Border wall construction last week      Photo: Carolyn Van Houten, The Washington Post

On Tuesday, The Washington Post reported that the President told subordinates they should “take the land” and could break the law in order to get the border wall completed because he would “pardon” them – a statement the White House later claimed was just a joke.  Several of the laws allegedly slowing (but only a bit) border wall construction are environmental — including the Endangered Species Act, the National Environmental Policy Act (NEPA) requiring environmental impacts to be evaluated for every federal action that impacts federal land, and the Takings Clause of the Constitution. The Administration’s actions to expedite wall construction without adhering to environmental laws and the usual contracting processes, as well as their use of “borrowed funds” from other agencies’ budgets, have been challenged in court by several environmental groups. In mid-August, the Administration said in a court filing that it would delay construction of a portion of the wall through about 60 miles of federal wildlife preserves and national monument lands.

Why This Matters:  The President’s pardon promises (joking or not) are just more bluster — no person who works for him would really be prosecuted for “breaking the law” when the President orders the lawbreaking action.  What this demonstrates, however, is the President’s brazen disregard for the law itself and his failure to live up to the oath he took to faithfully “execute the laws” of the United States.  Not to mention his willingness to violate sacred Republican Party principles of limited government power and defending the rights of individual private property owners from government “takings.” This whole discussion is teeming with irony — the Trump Administration is a far bigger threat in principle to private property rights than Democratic Administrations trying to implement the Endangered Species Act ever were. And the environmental double standard being invoked by this Administration is equally shocking — the President uses the environmental laws when it is convenient to block environmentally beneficially projects, like the construction of offshore wind farms, as we reported earlier this week.

Joking — Not Joking

The Post’s reporting substantiates the story that the Administration is pushing government officials to “build that wall” even if they have to bend or break rules to do it.

• “They don’t care how much money is spent, whether landowners’ rights are violated, whether the environment is damaged, the law, the regs or even prudent business practices,” a senior government official told The Post.
• The Administration is using “national security” emergency arguments to justify cutting corners in building the fence.

They are already bulldozing and using other heavy earth-moving equipment in environmentally sensitive border area called the Organ Pipe Cactus National Monument. The Center for Biological Diversity has a pending lawsuit challenging this construction, and a decision in that case is expected by next week.  If they lose, the government will break ground across a nearly 60-mile stretch through the entirety of Organ Pipe, Cabeza Prieta National Wildlife Refuge and across San Pedro River, which is the last free-flowing river in the Southwest.

• A 2017 study by the Center identified more than 90 endangered or threatened species that would be threatened by wall construction along the 2,000-mile U.S.-Mexico border.