Judge in feud with Trump offers surprise on border-wall lawsuit

Remember Judge Gonzalo Curiel? Donald Trump certainly should. Judge Curiel presided over the lawsuit filed by Trump University students, whose rulings caused Trump to lose his patience and insinuate that Curiel’s Mexican ancestry (he was born in Indiana) made the judge biased against him. “He’s of Mexican heritage,” Trump told Jake Tapper. “We’re building a wall between here and Mexico,” he argued in June 2016. Trump finally backed down after getting flak from Newt Gingrich and other endorsers, and the issue faded fairly quickly as both parties wrapped up their primaries.

It turns out that Curiel wasn’t all that opposed to the wall after all, or at least not so much as to bias his professional and legal judgment. In a ruling today, Judge Curiel took Trump’s side on waivers to build the wall, telling California and environmental groups that Trump’s acting within his authority:

A U.S. judge on Tuesday sided with President Donald Trump’s administration and rejected an attempt by the state of California and environmental groups to stop the government from building a wall on the U.S. border with Mexico.

The lawsuit filed in a San Diego federal court alleged that Trump’s proposed wall violates federal environmental standards, as well as constitutional provisions regarding the separation of powers and states’ rights. …

Curiel said his decision on Tuesday was not based on whether the underlying decisions to construct the wall “are politically wise or prudent.” Rather, Curiel said the Trump administration had not exceeded its legal authority in pursuing the project.

So much for Trump’s argument on the TU lawsuit, eh? Not that it was much of an argument anyway, but to the extent anyone took it seriously, this ruling puts a spike through it.  The settlement reached under Curiel has been upheld by the Ninth Circuit in a unanimous decision, which makes it even more moot.

In fact, Curiel gives every impression of being precisely the kind of jurist that Republicans want — someone who rules strictly on the law rather than on policy. Curiel takes pains in his ruling to avoid either endorsing or opposing the Trump administration’s pursuit of a border wall. Instead of allowing himself to tip into activism, Curiel sticks to whether the administration has the authority to waive the federal environmental standards in implementing its national-security policies.

Curiel quotes Chief Justice John Roberts on this point, as the LA Times reports:

In Tuesday’s ruling, Curiel noted his U.S. roots while referring to the wisdom of U.S. Chief Justice John Roberts, a “fellow Indiana native,” in handling cases “surrounded by political disagreement.”

“Court[s] are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments,” Curiel quoted Roberts saying in a 2012 ruling. “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.”


Now that the lawsuit has been rejected, Trump can push forward with border-wall construction, although the same Ninth Circuit may get a call from California Attorney General Xavier Becerra. They may have a more expansive view of their “prerogative to make policy judgments,” but it’s a safe bet that Roberts himself would be more than happy to get the last word on that score. For now, Trump’s in good legal position to press forward, and he might want to thank his former target for his professionalism. But don’t hold your breath.