Senior Judge David Briones of the of the U.S. District Court for the Western District of Texas, El Paso Division, issued a Memorandum Opinion last week in which he 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). Having made this finding, he directed the plaintiffs (described below) to file a proposed preliminary injunction to address that violation. The section of that order in which he found that the plaintiffs have standing is interesting, to say the least.
I will first note that the link above to that decision is from Law360, which is behind a paywall. The Western District of Texas has a page for "Notable Cases", which states that "No cases are currently posted." They should not be so modest.
The plaintiffs in the case are El Paso County, Texas, and Border Network for Human Rights (BNHR). You may have thought the issue was settled when the Supreme Court in July granted the government's request for a stay of an injunction in Trump v. Sierra Club. That case involved the same proclamation, which authorized the use of funds by the Department of Defense (DOD) to erect border barriers to staunch the flow of drugs into the United States. Where there is a district court judge, however, there is a way to stymie the Trump administration's immigration initiatives.
Back to standing, which consumes about 15 pages of that 33-page opinion (the first eight describe the parties and explain the background). Judge Briones found that El Paso County "has standing to sue Defendants because they are the 'object' of the border wall construction, and they have suffered concrete reputational and economic injury."
The fact that El Paso County is the "object" of that construction is somewhat difficult to comprehend, given the fact that the wall in question does not appear to be in El Paso County, but rather is in an unspecified location "in southern New Mexico", which location the court describes as being "in El Paso County's close vicinity". So El Paso County has standing despite the fact that "one of the new wall projects" is in at least one different county in an entirely different state. This is a fairly salient point.
That said, what sort of injury might El Paso County be suffering, specifically? The opinion explains the reputational injury:
According to El Paso County Judge Samaniego ("Judge Samaniego"), El Paso County takes pride in its "reputation as a safe place to live, work, and visit," and as a vibrant "bilingual, bi-national, multicultural" community. ... But Defendants' actions have "falsely told the world the exact opposite: "that El Paso County and the Southern border are crime ridden and dangerous, that [its] immigrant community comprises criminals and drug traffickers ... , that [its] proximity to Mexico is an existential threat, and that [it] can be rescued only through the blight of massive wall construction and militarization."
In fact, Judge Samaniego has "already heard personally from people who have a false impression that El Paso County is a dangerous place and who do not want to come here [because of the president's proclamation]." I would, Adam Schiff-style, paraphrase what I believe those conversations sounded like, but I have too much respect for the court.
But wait — that's not all. Judge Briones noted:
[A]ccording to Chief Administrator of El Paso County Keller ("Ms. Keller"), Defendants' actions amount to a message "transmitted all over the world" that "all of [the County's] strengths are actually weaknesses" and that the County is "so endangered by immigrants and [its] closeness to Mexico that [it] need[s] a wall to protect [it]."
Let's break this down a little bit.
Oddly enough, the president actually stated in the 2019 State of the Union Address that El Paso was one of the "safest cities" in the United States, because of the border barrier that has been there for years — exactly the opposite of what Samaniego and Keller assert they have heard.
There was a tremendous back and forth at the time as to why El Paso was one of the safest cities, with NBC News asserting:
Violent crime has been dropping in El Paso since its modern-day peak in 1993 and was at historic lows before a fence was authorized by Congress in 2006. Violent crime actually ticked up during the border fence's construction and after its completion, according to police data collected by the FBI.
That article reported that steel bollard fencing was erected in El Paso between 2008 and mid-2009, and a graph therein showed that the number of violent crimes increased slightly between 2010 and 2012 before dropping more significantly in 2013, increasing in 2014, dropping in 2015, increasing in 2016, and falling again in 2017.
That said, a slightly different perspective was offered by John Shjarback, an assistant professor in the Department of Criminal Justice at the University of Texas at El Paso, and Victor Manjarrez, a retired chief patrol agent for both the El Paso and Tucson sectors in an opinion piece in the El Paso Times. They noted:
Any informed discussion on the topic must start with Operation "Hold-the-Line", which began in September 1993 and continued through 1995 when it petered out until 2001. It took the form of repairing a dilapidated fence in El Paso's downtown area and extending it outward. While it can now be viewed as a glorified chain-linked fence that was often cut, the barrier served its purpose, albeit with high maintenance costs.
A more sophisticated fence/barrier was built in 2008-2009 that essentially replaced the old fence. Improvements were made, and it was expanded from Fort Hancock, Texas, to Santa Teresa, New Mexico.
So there was actually fencing in El Paso (starting at some point in 1993, which the NBC News graph identified as the high-water mark of criminality in El Paso) long before additional barriers were erected under the Bush and Obama administrations. Notably, there is no reference in either the NBC News article or the opinion piece to any attempts by El Paso County to block those earlier efforts.
I will also note, however, that, according to U.S. Customs and Border Protection (CBP) statistics, the number of aliens apprehended by U.S. Border Patrol (USBP) in the El Paso sector dropped from 75,464 in FY 2007, to 30,312 in FY 2008; 14,999 in FY 2009; 12,251 in FY 2010; 10,345 in FY 2011; and to 9,678 in FY 2012, before increasing in FY 2013 to 11,154 and then to 14,511 in FY 2014. Apprehensions dropped slightly in FY 2015 to 14,495 before jumping to 25,634 in FY 2016.
The drop in apprehensions between FY 2007 and FY 2010 in the El Paso Sector of almost 84 percent was significantly higher than the percentage drop in apprehensions along the border nationally (47 percent, from 876,704 apprehensions to 463,382), suggesting that the barriers erected between 2008 and 2009 were actually effective in deterring illegal cross-border traffic.
A third perspective was offered by Kevin Williamson in National Review:
But why is El Paso so safe? It is, after all, a city in which people have at times sat on their roofs and watched running gun battles across the river in Juarez for entertainment. Buildings in El Paso have been struck by stray bullets from Mexico.
There are a few theories about this. One is that El Paso has a large military presence and a massive law-enforcement presence, which may tamp down crime.
Another theory is that El Paso is essentially South Philadelphia writ large.
Crime watchers say keeping a low profile in El Paso also suits the business-minded cartels who use the isolated Texas city as an entry point for tons of marijuana, cocaine and other drugs bound for a U.S. markets worth $30-$50 billion a year by some estimates.
"To kill people in El Paso is bad for business, and to kill them in Juarez is business," said author Charles Bowden, whose book "Murder City" chronicles the slaughter in Juarez.
When South Philadelphia was the front lawn of the Italian mafia, it was considered one of the safest neighborhoods around. It was full of mob wives, mob grandmothers, mob girlfriends, etc. To mug somebody in a neighborhood like that, or to commit a burglary there, was to risk ending up at the bottom of the Schuylkill River.
There are many cartel figures who do their business in Mexico and live in and around El Paso. Many of them keep family there. Would you want to try a home-invasion robbery on a mansion with a Mercedes parked out front in a city like that?
Not to disagree with Chief Administrator of El Paso County Keller (Betsy Keller, for the record — she is not identified fully in the opinion), or Judge Samaniego (presumably elected County Judge Ricardo Samaniego — ditto), but some combination of barriers and cartel business practices are likely, in my objective opinion, the reason for the low crime rate in El Paso.
I base this on the foregoing analysis, as well as on the fact that Juárez, the Mexican border town directly across the Rio Grande from El Paso, has long been considered a cartel hotspot and has seen a surge in violence of late. A June 2018 article in the El Paso Times captioned "Murders in Mexico border city of Juárez continue to rise as deaths top 160 in June alone" reported that there were 767 homicides in the city in all of 2017, but that "the number of homicides ha[d] surpassed 500 in the first six months of" 2018. The paper explained: "U.S. and Mexican law enforcement officials have said that the violence is due to fighting among drug-dealing groups, drug cartels and a conflict between La Linea and Barrio Azteca crime organizations."
In fact, there were 1,247 homicides in Juárez in 2018 (reported ones, at least), and unofficial figures suggest that there have been more than 100 murders per month in the city this year, including 145 in April.
So yes, El Paso may be "a vibrant 'bilingual, bi-national, multicultural' community", (as Judge Samaniego states), but contrary to Keller's analysis, the strength of the county likely has more to do with barriers and the business interests of drug-trafficking organizations than it does with the progressive attitudes of its residents. If Samaniego was correct, logically the good vibes would flow bi-nationally south to Juárez. The statistics above show they don't.
But even that would be fine if El Paso were an island, but it's not. It's a major entryway into the interior of the United States. And the purpose of the administration's reprogramming of DoD funds for barrier construction is to stop the flow of drugs into the United States, as I have explained multiple times in the past.
Put another way, it is great that El Paso is so safe; the issue is that the drugs that transit through it make other areas in the United States dangerous. As I have previously noted:
The latest estimate from the National Institutes of Health, National Institute on Drug Abuse (NIDA) (from 2007) put the total costs of illicit drugs at $193 billion, including $11 billion in health care. I seriously doubt (based upon my experience in my erstwhile hometown, Baltimore) that these numbers have dipped precipitously in the last 12 years.
The Centers for Disease Control estimated that in the 12 months preceding February 2019, there were 69,029 overdose deaths in the United States. NIDA put the number of deaths from heroin in 2017 at 15,482 and "Psychostimulants With Abuse Potential (Including Methamphetamine)" that year at 10,333. As the Center for Immigration Studies has reported: "Notably, 90 percent of the heroin and up to 80 percent of the methamphetamine that is poisoning America's cities is produced in Mexico and imported into the United States illegally."
I will not even get into the fact that I doubt anyone bases their decision whether to travel to El Paso on whether there is fencing in nearby southern New Mexico or not.
The economic injuries in the opinion are tied to the reputational ones, in part. First, El Paso County contends that it will lose tourism and investment dollars:
Ms. Keller explained, "[t]here is nothing more detrimental to a drive to bring in tourists than the perception that a community is chaotic and dangerous and that the tourists['] access to historical and scenic destinations will be impeded by construction." ... Judge Samaniego likewise emphasized that recent meetings with "local business leaders" have indicated that Defendants' actions are "generating fears of potential investors that the community will be mired in a long-term state of chaos that includes ... violent crime, the blight of construction, and impediments to crossing back and forth across the border."
I believe that Judge Samaniego may have revealed too much in his statement. By definition, border barriers only "imped[e] crossing back and forth across the border" between the ports of entry — that is, illegally. One would assume that two judges in a border city (Judges Briones and Samaniego) would have caught that, but no.
Second, having done government contract law, I can assure you that there is very little "chaos" when DOD is involved. Litigation, yes. But not chaos.
Importantly, however, here is a revealing fact from Judge Briones' opinion: El Paso (population 679,000) only currently earns $4 million in tax revenue from tourism. Tourism in (my again erstwhile hometown of) Baltimore (population 622,000) "yield[ed] $717 million in city and state tax revenues" in 2018, despite the fact that the town receives more than its share of publicity for its violence issues. This seems like a fairly slim reed on which to find standing.
No offense to El Paso (a town where I have spent some time and like quite a bit), but its main draw for tourists would be either its proximity to the bars, medical facilities, and nightlife of Juarez (which, needless to say from the facts above, has likely not been a big appeal of late) and the fact that it is the site of the Sun Bowl. If my UVA Wahoos make an appearance this year, I will likely go, fence or no fence in nearby southern New Mexico.
Defendants will divert $20 million away from a planned military construction project at Fort Bliss in El Paso County. ... "Fort Bliss is the lifeblood of the El Paso economy," contributing billions of dollars and creating thousands of jobs. ... Losing funds that had been appropriated for use at Fort Bliss "creates the imminent prospect of economic harm to El Paso County." [Emphasis added.]
Wait — given all of the analysis of "reputation," I thought tourism and investment was propping up the economy — not a military base.
As I have noted before, there is a term for this in D.C.: pork. El Paso is concerned that some sliver of its share of the taxpayers' pie will be siphoned off (temporarily, until a new Defense appropriations bill is passed) to build a wall a few miles west. The critical defense project at Fort Bliss that will have to wait? Access roads, according to the opinion (the construction of which will presumably not result in chaos). Keep in mind that the fort has done without those access roads since its "humble beginnings in 1848". But it thus has standing to sue to stop barriers to the illicit trafficking in narcotics.
Logically, of course, the loss of $20 million in government contracts at Fort Bliss would be more than offset by the money that would go to pay the contractors to build the portions of the wall "in southern New Mexico, in El Paso County's close vicinity", and (again) logically that construction is close enough that at least some of those contractors would work out of El Paso County. Logic does not factor in here, plainly, or it does so only obtusely.
In my next post, I will explain the rationale offered for standing for El Paso County's co-plaintiff, the Border Network for Human Rights.