Victory! Fifth Circuit Gives Green Light to Trump’s Wall

January 9, 2020

Court agrees with IRLI that anti-wall activists likely lack standing

WASHINGTON – Yesterday, the Fifth Circuit Court of Appeals, agreeing with the position of the Immigration Reform Law Institute (IRLI) in a friend-of-the-court brief it filed on behalf of Congressman Andy Barr of Kentucky, issued a stay of a lower court’s injunction of President Trump’s transfer of military funds to build a border wall. This stay order, in conjunction with an earlier stay order by the Supreme Court, allows Trump to build his wall.

Since Trump took office, radical district courts have been issuing dubious rulings meant to keep America’s borders dismantled, and prevent barriers to illegal and massive legal immigration alike. Often, the “legal” bases for such rulings have been so flimsy that it is hard to avoid the conclusion that they were issued simply to delay fixing the border, in hopes that the political winds would change, and an anti-borders president be elected, before the rulings could be considered and reversed by higher courts.

Nowhere have these delaying tactics been clearer than in the emergency wall-funding cases. When Congress gave Trump inadequate funding for a new border wall, the president declared a state of national emergency at the border. This declaration allowed him to use certain categories of previously-appropriated Department of Defense funds to build his wall – funds that, together, he says are enough for the purpose.

In other words, Trump was going to build his wall. The House Democrats could not stop him. The Democrats and anti-borders Republicans in the Senate could not stop him, because Congress fell short of terminating Trump’s emergency with veto-proof majorities.

In response, the massive, well-oiled anti-borders legal machine sprang into action. Nonprofit groups represented by activist lawyers, together with activist-governed political jurisdictions, filed suit in friendly district courts in California and Texas. Both courts duly issued nationwide injunctions against Trump’s transfers of funds, with the California court enjoining the transfer of military drug-interdiction funds, and the Texas court later enjoining the transfer of other defense funds. However flimsy these rulings were – for one thing, the plaintiffs’ standing to bring the actions was nonexistent – appeals in the ordinary course would take many months, at least. During that time, the injunctions would force idleness on Trump while the cases wound their way through the courts – and no wall would go up.

Fortunately, the delaying tactics have failed when it comes to the wall. Last summer, the Supreme Court granted the government’s emergency petition (in support of which IRLI had filed a brief) for a stay of the injunction on the transfer of military drug interdiction funds. Yesterday the Fifth Circuit granted its stay of the injunction on the transfer of other defense funds. Together, the stay orders mean Trump can access all the money he says he needs to build the border wall in the coming months.

“It is good news that we are beginning to take the measure of our opponents, and to win,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Higher courts have moved quickly to block activists from thwarting the administration’s efforts not just on the wall, but on new asylum rules, too. We are pleased that, as a result, the attempts to leave this country paralyzed during an unprecedented border emergency have largely failed. We hope the tide is turning, and the activist lawyers and judges will find that even their attempts to delay the repair of our border will be of little use.”

The case is El Paso County, Texas v. Trump, No. 19-51144 (Fifth Circuit).

For additional information, contact:

Brian Lonergan • 202-232-5590 • [email protected]