Trump wins first “wall construction” case

The Trump administration won the first case challenging the construction of a wall in the southern border on February 11, 2019.  Center for Biological Diversity, etc. v. U.S. Department of Homeland Security, et al.  No. 18-55474 (9th Cir. 02/11/19).  The decision was rendered by the Court of Appeals 9th Circuit, which is reputed to be a liberal court. You did not hear about it? The liberal pro Demoncratic media did not publish it.

The appeals court affirmed the district court’s summary judgment in favor of the U.S Department of Homeland Security (“DHS”) in cases filed by three sets of plaintiffs involving the State of California and certain environmental groups challenging DHS’s authority to expedite construction of border barriers near San Diego and Calexico, California, and the Secretary of DHS’s waivers of applicable environmental laws.

The Court pointed out that under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the Secretary of the DHS has long had the authority “to install additional physical barriers and roads . . . in the vicinity of the United States border . . . .” IIRIRA § 102(a).  The Secretary also has “the authority to waive all legal requirements” that, in the “Secretary’s sole discretion,” are “necessary to ensure expeditious construction” of those barriers and roads. Id. § 102(c)(1).


On January 25, 2017, President Donald J. Trump issued Executive Order 13,767, directing federal agencies to “deploy all lawful means to secure the Nation’s southern border.” 82 Fed. Reg. 8793. A focal point of that directive was “the immediate construction of a physical wall,” to be planned, designed, and built “[i]n accordance with existing law, including . . . IIRIRA.” The “wall” was to be a “secure, contiguous, and impassable physical barrier” along the “contiguous land border between the United States and Mexico, including all points of entry.”

Pursuant to Executive Order 13,767, the Secretary of DHS invoked section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) to waive federal laws with respect to border barrier construction projects along the border between the United States and Mexico.

The plaintiffs’ “ultra vires claims” alleged that DHS exceeded its statutory authority in working on the border barrier projects and issuing the related waivers in violation of the Administrative Procedure Act (“APA”). Rejecting this claim, the Court held that the plain text of section 102(a) of IIRIRA granted DHS authority to construct the border barrier projects, and that grant of authority was not limited by section 102(b) of IIRIRA.

The plaintiffs’ “environmental claims” alleged that in planning and building the border barrier projects, DHS violated federal environmental laws. The Court also rejected this claim, holding that the environmental claims were precluded by the Secretary’s waiver of the National Environmental Policy Act, the Coastal Zone Management Act, and the APA. The Court said that it lacked jurisdiction to consider any argument challenging the waivers themselves.

Meanwhile the anti-Trump and pro illegal alien elements of American society filed today new cases against President Trump and the Department of Homeland Security to stop the construction of a wall on the southern border. “Where’s the beef?” If the most liberal court in the country has upheld the construction of a wall citing solid legal authority, who is the judge or court that will prevent such construction?

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. His current practice focuses on immigration law and appellate criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. Listen to The Tipon Report which he co-hosts with son Noel, the senior partner of the Bilecki & Tipon Law Firm. It is the most witty, interesting, and useful radio program in Hawaii. KNDI 1270 AM band every Thursday at 7:30 a.m.  Atty. Tipon served as a U.S. Immigration Officer. He co-authored the best-seller “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration process. He first came to the United States on a student/ exchange visitor visa to study at Yale. He returned to the Philippines to resume practicing law. He came again to the United States on a non-immigrant work visa to write law books, adjusted his status to that of a lawful permanent resident, and became a naturalized citizen. Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone (808) 225-2645.  E-Mail: [email protected] Websites: , , This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon the contents of this article.)

What’s Up Atty 2019 02 18 Trump wins first wall construction case