Even with the shutdown, the Trump administration is suing to take land for the border wall

President Donald Trump hasn’t yet gotten Democrats to acquiesce to his demands for $5.7 billion to build barriers — a “wall” — on the US-Mexico border.

But that hasn’t stopped Justice Department attorneys from working to seize the land for it, even as they have to postpone most other lawsuits due to the partial government shutdown.

DOJ instructed federal attorneys to postpone any lawsuits that weren’t necessary to safeguard “the safety of human life or the protection of property” until the shutdown was over. The Trump administration has even put cases on hold that it’s argued are essential to national security — like the lawsuit over its asylum ban, which has been put on hold by a federal judge in California.

But land condemnation cases in the Southern District of Texas, where the Trump administration has declared its interest in building 104 miles of bollard fencing, are still chugging along. Government attorneys even filed a new case in January, after the shutdown began. The Texas Civil Rights Project is representing defendants in two active eminent domain cases so far — with a third coming up soon and many more in the works — and has seen no evidence of shutdown delay.

The Department of Justice and the US attorney’s office for the Southern District of Texas did not respond to requests for comment — although it isn’t clear whether their media relations staff has been furloughed.

At least one case that’s moving forward under the shutdown is over a parcel of land measuring only a tenth of an acre. It’s is slotted for fence construction in fiscal year 2019 — in other words, fencing that will only be built if Trump wins the current standoff and gets at least some of the $5.7 billion he’s demanding.

Even a hypothetical border fence is apparently deemed essential enough to work on in court during the shutdown.

In a Tuesday hearing on the lawsuit over the tenth-acre parcel, Judge Micaela Alvarez noted that “even with the shutdown, I understand that the attorneys handling these matters on behalf of the Government are not being furloughed and they still have to appear.” The attorney for the Southern District of Texas confirmed it: “This is all I’m allowed to work on.”

The Department of Justice — like the departments of Agriculture, Commerce, Homeland Security, Housing and Urban Development, Interior, State, Transportation, and Treasury — hasn’t been funded by Congress since December 21. Since then, it’s allowed by law only to do certain things — either activities that don’t require funding from Congress or actions that are essential to the functioning of government or the protection of human life or property.

The DOJ’s shutdown contingency plan, updated on January 10, says that “civil litigation will be curtailed or postponed to the extent that this can be done without compromising to a significant degree the safety of human life or the protection of property.” Unless life or property is in danger, attorneys are instructed to ask that active cases “be postponed until funding is available.”

What exactly makes a case sufficiently important to human life and property to be worth pushing forward with isn’t spelled out in the guidance, and it appears to be left up to individual divisions and US attorneys’ offices. (US attorneys’ offices generally have some degree of autonomy from DOJ headquarters in terms of what cases they prioritize.)

In general, though, most cases have been postponed. That includes most immigration cases.

Lawsuits from immigrants seeking habeas corpus petitions to be released from detention have been delayed for the shutdown. So has ongoing litigation in the separation of families at the US-Mexico border.

In at least one case, the Trump administration is even delaying a case that it argued just before the shutdown was essential to national security.

When the Trump administration issued an executive order in November to ban people who entered the US between ports of entry (therefore committing the misdemeanor of illegal entry) from seeking asylum, it claimed the ban was vital to national security — so important that the regulation enabling it had to skip the standard regulatory public review process. That argument didn’t work with federal Judge Jon Tigar, who put the ban on hold later that month, but the Trump administration continued to act aggressively to get it back on the books — asking for an emergency ruling from the Ninth Circuit Court of Appeals and then, in December, the Supreme Court.

In his request to the Supreme Court for the emergency stay in December, US Solicitor General Noel Francisco argued that the ban “has significant implications for the health and safety of both aliens and law enforcement officers at the southern border,” and that any delay in implementing it “could result in serious harm to the public” (cleaned up for readability).

The Supreme Court (by a vote of 5-4) rejected the request for an emergency ruling, instead directing the case to the Ninth Circuit for a fuller appeal. But when the shutdown hit, government attorneys asked the Ninth Circuit to delay that appeal because the asylum ban wasn’t enough of an emergency to justify it:

Department of Justice attorneys and employees of the federal Defendants are prohibited from working, even on a voluntary basis, except in very limited circumstances, including “emergencies involving the safety of human life or the protection of property.” Counsel for Defendants in this case have thus been unable to work on this case since appropriations lapsed December 21. (cleaned up for readability)

But while the asylum ban (despite its professed importance) might not constitute an emergency, the US attorney’s office for the Southern District of Texas appears to feel the border wall is an emergency.