Ninth Circuit Judge M. Margaret McKeown. Photo: Jason Doiy

The U.S. Court of Appeals for the Ninth Circuit, a frequent target of President Donald Trump’s barbs over alleged bias against him, sided with the administration Monday in a ruling greenlighting construction of a prototype wall and repairs to existing barriers along the California-Mexico border.

The Trump administration notched a 2-1 decision upholding U.S. District Judge Gonzalo Curiel’s order finding the Department of Homeland Security did not exceed its authority by waiving environmental laws to expedite construction of a prototype wall in San Diego and replacing 14 miles of existing nearby "fencing."

The decision was written by Judge M. Margaret McKeown and was joined by Judge Jacqueline Nguyen.

Even the dissenting judge, Consuelo Callahan, said she would have sided with the Trump administration if she believed the panel had jurisdiction to review the appeal. Instead, Callahan said any review of Curiel’s decision must be done by the U.S. Supreme Court based on her reading of the law used to approve the construction.

During the 2016 presidential election, Trump alleged Curiel, who was overseeing a case against Trump University, was biased against him because the judge is “Mexican.” Curiel was born in Indiana.

In his February 2018 decision, Curiel shot down a consolidated lawsuit brought by California and several environmental advocacy group against DHS. The lawsuits challenged waivers signed by former Homeland Security Secretaries John Kelly and Elaine Duke, pursuant to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, to allow construction of the wall.

Curiel also quoted his “fellow Indiana native,” Supreme Court Chief Justice John Roberts Jr., in his ruling approving the construction.

The plaintiffs alleged DHS exceeded its authority in issuing the environmental waivers and constitutional violations.

Trump has not been shy about his dislike for the Ninth Circuit and even took a jab at the court during the annual turkey pardon just before Thanksgiving Day for delivering “automatic losses” to his administration.

Ninth Circuit judges have repeatedly blocked Trump administration policies on immigration, including the travel ban on mostly Muslim-majority countries, efforts to end the Deferred Action for Childhood Arrivals program for undocumented immigrants who came to the United States as children and a rule restricting asylum.

Trump’s criticism drew a rare rebuke from Roberts, who issued a statement saying: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

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