In the United States Court of Appeals for the Ninth...

No. 19-16102

In the United States Court of Appeals for the Ninth Circuit

SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION,

Plaintiffs-Appellees,

v.

DONALD J. TRUMP, President of the United States, in his official capacity; PATRICK M. SHANAHAN, Acting Secretary of Defense, in his official capacity; KEVIN K. MCALEENAN, Acting Secretary of Homeland Security, in his official

capacity; and STEVEN MNUCHIN, Secretary of the Treasury, in his official capacity,

Defendants-Appellants.

APPELLEES’ SUPPLEMENTAL BRIEF IN OPPOSITION TO APPELLANTS’ EMERGENCY MOTION FOR

STAY PENDING APPEAL

On Appeal from the United States District Court for the Northern District of California

Case No. 4:19-cv-892-HSG

Dror Ladin Noor Zafar Jonathan Hafetz Hina Shamsi Omar C. Jadwat American Civil Liberties Union

Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500

Cecillia D. Wang American Civil Liberties Union

Foundation 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 343-0770 Attorneys for Plaintiffs-Appellees (Additional Counsel on Next Page)

Case: 19-16102, 06/28/2019, ID: 11349270, DktEntry: 71-1, of 41(1 of 49)

ii

Mollie M. Lee Christine P. Sun American Civil Liberties Union

Foundation of Northern California, Inc.

39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493 David Donatti Andre I. Segura American Civil Liberties Union

Foundation of Texas P.O. Box 8306 Houston, TX 77288 Tel.: (713) 325-7011 Attorneys for Plaintiffs-Appellees *Attorneys for Plaintiff-Appellee Sierra Club

Sanjay Narayan* Gloria D. Smith* Sierra Club Environmental Law

Program 2101 Webster Street, Suite 1300 Oakland, CA 94612 Tel.: (415) 977-5772


iii

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 2

I. Plaintiffs May Seek Relief for Defendants’ Violation of the Appropriations Clause. .................................................................................... 2

A. Plaintiffs have an equitable claim to enjoin action in violation of the Constitution, regardless of whether Defendants invoke a statute as a source of authority. .............................................................................. 2

B. Plaintiffs have a direct cause of action under the Appropriations Clause. ........................................................................................................ 9

i. This Court has already recognized a constitutional cause of action for executive spending in violation of appropriations legislation. ............................................................................................. 9

ii. No zone-of-interests limitation shields Defendants’ violation of the Appropriations Clause from review. .............................................12

C. The APA does not bar concurrent equitable and constitutional claims. .......................................................................................................17

II. Plaintiffs Also Have a Meritorious APA Claim. ...........................................19

A. Defendants’ final decision to spend unappropriated funds on the border wall is reviewable under the APA. ...............................................19

B. The zone-of-interests test does not bar Plaintiffs’ APA claim. ................22

C. Defendants’ legal arguments are not entitled to deference under the APA. ...................................................................................................25

III. Congress Has Not Prohibited Review. ..........................................................29

CONCLUSION ........................................................................................................30

CERTIFICATE OF COMPLIANCE .......................................................................32

CERTIFICATE OF SERVICE ................................................................................33


iv

TABLE OF AUTHORITIES

Cases

Alaska v. Fed. Subsistence Bd., 544 F.3d 1089 (9th Cir. 2008) ..............................................................................28

Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) ........................................................................................2, 5

Bennett v. Spear, 520 U.S. 154 (1997) ....................................................................................... 19, 20

Bond v. United States, 564 U.S. 211 (2011) ..............................................................................................10

Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667 (1986) ....................................................................................... 29, 30

Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013) ..............................................................................27

Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) ..................................................................... 5, 6, 17

Chevron v. Nat’l Res. Def. Council, 467 U.S. 837 (1984) ....................................................................................... 25, 26

City & Cty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) ................................................................................ 7

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987) ..............................................................................................23

Clinton v. City of New York, 524 U.S. 417 (1998) ...................................................................................... passim

Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) .................................................................................................. 2

Dalton v. Spector, 511 U.S. 462 (1994) ...................................................................................... passim

Dames & Moore v. Regan, 453 U.S. 654 (1981) ..................................................................................... 3, 4, 18


v

Dep’t of Commerce v. New York, No. 18-966, 2019 WL 2619473 (U.S. Jun. 27, 2019) ................................... 27, 29

E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018) ..............................................................................23

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ..........................................................................................26

Flast v. Cohen, 392 U.S. 83 (1968) ................................................................................................11

Gingery v. City of Glendale, 831 F.3d 1222 (9th Cir. 2016) ................................................................................ 3

Haitian Refugee Ctr. v. Gracey, 809 F.2d 794 (D.C. Cir. 1987) ................................................................................ 4

Harmon v. Brucker, 355 U.S. 579 (1958) ............................................................................................2, 3

Harrington v. Schlesinger, 528 F.2d 455 (4th Cir. 1975) ................................................................................11

Havasupai Tribe v. Provencio, 906 F.3d 1155 (9th Cir. 2018) ..............................................................................21

Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) .................................................................................. 4

House v. Mnuchin, No. 19-cv-969 (D.D.C. May 23, 2019) .................................................................24

Individuals for Responsible Gov’t, Inc. v. Washoe Cty. By & Through the Bd. of Cty. Comm’rs, 110 F.3d 699 (9th Cir. 1997) .......................................12

Int’l Bhd.of Teamsters v. U.S. Dep’t of Transp., 861 F.3d 944 (9th Cir. 2017) ................................................................................19

Kisor v. Wilkie, No. 18-15, 2019 WL 2605554 (U.S. Jun. 26, 2019) ............................................17

Laub v. U.S. Dep’t of Interior, 342 F.3d 1080 (9th Cir. 2003) ....................................................................... 12, 21


vi

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) ..............................................................................................13

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) ....................................................................................... 22, 23

Mountain States Legal Found. v. Bush, 306 F.3d 1132 (D.C. Cir. 2002) .............................................................................. 6

Nat. Res. Def. Council v. EPA, 643 F.3d 311 (D.C. Cir. 2011) ..............................................................................20

Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999 (D.C. Cir. 2014) ..............................................................................20

Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702 (D.C. Cir. 2008) ..............................................................................26

Office of Personnel Mgmt. v. Richmond, 496 U.S. 414 (1990) ..............................................................................................14

Porter v. Warner Holding Co., 328 U.S. 395 (1946) ..............................................................................................18

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989). ...............................................................................18

Ray Charles Found. v. Robinson, 795 F.3d 1109 (9th Cir. 2015) ..............................................................................13

Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def., 87 F.3d 1356 (D.C. Cir. 1996) ..............................................................................24

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ..............................................................................................27

Smith v. Berryhill, 139 S. Ct. 1765 (2019) ..........................................................................................26

Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96 (U.S. June 26, 2019) ............................................................................13

United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) ...................................................................... passim


vii

United States v. Mead Corp., 533 U.S. 218 (2001) ..............................................................................................26

United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977) ...............................................................................27

Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ................................................................................ 1

Webster v. Doe, 486 U.S. 592 (1988) ..............................................................................................30

White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2014) ............................................................................25

Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997) ................................................................................26

Wyoming v. Oklahoma, 502 U.S. 437 (1992) ....................................................................................... 12, 13

Yakima Valley Mem’l Hosp. v. Wash. State Dep’t of Health, 654 F.3d 919 (9th Cir. 2011) ................................................................... 13, 14, 15

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ............................................................................................7, 8

Statutes

5 U.S.C. § 559 ..........................................................................................................17

5 U.S.C. § 704 ................................................................................................... 19, 21

10 U.S.C. § 284 ....................................................................................................8, 21

2019 Department of Defense Appropriations Act, Pub. Law No. 115-245 .................................................................................................. passim

Administrative Procedure Act, Pub. Law No. 79-404 (1946) ................ 1, 17, 19, 22

Consolidated Appropriations Act of 2019, Pub. Law No. 116-6, 133 Stat. 13 (2019) .................................................................................................. 8


viii

Other Authorities

Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956) ........................................................................... 2

Line Item Veto Act, H.R. Rep. No. 104-491 (1996) ...............................................16

U.S. Const., Art. I, § 7, cl. 2 ....................................................................................... 8

U.S. Const., Art. I, § 9, cl. 7 ............................................................................. passim

U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947) ............................................................................................17


1

INTRODUCTION

Defendants’ arguments boil down to a simple claim: although Congress

denied the Executive Branch the billions of dollars it sought for a border wall, no

constitutional issue is raised by Defendants’ funneling of military pay and pension

funds to the wall, and no court can review that executive action. In support of this

claim, Defendants submit that (1) twenty-five years ago, the Supreme Court quietly

eliminated centuries of equitable review for any case where an executive official

points to a statutory authority, no matter how inapplicable; (2) this Court did not

mean what it said when it held in United States v. McIntosh that government

violations of appropriations legislation give rise to a constitutional cause of action

under the Appropriations Clause; and (3) the Administrative Procedures Act

(APA) is both inapplicable here and also operates to bar any equitable claim for

review. Defendants fundamentally misunderstand the law that applies to equitable

and constitutional claims, and disregard decades of caselaw showing that Plaintiffs

satisfy the APA’s zone-of-interests test. Defendants fail to carry their heavy burden

to establish that their unlawful actions here are unreviewable. They have not made

a “strong showing” of success on the merits, and are not entitled to a stay.

Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017).


2

ARGUMENT

I. Plaintiffs May Seek Relief for Defendants’ Violation of the Appropriations Clause.

A. Plaintiffs have an equitable claim to enjoin action in violation of

the Constitution, regardless of whether Defendants invoke a statute as a source of authority.

As described in Plaintiffs’ Opposition Brief and the amicus curiae brief of

the Federal Courts scholars, Plaintiffs have an equitable cause of action to enjoin

Defendants’ actions in excess of constitutional authority. See Opp. 5-7; Fed. Courts

Scholars Br. 3-7. “The ability to sue to enjoin unconstitutional actions by state and

federal officers is the creation of courts of equity, and reflects a long history of

judicial review of illegal executive action, tracing back to England.” Armstrong v.

Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015) (citing Jaffe &

Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev.

345 (1956)).

There is nothing extraordinary about equitable relief against ultra vires

government conduct. “Generally, judicial relief is available to one who has been

injured by an act of a government official which is in excess of his express or

implied powers.” Harmon v. Brucker, 355 U.S. 579, 581-82 (1958); see

also, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (equitable relief

“has long been recognized as the proper means for preventing entities from acting

unconstitutionally”); Gingery v. City of Glendale, 831 F.3d 1222, 1233 (9th Cir.


3

2016) (“Unlike Section 1983, the availability of an equitable cause of action to

enjoin purportedly unconstitutional conduct does not necessarily rely upon the fact

that a particular constitutional provision confers an individual right on the

plaintiff.”).

Defendants are flatly wrong in arguing that an equitable claim evaporates

when the executive branch claims a statutory authority. See Def. Supp. Br. 5-6. In

Harmon, for example, the Court held that the district court erred when it dismissed

a claim that the Secretary of the Army exceeded his statutory and constitutional

authority. As the Court explained, the district court had the “power to construe the

statutes involved to determine whether the respondent did exceed his powers.” 355

U.S. at 582. If so, then “judicial relief from this illegality would be available.” Id.

Similarly, in Dames & Moore v. Regan, 453 U.S. 654 (1981), the Supreme Court

again addressed the merits of an action for an injunction based on a claim that

officials “were beyond their statutory and constitutional powers.” Id. at 667.

Specifically, the Supreme Court considered the executive’s claimed power to

“suspend claims pending in American courts,” when the President purported to act

under authority of both the International Emergency Economic Powers Act and 22

U.S.C. § 1732, the so-called “Hostage Act.” 453 U.S. at 675. The Court did not

require the identification of any private right of action under the claimed statutory

authorities, nor did the Court look to some other source for a cause of action. There


4

is nothing anomalous about such review: as the Court emphasized, its

consideration and rejection of the President’s claimed powers under the statutes

was not an aberration, but rather “the view of all the courts which have considered

the question.” Id. at 675-76; see also, e.g., Hawaii v. Trump, 878 F.3d 662, 682

(9th Cir. 2017) (courts may “review ultra vires actions by the President that go

beyond the scope of the President’s statutory authority”), rev’d on other grounds,

138 S. Ct. 2392 (2018).

Nowhere in Dames & Moore did the Court suggest that a challenger to an

unlawful action under purported Hostage Act authority was required to satisfy a

zone-of-interests test with respect to that inapplicable statute. Such a requirement,

as the D.C. Circuit explained decades ago, would make little sense. “Otherwise, a

meritorious litigant, injured by ultra vires action, would seldom have standing to

sue since the litigant’s interest normally will not fall within the zone of interests of

the very statutory or constitutional provision that he claims does not authorize

action concerning that interest.” Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811

n.14 (D.C. Cir. 1987); see also Fed. Courts Scholars Br. 7-14.

Defendants wrongly suggest that Dalton v. Spector, 511 U.S. 462 (1994),

worked a radical change in law by effectively ending ultra vires review. Def. Supp.

Br. 6-8. Dalton by its own terms did not purport to overrule centuries of equitable

review whenever the executive asserts it is acting under statutory authority, and


5

Defendants identify no decision in the twenty-five years since Dalton was decided

that has remotely endorsed the government’s theory here. Indeed, the Supreme

Court’s most recent decision on the availability of equitable review of unlawful

executive actions does not even mention Dalton. See Armstrong, 135 S. Ct. 1378

(considering equitable review of action in violation of Medicaid Act). Instead,

courts have emphasized that Dalton establishes a narrow rule, inapplicable here:

“Dalton’s holding merely stands for the proposition that when a statute entrusts a

discrete, specific decision to the President and contains no limitations on the

President’s exercise of that authority, judicial review of an abuse of discretion

claim is not available.” Chamber of Commerce v. Reich, 74 F.3d 1322, 1331 (D.C.

Cir. 1996).

Because Dalton addressed a statute that authorized unfettered discretion by

the President, the Court had no occasion there to consider statutes, such as Section

8005, that limit executive action. Defendants nonetheless seek to take Dalton’s

limited statement that not “every action by the President, or by another executive

official, in excess of his statutory authority is ipso facto in violation of the

Constitution,” Dalton, 511 U.S. at 472, and convert it into a sweeping, inverse rule.

According to Defendants, whenever the executive invokes a statute, no ultra vires

or constitutional review is available. See Def. Supp. Br. 6-7. But no court

interpreting Dalton has ever read it to hold as such. See, e.g., Mountain States


6

Legal Found. v. Bush, 306 F.3d 1132, 1136 (D.C. Cir. 2002) (distinguishing

Dalton in reviewing a “statute [that] places discernable limits on the President’s

discretion,” and finding ultra vires review available “to ensure that [the President’s

actions] are consistent with constitutional principles and that the President has not

exceeded his statutory authority”); Reich, 74 F.3d at 1332 (holding ultra vires

challenge to Executive Order was judicially reviewable and rejecting argument that

President could “bypass scores of statutory limitations on government authority”

“so long as the President claims that he is acting pursuant to the Procurement

Act”).

Under Defendants’ extreme view, the government could always defeat

review of ultra vires action simply by pointing to a statute, even if the executive

branch action exceeds the plain boundaries set by that statute and baseline

separation-of-powers principles. Indeed, if Defendants’ radical reinterpretation of

equitable actions were truly the law, Youngstown could have come out

differently—rather than relying on a claim of unilateral executive power to act

without authorization from or in defiance of Congress, as Defendants do here in all

but name, President Truman would have simply pointed to one of the existing

statutes allowing the president to take private property, and the Supreme Court

would have declined any review of his ultra vires seizure of the Nation’s steel


7

mills, no matter how tenuous or implausible that claimed statutory authority was.

Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-86 (1952).

In any event, Dalton certainly does not preclude courts from reviewing

claims stemming from Presidential actions that are “incompatible with the express

or implied will of Congress,” Youngstown, 343 U.S. at 637 (Jackson, J.,

concurring), nor does it hold that a constitutional claim does not arise when the

government is asserting powers based on a statute that itself is unconstitutional if it

authorizes the challenged conduct, Clinton v. City of New York, 524 U.S. 417, 445-

47 (1998). These two distinctions alone are sufficient to render Dalton inapposite

here.

First, Defendants seek to accomplish through the transfer of funds wall

construction that Congress considered and refused to fund. Specifically, Congress

refused to fund new wall construction outside of Texas. “The sheer amount of

failed legislation on this issue demonstrates the importance and divisiveness of the

policies in play, reinforcing the Constitution’s unmistakable expression of a

determination that legislation by the national Congress be a step-by-step, deliberate

and deliberative process.” City & Cty. of San Francisco v. Trump, 897 F.3d 1225,

1234 (9th Cir. 2018) (quotation omitted). As Justice Frankfurter underscored in

Youngstown:

It is quite impossible . . . when Congress did specifically address itself to a problem . . . to find secreted in the interstices of legislation the very grant of


8

power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress.

343 U.S. at 609 (Frankfurter, J., concurring); see also Order 38-39 (noting

Congress “repeatedly rejected legislation that would have funded substantially

broader barrier construction” before “deciding in the end to appropriate only

$1.375 billion” for construction in Texas).

Second, if Defendants’ actions are authorized by the statutes on which they

rely, the statutes would violate the separation of powers and the Appropriations

and Presentment Clauses. Unlike Dalton, where there was no argument that the

statute as construed by the president violated the Constitution, Defendants’

interpretations of Sections 8005 and 284 would usurp Congress’s “exclusive”

power “not only to formulate legislative policies and mandate programs and

projects, but also to establish their relative priority for the Nation.” United States v.

McIntosh, 833 F.3d 1163, 1172 (9th Cir. 2016); see also Order 36-42. Likewise, if

Section 8005 permitted the President to both sign the CAA and simultaneously

“reject[ ] the policy judgment made by Congress and rely[ ] on his own policy

judgment” by increasing funding for wall construction based “on the same

conditions that Congress evaluated when it passed” the CAA, it would violate the

Presentment Clause. Clinton, 524 U.S. at 443-44.


9

B. Plaintiffs have a direct cause of action under the Appropriations Clause.

i. This Court has already recognized a constitutional cause of

action for executive spending in violation of appropriations legislation.

As this Court has recognized, in light of the unique congressional authority

over spending, the government’s violation of an appropriations statute gives rise to

a constitutional cause of action. In McIntosh, this Court explained that when the

government violates a restriction contained in appropriations statute, it is “drawing

funds from the Treasury without authorization by statute and thus violating the

Appropriations Clause.” 833 F.3d at 1175. “Once Congress, exercising its

delegated powers, has decided the order of priorities in a given area, it is for . . . the

courts to enforce them when enforcement is sought.” Id.

Where, as here, a litigant has Article III standing, this Court has held that a

constitutional cause of action will lie for the spending of funds in violation of an

appropriations act. See McIntosh, 833 F.3d at 1174. As this Court explained, “the

Appropriations Clause plays a critical role in the Constitution’s separation of

powers among the three branches of government and the checks and balances

between them.” Id. at 1175. Consistent with the numerous cases establishing that

“private parties, rather than government departments, were able to rely on

separation-of-powers principles in otherwise justiciable cases or controversies,”

this Court held that private plaintiffs can invoke the Appropriations Clause as the


10

source of a constitutional cause of action. Id. at 1174 (collecting cases). This Court

grounded its ruling in the principle that “separation-of-powers constraints in the

Constitution serve to protect individual liberty, and a litigant in a proper case can

invoke such constraints ‘[w]hen government acts in excess of its lawful powers.’”

Id. at 1175 (quoting Bond v. United States, 564 U.S. 211 (2011)). McIntosh is

clear: whether phrased as a cause of action for an Appropriations Clause violation

or a violation of the separation of powers, Plaintiffs have a constitutional cause of

action if they have an Article III injury arising from Defendants’ efforts to spend

money in contravention of congressional will.

In short, when the government violates the text of an appropriations

restriction, the Appropriations “Clause constitutes a separation-of-powers

limitation that [litigants] can invoke” to enjoin the constitutional violation.

McIntosh, 833 F.3d at 1175. Defendants’ assertion that an Appropriations Clause

violation is merely an ordinary statutory claim dressed up in constitutional finery,

Def. Supp. Br. 7-8, is wrong.

Contrary to Defendants’ suggestion, Def. Supp. Br. 8, it is entirely

unsurprising—and appropriate—that this Court did not discuss Dalton in

McIntosh, because the difference in context between appropriations statutes and

other legislation leads to a difference in their constitutional significance. Whatever

Dalton stands for, nothing in the Supreme Court’s decision in that case remotely


11

bears on the availability or scope of an Appropriations Clause challenge. While a

claim concerning ordinary statutory authority might not always implicate

separation of powers, when the government spends money in violation of an

appropriations act, it is “drawing funds from the Treasury without authorization by

statute and thus violating the Appropriations Clause.” McIntosh, 833 F.3d at 1175.1

As the district court correctly concluded, “the position that when Congress

declines the Executive’s request to appropriate funds, the Executive nonetheless

may simply find a way to spend those funds ‘without Congress’ does not square

with fundamental separation of powers principles dating back to the earliest days

of our Republic.” Order 54-55. These fundamental separation-of-powers principles

do not disappear merely because an appropriations act is at issue, and Plaintiffs

properly invoke them here.

1 Defendants’ reliance on Harrington v. Schlesinger, 528 F.2d 455, 457-58

(4th Cir. 1975), is misplaced. Def. Supp. Br. 6. Harrington concerned the distinct issue of taxpayer standing, which requires plaintiffs to demonstrate a nexus between their taxpayer status and the claimed constitutional violation. Id. at 457 (citing Flast v. Cohen, 392 U.S. 83 (1968)). In that unique context, Plaintiffs had to show that a challenged appropriation violated “the specific constitutional limits imposed on the exercise of that spending power.” Id. at 458; see Flast, 392 U.S. at 84-85, 88 (taxpayer standing to challenge violation of the express prohibition of the Establishment and Free Exercise Clause). Harrington has no relevance where, as here, plaintiffs are not seeking standing based on their status as taxpayers and have demonstrated an independent basis of standing to challenge an Appropriations Clause violation. In any event, to the extent the Fourth Circuit’s view is inconsistent with this Court’s recent decision in McIntosh, this Court’s law controls.


12

ii. No zone-of-interests limitation shields Defendants’ violation of the Appropriations Clause from review.

At the threshold, there is no cause for this Court to consider Defendants’

argument that the zone-of-interests requirement applies to constitutional claims.

Defendants make this argument for the first time on appeal, and included no such

argument in their preliminary injunction briefing in the district court. See Def.

Opp. Br., No. 19-cv-00892-HSG (N.D. Cal.), ECF No. 64. Consequently,

Defendants have waived this objection as to Plaintiffs’ constitutional claims. See

Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1087 n.6 (9th Cir. 2003)

(“[B]ecause the zone of interests test is merely prudential rather than constitutional

it is waivable, and Defendants have waived it by not raising it below.”).

Even if their argument were not waived, Defendants are wrong that

Plaintiffs’ constitutional claims should be subject to zone-of-interests limitations.

Both the Supreme Court and this Court have only ever applied this limitation to

constitutional claims under the dormant Commerce Clause, and this Court has

followed Justice Scalia’s view that the test is particularly applicable to this single

type of constitutional claim. See Individuals for Responsible Gov’t, Inc. v. Washoe

Cty. By & Through the Bd. of Cty. Comm’rs, 110 F.3d 699, 703 (9th Cir. 1997)

(noting zone-of-interests limit applies to constitutional claims “under the negative

[dormant] commerce clause in particular” (quoting Wyoming v. Oklahoma, 502

U.S. 437, 469 (1992) (Scalia, J., dissenting) (emphasis added))). Indeed, in recent


13

decades the Supreme Court has “recast the zone-of-interests inquiry as one of

statutory interpretation,” and has not applied the zone-of-interests test to any

constitutional claim in decades. Ray Charles Found. v. Robinson, 795 F.3d 1109,

1120-21 (9th Cir. 2015) (citing Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 127-28 (2014)); see Fed. Ct. Scholars Br. 12-13. The Supreme

Court made no mention of the test this week in its most recent examination of a

dormant Commerce Clause challenge. See Tenn. Wine & Spirits Retailers Ass’n v.

Thomas, No. 18-96 (U.S. June 26, 2019).2

But this Court need not decide the exact parameters of the continuing

application of a zone-of-interests analysis in constitutional cases because Plaintiffs

would easily satisfy it. This test is not demanding. “The zone-of-interests test

denies a right of review if the plaintiff’s interests are marginally related to or

inconsistent with the purposes implicit in the relevant constitutional provision.”

Yakima Valley Mem’l Hosp. v. Wash. State Dep’t of Health, 654 F.3d 919, 932 (9th

Cir. 2011) (quotation and alteration marks omitted). The Appropriations Clause

has a “fundamental and comprehensive purpose . . . to assure that public funds will

be spent according to the letter of the difficult judgments reached by Congress as

2 The last reference to a zone of interests in the Supreme Court’s

constitutional jurisprudence is in Justice Scalia’s dissent in Wyoming v. Oklahoma, where he predicted that if the majority’s “rejection of the zone-of-interests test is applied logically, we can expect a sharp increase in all constitutional litigation.” 502 U.S. at 473 (Scalia, J., dissenting).


14

to the common good and not according to the individual favor of Government

agents.” McIntosh, 833 F.3d at 1175 (quoting Office of Personnel Mgmt. v.

Richmond, 496 U.S. 414, 427-28 (1990)).

If the zone-of-interests tests applies, “[t]he ultimate question, therefore, is

whether [Plaintiff’s] claims bear more than a marginal relationship to claims

addressing” Defendants’ efforts to spend money in contravention of the difficult

judgments reached by Congress as to the common good. Yakima Valley Mem’l

Hosp., 654 F.3d at 932. “As the name implies, the zone of interests test turns on

the interest sought to be protected, not the harm suffered by the plaintiff.” Id.

(quotation marks omitted). “Any alleged injury must somehow be tied to” an

executive effort to spend money in contravention of Congressional judgment. Id.

(quotation marks omitted). Plaintiffs’ harms are clearly “tied to” an executive

effort to spend money in circumvention of difficult Congressional judgments,

which is the “interest sought to be protected.” Id.; see, e.g., Order 27 (“The crux of

Plaintiffs’ case is that Defendants’ methods for funding border barrier construction

are unlawful.”); Order 1-2 (“In short, Plaintiffs seek to prevent executive officers

from using redirected federal funds for the construction of a barrier on the U.S.-

Mexico border.”). Their interests are entirely congruent with the broad separation-

of-powers interest articulated by Justice Kennedy: If “the decision to spend [is]

determined by the Executive alone, without adequate control by the citizen's


15

Representatives in Congress, liberty is threatened. Money is the instrument of

policy and policy affects the lives of citizens. The individual loses liberty in a real

sense if that instrument is not subject to traditional constitutional constraints.”

Clinton, 524 U.S. at 451 (Kennedy, J., concurring).

Rather than engage with the purpose of the Appropriations Clause,

Defendants make the incredible assertion that the zone-of-interests with respect to

Plaintiffs’ constitutional claim is defined by the zone-of-interests of a statute. Def.

Supp. Br. 11-12. Defendants do not cite a single case, in this circuit or any other,

that has ever held that the zone of interests of a constitutional claim is determined

by reference to a statute. Nor do Defendants address this Circuit’s clear statement

that, where it applies, “[t]he zone-of-interests test” turns on “the purposes implicit

in the relevant constitutional provision.” Yakima Valley Mem’l Hosp., 654 F.3d at

932 (quotation omitted) (emphasis added).

In addition to its lack of any legal basis, Defendants’ effort to graft a

statutory zone-of-interests test on a constitutional cause of action should also be

rejected for the absurd—and dangerous—results it would produce. Defendants’

novel theory would insulate many unconstitutional statutes from review because

those plaintiffs with the most concrete reason to bring a constitutional challenge

would be least likely to find themselves within the zone-of-interests of the

unconstitutional enactment. Under Defendant’s logic, for example, in bringing a


16

Presentment Clause challenge to the president’s exercise of authority under the

Line Item Veto Act, the plaintiffs in Clinton v. City of New York should have been

first required to demonstrate that they fit within the zone of interests of the Line

Item Veto Act itself. But the challengers, “a farmers’ cooperative consisting of

about 30 potato growers in Idaho and an individual farmer who is a member and

officer of the cooperative,” 524 U.S. at 425, had interests that were plainly

inconsistent with Congress’s purposes in passing the Line Item Veto Act. That Act

was enacted “for the purpose of ‘ensur[ing] greater fiscal accountability in

Washington,’” id. at 447 (quoting H.R. Rep. No. 104-491, at 15 (1996)). The

potato growers sued because the President’s cancellation of a tax benefit resulted

in more money for the Treasury (as Congress intended), but imperiled a tax benefit

the potato growers hoped to take advantage of. Id. at 426. Under Defendants’ rule,

the Court might never have decided the critical constitutional issue because no

individual harmed by the unconstitutional Line Item Veto Act would plausibly

have been in a position to challenge its constitutionality.

In short, even if the zone-of-interests test applies to Plaintiffs’ constitutional

challenges, it is plainly satisfied here.


17

C. The APA does not bar concurrent equitable and constitutional claims.

Defendants argue that the APA supersedes and is exclusive of any equitable

or constitutional claims. Def. Supp. Br. 17-18. But the APA does not limit the

availability of other forms of review.

As the Supreme Court confirmed just this week in Kisor v. Wilkie, the

APA’s judicial review provision “was understood when enacted to restate the

present law as to the scope of judicial review” and the Supreme Court has “thus

interpreted the APA not to significantly alter the common law of judicial review of

agency action.” No. 18-15, 2019 WL 2605554 (U.S. Jun. 26, 2019) (slip op.)

(quotation and alteration marks omitted). By its own terms, the APA “do[es] not

limit or repeal additional requirements imposed by statute or otherwise recognized

by law.” 5 U.S.C. § 559; see U.S. Dep’t of Justice, Attorney General’s Manual on

the Administrative Procedure Act 139 (1947) (this provision was “intended simply

to indicate that the act will be interpreted as supplementing constitutional and legal

requirements imposed by existing law”).

Thus, as Judge Silberman explained in the D.C. Circuit’s decision in Reich,

the “enactment of the APA . . . does not repeal the review of ultra vires action

recognized long before,” and “[w]hen an executive acts ultra vires, courts are

normally available to reestablish the limits on his authority.” 74 F.3d at 1328. Nor

did Dalton purport to silently overrule this longstanding principle. Instead, it


18

“assume[d] for the sake of argument that some claims that the President has

violated a statutory mandate are judicially reviewable outside the framework of the

APA.” Dalton, 511 U.S. at 474 (citing Dames & Moore, 453 U.S. at 667).

Defendants have pointed to nothing in the APA that restricts the Court’s traditional

equitable powers. “Unless a statute in so many words, or by a necessary and

inescapable inference, restricts the court’s jurisdiction in equity, the full scope of

that jurisdiction is to be recognized and applied.” Porter v. Warner Holding

Co., 328 U.S. 395, 398 (1946).

Nor, of course, can the APA be read to eliminate concurrent constitutional

causes of action. In Presbyterian Church (U.S.A.) v. United States, this Court made

clear that it need not determine whether “whether the alleged INS surveillance in

this case constituted ‘agency action’” for the purposes of an APA claim, because

the plaintiffs had plead causes of action under the First and Fourth Amendments.

870 F.2d 518, 525 n.8 (9th Cir. 1989). Whether or not APA review was

additionally available to the plaintiffs was irrelevant in determining the plaintiffs’

entitlement to constitutional claims. Thus, in this case as well, the availability of an

APA cause of action has no bearing on whether Plaintiffs have a cause of action

under the Appropriations Clause. And as this Court established in McIntosh,

Plaintiffs have such a constitutional claim. See supra Section I.B.


19

II. Plaintiffs Also Have a Meritorious APA Claim.

A. Defendants’ final decision to spend unappropriated funds on the border wall is reviewable under the APA.

Defendants argue that the transfers from military pay and pension accounts

to border wall construction under Section 8005 are not reviewable under 5 U.S.C.

§ 704 as either “final agency action” or as “preliminary, procedural, or

intermediate agency action.” See Def. Supp. Br. 14-15. This attempt to insulate the

Section 8005 transfers from APA review fails on both fronts.

The Section 8005 transfers are final agency action under the APA because

they “mark the ‘consummation’ of the agency’s decisionmaking process,” and are

a means by which “‘rights or obligations have been determined’ or ‘legal

consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations

omitted). Defendants do not dispute that DoD has “consummate[ed]” the Section

8005 transfer. Nor can Defendants dispute that DoD’s Section 8005 transfer has

the direct legal consequence of procuring funds for border wall construction—

funds that would otherwise have been unavailable, and construction that would

otherwise be impossible. These consequences—both the transfer of funds into the

counter-narcotics account, and the construction enabled thereby—are sufficient to

render DoD’s actions final for purposes of the APA. The agency has not left itself

some “discretion over whether or not” the funds will be moved. Int’l Bhd.of

Teamsters v. U.S. Dep’t of Transp., 861 F.3d 944, 952 (9th Cir. 2017). Rather,


20

DoD has “change[d] the legal situation,” id.—it has transferred the money, and

used it. See Bennett, 520 U.S. at 178 (actions that lack legal consequences are

those that “serve ‘more like a tentative recommendation than a final and binding

determination” (citation omitted)).

Defendants seek to elide these consequences by suggesting that the transfer

accomplished under Section 8005, taken alone, “has no legal consequences for

plaintiffs.” Def. Supp. Br. 14 (emphasis added). But the finality of an action does

not depend upon its consequences for plaintiffs, and Defendants may not read an

additional zone-of-interests requirement into the second Bennett factor. As the

Supreme Court explained in Bennett, an agency action can be final if it affects the

“regime to which the action agency is subject.” Bennett, 520 U.S. at 178 (emphasis

added). Defendants cannot reasonably dispute that DoD’s actions under Section

8005 determined rights and obligations and had legal consequences for DoD. Id.

(agency’s action has legal consequences because it authorized agency “to take the

endangered species if (but only if) it complies with the prescribed conditions”); see

also Nat. Res. Def. Council v. EPA, 643 F.3d 311, 319-320 (D.C. Cir. 2011)

(action that withdraws discretion from agency’s regional directors is final); Nat’l

Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999, 1007 (D.C. Cir. 2014)

(action that “provides firm guidance to [agency] officials about how to handle

permitting decisions” is final). The Section 8005 transfers plainly have a legal


21

consequence: in the absence of those transfers, Defendants could not obligate the

billion dollars for wall construction at issue here.3

Alternatively, even if there were any question about finality, the 8005

transfers could be reviewed as “preliminary, procedural, or intermediate agency

action” in connection with review of final agency action under Section 284. See 5

U.S.C. § 704. Defendants contend that DoD’s transfer of funds under Section 8005

was not “inherently bound up in” its use of those funds pursuant to Section 284—

that the two actions were unrelated. Def. Supp. Br. 15. The record, Defendants’

arguments to this Court, and common sense utterly belie that assertion.

Defendants acknowledged before announcing DoD’s Section 284 projects that

such projects were not possible without transferring funds by Section 8005. See,

e.g., Rapuano Decl., ECF 7-1, Ex. 8-C, Memorandum from Elaine McCusker to

Under Secretary of Defense (Comptroller); Admin. R., ECF 163-1, Memorandum

from Patrick M. Shanahan to Under Secretary of Defense for Policy, dated March

8, 2019 (attached here) (“In order to support the DHS request for assistance, the

3 In addition, the transfer has significant practical consequences. Courts “focus on both the practical and legal effects of the agency action, and define the finality requirement in a pragmatic and flexible manner.” Havasupai Tribe v. Provencio, 906 F.3d 1155, 1163 (9th Cir. 2018) (quotation marks omitted). DoD’s Section 8005 transfer is “a practical requirement,” id., for Defendants’ border wall projects, and operations could not commence without it, see Order 16 (“[E]very dollar of Section 284 support to DHS and its enforcement agency, CBP, is attributable to reprogramming mechanisms.”); see generally Laub, 342 F.3d at 1088-89 (action is sufficiently final for judicial review under APA where it will “influence subsequent . . . actions”).


22

Department would need to transfer funding into the Drug Interdiction and Counter-

Drug Activities, Defense appropriation, using the general transfer authority (GTA)

provided for under Section 8005[.]”); Admin. R., ECF 163-1 at 2, Memorandum

from Kenneth P. Rapuano to Acting Secretary of Defense, dated March 21, 2019

(attached here) (“To meet any level of the support requested by DHS, additional

funds must be transferred . . . using DoD’s general transfer authority (GTA),

which is provided in Section 8005[.]”) And, as discussed above, Section 8005 is

itself inextricable from the purpose for which the funds will be used. See also

Order 24 (“Since Defendants first announced that they would reprogram funds

using Section 8005, they have uniformly described the object of that

reprogramming as border barrier construction.”). In short, Defendants’ Section

8005 transfers are not beyond APA review.

B. The zone-of-interests test does not bar Plaintiffs’ APA claim.

As Plaintiffs previously demonstrated, they are within the zone of interests

of Section 8005. Opp. 9-13. The inquiry is “not meant to be especially

demanding,” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, 567 U.S. 209, 224-25 (2012) (citation omitted). Agency action is

“presumptively reviewable,” and a party’s interest need only be “arguably within”

a statute’s zone of interests. Id. Congress’s intent to exclude a category of plaintiffs


23

from judicial review must be “fairly discernible.” Clarke v. Sec. Indus. Ass’n, 479

U.S. 388, 401, 399 (1987).

Plaintiffs “were involved with Congress’s funding decisions with respect to

the border wall,” Opp. 9, and now seek to enforce those decisions, including

through the restrictions Congress imposed on reprogramming in contravention of

Congressional funding denials. “[I]t is sufficient that the Organizations’ asserted

interests are consistent with and more than marginally related to the purposes of

the [statute].” E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1244 (9th Cir.

2018); see also Clarke, 479 U.S. at 401 (zone-of-interests analysis must consider

“overall context” and “overall purposes” of congressional action). Moreover, as

Plaintiffs explained, because the Section 8005 decisions at issue here

unquestionably involved the implementation of the transferred funds, Plaintiffs—

as neighbors to that implementation—were within the zone of interests. See Opp.

11; Patchak, 567 U.S. 209 (as implementation of a land acquisition statute

involved consideration of the land’s eventual use, a plaintiff asserting

“environmental’ and “aesthetic harm” was within the zone of interests).

But even if Plaintiffs were not so directly involved in the denial of funds

leading to Defendants’ use of Section 8005, they would still be within the zone of

interests as suitable challengers to Defendants’ actions. The D.C. Circuit’s decision

in Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Defense, 87 F.3d 1356 (D.C.


24

Cir. 1996), illustrates the expansive zone of interests for claims arising under

statutes protecting Congress’s control over appropriations decisions. There, the

court evaluated the zone-of-interests of a statute similarly aimed at tightening

congressional control over executive spending. Id. at 1360. There was no

indication that, in enacting the statute, Congress intended to benefit any third party,

or indeed to “benefit anything other than the public fisc and Congress’s

appropriation power.” Id. The D.C. Circuit nonetheless held that an individual

seeking enforcement was within the very broad zone-of-interests because no claim

could meaningfully diverge from Congress’s interests in enacting the statute:

“Either the funds at issue in this case are covered by the statute or they are not.

There is no possible gradation in the statute’s requirement. Because a statutory

demarcation thus limits what [the plaintiff] can request, we run no risk that the

outcome could in fact thwart the congressional goal.” Id. at 1361 (quotation and

alteration marks omitted).

Defendants suggest an inverse zone-of-inquiry rule: Section 8005 is

effectively unreviewable and unenforceable. In the past, they claimed that “this is

not a statute that anyone really has the authority to invoke.” Hearing Tr. 98:04-05,

House v. Mnuchin, No. 19-cv-969 (D.D.C. May 23, 2019). More recently,

Defendants suggested that it would be “an exceedingly small number of people”

who might theoretically be within Section 8005’s zone of interests, perhaps limited


25

to a defense contractor entitled to funds that were nonetheless transferred. Oral

Argument Recording at 10:57-11:20. Defendants do not explain why defense

contractors’ interests are more consistent with Congress’s protection of its own

appropriations powers that Plaintiffs’ interests, nor do they identify how any

defense contractor could possibly have an entitlement to funds transferred under

Section 8005, as that Section provides no authority to transfer already-obligated

funds. In any event, Defendants’ theory is incompatible with the Supreme Court’s

“capacious view of the zone of interests requirement,” which holds that a “suit

should be allowed unless the statute evinces discernible congressional intent to

preclude review.” White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1269

(D.C. Cir. 2014) (Kavanaugh, J., concurring in part and dissenting in part)

(discussing Supreme Court’s expansive view of the zone-of-interests), rev’d sub

nom. Michigan v. EPA, 135 S. Ct. 2699 (2015).

C. Defendants’ legal arguments are not entitled to deference under the APA.

Review under the APA would not require the District Court to defer to

Defendants’ interpretation of Section 8005. Under Chevron v. Natural Resources

Defense Council, 467 U.S. 837 (1984), deference is appropriate only where: (1)

“Congress delegated authority to the agency generally to make rules carrying the

force of law,” and (2) “the agency interpretation claiming deference was


26

promulgated in the exercise of that authority.” United States v. Mead Corp., 533

U.S. 218, 226-27 (2001).

Neither condition exists here. First, Congress did not provide DoD with “the

authority to administer [appropriations restrictions] by issuing regulations with the

force of law.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016);

see also Smith v. Berryhill, 139 S. Ct. 1765, 1778 (2019) (holding that deference is

inappropriate where statutory question is one that Congress is unlikely to have

delegated to agency). And second, Defendants have provided their statutory

interpretation only in the course of this litigation—not through the “exercise” of

any rulemaking or formal authority, Mead, 533 U.S. at 227. An agency’s litigating

position merits, at most, “respect proportional to its ‘power to persuade.’” Id. at

235.4

4 Deference is inappropriate for a third, independent reason: Chevron is

inapplicable to an agency’s statutory interpretation, if the “proffered interpretation raises serious constitutional concerns”—as does Defendants’ interpretation here. Williams v. Babbitt, 115 F.3d 657, 662-63 (9th Cir. 1997) (“[J]ust as we will not infer from an ambiguous statute that Congress meant to encroach on constitutional boundaries, we will not presume from ambiguous language that Congress intended to authorize an agency to do so.”); accord Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (The “canon of constitutional avoidance trumps Chevron deference.”). “When agencies adopt a constitutionally troubling interpretation, . . . we can be confident that they not only lacked the expertise to evaluate the constitutional problems, but probably didn't consider them at all.” Williams, 115 F.3d at 662.


27

What is left is then, at most, is Skidmore deference to an agency

interpretation, which “depend[s] upon the thoroughness evident in its

consideration, the validity of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to persuade, if lacking

power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). And as the

Supreme Court reminded the administration yesterday, “[e]ven where deference is

required, this Court is ‘not required to exhibit a naiveté from which ordinary

citizens are free.’” Dep’t of Commerce v. New York, No. 18-966, 2019 WL

2619473, at *28 (U.S. June 27, 2019) (slip op.) (quoting United States v.

Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977) (Friendly, C.J.)).

Here, none of the factors enhances the persuasive power of the agency’s

position. The Acting Secretary’s decision provides no evidence of thoroughness,

no indication of its reasoning, and no consistency with decades of practice. See

Rapuano Decl., ECF No. 7–3, Ex. C at 2 (conclusory statements that construction

of wall segments was “an unforeseen military requirement not known at the time of

the FY 2019 budget request,” and had “not been denied by Congress”); Order 9-10,

37-38. Accordingly, there is no occasion for deference. See, e.g., Castrijon-Garcia

v. Holder, 704 F.3d 1205, 1211 (9th Cir. 2013) (“declin[ing] to grant deference”

under Skidmore where there is “no analysis at all”).


28

The government’s elaborated interpretation of Section 8005, such as it is, is

contained entirely in its briefing. This Court “do[es] not afford Chevron or

Skidmore deference to litigation positions unmoored from any official agency

interpretation because ‘Congress has delegated to the administrative official and

not to appellate counsel the responsibility for elaborating and enforcing statutory

commands.’” Alaska v. Fed. Subsistence Bd., 544 F.3d 1089, 1095 (9th Cir. 2008)

(citation omitted). Lacking any claim to deference, Defendants’ various

arguments—that Congress intended the word “unforeseen” to cover Congress’s

own decision to deny funding to DHS, that Congress intended the words “item”

and “denied” to be limited to requests for specific line items under identified

statutory authorities, that subcomponents of an “item” are not “denied” when

Congress refuses to fund a broader request that encompasses them—must stand or

fall on their own merits. As Plaintiffs have shown, the district court was correct to

reject them. Opp. 13-15.

Where, as here, an agency intends to spend a billion dollars on an

undeniably controversial wall project, it must “offer genuine justifications for

important decisions, reasons that can be scrutinized by courts and the interested

public. Accepting contrived reasons would defeat the purpose of the enterprise. If

judicial review is to be more than an empty ritual, it must demand something better


29

than the explanation offered for the action taken in this case.” Dep’t of Commerce

v. New York, No. 18-966, Slip Op. 28, 2019 WL 2619473, at *28.

III. Congress Has Not Prohibited Review.

At bottom, Defendants argue that, because they have invoked Section 8005,

their actions are beyond the review of this or any court. But the Supreme Court has

repeatedly held the when the government seeks to preclude review of a “substantial

statutory and constitutional challenge[]” to executive decisionmaking, it is taking

an “extreme position” requiring “a showing of clear and convincing evidence, to

overcome the strong presumption that Congress did not mean to prohibit all

judicial review of executive action.” Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667, 680 (1986) (citations and quotation marks omitted). Defendants have

not remotely made such a showing.

In light of this Court’s unequivocal ruling in McIntosh that spending money

in violation of an appropriations act restriction amounts to “violating the

Appropriations Clause,” 833 F.3d at 1175, Defendants’ efforts to evade review are

particularly disfavored. Defendants must carry a heavy burden to show that their

violations of the restrictions in Section 8005 are beyond judicial review because

the Supreme Court has emphasized that if “Congress intends to preclude judicial

review of constitutional claims its intent to do so must be clear” so as “to avoid the

serious constitutional question that would arise if a federal statute were construed


30

to deny any judicial forum for a colorable constitutional claim.” Webster v. Doe,

486 U.S. 592, 603 (1988) (quotation marks omitted).

And even when only statutory violations are at issue, clear and convincing

evidence of congressional intention to preclude review is required. See Bowen, 476

U.S. at 680. This is because courts “ordinarily presume that Congress intends the

executive to obey its statutory commands and, accordingly, that it expects the

courts to grant relief when an executive agency violates such a command.” Id. at

681. Try as Defendants might to evade judicial scrutiny, their efforts to usurp

congressional control over appropriations are the proper subject of this Court’s

review.

CONCLUSION

For the reasons stated in this brief and in Plaintiffs’ Opposition, Defendants’

Motion for a Stay should be denied.


31

Dated: June 28, 2019 Respectfully submitted,

Mollie M. Lee (SBN 251404) Christine P. Sun (SBN 218701) American Civil Liberties Union

Foundation of Northern California, Inc.

39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493 Fax: (415) 255-8437 [email protected] [email protected] David Donatti Andre I. Segura (SBN 247681) American Civil Liberties Union

Foundation of Texas P.O. Box 8306 Houston, TX 77288 Tel.: (713) 325-7011 Fax: (713) 942-8966 [email protected] [email protected] Attorneys for Plaintiffs-Appellees *Attorneys for Plaintiff-Appellee

Sierra Club

/s/ Dror Ladin Dror Ladin Noor Zafar Jonathan Hafetz Hina Shamsi Omar C. Jadwat American Civil Liberties Union

Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2660 Fax: (212) 549-2564 [email protected] [email protected] [email protected] [email protected] [email protected] Cecillia D. Wang (SBN 187782) American Civil Liberties Union

Foundation 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 343-0770 Fax: (415) 395-0950 [email protected] Sanjay Narayan (SBN 183227)* Gloria D. Smith (SBN 200824)* Sierra Club Environmental Law

Program 2101 Webster Street, Suite 1300 Oakland, CA 94612 Tel.: (415) 977-5772 [email protected] [email protected]


32

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing motion complies with the type-volume

limitation of 8,000 words because it contains 7,014 words. This brief complies

with the typeface and the type style requirements of Fed. R. App. P. 27 because

this brief has been prepared in a proportionally spaced typeface using Word 14-

point Times New Roman typeface.

/s/ Dror Ladin

Dror Ladin Dated: June 28, 2019


33

CERTIFICATE OF SERVICE

I hereby certify that on June 28, 2019, I electronically filed the foregoing

with the Clerk for the United States Court of Appeals for the Ninth Circuit by

using the appellate CM/ECF system. All participants in this case are registered

CM/ECF users and will be served by the appellate CM/ECF system. There are no

unregistered participants.

/s/ Dror Ladin Dror Ladin Dated: June 28, 2019


Exhibit A

Case: 19-16102, 06/28/2019, ID: 11349270, DktEntry: 71-2, Page 1 of 2(42 of 49)

Administrative Record - Section 284 Projects: 034

Case 4:19-cv-00892-HSG Document 163-1 Filed 06/07/19 Page 34 of 54

COMPTROLLER

OFFICE OF THE UNDER SECRETARY OF DEFENSE 1 100 DEFENSE PENTAGON

WASHINGTON , DC 20301 -1100

M~~ 0 8

MEMORANDUM FOR UNDER SECRETARY OF DEFENSE FOR POLICY

SUBJECT: Assessing the Department of Homeland Security Request for Department of Defense Support to Block Drug-Smuggling Corridors

As directed by the Acting Secretary of Defense on March l , 2019, I am providing an assessment of the fiscal considerations and funding recommendations, of the Department of Homeland Security (OHS) request for assistance, dated February 25, 2019, to provide counterdrug support pursuant to 10 U.S.C. 284(b)(7). This review was conducted absent the cost estimates developed by the Department of the Army, and thus, the amounts identified below may change once the actual cost estimates are known.

In order to support the OHS request for assistance, the Department would need to transfer funding into the Drug Interdiction and Counter-Drug Activities, Defense appropriation, using the general transfer authority (GTA) provided for under Section 8005 of the Department of Defense Appropriations Act, 2019. The Department can use this authority to transfer funding if the funds are used for l) a higher priority item, 2) the item is based on unforeseen military requirements, and 3) the item for which funds are requested has not been denied by Congress.

I recommend implementing the transfer of funds in two increments. The first (TAB A) would consist of S l billion for the construction efforts, resourced from fact-of-life execution year assets. Up to an additional $1 .5 billion could be provided in a second increment I will accelerate the Department's midyear execution review in order to aide in the identification of potential sources that minimize the risk to operations and readiness.

{ fa_1"'1 />jr-f; J/ '7 Elaine Mccusker Deputy Under Secretary of Defense

(Comptroller)

0


Exhibit B



Case 4:19-cv-00892-HSG Document 163-1 Filed 06/07/19 Page 1 of 54UN c LASSIFI E D/F{I' 10

ACTION MEMO

Prepared by: James Ross. OASD(l-ID&GS) Phone Number: (571) 256-8325

FOR: ACT!NGSECRElARYOFDEFENSE \ ~ ~1..- -~ FROM: Kenneth P. Rapuano. Assistant Secretary of Defense, Homeland Defens~ & I~a~

Security

SUBJECT: Department of Homeland Security Request for Department of Defense Suppo11 to Block Drug-Smuggling Corridors

PURPOSE: ro obtain your approval of a Deprutment of Homeland Security (OHS) request for certain assistance in blocking drug-smuggling corridors along the southern border; and for you to direct specific actions b) the Under Secretary of Defense (Comptrolle1}Chief Financial Officer (L 'SD(C)ICFO) and the Secretar) of the Am1y/Commander. U.S. Army Co!J)s of Engineers.

COORDINATION: This action was coordinated with SecAnny. USD(C)/CFO. OGC. ASD(SO/LIC). and the Joint Staff

BLllF: Approving this request will support DHS's efforts to secure the southern border by blocking drug-smuggling corridors. You have the authority under I 0 U.S.C. § 284 to use certain DoD fonds to construct roads and fences, and to install lighting. to block drug-smuggling corridors across international boundaries of the United States in support of counter-narcotics activities of Federal law enforcement agencies.

DISCUSSION:

• On February 25, 2019. the Secretary of Homeland Security requested DoD assistance in blocking up to 11 specific drug-smuggling corridors on Federal land along the southern border of the United States. DI IS requested that DoD provide this support in order of stated priority as DoD resources allow by (I) replacing existing vehicle barricades or dilapidated pedestrian barricades with construction of new pedestrian fences (i.e., fences that would block both vehicles and pedestrians). (2) con<>tructing new and improving existing patrol roads. and (3) installing lighting. (TAB D). This support to DHS is consistent with the President's direction in his April 4. 2018, memorandum ... Securing the Southern Border of the United States'' (TAB E).

• I 0 U.S .C. § 284(b)(7) gives you the authority, using funds from the counter-narcotics support line in DofYs .. Dmg Interdiction and Counter-Drug Acti vities, Defense'' appropriation. to construct roads and fences, and to install lighting. to block drug-smuggling corridors across international boundaries of the United States in support of counter-narcotic activities of Federal law enforcement agencies .

- The requirements of Section 284 arc met: IJHS/Customs and Border Protection (CBP) i a Federal law enforcement agency: OHS has identified each project area as a drug-smuggling corridor: and the work requested by DIIS fall s within the scope of subsection 284(b )(7) in that it

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involves construction of fences (including a linear ground detection system), construction of roads. and in~tallation of lighting (supported by grid power and including imbedded cameras).

- Any support provided under Section 284, including under subsection (b )(7), is subject to I 0 U.S.C . § 276, which provides that suppo11 may not be provided if the provision of such support would adversely affect the military preparedness of the United States.

• On March I, 20 l 9, you directed an evaluation of the DHS request for assistance (TAB F) .

- The Secretary of the Army1Commander, l'.S. Am1y Corps of Engi neers (USACF > provided preliminary cost estimates for the 11 DHS-re uested border fencin, construction projects. totaling $4.478 (based on construction of a 30-foot bollard fencing) and covering 217 .8 miles. If the height of the bollard were changed to I 8 feet. the estimated cost would be $3.78. (TAB G)

- To meet any level of the support requested by DI-IS. additional funds must be transferred into the "Drug Interdiction and Counter-Drug Activities, Defense" appropriation using DolY s general transfer authority (GTA), which is provided in Section 8005 of the Department of Defense Appropriations Act 2019. and Section 1001 of the John S. McCain National Defense Authorization Act (NOAA) for Fiscal Year 2019. Together, these GTA provisions allow total transfers of up to $48 . Congressional notification is required under both sections. but there is no statutory requirement to obtain prior congressional approval.

o The Department ma\ use GT A on! u on a determination bv the Secretan of Defense that such action is nccessan in the national interest, and the transfer ma onl be used to provide funding for higher priorit\· items, based m1 unforeseen militarv re uirements. than those h ems for which funds were originall) appropriated. and in no case for an item for which funds or authorization have been denied b) Congress.

o The USD(C)/CFO has idcntitkd $1 B of FY 2019 Arm y military pt!rsonnel funds as excess to current military personnel requirements and available for transfer into the Drug Interdiction and Counter-Drug Activities, Defense. appropriation (l AB H ).

o You ma" determine that:

• Use of GTA is necessary in the national interest (see April 4 memo); • Using funding to block drug smuggling corridor is a higher priority than the Anny

military personnel funds that haYe become excess to this fiscal year' s Anny military personnel programmatic requirement;

• The military requirement for this increased support to DHS was unforeseen at the time of the hudget request: and

• Congress has not denied funding or authorization for support to DJ IS under Section 284(b)(7).

- The CJCS indicates that reprogramming ·'of these funds into the Drug Interdiction and CounterDrug Activities, Defense account will have no immediate negative impact on joint force readiness. However, if these funds were not reprogrammed they likely would be used to address currently unfunded DoD requirements" (TAB l). The Under Secretary of Detense for

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Policy (USD(P)) concurs that there is no reduction in readiness. Because there is no adverse effect on readiness and the source funds are excess to need, providing the recommended support would not adversely affect the military preparedness of the United States.

- The Secretary of the Army requests that if the full $I B is not used for support of DHS under Section 284, the remainder be returned to the Anny for reprogramming and funding of unfunded Army requirements.

During the USD(C)/CFO's mid-year review. additional funds may be identified that are excess to need or are lower-priority programmatic requirements that will not adversely affect military preparedness. The USD(C)/CFO and the USD(P) will coordinate with the CJCS and the heads of other appropriate DoD Components to provide a recommendation regarding construction of additional OHS-requested projects under Section 284.

OPTIONS:

• OHS 's request for assistance includes approximately 2 \ 8 miles of road construction, lighting installation, and fencing construction, set out as 11 distinct projects. OHS specificall) requested ' 'that DoO's support under 10 l 1.S.C. § 284 address the requirements in order of priority as DoO resources allow."'

All projects require that the Secretary of Homeland Security ust.! her authority to waive such legal requirements (including environmental laws) as she dete1111ines are necessary to waive to ensure expeditious construction. Prior to executing such a waiver, the Secretary of Homeland Security must consult with relevant govcmmcntal oflicials. Indian tribes. and property O\\ ners to minimize eftects on the environment, culture, commerce, and quality of life. The OHS request provides that DI-IS will be responsible for applicable environmental planning and compliance. including stakeholder outreach and consultation.

CBP has indicated that the timeline to complete consultations and execute waivers will be longer if multiple projects are undertaken.

• We also considered lJS/\CE's ability to undertake projects using its multiple award task order contract (MATOC), which was developed as a contracting vehicle for border-fencing construction and has a limit of $350M per individual task order. USA Cr could propose a task order in excess of $350M under Federal Acquisition Regulation Pai1 16.5 procedures. Although a contractor would have to agree to a task order above $350M, we believe that contractors will agree to larger task orders. Using the MATOC improves contract management and may reduce legal challenges to the projects since it was competitively bid.

- Although the MA TOC is not currently available because it is under protest. USACE anticipates that the bid protest will be resolved in time to support OllS. If the protest is not resolved as quickly as anticipated, USACE can use a new sole-source contract, which has somewhat higher legal risk.

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• With the constraint of$ I B in available resources, USA CE would be able to construct approximately 57 miles of 18-foot or 46 miles of 30-foot bollard fencing. The CBP Commissioner confirmed that CBP still strongly prefers 30-foot bollard fencing.

• The DHS order of priority, mileage, and estimated cost for each project are as follows:

Cost I Miles Cost/Miles DHS Priority Project Name ($17M/mile) ($20.5/ mile)

18-foot bollard 30-foot bollard I Yuma Sector Project I $ 85M I 5 miles $103M I 5 miles 2 Yuma Sector Project 2 $102M I 6 miles $123M I 6 miles

3 El Paso Sector Project 1, segment l $255M I I 5 miles $308M I 15 miles El Paso Sector Project_ 1, segment 2 $527M I 31 miles $636M 131 miles

4 El Centro Sector Project 1 $259M I 15.25 miles $313M / 15.25 miles 5 Tucson Sector Project 1 $646M I 38 miles $779M I 38 miles 6 Tucson Sector Project 2 $ 85M I 5 miles $103M 15 miles 7 ~[ucson Sector Project 3 $340M I 20 miles $410M 120 miles 8 Tucson Secto! Project 4 $442M I 26 miles $533M I 26 miles 9 Yuma Sector Project 3 $527M /31 miles $636M 131 miles 10 El Paso Sector ~roj ect 2 $400M I 23.51 miles $482M I 23.51 miles 11 Tucson Secto1:_Project 5 $ 34M I 2 miles $41M I2 miles

-· ---·

• Addressing the OHS request in order of priority results in the following options:

- Option 1: DHS ''Top 3'" Priorities: $969M: 57 miles of 18-foot bollard fencing ($ 17M/mile) .

PRO: This course of action provides the most mileage for $ 1 Band meets DHS "s '"To r Border Fencing counter-drug priorities. By building to the 18-foot bollard standard. sufficient savings will be reali zed to complete all 3 projects for $1 B. El Paso Sector Project 1 would tie into existing fencing that is 18-feet high . All projects may be undertaken using the USACE MA TOC, thereby limiting the number of contractors able to mount protests.

CON: Does not meet lJHS·s desire for 30-foot bollard fencing. USAC E \Voul<l have to justify exceeding the MA TOC's nonnal $350M ceiling and would have to obtain concurrence of the contractor awarded with a task order for Segment 2 of El Paso Sector Project I. Additionally. there is a greater risk of being unable to execute the projects this fiscal year due to CBP capacitv issues in completing multiple environmental consultations and waivers. Requires USACE to manage more projects.

Option 2: El Paso Sector Project I: $943M; 46 mile. of 30-foot bollard fencing ($20.SM/milc).

fRO : Highest-priority single project within available fundin g. Requires only one use of DHS's waiver authority. Meets DHS"s desire for 30-foot bollard foncing.

CON: Does not account for DHS' s t\\o highest priority projects. USACE may award both segments of this project using the MATOC, but Segment 2 {which is above the $350M ceiling) requires contractor consent.

Option 3: OHS Priorities I, 2, 3 (segment I), 4, and 6: $948M; 46.25 miles of 30-foot bollard fencing .

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PRO: Fully funds the two hight:st and four of the top six OHS priority pro jects. Meets DHS's desire for 30-foot bollard fencing . All projects may be undertaken using the USA CE MA TOC, thereby limiting the number of contractors able to mount protests.

CON: Funds only one segment of OHS Priority 3. Fewer miles than Option I. Additionally. there is a greater risk of being unable to execute pro jects this fiscal year due to CBP capacitv issues in completing multiple environmental consultations and waivers. In particular, OHS Priority 6 includes an environmentally sensitive area. which could further extend the time required for consultations and delay issuance of a waiver for that specific project. Requires USACE to manage more projects.

RECOMMENDATIONS:

I) Detennine. in light of the views of the CjCS and the USDJ..P.J,_ that rovidin u to lB in opport does not adverselv affect the militar. preparedness of the United States because there is

no adverse effect on readiness and the source fund s are excess to need.

Approve: ~ Disapprove: Other: MAR 2 5 2019

2) Appro\e Option I -- immediate DoD support to DHS's Priority Projects I. 1. and 3 (57 mile. of 18-foot bollard fence ). and sign the letter to the Secretan of Homeland Security at TAB A. This o tion meets DHS"s to 3 rioritv ro·ects and ro\ ides the maximum milea re of 18-foot bollard fencing for $1 B.

Approve: ~ Disapprove: ·---------- Other: ---------···------··-·---------------MAR 2 5 2019

BI Dctenninc that transferring $ l B in funds for this support is in the national interest and that Jhc other requirements of Section 8005 of the Department of Defem.e A ro riations Act. 2019. and Section l 001 of the John S. McCain NOAA for FY 2019 are met (i .e., that the item to be funded is higher priority than the item for which funds and authority are transferred. that the increase in Section 284(b)(7) support is based on unforeseen military requirements. and that the programmat~~ection 284(b)(7) support to DI IS has not been denied by Congress).

Approve: ~ Disapprove: --------· Other: MAR 2 5 2019

4) Sign the memorandum to the USD(C )ICFO at TAB B authorizirn.! the transfer of u to $1 B of FY 2019 Army military personnel funds into the ··Drug Interdiction and Counter-Drug Activities. Defense"' appropriation. and direct the USD(C ) CFO. upon approval of the transfer bv the Office of Management and Budget. to notifv Congress prompt Iv of the transfer

Approve: ~ DisapproYe: Other:

MAR 2 5 2019 5) Sign the memorandum to the Secretan of the Arm\ at l AB C, authorizing the Commander. U.S. Armv Corps of Engineers. to undertake DI ts Priority Project 3.

Approve: ~ Disapprove: ______ Other:

MAR 2 5 201Q COORDINATION: TAB T Atta1.:hmcnts: As stated

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In the United States Court of Appeals for the Ninth...

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