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