In my last post, I discussed an October 11, 2019, Memorandum Opinion issued by Senior Judge David Briones of the of the U.S. District Court for the Western District of Texas, El Paso Division. In that opinion, Judge Briones found that a "Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States" violated the 2019 Consolidated Appropriations Act (2019 CAA). In issuing that opinion, Judge Briones found that a "community organization", the Border Network for Human Rights (BNHR), had standing to challenge the proclamation "because its members have suffered a concrete injury," including "impair[ment of] its organization's mission" and an expenditure of funds. It is not clear how, exactly, that impairment differs from BNHR's mission.
In particular, Judge Briones found:
Here BNHR has explained how its current expenditures differ from its routine activities and ... it has not merely redirected resources to litigation and legal counseling in response to the Proclamation. In normal circumstances, BNHR dedicates its resources to "its core mission" of human rights education and "promoting immigration reform." ... Because of Defendants' emergency declaration and attendant transfer of funds to build a wall, however, BNHR has had to "divert resources" away from that core mission, and toward "counsel[ing] community members who are fearful," "organizing [its] community in opposition to the President's declaration," and "opposing the illegal [border wall] construction."
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In addition, BNHR has held and scheduled Proclamation-related weekend events that it would not otherwise hold and has increased the frequency of its "Know Your Rights" presentations approximately five-fold. ... It has also hired another policy consultant (costing $14,400) to deal with its increased advocacy workload in light of the Proclamation, and has sent delegations to discuss the Proclamation's effects with congressional members in Washington, D.C. ... In short, as the organization's Executive Director stated in his declaration, the Proclamation and Defendants' subsequent actions have "required BNHR to expend significant resources that could have, and would have, gone elsewhere," leading to a total of $23,956 in additional organizational expenses.
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BNHR has standing to challenge Defendants' actions. As shown, BNHR has gone "out of its way to counteract" those actions by diverting resources from its traditional activities toward "counsel[ing]" and "organizing" community members in relation to the national emergency and border wall. ... And Defendants' actions have inflicted "demonstrable injury to the organization's activities" because those actions have forced BNHR to cancel initiatives, like the "Hugs Not Walls" campaign signature event it would otherwise spearhead.
BNHR's website explains its mission:
The Border Network for Human Rights general purpose is to facilitate the education, the organizing and the participation of marginalized border communities to defend and promote human and civil rights; to the end that these communities work to create political, economic, and social conditions where every human being is equal in dignity and rights.
The website discusses BNHR's history, including its "involvement in two landmark cases" (prior to its name change in 2001), the delegations that it has sent "to Washington, D.C., each year [starting in 2003 with no clear end date, if any] to educate elected officials about the realities of border life and the need for immigration reform", its mobilization of marches, its "forum discussions aiming at including the voices of border communities in the national debate", and its work "organiz[ing] like-minded groups around the state into the Reform Immigration for Texas Alliance". The history ends at 2009, but states: "The Border Network for Human Rights community is still working for a resolution to the immigration debate, one that is sensible and humane and takes into account border communities." I will note that it joined a lawsuit in July 2018 "challenging the Trump Administration's 'Zero Tolerance' policy, and concomitant practices of family separation and detention (SWEC v Sessions)."
BNHR's website has a drop-down for "Hugs Not Walls — Stories of Family Reunification — Sixth Event", but does not explain what the event entails. A press release relating to the cancellation of the seventh event provides a little more context, but fails to explain how the proclamation affected that event:
The Border Network for Human Rights is sad and disappointed to announce that our upcoming #HugsNotWalls 7 event, scheduled to happen on Saturday May 11, has been cancelled. Border agencies and institutions created every obstacle possible and invented every necessary pretext to prevent this highly important, and historic, family gathering at the border. All of these clearly followed Trump's xenophobic playbook and it is in alignment with his distorted Declaration of Emergency at the border. Today, in this America, led by this administration, a family hug, and fraternal embrace, represents "a threat to national security". This is beyond irrational.
"This event, which would have seen 150 separated immigrant families come together at Sunland Park-Anapra, is the latest casualty to the Trump Administration's sustained assault against communities and migrants at the U.S.-Mexico border. Families that have been planning for weeks to celebrate Mother's Day by being able to see their long estranged loved ones are left in the lurch — their basic humanitarian needs to be with their families unmet. ... We hope that someday we will be able to hold an event like #HugsNotWalls again. [First emphasis in the original, second emphasis added.]
The community organization's own submission in the case states: "'BNHR's mission is to 'organize border communities through human rights education' and 'mobilize [its] members to advocate for positive change in policies' affecting 'the immigrant community.'" Normally, opposition to an administration policy that touches on immigration (such as the proclamation in question) would fall under the heading of "mobilizing members to advocate for a positive change in policies that affect the immigrant community", at least depending on your side of the issue. In most instances in recent years, the term has come to be synonymous with "amnesty", and if that is the point they should be more clear.
As for the counseling of "fearful" community members, the nature of that fear is unclear, as is how that fear was created, or enhanced, by either the wall construction in question or the proclamation itself. Again, that would appear to fall under the rubric of "educating marginalized immigrant communities", however.
The "Hugs Not Walls" issue is even more vague. It does not appear that the cancellation was due to the proclamation, as set forth above. Again, according to BNHR:
Border agencies and institutions created every obstacle possible and invented every necessary pretext to prevent this highly important, and historic, family gathering at the border. All of these clearly followed Trump's xenophobic playbook and it is in alignment with his distorted Declaration of Emergency at the border.
If this is correct, the actions of the "[b]order agencies and institutions" may have prevented the event, and those actions may have been in "alignment" with the president's proclamation, but there is nothing to suggest that the proclamation prompted whatever actions those border agencies and institutions undertook to prevent "Hugs Not Walls." Jeff Sessions' views on asylum and my own may be in alignment, but that does not mean that the former attorney general's view has affected mine or mine his — in fact, I doubt he even knows who I am.
If the idea is that BNHR was so busy contesting wall construction to hold the "Hugs Not Walls" event, then the press release is in error.
Finally with respect to this point, the fact that the court describes "Hugs Not Walls" as BNHR's "signature event" would lead an objective observer to conclude that at least part (if not a large part) of the core mission of BNHR is an opposition to walls. If that is part of BNHR's core mission, Judge Briones' conclusions are based on erroneous facts, undermining his conclusion that the organization has standing:
"In normal circumstances, BNHR dedicates its resources to 'its core mission' of human rights education and 'promoting immigration reform.' ... Because of Defendants' emergency declaration and attendant transfer of funds to build a wall, however, BNHR has had to 'divert resources' away from that core mission, and toward 'counsel[ing] community members who are fearful,' 'organizing [its] community in opposition to the President's declaration,' and 'opposing the illegal [border wall] construction.'' [Brackets in original, emphasis added.]
And keep in mind as you consider each of these points that this case involves whether the Department of Defense may use funds appropriated for "military construction costs" to "to build a border wall" under the authority in 10 U.S.C. § 2808. That section addresses the power of the secretary of Defense to undertake military construction projects not otherwise authorized by law following the declaration of a national emergency — an issue that would not logically inspire fear in immigrant communities in the United States.
Simply put, it is unclear from Judge Briones' decision how the advocacy of BNHR with respect to the issues in this case is significantly different from its normal "community organization" activities, or how the actions undertaken by the organization subsequent to the presidential proclamation were actually affected by that proclamation.
That said, however (and the judge's opinion is not the paradigm of clarity), if the point is that an immigrant rights organization has standing to challenge a presidential action because that action and the organization's response thereto shifts its focus ever so slightly, that decision sets a dangerous precedent.
Imagine, for example, that I were to create a community organization with the sole purpose of opposing future amnesties. President Kamala Harris then decides not to prosecute aliens for illegal entry under section 275 of the Immigration and Nationality Act (INA), despite the mandatory language set forth therein ("Any alien ... shall, for the first commission of any such offense" be fined and/or imprisoned), and directs her attorney general not to expend funds for such prosecutions. Does my organization have standing to challenge that decision if I lobby, organize, and bring suit against that decision? From Judge Briones' decision, I am not sure, but that is what I would argue.
One last point. The first duty of the U.S. military is to defend the people and interests United States. It can protect the national security by keeping the sea lanes open in the South China Sea and the Strait of Hormuz, it can send troops to deploy abroad, it can even use the military to send relief supplies to the Bahamas, but at the end of the day, each of those activities is authorized only to the extent that they protect the national interests and security of the people of the United States.
In light of this fact, how is an expenditure by the Department of Defense to bolster defenses along the actual borders of the United States not, at least implicitly, authorized by that department's appropriations? This fact reveals the illogic in Congress' opposition to border barrier construction generally. Remember, the construction of such barriers was not even a real question in 2006, when the Secure Fence Act was passed with broad bi-partisan majorities (283-138 in the House, 80-19 in the Senate). And remember, much of that construction was undertaken by the Obama administration without much public comment. It would be like opposing metal detectors at the entrances of congressional office buildings, or a fence along the White House compound. The current opposition to the erection of such barriers is illogical, fueled only (logically) by hatred to the president and by extension to anything he supports. Such is the state of politics in Washington today.
In any event, expect an injunction, with a quick response by the Court of Appeals for the Fifth Circuit.