There is positive news of progress in the fight to build the wall this week. The 9th Circuit Court of Appeals officially voted against the Center for Biological Diversity (CBD) and for the Department of Homeland Security (DHS) in a landmark border wall construction appeal case. The case was attempting to overthrow a prior District Court decision. We’ll tell you the details of the case and reveal what makes it so noteworthy in the shortlist below.
- CBD, in tandem with non-profit organization Defenders of Wildlife, had originally sued the Department of Homeland Security in the District Court. They claimed DHS exceeded legal rights to waive environmental regulations during construction in specific zones, while also accusing DHS of misusing waivers regulated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
- Both CBD and DoW felt the waivers were “unconstitutional.” They also believed that constructing the wall would cause irreparable harm wildlife and migration paths. Their goal? To use legal regulation to try to stop the project; accusing the government of direct environmental harm would never get enough support. In short, they tried to use a loophole and failed.
- The District Court rejected the lawsuit originally, stating that only the Supreme Court had jurisdiction over the issue. The plaintiffs then brought the case to the Supreme Court, who refused to hear the appeal. They did, however, suggest the option of a rehearing in the 9th Circuit Court.
- The 9th Circuit Court instead ruled in favor of the government on DHS’s legal ability to waive environmental laws potentially barring construction at zones near San Diego and Calexico. A summary judgement, found here, reveals that CBD’s own attempt at using questionable legal loopholes may have actually worked against them.
- The 9th Court rejected CBD and DoW’s arguments based on section 102(c)(2)(C); it reads as follows. “An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States.” To simplify? The 9th Court really has no jurisdiction here.
- At the closing of the document, the 9th Circuit Court clarifies this position. “Section 102(c)(2)(A) first provides that district courts “shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken , or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1),” it reads. “… [a] cause of action or claim may only be brought alleging a violation of the Constitution of the United States.” My colleagues do not think that the second clause modifies the district court’s jurisdiction.”
- The “Plain English” version essentially boils down to this: CBD and DoW accused DHS of abusing waivers under the IIRIRA. However, their accusations were based on the alleged fact that their abuse stemmed from a violation of the Constitution. While the 9th Circuit does have jurisdiction to oversee cases involving these waivers, they do not have precedence to oversee cases regarding Constitutional violations.
- Judges M. Margaret McKeown and Consuelo M. Callahan both agreed that the argument of Constitutional violation carried more weight than the argument of misused waivers. Judge Callahan summarily dismissed the appeal, scoring a significant win for progress on the wall in at least two zones.