A federal appeals court will hear arguments Tuesday by the state of California and advocacy groups who contend the Trump administration overreached by waiving environmental reviews to speed construction of the president's prized border wall with Mexico.
California is appealing a decision by U.S. District Judge Gonzalo Curiel of San Diego, who sided with the administration in February. The president had repeatedly berated Curiel during the 2016 campaign over an unrelated case involving fraud allegations and now-defunct Trump University.
At issue before a three-judge panel in Pasadena, California, is a 2005 law that gave the Homeland Security secretary broad authority to waive dozens of laws including the National Environmental Policy Act, Clean Air Act and Endangered Species Act. Those laws require time-consuming reviews and are subject to prolonged legal challenges that can delay or even derail projects.
California argues that the waiver authority expired in 2008, when Homeland Security satisfied congressional requirements at the time on how much wall to build. It is being joined in the appeal by the Center for Biological Diversity, the Sierra Club, Defenders of Wildlife and Animal Legal Defense Fund.
The administration has issued three waivers in the last year, two to build in parts of California and one in part of New Mexico. President George W. Bush's administration issued the previous five waivers, allowing the government to quickly extend barriers to about one-third of the border.
In California, the government began replacing barriers on a 14-mile stretch in San Diego and a 2-mile stretch of Calexico. The waivers also cleared the way for it to build eight prototypes in San Diego to guide future designs.
Trump is seeking $25 billion over 10 years for the border wall and other border security technology and has held out the possibility of a government shutdown if Congress doesn't fund one of his signature campaign pledges. The administration received $1.6 billion this year and has requested the same amount in next year's budget, largely to build in Texas' Rio Grande Valley.
Legal challenges to border barriers have failed over the years amid national security concerns. The Congressional Research Service said in a report last year for members of Congress that it saw no legal impediments to construction if deemed appropriate for controlling the border.
Curiel mentioned his Indiana roots in his 101-page ruling on the wall when he cited another native of the state, U.S. Supreme Court Chief Justice John Roberts, who wrote in another case that courts should not make policy judgments.
"The court cannot and does not consider whether the underlying decisions to construct border barriers are politically wise or prudent," Curiel wrote.