Case 1:19-cv-00969 Document 1 Filed 04/05/19 Page 1 of 45

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES HOUSE OF REPRESENTATIVES,
United States Capitol
Washington, D.C. 20515,
Plaintiff,
v.
STEVEN T. MNUCHIN,
in his official capacity as Secretary of the
United States Department of the Treasury,
1500 Pennsylvania Avenue N.W.
Washington, D.C. 20220,
UNITED STATES DEPARTMENT OF
THE TREASURY,
1500 Pennsylvania Avenue N.W.
Washington, D.C. 20220,
PATRICK M. SHANAHAN,
in his official capacity as Acting Secretary of the
United States Department of Defense,
1000 Defense Pentagon
Washington, D.C. 20301,
UNITED STATES DEPARTMENT OF DEFENSE,
1000 Defense Pentagon
Washington, D.C. 20301,
KIRSTJEN M. NIELSEN,
in her official capacity as Secretary of the
United States Department of Homeland Security,
245 Murray Lane S.W.
Washington, D.C. 20528,
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY,
245 Murray Lane S.W.
Washington, D.C. 20528,

Case No. 19-cv-969

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DAVID BERNHARDT,
in his official capacity as Acting Secretary of the
United States Department of the Interior,
1849 C Street N.W.
Washington, D.C. 20240,
UNITED STATES DEPARTMENT OF
THE INTERIOR,
1849 C Street N.W.
Washington, D.C. 20240,
Defendants.
COMPLAINT
INTRODUCTION
This case arises out of the unconstitutional actions taken by President Donald J. Trump’s
Administration to construct a wall along the southern border of the United States.

The

Administration sought – and Congress denied – $5 billion to construct a wall along the southern
border. Congress instead appropriated only $1.375 billion for barrier construction. Having lost
the political fight over funds to construct the wall, the Administration took the extraordinary step
of announcing that it would nevertheless spend up to $8.1 billion on wall construction. In doing
so, the Administration flouted fundamental separation-of-powers principles and usurped for itself
legislative power specifically vested by the Constitution in Congress. Even the monarchs of
England long ago lost the power to raise and spend money without the approval of Parliament.1
Notwithstanding the President’s policy preferences and the Administration’s recent actions
regarding the border wall, the Constitution forbids the expenditure of any public funds by any

1

See
The
Civil
War:
The
Long
Parliament,
U.K.
Parliament,
https://tinyurl.com/UKLongParliament (last visited Apr. 3, 2019) (discussing Parliament’s
condemnation of King Charles I’s “personal rule” from 1629-1640 and Parliament’s declaration
in the 1640s that nonparliamentary taxation would be illegal).
2

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branch of the Federal Government, including the Executive Branch, without enactment of a law
appropriating such funds. The Appropriations Clause of the Constitution unequivocally states:
“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by
Law.”2 Congress thus has the defining role over any expenditure of any public funds, which cannot
occur until identical appropriations bills are passed in the House of Representatives and the Senate,
followed by delivery to the President for his signature or veto.3
With respect to the border wall, the constitutionally mandated legislative process was
followed, resulting in $1.375 billion of appropriated funds for barrier construction.4 Dissatisfied
with its failure to secure the amount of border wall funding it sought, the Administration
unilaterally determined that it would spend federal funds as it chose – not as those funds had been
appropriated – instead of continuing to press its case through the proper political channels. The
Administration’s actions here demonstrate a shocking disregard for the Appropriations Clause,
which protects Congress’s “exclusive power over the federal purse,” and is both “a bulwark of the
Constitution’s separation of powers among the three branches of the National Government,” and
“particularly important as a restraint on Executive Branch officers.”5
Attempting to paper over its unconstitutional expenditure of funds not appropriated by
Congress, the Administration incorrectly asserts the authority to spend billions of dollars on a
border wall under three separate statutory provisions: (1) “[a]bout $601 million from the Treasury
Forfeiture Fund”; (2) “[u]p to $2.5 billion under the Department of Defense funds transferred for

2

U.S. Const. art. I, § 9, cl. 7.
See U.S. Const. art. I, § 7, cl. 2; see also U.S. Const. art. I, § 1 (“All legislative Powers
herein granted shall be vested in a Congress of the United States, which shall consist of a Senate
and a House of Representatives.”).
4
See Pub. L. No. 116-6, § 230(a)(1) (2019) (to be printed at 133 Stat. 13, 28).
5
U.S. Dep’t of the Navy v. FLRA, 665 F.3d 1339, 1346, 1347 (D.C. Cir. 2012) (quotation
marks omitted); see also Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424-25 (1990).
3

3

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Support for Counterdrug Activities,” 10 U.S.C. § 284; and (3) “[u]p to $3.6 billion reallocated
from Department of Defense military construction projects under the President’s declaration of a
national emergency,” 10 U.S.C. § 2808.6 As part of the Administration’s attempt to justify its
expenditures on the border wall, President Trump declared a national emergency along the
southern border. In declaring a national emergency, President Trump – at odds with the accepted
meaning of “emergency” – explained: “I could do the wall over a longer period of time. I didn’t
need to do this. But I’d rather do it much faster.”7 The House is unaware of any other instance in
American history where a President has declared a national emergency to obtain funding after
failing to win Congressional approval for an appropriation.8
As discussed below, the two main provisions on which the Administration purports to rely
to spend up to $6.1 billion provide no authority for the planned transfers and expenditures. In the
absence of a Congressional appropriation for the border wall, the Administration is back where it
started: abusing its power in direct violation of the Appropriations Clause.
First, the Administration’s transfer of funds and proposed expenditures to construct a
border wall under section 284 is not authorized by that provision. Section 284(b)(7) authorizes
the Secretary of Defense to provide support for counterdrug activities, including by constructing
fences “to block drug smuggling corridors across international boundaries of the United States.”9
Congress appropriated $517.171 million for counter-narcotics support activities for fiscal year

6

Fact Sheet: President Donald J. Trump’s Border Security Victory, White House (Feb. 15,
2019) (Border Victory Fact Sheet), http://tinyurl.com/WHBorderVictory.
7
Remarks by President Trump on the National Security and Humanitarian Crisis on Our
Southern Border, White House (Feb. 15, 2019, 10:39 AM) (Feb. 15 Rose Garden Remarks),
http://tinyurl.com/TrumpRoseGardenRemarks.
8
See Charlie Savage, Presidents Have Declared Dozens of Emergencies, But None Like
Trump’s, N.Y. Times (Feb. 15, 2019), http://tinyurl.com/NYTDozensofEmergencies.
9
10 U.S.C. § 284(b)(7).
4

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(FY) 2019.10 But defendants have announced their plan to transfer nearly $2.5 billion that
Congress appropriated for other purposes into the counterdrug support account, and then to spend
those funds on the construction of a border wall.11 On March 25, 2019, defendants transferred $1
billion from funds appropriated for military and reserve personnel costs to the Drug Interdiction
and Counterdrug Activities appropriation for counter-narcotics support.12
Defendants claim that section 8005 of the 2019 Department of Defense Appropriations Act
authorizes transfers into the drug interdiction fund for border wall construction. But section 8005
specifies that funds may be transferred only 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.”13 As the President’s own
statements indicate, this transfer is based not on unforeseen military requirements, but on his desire
to build a wall more quickly than Congressional appropriations allow, after Congress denied the
President’s request for border wall funding above $1.375 billion. Section 8005 also expressly
prohibits the transfer of funds for “military construction,”14 yet defendants have stated that the
border wall is a military construction project.
Second, defendants fare no better in asserting that they have authority to expend $3.6
billion under section 2808(a). Section 2808(a) provides that, when the President declares a
national emergency “that requires the use of the armed forces,” the Secretary of Defense “may

10

Department of Defense and Labor, Health and Human Services, and Education
Appropriations Act, 2019 and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, div. A,
tit. VI (2018) (to be printed at 132 Stat. 2981, 2997).
11
See Border Victory Fact Sheet, http://tinyurl.com/WHBorderVictory.
12
Office of the Under Secretary of Defense (Comptroller), DOD Serial No. FY 19-01 RA,
Reprogramming Action (Mar. 25, 2019), https://tinyurl.com/March25Transfer.
13
Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999.
14
Id.
5

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undertake military construction projects . . . not otherwise authorized by law that are necessary to
support such use of the armed forces.”15 When those statutory criteria are satisfied, the Secretary
may undertake military construction projects “only within the total amount of funds that have been
appropriated for military construction . . . that have not been obligated.”16 There is, however, no
national emergency requiring the use of the armed forces and, even if there were, a wall is not
necessary to support the use of those forces. The forces deployed to the border have performed
support roles that could easily be done by civilians, such as stringing concertina wire. No military
experience or specialized training is required and there is no national defense element to their role.
In addition, the construction of a border wall is not a “military construction project.” On
this point, however, the Administration’s purported statutory authority to reprogram funds under
section 2808 contradicts its claim that it is authorized to transfer funds to the drug interdiction fund
under section 8005. The Administration cannot have it both ways: section 2808 prohibits
reprogramming except for military construction projects, while section 8005 expressly prohibits
the transfer of funds for military construction.
Absent any applicable Congressional appropriation, the expenditure of up to $8.1 billion
to construct a border wall – and the transfer of appropriated funds from other sources to pay for
the wall – violates the Appropriations Clause and the constitutional separation of powers. The
United States House of Representatives brings this civil action for declaratory and injunctive relief
to halt the defendants’ unconstitutional actions, which usurp the House’s Article I legislative
powers.

15
16

10 U.S.C. § 2808(a).
Id.
6

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PARTIES
1.

Plaintiff the United States House of Representatives is the legislative body

constituted by Article I, section 2 of the United States Constitution.
2.

Defendant Steven T. Mnuchin is, and has been since February 13, 2017, the

Secretary of the United States Department of the Treasury. As Secretary, defendant Mnuchin is
responsible for all actions taken by the department he heads. He is sued in his official capacity.
3.

Defendant the United States Department of the Treasury is an agency in the

Executive Branch of the Federal Government responsible for managing federal finances and
Government accounts.
4.

Defendant Patrick M. Shanahan is, and has been since January 1, 2019, the Acting

Secretary of the United States Department of Defense (DOD). As Acting Secretary, defendant
Shanahan is responsible for all actions taken by the department he heads. He is sued in his official
capacity. President Trump’s emergency proclamation directs Acting Secretary Shanahan to “take
all appropriate actions . . . to use or support the use of the authorities herein invoked.”17
5.

Defendant the United States Department of Defense is an agency in the Executive

Branch of the Federal Government responsible for the United States military.
6.

Defendant Kirstjen M. Nielsen is, and has been since December 6, 2017, the

Secretary of the United States Department of Homeland Security (DHS). As Secretary, defendant
Nielsen is responsible for all actions taken by the department she heads. She is sued in her official
capacity. President Trump’s emergency proclamation directs Secretary Nielsen to “take all
appropriate actions . . . to use or support the use of the authorities herein invoked.”18

17

Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 20, 2019) (National Emergency
Proclamation).
18
Id.
7

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7.

Defendant the United States Department of Homeland Security is an agency in the

Executive Branch of the Federal Government responsible for providing border security for the
United States.
8.

Defendant David Bernhardt is, and has been since January 2, 2019, the Acting

Secretary of the Interior. As Acting Secretary, defendant Bernhardt is responsible for all actions
taken by the department he heads. He is sued in his official capacity. President Trump’s
emergency proclamation directs Acting Secretary Bernhardt to “take all appropriate actions . . . to
use or support the use of the authorities herein invoked.”19
9.

Defendant the United States Department of the Interior is an agency in the

Executive Branch of the Federal Government responsible for conserving and managing the
nation’s natural resources.
JURISDICTION AND VENUE
10.

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345. This case

arises under the Constitution and is brought by the United States House of Representatives.
11.

This Court has authority to issue a declaratory judgment, and to order injunctive

and other relief that is just and proper, pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and
65 of the Federal Rules of Civil Procedure.
12.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and (e), and 5 U.S.C.

§ 703.

19

Id.
8

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ALLEGATIONS
I.

FACTUAL BACKGROUND
A. Candidate Trump Promises to Build a “Great Wall” Along the Southern Border
13.

From the first day of his campaign for President of the United States, then-candidate

Trump made the construction of a “great wall” along the United States’ border with Mexico a
central campaign issue.20
14.

During his campaign announcement speech, candidate Trump complained that

“[t]he U.S. has become a dumping ground for everybody else’s problems.”21 “When Mexico sends
its people,” he explained, “they’re not sending their best. . . . They’re sending people that have lots
of problems, and they’re bringing those problems with [sic] us. They’re bringing drugs. They’re
bringing crime. They’re rapists. And some, I assume, are good people.”22 Mr. Trump promised
that if he were elected, “I would build a great wall, and nobody builds walls better than me, believe
me, and I’ll build them very inexpensively, I will build a great, great wall on our southern
border.”23 Mr. Trump also stated that “I will have Mexico pay for that wall. Mark my words.”24
15.

Chants of “Build the wall!” became a recurrent applause line at campaign rallies

for candidate Trump,25 and he continued to make unsubstantiated claims about conditions at the
southern border throughout his campaign. He warned that “the worst elements in Mexico are being

20

Here’s Donald Trump’s Presidential Announcement Speech, Time (June 16, 2015)
(Presidential Announcement Speech), http://tinyurl.com/TrumpAnnouncement.
21
Id.
22
Id.
23
Id.
24
Id.
25
Trump Explains Why He Feels the Primary Process Is “Unfair,” Fox News (Apr. 13,
2016), https://tinyurl.com/HannityTranscript. Candidate Trump said of his rallies, “if it gets a little
boring, if I see people starting to sort of, maybe thinking about leaving, I can sort of tell the
audience, I just say, ‘We will build the wall!’ and they go nuts.” Editorial Board, A Chance to
Reset the Republican Race, N.Y. Times (Jan. 30, 2016), https://tinyurl.com/NYTChancetoReset.
9

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pushed into the United States by the Mexican Government,”26 including “tremendous infectious
disease . . . pouring across the border.”27 He claimed that “the Mexican drug cartels use the border
unimpeded like it was a vacuum cleaner, sucking drugs and death right into the U.S.”28 According
to candidate Trump, the southern border was “totally out of control,”29 and he “alone c[ould] fix
it.”30
16.

Recognizing that construction of a wall along the southern border would cost

billions of dollars,31 candidate Trump repeatedly assured voters that Mexico would pay the
construction costs.32

26

Philip Bump, Donald Trump’s Lengthy and Curious Defense of His Immigrant
Comments, Annotated, Wash. Post (July 6, 2015), https://tinyurl.com/WaPoCuriousDefense.
27
Id.
28
Donald Trump (@realDonaldTrump), Twitter (July 13, 2015, 3:47 AM),
https://tinyurl.com/13July2015Tweet.
29
@realDonaldTrump (July 3, 2015, 3:08 PM), https://tinyurl.com/3July2015Tweet.
30
Philip Bump & Aaron Blake, Donald Trump’s Dark Speech to the Republican National
Convention,
Annotated,
Wash.
Post
(July
21,
2016),
https://tinyurl.com/WaPoTrumpsDarkSpeech.
31
Ron Nixon & Linda Qiu, Trump’s Evolving Words on the Wall, N.Y. Times (Jan. 18,
2018), https://tinyurl.com/NYTEvolvingWords. Candidate Trump’s cost estimates grew from “$4
or $5 billion” in September 2015 to “probably $8 billion” in February 2016, id., and “$5–10
billion” in March 2016, Compelling Mexico to Pay for the Wall, DonaldJTrump.com (Apr. 2016)
(Compelling Mexico to Pay), https://tinyurl.com/CompellingMexicoToPay. A wall along the
southern border could cost considerably more than that: “[e]stimates range from $8 billion to $67
billion or more[.]” Mark Niquette, About That Wall Trump Said Mexico Would Be Paying For . . .,
Wash. Post (Dec. 12, 2018), https://tinyurl.com/WaPoAboutThatWall.
32
Presidential Announcement Speech, http://tinyurl.com/TrumpAnnouncement; see also
Video: Presidential Candidate Donald Trump on National Security, C-SPAN (Sept. 15, 2015),
https://tinyurl.com/CSPANSpeech (“Mexico is going to pay for the wall, believe me.” (starting
around 27:50)); Transcript: Read the Full Text of the CNBC Republican Debate in Boulder, Time
(Oct. 28, 2015), https://tinyurl.com/TimeDebateTranscript (“Mexico’s going to pay for the
wall[.]”); Compelling Mexico to Pay, https://tinyurl.com/CompellingMexicoToPay (“There are
several ways to compel Mexico to pay for the wall[.]”); Donald Trump’s Contract with the
American Voter, DonaldJTrump.com, https://tinyurl.com/TrumpContract (“Mexico will be
reimbursing the United States for the full cost of [the] wall[.]”).
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17.

Mr. Trump won the election and was sworn in as the 45th President of the United

States on January 20, 2017.
B. President Trump Attempts to Build a Border Wall During His First Two Years in
Office
18.

Shortly before his inauguration on January 20, 2017, President-elect Trump

promised, “We’re going to build a wall. I could wait about a year-and-a-half until we finish our
negotiations with Mexico, which will start immediately after we get to office, but . . . I don’t feel
like waiting a year or a year-and-a-half.”33
19.

At the time of President Trump’s inauguration, the Federal Government had already

constructed significant sections of barriers along the southern border. In 1996, Congress passed
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), authorizing the
Attorney General to install barriers “in areas of high illegal entry into the United States” and
directed the construction of 14 miles of barriers in San Diego.34 Congress amended the IIRIRA
with the passage of the Secure Fence Act of 2006, directing construction of barriers in specific
areas and designating five “priority areas” with strict construction deadlines.35 In the Consolidated

33

Aaron Blake, Donald Trump’s Big Press Conference Transcript, Wash. Post (Jan. 11,
2017), https://tinyurl.com/11Jan2017PressConference.
“The U.S.-Mexico land border is
approximately 1,933 miles.” Michael John Garcia, Cong. Research Serv., R42975, Barriers Along
the
U.S.
Borders:
Key
Authorities
and
Requirements
1
n.2
(2017),
https://tinyurl.com/CRSBarrierAuthorities. As President Trump has explained, much of the border
consists of rugged terrain that even proponents of a wall concede do not need a wall. See, e.g.,
Transcript of Donald Trump Interview with the Wall Street Journal, Wall Street Journal (Jan. 14,
2018), http://tinyurl.com/WSJInterviewTranscript (“The wall’s never meant to be 2,100 miles
long. We have mountains that are far better than a wall, we have violent rivers that nobody goes
near[.]”);
@realDonaldTrump
(Jan.
18,
2018,
3:15
AM),
https://tinyurl.com/18Jan2018Tweet315AM (“The Wall . . . was never intended to be built in areas
where there is natural protection such as mountains, wastelands or tough rivers or water.”).
34
Pub. L. No. 104-208, div. C., tit. I, § 102(a), (b)(1), (b)(4), 110 Stat. 3009, 3009-546,
554-55 (1996).
35
Pub. L. No. 109-367, § 3, 120 Stat. 2368, 2638-39 (codified as amended as a note to 8
U.S.C. § 1103) (2006).
11

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Appropriations Act, 2008, Congress repealed those deadlines and granted DHS discretion to
determine new priority areas along the southern border where fencing would be “most practical
and effective.”36 Consistent with these laws and Congressional appropriations from FY 2005 to
2016, there was a total of 354 miles of primary pedestrian fencing, 37 miles of secondary
pedestrian fencing, 14 miles of tertiary pedestrian fencing, and 300 miles of vehicle fencing along
the southern border at the time of President Trump’s inauguration.37
20.

Five days after his inauguration, on January 25, 2017, President Trump issued an

executive order directing the Secretary of Homeland Security to “take all appropriate steps to
immediately plan, design, and construct a physical wall along the southern border.”38 The order
further directed the Secretary to “[i]dentify and, to the extent permitted by law, allocate all sources
of Federal funds for the planning, designing, and constructing of a physical wall along the southern
border.”39 The order defines “wall” as “a contiguous, physical wall or other similarly secure,
contiguous, and impassable physical barrier.”40

36

Pub. L. No. 110-161, div. E, tit. V, § 564, 121 Stat. 1844, 2090 (2008).
Mileage of Pedestrian and Vehicle Fencing by State, U.S. Border Patrol (Aug. 2, 2017),
https://tinyurl.com/Mileage2Aug2017. The primary fence is “[t]he first layer of fencing,” which
may “include both pedestrian and vehicle fencing and is the first fence encountered when moving
north from the border; the secondary fence, located behind the primary fence, consists solely of
pedestrian fencing; and the third layer, or tertiary fence, is primarily used to delineate property
lines rather than deter illegal entries.” Gov’t Accountability Office, GAO-17-331, Southwest
Border Security: Additional Actions Needed to Better Assess Fencing’s Contributions to
Operations and Provide Guidance for Identifying Capability Gaps 9 n.24 (2017),
http://tinyurl.com/GAOSwBorderSecurity. The Administration sources cited herein frequently
refer to border fencing as a “wall.” For consistency, this Complaint generally refers to the
President’s planned barrier construction in the same manner. However, when a cited source uses
a more specific term, such as “fencing,” this Complaint uses that term.
38
Exec. Order No. 13,767, 82 Fed. Reg. 8793, 8794 (Jan. 25, 2017).
39
Id.
40
Id.
37

12

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21.

During President Trump’s first two years in office, DHS responded to the

President’s executive order by using the funds that had been appropriated by Congress on the
construction of a border wall, but no more.
22.

In March 2017, the President issued a supplemental appropriations request for FY

2017 and sought $3 billion for border security improvements,41 including “$999 million for
planning, design, and construction of the first installment of the border wall” along the southern
border.42 Congress instead provided DHS with $341.2 million “to replace approximately 40 miles
of existing primary pedestrian and vehicle border fencing along the southwest border.”43 DHS
received this funding in May 2017, awarded its first contract against that funding in November
2017, and began construction in February 2018.44 The U.S. Customs & Border Protection (CBP)
has provided information to Congress indicating that, as of early 2019, it had constructed 37 of the
40 miles of fencing with this funding.
23.

In his FY 2018 budget request, the President sought “$2.6 billion in high-priority

tactical infrastructure and border security technology,”45 $1.6 billion of which would be spent to

41

Letter from President Trump to Paul Ryan, Speaker, U.S. House of Representatives 1
(Mar. 16, 2017), https://tinyurl.com/BudgetRequestFY17.
42
Memorandum from Mick Mulvaney, Dir., Office of Mgmt. & Budget, to President
Trump,
FY
2017
Appropriations
Request
3
(Mar.
16,
2017),
https://tinyurl.com/BudgetRequestFY17.
43
Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, div. F, tit. VI, 131 Stat 135,
434. DHS has stated that Congress appropriated “$292 million to build 40 miles of a steel bollard
wall in the San Diego, El Centro and El Paso Sectors – Border Patrol’s highest priority locations.”
Press Release, U.S. Dep’t of Homeland Security, Walls Work (Dec. 12, 2018) (DHS ‘Walls Work’
Press Release), http://tinyurl.com/DHSWallsWork. It is unclear why the amount stated in the DHS
press release is lower than the amount appropriated in the bill.
44
DHS “Walls Work” Press Release, http://tinyurl.com/DHSWallsWork.
45
Office of Mgmt. & Budget, Budget of the U.S. Government: A New Foundation for
American Greatness: Fiscal Year 2018, at 18 (2017), https://tinyurl.com/BudgetRequestFY18.
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construct 74 miles of new or replacement border wall.46 The requested amount was intended to
allow the Trump Administration to “aggressively implement the President’s commitment to
construct a physical wall along the southern border.”47 Congress instead appropriated $1.571
billion for new border security technology and new and replacement fencing in specified areas on
the southern border.48 The appropriated amount included $38 million for “border barrier planning
and design”49 and provided for “more than 95 miles of ‘border wall system,’ including
approximately 47 miles of new barriers and 48 miles of upgraded barriers.”50 The President
announced that the FY 2018 Congressional appropriation was a “Big WIN . . . for building the
wall.”51 Based on information provided to Congress by the Administration, it appears that less
than 1 mile of fencing has been constructed with FY 2018 funding.
24.

In total, during President Trump’s first two years in office, Congress appropriated

funds sufficient to construct approximately 135 miles of new and upgraded barriers along the

46

U.S. Dep’t of Homeland Security, FY 2018 Budget in Brief 3, 28,
http://tinyurl.com/DHSFY18BudgetBrief.
47
Office of Mgmt. & Budget, America First: A Budget Blueprint to Make America Great
Again 14 (2017), http://tinyurl.com/FY18BudgetRequest.
48
Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a) (to
be printed at 132 Stat. 348, 616).
49
Id.
50
Homeland Security Appropriations Bill, 2018: Omnibus Agreement Summary 1, S.
Comm. on Appropriations, http://tinyurl.com/FY18OmnibusAgreementSummary.
DHS
separately claimed that the FY 2018 appropriation would fund “approximately 84 miles of border
wall in multiple locations across the Southwest border.” DHS “Walls Work” Press Release,
http://tinyurl.com/DHSWallsWork.
51
@realDonaldTrump (July 12, 2017, 4:24 PM), https://tinyurl.com/12July2017Tweet; see
also @realDonaldTrump (Mar. 21, 2018, 8:00 PM), https://tinyurl.com/21Mar2018Tweet (“Got
$1.6 Billion to start Wall on Southern Border, rest will be forthcoming.”).
14

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southern border. President Trump has declared, “we have a lot of appropriation,”52 and “we’re
building a lot of wall.”53
C. President Trump Shuts Down the Federal Government for His Border Wall
25.

President Trump’s FY 2019 budget request, presented in February 2018, sought

only “$1.6 billion to construct approximately 65 miles of border wall.”54 Around July 2018,
President Trump informally increased his request to $5 billion for wall funding in public and
private comments to lawmakers.55 At no point did the Administration submit to Congress a formal,
updated budget request seeking additional funds for such construction, nor did it explain the
difference between its initial $1.6 billion request and subsequent communications asking for $5
billion.56
26.

Near the end of the 115th Congress, Congress began working on a FY 2019

appropriations bill before the December 22, 2018 deadline when federal funding would expire for

52

Video: President Trump on Human Trafficking, C-SPAN (Feb. 1, 2019),
https://tinyurl.com/CSPANFeb2019PressConference (starting around 51:25).
53
Id. (starting around 9:30, 40:10, 41:25, 43:03, and 49:15).
54
Office of Mgmt. & Budget, Fiscal Year 2019: Efficient, Effective, Accountable: An
American Budget 57 (2018), https://tinyurl.com/BudgetRequestFY19; see also Stronger Border
Security:
2019
Budget
Fact
Sheet,
White
House
(Feb.
2018),
http://tinyurl.com/WHFY18BudgetFactSheet (noting request for “$1.6 billion for new border wall
in locations identified by the Border Patrol as necessary to obtain operational control of the border
and impede illegal crossings”).
55
See Cong. Research Serv., R45268, Department of Homeland Security Appropriations:
FY2019, at 10 n.17 (Oct. 5, 2018), https://tinyurl.com/CRS-DHSFY19; Rachael Bade,
Immigration Storm Bears Down on Republicans, Politico (July 2, 2018, 5:05 AM),
https://tinyurl.com/PoliticoImmigrationStorm (“[D]uring a meeting with appropriators last week,
Trump pressed Republicans to give him $5 billion as a down payment on his wall[.]”).
56
The process for submitting and amending budget and appropriations requests to
Congress is subject to rigorous and well-established guidelines and procedures that were not
followed here. See generally Office of Mgmt. & Budget, OMB Circular No. A-11, Preparation,
Submission, and Execution of the Budget (2018), https://tinyurl.com/OMBCircularA11; U.S.
Gov’t Accountability Office, GAO-16-464SP, Principles of Federal Appropriations Law 2-15 (4th
ed. 2016) (noting “long and exhaustive administrative process of budget preparation and review”),
https://tinyurl.com/GAORedBook.
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nine federal departments, including DHS. The initial Senate appropriations bill funding DHS
included the exact amount that the President had formally requested: $1.6 billion for approximately
65 miles of border fencing.57 House Democratic leadership indicated that they would agree to pass
the measure “so long as the language d[id] not require [the $1.6 billion] to be spent on the wall.”58
27.

On December 11, 2018, President Trump held a televised meeting with the

Democratic leaders of Congress, then-House Minority Leader Nancy Pelosi and Senate Minority
Leader Chuck Schumer, to discuss the impending funding deadline.59 At that meeting, President
Trump said he wanted $5 billion to build a portion of the border wall and warned: “If we don’t get
what we want one way or the other, whether it’s through you, through a military, through anything
you want to call, I will shut down the government, absolutely.”60 The President declared that he
would be “proud to shut down the government for border security.”61
28.

On December 19, 2018 – two days before funding for nine federal departments was

set to expire – the Senate passed a continuing resolution funding the Government through February
8, 2019.62 This Senate resolution did not include funding for a border wall.63 Senate Majority
Leader Mitch McConnell indicated his understanding that the President would support the

57

S. 3109, 115th Cong., tit. 2 (as reported by S. Comm. on Appropriations, June 21, 2018);
see Lindsey McPherson, $1.6 Billion for Border Security, Not Just Wall, Could Be Agreed To,
Hoyer Says, Roll Call (Dec. 4, 2018, 12:46 PM) (McPherson, $1.6 Billion for Border Security),
http://tinyurl.com/RollCallDec18.
58
McPherson, $1.6 Billion for Border Security (emphasis added),
http://tinyurl.com/RollCallDec18.
59
See Aaron Blake, Trump’s Extraordinary Oval Office Squabble with Chuck Schumer
and Nancy Pelosi, Wash. Post (Dec. 11, 2018), https://tinyurl.com/WaPoOvalOfficeSquabble.
60
Id.
61
Id.
62
Department of Defense Appropriations Act of 2018, H.R. 695, 115th Cong. (2018).
63
Id.
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continuing resolution.64 However, President Trump announced, “I’ve made my position very
clear: Any measure that funds the government must include border security.”65
29.

On December 19, 2018, the House of Representatives approved a short-term

funding bill appropriating $5.7 billion for “U.S. Customs and Border Protection – Procurement,
Construction, and Improvements.”66 The Senate never passed the House-approved version of the
legislation because “Democrats would not be willing to support $5 billion in wall funding.”67
30.

Appropriations for a substantial portion of the Federal Government expired on

December 21, 2018, precipitating the longest Federal Government shutdown in history.
31.

On January 4, 2019, the President for the first time publicly raised the possibility

of declaring a national emergency to move forward with construction of a border wall in the event
that Congress refused his requested appropriation.68 The President asserted that, if the “negotiated
process” with Congressional leaders did not result in the funding that he wanted, he could “call a
national emergency and build [the wall] very quickly.”69 A few days later, the President declared
in a televised Oval Office address that “there is a growing humanitarian and security crisis at our

64

Erica Werner et al., Senate Passes Bill to Keep Government Open Until February,
Undercutting Trump’s Drive for Border Wall Funding, Wash. Post (Dec. 19, 2018),
https://tinyurl.com/WaPoSenateBill (“Congressional leaders said they expected Trump to sign [the
continuing resolution] before the shutdown deadline.”).
65
Remarks by President Trump at Signing of H.R. 2, the Agriculture Improvement Act of
2018, White House (Dec. 20, 2018), https://tinyurl.com/TrumpHR2Remarks.
66
Further Additional Continuing Appropriations Act, 2019, H.R. 695, 115th Cong., § 141
(2018).
67
See Bo Erickson et al., House Passes Spending Bill with $5 Billion Border Wall Funding,
Increasing Likelihood of Shutdown, CBS News (Dec. 20, 2018, 9:00 PM),
http://tinyurl.com/CBSHousePassesBill.
68
See Remarks by President Trump After Meeting with Congressional Leadership on
Border Security, White House (Jan. 4, 2019), https://tinyurl.com/TrumpJan4Remarks.
69
Id.
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southern border.”70 He stated that his “administration ha[d] presented Congress with a detailed
proposal to secure the border,” including “$5.7 billion for a physical barrier.”71 He implored
Congress to “do[] its job” and “pass a bill that ends this crisis.”72
32.

On January 9, 2019, President Trump stated that “I have an absolute right to do

[a] national emergency if I want,” and that the “threshold” for invoking the emergency would be
if “I can’t make a deal with people that are unreasonable.”73
33.

On January 12, 2019, the President referred to a national emergency declaration as

“the easy way out”: “Now, the easy solution is for me to call a national emergency. I could do that
very quickly . . . but I’m not going to do it so fast, because this is something Congress should do
and we’re waiting for the Democrats to vote.”74 “Congress should do this,” the President said, but
“[i]f they can’t do it, I will declare a national emergency.”75
34.

After it became apparent that the Government’s continued closure was causing

serious nationwide disruptions, the President finally agreed to end the shutdown on January 25,
2019.76 He signed a continuing resolution that funded the Government through February 15, 2019,

70

Full Transcript: Trump’s Speech on Immigration and the Democratic Response, N.Y.
Times (Jan. 8, 2019), http://tinyurl.com/TrumpNationalAddress.
71
Id.; see also Letter from Russell T. Vought, Acting Dir., Office of Mgmt. & Budget, to
Senator Richard Shelby, Chairman, Senate Comm. on Appropriations (Jan. 6, 2019),
http://tinyurl.com/ShelbyLettertoApprops.
72
Id.
73
Greg Sargent, Trump: I Have the “Absolute Right” to Declare a National Emergency If
Democrats Defy Me, Wash. Post (Jan. 9, 2019), https://tinyurl.com/WaPoRightToDeclare.
74
Remarks by President Trump During Roundtable Discussion with State, Local, and
Community Leaders on Border Security and Safe Communities, White House (Jan. 12, 2019),
https://tinyurl.com/TrumpJan12Remarks.
75
Id.
76
See Nicholas Fandos et al., Trump Signs Bill Reopening Government for 3 Weeks in
Surprise
Retreat
from
Wall,
N.Y.
Times
(Jan.
25,
2019),
https://tinyurl.com/NYTTrumpSurpriseRetreat.
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and provided no additional border wall funding.77 The five-week shutdown cost the U.S. economy
$8 billion dollars, $3 billion of which is unrecoverable.78
35.

On January 25, 2019, a bipartisan Congressional conference committee was

established to negotiate a deal to fund the Government for FY 2019.79 The committee ultimately
reached a compromise that included $1.375 billion for 55 miles of new fencing along the border.80
The agreement further provided for “$14.959 billion for [CBP’s budget], $942 million more than
fiscal year 2018,” to fund a total of 600 additional CBP officers and nearly half a billion dollars
“to address humanitarian concerns at the border, including medical care, more efficient
transportation, and holding facility requirements with better conditions and services for
migrants.”81
36.

On February 14, 2019, Congress passed the Consolidated Appropriations Act,

2019.82 This Act provides $1.375 billion for construction of fencing in the Rio Grande Valley area
of the border, but provides that in that area “[n]one of the funds made available by this Act or prior
Acts are available for the construction of pedestrian fencing – (1) within the Santa Ana Wildlife
Refuge; (2) within the Bentsen-Rio Grande Valley State Park; (3) within La Lomita Historical
Park; (4) within the National Butterfly Center; or (5) within or east of the Vista del Mar Ranch
tract of the Lower Rio Grande Valley National Wildlife Refuge.”83 Congress limited the funding

77

See Further Additional Continuing Appropriations Act, 2019, Pub. L. No. 116-5 (2019)
(to be printed at 133 Stat. 10).
78
Cong. Budget Office, The Effects of the Partial Shutdown Ending in January 2019
(2019), https://tinyurl.com/CBOShutdownEffects.
79
See Phil Mattingly, These Members of Congress Are Seeking a Deal on Border Security
and Trump’s Wall, CNN (Jan. 28, 2019, 5:05 PM), http://tinyurl.com/CNNConferenceCommittee.
80
Senate Appropriations Comm., Summary of DHS Fiscal Year 2019 Appropriations
Agreement, 2, http://tinyurl.com/SenateFY19AppropsSummary.
81
Id. at 1.
82
Pub L. No. 116-6 (2019) (to be printed at 133 Stat. 13).
83
Id. § 231, 133 Stat. 28.
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for new fencing to “operationally effective designs” that had been deployed as of 2017, “such as
currently deployed steel bollard designs, that prioritize agent safety.”84 No other funding was
designated for the construction of a border wall.
37.

On February 15, 2019, President Trump signed the 2019 Consolidated

Appropriations Act into law.
D. President Trump Announces That, Even with a Lack of Appropriated Funds, His
Administration Will Spend up to $8.1 Billion on a Border Wall, and Declares a
National Emergency
38.

On the same day that he signed the 2019 Consolidated Appropriations Act,

President Trump expressed his dissatisfaction with the $1.375 billion that Congress had
appropriated for construction of border fencing and announced that his Administration would
instead spend up to $8.1 billion on construction of a border wall.85
39.

Acting White House Chief of Staff Mick Mulvaney stated that “with the $8 billion,

we should have sufficient money this year to [build the amount of wall that] we wanted to do with
the $5.7 [billion] worth of money that the President asked for originally.”86

A senior

Administration official indicated that the Administration “expect[s] they will be able to go farther
than 234 miles.”87
40.

In addition to the amount that Congress appropriated, the White House designated

three sources from which it would draw funding to “be used sequentially and as needed”:
(a) approximately $601 million from the Treasury Forfeiture Fund (31 U.S.C. § 9705);

84

Id. § 230(b), 133 Stat. 28.
Border Victory Fact Sheet, http://tinyurl.com/WHBorderVictory; Feb. 15 Rose Garden
Remarks, http://tinyurl.com/TrumpRoseGardenRemarks.
86
Press Release, White House, Background Press Call by Senior Administration Officials
on President Trump’s Remarks on the National Security and Humanitarian Crisis on Our Southern
Border (Feb. 15, 2019) (Background Press Call), https://tinyurl.com/WHPressCall.
87
Id.
85

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(b) up to $2.5 billion under the DOD funds transferred for Support for Counterdrug
Activities (10 U.S.C. § 284); and
(c) up to $3.6 billion reallocated from DOD military construction projects (10 U.S.C.
§ 2808).88
41.

The $3.6 billion that the Administration intends to access under section 2808 is

designated for military construction projects that both the Administration and Congress have
treated as priorities in FY 2018 and FY 2019.89 Administration officials have explained that they
will seek to “backfill” the reallocated $3.6 billion by asking Congress to appropriate additional
funding for military construction projects in the FY 2020 Department of Defense appropriations
act.90 The FY 2020 budget request includes “$3.6 billion for support of the emergency declaration
providing emergency military construction, such as building of barriers, necessary to support the

88

See Border Victory Fact Sheet, http://tinyurl.com/WHBorderVictory.
For FY 2018, DOD requested $10.4 billion for military construction projects. See
Christopher T. Mann, Cong. Research Serv., R45217, FY2018 Military Construction
Authorizations and Appropriations, Summary (2018) (CRS FY2018 Military Construction),
https://tinyurl.com/CRSFY18MilCon. Reflecting the critical need for military construction,
Congress instead appropriated $10.8 billion for military construction projects, Pub. L. No. 115141, div. J, tit. I (2018) (to be printed at 132 Stat. 348, 797-98) – 4% more than DOD had requested
and 33% more than in FY 2017, see CRS FY2018 Military Construction,
https://tinyurl.com/CRSFY18MilCon. For FY 2019, the Administration requested $11.4 billion
for military construction, and Congress appropriated $11.2 billion. Cong. Research Serv., IF
10965, FY2019 Military Construction Appropriations: An Overview of H.R. 5895 and Issues in
Conference tbl.1 (2018), https://tinyurl.com/CRS-FY2019MilCon; see Military Construction,
Veterans Affairs, and Related Agencies Appropriations Act, 2019, Pub. L. No. 115-244, div. C
(2018) (to be printed at 132 Stat. 2897, 2946-48). The Administration complained that the bill did
not match its request and would “delay[] critical resources to complete high-priority projects.”
Letter from Mick Mulvaney, Dir., Office of Mgmt. & Budget, to Senator Richard Shelby,
Chairman, Senate Comm. on Appropriations (June 18, 2018), https://tinyurl.com/June2018Letter.
90
Background Press Call, https://tinyurl.com/WHPressCall. When asked whether there
were “plans to reimburse the Defense Department for the [military construction] money . . . [or]
[s]ort of backfill it with the FY20 request,” the “senior Administration official” responded, “[Y]es,
we have a budget that is due to be transmitted in March to the Congress, and that will make plans
to backfill for these accounts[.]” Id.; see also Fact Sheet on Section 2808 Funding Pool, U.S.
Dep’t of Def. (2019) http://tinyurl.com/2808FundingPool (identifying potential pool of sources of
military construction funds that could be reallocated to construct the border wall).
89

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use of the Armed Forces at the southern United States border” and an additional “$3.6 billion for
funding any [military construction] projects delayed as a result of the emergency declaration.”91
42. To support the use of emergency construction funding under section 2808, President
Trump also issued a proclamation declaring that “[t]he current situation at the southern border
presents a border security and humanitarian crisis that threatens core national security interests and
constitutes a national emergency.”92
43.

In this proclamation, the President noted that “[t]he problem of large-scale unlawful

migration through the southern border is long-standing.”93 The emergency proclamation asserted:
(a) “The southern border is a major entry point for criminals, gang members, and illicit
narcotics.”
(b) “[R]ecent years have seen sharp increases in the number of family units entering
and seeking entry to the United States and an inability to provide detention space
for many of these aliens while their removal proceedings are pending.”
(c) Aliens who are not detained “fail to appear for hearings, do not comply with orders
of removal, or are otherwise difficult to locate.”94
44.

Based on these assertions, the President declared a “national emergency” pursuant

to the National Emergencies Act95 and directed defendant Secretaries of Defense, Interior, and
Homeland Security to “take all appropriate actions, consistent with applicable law, to use or
support the use of the authorities herein invoked, including, if necessary, the transfer and
acceptance of jurisdiction over border lands.”96

91

U.S. Dep’t of the Army, Military Construction (Part IA OCO/Emergency), at 21, in
Department of the Army Fiscal Year (FY) 2020: President’s Budget Submission (2019),
https://tinyurl.com/ArmyFY2020Budget.
92
Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 20, 2019) (National Emergency
Proclamation).
93
Id.
94
Id.
95
50 U.S.C. § 1601 et seq.
96
See National Emergency Proclamation.
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45.

In announcing his proclamation, President Trump declared that he had been

“successful” in receiving funding from Congress for part of his desired wall.97 He exclaimed that
Congress had appropriated a “crazy” amount of money: “We have so much money, we don’t know
what to do with it. I don’t know what to do with all the money [Congress is] giving us. It’s
crazy.”98 President Trump stated that Democrats “didn’t even fight us on most of the stuff,” such
as “[p]orts of entry.”99 The President complained that funding for the border wall was the “only”
exception: “[$1.375 billion] [s]ounds like a lot, but it’s not so much, although we’re putting it to
much better use than it used to be.”100 The President declared that “[i]f we had a wall, we don’t
need the military because we’d have a wall.”101 He further stated that “I went through Congress.
I made a deal. I got almost $1.4 billion when I wasn’t supposed to get one dollar – not one dollar.
‘He’s not going to get one dollar.’ Well, I got $1.4 billion. But I’m not happy with it.”102
46.

Because he was declaring a national emergency, the President said, the

Administration “ha[s] a chance of getting close to $8 billion. Whether it’s $8 billion or $2 billion
or $1.5 billion, it’s going to build a lot of wall.”103 Indeed, President Trump declared that “[w]e’re
getting it done,” and that “[w]e’re right now in construction with wall in some of the most
important areas.”104 He similarly declared, “I’ve built a lot of wall. I have a lot of money, and
I’ve built a lot of wall.”105

97

Feb. 15 Rose Garden Remarks, http://tinyurl.com/TrumpRoseGardenRemarks.
Id.
99
Id.
100
Id.
101
Id.
102
Id.
103
Id.
104
Id.
105
Id.
98

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47.

Reiterating that he was “successful” in getting Democrats to appropriate funding

for the wall, President Trump explained why he nevertheless declared a national emergency:
So I did – I was successful, in that sense, but I want to do it faster. I
could do the wall over a longer period of time. I didn’t need to do
this. But I’d rather do it much faster. And I don’t have to do it for
the election. I’ve already done a lot of wall, for the election – 2020.
And the only reason we’re up here talking about this is because of
the election, because they want to try and win an election, which it
looks like they’re not going to be able to do. And this is one of the
ways they think they can possibly win, is by obstruction and a lot of
other nonsense. And I think that I just want to get it done faster,
that’s all.106
E. Defendants Begin Transferring Funds to Implement the President’s Direction to
Spend up to $8.1 Billion on a Border Wall
48.

President Trump has reported that wall construction is “[m]oving quickly,”107 and

senior Administration officials have stated that people will be “shock[ed]” to “see how quickly the
administration will build a wall.”108 Indeed, defendants have begun transferring money pursuant
to the President’s direction to spend up to $8.1 billion on a border wall.
49.

On February 15, 2019, the Department of Treasury formally notified Congress that

it had adopted a plan to provide up to $601 million requested by DHS in two tranches, and that the
first tranche of $242 million would be made available for obligation fifteen days later.
50.

On March 25, 2019, the Department of Defense transferred $1 billion from funds

appropriated for military and reserve personnel costs to the Drug Interdiction and Counterdrug
Activities appropriations fund.109 DOD announced that “[t]hese funds will be used to support

106

Id. (emphasis added).
@realDonaldTrump (Jan. 20, 2019, 6:20 AM), https://tinyurl.com/20Jan2019Tweet.
108
Rachael Bade et al., ‘A Recipe for Disaster’? Trump’s Border Emergency Drags the
GOP into a Risky Fight Ahead of 2020, Wash. Post (Feb. 15, 2019),
http://tinyurl.com/WaPoRecipeDisaster.
109
Office of the Under Secretary of Defense (Comptroller), DOD Serial No. FY 19-01 RA,
Reprogramming Action (Mar. 25, 2019), https://tinyurl.com/March25Transfer (“This
107

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DHS’s request to build 57 miles of 18-foot-high pedestrian fencing, constructing and improving
roads, and installing lighting within the Yuma and El Paso Sectors of the border.”110
51.

To implement the President’s order to reallocate up to $3.6 billion in additional

funds under section 2808, DOD has identified military construction projects that could be cut to
finance the construction of the border wall.111
F. Congress Disapproves the President’s Emergency Declaration
52.

Condemnation of the President’s actions was swift, even from the President’s early

campaign supporters.112

reprogramming action transfers $1,000.000 million from the Military Personnel, Army . . . and
Reserve Personnel, Army . . . appropriations to the Drug Interdiction and Counter-Drug Activities,
Defense . . . appropriation.”).
110
Press Release, U.S. Dep’t of Def., DOD Authorizes Support to Counter Drug Border
Security
(Mar.
25,
2019)
(DOD
March
25
Press
Release),
http://tinyurl.com/DoDMarch25PressRelease.
111
See U.S. Dep’t of Def., Fact Sheet on Section 2808 Funding Pool (Feb. 19, 2019),
https://tinyurl.com/DODFactSheetMilConCuts.
112
See, e.g., Damian Paletta et al., Trump’s Declaration of National Emergency Hit with
First Lawsuits, Wash. Post (Feb. 16, 2019), https://tinyurl.com/WaPoTrumpsDeclaration (“Rep.
Mac Thornberry (Tex.), the top Republican on the House Armed Services Committee, warned
against tapping Defense Department and military construction accounts to build the wall. ‘Doing
so would have detrimental consequences for our troops,’ he said[.]”); Christal Hayes, Ann Coulter
After Trump’s Order: ‘The Only National Emergency Is That Our President Is an Idiot,’ USA
Today (Feb. 16, 2019, 5:19 PM), https://tinyurl.com/USATodayCoulter (describing early
supporter of President Trump Ann Coulter’s dissatisfaction with the President’s action); Lisa
Mascaro, Trump’s National Emergency Sparks New GOP Divide in Congress, Associated Press
(Feb. 15, 2019), https://tinyurl.com/APNewGOPDivide (recounting disapproval from several
Republican lawmakers, including Senator Lamar Alexander (R-Tenn.) (“Declaring a national
emergency is unnecessary, unwise and inconsistent with the U.S. Constitution.”) and Senator
Thom Tillis (R-N.C.) (“I don’t believe a national emergency declaration is the solution.”)).
Representative Will Hurd (R-Tex.), who represents a district covering about 820 miles of the U.S.Mexico border, also expressed disagreement with the decision: “[A] national emergency
declaration . . . is not a tool that the president needs in order to solve this problem. This is a problem
that has existed for – before Ronald Reagan. And . . . remember we just passed a piece of
legislation that adds more technology, that has physical barriers in order to . . . solve this problem.”
Transcript: Rep. Will Hurd on “Face the Nation,” February 17, 2019, CBS News (Feb. 17, 2019,
11:22 AM), https://tinyurl.com/CBSTranscript.
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53.

On February 26, 2019, the United States House of Representatives adopted House

Joint Resolution 46 by a vote of 245 to 182,113 providing for the termination of the February 15,
2019 national emergency declaration of the President, pursuant to section 202 of the National
Emergencies Act, 50 U.S.C. § 1622.
54.

On March 14, 2019, the Senate passed House Joint Resolution 46 by a vote of 59

to 41,114 providing for the termination of the February 15, 2019, national emergency declaration
of the President, pursuant to section 202 of the National Emergencies Act, 50 U.S.C. § 1622. The
joint resolution was supported by numerous Republican Senators, including Senator Mitt Romney,
who stated that his vote of disapproval was “a vote for the Constitution and for the balance of
powers that is at its core.”115
55.

On March 15, 2019, President Trump issued the first veto of his Presidency, striking

down the joint resolution of the House and Senate that terminated his national emergency.116
56.

On April 4, 2019, the Bipartisan Legal Advisory Group of the United States House

of Representatives authorized the filing of this lawsuit.117

113

165 Cong. Rec. H2217-18 (daily ed. Feb. 26, 2019).
165 Cong. Rec. S1882 (daily ed. Mar. 14, 2019).
115
Marianne Levine, Senate Deals Blow to Trump in Vote to Terminate Border Emergency,
Politico (Mar. 14, 2019, 4:16 PM), http://tinyurl.com/PoliticoSenateVote.
116
Veto Message to the House of Representatives for H.J. Res. 46, White House (March
15, 2019), https://tinyurl.com/TrumpVetoMessage.
117
The Bipartisan Legal Advisory Group consists of the Speaker, Majority Leader and
Whip, and Minority Leader and Whip and “speaks for, and articulates the institutional position of,
the House in all litigation matters.” Rule II.8(b), Rules of the U.S. House of Representatives
(116th Cong.). The Republican Leader and the Republican Whip decline to support this filing for
institutional reasons, as the appropriate recourse provided under Article I of the U.S. Constitution
is to pass legislation.
114

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II. LEGAL ALLEGATIONS
57.

The Appropriations Clause of the Constitution provides that “[n]o Money shall be

drawn from the Treasury, but in Consequence of Appropriations made by Law.”118 This clause
vests Congress with the “exclusive power over the federal purse,” and it forms the “bulwark of the
Constitution’s separation of powers.”119 The Supreme Court has made clear that “[a]ny exercise
of a power granted by the Constitution to one of the other branches of Government is limited by a
valid reservation of congressional control over funds in the Treasury.”120 Indeed, “not a dollar” of
any public funds can be used to pay for anything not previously sanctioned by Congress.121
58.

Notwithstanding this unequivocal constitutional command, on the same day that

President Trump signed appropriations legislation providing only $1.375 billion in FY 2019 funds
for the construction of a wall along the southern border, he announced that his Administration
would in fact spend up to $8.1 billion.122 This expenditure of unappropriated funds disregards the
separation of powers and usurps Congress’s exclusive authority under the Appropriations Clause
to control federal funds.
59.

In the absence of any law appropriating the $8.1 billion defendants want to

construct a wall on the southern border, defendants attempt to justify the expenditures under
sections 284 and 2808. But defendants cannot satisfy the statutory requirements for transferring
and expending funds under those provisions. The defendants’ transfer and expenditure of funds
without authority violates the Appropriations Clause.

118

U.S. Const. art. I, § 9, cl. 7.
FLRA, 665 F.3d at 1346-47 (quotation marks omitted); see also 3 Joseph Story,
Commentaries on the Constitution of the United States § 1342 (1833) (noting that, if not for the
Appropriations Clause, “the executive would possess an unbounded power over the public purse
of the nation; and might apply all its monied resources at his pleasure”).
120
Richmond, 496 U.S. at 425.
121
Reeside v. Walker, 52 U.S. 272, 291 (1850).
122
Border Victory Fact Sheet, http://tinyurl.com/WHBorderVictory.
119

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A. Defendants Are Not Authorized to Spend up to $2.5 Billion on a Border Wall
Under 10 U.S.C. § 284(b)
60.

In pertinent part, 10 U.S.C. § 284 provides that “[t]he Secretary of Defense may

provide support for the counterdrug activities . . . of any other department or agency of the federal
government” if “such support is requested[] by the official who has responsibility for the
counterdrug activities . . . of the department or agency of the Federal Government.”123 Section
284(b) further provides that “[t]he purposes for which the Secretary may provide support” include
“[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors
across international boundaries of the United States.”124
61.

Authority under this section does not depend on the President’s declaration of a

national emergency.
62.

For FY 2019, Congress appropriated $517.171 million for counter-narcotics

support, which funds activities under section 284.125 The House understands that most of these
appropriated funds have already been used for authorized purposes.
63.

On March 25, 2019, defendants transferred $1 billion from funds appropriated for

military and reserve personnel costs to the Drug Interdiction and Counterdrug Activities
appropriation fund.126 DOD has announced that those funds will be used, among other things, to
build 57 miles of 18-foot-high pedestrian fencing within the Yuma and El Paso sectors of the
border.127

123

10 U.S.C. § 284(a), (a)(1)(A).
Id. § 284(b), (b)(7).
125
Department of Defense and Labor, Health and Human Services, and Education
Appropriations Act, 2019 and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, div. A,
tit. VI (2018) (to be printed at 132 Stat. 2981, 2997).
126
Office of the Under Secretary of Defense (Comptroller), DOD Serial No. FY 19-01 RA,
Reprogramming Action (Mar. 25, 2019), https://tinyurl.com/March25Transfer.
127
DOD March 25 Press Release, http://tinyurl.com/DODMarch25PressRelease.
124

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64.

Defendants claim that section 8005 of the 2019 Department of Defense

Appropriations Act authorizes such transfers. In pertinent part, section 8005 provides that
[u]pon determination by the Secretary of Defense that such action is
necessary in the national interest, he may, with the approval of the
Office of Management and Budget, transfer not to exceed
$4,000,000,000 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)
between such appropriations or funds or any subdivision thereof, to
be merged with and to be available for the same purposes, and for
the same time period, as the appropriation or fund to which
transferred: Provided, That such authority to transfer may not be
used unless 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.128
65.

When Congress enacted section 8005, it established specific limitations on the

Secretary’s authority to transfer funds, including that (1) the transferred funds cannot be used for
“military construction”; (2) the transferred funds must be used “for higher priority items, based on
unforeseen military requirements”; and (3) the transferred funds may not be used “where the item
for which funds are requested has been denied by the Congress.”129
66.

The already-completed $1 billion transfer from funds appropriated for military and

reserve personnel costs to the Drug Interdiction and Counterdrug Activities appropriation fund,
and the additional transfers that have been announced to construct the border wall, are not
authorized under section 8005 because they do not satisfy the restrictions in that section.
67.

Section 8005 prohibits the transfer of funds for “military construction.”

As

discussed below, the construction of a border wall does not satisfy the definition of “military
construction.” Congress has defined the term “military construction” to include “any construction,

128
129

Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999.
Id.
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development, conversion, or extension of any kind carried out with respect to a military
installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or
construction of a defense access road.”130 Section 2801(c)(4) defines “military installation” as “a
base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a
military department.”131
68.

Although construction of a border wall is not “military construction,” on this point,

the defendants’ statements and actions regarding the transfer and expenditure of funds to build a
wall are contradictory on their face. Section 8005 forbids the transfer of funds for “military
construction,” while section 2808 only permits expenditures for “military construction” – yet,
defendants have asserted that both provisions apply to the construction of a border wall. The
construction of a border wall is not “military construction” as defined by section 2801(a), and thus
this restriction would not bar the transfer of funds under section 8005. The defendants have stated,
however, that the border wall is “military construction” for purposes of reprogramming funds
under section 2808, which only authorizes transfers for such construction. Thus, under defendants’
own logic, section 8005 prohibits the transfer of funds to construct the wall. If the expenditure
were authorized under section 2808 for “military construction,” as the President and the White
House have stated, then it could not be authorized under section 8005, which prohibits transfers
for “military construction.” One or the other of the defendants’ actions is barred by the applicable
statutes.
69.

In any event, the transfer and expenditure of funds to construct a border wall fails

to comply with the requirement in section 8005 that the transfer authority “may not be used unless

130

10 U.S.C. § 2801(a) (defining “‘military construction’ as used in this chapter or any of
provision of law”).
131
Id. § 2801(c)(4).
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for higher priority items, based on unforeseen military requirements, than those for which
originally appropriated.”132 The transfer under section 8005 is not based on any “unforeseen
military requirements.” Congress simply disagreed with President Trump’s assessment that $5
billion for a border wall was necessary. The President has long asserted the need to build a wall,
but he would like to do so faster than Congress has allowed through appropriations: “I could do
the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster.”133
In addition, the wall is addressing what has overwhelmingly been a civilian matter in the United
States. Over the last year, President Trump has ordered a few thousand troops to provide assistance
to DHS and CBP at the southern border.134 These troops are strictly limited to a supporting role.
They do not actively participate in law enforcement efforts, but instead merely provide assistance
to CBP, such as “aerial reconnaissance, ground surveillance, search and rescue support and
medical support.”135 While there are troops on the southern border now, border protection has
been, and continues to be, a civilian agency responsibility and task.136 This is true – as Congress
has made clear – even when “the Attorney General determines that an actual or imminent mass
influx of aliens arriving off the coast of the United States, or near a land border, presents urgent
circumstances requiring an immediate Federal response.”137 In those circumstances, “the Attorney

132

Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999.
Feb. 15 Rose Garden Remarks, http://tinyurl.com/TrumpRoseGardenRemarks.
134
See Jim Garamone, Additional Personnel to Deploy to Southwest Border, U.S. Dep’t of
Def. (Oct. 26, 2018), https://tinyurl.com/BorderTroops.
135
Jim Garamone, DOD Officials Testify on Military Support to Southwest Border, U.S.
Dep’t of Def. (Jan. 29, 2019), http://tinyurl.com/DODJan29Article.
136
See 6 U.S.C. § 202 (assigning DHS responsibility for “[s]ecuring the borders” and
“[c]arrying out the immigration enforcement functions”); id. at § 251 (assigning DHS “all
functions” pertaining to, inter alia, “[t]he Border Patrol program” and “[t]he detention and removal
program”); 8 U.S.C. § 1103(a)(5) (providing the Secretary of Homeland Security “the power and
duty to control and guard the boundaries and borders of the United States against the illegal entry
of aliens”).
137
8 U.S.C. § 1103(a)(10).
133

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General may authorize any State or local law enforcement officer” to perform the immigration
functions of DHS.138
70.

Finally, the President’s request for funds above $1.375 billion to construct a border

wall was “denied by Congress”139 and, therefore, is not authorized under section 8005. Congress
plainly rejected President Trump’s request for $5 billion for a border wall. In fact, President
Trump’s disagreement with Congress on this point precipitated the longest Federal Government
shutdown in history.
71.

Section 8005 of the Department of Defense Appropriations Act does not authorize

the transfer of funds into the Drug Interdiction and Counterdrug Activities appropriation fund to
construct a border wall under section 284. The defendants’ transfer and expenditure of these funds
without a valid Congressional appropriation directly injures the House by usurping its Article I
authority over appropriations.
B. Defendants Are Not Authorized to Spend up to $3.6 Billion on a Border Wall
Under the President’s National Emergency Statutory Authority
72.

The National Emergencies Act (NEA) was enacted in 1976 and provides that

“[w]ith respect to Acts of Congress authorizing the exercise, during the period of a national
emergency, of any special or extraordinary power, the President is authorized to declare such
national emergency.”140 The NEA does not “enlarge or add to Executive power.”141 Rather,
Congress enacted the NEA to accomplish twin goals. First, the NEA “would end the states of
emergency under which the United States has been operating for more than 40 years.”142 Second,

138

Id.
Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999.
140
50 U.S.C. § 1621(a).
141
S. Rep. No. 94-1168, at 3 (1976).
142
Id.
139

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“[i]t would also insure that the extraordinary powers which now reside in the hands of the Chief
Executive . . . could be utilized only when emergencies actually exist, and then, only under
safeguards of congressional review.”143
73.

Under the NEA,
[w]hen the President declares a national emergency, no powers or
authorities made available by statute for use in the event of an
emergency shall be exercised unless and until the President specifies
the provisions of law under which he proposes that he, or other
officers will act. Such specification may be made either in the
declaration of a national emergency, or by one or more
contemporaneous or subsequent Executive orders published in the
Federal Register and transmitted to the Congress.144

74.

Thus, a proclamation issued under the NEA merely triggers the President’s

authority to invoke other existing acts of Congress that authorize “the exercise, during the period
of a national emergency, of any special or extraordinary power.”145
75.

One such statute is 10 U.S.C. § 2808. Section 2808(a) provides that
[i]n the event of a declaration of war or the declaration by the
President of a national emergency in accordance with the National
Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the
armed forces, the Secretary of Defense, without regard to any other
provision of law, may undertake military construction projects, and
may authorize the Secretaries of the military departments to
undertake military construction projects, not otherwise authorized
by law that are necessary to support such use of the armed forces.
Such projects may be undertaken only within the total amount of
funds that have been appropriated for military construction,
including funds appropriated for family housing, that have not been
obligated.146

143

Id.
50 U.S.C. § 1631.
145
Id. § 1621(a).
146
10 U.S.C. § 2808(a).
144

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76.

The term “military construction project” within section 2808(a) is defined to

include “all military construction work . . . necessary to produce a complete and usable facility or
a complete and usable improvement to an existing facility.”147 Section 2801(a) specifies that
“military construction” includes “any construction, development, conversion, or extension of any
kind carried out with respect to a military installation.”148 And section 2801(c)(4) defines “military
installation” to mean “a base, camp, post, station, yard, center, or other activity under the
jurisdiction of the Secretary of a military department.”149
77.

Section 2808(a) therefore establishes three specific limitations on the expenditure

of funds: (1) there must be a national emergency “that requires the use of the armed forces”; (2) the
funding must be spent on a “military construction project”; and (3) the project must be “necessary
to support the use of the armed forces.”150
78.

Section 2808(a) does not authorize defendants’ diversion of military construction

funds to build a border wall because defendants’ construction of a border wall complies with none
of these limitations.
79.

First, there is no national emergency that “requires the use of the armed forces”

with respect to the southern border. Enforcing the laws with respect to our borders is a matter for
DHS and CBP, not the military. Indeed, the Posse Comitatus Act and related provisions prohibit
the military from enforcing the nation’s immigration laws or from directly participating “in a

147

Id. § 2801(b).
Id. § 2801(a).
149
Id. § 2801(c)(4).
150
Id. § 2808(a).
148

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search, seizure, arrest, or other similar activity unless participation in such activity . . . is otherwise
authorized by law.”151
80.

The Immigration and Naturalization Service has historically relied on illegal

crossing apprehensions “as its proxy measure of illegal immigration between ports of entry.”152
Combining several metrics, DHS recently estimated “a 91 percent decline” in illegal crossings
between 2000 and 2016.153 The number of southern border apprehensions by CBP officers has
declined, from their peak at 1,643,697 in 2000 to 396,579 in 2018.154
81.

Nor do the available data indicate that any threat potentially associated with illegal

crossings has recently increased. On the contrary, the amount of drugs seized by CBP between
ports of entry steadily decreased from 2014 to 2018: CBP seized approximately 1,931,635 pounds
of cocaine, heroin, marijuana, methamphetamine, and fentanyl combined in 2014; by FY 2018 (the
latest year for which CBP has published complete data), total reported narcotics seizures between
ports of entry were 415,354 pounds – the lowest level in five years.155 CBP data further indicate
that the vast majority of narcotics are smuggled at ports of entry, not between: in FY 2018, of the
total amount seized, approximately 88% of cocaine, 90% of heroin, 40% of marijuana, 83% of

151

10 U.S.C. § 275; see Posse Comitatus Act, 18 U.S.C. § 1385 (imposing criminal
penalties for the willful use of any part of the Army or the Air Force “as a posse comitatus or
otherwise to execute the laws” unless “expressly authorized by the Constitution or Act of
Congress”).
152
Efforts by DHS to Estimate Southwest Border Security Between Ports of Entry, U.S.
Dep’t
of
Homeland
Security
Off.
of
Immigr.
Stat.,
1
(Sept.
2017),
http://tinyurl.com/DHSOISReport.
153
Id. at 17.
154
Southwest Border Sectors: Total Illegal Alien Apprehensions by Fiscal Year, U.S.
Customs & Border Protection (Mar. 2019), https://tinyurl.com/CBPSWBorderApprehensions.
155
See CBP Enforcement Statistics FY 2019, U.S. Customs & Border Protection,
https://tinyurl.com/CBPFY19Stats (last visited Apr. 3, 2019) (showing the amount of each drug
seized annually at and between ports of entry from 2014 to 2018).
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methamphetamine, and 82% of fentanyl were seized at ports of entry.156 In addition, the evidence
suggests that undocumented immigrants commit crimes at roughly half the rate of native-born
Americans.157
82.

The primary change in recent years relates not to the number of individuals who

enter the United States illegally or any potential threat they might pose, but instead to the profile
of those who come. DHS data show that a person who enters today is more likely to come in a
family unit and claim asylum under law: “Before 2011, over 90% of arriving aliens were single
adult males,” whereas “[t]oday 40% are families and children.”158 Additionally, “[b]efore 2009,
90% of arriving aliens were Mexican nationals,” whereas “[t]oday nearly 50% are Central
Americans.”159 And “[b]efore 2013, approximately 1% of arriving aliens claimed credible fear
(asylum),” whereas “[n]ow 1 out of 10 claim credible fear.”160 This development has been
apparent for years.161 In response, Congress has, among other things, increased CBP’s budget to
address the needs of these families, including by providing for family case management,
supporting alternatives to detention, and increasing the number of immigration judges.162

156

See id. (percentages calculated from CBP data).
See Alex Nowrasteh, Cato Inst., Research & Policy Brief No. 4, Criminal Immigrants
in Texas (2018), http://tinyurl.com/CatoBrief.
158
Press Release, U.S. Dep’t of Homeland Security, To Secure the Border and Make
America Safe Again, We Need to Deploy the National Guard (April 4, 2018),
http://tinyurl.com/DHSSecureBorderPressRelease.
159
Id.
160
Id.
161
See, e.g., Southwest Border Migration FY2017, U.S. Customs & Border Protection,
(Dec. 15, 2017), https://tinyurl.com/CBPFY17SWStats.
162
Compare Pub. L. No. 116-6 (FY 2019 CBP appropriations), with Pub. L. No. 115-141
(FY 2018 CBP appropriations); see generally H. Rep. No. 116-9, at 478-84 (2019) (explaining the
2019 increase in funds for family case management and directing ICE “to prioritize the use of
ATD [alternatives to detention] programs for families, including family case management, for
which the bill provides significant additional resources”).
157

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83.

Second, the construction of a border wall is not a military construction project

under section 2801(b) because it does not satisfy the definition of “military construction” in section
2801(a).

The proposed construction is not being “carried out with respect to a military

installation,”163 i.e., “a base, camp, post, station, yard, center, or other activity under the
jurisdiction of the Secretary of a military department.”164 The southern border is not a “base, camp,
post, station, yard, [or] center,” nor is it some “other activity under the jurisdiction of the Secretary
of a military department.”165
84.

Third, a border wall is not “necessary to support [the] use of the armed forces” at

the southern border.166 As discussed, over the last year, President Trump has ordered a few
thousand troops to provide assistance to DHS and CBP at the southern border.167 These troops are
limited to a supporting role. They do not actively participate in law enforcement efforts, but
instead merely provide assistance to CBP, such as “aerial reconnaissance, ground surveillance,
search and rescue support and medical support.”168 A border wall is not “necessary” to support
the use of the armed forces in the provision of the assistance activities they are authorized to
conduct.
85.

The construction of a southern border wall stands in marked contrast to other

military projects that have been considered under section 2808. The declaration of an emergency
has been used to invoke section 2808 spending authority on only two occasions. In only one

163

10 U.S.C. § 2801(a).
Id. § 2801(c)(4).
165
See id.
166
Id. § 2808(a).
167
See Jim Garamone, Additional Personnel to Deploy to Southwest Border, U.S. Dep’t of
Def. (Oct. 26, 2018), https://tinyurl.com/BorderTroops.
168
Jim Garamone, DOD Officials Testify on Military Support to Southwest Border, U.S.
Dep’t of Def. (Jan. 29, 2019), http://tinyurl.com/DODJan29Article.
164

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instance – involving the national emergency declared after the September 11 attacks – were section
2808 funds actually expended.
86.

In August 1990, President George H.W. Bush, declared a national emergency in

response to “the threat to the national security . . . of the United States caused by the invasion of
Kuwait by Iraq.”169 A few months later, President Bush invoked “emergency construction
authority” under section 2808.170 Army officials determined that $20.5 million was needed to
construct new systems and facilities at the U.S. Army base at Doha to support the Army’s efforts
in Kuwait.171 Ultimately, however, the Kuwaiti government paid for the cost of the construction,
and the Army never made use of the emergency construction authority.172
87.

Shortly after the terrorist attacks of September 11, 2001, President George W. Bush

declared a national emergency in response to the “continuing and immediate threat of further
[terrorist] attacks on the United States.”173 A few months later, President Bush invoked emergency
construction authority under section 2808.174 In the end, 18 projects totaling $1.44 billion were
funded using emergency construction authority under section 2808.175 These projects ranged from
$6.3 million in January 2012 for aircraft parking, taxiway, and shelter at Camp Lemonnier,

169

Exec. Order No. 12,734, 55 Fed. Reg. 48,099 (Nov. 14, 1990); see Exec. Order No.
12,722, 55 Fed. Reg. 31,803 (Aug. 2, 1990).
170
Exec. Order No. 12,734.
171
See Janet A. McDonnell, After Desert Storm 221-22 (Dep’t of the Army 1999),
https://tinyurl.com/McDonnellAfterDesertStorm.
172
See id. at 225 (citing Memorandum from Col. Ian T. Patterson to James DeWire, Kuwait
Reconstruction: Doha (Sept. 5, 1991)).
173
Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sept. 14, 2001); see also Exec. Notice,
Continuation of the National Emergency with Respect to Certain Terrorist Attacks, 83 Fed. Reg.
46,067 (Sept. 12, 2002).
174
See Exec. Order No. 13,235, 66 Fed. Reg. 58,343 (Nov. 16, 2001).
175
Michael J. Vassalotti & Brendan W. McGarry, Cong. Research Serv., IN11017, Military
Construction Funding in the Event of a National Emergency 3 (2019), https://tinyurl.com/CRSMilConFunding.
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Djibouti, to $228 million in June 2013 for a task force compound at Camp Lemonnier.176 All but
one of the projects were overseas; the exception was a project relating to security measures for
weapons of mass destruction in five U.S. states.177
88.

Defendants’ expenditure of funds in contravention of the specific limitations of

section 2808 directly injures the House by usurping its Article I authority over appropriations.
CLAIMS FOR RELIEF
COUNT I
(Use of Unappropriated Funds to Construct Border Wall Under 10 U.S.C. § 284
Violates Article I, § 9, Clause 7 of the Constitution)
89.

The House incorporates by reference and re-alleges the preceding paragraphs, as if

set forth fully herein.
90.

Defendants may not “draw[] [Money] from the Treasury, but in Consequence of

Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7.
91.

Congress has not appropriated $2.5 billion in funds for the purposes authorized by

10 U.S.C. § 284 to construct a wall along the southern border.
92.

Section 8005 of the 2019 Department of Defense Appropriations Act does not

authorize defendants to transfer funds that Congress has appropriated for other purposes to the
section 284 counter-narcotics account for purposes of constructing a border wall.
93.

Section 8005 establishes several specific limitations on the authority to transfer

funds, including (1) that the transferred funds cannot be used for “military construction”; (2) the
transferred funds must be used “for higher priority items, based on unforeseen military

176
177

See id.
See id. at 2.
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requirements”; and (3) the transferred funds may be used “in no case where the item for which
funds are requested has been denied by the Congress.”
94.

Section 8005 does not authorize defendants to transfer funds to be expended under

section 284 for purposes of constructing a border wall because the transfer violates multiple
limitations on the authority set forth in section 8005.
95.

Defendants claim that the border wall is a “military construction project” for

purposes of section 2808. Construction of a border wall is not “military construction.” If,
however, defendants are correct that the construction of the border wall satisfies the section 2808
requirement that it be a “military construction project,” then the transfer is prohibited for that
reason under section 8005.
96.

Defendants’ purported need to construct a border wall is not based on an

“unforeseen military requirement[].”
97.

The President’s request for funds above $1.375 billion to construct a border wall

was “denied by Congress.”
98.

Section 8005 therefore does not authorize defendants to transfer up to $2.5 billion

to be expended under section 284 authority to construct a border wall. Defendants have already
transferred $1 billion to the Drug Interdiction and Counterdrug Activities fund in violation of
Congressional appropriations.
99.

The House has been injured, and will continue to be injured, by defendants’

unconstitutional actions, which usurp the House’s authority over appropriations.
100.

For the reasons stated herein, the House is entitled to a declaration that defendants’

transfer of funds and expenditure of up to $2.5 billion to construct a border wall under section 284
violate Article I, section 9, clause 7 of the Constitution, and the Court should enjoin defendants

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from transferring any funds under section 8005, or expending funds in excess of Congressional
appropriations, to build a border wall under section 284.
COUNT II
(Use of Unappropriated Funds to Construct Border Wall Under 10 U.S.C. § 2808
Violates Article I, § 9, Clause 7 of the Constitution)
101.

The House incorporates by reference and re-alleges the preceding paragraphs, as if

set forth fully herein.
102.

Defendants may not “draw[] [Money] from the Treasury, but in Consequence of

Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7.
103.

10 U.S.C. § 2808 does not authorize defendants to spend up to $3.6 billion to

construct a wall along the southern border.
104.

Even where the President has declared a national emergency, section 2808 sets forth

specific limitations on the expenditure of funds, including that (1) there must be a national
emergency “that requires the use of the armed forces,” (2) the funding must be spent on a “military
construction project,” and (3) the project must be “necessary to support the use of the armed
forces.”
105.

Defendants’ expenditure of section 2808(a) funds on a border wall satisfies none of

these limitations.
106.

The asserted national emergency at the southern border does not “require[] the use

of the armed forces.”
107.

The construction of a border wall along the southern border is not a “military

construction project.”
108.

The construction of a border wall along the southern border is not “necessary to

support the use of the armed forces.”

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109.

Defendants’ expenditure of up to $3.6 billion on the construction of a border wall

under section 2808 violates Article I, section 9, clause 7 of the Constitution.
110.

The House has been injured, and will continue to be injured, by defendants’

unconstitutional actions, which usurp the House’s appropriations authority and mean that the
relevant funds are no longer available to be spent on the purposes for which they were
appropriated.
111.

For the reasons stated herein, the House is entitled to a declaration that defendants’

expenditure of funds on a border wall pursuant to 10 U.S.C. § 2808 violates Article I, section 9,
clause 7 of the Constitution, and the Court should enjoin defendants from expending any funds
pursuant to section 2808 to build a border wall.
COUNT III
(Use of Unappropriated Funds to Construct Border Wall Under 10 U.S.C. § 284
Violates the Administrative Procedure Act)
112.

The House incorporates by reference and re-alleges the preceding paragraphs, as if

set forth fully herein.
113.

Defendants’ transfer of $1 billion on March 25, 2019 under section 8005 of the

2019 Department of Defense Appropriations Act for purposes of constructing a border wall under
10 U.S.C. § 284 constitutes “agency action” and/or “final agency action” within the meaning of
the Administrative Procedure Act (APA), 5 U.S.C. §§ 500 et seq.
114.

Defendants’ transfer of $1 billion on March 25, 2019 under section 8005 of the

2019 Department of Defense Appropriations Act for purposes of constructing a border wall under
10 U.S.C. § 284 is “not in accordance with law” within the meaning of APA § 706(2)(A).
115.

Defendants’ transfer of $1 billion on March 25, 2019 under section 8005 of the

2019 Department of Defense Appropriations Act for purposes of constructing a border wall under

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10 U.S.C. § 284 is “contrary to constitutional right, power, privilege, or immunity” within the
meaning of APA § 706(2)(B).
116.

Defendants’ transfer of $1 billion on March 25, 2019 under section 8005 of the

2019 Department of Defense Appropriations Act for purposes of constructing a border wall under
10 U.S.C. § 284 is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right” within the meaning of APA § 706(2)(C).
117.

Accordingly, defendants’ transfer of $1 billion on March 25, 2019 under section

8005 of the 2019 Department of Defense Appropriations Act for purposes of constructing a border
wall under 10 U.S.C. § 284 violates the APA, in particular APA § 706(2)(A), (B), and (C).
118.

The House has been injured, and will continue to be injured, by defendants’

unlawful actions, which, among other things, usurp the House’s legislative authority.
119.

The House has no adequate or available administrative remedy, and/or any effort

to obtain an administrative remedy would be futile.
120.

For the reasons stated herein, the House is entitled to a declaration that defendants’

transfer of $1 billion on March 25, 2019 and any subsequent transfers up to $2.5 billion under
section 8005 of the 2019 Department of Defense Appropriations Act for purposes of constructing
a border wall under 10 U.S.C. § 284 violate the APA, and the Court should enjoin defendants from
expending the transferred funds under section 284 in excess of Congressional appropriations or
transferring any additional money under section 8005 for purposes of constructing a border wall
under 10 U.S.C. § 284.
PRAYER FOR RELIEF
WHEREFORE, the House respectfully prays that this Court:
A.

Enter declaratory relief as follows:
(i)

With respect to Count I, declare that defendants’ transfer of $1 billion on
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March 25, 2019 and any subsequent transfers under section 8005 of the
2019 Department of Defense Appropriations Act for purposes of
constructing a border wall under 10 U.S.C. § 284 or the expenditure of
funds under section 284 in excess of Congressional appropriations violates
Article I, section 9, clause 7 of the Constitution;
(ii)

With respect to Count II, declare that defendants’ expenditure of funds on a
border wall pursuant to 10 U.S.C. § 2808 violates Article I, section 9, clause
7 of the Constitution; and

(iii)

With respect to Count III, declare that defendants’ transfer of $1 billion on
March 25, 2019 and any subsequent transfers under section 8005 of the
2019 Department of Defense Appropriations Act and any expenditure of
those funds for purposes of constructing a border wall under 10 U.S.C.
§ 284 violates the APA.

B.

Enter injunctive relief as follows:
(i)

With respect to Count I, enjoin defendants from transferring any funds
under section 8005 of the 2019 Department of Defense Appropriations Act
for purposes of constructing a border wall under 10 U.S.C. § 284 and
expending funds under section 284 in excess of Congressional
appropriations, including the $1 billion transferred on March 25, 2019;

(ii)

With respect to Count II, enjoin defendants from expending any funds
pursuant to 10 U.S.C. § 2808 to build a border wall; and

(iii)

With respect to Count III, enjoin defendants from expending the transferred
funds under 10 U.S.C. § 284 in excess of Congressional appropriations or

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transferring any additional money under section 8005 for purposes of
constructing a border wall under section 284.
C.

Grant the House such other and further relief as may be just and proper under the
circumstances.
Respectfully submitted,
/s/ Douglas N. Letter
Douglas N. Letter (D.C. Bar No. 253492),
General Counsel
Todd B. Tatelman (VA Bar No. 66008),
Deputy General Counsel
Megan Barbero (MA Bar No. 668854),
Associate General Counsel
Kristin A. Shapiro (D.C. Bar No. 1007010),
Assistant General Counsel
Brooks M. Hanner (D.C. Bar No. 1005346),
Assistant General Counsel
Sarah E. Clouse (MA Bar No. 688187),
Attorney
OFFICE OF GENERAL COUNSEL*
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, D.C. 20515
Telephone: (202) 225-9700
douglas.letter@mail.house.gov
Counsel for Plaintiff the United States House of
Representatives

April 5, 2019

*

Attorneys for the Office of General Counsel for the U.S. House of Representatives are
“entitled, for the purpose of performing the counsel’s functions, to enter an appearance in any
proceeding before any court of the United States or of any State or political subdivision thereof
without compliance with any requirements for admission to practice before such court.” 2 U.S.C.
§ 5571.
45