central question wasn’t “whether the challenged border barrier construction plan is wise or unwise,” but rather, whether Trump has constitutional authority to undertake the plan at all. Judge Gilliam’s answer to that question was a simple: “No.”

He has now been asked the same question, and there is no reason to believe at this time that his response will differ in any meaningful way.

[Photo by Win McNamee/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos