Assuming, of course, Congress gets around to authorizing one. Earlier today, the Supreme Court shot down a challenge by environmentalists to the building of the long-promised, never-funded wall on the southern border. The court refused to grant cert to a challenge by three groups to stop the project before it began:
The U.S. Supreme Court on Monday rebuffed a challenge by three conservation groups to the authority of President Donald Trump’s administration to build a wall along the U.S.-Mexico border, a victory for Trump who has made the wall a centerpiece of his hardline immigration policies.
The justices’ declined to hear the groups’ appeal of a ruling by a federal judge in California rejecting their claims that the administration had pursued border wall projects without complying with applicable environmental laws. The groups are the Center for Biological Diversity, the Animal Legal Defense Fund and Defenders of Wildlife.
Their lawsuits said construction operations would harm plants, rare wildlife habitats, threatened coastal birds like the snowy plover and California gnatcatcher, and other species such as fairy shrimp and the Quino checkerspot butterfly.
Remember which federal judge wrote the initial ruling? None other than Judge Gonzalo Curiel, with whom Trump feuded during the 2016 campaign in what was predicted to be yet another end of Trump’s political aspirations. My, how times have changed.
Curiel ruled in February that a 1996 law aimed at stemming illegal immigration provided the Trump administration with the legal authority to waive environmental laws and permitting processes. Curiel noted at the time that his role on the bench isn’t to evaluate the wisdom of policy but to apply duly enacted and constitutional laws:
In his ruling Tuesday, Curiel at the outset acknowledged the political dissension over the border wall — and hinted at the extra scrutiny he and this case are under — but stressed that his decision here does not and cannot consider whether such border barrier plans “are politically wise or prudent.”
He then quoted U.S. Supreme Court Chief Justice John Roberts — who he pointed out is a fellow Indiana native: “Court(s) are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
That’s clearly what the Supreme Court thinks, too, or at least enough of the justices to matter. Don’t forget that it only takes four justices to grant cert, which means that the challenge to the 1996 law wasn’t significant enough to interest the four-member liberal wing, even with the Dark Night of Trumpism as an ever-present threat. For that matter, it didn’t interest enough of the limited-government contingent that appears to have arisen and might be preparing a powerful rebuke to property seizures by police. The federal government reaches its zenith of authority in national security issues, which includes border security whether people want to acknowledge it or not, so tripping over its own non-national security permit system makes little sense anyway.
That doesn’t automatically mean the wall will get built. Congress still has to fund it, and the incoming Democratic majority in the House will want a steep price for it — if they agree to fund it at all. There are several interest groups involved in that decision, but the Supreme Court has made it clear that the federal judiciary is not among them.