Access to Justice

Tribe, Ex-Gov’t Officials Argue Against Border Wall Funding

A Native American tribe, former government officials, law professors and scores of religious groups threw their weight behind the states and advocates challenging the Trump administration’s efforts to use defense funds to build a southern border wall, filing amicus briefs Thursday at the Ninth Circuit.

The four separate briefs come after the U.S. House of Representatives filed its own brief days ago arguing that the Trump administration is defying the American system of checks and balances.

In their various briefs, the groups all urged the Ninth Circuit to uphold an injunction that stops the administration from using the $2.5 billion it drew from defense accounts for barrier projects.

The appeal centers on President Donald Trump’s decision to declare an emergency and pull money from the military to pay for southern barriers.

States including California and New Mexico, as well as advocacy groups like the Sierra Club and the Southern Border Communities Coalition, lodged challenges to the fund diversion, securing a permanent injunction in California federal court in June. But appeals quickly followed and the U.S. Supreme Court ultimately froze the block last month while it’s under review at the Ninth Circuit.

On Thursday, the Tohono O’odham Nation told the appeals court in its brief that a border wall “would divide the nation’s historic lands and communities, hamper the nation’s traditional crossings for domestic, ceremonial, and religious purposes, prevent the migration of wildlife, exacerbate flooding, harm wildlife and natural resources sacred to the O’odham, and militarize the nation’s border.”

The tribe said in its brief that about 2,000 of its members live on the Mexican side of the border.

Tohono O’odham Nation Chairman Ned Norris Jr. also said in a statement emailed to Law360 on Friday that “the President is diverting billions of taxpayer dollars away from supporting our men and women in the military to satisfy his personal political agenda.”

“He would use this money to destroy property of immense religious and historic significance, all to construct a static wall that will fail to secure the border from anyone with a ladder or a shovel,” Norris said. “This is a complex issue that calls for comprehensive immigration reform, not 14th Century ideas.”

In their own brief, 60 former U.S. government officials argued that “in their professional opinion, there is no factual basis” for the emergency declaration to divert the defense funds.

The officials previously worked in agencies and offices including the Central Intelligence Agency, Department of State, the Bureau of Population, Refugees, and Migration, U.S. Customs and Border Protection, the U.S. Department of Homeland Security and the National Counterterrorism Center.

The president’s proclamation at the heart of the appeal came after Congress denied funds for a wall during the protracted government shutdown earlier this year. Though the impasse ended after lawmakers gave almost $1.4 billion for the project, Trump nevertheless declared a national emergency to allow the administration to tap into defense funds.

Days after the justices’ decision that allowed Trump to move forward with using $2.5 billion in defense funds, the Trump administration argued before the Ninth Circuit that the district court’s “extraordinary orders” must be vacated because the U.S. Department of Defense had the statutory authority to transfer funds for the projects.

But not all amicus briefs filed in the cases have opposed the border wall. Earlier this month, Rep. Andy Barr, R-Ky., and Advocates for Victims of Illegal Alien Crimes, a group that says it aims to stop crimes committed by unauthorized immigrants by calling for their deportation, separately told the circuit court that Trump’s efforts to tackle issues such as violence and drug trafficking outweigh opponents’ claims of harm.

Trump has said the barrier projects are intended to prevent people from entering the country illegally and to quell drug smuggling.

In another Thursday brief supporting the states and advocacy groups challenging the fund diversion, groups centering on Muslim, Catholic, Mennonite, Jewish, Episcopal, Methodist and other faiths said that “the risks of an unchecked executive with access to unlimited funds to implement its agenda are shared by all potentially-disfavored groups.”

“Indeed, several amici represent groups that have already been specifically targeted by President Trump, such as Muslims, immigrants, and refugees, and all amici are justly concerned that the president will, if permitted, use his newfound power to re-direct appropriations to impinge on the rights of religious minorities,” the religious groups argued.

Adeel Abdullah Mangi of Patterson Belknap Webb & Tyler LLP, one of the attorneys representing the religious groups, told Law360 in an email Friday that “religious groups have a unique perspective, informed by history, on the dangers posed by an unchecked executive with access to unlimited funds.”

In the remaining Thursday brief, law professors from University of California, Berkeley School of Law, Cornell University Law School, University of Chicago Law School and University of Texas School of Law hit back at the Trump administration’s claim that the groups suing don’t have standing “because they fall well outside its zone of interests.”

“From the earliest days of the American Republic, courts have consistently heard claims that executive branch officials exceeded their statutory power or violated the Constitution without requiring a statutory cause of action,” the professors argued. “This case is no different.”

The U.S. Department of Justice declined to comment Friday.

Representatives for the remaining parties could not be immediately reached on Friday.

The Tohono O’odham Nation is represented by its acting attorney general and attorneys from Dentons.

The former government officials are represented by attorneys from Messing & Spector LLP, Boies Schiller Flexner LLP and Peter Gruber Rule of Law Clinic.

The religious groups are represented by attorneys from Patterson Belknap Webb & Tyler LLP.

The law professors are represented by the Constitutional Accountability Center.

California and New Mexico are represented by attorneys from the California Department of Justice and the State of New Mexico.

The Sierra Club and Southern Border Communities Coalition are represented by attorneys from the American Civil Liberties Union Foundation, the American Civil Liberties Union Foundation of Northern California Inc., the American Civil Liberties Union Foundation of Texas, and the Sierra Club Environmental Law Program.

The administration is represented by the U.S. Department of Justice’s Civil Division.

The cases are Sierra Club et al. v. Donald J. Trump et al., case numbers 19-16102 and 19-16300, and State of California et al. v. Donald J. Trump et al., case numbers 19-16299 and 19-16336, in the U.S. Court of Appeals for the Ninth Circuit.

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