Exclusive–Lonergan: The Left’s Border Wall Legal Strategy Is Failing

Construction of New Southern Border Wall
U.S. Customs and Border Protection

The Supreme Court’s recent decision that allows construction of the border wall to continue was a huge win for President Trump and his supporters. Beyond what it means in the short term, the decision revealed something that the mainstream media will never report: for all its energy and bravado, the left’s vaunted efforts to block Trump’s construction of the border wall have largely been a failure.

President Trump’s election victory in November 2016 was a political tsunami that sent the Washington establishment and the radical left into a state of shock. Since then, they have directed all their considerable resources to delaying or destroying Trump’s agenda. High on the list of targeted agenda items was “Build that wall,” the signature immigration proposal of Trump’s campaign.

The Nancy Pelosi-led opposition in Congress was the first wave of attack, opposing all White House efforts to earmark funding for wall construction. After a 35-day partial government shutdown over the funding, Trump reached a deal that included only a paltry sum for the wall. But he then declared a national emergency at the border, which enabled him to re-allocate $2.5 billion from the Pentagon budget to wall construction. At this point, the political battle became a legal one.

The anti-wall legal forces employed their time-tested strategy: shop the nation for the most left-leaning lower courts to get favorable decisions. These provide low-hanging fruit, as the activists can get consistent results from courts like the notoriously liberal Ninth Circuit.

These tactics were meant to delay the wall for years, with construction blocked as meritless preliminary injunctions wound their way through the appeals system. While such delaying tactics might usually work, this time they hit a snag. The 5-4 conservative majority on the Supreme Court ruled in July of last year to suspend the injunctions, allowing wall construction to go on until the Supreme Court finally decides the issue. The recent decision in Trump v. Sierra Club continued that suspension, prompting Justice Stephen Breyer to lament in his dissent that the decision “may operate, in effect, as a final judgment.”

A major reason the anti-wall forces are failing is that their arguments simply don’t hold water. As the Immigration Reform Law Institute’s brief in Sierra Club showed, in the National Emergencies Act and various military appropriations statutes, Congress clearly provided that the President, in an emergency, could transfer military funds to military construction projects, and that building a border wall meets the statutory definition of a “military construction project.” Whatever injunctions or other favorable rulings the left can get in their cherry-picked lower courts, a sober assessment of the law at the Supreme Court under its current composition was bound to go against them.

The other flimsy argument used in last month’s case was an environmental one made by the Sierra Club. Through its ACLU lawyers, it claimed that it had standing to sue because wall construction is causing irreversible damage to legally protected cacti and other desert wildlife, as well as sacred tribal lands of Native Americans in the region.

The problem is, military appropriation statutes were not written to coddle the aesthetic sensibilities of self-proclaimed “environmentalist” groups, so injury to those sensibilities give them no standing to sue. Indeed, the argument is a case of shameless projection coming from the Sierra Club. The kind of unfettered illegal immigration sought by the anti-wall lobby is dramatically more damaging to the environment than any limited construction project. Decades ago, the Sierra Club, in exchange for a large donation, agreed to ignore that damage. That is the dirty little secret it has been hiding with its virtue-signaling opposition to national borders.

There is overwhelming evidence that immigration-generated population growth is fueling an increase in energy demand and the waste product that accompanies it. Immigrants to the United States alone produce about four times more carbon dioxide in the United States as they would have in their countries of origin.

In the border areas specifically, illegal immigration does terrible damage to the environment. The impact of this unending migration includes watershed degradation, soil erosion, damage to infrastructure, loss of vegetation and wildlife, and escaped campfires. Committed environmental groups like the Sierra Club should be leading the charge against this environmental crisis. Instead, because money talks, they file lawsuits to enable it to continue.

Make no mistake, the well-funded anti-borders movement does not sleep, is not surrendering, and will be back to fight another day. Anyone doubting that should consider the comments of ACLU attorney Dror Ladin after their recent Supreme Court defeat. “The administration has admitted that the wall can be taken down if we ultimately prevail,” he said, “and we will hold them to their word and seek the removal of every mile of unlawful wall built.” Even though this decision on construction didn’t go their way, they will simply work to dismantle the wall after construction is completed. This is not a battle that will have a clear end, but one that requires constant participation from those who want to preserve their safety and our national sovereignty.

As long as the Supreme Court’s majority tilts conservative and the left’s arguments are built on sand, however, these purveyors of lawlessness will continue to come up short in their mission to delay and destroy.

Brian Lonergan is director of communications at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.


Please let us know if you're having issues with commenting.