Lawyers for the Trump administration are likely to be in a familiar Oakland, California, courtroom as they seek to defend the president’s declaration of a national emergency at the nation’s southern border with Mexico.
U.S. District Judge Haywood Gilliam Jr. of the Northern District of California on Wednesday was assigned a lawsuit brought by a group of Democratic states’ attorneys general who claim that the declaration will divert funding from the states to finance a wall along the U.S.-Mexico border, a signature proposal of Donald Trump’s 2016 presidential campaign.
Administration lawyers will have to hope for better luck than they’ve had so far in litigating a separate case that’s before Gilliam where state attorneys general have challenged the president’s policies. Gilliam last month granted the AGs’ request for a preliminary injunction blocking the implementation of Trump administration rule changes that would have created exemptions to the contraceptive mandate in the Affordable Care Act. Gilliam had previously granted a nationwide temporary restraining order in the case in late 2017. The U.S. Court of Appeals for the Ninth Circuit, however, last narrowed the ruling’s impact to the plaintiff states in a ruling that cautioned district judges against issuing nationwide injunctions.
The Executive Committee of the Northern District of California assigned Gilliam the border wall funding case after lawyers for the states declined magistrate judge jurisdiction in the case. As of Wednesday, lawyers for the Trump administration had yet to make an appearance in the case.
Gilliam, a former federal prosecutor, took the bench in 2014 after a stint as the vice chairman of the white-collar defense and investigation group at Covington & Burling. He got his undergraduate degree at Yale University and clerked for U.S. District Judge Thelton Henderson after graduating from Stanford Law School in 1994. From 1996 to 1999 he was an associate at the firm then known as McCutchen, Doyle, Brown & Enersen. After nearly eight years as an assistant U.S. attorney in the Northern District of California, Gilliam returned to the McCutchen firm as a partner before joining Covington in 2009.
Gilliam is the most recently confirmed of the 11 judges appointed by President Barack Obama who occupy all but three of the active district judge slots in Northern California. So far, there have been no district court openings on the Northern District bench for Trump to fill. U.S. District Judge Trevor McFadden of the District of Columbia, a Trump appointee, has been assigned a separate challenge brought on behalf of people who own property along the border.
In announcing that he would declare a national emergency at the southern border in the White House Rose Garden Friday, Trump predicted to reporters that the administration would be sued.
“And they will sue us in the Ninth Circuit, even though it shouldn’t be there,” Trump said. “And we will possibly get a bad ruling, and then we’ll get another bad ruling. And then we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake. And we’ll win in the Supreme Court, just like the [travel] ban.”
Trump’s remarks echoed his earlier criticism from last year of the Ninth Circuit and an “Obama judge” who ruled against him in a case challenging the administration’s changes to asylum policy. The earlier remarks prompted a rare response from Chief Justice John Roberts.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement issued by the court. “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.”