Crossing the Border of Executive Power: What the Battle over Legal Protections and Border Security Reveal about Executive Overreach

During his first candidacy for President of the United States, Donald Trump came into office with a bold promise: to build a wall along the southern border of the United States. [1] His promise was a physical manifestation of an issue central to his campaign, one of increasing border security and crackdowns on immigration into the country. Yet, the fencing, satellite lighting, watchtowers, and other surveillance infrastructure of the border have posed a risk to the surrounding ecosystems and local species. [2] In his second term, Trump has increasingly focused on retribution towards those who have already immigrated to the U.S. As part of his plan for immigration control, Trump has deported over 500,000 immigrants from the United States, housing many of them in immigration detention centers. [3, 4] Often, though, these centers are built in vulnerable ecosystems, which are harmed by the new constructions. [5] 

These border control measures have frequently come up against environmental regulations designed to preserve the natural environment, such as the Endangered Species Act, which promotes the conservation of threatened and endangered species, or the National Environmental Policy Act (NEPA), which requires the federal government to assess the environmental consequences of its actions before doing them. [6, 7] In legal cases regarding the interaction between border security and environmental regulations, the courts have to determine which issue has more supremacy. As immigration crackdowns have grown more severe, cases debating the importance of environmental regulations over executive immigration authority have steadily increased. However, at the root of these environmental concerns is an even larger battle over the extent of the power of the executive. Less than a year into his second term as president, Donald Trump has already faced legal cases that question his authority in the face of environmental violations because of his border control policies. As Donald Trump continues to test the limits on how he can increase border security, the courts have the responsibility to ensure appropriate checks on executive power and determine the limits of the new administration in overruling pre-existing legislation in favor of their agenda. 

In his first term as president, Donald Trump faced controversy for the construction of a wall along the southern border of the United States and his expansions of border control. Center for Biological Diversity v. Department of Homeland Security was a series of cases filed by the State of California and environmental advocacy groups against the Department of Homeland Security's (DHS) attempt to advance the construction of border barriers in southern California. [8] Under Executive Order 13,767, issued on January 25, 2017, Donald Trump allowed for federal agencies to use all lawful means to fortify the country’s southern border. [9] He claimed an unsecured border promoted drug and human trafficking into the country. Through the jurisdiction of this executive order, the Department of Homeland Security (DHS) expedited the construction of a border wall in San Diego and Calexico, California, along the southern border of the United States. The plaintiffs filed two separate claims against the DHS. The first was an ultra vires claim, meaning that they argued the DHS had exceeded its legal authority. [10] Specifically, the plaintiffs argued that the DHS violated the Administrative Procedure Act (APA), which regulates how government departments make decisions and are subject to legal review. [11] The second claim was that the DHS breached federal environmental laws. The DHS posited that they were allowed to forgo federal legislation, such as the APA and the aforementioned environmental laws, in the building of the wall, citing Section 102 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), which permits the Secretary of Homeland Security to waive “all legal requirements” to expedite border construction. [12] 

The United States Ninth Circuit Court of Appeals sided with the defendants and held that the DHS could waive federal law under Section 102 of the IIRIRA to continue construction of the border wall, resolving the plaintiffs’ first claim. This decision meant that the plaintiffs' second claim concerning environmental regulations was also null, since the DHS was declared able to forgo federal legislation, including conservation measures such as the NEPA or the Coastal Zone Management Act. Following the result of this case, the DHS was permitted to continue the expedited construction of the border wall in California. Even though this case focused on the environmental implications of border security, it was a much clearer battle over the types of laws executive departments are required to adhere to, not to mention a clear example of the legal system widening executive authority. 

In contrast, another case from the first Trump administration, Sierra Club v. Trump, worked to limit the Executive Branch’s power to expand border security. The case was brought against the Trump administration in February of 2019 by the Sierra Club, a grassroots environmental conservation organization, a coalition of states, and the Southern Border Communities Coalition, a human rights organization focused on communities along the southern border of the U.S. They alleged the Trump administration illegally reappropriated funds from the Department of Defense (DOD) to finance the construction of a border wall along the southern border, looking specifically at whether Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 allowed for the transfer of funds. [13] The case also had to determine that the Sierra Club had Article III standing to sue the DOD, meaning that the DOD’s actions would explicitly harm Sierra Club members and that a court ruling would help mitigate this harm. [14]

The case was argued at the Ninth Circuit again, where the court not only confirmed that the Sierra Club had Article III standing but also decided that the Department of Defense was unable to reappropriate its funds. The court further affirmed the illegality of the transfer of funds, holding that the Executive Branch lacks the constitutional authority to reappropriate funding without congressional approval. The case was scheduled to be brought before the Supreme Court; however, before the Court could do so, President Biden assumed office and halted funding towards the border wall. The Supreme Court postponed the case, vacated the Ninth Circuit’s ruling, and remanded the case on the chance it would be needed for future actions. 

Both of these cases examine executive overreach through initial cases based on border security interfering with environmental regulations. In Center for Biological Diversity v. DHS, the administration was allowed to continue its plans for border security since the Department of Homeland Security had the ability to override federal regulations. However, the decision in Sierra Club v. Trump confirmed pre-existing limits to the extent of the Executive Branch’s power. As Donald Trump continues to attempt to expand the border enforcement system, there will be more cases of environmental violations and an increasing need for the courts to check the power of the Executive Branch. 

Already in his second term, Donald Trump is seeing pushback against his most recent expansions of the immigration system. On June 27, 2025, Friends of the Everglades, an advocacy group based on preserving America’s Everglades, filed Friends of the Everglades Inc. v. Kristi Noem, alleging that the Department of Homeland Security and the state of Florida have violated environmental protections by constructing Alligator Alcatraz, an immigration detention center. [15] Located in the Florida Everglades, the immigration detention center is within an ecosystem that is home to thousands of plant and animal species, many of which are threatened or endangered. [16] The Trump administration and lawyers for Florida claim that the construction of this center can not violate federal environmental protection laws, like NEPA, since the facility is sponsored by the state. However, if the construction of the detention center had been forced to comply with the NEPA, the government would have had to determine the environmental consequences of building the center in the Everglades. [17] Friends of the Everglades Inc. v. Kristi Noem is still ongoing, but in August 2025, a federal judge called for a stay for construction on the site to be halted. However, a month later in September, a federal appeals court overruled this decision, allowing for construction to continue on the site. The case is still pending a decision, but the result will determine the extent of executive authority that the Trump administration and future administrations will have to enforce immigration and border security. This case is not just a fight over preserving the environment; it’s one that must be fought to preserve the balance of powers within the government. 

Edited by Andrew Puthumana and Christina Park

[1] Nolan McCaskill, “Trump Promises Wall and Massive Deportation Program,” Politico, August 31, 2016, https://www.politico.com/story/2016/08/donald-trump-immigration-address-arizona-227612.

[2] Marshal Garbus, “Environmental Impact of Border Security Infrastructure: How Department of Homeland Security’s Waiver of Environmental Regulations Threatens Environmental Interests Along the U.S.-Mexico Border,” Tulane Environmental Law Journal 31, no. 2 (2018): 327–44.

[3] “DHS Removes More than Half a Million Illegal Aliens From US,” Department of Homeland Security, October 27, 2025, https://www.dhs.gov/news/2025/10/27/dhs-removes-more-half-million-illegal-aliens-us. 

[4] “Detention Facilities,” September 17, 2020, https://www.ice.gov/detention-facilities.

[5] Dana Kobilinsky, “‘Alligator Alcatraz’ Could Threaten Fragile Ecosystem,” Wildlife Society, August 5, 2025, https://wildlife.org/alligator-alcatraz-could-threaten-fragile-ecosystem/.

[6] Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq (1973). 

[7] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (1970).

[8] Center for Biological Diversity v. Department of Homeland Security, No. 18-55474 (9th Cir. 2019).

[9] Donald J. Trump, “Executive Order: Border Security and Immigration Enforcement Improvements,” White House, January 25, 2017, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-border-security-immigration-enforcement-improvements/.

[10] “Ultra Vires,” Legal Information Institute, https://www.law.cornell.edu/wex/ultra_vires.

[11] Administrative Procedure Act, 5 U.S.C. §§ 551–559, 701–706 (1946).

[12] Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546.

[13] Sierra Club v. Trump. No. 19-16102 (9th Cir. 2019).

[14] U.S. Constitution, art. III, sec. 3, cl. 1.

[15] Friends of the Everglades Inc. v. Kristi Noem. 1:25-cv-22896 (2025). 

[16] Hiroko Tabuchi, “The ‘Alligator Alcatraz’ Site Once Changed History. Now, It’s Testing the Law Again.,” Climate, New York Times, August 8, 2025, https://www.nytimes.com/2025/08/08/climate/alligator-alcatraz-everglades-airport.html.

[17] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (1970).