A federal judge in California who Donald Trump once derided for his ethnicity will hear a case Friday that could determine the president’s latitude to waive environmental laws, paving the way for his “big, beautiful” border wall.
The judge is the U.S. District Court’s Gonzalo Curiel, whom Trump berated during the 2016 campaign for his handling of a lawsuit involving Trump University. Trump called the San Diego jurist a “hater” and a “Mexican” who disliked Trump because of his strong border stands, even though Curiel was born in the United States and built his reputation prosecuting cross-border drug crimes.
Curiel never publicly responded to Trump’s taunts, and colleagues say he has a record of impartiality that will guide his handling of the case. Still, the litigation is sure to put Curiel in the spotlight again and the outcome will be closely watched by border wall opponents and advocates, including the president himself.
“This is a very significant case,” said Andrew Gordon, an Arizona lawyer who worked at the Department of Homeland Security for two years during the Obama administration. If Curiel rules against the administration, it could slow Trump’s plans to quickly fortify the unfenced portions of the U.S.-Mexico border, he said, even if a higher court ultimately overturned the ruling.
Gordon, however, said the groups suing the administration bear a significant burden in demonstrating that DHS has overreached with its recent waiving of environmental laws. “Candidly, Congress intended to give the (DHS) secretary the broadest, widest authority,” said Gordon, an attorney with the Coppersmith Brockelman law firm in Phoenix.
At issue are waivers that Congress granted the federal branch in 1996 and 2005 to bypass federal and state laws, including numerous environmental statutes, for border security projects.
Last year, the state of California, environmental groups and U.S. Rep. Raúl Grijalva, a Democrat from Arizona, filed lawsuits challenging the Trump administration’s use of such waivers to build new border structures, including prototypes of various wall designs constructed near the border with Tijuana. Those three lawsuits have since been consolidated by Curiel, who will preside over Friday’s hearing in U.S. District Court in San Diego.
A key question in the case is Congress’ intentions in 1996 and 2005 when it authorized waivers of environmental laws for border security, said Brian Segee, a lawyer with the Center for Biological Diversity, one of the litigants. Did Congress intend to give DHS broad authority to waive these laws into the distant future? Or were these waivers intended only for specific projects that Congress authorized at the time?
In a brief filed in the case, the Center for Biological Diversity argues that Congress did not intend to give “unchecked license for DHS to waive laws for any border project, anywhere on any border (northern or southern), at any time from now to eternity.”
In its brief, California argues that Congress originally authorized environmental waivers to target border sections with “high illegal entry” into the country, and that the San Diego and El Centro areas no longer meet that definition. California also argues that border wall construction could do “irreparable harm” to the state’s wildlife and habitat.
California officials also insist the state’s sovereignty is being undermined — a legal twist that Gordon found ironic.
“It’s funny to see California making a states-rights argument,” said Gordon, adding that he was doubtful it would work. Under the U.S. Constitution, he said, border issues are exclusively the jurisdiction of the U.S. government.
Based on its legal filings to date, the Department of Justice is sure to argue Friday that California lacks standing in the case. It will also cite past court rulings that have affirmed Homeland Security’s broad authority on expediting border security projects.
“Congress unmistakably expressed its policy judgment that construction of the barriers and roads along the border was of such importance that it justified waiving application of environmental and other laws,” the government states in a Dec. 20 brief.
As candidate and president, Trump has long sought to portray Mexico and the border region as a leading national security threat. “For decades, open borders have allowed drugs and gangs to pour into our most vulnerable communities,” Trump said in his State of the Union speech last week.
Trump has been quiet the last year about Curiel, but in 2016, the judge was a frequent target.
When Curiel refused to dismiss class-action lawsuits against Trump University, which were later settled, Trump called him a “hater” and made veiled threats, saying “they ought to look into Judge Curiel.” After Trump called Curiel a “Mexican,” numerous fact checkers noted that the judge was born in Indiana, to Mexican-born parents who became naturalized citizens.
Trump’s comments about Curiel prompted waves of criticism, with House Speaker Paul Ryan calling it “sort of like the textbook definition of racism.” California Attorney General Xavier Becerra, whose lawsuit Curiel will hear on Friday, also came to the defense of the U.S. District judge. “The bullet that was aimed at him by Trump could have easily been directed at me or anyone else like me,” Becerra told The Sacramento Bee in 2016.
Will his history with Trump influence Curiel’s handling of the border wall litigation? “I can tell you with certainty it will not impact him at all,” said Gregory Vega, a San Diego lawyer and an old friend and colleague of Curiel’s. “He will follow the rule of law.”
Vega said Curiel has long been “measured and thoughtful” and unflappable under pressure. When Vega was U.S. Attorney for San Diego, Curiel worked as his assistant, handling cross-border drug investigations. In the 1990s, the Arellano-Felix cartel in Tijuana targeted Curiel for assassination, prompting the U.S. Marshals Service to remove him to a Navy base for his protection.
Curiel would go on to become lead attorney for the Organized Crime Drug Enforcement Task Force. In 2016, a Republican governor, Arnold Schwarzenegger, appointed him to the California Superior Court. When President Obama nominated Curiel to the federal bench, he faced routine questions about his impartiality in a Senate confirmation hearing.
“As a trial judge I recognize that I'm not there to make the law,” Curiel responded. “I'm not there to interpret the law, I'm there to follow the law as established by the precedent of our Supreme Court.”
In April of last year, Curiel was assigned to handle a high-profile case involving a deported “Dreamer,” 23-year-old Juan Manuel Montes Bojorquez. But Montes decided in October to drop his lawsuit before Curiel could issue a ruling.
Friday’s court hearing will focus largely on the California section of the Mexico border. The lawsuits challenge waivers to more than 30 federal laws granted by DHS to replace 14 miles of border fence in San Diego County. They also challenge waivers granted for construction of border wall prototypes, which DHS contractors completed late last year and have since been undergoing testing.
If the court decides in favor of the administration, it would give Trump a green light to issue such waivers for other sections of the border, including unfenced areas in Texas and other states. Days after he took office last year, Trump signed an executive order calling for “immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism.”
Gordon said he’s intrigued to see if Curiel buys the legal thesis that waivers last authorized by Congress in 2005 no longer apply to what Trump is proposing.
“It is an interesting argument, and they have a judge who may be sympathetic to that argument,” he said.