Last Friday the 9th U.S. Circuit Court of Appeals issued its final judgment against the Trump Administration on the use of Department of Defense funds to build the border wall. This upholds the partial summary judgment made last year by the U.S. 9th District Court that placed an injunction on using DOD funds for the border wall. The ruling is not only favorable for environmental groups and the twenty U.S. States who brought the suit, but is also a victory for the rule of law. The case is fundamentally about the President illegally using funds not appropriated by Congress. It affirms the separation of powers and the Constitutionally mandated role of Congress to control the power of the purse. Yet Friday’s ruling feels like a bittersweet, posthumous decision because last year, the Supreme Court of the United States, in an unusual, out-of-session one-paragraph statement, stayed the injunction, giving border wall construction the green light until the 9th Circuit Court’s final judgment was complete. As a result, the Supreme Court’s stature as a wise, impartial arbiter has been placed in doubt.
Lifting this injunction and allowing one of the largest, most expensive, and most environmentally destructive public works project to go forward, while still being litigated, is akin to allowing an execution to go forward before the trial has taken place. The end result is that nearly 200 miles of border wall has, or is in the process, of being built. The Supreme Court’s removal of the guardrail has resulted in the destruction of Native American graves, thousands of plants and animals razed, mountains through Wilderness Areas being blasted, and the draining of vast, but unknown, amounts of groundwater for concrete (the Army Corps of Engineers will not disclose how much water has been used). The many threatened and endangered aquatic species that occur on Federally protected lands like San Bernardino National Wildlife Refuge and Organ Pipe National Monument may be wiped off the planet by Trump choosing death, in the form steel and concrete walls, over rivers, ponds, and trees that breath life into the places that our country once deemed essential to protect. Sadly, death is what we have come to expect from a President who seems to excel in perpetuating it, whether at home with COVID-19, or abroad with Russian bounties on our troops. The border wall is just another example of this destructive pattern of doom.
If construction proceeds as planned, then more death will follow by walling off crucial wildlife migration corridors and starving animals from the food and water they need, along with eliminating 93% of critical habitat for the endangered jaguar, essentially rewriting the evolutionary history of North America for the third largest cat in the world. Animals don’t use political maps. For some places, like San Bernardino National Wildlife Refuge, the damage has already been done, and now a 30 foot high impermeable steel barrier exists, and now the future flow of fossil groundwater that has fed these ancient artesian springs for thousands of years remains in peril.
An irreparable human toll has been taken, too. Trump’s election-driven border wall has strained friendships, families and decades of binational conservation between individuals and organizations across America. The diversion of an enormous amount of American taxpayer money cannot be ignored either. Tracking the costs of this wall is a difficult task, but is estimated at $18 billion. To put this incomprehensible figure in perspective, it is enough money to test every person in America for COVID-19, yet in the race to complete the wall by Election Day, construction not only continued during the pandemic, but actually increased. One week before the US hit the grim headstone of 100,000 deaths, the Army Corps of Engineers awarded $1.28 billion to Fisher Sand & Gravel, who is under investigation for inappropriately influencing a border wall contract. Last week Trump terminated support for COVID-19 testing
President Trump has failed to protect us during this national emergency. Instead, he fabricated a false national emergency about Mexico and immigration and used funds for it in a manner that the court has ruled illegal, i.e. stealing. Trump will go away someday, but the Supreme Court will remain. The walls we will see slicing through our mountains, valleys and rivers will be a permanent reminder of Trump’s folly and of the Court’s failure to protect the people, the Constitution and our public lands. With the 9th Circuit Court final judgment handed down, we ask that the Supreme Court accept this decision and tear down this wall.
Myles Traphagen is the Borderlands Program Coordinator for Wildlands Network and Science Coordinator for the Malpai Borderlands Group. He is based in Tucson, Arizona and has worked in the US-Mexico Borderlands since 1996. Myles was a declarant (expert witness) for the State of California on the 20 State lawsuit referenced in this piece.