Environmentalists Forum Shop and Find a Tame Obama-Supporting Federal Judge to Stop Wall Construction

Detail from "The Bench" by William Hogarth (1758) judge, judges, court, courts

This was sort of inevitable, in fact it was so inevitable that it is more axiomatic for the behavior of the federal judiciary since January 20, 2017 than it is surprising.


Since the brief shutdown of the government (and by shutdown I mean paid vacation for affected federal workers), the Trump administration has been using other means than a direct appropriation to fund the building of the wall. Some of it completely above board, and some relying upon an emergency declaration by President Trump to make it happen. This is the round-up from my post President Trump’s Emergency Declaration Is Much Less Radical Than TDS Sufferers Are Claiming:


Some quick notes on early coverage of President Trump’s announcement today that pretty much all reporters are missing 1/

The WH did not make one executive action today. In reality they made three, only one of which involved an emergency declaration. 2/

First the WH announced they would be funding $601 million in wall construction from the Treasury Forfeiture Fund, relying on 31 U.S.C. § 9705. This does not require an emergency declaration. 3/

Second, the WH announced they would be funding $2.5 billion in wall construction under 10 U.S.C. § 284 (this is MilCon $ for combating drug trafficking). This does not require an emergency declaration. 4/

Finally, the WH announced they would be funding $3.6 billion under 10 U.S.C. § 2808. This money does require an emergency declaration. 5/

According to the WH this money will be spent sequentially so the § 9705 money will be spent first then the § 284 money then the § 2808 money. 6/

So depending on how fast they can begin construction, they will have to spend over $5 billion (including the $1.3 billion in fencing appropriations) before any of the emergency money is ever tapped 7/

As Conn Carroll makes clear, the emergency declaration is not something that is going to happen immediately. To spend $5 billion takes time, even for the US government. I don’t know what kind of a contract vehicle they have for building and constructing the wall. Unless they have one that can be used, that is, one that has not exceeded its original award amount by a certain percentage via modifications, a new bid process will be required. If there is an Indefinite Delivery/Indefinite Quantity (ID/IQ) vehicle available, the vendors covered by that contract will have to submit bids.


Knowing there is never a reason to be concerned about the law if you are suing President Trump in the Northern District of California, a group of “citizen groups” led by Sierra Club did just that and got the expected result.

A federal judge has partially blocked President Donald Trump’s plan to fund construction of a wall along the U.S.-Mexico border.

The preliminary injunction issued Friday immediately halts a $1 billion transfer of Pentagon counterdrug funding to cover expansions and enhancement of border barriers.

The court order also appears to jeopardize another $1.5 billion of the $8.1 billion the administration planned to use for border construction.

However, Oakland, Calif.-based U.S. District Court Judge Haywood Gilliam’s order only limits construction in specific border areas in Texas and Arizona and does not prevent the administration from tapping other funding sources to advance those projects.

Gilliam said the administration’s plan to transfer counterdrug funding to finance the border-wall construction appeared to be unconstitutional because the legal authority the administration was relying on applied only to “unforeseen” needs.

I’m not an authority on this, but I’m pretty sure that drug gangs using the mass of migrants crossing the border to mask and to facilitate drug smuggling is a fairly new, and “unforeseen,” development.


Outside the practice of Lex Trumpis, that is, law designed to harass the Trump administration and stymie any action by them, this is a rather extraordinary ruling. Consider:

  • The judge gave a coalition of environmental and NeverTrump groups, to the extent these are not the same overlapping circles on a Venn Diagram, standing to challenge the construction not on grounds that the wall construction violated some federal law but that the administration was unconstitutionally spending the money because its rationale was wrong. If this is not a signal event in American jurisprudence, it is certainly a very, very, very, very rare one.
  • Suit was filed in the Northern District of California. The section of the wall being challenged is in Texas and Arizona. How this case was even considered is truly bizarre because the traditional venue for challenging actions is either in the pertinent federal district or with in the District of Columbia. Texas, one should note, is not even in the Ninth Circuit.

And of course:

A federal judge who partially blocked President Trump’s plans to build a border wall along the United States-Mexico border previously donated almost $30,000 to former President Obama, other Democrats, and a political action committee.

U.S. District Court Judge Haywood Gilliam, an Obama appointee confirmed in 2014, donated $6,900 to Barack Obama’s debut campaign for president and $14,500 to his reelection campaign, according to federal election records. The same records also indicate he contributed $4,500 to the Democratic National Committee in 2012 and, between 2012 and 2015, sent $3,100 to the Covington Burling LLP PAC, which supports candidates from both parties. His contributions totaled $29,000.


Despite the bleating to the contrary of Chief Justice John Roberts and NeverTrumpers everywhere, we are seeing a very clear pattern of judges appointed by Barack Obama acting as enforcers for the Obama legacy and as stumbling blocks for the Trump administration. One only has to look at the saga of the so-called “travel ban” to see this in action.

Both President Trump and Attorney General William Barr have expressed their displeasure at how lower court judges are deciding matters not involving their districts and demanding that their decisions apply nationwide. We should hope that Barr goes to war against this nonsense and forces the Supreme Court to clearly limit the power of federal district court judges to decide any matter that lies outside the geographic limits of their court.

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