“The Southern Border Is Not A Militarized Zone”: Federal Judge Bars Some Funds For Border Wall In Defiant Decision

In Seattle, U.S. District Judge Barbara Rothstein has issued a defiant, and somewhat curious, decision that not only denies some funding for the Southern Wall but seems to defy the Supreme Court in its recent decision in the area. Rothstein barred President Donald Trump from diverting $89 million intended for a military construction project in Washington state to build the border wall. While the Supreme Court recently lifted an injunction on such lower court rulings, Rothstein insisted that that case involved different plaintiffs and issues. I fail to see the clear distinction and the Rothstein decision, in my view, works too hard to find such a distinction.

While some coverage has incorrectly declared that Rothstein barred funds for the wall, she actually only barred $88.96 million of the $6.1 billion. The specific funds were part of construction plans for the Naval Submarine Base Bangor. That is the problem. The opinion seems to stray into judging the relative priorities of such projects, a matter left to executive and legislative branch members. The court states “The potentially disastrous results of unsecure nuclear weapons within the State’s boundaries are so obvious that they do not need to be elaborated on here.” The court also simply rejects the judgment of the Administration on key points of what truly constitutes a benefit to military operations:

“That such border barrier projects may be beneficial to the Department of Defense in that the projects will relieve some of its personnel from assisting the Department of Homeland Security in meeting its mission does not establish that the projects are necessary to support the use of the armed forces at the southern border, which, of course, is the requirement set by Congress in § 2808.”

That type of logic could be viewed by the Supreme Court as delving too deeply into military priorities and judgment.

The thrust of the decision is that border protection is not a military mission, a premise that seemed rejected in the earlier Supreme Court ruling. However, Judge Rothstein declared “Simply put, the southern border is not a militarized zone; it is the responsibility of the Department of Homeland Security to ensure that the border is secure—a law enforcement function explicitly outside the purview of the Department of Defense.” If that were true, it is hard to see why or how the Supreme Court could have ruled that way it did.

Indeed, the arguments addressed the Court are indistinguishable from earlier cases. Much turns on the definition of “military construction,” which is defined as construction be “carried out with respect to a military installation.” 10 U.S.C. § 2801(a). However, a “military installation” is defined as “a base, camp, post, station, yard center, or other activity.” It is the catch-all of “other activity” that makes it so difficult to deny the claim of authority by the Administration.

The court simply adopts a narrower construction by saying that the catch all term must be interpreted in light of the list of more narrow and concrete terms coming before it in the statute. This is a good-faith position but it seems a position now at odds with the majority of the Supreme Court. As I have previously written, I am no fan of the National Emergencies Act but neither Congress nor the courts were particularly aggrieved by its sweeping authority before this Administration. I believe that this opinion is not just more limited than many have reported but it is also more vulnerable for appellate review. I would give the Administration the better odds in challenging the withheld portion of funds under this opinion.

Here is the decision: Opinion Granting Summary Judgment

91 thoughts on ““The Southern Border Is Not A Militarized Zone”: Federal Judge Bars Some Funds For Border Wall In Defiant Decision”

  1. Let’s look at the border situation differently. War zone or not 10 million plus illegal Aliens in our country, with more coming every day, is a problem. Let Congress make being here illegally a felony, without regards to when or how you got here. Let any governmental
    or private body, that knowingly aids illegal Aliens be liable for any crimes they commit. Last the Illegal status must be resolved before an illegal Alien can pursue any civil claim against a citizen. Translation, you can’t bring a court case against the rancher as long as you are illegal.

    1. Let us quickly legalize them as we need their willing labor.

      Around here there are occasionally some work crews who are clearly Mexican immigrants. They certainly do manual labor with vigor!

      1. David Benson is the God Emperor of Making Stuff Up and owes me forty-three citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after sixty-five weeks, and needs to cite all his work from now on. – when you hire illegal aliens, you are compounding the problem.

      2. Make them Legal ???
        Then what do you do with, ànd say to the 5 million plus people that have been waiting to enter Legally.

  2. https://mexiconewsdaily.com/

    She’s wrong. The last time I looked at that site there was an item–not reported on US news–about a raid on a police station; the officers were removed and found the next day chopped into pieces and stuffed into garbage bags.

  3. An Arizona man who has waged a 10-year campaign to stop a flood of illegal immigrants from crossing his property is being sued by 16 Mexican nationals who accuse him of conspiring to violate their civil rights when he stopped them at gunpoint on his ranch on the U.S.-Mexico border.
    Roger Barnett, 64, began rounding up illegal immigrants in 1998 and turning them over to the U.S. Border Patrol, he said, after they destroyed his property, killed his calves and broke into his home.
    His Cross Rail Ranch near Douglas, Ariz., is known by federal and county law enforcement authorities as “the avenue of choice” for immigrants seeking to enter the United States illegally.

    Trial continues Monday in the federal lawsuit, which seeks $32 million in actual and punitive damages for civil rights violations, the infliction of emotional distress and other crimes. Also named are Mr. Barnett’s wife, Barbara, his brother, Donald, and Larry Dever, sheriff in Cochise County, Ariz., where the Barnetts live. The civil trial is expected to continue until Friday.
    The lawsuit is based on a March 7, 2004, incident in a dry wash on the 22,000-acre ranch, when he approached a group of illegal immigrants while carrying a gun and accompanied by a large dog.

    Attorneys for the immigrants – five women and 11 men who were trying to cross illegally into the United States – have accused Mr. Barnett of holding the group captive at gunpoint, threatening to turn his dog loose on them and saying he would shoot anyone who tried to escape.
    The immigrants are represented at trial by the Mexican American Legal Defense and Educational Fund (MALDEF), which also charged that Sheriff Dever did nothing to prevent Mr. Barnett from holding their clients at “gunpoint, yelling obscenities at them and kicking one of the women.”

    In the lawsuit, MALDEF said Mr. Barnett approached the group as the immigrants moved through his property, and that he was carrying a pistol and threatening them in English and Spanish. At one point, it said, Mr. Barnett’s dog barked at several of the women and he yelled at them in Spanish, “My dog is hungry and he’s hungry for buttocks.”
    The lawsuit said he then called his wife and two Border Patrol agents arrived at the site. It also said Mr. Barnett acknowledged that he had turned over 12,000 illegal immigrants to the Border Patrol since 1998.

    In March, U.S. District Judge John Roll rejected a motion by Mr. Barnett to have the charges dropped, ruling there was sufficient evidence to allow the matter to be presented to a jury. Mr. Barnett’s attorney, David Hardy, had argued that illegal immigrants did not have the same rights as U.S. citizens.
    Mr. Barnett told The Washington Times in a 2002 interview that he began rounding up illegal immigrants after they started to vandalize his property, northeast of Douglas along Arizona Highway 80. He said the immigrants tore up water pumps, killed calves, destroyed fences and gates, stole trucks and broke into his home.
    Some of his cattle died from ingesting the plastic bottles left behind by the immigrants, he said, adding that he installed a faucet on an 8,000-gallon water tank so the immigrants would stop damaging the tank to get water.
    Mr. Barnett said some of the ranch´s established immigrant trails were littered with trash 10 inches deep, including human waste, used toilet paper, soiled diapers, cigarette packs, clothes, backpacks, empty 1-gallon water bottles, chewing-gum wrappers and aluminum foil – which supposedly is used to pack the drugs the immigrant smugglers give their “clients” to keep them running.
    He said he carried a pistol during his searches for the immigrants and had a rifle in his truck “for protection” against immigrant and drug smugglers, who often are armed.
    A former Cochise County sheriff´s deputy who later was successful in the towing and propane business, Mr. Barnett spent $30,000 on electronic sensors, which he has hidden along established trails on his ranch. He searches the ranch for illegal immigrants in a pickup truck, dressed in a green shirt and camouflage hat, with his handgun and rifle, high-powered binoculars and a walkie-talkie.
    His sprawling ranch became an illegal-immigration highway when the Border Patrol diverted its attention to several border towns in an effort to take control of the established ports of entry. That effort moved the illegal immigrants to the remote areas of the border, including the Cross Rail Ranch.
    “This is my land. I´m the victim here,” Mr. Barnett said. “When someone´s home and loved ones are in jeopardy and the government seemingly can´t do anything about it, I feel justified in taking matters into my own hands. And I always watch my back.”

    https://www.washingtontimes.com/news/2009/feb/09/16-illegals-sue-arizona-rancher/

    1. Karen S – the Barnett’s were fined $70k and it went on appeal to the 9th, It is Vicente v Barnett, if someone wishes to look it up. Decision was probably 2010.

    2. Doesn’t the 11th Amendment specifically and explicitly state that ONLY US citizens have standing to sue in any US court?

      I’m sure the Nine Tyrants in Black Robes found some pretext to do away with that years ago. It doesn’t change the fact that the 11th Amendment specifically says that. I wonder what hilarity would ensue if Mr. Barnett’s lawyers mentioned this in court.

      1. guest – I served papers in a federal suit based on farm worker rights (Cesar Chavez times) and the plaintiffs were Juan Does 1-20. The plaintiffs were citizens of Mexico.

  4. I think this judge needs to spend some time at the border.

    One thing that the ranchers under siege from the Mexican cartels seem to agree on is that manpower is even more important than a physical barrier. An unmanned fence can be cut or scaled or dug under. It is imperative that there are eyes on every inch of the border. In total opposition to the Democrat platform, all illegal aliens must be turned back. Otherwise, it’s a turnstile, not a border. I think that we may need a combination of technological surveillance and manpower. The message must be send that you shall not pass.

    I also think that it is imperative to stop the anchor baby immigration loophole. Heavily pregnant women pay $15,000 to the drug cartels to arrive in the US in time to give birth to her ticket to live there. This is also very common for Chinese and Russian women. Then, through chain migration, they get the rest of the family over here.

    It used to be that the father would arrive first. Get a job. Find housing. Get stability. And then he would send for his family, who would take safe transportation. This followed the law and was responsible. In this crazy world of today, we have incentivized using little children and pregnant women to get past immigration laws. Those are the most vulnerable people, but they are the vanguard of a familial line’s migration.

    “During the 1980s, perhaps 300 border crossers would pass through a ranch each month. They were meek and respectful, begging for water before heading north…

    And then the borderland slowly turned to hell.

    In the ’90s, Ladd says, 300 migrants were crossing his land daily.

    By the early 2000s, a boom was underway. More migrants, more border patrol, more fences.

    Under the George W. Bush and Obama administrations, the U.S. Border Patrol nearly doubled the number of agents working on the southwestern border to over 17,000. ..

    But, because agents mostly patrolled many miles north of the Mexican boundary, ranches remained a no-man’s land where rival cartels and banditos waged war.

    On his ranch near Rio Rico, David Lowell drew a “Map of Atrocities” to keep track of where shootouts occurred and bodies were found.

    David Lowell, a rancher who also has a degree in mine engineering, estimates that a three-story concrete wall might eliminate 80 percent of the illegal traffic, adding, “That would be all to the good as far as we’re concerned.”

    On the other hand, Lowell says, a barrier like the communist regime erected in East Berlin might work much better: “It would be two, sturdy, razor-wire fences with electrical currents and a road between them.”

    “The wall without the agents won’t do anything,” Magoffin says. “If you tell me, ‘Everything you want is on the other side of the wall and I won’t look,’ I’m going over that wall.”…

    On Lowell’s ranch, cowhand Reed Thwaits maneuvers a Jeep over steep, rutted roads until he finally reaches a cattle tank and a giant mesquite.

    This, he explains softly, is a so-called “rape tree.” It was once adorned with women’s bras and underwear. Coyotes would sexually assault some of the female migrants who hired them, leaving undergarments in the branches as trophies.

    Amnesty International and other groups have concluded, based on interviews with migrants and health workers, that of female Central American migrants headed to the U.S., 60 percent or more are sexually assaulted.”

    https://www.usatoday.com/border-wall/story/us-ranchers-deal-with-migrants-border-crossers-mexico/559702001/

  5. This is the judge putting her camel toes under the edge of the tent. If this is not appealed and reversed, the socialist judges will continue to eat away at the money allowed for border security.

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