“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. If this stupid really believes that statement or is just saying it to act the fool rogue judge playing dictatator and defying the supreme court she or whatever deserves to be laughed out of the country if not just outright jailed.

  2. “The Southern Border Is Not A Militarized Zone”
    ______________________________________

    The Mexican invaders and their U.S. allies have enjoyed that fact since Operation Wetback in 1955 under Dwight Eisenhower.

    La Raza has successfully executed the Reconquista.

    California is the 33rd Mexican state.

  3. David Benson says: ” I know more about Naval Base Bangor than I will repeat on this benighted blog. I have a looong history of associations with the nuclear warhead industry. …if Naval Base Bangor states a need for $89 million for additional physical security, believe it.”

    David, you have all but called yourself an expert regarding this situation and the nuclear warhead industry. I’m interested in hearing the opinion of experts on this list. Forget about whether or not Trump has the right to use this money for the wall and concentrate on the Naval Base and what it means if this money is deferred. Tell us what bad things might happen (especially nuclear) if the $89 Million doesn’t immediately go to this naval base.

    This was repeated at David’s request.

    1. Allan, the actual experts are certainly not going to comment here. So you will have to put up with me.

      There is a new warhead, maybe designated W-76 mod 2. Possibly the Navy is going to mount these on some submarines. There needs to be a place to store such. About $98 million is the cost of storage.

      I recommend not fooling around with such low-yield nuclear warheads

      1. But, that is not where the money was going. The improvement is being deferred. Many granted requests for money are just to keep the inflow of cash high. It’s a fools errand to spend money based on everyone grabbing as much as they can.

        Before claiming any expertise on a subject one needs to know what the subject is.

      2. Benson, if there was one thing I would improve about military spending, it would be our procurement system. We tend to over pay. The system seems to favor that. And then the contractors may under deliver.

        As part of the tooth to tail funding and updating, it would be helpful to address the flaws in the acquisition process and management of contracts.

  4. IMHO, this country needs a conservative majority on SCOTUS to reign in the liberals on the 9th Circut COA! Please correct me if I am in error, but isn’t the 9th Circuit COA the most overturned federal circuit by SCOTUS?

  5. The lefty has been and will be demonstrating their depth of desperation from now until the next election. They are losing their collective minds over the prospect of the courts not being able to legislate from the bench any longer.

  6. Human sex traffickers and pedophiles rely upon the porous border to prey upon children.

    https://youtu.be/OhjkqLhbgu8

    I have never heard a cogent argument as to why a country should not have a defensible border. It funnels people into the legal immigration system. It makes the wrong thing harder and the right thing easier.

    If you want to keep criminals, terrorists, and rapists out, how else would you do it if there are thousands of miles of border for people to just walk across? I would say Democrats would just wait until such criminals re-offended here, but that’s not true, either. They refuse to allow law enforcement to cooperate with ICE detainers, so such violent offenders serve their time, and then disappear back into the population of their victims. The Democrat Party slogan should be “violent criminals welcome here.” “Looking for an entry level job? Housing? We will import 50 people to compete with you for it.”

    Even good, hardworking people looking for a better life are wrong to immigrate here illegally. A legal immigration system would maintain a level that matched needed skills in the jobs market, and what our benefits system could handle. Plus, identity theft is the most common crime that illegal aliens commit.

    1. Karen S, most of that border is inhospitable desert.

      The problem is actually the difficulty in obtaining so-called legal entry. This wasn’t a problem for my father’s parents, arriving at Ellis Island before WWI. Now it is. Almost everyone agrees that more immigrants would be desirable. The system to do so is broken.

      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. – evidently one of the things they don’t teach engineers is geography. A small portion of the border is inhospitable desert, however, about 50-60 bodies are found there every year.

      2. David, I do agree with you that a lot of the border is in inhospitable desert. That’s why BP and people who live on the border find dead people, including children, and women who died in childbirth. Sometimes coyotes abandon the group of people who paid them $15,000 a head to smuggle them.

        Why is going through the legal system unfair? It costs a few hundred dollars, while it costs $15,000 to pay a cartel to smuggle you across. Many women and girls get raped along the way. Since having a young child guarantees you can stay, that just incentivized people to bring their own little kids across the inhospitable desert, or to take someone else’s.

        Did you watch the video? There was one part where a woman was caught spitting into a baby’s mouth to try to fool the DNA test for familial relationship. (It didn’t.)

        I have never heard an argument for why we should allow illegal immigration instead of requiring everyone who wants to come go through the legal process. I have heard great arguments in favor of legal immigration, streamlining the legal immigration system, and so on. But exactly zero arguments that can explain why any country should not control its border.

  7. The federal district courts need clear direction and reorganization. The ONLY court in the Constitution is the Supreme Court. All others were created by Congress. Thus Congress can and should by law do the following;. Limit the authority of each district and appeals court to the geographic area they cover.
    Reorganize the appellate districts so that each associate justice has jurisdiction over one of them an recommends cases to be handled by the full supreme court.
    Last limit judge terms to 40 years or age 80, whichever comes first. That should take care of many problems

  8. So what? The nonsensical infighting over the politicized border wall is just about lower than road dust in terms of importance. I mean I’m happy you have something to harrumph over — but please wake up, Jon. Let’s take a look at the real threats today: Corona virus, fastest 10% stock market in American history, an unhinged blowhard in the wheel house.

  9. People in her state must he pretty danged privileged if this is what concerns them and what they have time for. Is anyone on the left capable of addressing actual problems in the 21st century? Oh, that’s right: that would require empathy. Sadly, pandering like this is all that is required on the west coast to keep her right where she is. Even just making the doomed gesture is sufficient. She’s no idiot, she knows it’s pure drivel.

    1. This is an engineering problem. All navy officers are engineers. There are also the engineers at Boeing, Microsoft, PNNL, …

      Yes, we are good at what we all do. Which includes reading Article I of the Constitution; Congress allocates the funds, not the Article II president.

      1. You are correct. Congress authorizes funding. Now show me where it says the Any administration is required to spend it.

        1. But the administration cannot spend it for other than what it was allocated for. Which is the issue here.

      2. 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. oh, you are sooooooo wrong. Do you think JFK was an engineer? John Kerry? They just went to OCS and might have gotten some engineering training, but they were not engineers. That is like saying because I took physics in high school and college, I am a physicist.

  10. Where’s this post?

    New post on JONATHAN TURLEY

    Barr Is Wrong On FISA Reforms
    by jonathanturley
    Attorney General Bill Barr appears on a collision course with President Donald Trump over reforming the Foreign Intelligence Surveillance Act court. Civil libertarians like Sen Rand Paul (R., Tenn.) are pushing for reforms in light of the abuses uncovered from the Russian investigation. Despite my respect and friendship for Barr, he is wrong in my view and the President should push forward with the reforms. When President Trump declared “Now is our chance to fix it,” he is absolutely correct.

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    jonathanturley | February 28, 2020 at 7:20 AM | Categories: Uncategorized | URL: https://wp.me/p6sYP-DNw
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  11. David B Benson – I live upwind from NSBB, and your previously wonderful state, however you, your loathsome judge and way too many of your constantly law-breaking Washingtonians need a good swift wake-up slap across the head to bring you all in line with the real world, not some place you believe your entitled to occupy!

    1. Congress allocated the funds to go to Naval Base Bangor. So the funds need to go there. Not to King Donald’s wall.

  12. Let’s stop being civil…it’s not “somewhat curious” It is judicial overreach by a landslide and in my case deserves impeachment because she is unable to recognize defined sphere of influence and thinks she is the President of the United States and in charge of our national security. It is this type of judicial behavior and that should scare all Americans. She should be removed or impeached.

  13. I have decided that when judges from states on the left coast rule on things that affect other states, they should pay half the costs of appeal.

  14. The Administration should ignore this judge’s ruling as the issues appear to have been decided already by SCOTUS. This is a pig, despite the lipstick she’s trying to put on her blatantly political decision. Also, this judge should be removed from the bench for what she’s done. She has no business wearing the robe.
    It is long past time that these people realize that the rule of law is something they must follow also.

      1. “King” Donald’s wall is intended to protect all Americans. So, unless you are in that protected class, you have no say on this issue. It also seems that rogue Judges are no problem to you, since her ruling seems to be something you agree with since it appears to be “defiance” against our President.

  15. Whatever the legalese, Naval Base Bangor needs better physical security measures for the nuclear weapons there.

    I’m a downwinder and King Donald of the Order of Bone Spurs is messing with my security.

      1. Only in your imagination. The Latinos in Washington state aren’t the drunks and can’t afford fancy cars.

                  1. OLLY – I cannot remember if Tijuana is very very slowly moving north or San Diego is very very slowly moving south. Either way, I will be long dead when one or the other crosses the border and causes an international incident.

                    1. OLLY – I look it up. It has to do with what side of the San Andreas Fault you are on.

                      The Pacific Plate, to the west of the fault, is moving in a northwest direction while the North American Plate to the east is moving toward the southwest, but relatively southeast under the influence of plate tectonics.

                1. DBB:
                  Me: Bet they’re less rare than the nuclear accidents you’re so worried about which was, of course, my point.
                  You: “No it wasn’t. You just Made That Up as we went along.”
                  *********************
                  Original Post @ 8:23 am:
                  “DBB:
                  Yeah, you’re more likely to die from a nuclear accident than a drunk Mexican illegal blowing down the road in a souped up ‘77 Rally Sport.”

          1. Why are we wasting our time with David Benson, who is obviously a big fan of Bernie Sanders and the “open borders” crowd. That is the bunch that want to take America to be more like Cuba…many antique cars there since no one except the Castro family can afford a new car.

    1. I haven’t heard anyone make the case that there is insufficient security for those weapons. Have you? Or are you just mouthing off because you hate the Donald, like most of your ilk, and with nothing to back it up?
      Oh, wait – never mind…

      1. Canuck Sailor, I know more about Naval Base Bangor than I will repeat on this benighted blog. I have a looong history of associations with the nuclear warhead industry.

        Simply put, if Naval Base Bangor states a need for $89 million for additional physical security, believe it.

        1. Simply put, if Naval Base Bangor states a need for $89 million for additional physical security, believe it.

          😂 If the commander at Naval Base Bangor failed to submit a budget for an increase in physical security, I guarantee you he would have been relieved of command.

        2. ” I know more about Naval Base Bangor than I will repeat on this benighted blog. I have a looong history of associations with the nuclear warhead industry. …if Naval Base Bangor states a need for $89 million for additional physical security, believe it.”

          David, you have all but called yourself an expert regarding this situation and the nuclear warhead industry. I’m interested in hearing the opinion of experts on this list. Forget about whether or not Trump has the right to use this money for the wall and concentrate on the Naval Base and what it means if this money is deferred. Tell us what bad things might happen (especially nuclear) if the $89 Million doesn’t immediately go to this naval base.

        3. Sure you do. You’ve made a statement and asked us to accept on your say so that you know ALL ABOUT THIS. Before I’ll buy any crap from you or anyone, I’ll need to hear from you just WHY any of us should believe you. And citing your many blog comments elsewhere does not qualify you, so let’s not go there.

          1. Canuck Sailor – I remember David saying he worked at White Sands back in the 1950s or early 1960s. If I am correct, he may have kept up with the field even though he changed vocations.

  16. ANOTHER LIBERAL/DEM ACTIVIST JUDGE, who is wrong and will be over ruled. They never stop. They need to stop these rulings by taking away the ability of out of control activist judges that ignore Supreme Court rulings or Nation wide injunctions,

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