Case 3:19-cv-00066-DB Document 67 Filed 05/09/19 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

EL PASO COUNTY, TEXAS, and
BORDER NETWORK FOR HUMAN RIGHTS,

Plaintiffs,
Civil Action No. 3:19-cv-66-DB

V.

DONALD J. TRUMP, in his official capacity as
President of the United States of America,
PATRICK M. SHANAHAN, in his official capacity as
Acting Secretary of Defense,
KEVIN MCALEENAN, in his official capacity as Acting
Secretary of Homeland Security,
TODD D. SEMONITE, in his official capacity as
Commanding General,
United States Army Corps of Engineers

DAVID BERNHARDT, in his official capacity as
Acting Secretary of the Interior, and
STEVEN T. MNUCHIN, in his official capacity as
Secretary of the Treasury,

Defendants.

BRIEF OF IRAQ AND AFGHANISTAN VETERANS OF AMERICA
AS AMICUS CURIAE
Lindsay L. Rodman
Connecticut SBN: 427648
Counsel & Director of Legal Strategy
Iraq and Afghanistan Veterans of America
85 Broad Street
New York, NY 10004
212-982-9699
iindsay(diava.org

 Case 3:19-cv-00066-DB Document 67 Filed 05/09/19 Page 2 of 11

TABLE OF CONTENTS

TABLEOF CONTENTS ............................................................................................................. 2
TABLEOF AUTHORITIES .......................................................................................................
INTERESTOF AMICUS CURIAE ............................................................................................
ARGUMENT

3
5

 Case 3:19-cv-00066-DB Document 67 Filed 05/09/19 Page 3 of 11

TABLE OF AUTHORITIES

Statutes
5

U.S.C.

§

3331 ............................................................................................................................... 5

10U.S.C.284 ............................................................................................................................... 7
10U.S.C.502 ............................................................................................................................... 5
10 u.s.c. § 2808 ............................................................................................................................. 7

10U.S.C.12302 ........................................................................................................................... 7
Other Authorities
Andrew Taylor and Lisa Mascaro, Military may tap military pay, pensions for border
wall, Associated Press, March 7, 2019,
https :/!www.apnews.com/ba6c2bc 1 fa024393 801131 bfbaa9cd89
Department of Defense Directive 1344.10, Political Activities by Members of the Armed
Forces, February 19, 2008,
https ://www.esd.whs.mil/Portals/54!Documents/DD/issuances/dodd/1 3441 Op.pdf

Department of Defense, DoD Authorizes Support to Counter Drug Border Security,
March 25, 2019,
https ://dod.defense.gov/News/News-Releases/News-ReleaseView/Article! 1 795239/dod-authorizes-support-to-counter-drug-border-security! ....................

8

Department of Defense, Fact Sheet on Section 2808 Funding Pool,
https ://assets.documentcloud.org/documents!5774495/2808-Funding-Pool.pdf.......................

8

House Committee on Appropriations, Visclosky Denies Request to Use Defense Funds for
Unauthorized Border Wall, March 27, 2019,
https ://appropriations.house.gov/news/press-releases/visclosky-denies-request-to-usedefense-funds-for-unauthorized-border-wall .............................................................................

8

Leo Shane, Trump to boost deployments at US. southern border again, Military Times,
April 10,2019,
https :llwww.militarytimes.com!news!pentagon-congress!20 19/04/10/trump-againlooks-to-boost-troop-deployments-at-us-southern-border! ........................................................ 9

National Emergencies Act, Pub. L. No. 94-412 (codified at 10U.S.C.

§ 1601

et seq.) ................. 7

Office of Management and Budget, Budget of the US. Government, Efficient, Effective,
Accountable; An American Budget (February 2018),
https :!!www.govinfo .gov/content!pkg/BUDGET-20 1 9-BUD/pdf/BUDGET-20 19BUD.pdf

 Case 3:19-cv-00066-DB Document 67 Filed 05/09/19 Page 4 of 11

Office of Personnel Management, Employment of Veterans in the Federal Executive
Branch Fiscal Year 2016 (June 2017),
https:!/www.fedshirevets.gov/veterans-council!veteran-employmentdata!employment-of-veterans-in-the-federal-executive-branch-fy2O1 6.pdf .......................... 6, 7

President of the United States, Declaring a National Emergency Concerning the Southern
Border of the United States (February 15, 2019),
https :/!www.whitehouse.gov/presidential-actions/presidential-proclamation-declaringnational-emergency-concerning-southern-border-united-states! ................................................ 7
Tara Copp, Pentagon chief Military housing unlikely to be diverted to border wall,
Military Times, February 16, 2019,
https ://www.militarytimes.com!news/your-military/20 19/02/16/pentagon-chiefmilitary-housing-money-likely-safe-from-border-wall-use! ...................................................... 9
U.S. Department of Homeland Security, US. Coast Guard Overview (2016),
https://www.work.uscg.mil/Portals/6/Documents/PDF/USCG_Overview.pdf7ver2O 1
6-10-21-114442-890 .................................................................................................................. 7

White House Fact Sheets, President Donald J Trump 's Border Security Victory,
February 15, 2019,
https ://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-bordersecurity-victory! ......................................................................................................................... 7

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 Case 3:19-cv-00066-DB Document 67 Filed 05/09/19 Page 5 of 11

INTEREST OF AMICUS CURIAE
Iraq and Afghanistan Veterans of America (JAVA) submits this brief as amicus on behalf

of neither party. JAVA is the leading non-profit devoted to the interests of the post-9/1 1 generation
of veterans, with 425,000 members comprised mostly of veterans of the wars in Iraq and
Afghanistan. lAVA's membership also includes active duty service members, military spouses
and dependents, and other veterans who served domestically or during other conflicts.

Military service is about answering the call to protect and defend the Constitution of the

United States. Military service members do not choose their assignments and honorable service
is about performing duties regardless of politics. As long as their orders are lawful, service

members are compelled to obey them.
JAVA therefore will not opine about the national policy to build a border wall, the existence

of a national emergency, or the value of deploying military service members to the Southern
Border. Instead, JAVA writes to provide their broad perspective on the potential impact of relevant

legal decisions on service members, veterans and their families.

ARGUMENT
Members of the U.S. military swear an oath to support and defend the Constitution of the

United States.' As they were obligated to follow the Constitution and the laws during their military
service, service members and veterans expect the government to do the same. While on active

110 U.S.C. § 502, the enlistment oath, is as follows: "I, _____, do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and
allegiance to the same; and that Twill obey the orders of the President ofthe United States and the orders of the officers
appointed over me, according to regulations and the Uniform code of Military Justice. So help me God," 5 U.S.C. §
3331, the officer's oath, is as follows: "I, AB, do solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance
to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will
well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

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 Case 3:19-cv-00066-DB Document 67 Filed 05/09/19 Page 6 of 11

duty, military service members are also strictly required to avoid partisan political activity.2 This

notion of the military being apolitical yet staunchly committed to defending the Constitution
carries over to the veterans' community. While lAVA will not opine about politics or specific
government policy decisions, the service members and veterans they represent believe strongly in

the separation of powers, and sound government decision-making regardless of politics.
Regardless of the merits of this Administration's policies at the Southern Border and

related legal decisions, they must not come at the expense of U.S. service members, veterans, or

their families. Over the course of the legal and political decision-making related to the border wall
thus far, service members, veterans and their families have been disproportionately negatively
impacted. Current and future missions at the border and the reprogramming of Department of
Defense funding for the border wall itself have a predictable likelihood of also disproportionately
negatively impacting this important cohort of Americans. The cost of these decisions must not be
unfairly borne by our American heroes.
In the President's Fiscal Year 2019 Budget Proposal, the Administration requested $18

billion to fund a border wall.3 Congressional leadership did not support funding at those levels, if

at all. The ensuing political negotiation resulted in the longest government shutdown in history,
which lasted from December 22, 2018 to January 25, 2019.
The government shutdown had grave impacts on American veterans and active duty

members of the U.S. Coast Guard. One third of the federal workforce are

veterans.4

Of those

Department of Defense Directive 1344.10, Political Activities by Members of the Armed Forces, February 19,
2008, https:/!www.esd.whs.milfPortals/S4lDocumentsfDD/issuances!dodd/1 3441 Op.pdf.
Office of Management and Budget, Budget of the US. Government, Efficient, Effective, Accountable,' An American
Budget (February 201 8), https://www.govinfo.gov/content/pkgIBUDGET-20 1 9-BUD/pdfYBUDGET-20 19BUD.pdf.
Office of Personnel Management, Employment of Veterans in the Federal Executive Branch Fiscal Year 2016
(June 2017), https ://www.fedshirevets .goy/veterans-council/veteran-employment-datalemployment-of-veterans-inthe-federal-executive-branch-fy2O16.pdf.
2

 Case 3:19-cv-00066-DB Document 67 Filed 05/09/19 Page 7 of 11

veterans, about 155,000 veterans were employed by agencies directly affected by the government
shutdown.5

They missed multiple paychecks creating financial instability for themselves and their

families. The entire active duty Coast Guard (about 41,000 men and women)6 missed their

paychecks during this time as well. JAVA's own masters-level case managers

the Rapid

experienced a massive influx of interest in our services

Response Referral Program (RRRP)7

prompted by shutdown-based outreach during this

time.8

Resolution of the government shutdown and ensuing negotiations between the President
and Congressional leadership during early February 2019 did not result in significant border wall

funding. On February 15, 2019, President Donald J. Trump declared a "national emergency" at
the Southern

Border.9

In his declaration under the National Emergencies Act,'° President Trump

activated his authority to divert military construction funding under 10 U.S.C.

mobilize the reserves under 10 U.S.C.

§

§

2808 and to

12302. President Trump also directed the Department to

reprogram $2.5 billion for Support for Counterdrug Activities under 10 U.S.C.

§

284.11

Use of

each of these authorities has the potential to adversely impact military service members, veterans,
and their families; such impact must be avoided.

6

See id.
U.S. Department of Homeland Security, US. Coast Guard Overview (2016),

hups://www.work.uscg.milorta1s/6/Documents!PDF/USCGOverview.pdf'?ver20 16-10-21-114442-890.
information available at http://iava.org/rrrp.
Data on file with Iraq and Afghanistan Veterans of America Chief Services Officer, Hannah Sinoway. She can be
reached through JAVA Counsel.
President of the United States, Declaring a National Emergency Concerning the Southern Border of the United
States (February 15, 2019), https://www,whitehouse.gov/presidential-actions!presidential-Droclamation-declaringnational-emergency-concerning-southern-border-united-states!.
10National Emergencies Act, Pub. L. No. 94-412 (codified at 10 U.S.C. § 1601 et seq.).
White House Fact Sheets, President DonaldJ Trump's Border Security Victory, February 15, 2019,
hftps://www.whitehouse.gov/briefins-statements/president-donald-i-trumps-border-security-victory/.

7

 Case 3:19-cv-00066-DB Document 67 Filed 05/09/19 Page 8 of 11

I.

SOURCES OF BORDER WALL FUNDING MAY TAKE AWAY RESOURCES
FROM MILITARY SERVICE MEMBERS, VETERANS AND THEIR
FAMILIES
On March 25, the Department of Defense announced its plan to spend $1 billion on border

wall construction.12 The funding came from reprogrammed money from 2019 Military Personnel,

Army and Army Reserve accounts.'3 For lAVA's members, regardless of their position in the

border wall, diversion of funding that adversely affects Army service members or veterans' pay,
pensions, or other benefits would be unacceptable. According to media reports, the identified
funds in this specific case appear to be unused money related to the Army's missed recruiting

targets and lower-than-expected enrollment in the new blended retirement system. 14
The other major potential source of funding identified for the border wall is military

construction. In March, the Department of Defense (DoD) released a fact sheet to clarify guiding

principles and potential sources of reprogrammed money for the border walL'5 Excluded from the
list provided on the DoD fact sheet are military housing projects, which could have directly

impacted military families.'6 Included on the list, however, are numerous projects that have the
potential to impact quality of work and quality of life for military service members and their
families. Without knowing more about which projects would be canceled in favor of the border
wall, it is impossible to state whether military service members or their families might be adversely

affected.

12
Department of Defense, DoD Authorizes Support to Counter Drug Border Security, March 25, 2019,
https://dod.defense.gov!News/News-Releases/News-Release-View/Article!l 795239/dod-authorizes-support-tocounter-drug-border-security!.
13
House Committee on Appropriations, Visclosky Denies Request to Use Defense Funds for Unauthorized Border
Wall, March 27, 2019, https ://appropriations.house.gov/news/press-releases/visclosky-denies-request-to-use-defensefunds-for-unauthorized-border-wall.
14
Taylor and Lisa Mascaro, Military may tap military pay, pensions for border wall, Associated Press, March
7, 2019, https://www.apnews.com/ba6c2bc 1 fa024393 80113 lbfbaa9cd89.
15
2808
Funding
Pool,
Department
of
Defense,
Fact
Sheet
on
Section
https ://assets.documentc1oud.org/documents/5774495/2808-Fundin-Pool.pdf.

161d

8

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At this point, it appears that no funding has yet been reprogrammed directly affecting
military service members, veterans, or their families. However, it is unclear where future funding

for the border wall may come from. To date, the Administration has consistently distinguished
away funding sources that might affect military families directly, signaling that they may continue
to help and support service members and their families.'7

Nevertheless, any potential

reprogramming of funding that would negatively impact military service members, veterans, or

their families due to the diversion of pay and pension funding or canceled military construction
projects would be unjust. These Americans have been asked to sacrifice so much for their

country's policies and laws; burdens associated with national policy and law must be shared fairlyand more equally throughout the American populace.

II.

ALL DEPLOYMENTS COME WITH SACRIFICE AND COST FOR
MILITARY SERVICE MEMBERS, VETERANS AND THEIR FAMILIES
Currently there are about 5,000 service members deployed to the Southern border.'8 The

mission began in October and the operation will continue until at least the fall,'9 likely requiring
many of these service members to be deployed for six months or more.
Deployment to any military operation, regardless whether it is domestic or international,

requires significant sacrifice and places strain on military service members and their families. Our
service members endure these hardships nobly and willingly

it is what they signed up to do.

They also do so with the implicit American promise that as veterans, they will be cared for by the

government for injuries and other harms to them that result from their military service.

See, e.g., Tara Copp, Pentagon chief Military housing unlikely to be diverted to border wall, Military Times,
February 16, 2019, https://www.militarytimes.com/news/your-military/20 19/02/1 6/entagon-chief-mi1itary-housingmoney-likely-safe-from-border-wall-use!.
' Leo Shane, Trump to boost deployments at US. southern border again, Military Times, April 10, 2019,
https:/!www.militarytimes.com!news/pentagon-congress/20 19/04/1 0/trump-again-Iooks-to-boost-troopdeployments-at-us-southern-border!.
17

191d.

rj

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As with any deployment under any Administration, the Department of Defense, the

Department of Veterans Affairs, and other supporting federal departments and agencies, must be

prepared to care for service members and veterans who have served on the border. Any injuries
or other harms to them or their families, foreseen or unforeseen, that result from this usage of

military personnel will necessarily become an obligation of the government and the American
people.
We cannot know now the full extent of the cost to military personnel and their families of

their deployments to the border, but that does not mean that future planning for their care should
not commence immediately. Potential sources of harm include: any moral injury or mental health
consequence of the mission, service-connected physical injuries, financial hardship and other
strains on families and relationships, and other unanticipated events.
The decision of this Court may have an outsized impact on the lives of military service

members, veterans and their families. Our American heroes, who swear an oath to support and

defend the Constitution of the United States, dutifully execute on all lawful orders. In response,
they are owed a promise from the American people that they will be cared for and remembered for
the sacrifices they endure in service to our country. All efforts should be made to prevent the legal

and policy decisions made regarding the border wall and the national emergency declaration from

negatively impacting U.S. service members, veterans and their families. Their interests must be

considered and kept in mind as decisions are made that will necessarily affect their futures.

CONCLUSION
For these reasons, amicus respectfully submits this brief for the Court's consideration.

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 Case 3:19-cv-00066-DB Document 67 Filed 05/09/19 Page 11 of 11

Respectfully submitted,

Is/Lindsay L. Rodman
Lindsay L. Rodman
Connecticut SBN: 427648
Iraq and Afghanistan Veterans of America
85 Broad Street
New York, NY 10004
212-982-9699
I indsay(a)iava .org
Counselfor Amicus Curiae
Iraq and Afghanistan Veterans ofAmerica

Is! Clark Richards
Clark Richards
Texas State Bar No. 90001613
crichards(ä),rrsfirm.com
Richards Rodriguez & Skeith, LLP
816 Congress Aye, Suite 1200
Austin, TX 78701
Tel: 512-476-0005
Local Counselfor Amicus Curiae
Iraq and Afghanistan Veterans ofAmerica

CERTIFICATE OF SERVICE
I hereby certify that on this the

3'' day of May 2019, a true and correct copy of the foregoing

document was filed with the U.S. District Court for the Western District of Texas by using the
CMIECF system, which will send notifications of such filing to all CMIECF counsel of record.

/s/ Clark Richards
CLARK RICHARDS

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