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Sierra Club v. Trump

United States Court of Appeals, Ninth Circuit

July 3, 2019

DONALD J. TRUMP, in his official capacity as President of the United States; et al., Defendants-Appellants.

          D.C. No. 4:19-cv-00892-HSG Northern District of California, Oakland

          Before: CLIFTON, N.R. SMITH, and FRIEDLAND, Circuit Judges.



         This emergency proceeding arises from a challenge to a decision by the President and certain of his cabinet members (collectively, "Defendants")[1] 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.

         This 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").

         Specifically, 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").

         The 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 court's injunction.

         To rule 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 stay.

         We 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.

         Because 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.

         Defendants 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.

         Considering 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.

         I. Factual & Procedural Background

         President 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.

         The 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),'ss_tw&utm_term=.6e7c259f6857 ("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, 2019),

         On 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).

         After 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, 2019), 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),

         Congress 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.

         The President signed the CAA into law the following day. Statement by the President, The White House (Feb. 15, 2019), 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").

         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).

         An 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, 2019), 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");[2] 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 forces. Id.

         The 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. 15, 2019),, and a vote in the House to override the veto fell short of the required two-thirds majority, 165 Cong. Rec. H2799, H2814-15 (2019).

         Almost 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.[3] 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.[4] Letter from Patrick M. Shanahan, Acting Sec'y of Def., DoD, to Kirstjen Nielsen, Sec'y of Homeland Sec., DHS (Mar. 25, 2019).

         To fund 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."[5] 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 emergency.

         A memo 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.[6]

         The 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).

         Officials 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),

         Meanwhile, 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[7]-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).

         On 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).[8] 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.

         Plaintiffs 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.

         Plaintiffs' 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.

         Plaintiffs 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.

         On 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.

         On May 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.[9]

         Defendants 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).

         On June 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 entirely.[10]

         Initial 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.

         Meanwhile, 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 24.

         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).[11] 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.

         Defendants 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.

         II. Issues Not Before the Court

         Before 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).

         Second, 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.[12] 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.

         Third, as the district court observed in the preliminary injunction order,

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.

         III. Justiciability

         Defendants 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.

         "Cases" 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).

         Nowhere 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)).

         The 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.

         Chief 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.

         IV. Stay Standards

         We 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.

         The 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 a stay.

         That 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.

         Here, 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.[13] 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.[14]

         V. Likelihood of Success on the Merits

         In 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.[15] 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 Constitution.

         A. Plaintiffs' Constitutional Claim

         The 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. 1833).

         This 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." Id.

         Plaintiffs' 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.[16] 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.

         1. Section 8005's Meaning

         Defendants 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.

         At 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).[17] 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.

         i. "Unforeseen"

         Plaintiffs 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 finalized.

         Defendants 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.

         ii. "Denied by the Congress"

         Even if 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.

         Defendants 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.

         As the 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.[18] 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.

         Construing 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.

         That 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 ...

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