Asks court for emergency approval

Trump administration asks court for emergency approval to proceed with border wall

By JOSH GERSTEIN

The Justice Department is pressing a federal appeals court for an emergency stay that would allow President Donald Trump to move forward with construction of two key stretches of border wall in Arizona and Texas.

In a filing late Monday night California time, Justice Department attorneys said the preliminary injunction issued by a federal judge in Oakland last month threatens to derail the construction by delaying the projects past the end of the fiscal year in September.

“The injunction threatens to permanently deprive [the Department of Defense] of its authorization to use the funds at issue to complete the El Paso and Yuma projects, because the funding will likely lapse during the appeal’s pendency,” Justice Department lawyers said in the motion filed with the San Francisco-based 9th Circuit Court of Appeals.

U.S. District Court Judge Haywood Gilliam granted the injunction on May 24, saying that the administration’s immediate plan to tap $1 billion in counter-drug funding for the border wall amounted to an unauthorized expenditure of government funds because it was not tied to an unforeseen emergency.

Gilliam said Congress already considered the administration’s requests for border barrier construction and appropriated only about $1.4 billion this year — far short of the $8.1 billion Trump is attempting to spend on the projects by tapping various sources of funding.

Trump declared a national emergency to unlock some of that funding, but the emergency was not invoked over the money at stake in the phases of the border wall blocked by the judge last month.

The Justice Department stay motion appears to mock the concerns raised by the plaintiffs who obtained the court order, the Sierra Club and the Southern Border Communities Coalition, that wall construction could interfere with other uses they make of lands along the border.

“The court seriously mis-weighed the balance of harms. Plaintiffs’ interests in hiking, birdwatching, and fishing — in two drug-smuggling corridors with deteriorating existing barriers — do not come close to outweighing the harm from interfering with efforts to stop the flow of drugs entering the country,” attorneys wrote.

The new motion appears to urge the appeals court to rule by June 17, saying that a ruling by that date “would allow the parties time to seek emergency relief, if necessary, from the Supreme Court.”

Justice Department lawyers say that if the contracting process isn’t fully green-lighted by late June, it may not be completed by the September 30 end of the fiscal year.

Earlier Monday, a Washington-based federal judge handling a lawsuit brought by the House of Representatives turned down that body’s request for a preliminary injunction. The House’s arguments are similar to those in the other suit, but the judge said the legislators have a variety of options to impact the administration’s actions, such as cutting off future funding.