Federal judge dismisses US-Mexico border fence challenge

Jurist
May 18, 2009
by Andrew Morgan

[JURIST] A federal judge on Friday dismissed [opinion, PDF] a lawsuit against the Department of Homeland Security (DHS) [official website] that sought to block construction of a fence along the US-Mexico border. The Texas Border Coalition [advocacy website], a group of Texan officials and business owners, filed suit [JURIST report] last year challenging the condemnation of land for the construction of the fence and the compensation paid to landowners for access to conduct surveys under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [text], the Administrative Procedure Act [text, PDF], and the Due Process Clause of the Fifth Amendment [text]. Judge Reggie Walton of the US District Court for the District of Columbia [official website] found that the Coalition did not have standing to bring the suit because it was "unclear from the complaint whether any of the property owned by the plaintiff's members will actually be condemned," saying that:

It would make little procedural sense, and, indeed, thwart congressional will, to allow the plaintiff's members to preemptively challenge an anticipated condemnation when the Department's decision to pursue this course has not yet been rendered.

Walton also granted the government's motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) [text] because there was insufficient legal basis for the injunctive relief sought by the Coalition.

The 700-mile US-Mexico border fence [JURIST news archive] was authorized [JURIST report] in 2006 by President George W. Bush [official profile]. Former DHS secretary Michael Chertoff [official profile] used controversial legal waivers, authorized under Title I sec. 102 of the Real ID Act [text, PDF; JURIST news archive], to circumvent local and environmental laws which had slowed construction of the fence, including an October 2007 waiver overriding a federal district court ruling that halted construction [JURIST report] on environmental grounds. In September, US Customs and Border Protection (CBP) [official website] officials told Congress [hearing materials] that legal challenges and technological problems led to cost increases and delays in fence construction.

http://jurist.law.pitt.edu/paperchase/2009/05/federal-judge-dismisses-us-mexico.php