Case 3:19-cv-00066-DB Document 101 Filed 07/10/19 Page 1 of 78

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

EL PASO COUNTY, TEXAS
500 E. San Antonio
El Paso, TX 79901,
BORDER NETWORK FOR HUMAN RIGHTS
2115 N. Piedras St
El Paso, TX 79930,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as
President of the United States of America
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500,
MARK T. ESPER, 1 in his official capacity as Acting
Secretary of Defense
1000 Defense Pentagon
Washington, D.C. 20301,
KEVIN McALEENAN, in his official capacity as
Acting Secretary of Homeland Security
245 Murray Lane, SW, Mail Stop 0485
Washington, DC 20528-0485,
TODD T. SEMONITE, in his official capacity as
Commanding General
United States Army Corps of Engineers
441 G Street, NW
Washington, DC 20314-1000,
DAVID BERNHARDT, in his official capacity as
Acting Secretary of the Interior
1849 C Street, NW
Washington, DC 20240,
Defendants.

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Civil Action No. 3:19-cv-66-DB
PLAINTIFFS’ REPLY
MEMORANDUM IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT OR, IN THE
ALTERNATIVE, A
PRELIMINARY INJUNCTION,
AND OPPOSITION TO THE
GOVERNMENT’S CROSSMOTION TO DISMISS OR
FOR SUMMARY JUDGMENT

Since the filing of Plaintiffs’ amended complaint, Patrick M. Shanahan left his position as Acting Secretary of
Defense. Pursuant to Federal Rule of Civil Procedure 25(d), this brief substitutes his successor as a defendant.

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TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................... 1
ARGUMENT ................................................................................................................................. 2
I.

PLAINTIFFS HAVE STANDING ........................................................................ 2
A.

II.

1.

Reputational Harm ......................................................................... 2

2.

Pecuniary Injuries .......................................................................... 5

B.

BNHR Has Standing .................................................................................. 7

C.

Plaintiffs Have Standing To Challenge Wall Construction Carried
Out With § 2808 Funds ............................................................................ 11

D.

Plaintiffs Have Standing To Challenge DOD’s Reprogramming Of
Funds Under § 8005 ................................................................................. 13

THE PRESIDENT’S PROCLAMATION IS UNLAWFUL ............................... 15
A.

The Proclamation Exceeds the President’s Authority Under the
NEA ......................................................................................................... 15

B.

If Read To Authorize the Proclamation, the NEA Is
Unconstitutional ....................................................................................... 20

C.

This Court Has the Power To Review Plaintiffs’ NEA Claim ................ 26

D.
III.

El Paso County Has Standing .................................................................... 2

1.

The NEA Does Not Preclude Judicial Review of
Emergency Declarations .............................................................. 26

2.

Challenges To NEA Emergency Declarations Do Not
Present Nonjusticiable Political Questions .................................. 30

3.

Even If the President’s Emergency Declaration Were
Nonjusticiable, Plaintiffs’ Nondelegation Challenge Is
Reviewable................................................................................... 33

There Is No Basis For Dismissing the President as a Defendant ............. 34

DEFENDANTS’ USE OF FUNDS TO BUILD A BORDER WALL
VIOLATES THE APPROPRIATIONS CLAUSE .............................................. 36
A.

The CAA Precludes Defendants’ Wall-Funding Plan ............................. 36

B.

Section 2808 Does Not Authorize Border-Wall Expenditures ................ 39

C.

Section 284 Does Not Authorize Border-Wall Expenditures .................. 45

D.

Section 8005 Does Not Authorize DOD’s Reprogramming of
Funds ........................................................................................................ 47

E.

Plaintiffs’ Appropriations Clause Claims Are Valid ............................... 53

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TABLE OF CONTENTS
(continued)
IV.

V.

Page

DEFENDANTS HAVE VIOLATED THE ADMINISTRATIVE
PROCEDURE ACT ............................................................................................. 55
A.

Defendants’ Wall-Funding Plan Violates the APA ................................. 55

B.

Plaintiffs’ APA Claims Are Reviewable ................................................. 56
1.

There Is “Final Agency Action” For Purposes of Plaintiffs’
§ 2808 Claim ................................................................................ 56

2.

Defendants’ Use of § 2808 Is Not Committed To Agency
Discretion ..................................................................................... 57

3.

Plaintiffs Fall Within the “Zone of Interests” of § 2808, §
284, and § 8005 ............................................................................ 58

EVEN IF A PERMANENT INJUNCTION WERE NOT YET
WARRANTED, PLAINTIFFS ARE ENTITLED TO A PRELIMINARY
INJUNCTION ...................................................................................................... 59

CONCLUSION ............................................................................................................................ 60

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TABLE OF AUTHORITIES
Page(s)
Cases
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) .................................................................................................................. 21
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) .................................................................................................................. 26
AFL-CIO v. Kahn,
618 F.2d 784 (D.C. Cir. 1979) .................................................................................................. 27
Am. Airlines, Inc. v. Herman,
176 F.3d 283 (5th Cir. 1999) .............................................................................................. 56, 57
Arizona v. United States,
567 U.S. 387 (2012) .................................................................................................................. 25
Armstrong v. Exception Child Ctr.,
135 S. Ct. 1378 (2015) ........................................................................................................ 53, 54
Ass’n of Cmty. Organizations for Reform Now v. Fowler,
178 F.3d 350 (5th Cir. 1999) .................................................................................................. 7, 8
Beacon Prods. Corp. v. Reagan,
814 F.2d 1 (1st Cir. 1987) ......................................................................................................... 28
Bennett v. Spear,
520 U.S. 154 (1997) .................................................................................................. 4, 12, 14, 59
Bloate v. United States,
559 U.S. 196 (2010) .................................................................................................................. 36
Block v. Cmty. Nutrition Inst.,
467 U.S. 340 (1984) .................................................................................................................. 29
Boumediene v. Bush,
553 U.S. 723 (2008) .................................................................................................................... 1
BP Am. Prod. Co. v. Burton,
549 U.S. 84 (2006) .................................................................................................................... 27
Carpenters Indus. Council v. Zinke,
854 F.3d 1 (D.C. Cir. 2017) ........................................................................................................ 5
Centro Presente v. DHS,
332 F. Supp. 3d 393 (D. Mass. 2018) ....................................................................................... 35

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TABLE OF AUTHORITIES
(Continued)
Page(s)

Chamber of Commerce v. Dep’t of Labor,
885 F.3d 360 (5th Cir. 2018) .................................................................................................... 42
Chamber of Commerce v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) .................................................................................................. 54
Chang v. United States,
859 F.2d 893 (Fed. Cir. 1988) .................................................................................................. 33
City & County of San Francisco v. Trump,
897 F.3d 1225 (9th Cir. 2018) ............................................................................................ 12, 13
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) .................................................................................................................... 39
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) .................................................................................................................. 11
Clark v. Martinez,
543 U.S. 371 (2005) .................................................................................................................. 23
Clarke v. Sec. Indus. Ass’n,
479 U.S. 388 (1987) .................................................................................................................. 58
Clinton v. City of New York,
524 U.S. 417 (1998) ............................................................................................................ 21, 55
Clinton v. Jones,
520 U.S. 681 (1997) .................................................................................................................. 34
Ctr. for Bio. Diversity v. Mattis,
868 F.3d 803 (9th Cir. 2017) .................................................................................................... 44
Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund,
138 S. Ct. 1061 (2018) .............................................................................................................. 45
Dalton v. Specter,
511 U.S. 462 (1994) ............................................................................................................ 52, 53
Dames & Moore v. Regan,
453 U.S. 654 (1981) .................................................................................................................. 54

Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019) ....................................................................................................... passim
Dunlop v. Bachowksi,
421 U.S. 560 (1975) ............................................................................................................ 26, 29
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TABLE OF AUTHORITIES
(Continued)
Page(s)

Ellison v. Connor,
153 F.3d 247 (5th Cir. 1998) .................................................................................................... 57
El-Shifa Pharm. Indus. v. United States,
607 F.3d 836 (D.C. Cir. 2010) .................................................................................................. 30
Fiallo v. Bell,
430 U.S. 787 (1977) .................................................................................................................. 32
Foretich v. United States,
351 F.3d 1198 (D.C. Cir. 2003) .............................................................................................. 3, 5
Franklin v. Massachusetts,
505 U.S. 788 (1992) ............................................................................................................ 34, 35
Gilligan v. Morgan,
413 U.S. 1 (1973) ...................................................................................................................... 30
Gundy v. United States,
139 S. Ct. 2116 (2019) .................................................................................................. 20, 21, 22
Harvard Pilgrim Health Care v. Thompson,
318 F. Supp. 2d 1 (2004) .......................................................................................................... 54
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) ............................................................................................................ 7, 8, 9
Heckler v. Chaney,
470 U.S. 821 (1985) .................................................................................................................. 57
Industrial Union Dept., AFL-CIO v. American Petroleum Inst.,
448 U.S. 607 (1980) .................................................................................................................. 19
INS v. Chadha,
462 U.S. 919 (1983) .................................................................................................................. 28
INS v. St. Cyr,
533 U.S. 289 (2001) .................................................................................................................. 18

J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394 (1928) ............................................................................................................ 20, 24
Japan Whaling Ass’n v. Am. Cetacean Soc’y,
478 U.S. 221 (1986) ............................................................................................................ 30, 33
Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv.,
58 F. Supp. 3d 1191 (D.N.M. 2014) ......................................................................................... 54
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TABLE OF AUTHORITIES
(Continued)
Page(s)

Jubelirer v. Rendell,
953 A.2d 514 (Pa. 2008) ........................................................................................................... 49
K.P. v. LeBlanc,
627 F.3d 115 (5th Cir. 2010) ...................................................................................................... 6
Karahalios v. Nat’l Fed’n of Fed. Emps.,
489 U.S. 527 (1989) .................................................................................................................. 28
Kleindienst v. Mandel,
408 U.S. 753 (1972) .................................................................................................................. 32
Kuwait Pearls v. Kellogg Brown,
853 F.3d 173 (5th Cir. 2017) ........................................................................................ 29, 30, 41
Lane v. Halliburton,
529 F.3d 548 (5th Cir. 2008) .............................................................................................. 32, 44
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) .................................................................................................................. 55
Lujan v. Def. of Wildlife,
504 U.S. 555 (1992) ........................................................................................................ 2, 13, 14

Mach Mining, LLC v. EEOC,
135 S. Ct. 1645 (2015) .............................................................................................................. 26
Marbury v. Madison,
1 Cranch 137 (1803) ................................................................................................................... 1
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209 (2012) ............................................................................................................ 57, 58
Mathews v. Diaz,
426 U.S. 67 (1976) .................................................................................................................... 32
Meese v. Keene,
481 U.S. 465 (1987) ............................................................................................................ 3, 4, 5
Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n,
453 U.S. 1 (1981) ...................................................................................................................... 28
Milner v. Dep’t of Navy,
562 U.S. 562 (2011) .................................................................................................................. 19
Mississippi v. Johnson,
71 U.S. 475 (1866) .................................................................................................................... 34
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TABLE OF AUTHORITIES
(Continued)
Page(s)

NAACP v. City of Kyle,
626 F.3d 233 (5th Cir. 2010) ................................................................................................ 9, 10

Nat’l Ass’n of Home Builders v. Def. of Wildlife,
551 U.S. 644 (2007) .................................................................................................................. 46
NCAA v. New Jersey,
730 F.3d 208 (3d Cir. 2013) ....................................................................................................... 3
Nevada v. Dep’t of Energy,
400 F.3d 9 (D.C. Cir. 2005) ................................................................................................ 36, 50
NLRB v. SW Gen. Inc.,
137 S. Ct. 929 (2017) ................................................................................................................ 29
OCA-Greater Houston v. Texas,
867 F.3d 604 (5th Cir. 2017) ...................................................................................... 8, 9, 10, 11
Old Dominion Branch No. 496 v. Austin,
418 U.S. 264 (1975) .................................................................................................................. 16
OPM v. Richmond,
496 U.S. 414 (1990) .................................................................................................................. 36
Panama Refining Co. v. Ryan,
293 U.S. 388 (1935) ............................................................................................................ 21, 24
Planned P’Hood of Gulf Coast, Inc. v. Gee,
862 F.3d 445 (5th Cir. 2017) .............................................................................................. 14, 59
Rucho v. Common Cause,
2019 WL 2619470 (S. Ct. 2019)............................................................................................... 30
Saget v. Trump,
345 F. Supp. 3d 287 (E.D.N.Y. 2018) ................................................................................ 34, 35
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993) .................................................................................................................. 55
Santiago v. Rumsfeld,
2004 WL 3008724 (D. Ore. 2004) ............................................................................................ 32
Sardino v. Fed. Res. Bank of N.Y.,
361 F.2d 106 (2d Cir. 1966) ..................................................................................................... 33
Sebelius v. Cloer,
569 U.S. 369 (2013) .................................................................................................................. 19
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TABLE OF AUTHORITIES
(Continued)
Page(s)

Sierra Club v. Leavitt,
368 F.3d 1300 (11th Cir. 2004) ................................................................................................ 55

Sierra Club v. Trump,
2019 WL 2247689 (N.D. Cal. 2019) ................................................................................. passim
Sierra Club v. Trump,
2019 WL 2865491 (9th Cir. 2019) .................................................................................... passim
Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs,
531 U.S. 159 (2001) .................................................................................................................. 52
Soudavar v. Bush,
46 F. App’x 731 (5th Cir. 2002) ............................................................................................... 32
Spawr Optical Research, Inc.,
685 F.2d 1076 (9th Cir. 1982) .................................................................................................. 33
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) .......................................................................................................... 6, 7, 11
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) .................................................................................................. 35
Tesfamichael v. Gonzales,
411 F.3d 169 (5th Cir. 2005) .................................................................................................... 59
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ................................................................................................ 1, 32
Trudeau v. FTC,
456 F.3d 178 (D.C. Cir. 2006) .................................................................................................. 59
Trump v. Hawaii,
138 S. Ct. 2392 (2018) .............................................................................................................. 32
U.S. Army Corps of Eng’rs v. Hawkes Co.,
136 S. Ct. 1807 (2016) .............................................................................................................. 56
U.S. Dep’t of Navy v. FLRA,
665 F.3d 1339 (D.C. Cir. 2012) .................................................................................... 21, 37, 47
UARG v. EPA,
573 U.S. 302 (2014) .................................................................................................................. 45
United States v. Amirnazmi,
645 F.3d 564 (3d Cir. 2011) ............................................................................................... 27, 33
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TABLE OF AUTHORITIES
(Continued)
Page(s)

United States v. Beacon Prods. Corp. v. Reagan,
633 F. Supp. 1191 (D. Mass. 1986) .......................................................................................... 32
United States v. Curtiss-Wright Export Corp.,
299 U.S. 304 (1936) .................................................................................................................. 17
United States v. Dhafir,
461 F.3d 211 (2d Cir. 2006) ..................................................................................................... 33
United States v. Groos,
616 F. Supp. 2d 777 (N.D. Ill. 2008) ........................................................................................ 33
United States v. Lee,
106 U.S. 196 (1882) .................................................................................................................. 34
United States v. MacCollom,
426 U.S. 317 (1976) ............................................................................................................ 37, 50
United States v. Mirza,
454 F. Appx. (5th Cir. 2011) .................................................................................................... 25
United States v. Nixon,
418 U.S. 683 (1974) .............................................................................................................. 1, 34
United States v. Yoshida Int’l, Inc.,
526 F.2d 560 (U.S. Ct. CPA 1975) ........................................................................................... 33
Van de Walle v. Am. Cyanamid Co.,
477 F.2d 20 (5th Cir. 1973) ...................................................................................................... 15
Veterans and Reservists for Peace v. Reg’l Comm’r of Customs,
459 F.2d 676 (3d Cir. 1972) ..................................................................................................... 33
Walter Nixon v. United States,
506 U.S. 224 (1993) .................................................................................................................. 30
Wash. St. Dep’t of Social & Health Servs. v. Guardianship Estate of Keffeler,
537 U.S. 371 (2003) .................................................................................................................. 43
Wayman v. Southard,
10 Wheat. 1 (1825) ................................................................................................................... 21
West Va. Univ. Hosps., Inc. v. Casey,
499 U.S. 83 (1991) .................................................................................................................... 37
Weyerhaeuser Co. v. FWS,
139 S. Ct. 361 (2018) ................................................................................................................ 57
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(Continued)
Page(s)

Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ........................................................................................................... passim
Yakus v. United States,
321 U.S. 414 (1944) ............................................................................................................ 20, 21
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ........................................................................................................... passim
Zavydas v. Davis,
533 U.S. 678 (2001) .................................................................................................................. 18
Zivotofsky v. Clinton,
566 U.S. 189 (2012) ................................................................................................ 29, 30, 31, 33
Statutes
1 U.S.C. § 105 ............................................................................................................................... 38
10 U.S.C § 2801(c)(4)................................................................................................................... 41
10 U.S.C § 284(b)(7). ....................................................................................................... 44, 45, 47
10 U.S.C. § 275 ............................................................................................................................. 40
10 U.S.C. § 2801 ........................................................................................................................... 43
10 U.S.C. § 2801(a) .................................................................................................... 41, 42, 51, 52
10 U.S.C. § 2801(c)(4).................................................................................................................. 41
10 U.S.C. § 2808 .................................................................................................................... passim
10 U.S.C. § 284 ...................................................................................................................... passim
10 U.S.C. § 284(a) ........................................................................................................................ 44
10 U.S.C. § 284(b)(1) ................................................................................................................... 44
10 U.S.C. § 284(b)(10) ................................................................................................................. 44
10 U.S.C. § 284(h)(1)(B) .............................................................................................................. 45
10 U.S.C. § 284(i)(3) .................................................................................................................... 45
18 U.S.C. § 1385 ........................................................................................................................... 40
2 U.S.C. § 622(5) .......................................................................................................................... 38
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Page(s)
31 U.S.C. § 1532 ........................................................................................................................... 47
40 U.S.C. § 3147 ........................................................................................................................... 23
47 U.S.C. § 606(c) ........................................................................................................................ 23
5 U.S.C. § 701(a)(2)...................................................................................................................... 57
5 U.S.C. § 702 ............................................................................................................................... 55
5 U.S.C. § 704 ............................................................................................................................... 55
5 U.S.C. § 706(2) .......................................................................................................................... 55
50 U.S.C. § 1622(a) ...................................................................................................................... 27
50 U.S.C. § 1622(a)(1).................................................................................................................. 27
50 U.S.C. § 1701(b) ...................................................................................................................... 17
50 U.S.C. § 1621 ..................................................................................................................... 15, 22
6 U.S.C. § 202(2) .......................................................................................................................... 42
7 U.S.C. § 5712(c) ........................................................................................................................ 23
8 U.S.C. § 1103(a)(10).................................................................................................................. 40
Administrative Procedure Act................................................................................................ 55, 59
Consolidated Appropriations Act (CAA), Pub. L. No. 116-6 (2019) ........................................... 16
Consolidated Appropriations Act, 2018,
Pub. L. No. 115-141, div. F, tit. II, § 230(a) (2018) .......................................................... passim
Drug Interdiction and Counter-Drug Activities Pub. L. No. 115-245, div. A, tit. VI, 132
Stat. 2981, 2997 (2018)............................................................................................................. 46
International Emergency Economic Powers Act (IEEPA),
Pub. L. No. 95-223Stat. 1626 (1977) .................................................................................. 17, 25
Military Construction Codification Act, Pub. L. 97-124, 96 Stat. 153 (1982) ............................. 38
National Defense Authorization Act, Pub. L. 114-328, 130 Stat. 2000, 2381, 2497 (2016) ........ 38
National Emergencies Act (NEA),
Pub. L. No. 94-412, 90 Stat. 1255 (1976) .......................................................................... passim

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(Continued)
Page(s)
Pub. L. No. 93-238, § 735, 87 Stat. 1026 (1974) .......................................................................... 50
Other Authorities
Antonin Scalia, Testimony to the House of Representatives, Subcommittee on
Administrative Law and Government Relations of the Committee on the Judiciary,
at 95 (Apr. 9, 1975) ................................................................................................................... 15
Brief of the Brennan Center for Justice as Amicus Curiae in Support of Pls., ECF 60-1, at
15 (“Brennan Ctr. Br.”)....................................................................................................... 15, 17
Deferred Action for Parents of Americans and Lawful Permanent Residents program ............... 32
Department of Defense Budget Posture: Hearing Before the S. Comm. on Armed Servs.,
116th Cong. (2019), https://tinyurl.com/DefenseBudgetHearing. ............................................ 40
DOD Serial No. FY 04-37 PA,
Reprogramming Action (Sept. 3, 2004),
http://tinyurl.com/DOD2004ReprogrammingAction ............................................................... 48
Exec. Order No. 13767 ................................................................................................................. 48
Executive Order 12722 ................................................................................................................. 17
GAO, Principles of Federal Appropriations Law (4th Ed. 2017) (GAO Red Book), at 164 .............................................................................................................................................. 37
H. Rep. No. 93-662 (1973) ........................................................................................................... 50
H. Rep. No. 99-106 (1985) ........................................................................................................... 50
Heather Timmons, The US Border Situation Isn’t a National Emergency, Pentagon
Officials Tell Congress,
Quartz (Jan. 29, 2019), https://tinyurl.com/QuartzBorder ........................................................ 40
Merriam-Webster’s Dictionary 932 (10th ed. 1998) .................................................................... 38
Presidential Memorandum,
2018 WL 1633761 (Apr. 4, 2018) ............................................................................................ 49
Proc. 7924 ..................................................................................................................................... 17
Proc. No. 6481 .............................................................................................................................. 17
Proc. No. 6867 .............................................................................................................................. 17
Proc. No. 7463 .............................................................................................................................. 17

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Page(s)
Proc. No. 8443 .............................................................................................................................. 17
Senate Report Number 93-1170, at 2 (1974) ................................................................................ 15
Senate Report Number 94-1168, at 3 (1976) .......................................................................... 17, 19
Webster’s New Collegiate Dictionary 372 (1976)........................................................................ 15
Regulations
55 Fed. Reg. 31803 (Aug. 3, 1990)............................................................................................... 17
57 Fed. Reg. 47553 (Oct. 14, 1992) .............................................................................................. 17
61 Fed. Reg. 8843 (Mar. 1, 1996) ................................................................................................. 17
66 Fed. Reg. 48199 (Sept. 14, 2001) ............................................................................................ 17
70 Fed. Reg. 54225 (Sept. 8, 2005) .............................................................................................. 17
74 Fed. Reg. 55439 (Oct. 23, 2009) .............................................................................................. 17
82 Fed. Reg. 8793 (Jan. 25, 2017) ................................................................................................ 48
82 Fed. Reg. 8794 (Jan. 25, 2017) ................................................................................................ 48

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INTRODUCTION
The Government relies on various doctrines, but its brief presses one main, quite startling,
point: No court may review the President’s emergency declaration or his subordinates’ actions in
pursuit thereof. This assertion of blind deference is incompatible with the rule of law. When a
member of the Executive Branch (including the President) violates his constitutional or statutory
duties, courts must enjoin that violation. Since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),
that principle has been applied over and over. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952); United States v. Nixon, 418 U.S. 683 (1974); Boumediene v. Bush, 553 U.S.
723 (2008); Texas v. United States, 809 F.3d 134 (5th Cir. 2015). The Government would have
this Court ignore that principle and accept Defendants’ word that they are complying with the law.
The Court should reject the Government’s invitation and fulfill its duty to say what the law is.
In contrast to the Government’s numerous justiciability arguments, it says precious little
about the merits of this case. And the proper resolution of those merits is clear. The President has
violated the National Emergencies Act (NEA), Pub. L. No. 94-412, 90 Stat. 1255 (1976), by
declaring a longstanding problem an “emergency” in response to a congressional appropriations
decision he disliked. If the NEA did permit this declaration, moreover, the NEA itself would run
afoul of the nondelegation doctrine—rendering the President’s declaration (and acts carrying it
out) void. Beyond the President’s declaration, Defendants’ plan to spend funds appropriated for
other purposes on a border wall violates the Appropriations Clause. The text of the provisions that
Defendants have invoked does not authorize wall expenditures. And throughout their history,
those provisions have never been construed in the manner the Government proposes here. This
Court should accordingly grant Plaintiffs’ summary-judgment motion and a permanent injunction
or, alternatively, preliminarily enjoin Defendants’ unlawful acts. Plaintiffs request that the Court
move expeditiously in resolving their motion, because Defendants are progressing quickly toward
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building a border wall, and the President’s emergency declaration is causing Plaintiffs continuous
and irreparable harm.
ARGUMENT
I.

PLAINTIFFS HAVE STANDING
A.

El Paso County Has Standing

As a border community, El Paso County is the direct “object” of Defendants’ actions in
this case: the Proclamation declares that the border is in a state of emergency, and Defendants’
wall-funding plan threatens imminent construction and militarization there. See Lujan v. Def. of
Wildlife, 504 U.S. 555, 561-62 (1992). Accordingly, there is “little question” that the County has
standing to challenge those actions, id., based on two related concrete harms. First, as official
governmental policies indicating that the County is in crisis and needs a wall to protect it,
Defendants’ actions have harmed the County’s reputation.

Second, the Proclamation and

impending wall construction will wreak substantial economic harm on the County by inhibiting
tourism and commercial development. The Government’s contrary arguments lack merit.
1.

Reputational Harm

To begin, the Government argues that the County’s reputational injury has “nothing to do
with actual border-barrier construction.” Govt. Br. 35-36. That is wrong. On March 25, 2019,
the Acting Defense Secretary formally approved El Paso Sector Project 1, which will take place
in Dona Ana County, New Mexico—immediately adjoining El Paso County. Id. at 10; Govt. Ex.
6, at 1; see Pls. Ex. 26, Samaniego Decl. ¶ 17. Defendants have already awarded contracts for this
project, and the start of construction is imminent. Govt. Ex. 6, at 2. As an El Paso County official
explained, the “blight of [this] construction” will create an image that the County is “mired in a
long-term state of chaos,” rather than a “safe place to live, work, and visit.” Pls. Ex. 26, Samaniego

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Decl. ¶¶ 4, 11. Thus, by transforming the El Paso County region into a militarized construction
zone, Defendants have injured the County’s reputation.
The Government next seeks to minimize the Proclamation’s effect on the County, calling
the Proclamation a mere “government message” that is “not self-effectuating.” Govt. Br. 36. But
the Proclamation is much more: It is a highly publicized order that the President announced in the
Rose Garden, declaring the entire southern border (including El Paso County) an emergency zone
and invoking billions of dollars to address that emergency. Because of the Proclamation’s
immediate substantive impact, Meese v. Keene, 481 U.S. 465 (1987), Foretich v. United States,
351 F.3d 1198 (D.C. Cir. 2003), and NCAA v. New Jersey, 730 F.3d 208 (3d Cir. 2013), are all on
point. See Pls. MSJ 11-13. NCAA is particularly instructive. There, the court held that a law
“permit[ing] State authorities to license sports gambling” inflicted “reputational harm” on plaintiff
sports leagues by “increasingly associating the Leagues’ games with gambling.” NCAA, 730 F.3d
at 217, 221. Here, the Proclamation inflicts “reputational harm” on the County by “increasingly
associating” the County with danger, militarization, and construction. Id.
Similarly, the Government observes that “the Proclamation does not specifically disparage
the reputation of the County.” Govt. Br. 37. But while the Proclamation does not denigrate the
County by name, it asserts that “[t]he current situation at the southern border” is a “national
emergency.” Pls. Ex. 14, at 1. The County sits on the southern border, so the implication is clear:
the County is in a state of crisis and needs a wall to protect it. No case suggests that reputational
injury is cognizable only if the challenged law “specifically disparage[s]” the plaintiff. Govt. Br.
37. In NCAA, for instance, the challenged law only legalized sports gambling; it did not denigrate
professional sports leagues. 730 F.3d at 217. Still, those leagues had standing. Id. at 220.

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The Government also asserts that the County’s reputational injury is unfounded because it
rests on “speculation” about “choices made by independent actors.” Govt. Br. 37. That sweeping
theory would wipe out reputational standing altogether, since findings of reputational injury
always derive from predictions about how third parties will view the plaintiff in light of the
challenged governmental action. See, e.g., Meese, 481 U.S. at 473-74 (relying on “an opinion
poll” as evidence that plaintiff’s “personal, political and professional reputation would suffer” due
to the challenged law). Moreover, there is no “speculation” here. County officials have reported,
based on their firsthand experiences, that “the President’s Proclamation” has already “generat[ed]
fears of potential investors that the community will be mired in a long-term state of chaos.” Pls.
Ex. 26, Samaniego Decl. ¶ 11; see Pls. Ex. 25, Keller Decl. ¶ 8 (“I often have to counteract negative
misimpressions associated with the President’s Proclamation when I talk to people about coming
here.”). And it is hardly counterintuitive that third parties will avoid visiting or investing in a
particular location after the President has designated that location an emergency military
construction zone. See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019) (finding
standing where “third parties will likely react in predictable ways”); Bennett v. Spear, 520 U.S.
154, 169 (1997) (standing may rest on “injury produced by determinative or coercive effect upon
the action of someone else”).
Finally, the Government contends that the County cannot satisfy standing doctrine’s
causation and redressability prongs. Govt. Br. 38-39. But as just noted, County officials stated
that Defendants’ actions have led directly to negative perceptions of the County. See supra; see
also Pls. Ex. 25, Keller Decl. ¶ 10 (“Because of the President’s Proclamation, we are now in the
process of strategizing how to combat a falsely negative image.” (emphasis added)); id. ¶ 12
(“tourism and business development are impacted by the Proclamation’s threat that El Paso

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County and the southern border will soon be a massive construction zone” (emphasis added)); Pls.
Ex. 26, Samaniego Decl. ¶ 11 (“interactions” with “local business leaders” have “indicated to me
that the President’s Proclamation is harming our economic development efforts on an ongoing
basis” (emphasis added)). The Government labels these reports “conclusory statements,” Govt.
Br. 39, but they are the sworn, unrebutted testimony of County government officials linking the
County’s injury to Defendants’ actions. See Meese, 481 U.S. at 474 (finding reputational standing
based on plaintiff’s “uncontradicted” affidavits); Foretich, 351 F.3d at 1213 (finding reputational
standing based on plaintiff’s “uncontroverted affidavit”).
Because the County can show causation, redressability follows easily. See Carpenters
Indus. Council v. Zinke, 854 F.3d 1, 6 n.1 (D.C. Cir. 2017) (“[c]ausation and redressability
typically overlap as two sides of a causation coin”). As courts finding reputational injury caused
by governmental action have consistently held, “[a] judicial determination that” the relevant action
is “unlawful[] . . . will provide a significant measure of redress for the harm to [plaintiff’s]
reputation.” Foretich, 351 F.3d at 1214; see Meese, 481 U.S. at 476. Here, such a determination
would strip Defendants’ actions of legal force and legitimacy, restoring the County’s prior image
and allowing County officials to stop taking “affirmative steps to avoid the risk of harm to [the
County’s] reputation.” Id. The Government’s suggestion that any redress would be “speculative,”
Govt. Br. 39, runs counter to both reputational-standing precedent and common sense.
2.

Pecuniary Injuries

County officials have also explained the economic harm that the County will suffer because
of Defendants’ actions. First, County officials have reported “fears of” “potential investors” and
“local business leaders” that the County “will be mired in a long-term state of chaos” because of
Defendants’ actions, which “is harming [the County’s] economic development efforts.” Pls. Ex.
26, Samaniego Decl. ¶ 11. Second, Defendants’ actions are “detrimental to a drive to bring in
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tourists” because they cultivate “the perception that [the] community is chaotic and dangerous”—
“a strike against El Paso” in the County’s “various negotiations” and initiatives to increase tourism.
Pls. Ex. 25, Keller Decl. ¶ 8. Third, the impending wall construction in an adjacent county “creates
uncertainty about traffic, the accessibility of nearby ports, and blighted and obstructed natural
sites,” which “further affects [the County’s] efforts to promote business development and
tourism.” Pls. Ex. 26, Samaniego Decl. ¶ 17. Fourth, Defendants’ likely diversion of $52.3 million
in funds away from Fort Bliss, “the army base that drives [El Paso’s] economy,” “creates the
imminent prospect of economic harm to El Paso County.” Id. ¶¶ 14, 16; see Pls. Ex. 21.
The Government does not dispute the settled principle that “a direct pecuniary injury” is
generally “sufficient to establish injury-in-fact.” K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir.
2010). Nor does it dispute that a “future” pecuniary injury may suffice so long as there is a
“substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014). Instead, the Government again attacks Plaintiffs’ evidence as speculative and dependent
on “the actions of third parties.” Govt. Br. 39. But as explained, Plaintiffs’ standing theory relies
“on the predictable effect of Government action on the decisions of third parties,” not on “mere
speculation about the decisions of third parties.” Dep’t of Commerce, 139 S. Ct. at 2566. The
Government further claims that the County must submit specific “example[s] of actual or
threatened loss of tourism dollars.” Govt. Br. 39. But it cites no authority for that requirement
and fails to explain why a County official’s description of “fears of potential investors” based on
his personal “interactions” with “local business leaders” does not suffice. Pls. Ex. 26, Samaniego
Decl. ¶ 11.
The Government also takes issue with County officials’ sworn declarations that massive
wall construction in the County’s nearby vicinity will cause economic harm, given the County’s

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regional economy.

Govt. Br. 40 (deeming these declarations “conclusory statements and

speculation”). But the Government never explains why the County officials’ commonsense
projections based on their own firsthand experience are unsustainable. Similarly, the Government
brushes aside the fact that DOD designated Fort Bliss—“the lifeblood of the El Paso economy,”
Pls. Ex. 26, Samaniego Decl. ¶ 15; Pls. Ex. 21—as a potential military construction site from which
10 U.S.C. § 2808 funds will be diverted.

“[E]ven assuming that is a cognizable harm,” the

Government says, “a decision has yet to be made by [DOD] regarding § 2808.” Govt. Br. 40. But
the Government does not dispute that Defendants have deemed Fort Bliss a prime candidate from
which to divert such funds. Accordingly, there is at least a “substantial risk” that Fort Bliss will
lose millions of federal dollars, which is enough to establish standing. Driehaus, 573 U.S. at 158.
B.

BNHR Has Standing

BNHR independently has organizational standing to challenge Defendants’ actions. In
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the Supreme Court held that an
organization has standing to challenge a governmental practice that causes a “concrete and
demonstrable injury to the organization’s activities” and therefore leads to a “drain on the
organization’s resources.” Id. at 379. Thus, “an organization has standing to sue on its own behalf
where it devotes resources to counteract a defendant’s allegedly unlawful practices.” Ass’n of
Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 360 (5th Cir. 1999).
BNHR has standing under this rule. BNHR’s “core mission” consists of human rights
education and “promoting immigration reform.” Pls. Ex. 27, Garcia Decl. ¶¶ 13. Because of
Defendants’ actions, BNHR has been forced to “devote[] resources to counteract [Defendants’]
allegedly unlawful practices,” rather than focus those resources on its core mission. Fowler, 178
F.3d at 360. In particular, “[b]ecause of the Proclamation’s effects on BNHR’s member families,”
BNHR “has had to reduce its educational efforts and increase its efforts to counsel community
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members who are fearful,” as well as “reduce [its] organizing efforts around immigration reform
and spend more time organizing [the] community in opposition to the President’s Proclamation.”
Pls. Ex. 27, Garcia Decl. ¶ 13. Relatedly, the impending wall construction in Dona Ana County,
where many BNHR members live and work, “will cause yet more diversion of BNHR resources
away from [its] core mission and toward opposing construction.” Id. ¶ 33; id. ¶¶ 33-36 (“Largescale construction threatens to affect our members’ basic quality of life”). Since the Proclamation,
BNHR has also dramatically increased the frequency of its “Know Your Rights” presentations, id.
¶ 15, hired a policy consultant “to assist with an aggressive advocacy campaign to combat the
division and fear [caused by] the Proclamation’s misinformation,” id. ¶ 16, and canceled its
signature “Hugs Not Walls” campaign due to “the impending construction of more border
barriers,” id. ¶ 32. BNHR’s additional efforts have strained its staff, which is “working longer
hours” on different tasks related to “organizing defense actions in the community.” Id. ¶¶ 22, 28.
It is unsurprising that an organization dedicated to “organiz[ing] border communities” and
bettering “the lives of the immigrant community,” id. ¶ 3, would suffer a “concrete and
demonstrable injury” when the President declares a national emergency at the border because of
unlawful immigration and begins constructing a wall there, Havens Realty, 455 U.S. at 379.
According to the Government, however, Havens Realty does not apply because it is “a
narrow decision” that “recognize[s] standing only when a defendant actually inhibits a plaintiff
from carrying out its organizational mission.” Govt. Br. 40-41. Not so—the Fifth Circuit has read
Havens Realty broadly to confer standing whenever an organization is forced to divert resources
to counteract government practices. OCA-Greater Houston v. Texas, 867 F.3d 604, 612 (5th Cir.
2017) (standing because organization “went out of its way to counteract the effect of Texas’s
allegedly unlawful voter-interpreter restriction”); Fowler, 178 F.3d at 360-61 (standing because

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organization “expended definite resources counteracting the effects of Louisiana’s alleged failure
to implement” a voter-registration law); see also Dep’t of Commerce, 139 S. Ct. at 2565-66
(organizational standing based on “diversion of resources”).
The Government contends that “[t]his case lacks the nexus between organizational
activities and defendant conduct present in Havens Realty,” because “BNHR’s mission is
community organizing, education, and advocacy.” Govt. Br. 41. But while BNHR does engage
in those activities, its mission is intimately tied to immigration reform and border issues: As
BNHR’s Executive Director describes it, the organization’s “mission” is to “organize border
communities” and “advocate for positive change in policies and practices that affect the lives of
the immigrant community.” Ex. 27, Garcia Decl. ¶ 3. Because Defendants’ actions have plainly
targeted “border communities” and affected immigration “policies and practices,” they have
“perceptibly impaired” BNHR’s “ability to” pursue its mission. Havens Realty, 455 U.S. at 379.
The Government’s analogy to NAACP v. City of Kyle, 626 F.3d 233 (5th Cir. 2010), Govt.
Br. 42, is off-base. There, a home builders association challenged new zoning ordinances, arguing
that it had standing based on its “prelitigation responses to the revised ordinances,” including
commissioning a study and lobbying the city. Id. at 238. The court ruled otherwise, holding that
the association had “not explained how the[se] activities” diverged from the association’s “routine
lobbying activities.” Id. As the Fifth Circuit recently explained, however, “[t]he key fact in City
of Kyle was that every claimed ‘injury’ either was undertaken to prepare for litigation” or “no
different from the plaintiff’s daily operations.” OCA-Greater Houston, 867 F.3d at 611-12. Here,
by contrast, none of BNHR’s injuries relate to litigation preparation. And whereas BNHR’s
routine activities involve “promoting immigration reform,” it has recently been forced to “increase
its efforts to counsel community members who are fearful” and “organiz[e] [its] community in

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opposition to the President’s Proclamation.” Pls. Ex. 27, Garcia Decl. ¶ 13; id. ¶ 15 (describing
five-fold increase in “Know Your Rights” presentations since Proclamation). In other words,
while BNHR’s daily operations consist of promoting forward-looking immigration reform, it has
shifted those operations toward combatting the effects of Defendants’ actions. BNHR has thus
shown that its “expenses occurred prelitigation and are unrelated to litigation”—the “critical
distinction” between this case and City of Kyle. OCA-Greater Houston, 867 F.3d at 612.
To be sure, City of Kyle also mentioned that the plaintiff association did not “identif[y] any
specific projects that [it] had to put on hold or otherwise curtail in order to respond to the revised
ordinances.” 626 F.3d at 238. But the Fifth Circuit has held that this “remark” was “not a
heightening of the Lujan standard [for standing], but an example of how to satisfy it by pointing
to a non-litigation-related expense.” OCA-Greater Houston, 867 F.3d at 612. Thus, BNHR need
not “identify any specific project it has been required to put on hold because of the Proclamation”
to establish standing. Govt. Br. 42. In any event, BNHR has identified such a project: the “Hugs
Not Walls” campaign, which BNHR cancelled “because of the impending construction of more
border barriers.” Pls. Ex. 27, Garcia Decl. ¶ 32.
BNHR has also shown causation and redressability. The Proclamation and Defendants’
subsequent steps to build a border wall have caused BNHR’s diversion of resources away from its
core mission. See, e.g., Pls. Ex. 27, Garcia Decl. ¶ 13 (“Because of the Proclamation’s effects on
BNHR’s member families, BNHR has had to divert resources away from its core mission”
(emphasis added)); id. ¶ 37 (“We have spent, and will continue to spend, approximately 70 to 80%
of the organization’s time and resources opposing the illegal construction” (emphasis added)).
The Government downplays the Proclamation as a “general statement[] about the southern border”
no different from “decades of intense debate about the state of the southern border generally.”

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Govt. Br. 44. But the President’s Proclamation has in fact upended the traditional immigrationreform debate by declaring an emergency, militarizing the border, and directing construction of a
border wall. Given the salience of these actions, they have required a different response from
BNHR than previous policies directed at the border.
Correspondingly, a judgment invalidating Defendants’ actions would redress BNHR’s
organizational injury by reinstating the status quo, and allowing BNHR to concentrate its resources
on improving the immigration system, rather than combating a particular border policy. Whether
or not that judgment would “disprove the factual accuracy of the statements in the Proclamation”
is immaterial, Govt. Br. 44: it would nullify the Proclamation itself, depriving it of legal force and
legitimacy.

As a result, BNHR would no longer need to expend resources fighting the

Proclamation and impending wall. That is plenty of relief to satisfy Article III. See, e.g., OCAGreater Houston, 867 F.3d at 613-14 (finding redressability under similar circumstances).
C.

Plaintiffs Have Standing To Challenge Wall Construction Carried Out With
§ 2808 Funds

In addition to disputing both Plaintiffs’ standing generally, the Government argues that
Plaintiffs lack standing to challenge Defendants’ use of § 2808 in particular. Govt. Br. 33-34.
According to the Government, because DOD has yet to formally decide which specific wall
construction projects to authorize under § 2808, DOD’s use of § 2808 funds amounts to only a
“possible future injury.” Id. at 34 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409
(2013)). A federal district court recently rejected that very argument in Sierra Club v. Trump,
2019 WL 2247689, at *15 (N.D. Cal. 2019). This Court should reject it as well.
To have standing to challenge Defendants’ use of § 2808 funds, Plaintiffs must demonstrate
only a “substantial risk” that Defendants will rely on § 2808 to fund a border wall. Driehaus, 573
U.S. at 158. Such a risk is palpable. The Proclamation expressly “invoke[s]” and “ma[kes]

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available” “the construction authority provided in section 2808 of title 10.” Pls. Ex. 14, at 1. And
the same day the President issued his Proclamation, the White House identified the amount of §
2808 funds “that will be available to build the border wall”: $3.6 billion. Govt. Ex. 5, at 4. There
is obviously a substantial risk that the Acting Defense Secretary will follow the President’s
directive to use § 2808 funds to build a border wall, rather than disregarding it. See Bennett, 520
U.S. at 169 (finding standing to challenge agency biological opinion that “ha[d] a powerful
coercive effect on the agency action”). In fact, the former Acting Secretary recently stated the
following: “We have a crisis at the border, a national emergency declared by the President. The
Commander-in-Chief has given me a direct legal order to secure the border. I’m securing the
border.” Brian Everstine, USAF Takes Big Hit As DOD Reprograms Funds to Pay For Border
Wall, Air Force Magazine (May 13, 2019). The fact that the Acting Secretary is “technically free
to disregard the” Proclamation is irrelevant in light of its “virtually determinative effect” on his
actions. Bennett, 520 U.S. at 170.
In essence, the Government’s litigation position is that the Proclamation—and its express
invocation of § 2808—lacks real force and effect. Even though the President announced the
Proclamation in a Rose Garden speech claiming that the border was in a state of emergency and
needed a wall to protect it, the Government posits that DOD might still simply act as if the
Proclamation had never occurred. This is not the first time the Government has pulled such a
litigation ploy. In City & County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018), the
Government similarly claimed that an “Executive Order is all bluster and no bite, representing a
perfectly legitimate use of the presidential ‘bully pulpit,’ without any real meaning.” Id. at 1238.
But the Ninth Circuit repudiated the Government’s claim, holding that “statements made by and
on behalf of the Administration outside the context of this litigation . . . suggest[] that the

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Administration’s current litigation position is grounded not in the text of the Executive Order but
in a desire to avoid legal consequences.” Id. So too here.
The Government’s position is made all the more implausible by the fact that DOD has
taken significant steps toward building the border wall using § 2808 funds. On May 6, 2019, DOD
“identified existing unawarded military construction projects of sufficient value to provide up to
$3.6 billion of funding for potential border barrier construction pursuant to section 2808.” Govt.
Ex. 7, at 1. One of those projects was set to occur at Fort Bliss, in El Paso County. See Pls. Ex.
21. That same day, the Chairman of the Joints Chiefs of Staff submitted an assessment to the
Acting Secretary providing “information and recommendations about specific border barrier
construction projects” to undertake using § 2808 funds. Govt. Ex. 7, at 1. There is a more than
substantial risk that DOD will use § 2808 funds on a border wall, at Fort Bliss’s expense.
D.

Plaintiffs Have Standing To Challenge DOD’s Reprogramming Of Funds
Under § 8005

The Government’s final standing argument focuses on Plaintiffs’ challenge to DOD’s
reprogramming of funds from its military pension account to its counterdrug support account
pursuant to DOD Appropriations Act § 8005, Pub. L. No. 115-245. Govt. Br. 34-35. In Sierra
Club, both the district court and Ninth Circuit have correctly held that this argument lacks merit.
2019 WL 2247689, at *14 (district court); Sierra Club v. Trump, 2019 WL 2865491, at *9 (9th
Cir. 2019).
The Government initially contends that because Plaintiffs have no “entitlement to the
money transferred” and are not “the ‘object’ of that transfer,” “their standing to challenge the
transfer of funding from one DoD appropriation to another is no greater than that of any taxpayer
to challenge any expenditure of taxpayer money.” Govt. Br. 34. As support for this contention,
the Government cites only Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), which recognized

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that when a plaintiff “is himself an object of the [challenged] action,” there is “ordinarily little
question that the action . . . has caused him injury.” Id. at 561-62. True enough, but that does not
mean that a plaintiff must be the “object” of the challenged action to show standing. Here,
Plaintiffs are injured by DOD’s unlawful reprogramming of funds, because that reprogramming
will lead directly to DOD’s expenditure of § 284 money on a border wall in the County’s close
vicinity. See supra at 2-3, 5-6, 8. No more is required for Plaintiffs to show standing.
Further, the Government argues that “[t]he intervening step of invoking § 284 is necessary
to connect DoD’s use of § 8005 to the border barrier construction that is the source of Plaintiffs’
alleged injuries, and Plaintiffs cannot invoke their alleged harm from the separate act of
constructing barriers . . . to establish standing for a claimed violation of § 8005.” Govt. Br. 35.
Again, that is wrong. Plaintiffs’ standing depends on whether their injuries are “fairly traceable”
to Defendants’ challenged actions, not on whether “the defendant’s actions are the very last step
in the chain of causation.” Bennett, 520 U.S. at 168-69; accord Planned P’Hood of Gulf Coast,
Inc. v. Gee, 862 F.3d 445, 455-56 (5th Cir. 2017). As already explained, Plaintiffs have suffered
injury in fact because of Defendants’ impending wall construction under § 284. See supra at 2-3,
5-6, 8. That injury is fairly traceable to DOD’s unlawful reprogramming of funds under § 8005,
because without that transfer, DOD could not provide $2.5 billion in § 284 “support” for wall
construction. After all, Congress appropriated only $881,525,000 to DOD’s drug interdiction
account in 2019. See DOD Appropriation Act, 2019 and Continuing Appropriation Act, 2019,
Pub. L. No. 115-245, Title VI, 132 Stat. 2981, 2997 (2018). Defendants admit that DOD has
already reprogrammed $1 billion under § 8005 in order to “fund the approved [border wall]
projects,” and upon reprogramming, that money was immediately transferred to “the U.S. Army
Corps of Engineers to undertake fence and road construction and lighting installation for the

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approved projects.” Govt. Ex. 6, at 1-2. Plaintiffs’ injuries are “fairly traceable” to the § 8005
reprogramming, which is all that Article III requires.
II.

THE PRESIDENT’S PROCLAMATION IS UNLAWFUL
The President’s Proclamation is fatally flawed. If the NEA is construed (properly) in

accord with its ordinary meaning, then the Proclamation violates the statute. If the NEA is
construed as the Government proposes, then the NEA violates the nondelegation doctrine. Either
way, the Proclamation—and all of Defendants’ actions in reliance thereon—must be enjoined.
A.

The Proclamation Exceeds the President’s Authority Under the NEA

Before the NEA’s passage, presidents had declared all manner of national emergencies,
allowing them to wield “extraordinary powers” and “manage every aspect of the lives of all
American citizens.” S. Rep. 93-1170, at 2 (1974). In 1976, Congress enacted the NEA to “insure
that the extraordinary powers which now reside in the hands of the Chief Executive . . . could be
utilized only when emergencies actually exist.” S. Rep. No. 94-1168, at 2 (1976). As thenAssistant Attorney General Antonin Scalia stated, “[t]hose powers which society really no longer
views as emergency powers should not be called that.” Antonin Scalia, Testimony to the House
of Representatives, Subcommittee on Administrative Law and Government Relations of the
Committee on the Judiciary, at 95 (Apr. 9, 1975).
The NEA’s core provision allows the President to declare an “emergency” and thereby
exercise “special or extraordinary power[s]” conferred by over 100 other statutes. 50 U.S.C. §
1621; see Brief of the Brennan Center for Justice as Amicus Curiae in Support of Pls., ECF 63, at
15 (“Brennan Ctr. Br.”). Per its ordinary meaning, an “emergency” is an “unforeseen combination
of circumstances or the resulting state that calls for immediate action.” Webster’s New Collegiate
Dictionary 372 (1976). Numerous courts have interpreted the term “emergency” along these lines.
See, e.g., Van de Walle v. Am. Cyanamid Co., 477 F.2d 20, 23 (5th Cir. 1973).
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The question here is whether the Proclamation exceeds the President’s power under the
NEA, given the ordinary meaning of “emergency.” The answer is yes, for several reasons.
First, the Proclamation’s text acknowledges that “[t]he problem of large-scale unlawful
migration through the southern border”—which the Proclamation purports to address—“is longstanding.” Pls. Ex. 14, at 1 (emphasis added). Congress’s repeated actions to address the problem
of unlawful immigration confirm that fact. See Pls. MSJ 22 n.5. A “longstanding” problem is the
opposite of an unforeseen combination of circumstances calling for immediate action.
Second, the President’s statements and the Government’s actions contradict the existence
of an emergency. See, e.g., Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 274-75 (1975)
(considering presidential announcement accompanying executive order). When announcing the
Proclamation, the President admitted that he “could do the wall over a longer period of time” and
“didn’t need to do this,” but would “rather do it much faster.” Pls. Ex. 15, at 17. And although
Congress appropriated $1.571 billion for border barriers in 2018, see Consolidated Appropriations
Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a) (2018), the Government has “represent[ed]
[that] it has only constructed 1.7 miles of fencing with that funding,” Sierra Club, 2019 WL
2247689, at *29 n.22. All this is inconsistent with the notion that a border wall is immediately
required to address an unforeseen problem.
Third, the President issued the Proclamation after his failure to convince Congress to fund
his desired border wall. Indeed, he issued it only one day after signing the 2019 Consolidated
Appropriations Act (CAA), Pub. L. No. 116-6 (2019), which appropriated only $1.375 billion for
targeted fencing in the Rio Grande Valley, id. § 231, rather than the approximately $6 billion he
wanted for a wall stretching the full border. As the President openly admitted, his emergency
declaration was “another way” of building a wall that he could use “if I can’t make a deal with

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people [in Congress] that are unreasonable.” Pls. Ex. 11, at 1; Pls. Ex. 12, at 4. Again, the NEA
was designed to allow the President to act “when [an] emergenc[y] actually exist[s],” S. Rep. No.
94-1168, at 3 (1976), not to circumvent a congressional appropriations decision he disfavored.
The Government responds to this statutory analysis in two basic ways. First, it emphasizes
“[p]ast practice” of emergency declarations, insisting that “Presidents have often chosen to declare
national emergencies to address circumstances that were neither new nor unforeseen at the time
the declaration issued.” Govt. Br. 24 n.10. But the history in fact favors Plaintiffs’ position. Of
the 60 national emergencies declared since the NEA’s passage, 54 were declared pursuant to the
International Emergency Economic Powers Act (IEEPA), Pub. L. No. 95-223, 91 Stat. 1626 (1977)
(codified at 50 U.S.C. § 1701(b)), and related legislation, in order to impose foreign economic
sanctions. See Brennan Ctr. Br. 9. Unlike the appropriations power at issue here, which is
quintessentially legislative, the President has independent foreign-policy and trade-related
authority, see United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), and
Congress has long acquiesced in the President’s use of the IEEPA as a substitute for traditional
sanctions legislation, Brennan Ctr. Br. 9-10. Given their distinct context, these emergency
declarations should play no role in the historical analysis.
Only six emergency declarations since 1976 have not been issued pursuant to the IEEPA.
Id. at 9. And those six all responded to unforeseen circumstances requiring immediate action:
Iraq’s invasion of Kuwait, see Exec. Order 12722, 55 Fed. Reg. 31803 (Aug. 3, 1990); Hurricanes
Andrew and Iniki, see Proc. No. 6491, 57 Fed. Reg. 47553 (Oct. 14, 1992); Cuban attacks on U.S.
civilian aircraft, see Proc. No. 6867, 61 Fed. Reg. 8843 (Mar. 1, 1996); the 9/11 terrorist attacks,
see Proc. No. 7463, 66 Fed. Reg. 48199 (Sept. 14, 2001); Hurricane Katrina, see Proc. 7924, 70
Fed. Reg. 54227 (Sept. 13, 2005); and the swine flu epidemic, see Proc. No. 8443, 74 Fed. Reg.

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55439 (Oct. 23, 2009). See Brennan Ctr. Br. 11-12. In short, the Proclamation is the only postNEA emergency declaration that (1) is not a tool to impose sanctions on a foreign nation and (2)
responds to a longstanding issue that Congress has considered.
Indeed, the Proclamation departs from past practice in a more fundamental respect: no
other president has ever declared an emergency to override a legislative judgment. This is the
elephant in the room that the Government’s brief never addresses. And it is the feature of the
Proclamation that most gravely threatens the separation of powers and individual liberty. If this
Proclamation is upheld, nothing will stop future presidents from invoking emergency powers as a
tool to impose their political will on a resistant Congress. See Youngstown, 343 U.S. at 650
(Jackson, J., concurring) (emergencies “afford a ready pretext for usurpation”). The Government
says nothing about this fundamental point.
The Government’s second response to Plaintiffs’ statutory analysis is that Congress
intended to give the President unfettered discretion to determine whether an emergency exists.
Govt. Br. 11 (“Congress intentionally left this determination to the President.”); id. at 20
(emphasizing “Congress’s intentional decision to leave to the President the determination about
when and under what circumstances to declare a national emergency”). As an initial matter,
construing the NEA as a blank policymaking check to the President would—at minimum—raise
“a serious doubt” about its constitutionality, given that the nondelegation doctrine bars Congress
from transferring its legislative power to the Executive Branch. Zadvydas v. Davis, 533 U.S. 678,
689 (2001); see Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). Because of that
serious constitutional doubt, this Court would be obliged to accept Plaintiffs’ “fairly possible”
“alternative interpretation of the statute”: that an “emergency” under the NEA, as in ordinary
parlance, is an unforeseen circumstance requiring immediate action. INS v. St. Cyr, 533 U.S. 289,

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300 (2001); see Indus. Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980)
(plurality opinion) (applying constitutional avoidance canon to avoid nondelegation doctrine
violation).
The Government contends, however, that even if the NEA amounts to “an ‘extreme’
delegation of authority to the President, it is quite clear that Congress intended it.” Govt. Br. 3132. But the Government bases that argument only on the NEA’s lack of a definition for
“emergency” and its “legislative history.” Id. at 32. Plaintiffs address these arguments below, in
explaining why the NEA does not preclude judicial review and why this case does not present a
nonjusticiable political question. See infra at 27-29, 31. But for present purposes, it suffices to
note the extraordinary nature of the Government’s argument. When a statute does not define a
term, courts normally apply that term’s ordinary meaning. See Sebelius v. Cloer, 569 U.S. 369,
376 (2013). The Government’s suggestion that Congress’s failure to define a term requires
construing that term as contrary to its ordinary meaning lacks any justification. See Govt. Br. 32
(claiming, without support, that applying the ordinary meaning of “emergency” would be
“substantially rewriting the NEA”). And while the Government cites some legislative history that
it believes supports its position that “national emergency” means whatever the President says, but
see infra at 28-29, other legislative history favors Plaintiffs, see S. Rep. No. 94-1168, at 3 (1976)
(rejecting definition of “emergency” requiring a “grave national crisis” as “overly broad”); id. at
2 (NEA “could be utilized only when emergencies actually exist”). “[A]mbiguous legislative
history” cannot possibly evince clear congressional intent. Milner v. Dep’t of Navy, 562 U.S. 562,
572 (2011).

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The Government thus cannot escape the dilemma that its reading of the NEA creates: it is
wrong as a matter of ordinary meaning and statutory context; but even if it were right, it would
raise grave constitutional doubts. The Government’s construction should be rejected.
B.

If Read To Authorize the Proclamation, the NEA Is Unconstitutional

As just noted, the Government argues that the NEA must be read as an “intentional
decision” by Congress “to leave to the President the determination about when and under what
circumstances to declare a national emergency.” Govt. Br. 20. On the Government’s view,
moreover, the “NEA sets forth no criteria from which [courts] could judge the President’s action.”
Id. at 25. If that were so, the NEA would be unconstitutional.
The Constitution’s text “permits no delegation” of Congress’s legislative powers.
Whitman, 531 U.S. at 472. Under Supreme Court precedent, unless a statute contains “an
intelligible principle” to which the Executive Branch “is directed to conform,” it amounts to an
unconstitutional delegation. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
That intelligible principle must also be sufficiently clear to allow the Judiciary to determine
whether the “will of Congress has been obeyed.” Yakus v. United States, 321 U.S. 414, 425 (1944).
The Supreme Court recently reaffirmed these principles in Gundy v. United States, 139 S.
Ct. 2116 (2019). Although a plurality upheld the relevant delegation, it did so only after
“determin[ing] [the] challenged statute’s meaning” and finding that it “supplied an intelligible
principle to guide the delegee’s use of discretion.” Id. at 2123. The plurality recognized that if
the relevant statute had given the Executive “unguided and unchecked authority,” “we would face
a nondelegation question.” Id.
The Government’s proposed reading of the NEA violates the nondelegation doctrine. A
statute that “leave[s] to the President the determination about when and under what circumstances
to declare a national emergency,” Govt. Br. 20, by definition lacks “an intelligible principle” to
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which the President “is directed to conform,” J.W. Hampton, 276 U.S. at 409. And a statute
without “criteria from which [courts] could judge the President’s action,” Govt. Br. 25, is not
sufficiently clear to allow judges to determine if the “will of Congress has been obeyed,” Yakus,
321 U.S. at 425. Just as the Supreme Court held in Panama Refining Co. v. Ryan, 293 U.S. 388
(1935), that a statute leaving the relevant policy decision “to the President without standard or rule,
to be dealt with as he pleased” violated the nondelegation doctrine, id. at 418, this Court must do
the same if it agrees with the Government’s construction of the NEA.
Indeed, under the Government’s interpretation, the nondelegation violation here would be
particularly flagrant for three reasons. First, “the scope of [presidential] power” under the NEA
would be breathtaking: it would grant the President unfettered authority to “affect the entire
nation[]” by declaring a national emergency and thus unlocking awesome emergency powers
under scores of separate statutes. Whitman, 531 U.S. at 475. Second, because the NEA delegates
power directly to the President, rather than an administrative agency, far fewer procedural
requirements would constrain his unilateral policymaking. Both Supreme Court decisions finding
nondelegation violations also involved this sort of direct presidential delegation. See Panama
Refining, 293 U.S. 388; A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
Third, the NEA’s delegation would open the door to the President spending appropriated funds
contrary to their assigned purpose, even though the Constitution endows Congress with the
“exclusive power over the federal purse” and “liberty is threatened” when “the decision to spend
[is] determined by the Executive alone.” U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339, 1346-47
(D.C. Cir. 2012) (Kavanaugh, J.); Clinton v. City of N.Y., 524 U.S. 417, 451 (1998) (Kennedy, J.,
concurring). The delegation thus unconstitutionally “transfer[s] to another branch ‘powers which

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are strictly and exclusively legislative.’” Gundy, 139 S. Ct. at 2123 (plurality opinion) (quoting
Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825)).
Importantly, finding a nondelegation doctrine violation here would not inhibit the
Government’s ability to function or call into question any precedent upholding a congressional
delegation. It is of course true that Congress must be able to give executive officials “the flexibility
to deal with real-world constraints in carrying out [their] charge.” Id. at 2130. For that reason, the
Court has upheld many statutes setting only broad guidelines for executive action. Id. at 2129
(citing cases). But flexibility to implement policy based on broad guidelines is different from
boundless power to make policy in the first place. If the Government’s reading of the NEA were
accepted, this case would involve the latter, not the former. Under that reading, there is no
standard at all to guide the President’s use of emergency powers, which every Justice in Gundy
agreed would run afoul of the nondelegation doctrine. Id. at 2123, 2129; see also id. at 2131-2148
(Gorsuch, J., dissenting).
The Government does not even attempt to argue that the NEA contains the intelligible
principle that Supreme Court precedent requires. Govt. Br. 32-33. According to the Government,
Plaintiffs’ “focus on Congress’s choice not to limit the circumstances under which the President
may declare a national emergency”—i.e., the established doctrinal test—is “misplaced.” Id. at 32.
Instead, the Government would prefer to focus on the NEA’s supposed status as a “procedural
statute” that “does not, on its own, give the President any new powers.” Id.
The Government mischaracterizes the NEA. The NEA states 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.” 50 U.S.C.
§ 1621 (emphasis added). By its terms, the italicized phrase delegates emergency-declaration

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power to the President.

The Government simply ignores this textual delegation when

denominating the NEA a “procedural statute.” Govt. Br. 32. And as much as the Government
would like to downplay it, id. at 33, that power has real effect: The President’s emergency
declaration pursuant to a federal statute carries immense symbolic force and inevitably spurs action
from subordinates, States, and citizens.
What’s more, an emergency declaration triggers the President’s ability to invoke powers
under numerous other federal statutes—an ability that would not exist but for the declaration.
Many of those statutes contain no additional constraints beyond the declaration of an emergency
under the NEA. See 47 U.S.C. § 606(c) (upon declaration of “national emergency” President “may
suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or
all” radio stations); 7 U.S.C. § 5712(c) (“during a period for which the President has declared a
national emergency” the President “may prohibit or curtail the export of any agricultural
commodity”); 40 U.S.C. § 3147 (President may “suspend” statutory wage requirements for public
contracts “during a national emergency”). While the Government would have this Court ignore
these other statutes, Govt. Br. 33, they bear directly on the NEA’s constitutionality. Under the
nondelegation doctrine, after all, “the degree of agency discretion that is acceptable varies
according to the scope of the power congressionally conferred.” Whitman, 531 U.S. at 475
(emphasis added). Here, the scope of the power conferred by the NEA can only be understood in
the context of the unbridled authorities that an emergency declaration automatically unlocks. 2

2

These authorities must also be considered in applying the constitutional avoidance canon,
see supra at 18-19, because when one statutory interpretation “would raise a multitude of
constitutional problems, the other should prevail—whether or not those constitutional problems
pertain to the particular litigant before the Court.” Clark v. Martinez, 543 U.S. 371, 380-81 (2005).
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Even accepting the Government’s argument that “[t]he only power at issue here is military
construction authority under § 2808,” Govt. Br. 33, the delegation would still be unconstitutional.
To be sure, to unlock § 2808 funds, the emergency must “require[] use of the armed forces” and
the military construction must be “necessary to support [the relevant] use of the armed forces.”
But according to the Government, those constraints, too, are illusory. “The statutory scheme,”
says the Government, “leaves to the President the determination of whether a national emergency
‘requires the use of the armed forces,’” and “determinations about whether specific construction
projects would be ‘necessary to support such use of the armed forces’ are vested in the expertise
of the Secretary of Defense.” Govt. Br. 50. On the Government’s view, then, the only constraint
on the expenditure of § 2808 funds is that the project qualify as “military construction.” Id. at 33.
But as this case illustrates, that is no constraint at all, given that a border wall to stop unlawful
immigration counts as “military construction” under the Government’s theory. In any event,
merely confining the Executive’s powers to “military construction” is not an “intelligible
principle.” J.W. Hampton, 276 U.S. at 409. If that were enough, then Panama Refining would not
have found a nondelegation violation, since the President there could only make policy relating to
transportation of “petroleum.” 293 U.S. at 406. Every statute has some defined subject-matter
scope, so naming the general area in which the President can exercise legislative power cannot be
enough to avoid an unconstitutional delegation.
The Government also observes that the NEA did not invent a brand “new power[]” or
“enlarge or add to Executive power,” Govt. Br. 32, insofar as presidents declared emergencies
before the NEA’s passage. But the nondelegation doctrine’s application turns solely on whether
Congress has “delegated legislative power” by failing to furnish an “intelligible principle,”
Whitman, 531 U.S. at 472; Congress is not absolved of violating that doctrine if the legislative

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powers it transfers had previously been exercised by the Executive. Put otherwise, if for fifty
years, presidents unilaterally exercise legislative power and Congress then chooses to expressly
permit that exercise of legislative power by codifying it in a statute, the statute would violate the
nondelegation doctrine.
Nor do the NEA’s “congressional notification and reporting requirements” save its
constitutionality. Govt. Br. 33. The only constraint that can satisfy the nondelegation doctrine is
an “intelligible principle” that guides Executive action and judicial review. See supra at 20. It
would be passing strange to allow Congress to transfer away its legislative authority so long as it
directed the Executive to periodically describe how it was exercising that authority. The Fifth
Circuit’s unpublished decision in United States v. Mirza, 454 F. Appx. 249 (5th Cir. 2011), does
not hold otherwise. Contra Govt. Br. 33. There, the court merely noted the IEEPA’s congressional
reporting requirement after concluding “that the IEEPA contains an ‘intelligible principle’ that
constrains the exercise of power delegated to the Executive branch.” Mirza, 454 F. Appx. at 256.
It did not suggest that such a reporting requirement could salvage a statute that lacked such a
principle. 3
Finally, the Government contends that the NEA’s delegation should be forgiven because
“Congress may delegate in even broader terms in the realm of immigration, foreign affairs, and
national security.” Govt. Br. 31. But the NEA is not tied to any particular substantive “realm”: it
is an across-the-board grant of emergency powers that can be invoked, in the Government’s view,
whenever the President chooses. Nor does the emergency declaration in this case have anything

3

The IEEPA imposes a more specific standard for an emergency declaration than does the
NEA under the Government’s reading, requiring an “unusual and extraordinary threat, which has
its source in whole or in substantial part outside the United States.” Mirza, 454 F. Appx. at 256.
That courts have upheld the IEEPA against nondelegation challenges therefore says nothing about
whether the NEA passes muster.
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to do with “foreign affairs” or “national security,” areas in which the President has certain inherent
constitutional authority. While the declaration does relate to immigration, immigration is hardly
the sole province of the Executive, see Arizona v. United States, 567 U.S. 387, 395 (2012)
(cataloguing Congress’s immigration powers), so it is unclear why the nondelegation doctrine
would be more permissive in that sphere. And what the Government neglects to mention is that
this case also touches on the power to appropriate money—an exclusively legislative power. See
supra at 21. So if anything, this case’s subject matter calls for a more—not less—demanding
stance toward delegation.
C.

This Court Has the Power To Review Plaintiffs’ NEA Claim

The Government pays mere lip service to the merits of Plaintiffs’ statutory and
constitutional arguments outlined above. It instead principally argues that this Court should
decline to review Plaintiffs’ NEA claim at all. To that end, the Government contends that (1) the
NEA precludes judicial review of emergency declarations; and (2) NEA emergency declarations
are nonjusticiable political questions. Neither contention has merit.
1.

The NEA Does Not Preclude Judicial Review of Emergency Declarations

“Congress rarely intends to prevent courts from enforcing its directives” to the Executive
Branch. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015). There is accordingly a
“strong presumption that Congress d[oes] not mean to prohibit all judicial review” of statutory
claims. Dunlop v. Bachowksi, 421 U.S. 560, 567 (1975), overruled on other grounds, Local No.
82 v. Crowley, 467 U.S. 526 (1984). To overcome that presumption, the Government bears the
“heavy burden” of showing “clear and convincing evidence” that Congress precluded judicial
review. Id.; see Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967). The Government points to
several features of the NEA that it believes evince Congress’ intent to preclude judicial review of
national emergency declarations. Notably, none of these features is an express provision barring
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judicial review—a provision Congress easily could have written had it wanted to do so. See
Dunlop, 421 U.S. at 567 (finding no intent to preclude judicial review “[i]n the absence of an
express prohibition”). The Government’s cited “evidence” is instead more amorphous, like the
absence of a statutory definition, congressional reporting requirements, and snippets of legislative
history. Even in conjunction, this evidence cannot surmount the “strong presumption” favoring
judicial review. Id.
First, the Government emphasizes that the NEA “does not define the term national
emergency.” Govt. Br. 20. But if the lack of a statutory definition for a relevant term counseled
against judicial review, then the Judiciary’s caseload would be constricted beyond recognition.
Interpreting undefined statutory terms is a federal court’s bread and butter. In those circumstances,
courts look to the term’s ordinary meaning and context, and perhaps to legislative history. See,
e.g., BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). They do not declare judicial review
unavailable. That is no less true when the case involves review of whether the President has
exceeded his statutory authority. See, e.g., AFL-CIO v. Kahn, 618 F.2d 784, 787 (D.C. Cir. 1979).
Second, the Government notes “the fact that the NEA establishes only procedural and
reporting guidelines that the President must follow when he invokes other statutory authorities
conditioned on a . . . national emergency declaration.” Govt. Br. 20. But the Government does
not even try to explain why establishing procedural requirements suggests an intent to preclude
judicial review of emergency declarations. If anything, the presence of procedural requirements
suggests that Congress wanted to constrain presidential authority—not leave it totally unchecked.
The Government cites only one case for its counterintuitive proposition, id. at 21, but that case
contradicts the Government’s argument, see United States v. Amirnazmi, 645 F.3d 564, 581 (3d

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Cir. 2011) (under NEA, courts are “not preclude[d] [from] enforcing compliance with statutory
dictates”).
Third, the Government argues that Congress’s inability to terminate the President’s
emergency declaration by passing a veto-proof “joint resolution,” 50 U.S.C. § 1622(a)(1), means
that “the Court should not step in to adjudicate this dispute.” Govt. Br. 21-22. As an initial matter,
the Government mischaracterizes the congressional remedy at issue, which allows Congress to
“terminate” an already existing “national emergency,” 50 U.S.C. § 1622(a), not to find such a
declaration unlawful in the first instance. In any event, just because Congress provided itself with
a way to terminate emergency declarations does not mean that it precluded litigants from
challenging the legality of such declarations. The Government’s cited cases have drawn this sort
of negative inference only where: (1) Congress provided private parties with a particular remedial
scheme and a private party then sought to circumvent that scheme by pursuing a separate remedy,
see Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 14 (1981); or (2)
Congress created an administrative dispute-resolution scheme and a party sought to sue in court
before invoking that scheme, see Karahalios v. Nat’l Fed’n of Fed. Emps., 489 U.S. 527, 532
(1989). The Government cites no case where a congressional remedy—i.e., passing veto-proof
legislation—has precluded a litigant from pursuing a judicial remedy.
For this reason, too, Congress’s response to INS v. Chadha, 462 U.S. 919 (1983), is
irrelevant. See Govt. Br. 21-22. After Chadha, Congress had no choice but to change the
congressional termination procedure from a “concurrent resolution” (which does not require
presidential approval) to a “joint resolution” (which requires either the President’s signature or a
veto override), because “concurrent resolutions” had been deemed unconstitutional. See Beacon
Prods. Corp. v. Reagan, 814 F.2d 1, 3 (1st Cir. 1987). Congress’s decision to bring the

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congressional termination process in line with constitutional procedures says nothing about
whether Congress intended to preclude judicial review of private challenges to emergency
declarations.
The Government next posits that the NEA’s legislative history evidences Congress’s intent
to preclude judicial review. Govt. Br. 22-23. Even assuming that unenacted legislative history
could ever provide the clear statement necessary to preclude judicial review, the NEA’s legislative
history comes nowhere close to doing so. The Government points to nothing in the legislative
history suggesting that “Congress gave thought to the matter of the preclusion of judicial
review”—let alone that it in fact precluded such review in “clear and convincing” fashion. Dunlop,
421 U.S. at 567. The best the Government can muster is a few bland statements—some from
individual legislators, see NLRB v. SW Gen. Inc., 137 S. Ct. 929, 943 (2017) (“statements by
individual legislators rank among the least illuminating forms of legislative history”)—suggesting
that presidents would have some discretion in determining whether to declare emergencies, and
that Congress could terminate emergencies. Govt. Br. 22-23. Such statements are far afield from
the kind of “specific legislative history that is a reliable indicator of congressional intent” that
could theoretically preclude judicial review. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349
(1984).
Finally, the Government argues that because “any remedial scheme where litigants could
sue the President to challenge a national emergency declaration would raise separation of powers
concerns,” the Court should not presume that Congress intended to allow such suits. Govt. Br. 2223. This argument flips the applicable presumption on its head: Congress must clearly state its
intent to preclude judicial review of governmental action, not to authorize it. See supra at 26-27.

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In any event, as explained below, suing the President under the NEA poses no separation of powers
problem. See infra at 34-35. There is no basis for the Government’s judicial-review prohibition.
2.

Challenges To NEA Emergency Declarations Do Not Present Nonjusticiable
Political Questions

“In general, the Judiciary has a responsibility to decide cases properly before it, even those
it would gladly avoid.” Zivotofsky v. Clinton, 566 U.S. 189, 194 (2012). The political question
doctrine represents “a narrow exception to that rule,” id. at 195, for “actions which would
improperly require judicial review of decisions exclusively within the purview of the political
branches of government,” Kuwait Pearls Catering Co. v. Kellogg Brown Root Servs. Inc., 853
F.3d 173, 178 (5th Cir. 2017). Evidencing the doctrine’s limited scope, the Supreme Court has
relied on it only thrice since 1960. See Rucho v. Common Cause, 139 S. Ct. 2484 (2019); Nixon
v. United States, 506 U.S. 224 (1993); Gilligan v. Morgan, 413 U.S. 1 (1973).
The political question doctrine has no application here, because “purely legal question[s]
of statutory interpretation” are not political questions even if they “may have significant political
overtones.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986); accord
Kuwait Pearls, 853 F.3d at 179. Indeed, “[t]he Supreme Court has never applied the political
question doctrine in cases” alleging “that the Executive Branch violated congressionally enacted
statutes that purportedly constrain the Executive.” El-Shifa Pharm. Indus. v. United States, 607
F.3d 836, 855 (D.C. Cir. 2010) (Kavanaugh, J., concurring in the judgment). For good reason: “If
a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be
holding that Congress is unable to constrain Executive conduct in the challenged sphere of action,”
and thereby “would systematically favor the Executive Branch over the Legislative Branch.” Id.
at 857; see Japan Whaling, 478 U.S. at 230 (no political question because “it goes without saying
that interpreting congressional legislation is a recurring and accepted task for the federal courts”);

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Zivotofsky, 566 U.S. at 196 (no political question because “[t]o resolve [plaintiff’s] claim, the
Judiciary must decide if [plaintiff’s] interpretation of the statute is correct, and whether the statute
is constitutional”—“a familiar judicial exercise”).
Here, Plaintiffs claim that the President’s Proclamation violates the NEA, based on the
ordinary meaning of “emergency.” And they further claim that if the Government’s contrary
interpretation of the NEA were adopted, then the NEA would be unconstitutional. As in Japan
Whaling and Zivotofsky, to resolve these claims, this Court “must decide if [Plaintiffs’]
interpretation of the statute is correct, and whether the statute is constitutional.” Id. “This is a
familiar judicial exercise,” falling within the judicial competency “[a]t least since Marbury v.
Madison.” Id.
The Government’s contrary arguments are unpersuasive. To begin, the Government
contends that “there are no judicially manageable standards to ascertain whether or when to declare
a ‘national emergency’” because “Congress intentionally chose not to define the term ‘national
emergency’ and left that determination to the President.” Govt. Br. 25. As explained already,
however, courts regularly construe undefined statutory terms by analyzing their ordinary meaning
and context. See supra at 27. That is all the Court must do here.
The Government fundamentally misunderstands Plaintiffs’ proposed statutory inquiry
when it claims that “the Court would have to conduct a standardless inquiry into how the current
humanitarian and security crisis at the border impacts immigration policy, foreign relations, public
safety, and national security.” Govt. Br. 25. Plaintiffs do not argue that the Proclamation violates
the NEA because there is no problem at the border, or because a border wall is unwise immigration
policy. Rather, they argue that, based on the ordinary meaning of “emergency,” the Proclamation
is invalid given its text and context. See supra at 15-17. So while “[f]raming the issue as the

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[Government] d[oes]”—i.e., whether the Judiciary may decide if “the current humanitarian and
security crisis at the border” justifies an emergency declaration, Govt. Br. 25—may raise
justiciability “concerns,” those concerns “dissipate . . .when the issue is recognized to be the more
focused one of” the NEA’s meaning. Zivotofsky, 566 U.S. at 197.
The Government’s suggestion that addressing “illegal immigration” is an unreviewable
“policy determination[]” “fall[ing] squarely within a substantive area clearly committed by the
Constitution to the political branches,” Govt. Br. 26-27, suffers from the same problem. This case
presents an ordinary statutory interpretation question, and courts—including the Supreme Court
and Fifth Circuit—have often adjudicated cases touching on complex issues of immigration policy.
See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2403 (2018) (reviewing President Trump’s “entry
restrictions on nationals of countries that do not share adequate information for an informed entry
determination, or that otherwise present national security risks”); Texas, 809 F.3d at 169-70
(reviewing President Obama’s Deferred Action for Parents of Americans and Lawful Permanent
Residents program). The Government cannot simply incant the words “immigration,” “foreign
policy,” or “national security” and evade judicial review. See Lane v. Halliburton, 529 F.3d 548,
558 (5th Cir. 2008). While the Government’s cited cases contain generic language about the
delicate judgments underlying immigration and foreign policy, none actually finds an issue
unreviewable on political question grounds, and certainly not when the only issue is what a statute
means. See Govt. Br. 27 (citing Kleindienst v. Mandel, 408 U.S. 753, 765 (1972); Mathews v.
Diaz, 426 U.S. 67, 81 (1976); Fiallo v. Bell, 430 U.S. 787, 792 (1977)).
Finally, the Government relies on cases holding that challenges to particular presidential
emergency declarations under the NEA and other similar statutes constituted nonjusticiable
political questions. Govt. Br. 23-24 & n.9. As an initial matter, the Government cites no Supreme

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Court or published Fifth Circuit decision that binds this Court.

At any rate, most of the

Government’s cases raised open-ended questions about the wisdom of a president’s emergency
declaration as a matter of foreign policy. 4 This case, in contrast, raises the question whether the
President’s declaration complies with the text of a statute. The Government’s other cases predate
the NEA, Japan Whaling, and Zivotofsky, so do nothing to undermine Plaintiffs’ arguments here. 5
3.

Even If the President’s Emergency Declaration Were Nonjusticiable,
Plaintiffs’ Nondelegation Challenge Is Reviewable

The Government’s reliance on the political question doctrine is limited to Plaintiffs’
argument that the President’s Proclamation violates the NEA. See Govt. Br. 23. The Government

4

See Soudavar v. Bush, 46 F. App’x 731 (5th Cir. 2002) (per curiam) (unpublished and
unreasoned decision in which plaintiff argued that “President Bush unjustly issued executive
orders imposing trade sanctions against Iran”); Chickakli v. Szubin, 2007 WL 9711515, at *4 (N.D.
Tex. 2007) (unpublished decision in which plaintiff “ask[ed] the Court to make a policy
determination regarding the nature of the threat posed by the conflict in Liberia”); United States v.
Beacon Prods. Corp. v. Reagan, 633 F. Supp. 1191, 1194 (D. Mass. 1986) (plaintiff argued simply
that “Nicaragua [does] not pose an unusual and extraordinary threat”); Santiago v. Rumsfeld, 2004
WL 3008724, at *3 (D. Ore. 2004) (unpublished decision in which plaintiff “dispute[d] the
justification for sending troops to Afghanistan” because “Afghanistan now has a democratically
elected government”); United States v. Groos, 616 F. Supp. 2d 777, 788-79 (N.D. Ill. 2008)
(plaintiff simply argued that “the unrestricted access of foreign parties to U.S. goods and
technology” was not an “unusual and extraordinary threat”); Chang v. United States, 859 F.2d 893,
896 n.3 (Fed. Cir. 1988) (plaintiff argued that “the ‘true facts’ of the Libyan crisis” did not
constitute an emergency). The Government also cites Amirnazmi, but that case helps Plaintiffs
on this score, because the court there adjudicated the merits of a nondelegation challenge to the
IIEPA and noted that even in foreign-policy cases courts must “enforc[e] compliance with
statutory dictates.” 645 F.3d at 576-81.
5
United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1080 (9th Cir. 1982)
(plaintiff argued simply that “there was no genuine national emergency” and court still left open
possibility of review if there was a “compelling reason”); United States v. Yoshida Int’l, Inc., 526
F.2d 560, 579 & n.29 (C.C.P.A. 1975) (U.S. Court of Customs and Patent Appeals decision stating
only that “courts will not normally review . . . the declaration or continuance of a national
emergency” and then noting that review would be proper in “clear instances” where the President
exceeded delegated powers (emphasis added)); Veterans and Reservists for Peace in Viet. v. Reg’l
Comm’r of Customs, 459 F.2d 676, 679 (3d Cir. 1972) (court noted in dicta that “a President’s
declaration of national emergency is unreviewable”); Sardino v. Fed. Res. Bank of N.Y., 361 F.2d
106, 109 (2d Cir. 1966) (declining to review an emergency declaration “when thousands of United
States troops are in action and many more are in readiness around the globe”).
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does not contend that Plaintiffs’ alternative argument that the NEA violates the nondelegation
doctrine is unreviewable. See id. at 30-33 (addressing Plaintiffs’ nondelegation doctrine argument
on the merits). Nor could it: courts have uniformly addressed the merits of similar nondelegation
challenges to laws granting the President emergency policymaking powers. See, e.g., Amirnazmi,
645 F.3d at 575-77; United States v. Dhafir, 461 F.3d 211, 215-17 (2d Cir. 2006). That makes
sense, given that “there is, of course, no exclusive commitment to the [political branches] of the
power to determine the constitutionality of a statute.” Zivotofsky, 566 U.S. at 197.
D.

There Is No Basis For Dismissing the President as a Defendant

Certain of Plaintiffs’ claims seek declaratory and injunctive relief against the President, on
the ground that his Proclamation is unlawful.

See Am. Compl., ECF 52, at 38-41.

The

Government argues that the President should be dismissed as a defendant to those claims because
“there is no cause of action against the President, and Plaintiffs may not obtain—and the Court
may not order—equitable relief directly against the President.” Govt. Br. 28. That is incorrect.
“All the officers of the government, from the highest to the lowest, are creatures of law,
and are bound to obey it.” United States v. Lee, 106 U.S. 196, 220 (1882). Accordingly, the
Supreme Court has “long held that when the President takes official action, the Court has the
authority to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703
(1997). And it has likewise held “that the President is subject to judicial process in appropriate
circumstances.” Id.; see United States v. Nixon, 418 U.S. 683, 706 (1974) (requiring President
Nixon to comply with subpoena obligating him to produce White House tape recordings).
Contrary to the Government’s suggestion, Govt. Br. 28, no categorical rule bars injunctive
relief against the President in all circumstances. See Saget v. Trump, 345 F. Supp. 3d 287, 297
(E.D.N.Y. 2018) (“[T]he Supreme Court has never held that a court may never enjoin the President
with regard to his official behavior.”). In Mississippi v. Johnson, 71 U.S. 475 (1866), the Court
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held that it could not enjoin the President from carrying out an act of Congress. Id. at 501. But
there, injunctive relief against subordinate executive officials would have been available and had
substantially the same effect as injunctive relief against the President.

See Franklin v.

Massachusetts, 505 U.S. 788, 828 (1992) (Scalia, J., concurring in part and concurring in the
judgment) (“Review of the legality of Presidential action can ordinarily be obtained in a suit
seeking to enjoin the officers who attempt to enforce the President’s directive.”). The Supreme
Court has never held that an injunction may not lie against the President in a case where
presidential action would otherwise be “unreviewable.” Id. Such a rule would flout the “bedrock
principle that our system of government is founded on the rule of law,” and that “a necessary
function of the judiciary is to determine if the executive branch is abiding by the terms of
legislative enactments.” Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996).
Here, to challenge the legality of the Proclamation itself, Plaintiffs have no option but to
sue the President. Only the President issued the Proclamation, and no subordinate executive
official is directly effectuating the Proclamation. While the Acting Defense Secretary is relying
on the Proclamation to spend § 2808 funds, enjoining the expenditure of those funds is not the
same as invalidating the Proclamation. As explained earlier, the Proclamation independently
injures Plaintiffs, and only invalidation of the Proclamation can cure those injuries. See supra at
3, 7-8. This is accordingly the “extraordinary” case in which injunctive relief against the President
is warranted. Franklin, 505 U.S. at 802 (plurality opinion); see Centro Presente v. DHS, 332 F.
Supp. 3d 393, 419 (D. Mass. 2018) (refusing to dismiss claim against president where it was
premature to determine “whether an injunction against lower officials or declaratory relief would
be sufficient”); Saget, 345 F. Supp. 3d at 297 (same).

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Yet even if injunctive relief against the President were unavailable, declaratory relief
would be. Declaratory relief is a less intrusive remedy than injunctive relief and thus does not
raise the same separation of powers concerns. See Franklin, 505 U.S. at 803 (plurality opinion).
A declaratory judgment of the Proclamation’s illegality, moreover, would go a long way toward
redressing Plaintiffs’ harms, as we must “assume it is substantially likely that the President . . .
would abide by a[] [court’s] authoritative interpretation” of the NEA. Id. Because, at the very
least, declaratory relief against the President is available, the President should not be dismissed as
a defendant to this suit.
III.

DEFENDANTS’ USE OF FUNDS TO BUILD A BORDER WALL VIOLATES
THE APPROPRIATIONS CLAUSE
Even setting aside the Proclamation, Defendants’ border-wall construction cannot move

forward because Congress has not appropriated funds for it. Under the Appropriations Clause,
“the payment of money from the Treasury must be authorized by a statute.” OPM v. Richmond,
496 U.S. 414, 424 (1990). Congress has passed no statute authorizing Defendants’ expenditure of
$6.1 billion on a border wall. To the contrary, it considered and rejected doing just that.
Defendants’ wall-funding plan thus violates the Appropriations Clause and must be enjoined.
A.

The CAA Precludes Defendants’ Wall-Funding Plan

“[A]n appropriation for a specific purpose is exclusive of other appropriations in general
terms which might be applicable in the absence of the specific appropriation.” Nevada v. Dep’t of
Energy, 400 F.3d 9, 16 (D.C. Cir. 2005). In the CAA, Congress specifically appropriated $1.375
billion for border-wall expenditures and restricted those expenditures to “construction . . . in the
Rio Grande Valley Sector” alone. CAA, § 230; id. § 231. Yet Defendants intend to spend $6.1
billion in funds appropriated for other more general purposes—military construction, 10 U.S.C. §
2808, and counterdrug support, 10 U.S.C. § 284—on building a wall along other portions of the

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southern border.

This plan runs headlong into the specific vs. general canon and is thus

inconsistent with the CAA.
The Government never even mentions the specific vs. general canon—a cardinal rule of
statutory construction, see, e.g., Bloate v. United States, 559 U.S. 196, 207 (2010), with direct
application to this case. It instead presses the inverse rule: “In the absence of contrary language,
the grant of a specific appropriation cannot be read to restrict the use of other appropriated funds
for similar purposes pursuant to other statutory authority.” Govt. Br. 54-55. “Had Congress
wished to restrict all other border-barrier construction,” the Government continues, “it could have
plainly so stated.” Id. at 55.
The Government offers no support for its novel rule, because there is none. Courts interpret
statutes by viewing them in the context of the entire U.S. Code. See W. Va. Univ. Hosps., Inc. v.
Casey, 499 U.S. 83, 101 (1991). That general principle applies fully in the appropriations context.
See GAO, Principles of Federal Appropriations Law (4th Ed. 2016) (GAO Red Book), at 1-64
(“[W]e assume that the legislature intended to enact a consistent body of law, and so we try to
harmonize conflicting statutes to give full force to each of them.”). So Congress’s consideration
and rejection of a $6.1 billion border wall in the CAA of course sheds light on whether Congress
authorized a $6.1 billion border wall elsewhere in the statute books.
Moreover, the notion that Congress must “plainly” state restrictions on executive
expenditures gets the law backwards. Govt. Br. 55. The actual rule is that “the expenditure of
public funds is proper only when authorized by Congress, not that public funds may be expended
unless prohibited by Congress.” United States v. MacCollom, 426 U.S. 317, 321 (1976) (emphasis
added). The Government’s proposed principle would dangerously expand executive authority to

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spend money, threatening Congress’s “absolute” power of the purse and, in turn, individual liberty.
See Dep’t of Navy, 665 F.3d at 1348.
Defendants’ wall-funding plan also violates CAA § 739. That provision states:
None of the funds made available in this or any other appropriations Act may be used to
increase . . . funding for a program, project, or activity as proposed in the President’s budget
request for a fiscal year until such proposed change is subsequently enacted in an
appropriation Act, unless such change is made pursuant to the reprogramming or transfer
provisions of this or any other appropriations Act.
Here, Defendants impermissibly seek to use funds “made available” in an “appropriations Act” to
“increase . . . funding for a . . . project . . . as proposed in the President’s budget.” The military
construction and counterdrug support funds they seek to use to build a border wall were “made
available” by appropriations acts. See Pls. MSJ 35. The border wall is a “project” under that
word’s ordinary meaning. See Merriam-Webster’s Dictionary 932 (10th ed. 1998) (defining
“project” as “a specific plan or design”). And the President proposed that “project” in his January
6, 2019 budget request. Pls. Ex. 28, at 1.
Section 739’s exception for changes “made pursuant to the reprogramming or transfer
provisions of this or any other appropriations Act” does not apply. An “appropriation[s] Act” is a
law whose title begins: “An Act making appropriations.” 2 U.S.C. § 622(5); 1 U.S.C. § 105. And
neither § 2808 nor § 284 is found in such a law. See Military Construction Codification Act, Pub.
L. 97-214, 96 Stat. 153 (1982) (§ 2808); National Defense Authorization Act, Pub. L. 114-328,
130 Stat. 2000, 2381, 2497 (2016) (§ 284).
The Government responds that Defendants’ wall-funding plan does not violate § 739
because “[a]ny funds utilized for border barrier construction pursuant to § 2808 or § 284 will be
used for . . . military construction and counter-drug activities,” not “to increase funding for a CBP
program, project, or activity as proposed in the President’s budget request.” Govt. Br. 55. But the

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Government does not dispute that a border wall is a “project,” or that § 2808 and § 284 money is
being “used” to fund that project. While it is true that one could describe the § 2808 and § 284
funds at a higher level of generality as being “used” for “military construction and counter-drug
activities,” Govt. Br. 55, that does not negate the fact that they are being “used” to fund a “project
as proposed in the President’s budget request.” And that is what § 739 forbids.
The Government also emphasizes that DOD will spend the relevant § 2808 and § 284 funds,
whereas the President’s budget request was for a DHS project. See Govt. Br. 55. But § 739’s
prohibition turns not on which agency uses appropriations to increase funding for a particular
“project,” but on whether the “project” is one that the President proposed. Indeed, § 739’s whole
point is to prevent end runs around the CAA’s appropriations allocations; that safeguard would be
nullified if the executive could simply choose a different agency to spend forbidden funds.
B.

Section 2808 Does Not Authorize Border-Wall Expenditures

The Proclamation makes available to the Acting Defense Secretary $3.6 billion in § 2808
military construction funds to build a border wall. See Pls. Ex. 14. Section 2808, however, does
not authorize border-wall expenditures.
In relevant part, § 2808 states:
In the event of the declaration by the President of a national emergency in accordance with
the National Emergencies Act that requires the use of the armed forces, the Secretary of
Defense may undertake military construction projects that are necessary to support such
use of the armed forces.
Section 2808 thus establishes three preconditions to the use of military construction funds: (1) the
relevant “national emergency” must “require[] the use of the armed forces”; (2) the relevant project
must constitute a “military construction project”; and (3) the relevant project must be “necessary
to support such use of the armed forces.” None is satisfied here.

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1. The Proclamation declares that the relevant “national emergency” is the “current
situation at the southern border.” Pls. Ex. 14, at 1. The “current situation,” in turn, boils down to
a “problem of large-scale unlawful migration” and an “inability to provide detention space for
many . . . aliens while their removal proceedings are pending.” Id. This “situation” is thus bound
up with the enforcement of immigration laws.
But the enforcement of immigration laws does not “require[] the use of the armed forces.”
“Securing the border . . . [is], of course, law enforcement”—not military—“activit[y].” City of
Indianapolis v. Edmond, 531 U.S. 32, 42 (2000). As the Acting Defense Secretary recently
admitted, the situation at the southern border is “not a military threat.” 6 And as another top-level
Defense official has testified, “[n]one of the capabilities that we are providing [at the southern
border] are combat capabilities.” 7 Given this reality, Congress has always tasked civilian agencies
with immigration enforcement responsibilities. See Pls. MSJ 37 n.11. And even when addressing
“an actual or imminent mass influx of aliens . . . near a land border[] present[ing] urgent
circumstances”—i.e., the same circumstances alleged in the Proclamation—Congress only
authorized civilian “law enforcement officer[s]” to perform immigration functions. 8 U.S.C. §
1103(a)(10).
The exclusive use of civilians for domestic law enforcement has deep roots. Enacted in
1878, the Posse Comitatus Act generally bars military members from “execut[ing] the laws.” 18
U.S.C. § 1385. And other statutory provisions contain similar prohibitions—e.g., barring military
participation in “search[es], seizure[s], arrest[s], or other similar activit[ies].” 10 U.S.C. § 275.

6

Department of Defense Budget Posture: Hearing Before the S. Comm. on Armed Servs.,
116th Cong. (2019) (statement of Patrick Shanahan), https://tinyurl.com/DefenseBudgetHearing.
7
Heather Timmons, The US Border Situation Isn’t a National Emergency, Pentagon
Officials Tell Congress, Quartz (Jan. 29, 2019), https://tinyurl.com/QuartzBorder.
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These laws recognize that nothing could be “more sinister and alarming” than allowing a President
to “vastly enlarge his mastery over the internal affairs of the country” through “commitment of the
Nation’s armed forces.” Youngstown, 343 U.S. at 642 (Jackson, J., concurring).
In response, the Government adopts a familiar refrain: “The statutory scheme leaves to the
President the determination of whether a national emergency ‘requires the use of the armed
forces.’” Govt. Br. 50. This argument fails for all the reasons the Government’s earlier politicalquestion argument fails. Under Supreme Court precedent, statutory-interpretation inquiries are
justiciable, even if they have political ramifications. See supra at 30-31. The issue here is one of
pure statutory interpretation: Does the declared “national emergency” “require[] use of the armed
forces”? Suppose, for instance, that a future president declares a national emergency after a
financial crisis and invokes § 2808 to build a new consumer-protection agency in the middle of
Wall Street. On the Government’s view, a court would be powerless to invalidate that plan on the
ground that addressing a financial crisis does not “require[] use of the armed forces.” Nonsense.
Unsurprisingly, the Government cites nothing to support its argument. Its only justification
is that because “courts have uniformly concluded that a Presidential declaration of a national
emergency is a nonjusticiable political question,” the issue of whether an emergency “requires use
of the armed forces” must be as well. Govt. Br. 50. That conclusion does not follow from the
premise. Determining whether an issue presents a political question necessitates a “discriminating
inquiry into the precise facts and posture of the particular case.” Kuwait Pearls, 853 F.3d at 178.
So even if a challenge to an emergency declaration itself were somehow a political question, a
challenge to whether an emergency “requires the use of the armed forces” is not.
2. Even when there is a national emergency requiring use of the armed forces, § 2808
authorizes only “military construction projects.” Section 2801(a) defines “military construction”

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to include “any construction, development, conversion, or extension of any kind carried out with
respect to a military installation.” 10 U.S.C. § 2801(a). And “military installation” means “a base,
camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a
military department.” Id. § 2801(c)(4).
This language precludes Defendants’ border-wall expenditures. The southern border,
where the wall construction will be “carried out,” is not a “military installation,” because it is not
a “base, camp, post, station, yard, center, or other activity.” Id. § 2801(a), (c)(4). Nor is the border
“under the jurisdiction of the Secretary of a military department.” Id. § 2801(c)(4). If anything,
the border is under DHS’s “jurisdiction,” and DHS is not a “military department.” See 6 U.S.C. §
202(2) (tasking DHS with “[s]ecuring borders”).
Not only text, but also past practice, cuts against Defendants’ reliance on § 2808. The two
instances in which presidents have invoked § 2808 to authorize “military construction projects”
both involved standard construction on military sites under the control of military departments
(e.g., barracks on a base in Afghanistan). See Pls. MSJ 39; accord Govt. Br. 17-18. Thus, until
now, the Executive Branch has never deployed § 2808 to build a law-enforcement project outside
of a military site. “[T]hat it took [DOD] [decades] to discover its novel interpretation further
highlights [that interpretation’s] unreasonableness.” Chamber of Commerce v. Dep’t of Labor,
885 F.3d 360, 380 (5th Cir. 2018).
The Government first counters that because the definition of “military construction project”
is (on its view) “broad and illustrative, not specific or exclusive,” it can be read to encompass
border-wall construction. Govt. Br. 51. In particular, it emphasizes the phrase “include[] any
construction . . . of any kind carried out with respect to a military installation.” Id. (quoting 10
U.S.C. § 2801(a)). But that phrase does not help the Government, because regardless of whether

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“include” is broad, military construction must still be construction “carried out with respect to a
military installation.” The Government would simply read that critical phrase out of the statute.
Realizing the implausibility of that move, the Government alternatively addresses the
definition of “military installation” head on. Govt. Br. 51. That definition, the Government
stresses, contains the catchall phrase “or other activity,” which the Government believes to include
the southern border. Id. But “[w]here general words follow specific words in a statutory
enumeration, the general words are construed to embrace only objects similar in nature to those
objects enumerated by the preceding specific words.” Wash. St. Dep’t of Social & Health Servs.
v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003). In § 2801, “or other activity” is a
general phrase following a specific list—“base, camp, post, station, yard, center”—of militaryrelated sites. That general phrase therefore must be “construed to embrace only objects similar in
nature” to military-related sites. Wash. St., 537 U.S. at 384. The southern border bears no such
similarity. See Sierra Club, 2019 WL 2247689, at *25 (“Applying traditional tools of statutory
construction, Section 2801 likely precludes treating the southern border as an ‘other activity.’”).
Having failed to justify Defendants’ actions based on § 2808’s text, the Government (of
course) urges the Court not to address Plaintiffs’ § 2808 argument, because it “has no concrete
record upon which to assess whether these statutory requirements have been satisfied with respect
to particular construction projects.” Govt. Br. 51. But addressing Plaintiffs’ argument does not
require a “concrete record” of “particular construction projects.”

All that matters is that

Defendants will use § 2808 funds to build a wall along the southern border, and the record plainly
shows that they will. See supra at 11-13. The Court may therefore decide whether a wall along
the southern border constitutes “military construction.”

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3. Even if a border wall were a “military construction project,” § 2808 also requires that
the project be “necessary to support such use of the armed forces.” Common sense and past
practice show that projects “necessary to support” the armed forces are those that facilitate or
promote military activity, such as hangars, runways, logistics hubs, and ammunition-storage
facilities. See Pls. MSJ 40. Here, the relevant “use of the armed forces” is immigration
enforcement, since that is what the alleged “national emergency” allegedly requires. See supra at
39. But as already explained, immigration enforcement is not a lawful “use of the armed forces”
at all. And even assuming it were, a border wall is not “necessary to support” the armed forces in
its enforcement of immigration laws. As President Trump explained: “If we had a wall, we don’t
need the military because we’d have a wall.” Pls. Ex. 15, at 7.
On this point, the Government again requests blind deference, arguing that “determinations
about whether specific construction projects would be ‘necessary to support such use of the armed
forces’ are vested in the expertise of the Secretary of Defense.” Govt. Br. 50. But no case holds
that all issues touching on the military are automatically political questions. To the contrary, only
where the case would ask courts to referee “matters of war,” such as a “decision to deploy troops
in a foreign land,” “mine the harbors of another county in the course of a war,” use particular
“training procedures,” or halt “nuclear testing” does the political question doctrine come into play.
Lane, 529 F.3d at 560 (citing cases). Determining whether a border wall is “necessary to support”
the armed forces’ enforcement of immigration law would not draw courts into “matters of war.”
Id. And while the Government would solely focus on respecting military judgments, it fails to
acknowledge that “to abstain from giving effect to a federal statute is [dis]respectful to Congress.”
Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 825 (9th Cir. 2017) (emphasis added).

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C.

Section 284 Does Not Authorize Border-Wall Expenditures

In addition to § 2808, Defendants have invoked § 284 as authority to spend $2.5 billion on
a border wall. Section 284(a) states that “[t]he Secretary of Defense may provide support for the
counterdrug activities . . . of any other department or agency . . . for any of the purposes set forth
in subsection (b).” 10 U.S.C. § 284(a). Section 284(b)(7) then lists as one such purpose:
“Construction of roads and fences and installation of lighting to block drug smuggling corridors
across international boundaries of the United States.” Id. § 284(b)(7).
Section 284’s text shows that “support” cannot include a $2.5 billion outlay toward a
border wall. Consider first § 284(b)’s list of forms of support that DOD may provide. Each of
those forms is a subsidiary act of assistance. See 10 U.S.C. § 284(b)(1)-(10) (listing, inter alia,
equipment repair, personnel transport, and reconnaissance).

A $2.5 billion border-wall

expenditure, conversely, would bankroll a massive construction project. It therefore “fits poorly
with the remainder of [§ 284’s] scheme.” Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct.
1061, 1071 (2018).
Consider next § 284(h)’s congressional notification provision, which requires that DOD
notify Congress about “small scale construction project[s]” costing no more than $750,000. 10
U.S.C. §§ 284(h)(1)(B), 284(i)(3). Congress would not have mandated notification of small-scale
construction projects costing under $750,000 if it thought that DOD could also support large-scale
construction projects costing over 3,000 times that amount, because Congress would care more
about costly projects than inexpensive ones. The only inference, then, is that Congress did not
intend the word “support” to encompass an expenditure like the one here.
That inference gains traction from established rules of statutory construction. Section
284(b)(7) a sub, sub provision allowing “support” for construction of “fences” to block “drug
smuggling corridors,” can only be regarded as an ancillary provision within a section about
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counterdrug support activities. Yet DOD has suddenly “claim[ed] to discover in [this] long-extant
statute [the] unheralded power” to spend $2.5 billion on a wall. UARG v. EPA, 573 U.S. 302, 324
(2014). That sort of gambit is “typically” met with a “measure of skepticism,” id., because
Congress does not grant agencies sweeping powers through “vague terms or ancillary provisions—
it does not, one might say, hide elephants in mouseholes.” Whitman, 531 U.S. at 468.
The Government claims that Defendants’ use of § 284(b)(7) here is not novel, pointing to:
(1) the construction of a 14-mile fence “along the San Diego-Tijuana border” and (2) the
“construction and rehabilitation” of 66.6 miles of fencing and 169.5 miles of road elsewhere along
the border. Govt. Br. 51-52. The Government also notes that Congress once recommended that
DOD spend between $2 and $3 million on “fence construction projects in Texas and Arizona.” Id.
These examples self-evidently pale in comparison to a $2.5 billion wall stretching the entire
southwest border and thus only confirm the implausibility of the Government’s interpretation.
The Government’s textual arguments fare no better. It observes that no express “monetary
restriction appears in the types of support permitted under § 284,” relying on the truism that “if
Congress wanted to limit all § 284 construction to ‘small scale construction,’” it could have said
so. Govt. Br. 51, 53. But as already explained, § 284’s structure and context show that $2.5 billion
exceeds what Congress could have possibly intended “support” to entail.

And “[i]t is a

fundamental canon of statutory construction that the words of a statute must be read in their context
and with a view to their place in the overall statutory scheme.” Nat’l Ass’n of Home Builders v.
Def. of Wildlife, 551 U.S. 644, 666 (2007). The Government also states that “there is nothing
inherently implausible about Congress choosing to require notifice for some, but not all, projects
that DoD could construct under § 284.” Govt. Br. 52. That misses the point. What is implausible

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is that Congress would require notification for inexpensive projects (those costing under
$750,000), but not exorbitantly expensive ones.
D.

Section 8005 Does Not Authorize DOD’s Reprogramming of Funds

DOD has also violated the Appropriations Clause by unlawfully reprogramming funds
from one account to another, so that it can spend $2.5 billion on a wall. Congress appropriated
$881,525,000 to DOD’s “Drug Interdiction and Counter-Drug Activities” account for fiscal year
2019, $517 million of which was for “counter-narcotics support.” See Pub. L. No. 115-245, div.
A, tit. VI, 132 Stat. at 2997. That appropriation is far less than the $2.5 billion that DOD has been
asked to use to “support” DHS under § 284 by constructing a border wall. To make up the
difference, DOD has reprogrammed $2.5 billion from its military personnel appropriation account
to its drug interdiction account. Govt. Ex. 6, at 1; see Sierra Club, 2019 WL 2247689, at *10.
For this reprogramming to comply with the Appropriations Clause and federal
appropriations law, it may be done only with congressional permission. See Sierra Club, 2019
WL 2865491, at *12; Dep’t of Navy, 665 F.3d at 1348; 31 U.S.C. § 1532. DOD points to § 8005
of the DOD Appropriations Act as the requisite authorization. That section reads as follows:
[The Secretary may transfer] funds made available in this Act to the Department of Defense
for military functions (except military construction) . . . [p]rovided [t]hat 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.
Section 8005 thus authorizes DOD’s reprogramming only if: (1) it is “based on unforeseen
military requirements”; (2) “the item for which funds are requested” has not “been denied by
Congress”; and (3) the transfer is “for military functions (except military construction).” None of
these conditions is met. See Sierra Club, 2019 WL 2865491, at *12-*15 (Ninth Circuit holding
that Defendants likely violated § 8005); Sierra Club, 2019 WL 2247689, at *19-*23 (district court
holding same).
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1. DOD has reprogrammed funds for purposes of building a border wall, not “based on
unforeseen military requirements.” As already explained, the alleged need for a border wall is not
“unforeseen”; rather, the President and his Administration have requested funding for a wall
numerous times. See supra at 38; Pls. MSJ 4. Nor is DOD’s reprogramming for a “military
requirement.” A border wall would be used to prevent unlawful immigration, a civilian—not a
military—responsibility. See supra at 39-40.
According to the Government, “§ 8005 uses the term ‘unforeseen’ in the context of the
budgeting process.” Govt. Br. 56. Because “the need for DoD to exercise its § 284(b)(7) authority
did not arise until February 2019, when DHS requested support from DoD,” the Government
continues, that need “was an unforeseen military requirement at the time of the President’s fiscal
year 2019 budget request” and through “Congress’s passage of DoD’s fiscal year 2019 budget.”
Govt. Br. 56-57. In essence, the Government argues that it was “unforeseen” that Congress would
deny funding for a border wall and thus “unforeseen” that DHS would request support for a wall
from DHS.
That is not a plausible construction of § 8005. By § 8005’s terms, what must be
“unforeseen” is the “military requirement” itself, not a congressional appropriations judgment or
a DHS “support” request. Under the Government’s view, the Executive could simply wait to see
if Congress provided a requested DHS appropriation and, if not, direct DHS to seek “support”
from DOD in the precise amount that Congress denied—a blatant evasion of Congress’s
appropriations authority. The far more natural reading of § 8005 is that Congress wanted to give

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DOD leeway to reprogram funds only in the face of an unexpected threat of war or other disaster.
Indeed, that is how DOD has previously used this reprogramming authority. 8
Even if the Government were right that “§ 8005 uses the term ‘unforeseen’ in the context
of the budgeting process,” Govt. Br. 56, DOD’s need to use funds to support DHS in border-wall
construction was not “unforeseen.” Only five days after President Trump took office, he issued
an executive order requiring DHS to “[i]dentify . . . all sources of Federal funds for the planning,
designing, and constructing of a physical wall along the southern border.” Exec. Order No. 13767,
82 Fed. Reg. 8793, 8794 (Jan. 25, 2017) (emphasis added). And in April 2018, the President
directed the Defense Secretary to support DHS in “securing the southern border.” See Presidential
Memorandum, 2018 WL 1633761 (Apr. 4, 2018).
2. DOD’s reprogramming is also unlawful because a border wall—the “item” for which
the funds are “requested”—is an “item” that has “been denied by Congress.” The President sought
funds to build a wall along the southern border. See, e.g., Pls. Ex. 28, at 1 (January 6, 2019 request
for “$5.7 billion for construction of a steel barrier for the Southwest border”). But Congress
declined to give the President what he sought, instead appropriating only $1.375 billion for fencing
in specified areas. See CAA, §§ 230-31. Congress thus “denied” the precise “item”—a $5.7 billion
wall stretching the border—for which DOD now seeks to transfer funds.
The Government responds that the relevant “item” is “counter-drug activities funding,” not
a wall. Govt. Br. 57. And the appropriation of $1.375 billion to DHS for targeted fencing, says

8

See, e.g., Office of the Under Secretary of Defense (Comptroller), DOD Serial No. FY
04-37
PA,
Reprogramming
Action
(Sept.
3,
2004),
http://tinyurl.com/DOD2004ReprogrammingAction (reprogramming to pay for unexpected
hurricane damage to bases).
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the Government, “does not constitute a ‘denial’ of appropriations to DoD for its counter-drug
activities.” Id.
Again, the Government’s reading fails. An “item” in an appropriations bill is “a sum of
money directed by the [legislature] to be spent for a particular purpose.” Jubelirer v. Rendell, 953
A.2d 514, 534 (Pa. 2008); Black’s Law Dictionary 832 (6th ed. 1990) (“An ‘item’ in an
appropriation is an indivisible sum of money dedicated to a stated purpose.”). In the CAA,
Congress directed $1.375 billion to be spent for the purpose of targeted fencing in Rio Grande
Valley and, in so doing, denied the direction of $5.7 billion for the purpose of a wall stretching the
border. There is no basis for the Government’s counterintuitive reading of “item” to mean
“counter-drug activities funding” rather than a wall: as the Ninth Circuit held, had Congress
intended that reading, it would have written “funding requests denied by the Congress.” Sierra
Club, 2019 WL 2865491, at *14. Nor does the Government explain how Congress did not “deny”
$5.7 billion in wall funding under that word’s ordinary meaning when it considered, but refused,
to provide it. See id. at *14 (under “ordinary and common-sense meaning of ‘denied,’” “Congress
considered and denied appropriations for the border barrier construction projects that DoD now
seeks to finance”). When Congress appropriates a specific amount for a project, “that is all
Congress intended” for that project “to get in [a fiscal year] from whatever source.” Nevada, 400
F.3d at 16 (emphasis added); see MacCollom, 426 U.S. at 321 (“Where Congress has addressed
the subject as it has here, and authorized expenditures where a condition is met, the clear
implication is that where the condition is not met, the expenditure is not authorized.”).
Even if § 8005’s text were ambiguous, its legislative history dooms the Government’s
reading. In 1974, Congress added the “denied by Congress” restriction on DOD’s reprogramming
authority to “tighten congressional control of the reprogramming process” and prevent DOD from

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“undoing the work of the Congress.” H. Rep. No. 93-662, at 16 (1973); see DOD Appropriations
Act of 1974, Pub. L. No. 93-238, § 735, 87 Stat. 1026, 1044 (1974). The House Committee Report
for that bill explains that “on some occasions, the Department ha[d] requested that funds which
have been specifically deleted in the legislative process be restored through the reprogramming
process,” which the Committee found “untenable.” H. Rep. No. 93-662, at 16. Accordingly,
restrictions like § 8005 must be “construed strictly” to “prevent the funding for programs which
have been considered by Congress and for which funding has been denied.” H. Rep. No. 99-106,
at 9 (1985). The Government’s position cannot be reconciled with Congress’s stated purpose in
passing § 8005.
3. Finally, DOD’s reprogramming of funds is unlawful for yet a third reason: it is not “for
military functions.” It is for building a wall designed to impede unlawful immigration. And the
support DOD provides in building border walls is not “military” in nature. See Govt. Br. 7
(military personnel have “harden[ed] U.S. ports of entry, erect[ed] temporary barriers, and
emplac[ed] concertina wire”). If building a border wall were a “military function,” however, it
would obviously be “military construction.” Defendants have taken exactly that position when
invoking § 2808 as a source of wall funding.

Section 2808 also uses the term “military

construction,” and the same statutory definition applies to that term in both § 2808 and § 8005.
See 10 U.S.C. § 2801(a) (defining “military construction” “as used in this chapter or any other
provision of law” (emphasis added)). That creates an insuperable obstacle for Defendants, because
§ 8005 expressly bars reprogramming for “military construction.” Defendants cannot have it both
ways: If the funds being reprogrammed under § 8005 are “for military construction,” then § 8005
bars that reprogramming; but if those funds are not being reprogrammed “for military
construction,” then § 2808 bars expenditures of funds on a border wall.

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The Government argues that “[t]here is no violation of § 8005 here because neither the
surplus Army personnel funds from which the original $1 billion was transferred, nor the counternarcotics support line of the [drug interdiction account], to which the funds were transferred,
constitute military construction funds.” Govt. Br. 58. But § 8005 says that funds can be
reprogrammed only “for military functions,” except when those functions are “military
construction.” The text thus trains attention on the purpose of the reprogramming itself, not the
nature of the accounts from and to which the reprogramming is made.

Defendants are

reprogramming funds for the purpose of constructing a border wall. And to the extent constructing
a border wall is a “military function,” it must be “military construction,” so § 8005 prohibits
Defendants’ attempted reprogramming.
The Government also resists the notion that there is “a contradiction between § 8005 and
the definition of ‘military construction’ for purposes of § 2808.” Govt. Br. 58. “In the context of
§ 8005,” the Government claims, “‘military construction’ is a term of art that generally refers to
the Military Construction and Veterans Affairs budget.” Id. But the Government does not specify
the source of this “context” or how it can overcome the fact that “military construction” is a
statutorily defined term carrying the same meaning across all “provision[s] of law.” See 10 U.S.C.
§ 2801(a). Moreover, the Government observes, “Congress has previously allowed DoD to use §
8005 to transfer funds for use under its § 284 authority and to provide support for activities on the
southern border.”

Govt. Br. 58 & n.21.

But “[a]bsent . . . overwhelming evidence of

[congressional] acquiescence, [courts] are loath to replace the plain text and original understanding
of a statute with an amended agency interpretation.” Solid Waste Agency of N. Cook Cty. v. U.S.
Army Corps of Eng’rs, 531 U.S. 159, 170 n.5 (2001). The Government’s isolated examples of
congressional acquiescence fall well short of this threshold.

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E.

Plaintiffs’ Appropriations Clause Claims Are Valid

As just explained, Defendants have violated the Appropriations Clause by spending and
reprogramming money without congressional authorization. The Government nonetheless argues
that Plaintiffs’ Appropriations Clause claims “must be dismissed.” Govt. Br. 58. Relying
principally on Dalton v. Specter, 511 U.S. 462 (1994), the Government maintains that “these
counts merely recast statutory claims in constitutional terms, and ‘claims simply alleging that the
President has exceeded his statutory authority are not ‘constitutional claims.’” Id. (quoting Dalton,
511 U.S. at 473).
But Dalton did not involve Appropriations Clause claims and is thus not controlling here.
See Sierra Club, 2019 WL 2865491, at *18 (distinguishing Dalton). In Dalton, the Court rejected
the lower court’s view “that whenever the President acts in excess of his statutory authority, he
also violates the constitutional separation-of-powers doctrine.” 511 U.S. at 471. “Our cases do
not support the proposition,” the Court explained, “that every action by the President, or by another
executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.”
Id. at 472. The Court noted, however, that constitutional violations that inherently turn on issues
of statutory interpretation—such as nondelegation violations—are reviewable. See id. at 473 n. 5
(citing Panama Refining).
Unlike the Dalton plaintiffs, Plaintiffs here do not assert generic “separation of powers”
violations. Rather, they assert that by spending money without congressional authorization,
Defendants have violated a specific constitutional command: the Appropriations Clause. Their
constitutional claims, therefore, do not rest on the proposition “that every action by the [Executive
Branch], in excess of . . . statutory authority is ipso facto in violation of the Constitution.” Id. at
472. Their claims instead resemble the nondelegation claim in Panama Refining, which Dalton
reaffirmed was reviewable. Id. at 473 n.5. Indeed, every Appropriations Clause claim will turn
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“on whether the statutes authorize or proscribe the Government’s action,” Govt. Br. 59, because
the constitutional violation stems from executive spending absent statutory permission. The
Government’s position, then, would categorically bar judicial review of Appropriations Clause
claims, in contravention of the longstanding principle that plaintiffs may “sue to enjoin
unconstitutional actions by . . . federal officers.” Armstrong v. Exceptional Child Ctr., 135 S. Ct.
1378, 1384 (2015).
For this reason, too, it is immaterial that the President does not purport to have “exercised
his inherent authority under Article II of the Constitution,” as the President did in Youngstown.
Govt. Br. 59. That will be true in all Appropriations Clause disputes, which inevitably arise when
the Executive invokes a statute—not inherent constitutional authority—that it believes authorizes
certain spending. Thus, the Government’s position again leads to the untenable result that
Appropriations Clause claims are never reviewable.
Finally, in a footnote, the Government argues that “[e]ven if this Court were to determine
that the Complaint stated a constitutional cause of action, challenges to the constitutionality of
agency action must be brought pursuant to the APA.” Govt. Br. 60 n. 22. 9 Its sole support for this
argument is two citations to federal district court decisions, but those decisions hold only that
extra-record discovery is unavailable when plaintiffs challenge the constitutionality of agency
action outside the APA. See Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 58 F. Supp.
3d 1191, 1237 (D.N.M. 2014) (holding that judicial review of First Amendment claim against
agency was limited “to the administrative record”); Harvard Pilgrim Health Care v. Thompson,

9

Although Plaintiffs do not bring their constitutional claims under the APA, sovereign
immunity does not apply. See Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir.
1996) (“The APA’s waiver of sovereign immunity applies to any suit whether under the APA or
not” (citing 5 U.S.C. § 702)).
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318 F. Supp. 2d 1, 10 (D.R.I. 2004) (holding “that the presence of a constitutional claim” does not
“allow[] for discovery of matters not included in the administrative record”). They do not hold
that all constitutional challenges to executive action must be asserted under the APA, rather than
the Constitution or an equitable right of action. Such a rule would upset centuries of Supreme
Court precedent upholding “[t]he ability to sue to enjoin unconstitutional actions by . . . federal
officers”—precedent that “reflects a long history of judicial review of illegal executive action,
tracing back to England.” Armstrong, 135 S. Ct. at 1384; see Youngstown, 343 U.S. at 583
(conducting non-APA review of whether executive order was authorized “by an act of Congress
or by any constitutional provisions”); Dames & Moore v. Regan, 453 U.S. 654, 667 (1981)
(conducting non-APA review of whether executive officials’ actions “were beyond their statutory
and constitutional powers”). The Government’s proposal to relegate all constitutional claims to
the APA would truly be revolutionary. Sierra Club, 2019 WL 2865491, at *19-*20 (rejecting
same argument). 10
IV.

DEFENDANTS HAVE VIOLATED THE ADMINISTRATIVE PROCEDURE
ACT
A.

Defendants’ Wall-Funding Plan Violates the APA

While Defendants’ wall-funding plan violates the Appropriations Clause, it also
independently violates the APA for essentially the same reasons. Defendants’ use of § 2808 and
§ 284 to spend money on a border wall is both “contrary to constitutional . . . power” because it
violates the Appropriations Clause, and “in excess of statutory . . . authority” because neither

10

Even if this Court were to conceive of Plaintiffs’ claims as statutory claims instead of
constitutional claims, the result would be the same. See Reich, 74 F.3d at 1328 (“enactment of
APA” did “not repeal the review of ultra vires actions recognized long before,” so “[w]hen an
executive acts ultra vires, courts are normally available to reestablish the limits on his authority”);
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165, 170 (1993) (conducting non-APA review
of executive action alleged to exceed statutory powers).
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provision authorizes such spending. 5 U.S.C. § 706(2); see supra at 39-47. So too Defendants’
invocation of § 8005 to reprogram funds. See supra at 47-52. 11 Those actions accordingly must
be “h[e]ld unlawful and set aside.” 5 U.S.C. § 706(2).
B.

Plaintiffs’ APA Claims Are Reviewable

Even though “[t]he [APA] embodies a basic presumption of judicial review,” Dep’t of
Commerce, 139 S. Ct. at 2567, the Government argues that Plaintiffs’ APA claims are
unreviewable for three reasons, Govt. Br. 44-49. None has merit. 12
1.

There Is “Final Agency Action” For Purposes of Plaintiffs’ § 2808 Claim

The Government first asserts that Plaintiffs’ challenge to Defendants’ expenditure of funds
under § 2808 (but not § 284 or § 8005) is unreviewable due to a lack of “final agency action.”
Govt. Br. 44. “[T]he APA’s finality requirement is ‘flexible’ and ‘pragmatic.’” Am. Airlines, Inc.
v. Herman, 176 F.3d 283, 287 (5th Cir. 1999). “[T]wo conditions . . . generally must be satisfied
for agency action to be ‘final’ under the APA.” U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S.
Ct. 1807, 1813 (2016).

“First, the action must mark the consummation of the agency’s

decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second,

11

Defendants’ invocation of § 8005 is also “arbitrary and capricious” because DOD has
defined the same term (“military construction”) in opposite ways for purposes of different actions,
without explanation. See, e.g., Sierra Club v. Leavitt, 368 F.3d 1300, 1304 (11th Cir. 2004)
(finding action arbitrary and capricious where, “without explanation or acknowledgment, the
agency gave a term two different meanings”).
12
All three prerequisites to review that the Government invokes—“final agency action,”
“committed to agency discretion,” and “zone of interests”—apply only to Plaintiffs’ APA claims,
not their Appropriations Clause claims. See 5 U.S.C. § 704 (APA provides for judicial review of
only “final agency action”); id. § 702(a)(2) (APA prohibits judicial review of “agency action [that]
is committed to agency discretion by law”); Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 129 (2014) (zone of interests test applies to “statutorily created causes of action”);
see also Clinton, 524 U.S. at 436-48 (deciding structural constitutional claim without applying
zone of interests test).
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the action must be one by which rights or obligations have been determined, or from which legal
consequences will flow.” Id.
DOD’s determination to spend § 2808 funds on a border wall satisfies these requirements.
As already explained, the Proclamation expressly makes available to DOD § 2808 funds for
purposes of building a wall, and DOD has taken numerous actions indicating that it will use those
funds for that purpose. See supra at 11-13. Because there can be no genuine doubt that DOD will
spend § 2808 funds on a border wall, its determination to do so is not “tentative or interlocutory.”
Hawkes, 136 S. Ct. at 1813. That determination has also led to “legal consequences.” Id. For
example, DOD’s determination will require it to divert funds from other previously designated
military construction projects—including potentially a $52.3 million project at Fort Bliss in El
Paso County. See supra at 13. The County must therefore immediately gird itself for the economic
toll that this loss of expected funds will exact. See Hawkes, 136 S. Ct. at 1814 (loss of “safe
harbor” has “legal consequences”). And certainly DOD’s determination to spend § 2808 funds on
a wall has “impose[d] obligations on the agency” itself, which suffices under this finality factor.
Sierra Club, 2019 WL 2865491, at *19 n.23. So while DOD has not finally determined to
“undertake any specific construction projects,” Govt. Br. 45 (emphasis added), it has finally
determined to use § 2808 funds on a border wall, which is enough to fulfill the APA’s “flexible
and pragmatic” finality requirement, Herman, 176 F.3d at 287.
2.

Defendants’ Use of § 2808 Is Not Committed To Agency Discretion

The Government next contends that any DOD decision to invoke § 2808 (again, not § 284
or § 8005) is “not subject to judicial review because it is ‘committed to agency discretion by law.’”
Govt. Br. 45 (quoting 5 U.S.C. § 701(a)(2)). Because the “committed to agency discretion”
exception conflicts with the APA’s “basic presumption of judicial review [for] one suffering legal
wrong because of agency action,” courts have read it “quite narrowly, restricting it to ‘those rare
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circumstances where the relevant statute is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of discretion.’” Weyerhaeuser Co. v. FWS,
139 S. Ct. 361, 370 (2018); accord Dep’t of Commerce, 139 S. Ct. at 2568.
This is not such a circumstance. As elaborated above, § 2808’s text imposes three express,
judicially manageable constraints on DOD’s decision to spend funds. See supra at 39-44. The
Government’s contrary arguments mirror its meritless political question arguments addressed
above. See supra at 40-41. They fail for the same reasons. 13
3.

Plaintiffs Fall Within the “Zone of Interests” of § 2808, § 284, and § 8005

“[A] person suing under the APA” must show that “[t]he interest he asserts” is “arguably
within the zone of interests to be protected or regulated by the statute that he says was violated.”
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012).
This test “is not meant to be especially demanding,” and is applied in accord with the APA’s
“evident intent” to “make agency action presumptively reviewable.” Clarke v. Sec. Indus. Ass’n,
479 U.S. 388, 399 (1987). Courts thus “do not require any indication of congressional purpose to
benefit the would-be plaintiff.” Patchak, 567 U.S. at 225. “The text forecloses suit only when a
plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the
statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id.
Plaintiffs will be injured by Defendants’ use of funds to build a border wall. See supra at
2-3, 5-6, 8. The statutory provisions they claim have been violated all allow governmental

13

The Government takes only two new tacks. First is to emphasize the word “may” in §
2808. Govt. Br. 46. But the Supreme Court recently held that while the “use of the word ‘may’
certainly confers discretion,” it does not “segregate [a] discretionary decision” from other statutory
requirements, like those in § 2808. Weyerhaeuser, 139 S. Ct. at 371. Second is to cite cases
involving agency inaction, which are inapposite where, as here, an agency takes affirmative action,
such as spending funds on a wall. See Govt. Br. 45 (citing Heckler v. Chaney, 470 U.S. 821, 830
(1985); Ellison v. Connor, 153 F.3d 247, 257 (5th Cir. 1998)).
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expenditures or transfers of funds under specified circumstances. See supra at 39-52. Because
Plaintiffs claim injury based on the use of funds by pointing to violations of funding statutes, they
fall within those statutes’ zones of interest.
The Government’s contrary arguments fall flat. The Government claims that “Plaintiffs
seek to vindicate reputational and pecuniary interests that have absolutely no connection to the
interests protected by § 8005, § 284, and § 2808.” Govt. Br. 47. But the question is not whether
the nature of Plaintiffs’ harms is connected to the statutes at issue, but whether the nature of their
legal challenge is. In Patchak, for instance, the plaintiff asserted “economic, environmental, and
aesthetic harm,” but the Court did not ask whether the relevant statutes protected against those
particular injuries. 567 U.S. at 224-25; see id. at 225 n.7. Rather, the Court asked whether the
plaintiff’s legal challenge—which focused on certain “land’s use as a casino”—fell within the
statute’s zone of interests. Id. at 225. Since Plaintiffs’ legal challenge turns on the use of funds,
they come within the zones of interests of funding provisions.
The Government also argues that § 2808, § 284, and § 8005 contain no private right of
action authorizing Plaintiffs’ suit. Govt. Br. 48-49. That is irrelevant, however, because Plaintiffs
sue under the APA, not § 2808, § 284, or § 8005. And the APA provides a “cause of action for
parties,” like Plaintiffs here, “adversely affected by agency action.” Trudeau v. FTC, 456 F.3d
178, 185 (D.C. Cir. 2006); accord Bennett, 520 U.S. at 175.
V.

EVEN IF A PERMANENT INJUNCTION WERE NOT YET WARRANTED,
PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION
Although Plaintiffs principally seek summary judgment and a permanent injunction, they

alternatively request that this Court preliminarily enjoin Defendants’ unlawful actions. For all the
reasons given in this brief and Plaintiffs’ opening brief, Plaintiffs have shown “a substantial
likelihood that [they] will prevail on the merits,” Gee, 862 F.3d at 457, thereby satisfying “arguably

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the most important” preliminary injunction factor, Tesfamichael v. Gonzales, 411 F.3d 169, 176
(5th Cir. 2005). Plaintiffs have also demonstrated a “substantial threat” of “irreparable injury,”
Gee, 862 F.3d at 457: the Proclamation and impending wall construction are causing the County
untold reputational harm and costing it tourism and commercial dollars it cannot recover, and those
same acts are forcing BNHR to spend time and money, depleting the organization’s limited
resources. These harms outweigh any potential harm to Defendants, as a short delay of a yearslong border-wall construction process will cause little prejudice. Finally, a preliminary injunction
would not “disserve the public interest,” id., because the public has no interest in an unlawful
Proclamation remaining on the books, or in a border wall that Congress—the public’s
representatives—declined to pay for.
In all events, Plaintiffs request that this Court move expeditiously in resolving their claims
given this case’s extraordinary nature, and Plaintiffs’ aforementioned continuous and irreparable
harm. The President’s unlawful emergency declaration remains intact, and Defendants are moving
quickly toward building a wall that Congress expressly rejected—a plan that will divert funds from
Fort Bliss and create a massive construction zone in the County’s vicinity. Only prompt relief can
prevent these grievous injuries.
CONCLUSION
For the foregoing reasons, Plaintiffs’ summary-judgment motion and a permanent
injunction should be granted. In the alternative, Plaintiffs’ preliminary-injunction motion should
be granted.

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Dated: July 10, 2019

Respectfully submitted,
/s/ Anton Metlitsky
Anton Metlitsky (Pro hac vice)
O’MELVENY & MYERS LLP
Seven Times Square
New York, NY 10036
(212) 326-2000
ametlitsky@omm.com
Ephraim McDowell (Pro hac vice)
O’MELVENY & MYERS LLP
1625 Eye Street NW
Washington, DC 20006
(202) 383-5300
emcdowell@omm.com
Kristy Parker (Pro hac vice)
Justin Florence (Pro hac vice)
Erica Newland (Pro hac vice)
THE PROTECT DEMOCRACY PROJECT,
INC.
2020 Pennsylvania Avenue., NW, #163
Washington, DC 20006
Telephone: (202) 579-4582
Facsimile: (929) 777-8428
justin.florence@protectdemocracy.org
kristy.parker@protectdemocracy.org
erica.newland@protectdemocracy.org
Deana K. El-Mallawany (Pro hac vice)
THE PROTECT DEMOCRACY PROJECT,
INC.
10 Ware Street
Cambridge, MA 02138
Telephone: (202) 579-4582
Facsimile: (929) 777-8428
deana.elmallawany@protectdemocracy.org
Stephanie Llanes (Pro hac vice)
THE PROTECT DEMOCRACY PROJECT,
INC.
222 Broadway, 19th Floor
New York, NY 10038
Telephone: (202) 579-4582
Facsimile: (929) 777-8428

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stephanie.llanes@protectdemocracy.org
David Bookbinder (Pro hac vice)
NISKANEN CENTER
820 First Street, NE
Washington, DC 20002
Telephone: (301) 751-0611
dbookbinder@niskanencenter.org
Richard Mancino (Pro hac vice)
Shaimaa M. Hussein (Pro hac vice)
Matthew Dollan (Pro hac vice)
Samantha G. Prince (Pro hac vice)
WILLKIE FARR & GALLAGHER LLP
787 Seventh Avenue
New York, NY 10019
Telephone: (212) 728-8000
Facsimile: (212) 728-8111
RMancino@willkie.com
SHussein@willkie.com
MDollan willkie.com
SPrince@willkie.com
Stuart Gerson (Pro hac vice)
EPSTEIN BECKER GREEN
1227 25th Street, NW
Washington, DC 20037
Telephone: (202) 861-4180
Email: SGerson@ebglaw.com
Laurence H. Tribe (Pro hac vice)
Carl M. Loeb University Professor and
Professor of Constitutional Law
HARVARD LAW SCHOOL*
1575 Massachusetts Avenue
Cambridge, MA 02138
Telephone: (617) 495-1767
Email: tribe@law.harvard.edu
*Affiliation noted for identification purposes
only
John C. Padalino (Texas State Bar No.
24041638)
401 Congress Avenue, Suite 1540
Austin, Texas 78701

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Telephone: (512) 596-2944
Facsimile: (512) 596-2944
john@padalinolaw.com
Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on this same date, I electronically filed the foregoing document with
the U.S. District Court for the Western District of Texas by using the CM/ECF system, which
will send notifications of such filing to all CM/ECF counsel of record.
Dated: July 10, 2019

/s/ Anton Metlitsky
Anton Metlitsky (Pro hac vice)
O’MELVENY & MYERS LLP
Seven Times Square
New York, NY 10036
Telephone: (212) 326-2000
ametlitsky@omm.com

64