SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION, Plaintiffs-Appellees,
DONALD J. TRUMP, in his official capacity as President of the United States; et al., Defendants-Appellants.
No. 4:19-cv-00892-HSG Northern District of California,
Before: CLIFTON, N.R. SMITH, and FRIEDLAND, Circuit Judges.
CLIFTON AND FRIEDLAND, CIRCUIT JUDGES
emergency proceeding arises from a challenge to a decision by
the President and certain of his cabinet members
(collectively, "Defendants") to
"reprogram" funds appropriated by Congress to the
Department of Defense ("DoD") for Army personnel
needs and to redirect those funds toward building a barrier
along portions of our country's southern border.
reprogramming decision was made after President Trump had
repeatedly sought appropriations from Congress for the
construction of a border barrier. Although Congress provided
some funding for those purposes, it consistently refused to
pass any measures that met the President's desired
funding level, creating a standoff that led to a 35-day
partial government shutdown. The President signed the budget
legislation that ended the shutdown, but he then declared a
national emergency and pursued other means to get additional
funding for border barrier construction beyond what Congress
had appropriated. One of those means, and the one at issue in
this emergency request for a stay, was a reprogramming of
funds by DoD in response to a request by the Department of
Homeland Security ("DHS").
DoD relied on section 8005 of the Department of Defense
Appropriations Act of 2019 and related provisions to
reprogram approximately $2.5 billion, moving the funds from
DoD to DHS, for the purpose of building border barriers in
certain locations within Arizona, California, and New Mexico.
Section 8005 authorizes the Secretary of Defense to transfer
funds for military purposes if the Secretary determines that
the transfer is "for higher priority items, based on
unforeseen military requirements" and "the item for
which funds are requested has [not] been denied by the
Congress." Pub. L. No. 115-245, § 8005, 132 Stat.
2981, 2999 (2018) (hereinafter "section 8005").
Sierra Club and the Southern Border Communities Coalition
(collectively, "Plaintiffs") sued Defendants to
enjoin the reprogramming and the funds' expenditure. They
argued that the requirements of section 8005 had not been
satisfied and that the use of the funds to build a border
barrier was accordingly unsupported by any congressional
appropriation and thus unconstitutional. A federal district
court agreed with Plaintiffs and enjoined Defendants from
using reprogrammed funds to construct a border barrier.
Defendants now move for an emergency stay of the district
on Defendants' motion, we consider several factors,
including whether Defendants have shown that they are likely
to succeed on the merits of their appeal, the degree of
hardship to each side that would result from a stay or its
denial, and the public interest in granting or denying a
conclude, first, that Defendants are not likely to succeed on
the merits of their appeal. The Appropriations Clause of the
Constitution provides that "No Money shall be drawn from
the Treasury, but in Consequence of Appropriations made by
Law." U.S. Const. art I., § 9, cl. 7. Defendants
assert that, through section 8005, Congress authorized DoD to
reprogram the funds at issue. We agree with Plaintiffs,
however, that the requirements of section 8005 have not been
met. Specifically, the need for which the funds were
reprogrammed was not "unforeseen," and it was an
item for which funds were previously "denied by the
Congress." Defendants do not argue that their contrary
interpretation of section 8005 is entitled to any form of
administrative deference, and we hold that no such deference
would be appropriate in any event.
section 8005 did not authorize DoD to reprogram the funds-and
Defendants do not and cannot argue that any other statutory
or constitutional provision authorized the reprogramming-the
use of those funds violates the constitutional requirement
that the Executive Branch not spend money absent an
appropriation from Congress.
contend that these Plaintiffs are unlikely to prevail because
they lack a cause of action through which to challenge the
reprogramming. We disagree. Plaintiffs either have an
equitable cause of action to enjoin a constitutional
violation, or they can proceed on their constitutional claims
under the Administrative Procedure Act, or both. To the
extent any zone of interests test were to apply to
Plaintiffs' constitutional claims, we hold that it would
be satisfied here.
the remaining factors relevant to Defendants' request for
a stay-the degree of hardship that may result from a stay or
its denial, and the public interest at stake-we are not
persuaded that a stay should be entered. There is a strong
likelihood that Plaintiffs will prevail in this litigation,
and Defendants have a correspondingly low likelihood of
success on appeal. As for the public interest, we conclude
that it is best served by respecting the Constitution's
assignment of the power of the purse to Congress, and by
deferring to Congress's understanding of the public
interest as reflected in its repeated denial of more funding
for border barrier construction. We therefore hold that a
stay of the district court's order granting Plaintiffs an
injunction is not warranted.
Factual & Procedural Background
Trump has made numerous requests to Congress for funding for
construction of a barrier on the U.S.-Mexico border. In his
proposed budget for Fiscal Year 2018, for example, the
President requested $2.6 billion for border security,
including "funding to plan, design, and construct a
physical wall along the southern border." Office of
Mgmt. & Budget, Exec. Office of the President, Budget
of the United States Government, Fiscal Year 2018, at 18
(2017). Congress partially obliged, allocating in the 2018
Consolidated Appropriations Act $1.571 billion for border
fencing, "border barrier planning and design," and
the "acquisition and deployment of border security
technology." Consolidated Appropriations Act, 2018, Pub.
L. No. 115-141, div. F, tit. II, § 230(a), 132 Stat.
348, 616 (2018). Throughout 2018, House and Senate lawmakers
introduced numerous bills that would have authorized or
appropriated additional billions for border barrier
construction. Specifically, Congress considered and rejected
the Securing America's Future Act of 2018, H.R. 4760,
115th Cong. § 1111 (2018) (instructing the Secretary of
Homeland Security to take necessary actions to build a
physical barrier on the southern border); the Border Security
and Immigration Reform Act of 2018, H.R. 6136, 115th Cong.
§ 5101 (2018) (appropriating $16.625 billion for a
border wall); the American Border Act, H.R. 6415, 115th Cong.
§ 4101 (2018) (same); the Fund and Complete the Border
Wall Act, H.R. 6657, 115th Cong. § 2 (2018) (creating a
"Secure the Southern Border Fund" for
appropriations for border barrier construction); the Build
the Wall, Enforce the Law Act of 2018, H.R. 7059, 115th Cong.
§ 9 (2018) (again, appropriating $16.625 billion for a
"border wall system"); the 50 Votes for the Wall
Act, H.R. 7073, 115th Cong. § 2 (2018) (establishing a
"Border Wall and Security Trust Fund" of up to $25
billion to "construct a wall (including physical
barriers and associated detection technology, roads, and
lighting)" along the U.S.-Mexico border); and the WALL
Act of 2018, S. 3713, 115th Cong. § 2 (2018)
(appropriating $25 billion for the construction of a border
wall). Lawmakers spent countless hours considering these
various proposals, but none ultimately passed.
situation reached an impasse in December 2018. During
negotiations with Congress over an appropriations bill to
fund various parts of the federal government for the
remainder of the fiscal year, the President announced his
unequivocal position that "any measure that funds the
government must include border security." C-SPAN,
Farm Bill Signing (Dec. 20, 2018),
He declared that he would not sign any funding bill that did
not allocate substantial funding for a physical barrier on
the U.S.-Mexico border. Erica Werner et al., Trump Says
He Won't Sign Senate Deal to Avert Shutdown, Demands
Funds for Border Security, Wash. Post (Dec. 21, 2018),
("Werner et al."). The President also stated that
he was willing to declare a national emergency and use other
mechanisms to get the money he desired if Congress refused to
allocate it. Remarks by President Trump in Meeting with
Senate Minority Leader Chuck Schumer and House
Speaker-Designate Nancy Pelosi, The White House (Dec.
11, 2018, 11:40 A.M.),
On December 20, 2018, the House of Representatives passed a
continuing resolution that allocated $5.7 billion in border
barrier funding. H.R. 695, 115th Cong. § 141 (2018)
("[T]here is appropriated for 'U.S. Customs and
Border Protection-Procurement, Construction, and
Improvements' $5, 710, 357, 000 for fiscal year
2019."). But the Senate rejected the bill. The President
could not reach an agreement with lawmakers on whether the
spending bill would include border barrier funding,
triggering what would become the nation's longest partial
government shutdown. Werner et al., supra; Mihir
Zaveri et al., The Government Shutdown Was the Longest
Ever. Here's the History., N.Y. Times (Jan. 25,
January 6, 2019, during the shutdown, the President
"request[ed] $5.7 billion for construction of a steel
barrier for the Southwest border" in a letter to the
Senate Committee on Appropriations, explaining that the
request "would fund construction of a total of
approximately 234 miles of new physical barrier,"
including in the top ten priority areas in the Border
Security Improvement Plan created by Customs and Border
Protection ("CBP"). Letter from Russell T. Vought,
Acting Dir. of the Office of Mgmt. and Budget, to Richard
Shelby, Chairman of the Senate Comm. on Appropriations (Jan.
6, 2019). This represented a $4.1 billion increase over the
President's February 2018 request for $1.6 billion for
the Fiscal Year 2019 budget, which had been for the
construction of "65 miles of border wall in south
Texas." Office of Mgmt. & Budget, Exec. Office of
the President, Budget of the U.S. Government, Fiscal Year
2019, 58 (2018).
35 days, the government shutdown ended without an agreement
providing increased border barrier funding. Remarks Delivered
by President Trump on the Government Shutdown (Jan. 25,
Congress passed and the President signed a stopgap spending
measure to reopen for three weeks the parts of the Government
that had been shut down. H.R.J. Res. 28, 116th Cong. (2019).
But the President made clear that he still intended to build
a border barrier, with or without funding from Congress. As
the Acting White House Chief of Staff explained, the
President was prepared to both reprogram money and declare a
national emergency to obtain a total sum "well north of
$5.7 billion." Gregg Re, Border Wall Talks Break
Down Ahead of Second Possible Government Shutdown, Fox
News (Feb. 10, 2019), https://fxn.ws/2SmNK0I.
passed the Consolidated Appropriations Act of 2019
("CAA") on February 14, 2019, which included the
Department of Homeland Security Appropriations Act for Fiscal
Year 2019. Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019).
The CAA appropriated only $1.375 billion of the $5.7 billion
the President had sought in border barrier funding and
specified that the $1.375 billion was "for the
construction of primary pedestrian fencing . . . in the Rio
Grande Valley Sector." Id. § 230(a)(1),
133 Stat. at 28. Congress also imposed several limitations on
the use of those funds, including by not allowing
construction within certain wildlife refuges and parks.
Id. § 231, 133 Stat. at 28.
President signed the CAA into law the following day.
Statement by the President, The White House (Feb.
He concurrently issued a proclamation under the National
Emergencies Act, 50 U.S.C. §§ 1601-1651,
"declar[ing] that a national emergency exists at the
southern border of the United States." Proclamation No.
9844, 84 Fed. Reg. 4949 (Feb. 15, 2019) ("Proclamation
No. 9844 described "a border security and humanitarian
crisis that threatens core national security interests"
because the border served as a major entry point for
criminals, gang members, and illicit narcotics and the number
of family units entering the United States had recently
increased. Id. It declared that this "emergency
situation" necessitated support from the Armed Forces.
Id. The proclamation made available to DoD "the
construction authority provided in" 10 U.S.C. §
2808, which is limited to presidential declarations
"that require use of the armed forces,"
id. § 2808(a).
accompanying White House Fact Sheet explained that the
President was "using his legal authority to take
Executive action to secure additional resources" to
build a border barrier. President Donald J. Trump's
Border Security Victory, The White House (Feb. 15,
It continued: "Including funding in Homeland Security
appropriations, the Administration has so far identified up
to $8.1 billion that will be available to build the border
wall once a national emergency is declared and additional
funds have been reprogrammed." Id. The fact
sheet specifically identified three funding sources: (1)
"[a]bout $601 million from the Treasury Forfeiture
Fund," 31 U.S.C. § 9705(a); (2) "[u]p to $2.5
billion under the Department of Defense [reprogrammed] funds
transferred [to DHS] for Support for Counterdrug
Activities" pursuant to 10 U.S.C. § 284
("section 284"); and (3) "[u]p to $3.6 billion
reallocated from [DoD] military construction projects under
the President's declaration of a national emergency"
pursuant to 10 U.S.C. § 2808 ("section 2808"),
which provides that the Secretary of Defense may authorize
military construction projects whenever the President
declares a national emergency that requires use of the armed
House and Senate adopted a joint resolution terminating the
President's declaration of a national emergency pursuant
to Congress's authority under 50 U.S.C. §
1622(a)(1). H.R.J. Res. 46, 116th Cong. (2019). The President
vetoed the joint resolution, Veto Message to the House of
Representatives for H.J. Res. 46, The White House (Mar.
and a vote in the House to override the veto fell short of
the required two-thirds majority, 165 Cong. Rec. H2799,
immediately, executive branch agencies began to use the funds
identified in Proclamation 9844 for border barrier
construction. The same day the President issued the
proclamation, the Department of the Treasury approved
DHS's December 2018 request to use treasury forfeiture
funds to enhance border security infrastructure, providing up
to $601 million in funding. Letter from David F. Eisner,
Assistant Sec'y for Mgmt., U.S. Dep't of the
Treasury, to the House and Senate Appropriations Comms.'
Subcomms. on Fin. Servs. & Gen. Gov't (Feb. 15,
2019). Then, on February 25, DHS submitted a request to DoD
for assistance, pursuant to section 284, with construction of
fences, roads, and lighting within eleven drug-smuggling
corridors identified by DHS along the border. Memorandum re:
Request for Assistance Pursuant to 10 U.S.C. § 284 from
Christina Bobb, Exec. Sec'y, DHS, to Capt. Hallock N.
Mohler, Jr., Exec. Sec'y, DoD, (Feb. 25, 2019). In
response to that request, on March 25, the Acting Secretary
of Defense, Patrick Shanahan, approved the transfer of up to
$1 billion in funds from DoD to DHS for the three highest
priority drug-smuggling corridors: the Yuma Sector Project 1
and Yuma Sector Project 2 in Arizona, and the El Paso Sector
Project 1 in New Mexico. Letter from Patrick M. Shanahan, Acting
Sec'y of Def., DoD, to Kirstjen Nielsen, Sec'y of
Homeland Sec., DHS (Mar. 25, 2019).
the approved projects, Shanahan invoked section 8005 of the
Department of Defense Appropriations Act of 2019 and section
1001 of the John S. McCain National Defense Authorization Act
("NDAA") for Fiscal Year 2019 to
"reprogram" approximately $1 billion from Army
personnel funds to the counter-narcotics support budget,
which Shanahan asserted then made those funds available for
transfer to DHS pursuant to section 284. Section 8005
authorizes the Secretary of Defense to transfer up to $4
billion "of working capital funds of the Department of
Defense or funds made available in this Act to the Department
of Defense for military functions (except military
construction)." The Secretary must first determine that
"such action is necessary in the national interest"
and obtain approval from the White House Office of Management
and Budget. Section 8005 further provides that the authority
to transfer may only be used "for higher priority items,
based on unforeseen military requirements, than those for
which originally appropriated and in no case where the item
for which funds are requested has been denied by the
Congress." It also imposes a "prompt"
congressional notification requirement for all transfers made
under its authority. Reprogramming of funds under section
8005 does not require the declaration of a national
from Shanahan asserted that the statutory requirements for
reprogramming under section 8005 had been met: that the items
to be funded were a higher priority than the Army personnel
funds; that the need to provide support for the Yuma and El
Paso Projects was "an unforeseen military requirement
not known at the time of the FY 2019 budget request";
and that support for construction of the border barrier in
these areas "ha[d] not been denied by Congress."
Memorandum re: Funding Construction in Support of the
Department of Homeland Security Pursuant to 10 U.S.C. §
284 from Patrick M. Shanahan, Acting Sec'y of Def., DoD,
to Under Sec'y of Def. (Comptroller)/Chief Fin. Officer
(Mar. 25, 2019). Specifically, DoD concluded that "Army
personnel funds were available for transfer because
expenditures for service member pay and compensation,
retirements benefits, food, and moving expenses through the
end of fiscal year 2019 [would] be lower than originally
budgeted." As required by section 8005, Shanahan also
formally notified Congress of the reprogramming
authorization, explaining that the reprogrammed funds were
"required" so that DoD could provide DHS the
support it requested under section 284.
next day, both the House Committee on Armed Services and the
House Committee on Appropriations formally disapproved of
DoD's section 8005 reprogramming. The Armed Services
Committee wrote in a letter to DoD that it "denie[d]
this [reprogramming] request," and that the committee
"[did] not approve the proposed use of Department of
Defense funds to construct additional physical barriers and
roads or install lighting in the vicinity of the United
States border." Letter from Adam Smith, Chairman of the
U.S. House of Representatives Comm. on Armed Servs., to David
L. Norquist, Under Sec'y of Def., Comptroller, and Chief
Fin. Officer (Mar. 26, 2019). The Appropriations committee
similarly denied the reprogramming request. Letter from Peter
J. Visclosky, Chairman of the Def. Subcomm. of the U.S. House
of Representatives Comm. on Appropriations (Mar. 26, 2019).
at DoD and DHS pressed forward with reprogramming-enabled
border barrier construction plans. In early April, DoD
awarded contracts for work in the Yuma and El Paso Project
areas, and the agencies began environmental planning and
consultation. Contracts for Apr. 9, 2019, U.S.
Dep't of Def. (Apr. 9, 2019),
Shanahan reported on May 8 that DoD and DHS had secured
funding for DHS to build about 256 miles of border barrier
using both treasury forfeiture funds and reprogrammed monies.
Acting Defense Secretary Shanahan Testimony on Fiscal
Year 2020 Budget Request (C-SPAN May 8, 2019),
DoD also reported selecting twelve companies to compete for
up to $5 billion worth of border barrier construction
contracts. Contracts for May 8, 2019, U.S. Dep't
of Def. (May 8, 2019),
On May 9, Shanahan invoked section 8005 and section 1001 of
the NDAA again-along with related reprogramming provisions,
section 9002 of the Department of Defense Appropriations Act
of 2019 and section 1512 of the NDAA-to authorize an additional
$1.5 billion in reprogramming to fund four more projects.
Memorandum re: Additional Support to the Dep't of
Homeland Security from Patrick M. Shanahan, Acting Sec'y
of Def., DoD (May 9, 2019). The new projects, El Centro
Project 1 and Tucson Sector Projects 1, 2, and 3, are located
in California and Arizona. Around the same time, the
President indicated that he expected to approve additional
projects using funds authorized by the national emergency
declaration pursuant to section 2808, although no concrete
action has been taken in that regard. See White
House Memorandum on Sequencing of Border Barrier Construction
Authorities (Mar. 4, 2019).
February 19, 2019, the Sierra Club and Southern Border
Communities Coalition filed a lawsuit against Donald J.
Trump, in his official capacity as President of the United
States; Patrick M. Shanahan, in his official capacity as
Acting Secretary of Defense; Kirstjen M. Nielsen, in her
official capacity as Secretary of Homeland Security; and
Steven Mnuchin, in his official capacity as Secretary of the
Treasury (collectively, "Defendants," see
supra n.1). This lawsuit followed closely on the heels
of a related action brought by a coalition of states against
the same group of Defendants and others.
are two nonprofit organizations who sued on behalf of
themselves and their members. The Sierra Club is dedicated to
enjoyment of the outdoors and environmental protection, and
it engages in advocacy and public education on issues such as
habitat destruction, land use, and the human and
environmental impact of construction projects, including the
proposed construction of the border barrier. SBCC is a
program of Alliance San Diego that brings together
organizations from California, Arizona, New Mexico, and Texas
to promote policies aimed at improving the quality of life in
border communities, including border enforcement and
immigration reform policies.
operative Complaint alleges that Defendants exceeded the
scope of their constitutional and statutory authority by
spending money in excess of what Congress allocated for
border security; that Defendants' actions violated
separation of powers principles as well as the Appropriations
Clause and Presentment Clause of the Constitution; and that
Defendants failed to comply with the National Environmental
Policy Act ("NEPA"), 42 U.S.C. § 4321 et
seq. Plaintiffs also allege that Defendants are acting
ultra vires (without authority) in seeking to divert
funding without statutory authority to do so.
allege that Defendants' use of the reprogrammed funds
would injure their members because the noise of construction,
additional personnel, visual blight, and negative ecological
effects that would accompany a border barrier and its
construction would detract from their ability to hike, fish,
enjoy the desert landscapes, and observe and study a diverse
range of wildlife in areas near the U.S.-Mexico border.
Plaintiffs also allege that they participated in the
legislative process by "devot[ing] substantial staff and
other resources towards legislative advocacy leading up to
the appropriations bill passed by Congress in February 2019,
specifically directed towards securing Congress's denial
of substantial funding to the border wall." The
Complaint requests declaratory and permanent injunctive
relief to prevent construction of the border barrier using
the funding at issue in the lawsuit.
April 4, Plaintiffs filed a motion for a preliminary
injunction, asking the district court to enter a
"preliminary injunction prohibiting Defendants and all
persons associated with them from taking action to build a
border wall using funds or resources from the Defense
Department; and specifically enjoining construction of the
wall segments in the . . . 'Yuma Sector Projects 1 and 2
and El Paso Sector Project 1 [areas].'" In
particular, Plaintiffs moved to enjoin Defendants from using
DoD's reprogramming authority in section 8005 to transfer
funds from Army personnel into the counterdrug appropriations
line, from subsequently using section 284 to divert those
funds from DoD's counterdrug appropriations line to be
used by DHS for border barrier construction, from invoking
section 2808 to divert funds appropriated to military
construction projects, and from taking any further action
before complying with NEPA's procedural requirements.
Plaintiffs argued that a preliminary injunction was necessary
because Defendants had already diverted funds, and that
Plaintiffs would be irreparably harmed if Defendants
proceeded with their threatened construction during the
pendency of the district court proceedings. After receiving
briefing from both sides, the district court held a
multiple-hour hearing on May 17, 2019.
24, the district court issued an order granting the motion in
part and denying it in part. Sierra Club v. Trump,
No. 4:19-cv-00892-HSG, 2019 WL 2247689 (N.D. Cal. May 24,
2019). After concluding that Plaintiffs had standing to bring
their challenge, the district court held that Plaintiffs were
entitled to a preliminary injunction with respect to the
section 8005 reprogramming authority because they would
likely succeed in arguing that Defendants acted ultra
vires, they had demonstrated that they would be
irreparably harmed, and the balance of equities weighed in
their favor. Id. at *13-23, *27-28, *29. The court
declined to rule on Plaintiffs' likelihood of success on
their section 2808 arguments, however, because Defendants had
not yet disclosed a plan for diverting funds under that
authority. Id. at *25, *28-29. Finally, the court
concluded that Plaintiffs were unlikely to succeed on their
NEPA argument. Id. at *26. It accordingly granted
the following preliminary injunction:
Defendants Patrick M. Shanahan, in his official capacity as
Acting Secretary of Defense, Kevin K. McAleenan, in his
official capacity as Acting Secretary of Homeland Security,
Steven T. Mnuchin, in his official capacity as Secretary of
the Department of the Treasury, and all persons acting under
their direction, are enjoined from taking any action to
construct a border barrier in the areas Defendants have
identified as Yuma Sector Project 1 and El Paso Sector
Project 1 using funds reprogrammed by DoD under Section 8005
of the Department of Defense Appropriations Act, 2019.
Id. at 30.
filed a motion in the district court to stay the preliminary
injunction pending appeal. The district court denied that
motion, concluding that Defendants were unlikely to prevail
on the merits and that the "request to proceed
immediately with the enjoined construction would not preserve
the status quo" but rather would "effectively moot
[Plaintiffs'] claims." Sierra Club v.
Trump, No. 4:19-cv-00892-HSG, 2019 WL 2305341, at *1
(N.D. Cal. May 30, 2019).
3, 2019, Defendants filed an emergency motion with this court
requesting a stay pending appeal. Defendants implored our
court to act as quickly as possible because they were
incurring daily fees and penalties from contractors due to
the suspension of construction and because, if the injunction
remained in place, Defendants would need to begin the process
of reprogramming the funds again by the end of June or else
face the risk of being deprived of the use of those funds
briefing on the stay motion was completed on June 14, and we
heard oral argument on June 20. On June 24, we requested
supplemental briefing from the parties on issues that arose
during oral argument but that had not been briefed. That
briefing was completed on June 28.
proceedings continued in the district court. On May 29,
Plaintiffs filed a motion for a supplemental preliminary
injunction to block the additional planned construction in
California and Arizona using funds reprogrammed under
sections 8005 and 9002 of the Department of Defense
Appropriations Act of 2019, as well as section 1512 of the
2019 NDAA. Plaintiffs acknowledged that the motion
"present[ed] virtually identical legal questions
regarding whether the proposed plan for funding border
barrier construction exceeds the Executive Branch's
lawful authority" to the ones that the court had decided
in its May 24 order granting in part Plaintiffs' motion
for a preliminary injunction. On June 12, 2019, Plaintiffs
moved for partial summary judgment, seeking a permanent
injunction based on the same arguments made in their initial
and supplemental motions for a preliminary injunction.
Defendants cross-moved for summary judgment, resting on the
same arguments they had made against the preliminary
injunction. Briefing on those motions was completed on June
28, the district court issued an order granting in part and
denying in part Plaintiffs' motion for partial summary
judgment, and denying Defendants' cross-motion for
partial summary judgment. Sierra Club v. Trump, No.
4:19-cv-00892-HSG, 2019 WL 2715422 (N.D. Cal. June 28, 2019).
In that order, the court issued a permanent injunction
prohibiting Defendants from using reprogrammed funds to
construct a border barrier in the El Paso and Yuma Sectors
(the subject of the initial preliminary injunction) as well
as the more recently-announced El Centro and Tucson Sector
areas (the subject of the motion for a supplemental
preliminary injunction). Id. at *6. The district
court concluded that Plaintiffs' legal challenge was
meritorious, that Plaintiffs had shown that they would suffer
irreparable harm absent a permanent injunction, and that the
balance of hardships and the public interest supported a
permanent injunction. Id. at *4-5. The court heeded
Defendants' request to certify the judgment for immediate
appeal, see Fed. R. Civ. P. 54(b), and it denied
Defendants' request to stay the injunction pending
appeal. Id. at *5-6.
filed an immediate notice of appeal from that decision. At
Defendants' request, we consolidated their new appeal
with the pending appeal of the preliminary injunction.
Defendants now seek a stay of the permanent injunction
pending appeal, resting on the same arguments they made about
the preliminary injunction because the underlying legal
questions are identical.
Issues Not Before the Court
turning to the merits, we highlight what is not at issue in
this appeal. First, Defendants at oral argument acknowledged
that they are "not challenging [Article III] standing
for purposes of the stay motion." Thus, Defendants do
not dispute that Plaintiffs have suffered an "actual or
imminent," "concrete and particularized,"
"injury in fact" that is "fairly
traceable" to Defendants' actions and that will
"likely" be "redressed by a favorable
decision." Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992) (quotation marks and alterations omitted);
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).
We have satisfied ourselves that Defendants' assessment
is correct. See Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)
(discussing a court's sua sponte obligation to
assure itself that it has jurisdiction before proceeding to
the merits). Plaintiffs have alleged enough to satisfy the
requirements for standing under Article III at this stage of
the litigation. Id. at 181-83 (holding that the
plaintiffs' injuries from environmental harm were
sufficient for standing).
although Defendants may have access to other funding sources
to build a border barrier, the only source at issue in this
stay motion is section 8005 reprogramming. The district
court's preliminary injunction order discussed various
other potential sources, including the Treasury Forfeiture
Fund and money reallocated after a national emergency
declaration for "military construction projects"
under section 2808. Sierra Club v. Trump, No.
4:19-cv-00892-HSG, 2019 WL 2247689, at *11 (N.D. Cal. May 24,
2019). The injunction, however, only concerns section 8005
reprogramming for border barrier construction in Yuma Sector
Project 1, El Paso Sector 1, El Centro Sector 1, and Tucson
Sectors 1-3. We have not been asked to expand the scope of
the injunction, and the parties have not addressed in this
stay motion any non-section 8005 funding sources.
Accordingly, our decision does not address any sources of
funds Defendants might use to build a border barrier except
those reprogrammed under section 8005.
as the district court observed in the preliminary injunction
The case is not about whether the challenged border barrier
construction plan is wise or unwise. It is not about whether
the plan is the right or wrong policy response to existing
conditions at the southern border of the United States. These
policy questions are the subject of extensive, and often
intense, differences of opinion, and this Court cannot and
does not express any view as to them.
Sierra Club, 2019 WL 2247689, at *1. Our
consideration is limited to legal questions regarding the
authority of the Executive Branch under the Constitution and
under statutes enacted into law by Congress.
have not argued that jurisdiction over this action is
lacking. Nor have they asserted that Plaintiffs'
challenge to the section 8005 reprogramming presents a
nonjusticiable "political question." They have
contended, however, that "[t]he real
separation-of-powers concern is the district court's
intrusion into the budgeting process," which "is
between the Legislative and Executive Branches- not the
judiciary." We consider, therefore, whether it is
appropriate for the courts to entertain Plaintiffs'
action in the first place. We conclude that it is.
and "controversies" that contain "a textually
demonstrable constitutional commitment of the issue to a
coordinate political department," Baker v.
Carr, 369 U.S. 186, 217 (1962), or "revolve around
policy choices and value determinations constitutionally
committed for resolution to the halls of Congress or the
confines of the Executive Branch," Japan Whaling
Ass'n v. Am. Cetacean Soc., 478 U.S. 221, 230
(1986), present a "narrow exception" to our
responsibility to decide cases properly before us,
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S.
189, 195 (2012).
does the Constitution grant Congress the exclusive ability to
determine whether the Executive Branch has violated the
Appropriations Clause. See Office of Pers. Mgmt. v.
Richmond, 496 U.S. 414, 425 (1990). Nor does the
Constitution leave the Executive Branch to police itself.
Rather, the judiciary "appropriately exercises" its
constitutional function "where the question is whether
Congress or the Executive is 'aggrandizing its power at
the expense of another branch.'"
Zivotofsky, 566 U.S. at 197 (quoting Freytag v.
Comm'r, 501 U.S. 868, 878 (1991)).
current action does not ask us to decide whether the projects
for which Defendants seek to reprogram funds are worthy or
whether, as a policy judgment, funds should be spent on them.
Instead, we are asked whether the reprogramming of funds is
consistent with the Appropriations Clause and section 8005.
That "is a familiar judicial exercise."
Id. at 196.
Justice Marshall's answer to "whether the legality
of an act of the head of a department be examinable in a
court of justice" or "only politically
examinable" remains the same: "[W]here a specific
duty is assigned by law, and individual rights depend upon
the performance of that duty, . . . the individual who
considers himself injured, has a right to resort to the laws
of his country for a remedy." Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 165-66 (1803). Pursuant
to its exclusive power of appropriation, Congress imposed on
the Executive Branch a duty-contained in section 8005-not to
transfer funds unless certain circumstances were present. As
discussed above, see supra Section II, Defendants
have not disputed that Plaintiffs have sufficiently alleged
injuries that satisfy Article III's standing requirement
to enable them to pursue this action. Although "our
decision may have significant political overtones,"
Japan Whaling Ass'n, 478 U.S. at 230,
"courts cannot avoid their responsibility merely
'because the issues have political implications,
'" Zivotofsky, 566 U.S. at 196 (quoting
INS v. Chadha, 462 U.S. 919, 943 (1983)). In sum, it
is appropriate for this action to proceed in federal court.
decide whether to issue a stay by considering four factors,
reiterated by the Supreme Court in Nken v. Holder,
556 U.S. 418 (2009):
(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.
Id. at 434 (quoting Hilton v. Braunskill,
481 U.S. 770, 776 (1987)). The first two factors "are
the most critical," and we only reach the last two
"[o]nce an applicant satisfies the first two
factors." Id. at 434-35.
requirement that an applicant for a stay make a "strong
showing" may be explained at least in part by the fact
that "[a] stay is not a matter of right, even if
irreparable injury might otherwise result." Id.
at 433 (quoting Virginian Ry. Co. v. United States,
272 U.S. 658, 672 (1926)). Indeed, "[a] stay is an
intrusion into the ordinary processes of administration and
judicial review." Id. at 427 (quotation marks
omitted). Issuing a stay is therefore "an exercise of
judicial discretion" not to be issued
"reflexively," but rather based on the
circumstances of the particular case. Id. at 427,
433. "The party requesting a stay bears the burden of
showing that the circumstances justify an exercise of that
discretion." Id. at 433-34. Here, Defendants
carry those burdens because it is Defendants who have sought
being said, the unusual circumstances of this case complicate
our typically restrained approach to assessing the merits in
this procedural posture. When deciding whether to issue a
stay, we usually speak about the merits in probabilistic
"likelihood" terms, in part because we recognize
that the "ordinary processes of administration and
judicial review" best ensure "careful review and a
meaningful decision." Id. at 427 (quotation
marks omitted). Particularly given a recent increase in
emergency petitions asking for injunctive relief or stays of
injunctive relief, we think it is especially important for
courts to strive to follow the traditional process of
judicial review. Otherwise, we are forced to decide
"justice on the fly." Id.
however, both sides contend that we must evaluate the merits
of this case now to preserve their interests-both agree that
there is no time for the "ordinary" course of
appellate review. As Defendants represented in their
briefing and again at oral argument, if the injunction
remains in place, DoD's authority to spend the remaining
challenged funds on border barrier construction, or to
redirect them for other purposes, will lapse. At the same
time, as the district court noted, allowing Defendants to
move forward with spending the funds will allow construction
to begin, causing immediate, and likely irreparable, harm to
Plaintiffs. Sierra Club v. Trump, No.
4:19-cv-00892-HSG, 2019 WL 2247689, at *27-28 (N.D. Cal. May
24, 2019). In either scenario, many of the issues in this
case may become moot or largely moot before fuller litigation
of the appeal can be completed. Accordingly, we proceed to
evaluate the merits more fully than we otherwise might in
response to a stay request.
Likelihood of Success on the Merits
their operative Complaint, Plaintiffs framed their claim in
various ways. Plaintiffs asserted constitutional claims based
on violations of separation of powers principles, the
Appropriations Clause, and the Presentment Clause; a claim
that Defendants acted ultra vires; and a statutory
claim under the Consolidated Appropriations Act of
2019. Because we conclude that Plaintiffs'
claim is, at its core, one alleging a constitutional
violation, we focus on that issue. More than one legal
doctrine offers Plaintiffs a cause of action to raise that
claim, and Plaintiffs' success under each depends on
whether Defendants' actions indeed violate the
Plaintiffs' Constitutional Claim
Constitution's Appropriations Clause provides that
"No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law." U.S. Const.
art. I, § 9, cl. 7. In addition to safeguarding
"the public treasure, the common fund of all," and
providing "a most useful and salutary check upon . . .
corrupt influence and public peculation," it ensures
that the "the executive [does not] possess an unbounded
power over the public purse of the nation." 3 Joseph
Story, Commentaries on the Constitution of the United
States § 1342 (Boston, Hilliard, Gray & Co. ed.
approach to the power of the purse comported with the
Founders' "declared purpose of separating and
dividing the powers of government," namely "to
'diffus[e] power the better to secure liberty.'"
Bowsher v. Synar, 478 U.S. 714, 721 (1986)
(alteration in original) (quoting Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson,
J., concurring)); see also INS v. Chadha, 462 U.S.
919, 949-50 (1983) (collecting sources and explaining the
Founders' belief in "the need to divide and disperse
power in order to protect liberty"). In response to
critiques that his proposed Constitution would dangerously
concentrate power in a single central government, James
Madison argued that the risk of abuse of such power was low
because "the sword and purse are not to be given to the
same member" of the government. 3 Debates in the
Several State Conventions on the Adoption of the Federal
Constitution 393 (Jonathan Elliot ed., 2d ed. 1836).
Instead, Madison explained that "[t]he purse is in the
hands of the representatives of the people," who
"have the appropriation of all moneys."
principal legal theory is that Defendants seek to spend funds
for a different purpose than that for which Congress
appropriated them, thereby violating the Appropriations
Clause. Defendants' defense to this claim is
that, through section 8005, Congress allowed Defendants to
make this reallocation. If Defendants were correct that
section 8005 allowed this spending reallocation,
Plaintiffs' claim would fail, because the spending would
be consistent with Congress's appropriation legislation.
If section 8005 does not authorize the reallocation, however,
then Defendants are acting outside of any statutory
appropriation and are therefore spending funds contrary to
Congress's appropriations decisions. We believe
Plaintiffs are correct that there is no statutory
appropriation for the expenditures that are the subject of
the injunction. Reprogramming and spending those funds
therefore violates the Appropriations Clause.
Section 8005's Meaning
argue that they are likely to prevail on appeal because
Congress has authorized DoD to reprogram funds, the planned
use of funds is consistent with that reprogramming
authorization, and this spending is therefore authorized by
an appropriation from Congress as the Appropriations Clause
requires. We disagree. DoD's proposed expenditures are
not authorized by the applicable reprogramming statute. They
therefore are not "in Consequence of Appropriations made
by Law." U.S. Const. art. I, § 9, cl. 7.
bottom, this constitutional issue turns on a question of
statutory interpretation. Section 8005 of the Department of
Defense Appropriations Act of 2019 provides that the
Secretary of Defense may reprogram funds for certain military
functions other than those for which they were initially
appropriated, but it limits the Secretary's ability to do
so to a narrow set of circumstances. Pub. L. No. 115-245,
§ 8005, 132 Stat. 2981, 2999 (2018). Transferred
funds must address "higher priority items, based on
unforeseen military requirements, than those for which
originally appropriated." Id. And "in no
case" may the Secretary use the funds "where the
item for which reprogramming is requested has been denied by
the Congress." Id. We conclude, as Plaintiffs
argue, that those requirements are not satisfied.
argue that the President's repeated and unsuccessful
requests for more border barrier funding make the request
here obviously not unforeseen. Defendants assert in response,
without citation, that "[a]n expenditure is
'unforeseen' . . . if DoD was not aware of the
specific need when it made its budgeting requests."
Defendants contend that DoD could not have foreseen the
"need to provide support" to DHS for border barrier
construction in the relevant sectors when it made its budget
requests for 2019, before DHS's own budget was even
mistakenly focus on the assertion that DoD "could not
have anticipated that DHS would request specific support for
roads, fences, and lighting." Even assuming that is
true, the fact remains that DHS came to DoD for funds because
Congress refused to grant DHS itself those funds. And when
properly viewed as applying to the broader
"requirement" of a border wall, not to DHS's
specific need to turn to an entity other than Congress for
funds, it is not credible that DoD did not foresee this
requirement. The long history of the President's efforts
to build a border barrier and of Congress's refusing to
appropriate the funds he requested makes it implausible that
this need was unforeseen.
"Denied by the Congress"
there could be doubt about how to interpret
"unforeseen," it is clear that Congress denied this
request. Because each of section 8005's conditions must
be satisfied for DoD's reprogramming and spending to be
constitutionally permissible, this conclusion alone
undermines Defendants' likelihood of success on the
merits on appeal.
urge that "an 'item for which funds are
requested'" refers to "a particular
budget item" for section 8005 purposes, so
"Congress's decisions with respect to DHS's more
general request for border-wall funding [are]
irrelevant." But this interpretation, which would
require that a specific funding request be explicitly
rejected by Congress, is not compatible with the plain text
of section 8005. First, the statute refers to "item[s] .
. . denied by the Congress," not to funding
requests denied by the Congress, suggesting that the
inquiry centers on what DoD wishes to spend the funds on, not
on the form in which Congress considered whether to permit
such spending. Second, Defendants give the term
"denied" a meaning other than its "ordinary,
contemporary, and common" one. United States v.
Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998). In common
usage, a general denial of something requested can, and in
this case does, encompass more specific or narrower forms of
that request. To illustrate, if someone offered a new job
asks her potential future employer for a larger compensation
package than was included in the job offer and the request is
denied, she has been denied a five percent higher salary even
if her request did not specifically ask for that amount.
district court noted, Defendants' reading of section 8005
also would produce the perverse result that DoD could, by
declining to present Congress with a particular line item to
deny, reprogram funds for a purpose that Congress refused to
grant another agency elsewhere in the budgeting
process. In other words, it would simply invite
creative repackaging. But putting a gift in different
wrapping paper does not change the gift. Identifying the
request to Congress as having come previously from DHS
instead of from DoD does not change what funding was
requested for: a wall along the southern border.
section 8005 with an eye towards the ordinary and
common-sense meaning of "denied," real-world events
in the months and years leading up to the 2019 appropriations
bills leave no doubt that Congress considered and denied
appropriations for the border barrier construction projects
that DoD now seeks to finance using its section 8005
authority. Long before the emergency declaration and
DoD's reprogramming at issue here, the President made
plain his desire to construct a border barrier, requesting
$5.7 billion from Congress to do so. Throughout 2018,
Congress considered multiple bills that would have supported
construction of such a barrier; it passed none of them.
See supra Section I.
DoD never specifically requested from Congress the specific
sums at issue here for the specific purpose of counterdrug
funding at the southern border (and that Congress therefore
never had cause to deny that specific request) is of no
moment. The amount to be appropriated for a border barrier
occupied center stage of the budgeting process for months,
culminating in a prolonged government shutdown that both the
Legislative and Executive Branches clearly ...