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How President Trump Can Avoid The Ninth Circuit To Build The Wall

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Texas is covered by the Fifth Circuit of federal courts. Appeals from federal courts in Texas go to the generally conservative U.S. Court of Appeals for the Fifth Circuit which sits mainly in New Orleans.

The Southern international borders with California, Arizona, and New Mexico are within the Ninth Circuit. Appeals go to the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which has been widely criticized (including by Trump) as being out of the judicial mainstream and  sharply more leftist than the rest of the country.

Lawsuits are predicted and even threatened “within minutes” to try to block President Donald Trump if he declares a national emergency to re-purpose federal funds to fund construction of a border wall or barrier.

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A plaintiff must have “standing” — a personal interest in the litigation — not just a policy preference.  Unlike recent examples, few people will have standing to challenge a border wall by emergency declaration.  Neither taxpayers nor Members of Congress will have standing.  But immigration advocates will try.  They will flood the courts with challenges.

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As an attorney experienced working with public policy litigation, here is a practical plan for how Trump can keep the legal dispute entirely within the Fifth Circuit and out of the Ninth Circuit.

First, President Trump should get on Air Force One and fly to Texas to meet with Republicans opposed to illegal immigration Governor Greg Abbott, Senator Ted Cruz, and leaders of the Texas legislature.

Second, Governor Abbott should formally request the Texas legislature to issue an application for the federal government to defend the Texas border with Mexico. Section 4, Article 4 of the United States Constitution commands the United States Government – unconditionally – as follows:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive  (when the Legislature cannot be convened)  against domestic Violence.”

 (Emphasis added.)  

Texas, through its legislature, should make an explicit demand — as it is entitled to do — for the U.S. Government to defend the international borders affecting Texas.  Basically, the U.S. Constitution was a bargain.  The States submitted authority to the national government.  But in return the U.S. Government promised to secure the borders for the States.  The U.S. Government is seriously in breach of its obligations and has violated that quasi-‘contract.’

Note that unlike almost all other aspects of the Constitution, here the U.S. Constitution requires that Washington  “shall”  defend the States.  Therefore, what court has power to question the Commander in Chief in carrying out not just a power but a command from the U.S. Constitution?

Third, Trump should then declare a national emergency under 50 U.S.C. 1621.  Trump’s legal team needs to burn the midnight oil to carefully explain the grounds, lay a foundation, and present the situation properly.  Texas invoking Article 4, Section 4, would make that declaration nearly bullet proof.

Fourth, Trump should consider that this is not a mutually exclusive “either/or” situation.  Trump can declare a national emergency today while still negotiating with Congress and while pursuing funds confiscated from drug smugglers at the border.

Fifth, the declaration is separate from actually reprogramming federal funds.  Therefore, Trump should start building the border wall only in Texas.  (Where other money is available, construction can proceed under different authority.)

Remember that Congress has already authorized — even mandated — the construction of a border wall.  In 2006, Congress enacted and President George W. Bush signed into law, the Secure Fence Act of 2006.  The problem is that Congress never fully funded the Secure Fence Act of 2006.  Building a barrier is the law.  Building the wall is mandatory.  Funding it is the only challenge.

Trump can use the declaration of an emergency to activate  33 U.S. Code § 2293  “Reprogramming during national emergencies” and redirect funds from other areas of the government to construction of the border wall.   Other possible statutes include 10 U.S. Code §2803 and 10 U.S. Code §2808.

Sixth, Trump as an experienced builder should break up the process into its separate parts.  Many parts of the project can be funded out of existing federal programs without any special funding.

Before even using reprogrammed funds, Trump should immediately order the Defense Mapping Agency, the National Imagery and Mapping Agency, and the U.S. Geological Survey to compile a comprehensive analysis and study of every mile of the border including LANDSAT satellite imagery. The Republican U.S. Senate should order the Congressional Research Service to compile a comprehensive analysis of the entire border.

Trump as Commander in Chief should order the military to the border and order them to clear and prepare a strip of land along the Texas border, maybe 1,000 to 1,500 feet wide, and build an access road anywhere it is not present.  These are actions that are appropriate for a military deployment and for management of the border, regardless of whether a border wall is the end result or not.  The military as part of their deployment should move in mobile trailers for housing, equipment to manage the land, etc. like earth-moving equipment, freight trucks, etc.

Seventh, Trump should order an easement along the international border taken by eminent domain — but for now only in Texas.  In the past, passive resistance by the bureaucracy tried to take entire ranches by eminent domain, thus driving up the price.  These “designed to fail” approaches must stop.  The U.S. Government should take only an easement along the border maybe 1000 feet wide, not entire ranches.  The cable company would take an easement, not someone’s entire land.

In fact, the State of Texas should take the easement along the international border by eminent domain.  That would keep any disputes within Texas courts, not in the Ninth Circuit.

The government can take an easement immediately and then fight later over how much money should be paid to the landowner.  Remember that this was the legal holding of the over-the-top, controversial U.S. Supreme Court precedent Kelo v. City of New London, Connecticut, 545 U.S. 469, 125 S. Ct. 2655; 162 L. Ed. 2d 439 (2005).  Kelo ruled that it is not even necessary to show a “public purpose” for eminent domain.  Legal challenges will not stop construction, even it takes years to reach agreement on the compensation payable to landowners.

Eighth, Trump should be careful not to take funds away from a purpose that will create a plaintiff.  There has been talk of taking hurricane disaster relief funds earmarked for Puerto Rico that have not been put to use.  That would give Puerto Rico standing to file a lawsuit against Trump’s actions.  Puerto Rico is in the First Circuit.  There is also talk of taking hurricane disaster funds meant for Texas.  That would keep the dispute in the Fifth Circuit.  Eventually, of course, funds will be made available.  Congress would have to appropriate supplemental funds to fully fund any legitimate disaster relief or reconstruction needs.

Trump’s legal team needs to carefully prepare any such initiative before hitting “send.”  Each individual component of the construction should be considered separately — not as a single project — so that different pockets of money can be re-purposed from different sources.

When funds are reprogrammed to actions very similar to the original purpose of the funds, the case for reprogramming is stronger and may not even require any emergency.  Again, many of these actions are perfectly valid and entirely necessary merely to maintain the country’s international border even without a plan to build a border wall.

Trump’s legal team needs to carefully scrutinize each source of funds being re-purposed and each action being taken to avoid offering any room for plaintiffs to claim they have standing — that they are individually, personally, tangibly harmed.  Being affected in a positive way doesn’t count for standing.  Actions whose benefits outweigh negative impacts may (the courts have been inconsistent) defeat standing.  For example, a landowner with a border wall along their property would have increased property values by not having trespassers trampling across their land, leaving trash behind, and scaring their family in their bedrooms at night.  However, if funds are taken away from a different program, the President should consider who might be a plaintiff in a lawsuit because funds are moved away from their original purpose…. unless that original project comes in under budget.

[Update:  One commenter suggested calling the border wall a memorial and naming every mile of the structure in memory of a U.S. citizen (or lawful permanent resident) killed by an illegal alien who was in the United States unlawfully.  This may sound cheesy at first.  But when it comes to public debate and what it takes to pierce through political fights, it would actually help make the point.  Trump in any event needs to immediately order — using existing funds — a comprehensive survey of the border including with satellite imagery.  Trump could then designate each mile of the planned border wall, with the assistance of The Remembrance Project.  A bit much?  Whatever it takes.  Open border advocates will stop at nothing and engage in demagoguery.  Therefore, a winning strategy has to consider overcoming the intense and mostly dishonest resistance.]

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