Attorney General Becerra: Constitution, Rule of Law Barriers to Trump Border Wall

AG Becerra files lawsuit to protect Californians, environment against executive overreach in border wall projects

SAN DIEGO – California Attorney General Xavier Becerra today challenged the Trump Administration over its plan to begin construction of border wall projects in San Diego and Imperial Counties. In a lawsuit filed in the U.S. District Court for the Southern District of California, on behalf of the people of the State of California and the California Coastal Commission, Attorney General Becerra charges that the Trump Administration violated the U.S. Constitution, failed to comply with federal and state environmental laws, and relied on a federal statute that does not authorize the proposed projects.

“The Trump Administration has once again ignored laws it doesn’t like in order to resuscitate a campaign talking point to build a wall on our southern border,” said Attorney General Becerra. “President Trump has yet to pivot from candidate Trump to leader of a nation built on the rule of law. That's dangerous. When you respect the law, you instill confidence and certainty in your people, so critical for success. That's why California, while only one of 50 states, has become the sixth-largest economy in the world. And that's why, if you plan to do business in California, and that includes the President, then be prepared to follow the law.”

“The California Coastal Commission is charged with upholding one of the strongest environmental laws in the country: the California Coastal Act,” said Coastal Commission Chair Dayna Bochco. "We must be allowed to do our job, which is to make sure this wall and its construction impacts don’t destroy this environmentally rich area.” 

On January 25, President Trump issued an Executive Order that directed the Secretary of the United States Department of Homeland Security (DHS) to identify and “allocate all sources of Federal funds for the planning, designing and construction of a physical wall along the southern border.” Pursuant to the Executive Order, DHS announced on August 2 that it intended to carry out various border wall projects in San Diego County, including the construction of prototype walls and fences and the replacement of 14 miles of existing primary fencing with new fencing. DHS also has announced that it intends to replace 14 miles of existing secondary fencing, in this same area, with a solid wall or other barrier.

Former DHS Secretary (now White House Chief of Staff) John Kelly moved to expedite these construction projects using a federal statute that pertained to border projects proposed and constructed before 2009. And just last week, DHS announced it also intended to carry out a border wall project in Imperial County. Like former Secretary Kelly, Acting Secretary Elaine Duke proposed unlawfully expediting the construction of this project.

In the complaint filed today, Attorney General Becerra describes the ways in which the border wall projects are unlawful:

• DHS failed to prepare an environmental impact statement with respect to the border wall projects in San Diego and Imperial Counties in violation of the National Environmental Policy Act and the Administrative Procedure Act. DHS also failed to comply with the Coastal Zone Management Act with respect to wall construction in San Diego County.

• To expedite construction of the border wall projects in San Diego and Imperial Counties, DHS relied on Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Section 102 allows the DHS Secretary to waive any law he or she deems necessary to “install additional physical barriers and roads...in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” Congress required DHS to identify “priority areas” for construction and to complete that construction on an expedited basis by no later than December 31, 2008 – almost ten years ago. The Secretary’s authority to waive laws under Section 102 expired in 2008, and DHS did not identify the San Diego or Imperial project areas as “priority areas” before this deadline.

• DHS’ improper application of the waiver provision under Section 102 violates several provisions of the U.S. Constitution, including the Separation of Powers doctrine and the 10th Amendment. The Constitution does not permit government officials to unilaterally and arbitrarily waive any law of their choosing, including criminal laws and laws enacted by the States.

A copy of the lawsuit is attached to the electronic version of this release at oag.ca.gov/news.