EL PASO, Texas (Border Report) — El Paso County has suffered an economic injury because of border wall construction and the suspension of a multi-million dollar project at Fort Bliss, the lawyer for the county and a co-plaintiff argued Tuesday before the Fifth Circuit Court of Appeals.
El Paso County and the Border Network for Human Rights, an advocacy group based in El Paso, sued the Trump administration in early 2019. They argued that President Donald J. Trump, named as the defendant, overstepped his authority when he declared a national emergency at the U.S.-Mexico border, which allowed him to bypass Congress and use the money allotted for military construction to build the wall.
The lawsuit argued that “El Paso County suffered reputational and economic injuries” because of the emergency declaration.
A supplemental brief was filed in September, about a week after Defense Secretary Mark Esper authorized diverting $3.6 billion to finance 11 wall projects on the southern border.
Among the suspended military construction projects was a $20 million project at Fort Bliss, which is in El Paso County.
U.S. District Judge David Briones ruled unlawful the president’s declaration of a national emergency at the border, and in December of 2019 issued a nationwide injunction blocking the administration from setting aside the military funds to pay for the construction of a border barrier.
The Fifth Circuit in January granted the Trump administration a stay on the injunction while it appealed.
On Tuesday, a lawyer representing the U.S. government told the Fifth Circuit that El Paso County doesn’t have standing to sue because border wall was not expected to be built in El Paso. Although, records show border wall construction plans included an area of New Mexico in the “vicinity” of El Paso.
“Nowhere in that proclamation is there any reference to El Paso County. It does not single out the community in any way,” said attorney Byron Thomas, who is representing the government to have the case dismissed. “The idea that El Paso County is the object of the proclamation, indeed, is unsupported by the district court’s opinion.”
Thomas also argued that harm to the community is speculative and there is no evidence linking the emergency proclamation to El Paso.
“El Paso County cannot base its indirect claim of economic harm as a basis for standing to challenge” the border wall construction, he said during Tuesday’s hearing, which was live streamed.
Ephraim McDowell, who is representing the plaintiffs, argued otherwise.
“My counsel on the other side did not mention our principle argument for standing here, which is the loss of the Fort Bliss project in El Paso County,” he said. “That project would have immediately, and necessarily, benefitted El Paso County and its tax revenue base because it would’ve been a $20 million construction project that would’ve necessarily meant that there were many transactions that would’ve been taxed by El Paso County.”
In a statement to Border Report, the law firm of Epstein Becker Green, which is representing El Paso County and the BNHR, said the question of standing always has been the difficult feature of private parties’ suits against the federal government.
“It was no surprise that the government spent almost all of its time on that issue,” said Stuart Gerson, a member of the firm. “We believe that El Paso County and the Border Network each has suffered economic injury because of the border wall construction and the suspension of the project at Fort Bliss, and we are hopeful that the panel will recognize that.”
The U.S. Supreme Court recently weighed in on a similar case involving the Sierra Club, which sued the Trump administration over the transfer of defense funds for the construction of a border wall in California, Arizona, and New Mexico.
The Ninth Circuit Court of Appeals sided with the environmental group, but the Supreme Court days later declined by a 5-4 vote to halt the Trump administration’s construction of portions of the border wall.
Justice Stephen Breyer wrote a brief dissent for the four liberals. “The Court’s decision to let construction continue, nevertheless, I fear may operate, in effect, as a final judgment,” he said.
According to the Associated Press, the high court’s order means the court is not likely even to consider the substance of the issue until after the November election, while work on the wall continues.
Gerson, of Epstein Becker Green, said it could be weeks or months before the Fifth Circuit court issues its opinion.
“It is not improbable that both our case and that one will be the subject of future litigation in the Supreme Court,” he said.