No. 19A60
In the

Supreme Court of the United States
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., APPLICANTS,

v.
SIERRA CLUB, ET AL., RESPONDENTS.
ON APPLICATION FOR STAY PENDING APPEAL
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNOPPOSED MOTION FOR LEAVE TO FILE
AND BRIEF OF THE
U.S. HOUSE OF REPRESENTATIVES
AS AMICUS CURIAE
SUPPORTING RESPONDENTS
CARTER G. PHILLIPS
VIRGINIA A. SEITZ
JOSEPH R. GUERRA
CHRISTOPHER A. EISWERTH

DOUGLAS N. LETTER

SIDLEY AUSTIN LLP
1501 K STREET, N.W.
WASHINGTON, D.C. 20005
(202) 736-8000
CPHILLIPS@SIDLEY.COM

MEGAN BARBERO

GENERAL COUNSEL
COUNSEL OF RECORD

TODD B. TATELMAN

DEPUTY GENERAL COUNSEL
ASSOCIATE GENERAL COUNSEL

JOSEPHINE MORSE

ASSOCIATE GENERAL COUNSEL

KRISTIN A. SHAPIRO

ASSISTANT GENERAL COUNSEL

OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 CANNON BUILDING
WASHINGTON, D.C. 20515
(202) 225-9700
DOUGLAS.LETTER@MAIL.
HOUSE.GOV

 CONSENT MOTION FOR LEAVE TO FILE BRIEF
IN SUPPORT OF RESPONDENTS
The U.S. House of Representatives moves for
leave to file the accompanying brief in support of respondents’ opposition to the Solicitor General’s Application for a Stay Pending Appeal to the United States
Court of Appeals for the Ninth Circuit of the injunction issued by the United States District Court for the
Northern District of California. This order enjoins the
Trump Administration’s construction of a wall along
the southern border of the United States in the absence of a valid Congressional appropriation. Counsel
for the parties consent to the filing of this brief.
Respectfully submitted,
CARTER G. PHILLIPS
DOUGLAS N. LETTER
General Counsel
VIRGINIA A. SEITZ
Counsel of Record
JOSEPH R. GUERRA
CHRISTOPHER A. EISWERTH TODD B. TATELMAN

Sidley Austin LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
cphillips@sidley.com

Deputy General Counsel

MEGAN BARBERO

Associate General Counsel

JOSEPHINE MORSE

Associate General Counsel

KRISTIN A. SHAPIRO

Assistant General Counsel

Office of General Counsel
U.S. House of Representatives
219 Cannon Building
Washington, D.C. 20515
(202) 225-9700
Douglas.Letter@mail.
house.gov
JULY 19, 2019

 TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................

ii

INTEREST OF AMICUS CURIAE.......................

1

INTRODUCTION ..................................................

2

ARGUMENT .........................................................

4

CONCLUSION ......................................................

25

i

 TABLE OF AUTHORITIES
Cases

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986) .............................................. 19

Chamber of Commerce v. Reich,

74 F.3d 1322 (D.C. Cir. 1996) .............................. 10

City of Houston v. Dep’t of Hous. & Urban Dev.,

24 F.3d 1421 (D.C. Cir. 1994) .............................. 21

Dalton v. Specter,

511 U.S. 462 (1994) .......................................... 3, 10

Harrington v. Bush,

553 F.2d 190 (D.C. Cir. 1977) .............................. 21

Ind. State Police Pension Tr. v. Chrysler LLC,

556 U.S. 960 (2009) .......................................... 4, 20

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................... 19

McNabb v. United States,

318 U.S. 332 (1943) .............................................. 22

Nken v. Holder,

556 U.S. 418 (2009) ................................................ 4

Philip Morris USA Inc. v. Scott,

561 U.S. 1301 (2010) .............................................. 4

Reeside v. Walker,

52 U.S. (11 How.) 272 (1851) ................................. 9

ii

 U.S. Dep’t of the Navy v. FLRA,

665 F.3d 1339 (D.C. Cir. 2012) ............ 1, 20, 21, 22

United States v. MacCollom,

426 U.S. 317 (1976) .............................................. 20

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) .............................................. 11

Constitution & Statutes
U.S. Const. art. I, § 9, cl. 7 .......................................... 1
31 U.S.C. § 1341(a)(1)(B) .......................................... 21
31 U.S.C. § 1532 ........................................................ 11
Consolidated Appropriations Act, 2019, Pub L. No.
116-6 (to be printed at 133 Stat. 13) ..................... 8
Department of Defense and Labor, Health and
Human Services, and Education Appropriations
Act, 2019 and Continuing Appropriations Act,
2019, Pub. L. No. 115-245, 132 Stat. 2981 .......... 12
Further Additional Continuing Appropriations Act,
2019, Pub. L. No. 116-5, 133 Stat. 10 .................... 8
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208,
div. C, 110 Stat. 3009 (codified at 8 U.S.C. § 1103
note) ...................................................................... 15
Pub. L. No. 115-298 (2018) (to be printed at 132 Stat.
4382) ....................................................................... 7
iii

 Legislative Authorities
165 Cong. Rec. S1362 (daily ed. Feb 14, 2019)
(statement of Sen. Leahy) .................................... 23
Further Additional Continuing Appropriations Act,
2019, H.R. 695, 115th Cong. § 141 (Dec. 20,
2018) ....................................................................... 7
Further Additional Continuing Appropriations Act,
2019, H.R. 695, 115th Cong. § 101(1) (Dec. 19,
2018) ....................................................................... 7
H.R. Rep. No. 115-952 (2018).................................... 16
H.R. Rep. No. 99-106 (1985)...................................... 13
H.R. Rep. No. 93-662 (1973)...................................... 13
S. 3109, 115th Cong., tit. 2 (as reported by S. Comm.
on Appropriations, June 21, 2018) ........................ 5

Scholarly Authority
D. Rosen, Funding “Non-Traditional”
Military Operations: The Alluring Myth of a
Presidential Power of the Purse, 155 Mil. L. Rev. 1

Richard

(1998) ...................................................................... 1

Other Authorities
Tal Axelrod, Pelosi on Negotiations with Trump:
‘Nothing for the Wall,’ Hill (Jan. 2, 2019, 5:48 PM),
http://tinyurl.com/HillNothingForWall ................. 7
iv

 Rachael Bade, Immigration Storm Bears Down on
Republicans, Politico (July 2, 2018, 5:05 AM),
http://tinyurl.com/PoliticoImmigrationStorm ....... 6
Aaron Blake, Trump’s Extraordinary Oval Office

Squabble with Chuck Schumer and Nancy Pelosi,
Annotated, Wash. Post (Dec. 11, 2018), https://
tinyurl.com/WaPoOvalOfficeSquabble .................. 6

CBP Enforcement Statistics FY 2019, U.S. Customs &
Border Prot., https://tinyurl.com/CBPFY19Stats
(last visited July 17, 2019)................................... 23

Drug Smuggling at the Border, Office of Intelligence,

U.S. Customs & Border Prot., https://tinyurl.com/
CBPDrugSmugglingPresentation (last visited July
17, 2019) ............................................................... 23

Bo Erickson et al., House Passes Spending Bill

with $5 Billion Border Wall Funding,
Increasing Likelihood of Shutdown, CBS News

(Dec. 20, 2018, 9:00 PM), http://tinyurl.com/
CBSHousePassesBill ............................................. 7

Fact Sheet: President Donald J. Trump’s Border
Security Victory, White House (Feb. 15, 2019),
http://tinyurl.com/WHBorderVictory .............. 8, 15

Full Transcripts: Trump’s Speech on Immigration
and the Democratic Response, N.Y. Times
(Jan. 8, 2019), http://tinyurl.com/TrumpNational
Address ................................................................... 7

v

 Letter from Russell T. Vought, Acting Dir., Office
of Mgmt. & Budget, to Senator Richard
Shelby, Chairman, U.S. Senate Comm. on
Appropriations (Jan. 6, 2019), http://tinyurl.com/
ShelbyLettertoApprops .......................................... 6
Kevin Liptak, Flight Delays Pile Pressure on Trump
Amid Shutdown, CNN (Jan. 25, 2019, 12:17 PM),
http://tinyurl.com/CNNFlightDelays .................... 8
Office of Mgmt. & Budget, Fiscal Year 2019: Efficient,

Effective, Accountable: An American Budget:
Budget of the U.S. Government (2018), http://
tinyurl.com/WHFY19BudgetRequest.................... 5

Office of Mgmt. & Budget, Circular No. A-11,

Preparation, Submission, and Execution of
the Budget (June 2019), https://tinyurl.com/

OMBCircularA11 ................................................... 6

Office of the Under Sec’y of Def. (Comptroller), U.S.
Dep’t of Def., DoD Serial No. FY 04-37
PA, Reprogramming Action – Prior Approval
(Sept. 3, 2004), http://tinyurl.com/DOD2004
ReprogrammingAction ......................................... 16
Andrew O’Reilly, Mulvaney Says Border Wall Will

Get Built, ‘With or Without’ Funding from
Congress, Fox News (Feb. 10, 2019), https://
tinyurl.com/MulvaneyFoxNewsSunday ............ 1, 9

Jacob Pramuk, Trump Signs Bill to Temporarily

Reopen Government After Longest Shutdown in
History, CNBC (Jan. 25, 2019, 9:58 PM),
https://tinyurl.com/CNBCTrumpSignsBill ........... 8

vi

 Remarks by President Trump on the National
Security
and
Humanitarian
Crisis
on
Our Southern Border, White House (Feb.

15,
2019,
10:39
AM),
http://tinyurl.com/
TrumpRoseGardenRemarks ........................ 4, 8, 24

Statement by the President, White House (Feb. 15,

2019), https://tinyurl.com/WHTrumpStatement.... 8

vii

 INTEREST OF AMICUS CURIAE1
This case arises out of the Administration’s disregard for the bedrock constitutional principle that “[n]o
Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const.
art. I, § 9, cl. 7. The Appropriations Clause vests Congress with “exclusive power over the federal purse,”
and it is “one of the most important authorities allocated to Congress in the Constitution[].” U.S. Dep’t of
the Navy v. FLRA, 665 F.3d 1339, 1346 (D.C. Cir.
2012). Thus, the House has a compelling interest in
this case.
This power over the purse is an essential element
of the checks and balances built into our Constitution—even the monarchs of England learned long ago
that they could not spend funds over the opposition of
Parliament.2 Yet, the Administration refuses to accept
this limitation on its authority, as clearly demonstrated by Acting White House Chief of Staff Mick
Mulvaney’s statement that President Trump’s border
wall “is going to get built with or without Congress.”3
Under our Constitutional scheme, an immense wall
along our border simply cannot be constructed without funds appropriated by Congress for that purpose.
Pursuant to Sup. Ct. R. 37.6, the House states that no counsel for a party authored this brief in whole or in part, and no
person or entity other than the House or its counsel made a monetary contribution intended to fund the preparation or submission of this brief.
2 See Richard D. Rosen, Funding “Non-Traditional” Military
1

Operations: The Alluring Myth of a Presidential Power of the
Purse, 155 Mil. L. Rev. 1, 33-49 (1998).
3 Andrew O’Reilly, Mulvaney Says Border Wall Will Get
Built, ‘With or Without’ Funding from Congress, Fox News (Feb.
10, 2019), https://tinyurl.com/MulvaneyFoxNewsSunday.

 2
INTRODUCTION
This case involves the Administration’s attempt to
use billions of dollars in federal funds to construct a
wall along the southern border of the United States
despite Congress’s refusal to appropriate such funding—a refusal it adhered to through a government
shutdown precipitated by this very issue. In the face
of that refusal, the Administration chose to defy Congress’s judgment and spend money Congress did not
appropriate. The district court appropriately enjoined
that effort, and the court of appeals correctly rejected
the Administration’s request for a stay pending appeal. This Court should also deny the Administration’s request for a stay.
To justify the extraordinary remedy of a stay
pending appeal, the Administration must demonstrate that this Court would likely grant certiorari to
review a decision affirming the injunction entered below; that a majority of the Court would likely vote to
set aside such a decision; and that the injury asserted
by the Administration outweighs the harm to other
parties and the public. The Administration has not
made these showings.
With respect to the first two, merits-based factors,
the Administration misstates the nature of the claims
asserted in this lawsuit and the law governing those
claims. Through a hard-fought political battle, Congress unmistakably refused to appropriate funding for
the construction of a border wall in the amounts that
the Administration sought, and the Administration is

 3
violating the Appropriations Clause by nevertheless
spending money Congress refused to provide.
The Administration has invoked a statutory
transfer authority as a “defense to this claim.” App.
34a. But that defense cannot obscure the constitutional nature of respondents’ challenge, and this
Court’s decision in Dalton v. Specter, 511 U.S. 462
(1994), does not foreclose non-statutory review of that
challenge. Moreover, the Administration’s zone-of-interests argument is merely another effort to evade judicial review as it would preclude anyone from challenging the Executive Branch’s violations of the Appropriations Clause. And insofar as the Administration seeks review with respect to its statutory defense,
the lower courts’ statutory interpretation is plainly
correct and not independently worthy of review. For
all of these reasons, the Administration cannot show
that, if the court of appeals upholds the injunction below, this Court is likely to grant review and reverse.
With respect to the third, equity-based factor, the
Administration ignores the harms to other parties
(such as the House of Representatives) and the public
that will result if the Administration is allowed to
spend billions of dollars on a border wall even though
Congress denied such an appropriation. The Administration has been clear about the reason it seeks a
stay: Absent an injunction, it intends to quickly obligate and expend funds on border wall construction
while its appeal is pending. Indeed, but for the preliminary injunction, the Administration has stated that
it would begin building the border wall within a matter of days at the rate of half a mile per day. Once
those funds are obligated and spent, they cannot be

 4
clawed back, and the harm to Congress’s Appropriations Clause interests, the Constitution, and the Nation cannot be remedied.
By contrast, there is no substantial irreparable injury to the United States if the district court’s injunction remains in effect. Among other reasons, if federal
funds are not spent during this fiscal year, they are
not lost; they return to the federal treasury and can
be appropriated for use next year, if Congress believes
that they should be spent on border wall construction.
Indeed, President Trump publicly acknowledged that
the Administration “didn’t need to do this” because it
could “do the wall over a longer period of time.”4
ARGUMENT
A stay is “an exercise of judicial discretion, and the
‘party requesting a stay bears the burden of showing
that the circumstances justify an exercise of that discretion.’” Ind. State Police Pension Tr. v. Chrysler
LLC, 556 U.S. 960, 961 (2009) (per curiam). Because
“[a] stay is an ‘intrusion into the ordinary processes of
administration and judicial review,’” Nken v. Holder,
556 U.S. 418, 427 (2009), “the applicant bears a heavy
burden.” Philip Morris USA Inc. v. Scott, 561 U.S.
1301, 1302 (2010) (Scalia, J., in chambers). The Administration has not satisfied its burden of justifying
a stay pending appeal here.
1. The Administration claims that this Court
will grant certiorari and reverse, Ind. State Police
Remarks by President Trump on the National Security and
Humanitarian Crisis on Our Southern Border, White House
4

(Feb. 15, 2019, 10:39 AM), http://tinyurl.com/TrumpRoseGarden
Remarks [hereinafter Feb. 15 Rose Garden Remarks].

 5

Pension Tr., 556 U.S. at 960, on three distinct issues.
Its showings as to all three are insufficient.

a. The Administration argues that respondents
have raised no constitutional claims, but rather only
statutory claims, and that this Court’s decision in Dalton forecloses non-statutory review for claims based
on the meaning of a statute. Application at 20. Both
predicates to this “showing” are wrong.
i) The background of the dispute between the
President and Congress makes clear that respondents
have asserted a constitutional claim: Congress clearly
rejected President Trump’s request for over $5 billion
for a border wall, and the Administration’s effort to
spend more money than Congress appropriated violates the Appropriations Clause.
For fiscal year 2019, the Administration officially
requested from Congress “$1.6 billion to construct approximately 65 miles of border wall.”5 The initial Senate appropriations bill for DHS included $1.6 billion
for approximately 65 miles of border fencing. See S.
3109, 115th Cong., tit. 2 (as reported by S. Comm. on
Appropriations, June 21, 2018). Around July 2018,

Office of Mgmt. & Budget, Fiscal Year 2019: Efficient, Effective, Accountable: An American Budget: Budget of the U.S.
Government 58 (2018), http://tinyurl.com/WHFY19Budget
5

Request.

 6
however, President Trump informally “pressed Republicans to give him $5 billion as a down payment on
his wall.”6
Near the end of the 115th Congress, Congress and
the President reached an impasse on appropriations
for a border wall. President Trump held a televised
meeting with Speaker of the House (then-Minority
Leader) Nancy Pelosi and Senate Minority Leader
Chuck Schumer to negotiate fiscal year 2019 appropriations for a border wall.7 At that meeting, President Trump reiterated his demand for $5 billion for a
border wall and warned that “[i]f we don’t get what we
want one way or the other, whether it’s through you,
through a military, through anything you want to call,
I will shut down the government, absolutely.”8
Two days before funding for nine federal departments expired, the Senate passed a continuing resolution to fund the Government temporarily, and it did

Rachael Bade, Immigration Storm Bears Down on Republicans, Politico (July 2, 2018, 5:05 AM), http://tinyurl.com/Politico
ImmigrationStorm; see also Letter from Russell T. Vought, Act6

ing Dir., Office of Mgmt. & Budget, to Senator Richard Shelby,
Chairman, U.S. Senate Comm. on Appropriations (Jan. 6, 2019),
http://tinyurl.com/ShelbyLettertoApprops (requesting $5.7 billion for a border wall). The process for submitting and amending
appropriations requests to Congress is subject to well-established guidelines and procedures that were not followed here. See
generally Office of Mgmt. & Budget, Circular No. A-11, Preparation, Submission, and Execution of the Budget (June 2019),
https://tinyurl.com/OMBCircularA11.
7 Aaron Blake, Trump’s Extraordinary Oval Office Squabble
with Chuck Schumer and Nancy Pelosi, Annotated, Wash. Post
(Dec. 11, 2018), https://tinyurl.com/WaPoOvalOfficeSquabble.
8

Ibid.

 7
not include funding for a border wall.9 The next day,
the House approved a short-term funding bill appropriating $5.7 billion for “U.S. Customs and Border
Protection—Procurement, Construction, and Improvements.”10 However, because “Democrats w[ere]
not . . . willing to support $5 billion in wall funding,”
the Senate never considered the House’s version of the
legislation.11
Appropriations for a substantial portion of the
Federal Government expired on December 21, 2018,
see Pub. L. No. 115-298 (2018) (to be printed at 132
Stat. 4382), beginning the longest Federal Government shutdown in history. On January 2, 2019,
Speaker Pelosi stated that the incoming House would
provide “nothing for the wall.”12 In response, President Trump addressed the nation from the Oval Office, imploring Congress to “do[] its job” and “pass a
bill that ends this crisis.”13
On January 25, 2019, after it became apparent
that the Government’s closure was causing serious
disruption throughout the Nation, President Trump
See Further Additional Continuing Appropriations Act,
2019, H.R. 695, 115th Cong. § 101(1) (Dec. 19, 2018).
10 See Further Additional Continuing Appropriations Act,
2019, H.R. 695, 115th Cong. § 141 (Dec. 20, 2018).
11 See Bo Erickson et al., House Passes Spending Bill with $5
9

Billion Border Wall Funding, Increasing Likelihood of Shutdown, CBS News (Dec. 20, 2018, 9:00 PM), http://tinyurl.com/

CBSHousePassesBill.
12 Tal Axelrod, Pelosi on Negotiations with Trump: ‘Nothing
for the Wall,’ Hill (Jan. 2, 2019, 5:48 PM), http://tinyurl.com/
HillNothingForWall.

Full Transcripts: Trump’s Speech on Immigration and the
Democratic Response, N.Y. Times (Jan. 8, 2019), http://tinyurl.
13

com/TrumpNationalAddress (National Address Transcript).

 8
signed a continuing resolution to fund the Government through February 14, 2019.14 Over the next several weeks, a bipartisan conference committee negotiated a deal to fund the Government.15 Consistent with
that deal, Congress passed the Consolidated Appropriations Act, 2019. Pub L. No. 116-6 (2019) (to be
printed at 133 Stat. 13). The Act appropriated $1.375
billion for construction of fencing in the Rio Grande
Valley area of the border. Id. § 230 (to be printed at
133 Stat. at 28). No other funding was designated for
the construction of a border wall.
On February 15, 2019, President Trump signed
the Act into law.16 Yet, that same day, President
Trump expressed his dissatisfaction with the amount
that Congress had appropriated and announced that
his Administration would instead spend up to $8.1 billion on construction of a border wall.17 To use the

See Further Additional Continuing Appropriations Act,
2019, Pub. L. No. 116-5, 133 Stat. 10; Kevin Liptak, Flight Delays Pile Pressure on Trump Amid Shutdown, CNN (Jan. 25,
2019, 12:17 PM), http://tinyurl.com/CNNFlightDelays.
15 See Jacob Pramuk, Trump Signs Bill to Temporarily Reopen Government After Longest Shutdown in History, CNBC
(Jan. 25, 2019, 9:58 PM), https://tinyurl.com/CNBCTrumpSigns
Bill.
16 See Statement by the President, White House (Feb. 15,
2019), https://tinyurl.com/WHTrumpStatement.
14

See Fact Sheet: President Donald J. Trump’s Border Security Victory, White House (Feb. 15, 2019), http://tinyurl.com/
17

WHBorderVictory [hereinafter Border Victory Fact Sheet]; Feb.
15 Rose Garden Remarks, supra note 4.

 9
words of Mr. Mulvaney, the Administration decided to
build the wall “without Congress.”18
This is directly contrary to the Appropriations
Clause, which dictates that the Administration may
spend funds to build a border wall only if Congress
authorizes those funds to be spent for that purpose.
Congress appropriated only $1.375 billion for the construction of a border wall. Thus, the Administration
may constitutionally spend only that amount on such
construction. See, e.g., Reeside v. Walker, 52 U.S. (11
How.) 272, 291 (1851) (“It is a well-known constitutional provision, that no money can be taken or drawn
from the Treasury except under an appropriation by
Congress.”). The court of appeals therefore correctly
held that respondents had properly alleged a violation
of the Appropriations Clause. App. 44a-45a.
ii) The Administration claims that respondents
have not alleged an Appropriations Clause violation
because its expenditures are in fact authorized by certain appropriations provisions. Application at 20. But
government officials who spend money in excess of appropriated amounts must always claim that they are
relying on some statutory authority: without such a
defense, the constitutional violation is uncontested.
The assertion of such a defense, however, does not
mean that the challenger is not raising a constitutional claim for violation of the Appropriations
Clause. The Administration’s contrary argument

Andrew O’Reilly, Mulvaney Says Border Wall Will Get
Built, ‘With or Without’ Funding from Congress, Fox News (Feb.
18

10, 2019), https://tinyurl.com/MulvaneyFoxNewsSunday.

 10
would mean that it could never violate the Appropriations Clause so long as it contends—however incorrectly or pretextually—that an appropriation exists.
Nothing in Dalton dictates otherwise. There, the
Court rejected the open-ended theory 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 (emphasis added). Here,
the claim is not merely that Administration officials
have taken actions beyond those Congress authorized.
It is that they have taken actions in the face of clear
Congressional refusal to authorize those actions—a
refusal, moreover, that pertains to the use of federal
funds, where Congress’s constitutional power is exclusive. Recognizing a non-statutory basis for review of
claims challenging such actions is entirely consistent
with Dalton, and will not open the courthouse doors to
all claims in which Executive Branch officials are alleged to have exceeded a grant of authority.19
b. Having precipitated the longest government
shutdown in history because Congress would not appropriate the amount of funds it wanted for a border
wall, the Administration now incorrectly claims to
Even assuming that this dispute is merely statutory, Dalton does not announce a broad rule of unreviewability. The statute at issue in Dalton “d[id] not at all limit the President’s dis19

cretion” and instead allowed him to approve or disapprove certain recommendations “for whatever reason he sees fit.” Id. at
476 (emphases added). Here, as discussed below, Section 8005 is
narrowly drawn, with strict limitations. See Chamber of Commerce v. Reich, 74 F.3d 1322, 1331 (D.C. Cir. 1996) (Dalton
“merely stands for the proposition that when a statute entrusts
a discrete specific decision to the President and contains no limitations on the President’s exercise of that authority, judicial review of an abuse of discretion claim is not available”).

 11
have found “secreted in the interstices of legislation
the very grant of power which Congress consciously
withheld.” Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
The Administration argues (Application at 31-34) that
the court of appeals incorrectly rejected its assertion
of inapposite appropriations authorities in an attempt
to excuse its constitutional violation. But the Court is
unlikely to grant certiorari and reverse on this basis.
As relevant here, the Administration asserts authority to spend $2.5 billion of Department of Defense
(DOD) funds under 10 U.S.C. § 284, which authorizes
DOD to, inter alia, construct fences to block drug
smuggling corridors along the border in support of the
Department of Homeland Security (DHS). Most of the
fiscal year 2019 funding that Congress appropriated
for the military’s counter-drug activities, including
DOD’s activities under Section 284, has already been
used. The Administration therefore plans to transfer
into the military’s counter-drug fund $2.5 billion that
Congress appropriated for other purposes.
A fundamental principle of appropriations law
provides that “[a]n amount available under law may
be withdrawn from one appropriation account and
credited to another . . . only when authorized by law.”
31 U.S.C. § 1532. The Administration claims that Sec-

 12
tions 8005 and 9002 of the 2019 Department of Defense Appropriations Act, Pub. L. No. 115-245, 132
Stat. 2981, authorize its transfers here.
In pertinent part, Section 8005 provides that:
Upon determination by the Secretary of Defense
that such action is necessary in the national interest, he may . . . transfer not to exceed
$4,000,000,000 of . . . funds made available in this
Act . . . Provided, That such authority to transfer
may not be used unless for higher priority items,
based on unforeseen military requirements, than
those for which originally appropriated and in no
case where the item for which funds are requested
has been denied by the Congress . . . .
Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999. Section 9002 provides an additional authority to transfer
up to $2 billion between certain accounts, and it is
“subject to the same terms and conditions as the authority provided in section 8005.” Id. § 9002, 132 Stat.
at 3042.
The meaning of these provisions is not worthy of
review. The Administration identifies no other cases
interpreting these provisions, let alone a division
among the circuits about their meaning. Regardless,
review is unwarranted because the lower courts’ interpretation is plainly correct. As relevant here, two
limitations in Section 8005 preclude the Administration from transferring funds to construct the border
wall sought by President Trump.

First, Section 8005 does not authorize the transfer

of funds in cases “where the item for which funds are

 13
requested has been denied by the Congress.” This restriction was added in fiscal year 1974, to “tighten
congressional control of the reprogramming process.”
H.R. Rep. No. 93-662, at 16 (1973). The House committee report explained that DOD had sometimes “requested that funds which have been specifically deleted in the legislative process be restored through the
reprogramming process,” and that “[t]he Committee
believe[d] that to concur in such actions would place
committees in the position of undoing the work of the
Congress.” Id.
Indeed, of considerable significance here, the
Committee stated that such a position would be “untenable.” Id. Consistent with its purpose, this sort of
appropriations restriction is intended to be “construed
strictly” to “prevent the funding for programs which
have been considered by Congress and for which funding has been denied.” See H.R. Rep. No. 99-106, at 9
(1985) (discussing analogous appropriations restriction in Pub. L. No. 99-169, § 502(b), 99 Stat. 1005
(codified at 50 U.S.C. § 3094(b))).
As the court of appeals explained, the “real-world
events in the months and years leading up to the 2019
appropriations bills leave no doubt that Congress considered and denied appropriations for the border barrier construction projects that DoD now seeks to finance using its section 8005 authority.” App. 38a-39a.
Indeed, the Administration has unequivocally stated
in court that the reason DOD is constructing a border

 14

wall for DHS is because Congress denied “a direct appropriation” to DHS.20 Section 8005 emphatically does

not permit the Administration to circumvent that denial.

Significantly, the Administration does not dispute
that Congress denied appropriations for the physical
border wall that it is now seeking to construct. See
Application at 32. Instead, it contends that “Section
8005’s reference to an ‘item for which funds are requested’ means a particular budget line-item requiring additional funding beyond the amount in the DoD
appropriation for the fiscal year.” Ibid. The Administration offers no support for this position. The text
of the statute does not say this. And Acting Secretary
Shanahan’s memorandum directing the first transfer
states that the “items” at issue are the border wall
projects. See Decl. of Kenneth P. Rapuano, Ex. C
(Memorandum from Patrick M. Shanahan, Acting
Sec’y of Def., U.S. Dep’t of Def. (Mar. 25, 2019)), Sierra
Club v. Trump, No. 19-16102 (9th Cir. June 3, 2019),

Tr. of Proceedings at 80, California v. Trump, No. 4:19-cv00872-HSG (N.D. Cal. May 17, 2019) (“The plan was to get a direct appropriation from Congress to do what the President
wanted to do . . . so DOD had no reason or occasion to be requesting a larger 284 appropriation.”); Tr. of Proceedings at 94, U.S.
House of Representatives v. Mnuchin, No. 1:19-cv-00969-TNM
(D.D.C. May 23, 2019) [hereinafter Mnuchin Tr.] (“[N]obody foresaw . . . that [Section 8005] . . . would come into play” because
“[e]veryone thought this would all happen in the DHS appropriations bill.”).
20

 15
ECF No. 7-3 [hereinafter Shanahan Memo] (describing “[t]he items to be funded” as “Yuma Sector Projects 1 and 2 and El Paso Sector Project 1”).21
The Administration argues that the border wall
projects at issue are different from those Congress denied because they are funded by DOD, not DHS. Application at 33. But this “does not change what funding was requested for: a wall along the southern border.” App. 38a. There is no relevant distinction between DHS’s construction of a border wall directly and
DOD’s construction of a border wall for DHS that undermines Congress’s assessment that DHS does not
need a $5 billion border wall.
Contrary to the Administration’s present claim
that the projects are completely distinct, the Administration has touted DOD’s efforts as part of its singular “Border Security Victory” in fulfillment of the Administration’s overall goal to construct a wall along
the southern border.22 And the Administration is relying on DHS’s National Environmental Policy Act
(NEPA) waivers in order to construct the projects, the
validity of which depends on the projects being constructed pursuant to DHS’s authority under Section
102 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, div.
C, tit. I, § 102(a), 110 Stat. 3009 (codified at 8 U.S.C.
§ 1103 note). See Defs.’ Opp’n to Pls.’ Mot. for Prelim.
The Administration criticizes the court of appeals for construing the relevant “item” to be “‘a border wall’ writ large.” Application at 32 (quoting App. 37a). But the court of appeals considered the “item” to be “the border barrier construction projects
that DoD now seeks to finance using its section 8005 authority,”
App. 39a—exactly as Acting Secretary Shanahan described.
22 See Border Victory Fact Sheet, supra note 17.
21

 16

Inj. at 25-26, Sierra Club v. Trump, No. 4:19-cv-00892-

HSG (N.D. Cal. Apr. 25, 209), ECF No. 64; App. 166a167a. The Administration cannot plausibly contend
that DOD’s construction of a border wall is indistinguishable from DHS’s construction of a border wall for
purposes of NEPA, but entirely distinct for purposes
of Section 8005.23

Second, Section 8005 authorizes only transfers
“based on unforeseen military requirements.” Congress included this limitation to confine DOD’s transfer authority to situations where unanticipated circumstances justify a departure from Congress’s previously authorized spending decisions. For example,
DOD has used this authority to transfer funds to pay
for unexpected hurricane damage to military bases.24
In this case, “the President’s repeated and unsuccessful requests for more border barrier funding make
the request here obviously not unforeseen.” App. 36a.
The Administration’s alleged need to build a border
wall was clearly foreseen—Congress simply disagreed

Even under the Administration’s interpretation of the “denied by the Congress” limitation, their Section 8005 transfers
still fail. While DOD requested $547 million for the military’s
counter-narcotics support activities, Congress specifically rejected $30 million of this request as “[e]xcess to need” and instead
appropriated only $517 million. H.R. Rep. No. 115-952, at 452
(2018).
24 Office of the Under Sec’y of Def. (Comptroller), U.S. Dep’t
of Def., DoD Serial No. FY 04-37 PA, Reprogramming Action –
Prior Approval (Sept. 3, 2004), http://tinyurl.com/DOD2004
ReprogrammingAction.
23

 17
that $5 billion for a border wall was necessary and
proper.
The Administration concedes that DHS’s purported need for a border wall was foreseen, but argues
that DOD’s “‘need to provide support’ to DHS for these
projects was ‘not known at the time of [DoD’s] FY 2019
budget request” because DHS did not request support
from DOD until February 2019. Application at 33 (alteration in original) (quoting Shanahan Memo). But
“DHS came to DoD for funds because Congress refused to grant DHS itself those funds.” App. 36a. If the
Administration’s argument were accepted, Congress’s
denial of funding for a project could constitute the unforeseen circumstance that justifies a transfer to fund
that project. This situation, however, is precisely what
Congress designed the limitations in Section 8005 to
prevent.
Moreover, the Administration’s claim (Application
at 33) that DOD cannot foresee a need for counterdrug support until it actually receives a request from
an agency is implausible. The Administration has in
fact conceded in court that DOD considered using Section 284 to support DHS’s border barrier construction
in early 2018.25 Specifically, DOD’s Comptroller withheld nearly $1 billion of fiscal year 2018 counter-drug

See Mnuchin Tr. at 95 (“It is true that it was foreseeable
in general that someone at some time might ask DoD to use its
284 authority to engage in border barrier construction.”).
25

 18
funding until July 2018, because DOD was considering using that funding for “Southwest Border construction.”26
Because the Administration’s transfer of $2.5 billion does not comply with Section 8005’s strict limitations, “no congressional action permits Defendants to
use those funds to construct border barriers.” App.
44a-45a. The Administration’s transfer, obligation,
and expenditure of the funds at issue here “therefore
violates the Appropriations Clause and intrudes on
Congress’s exclusive power of the purse.” Ibid.
c. Finally, the Administration has failed to show
that its zone-of-interests argument is worthy of review
or likely to lead to reversal. In fact, the Administration’s zone-of-interests claim is, in reality, an argument that no one can challenge the conduct at issue
here. That claim fails for several reasons.
First, as explained above, respondents have asserted a constitutional claim. See supra p. 5. Although
the Administration argues abstractly that a zone-ofinterest analysis should apply to constitutional
claims, it never states what test applies to claims under the Appropriations Clause. Instead, the Administration claims that Section 8005 still prescribes the
relevant zone of interests test because “a violation of
Section 8005’s limitations is . . . a necessary element
of their claim.” Application at 29. But, as discussed, it
is the Administration’s defense to that claim that

Decl. of Paul Arcangeli ¶¶ 2-3, Attach. 1 to Mot. for Leave
to File Suppl. Decl. Supp. Appl. for Prelim. Inj., U.S. House of
Representatives v. Mnuchin, No. 1:19-cv-00969-TNM (D.D.C.
May 15, 2019), ECF No. 44-1.
26

 19
turns on the meaning of Section 8005—and that defense cannot establish who is protected by, and entitled to enforce, the Appropriations Clause.
Second, the Administration’s zone-of-interests argument proves too much. The Administration identifies no parties whose interests would be “protected by
Section 8005” and who could therefore enforce that
statute’s limitations. Indeed, it has separately argued
that the House lacks standing to bring suit notwithstanding its assertion that Section 8005 is a “provision
that exists to govern the relationship between Congress and DoD.” Defs.’ Opp’n to Pls.’ Mot. for Prelim.
Inj. at 13, Sierra Club v. Trump, No. 4:19-cv-00892HSG (N.D. Cal. Apr. 25, 2019), ECF No. 64.
The Administration’s attempt to insulate its conduct from judicial review cannot be reconciled with
“the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich.
Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
Indeed, “[t]he very essence of civil liberty certainly
consists in the right of every individual to claim the
protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803).
The Administration claims that “[t]o the extent
that Section 8005 expressly contemplates any form of
enforcement, it is congressional oversight.” Application at 25. According to the Administration, “[i]f Congress disagrees with a particular transfer under Section 8005, it has the necessary tools to address the
problem itself.” Ibid. Again, this is not a zone-of-interests argument, but a claim for barring all judicial review. And the alternative to such review is illusory.
The Administration has failed to identify any action

 20
that Congress can take that would prevent the expenditure of the $2.5 billion at issue here.
It is no answer to say that Congress could pass
legislation invalidating the use of the funds, given
that this case arises from the Administration’s violation of Congress’s appropriations legislation. The Appropriations Clause can hardly serve as “a bulwark of
the Constitution’s separation of powers,” FLRA, 665
F.3d at 1347, if the Administration can disregard Congress’s appropriations decisions unless there exist
veto-proof majorities in both chambers.
To the contrary, “[t]he established 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) (plurality
opinion) (citing Reeside, 52 U.S. (11 How.) 272). It is
not incumbent upon Congress to pass additional legislation disapproving what the Constitution already
forbids. The Appropriations Clause instead puts the
burden on the Administration to show Congressional
authorization for its transfer, obligation, and expenditure of the $2.5 billion at issue on a border wall—a
burden that the court of appeals correctly determined
that the Administration has not and cannot satisfy.
2. The balance of the equities also weighs
strongly against a stay because the injury asserted by
the Administration does not surpass the harm to other
parties or to the public that will result absent an injunction. See Ind. State Police Pension Tr., 556 U.S.
at 960.
a. The Administration incorrectly suggests that
the only harm that would occur if the Court grants a

 21
stay would be “aesthetic and recreational injuries” to
respondents. Application at 38. Congress’s Appropriations Clause interests have already been injured, and
will continue to be injured, if a stay is granted.
A stay would not preserve the status quo, but rather prejudice the outcome of this appeal. Absent the
district court’s injunction, the Administration stresses
that it will expeditiously obligate and expend the
transferred funds. See Application at 5 (explaining
that “DoD has to finalize contracts before September
30, 2019”); App. 130a (noting that the Administration
intends to build the border wall at the rate of half a
mile per day).
The Appropriations Clause, however, “prevents
Executive Branch officers from even inadvertently obligating the Government to pay money without statutory authority.” FLRA, 665 F.3d at 1347.27 Once DOD
obligates and spends these funds, there will be no way
to get them back, and the constitutional injury will be
irreparable. As the district court explained, “[t]he
funding of border barrier construction, if indeed
barred by law, cannot be remedied easily after the

Congress has made it illegal to “involve [the United States
Government] in a contract or obligation for the payment of
money before an appropriation is made unless authorized by
law.” 31 U.S.C. § 1341(a)(1)(B). This provision is among the “various statutory provisions” that reflect “[t]he Congressionally chosen method of implementing” the Appropriations Clause. Harrington v. Bush, 553 F.2d 190, 194-95 (D.C. Cir. 1977); see also
City of Houston v. Dep’t of Hous. & Urban Dev., 24 F.3d 1421,
1426 (D.C. Cir. 1994) (explaining that “once the relevant funds
have been obligated, a court cannot reach them in order to award
relief”).
27

 22
fact, and yet [the Administration] intend[s] to commence construction immediately and complete it expeditiously.” App. 169a.
The court of appeals correctly explained that the
Administration’s “rush to spend this money is necessarily driven by their understanding that Congress
did not appropriate requested funding for these purposes in the current budget and their expectation that
Congress will not authorize that spending in the next
fiscal year, either.” App. 72a. This effort, it concluded,
simply “is not consistent with Congress’s power over
the purse.” Ibid.
The injury to Congress’s Appropriations Clause
interests harms not only the House, but also the public. “The Appropriations Clause is . . . a bulwark of the
Constitution’s separation of powers,” FLRA, 665 F.3d
at 1347, and “[t]he history of liberty has largely been
the history of observance of [such] procedural safeguards.” McNabb v. United States, 318 U.S. 332, 347
(1943). As the court of appeals summarized, “[t]he
public interest in ensuring protection of this separation of powers is foundational and requires little elaboration.” App. 74a.
b. The constitutional damage that has occurred
and will occur if a stay is granted outweighs any asserted harm to the Administration pending appeal.
The Administration claims that “[t]he injunction
frustrates the government’s ability to stop the flow of
drugs across the border.” Application at 34. However,
the Administration acknowledges that the overwhelming majority of drugs are smuggled at ports of

 23
entry, not between.28 Administration documents also
reveal that (in addition to altering their routes) smugglers evade border walls by using drones, tunnels, and
other techniques.29 For these reasons, among others,
Congress refused to fund “President Trump’s wasteful
wall.”30 In other words, “Congress could have appropriated funds to construct these barriers if it concluded that the expenditure was in the public interest,
but it did not.” App. 71a.
The court of appeals therefore correctly determined that “the evidence before us does not support a
conclusion that enjoining the construction of the proposed barriers until this appeal is fully resolved will
have a significant impact” on drug smuggling. App.
70a. The Administration criticizes this conclusion,
stating that “[n]o sound principle of equity requires
such defeatism.” Application at 35. As the stay applicant, however, the burden is on the Administration to
show that it will be irreparably harmed absent a stay.
There is nothing “defeatist” about pointing out that
the Administration has failed to satisfy its burden.
Moreover, the Administration has other tools at
its disposal to secure the border. For example, it could
spend the funds that Congress appropriated and
deemed sufficient for the construction of a border

See CBP Enforcement Statistics FY 2019, U.S. Customs &
Border Prot., https://tinyurl.com/CBPFY19Stats (last visited
July 17, 2019).
29 Drug Smuggling at the Border, Office of Intelligence, U.S.
Customs & Border Prot., https://tinyurl.com/CBPDrug
SmugglingPresentation (last visited July 17, 2019).
30 165 Cong. Rec. S1362 (daily ed. Feb 14, 2019) (statement
of Sen. Leahy).
28

 24
fence. Yet the Administration has apparently completed only 1.7 of the 95 miles of border fencing Congress approved and appropriated funds for in fiscal
year 2018.31 And President Trump has also publicly
conceded that the Administration “didn’t need to do
this” because it could “do the wall over a longer period
of time.”32
The Administration claims that, “if the injunction
remains in place, it [might] foreclose DoD’s ability to
obligate the funds” before its appropriations expire.
Application at 36. But, as the court of appeals explained, “[a] lapse in funding does not mean that the
money will disappear from the Treasury.” App. 71a.
Rather, “[t]he country will still have that money” and
“[i]t could be spent in the future” subject to Congressional appropriations. Ibid. Accordingly, the Administration will have the funds it seeks if Congress—the
only body that can decide how federal funds should be
spent—decides that public money should be spent as
the Administration wishes.

See Letter from U.S. House of Representatives, California
v. Trump, No. 4:19-cv-00872-HSG (N.D. Cal. May 21, 2019), ECF
31

No. 161.
32 Feb. 15 Rose Garden Remarks, supra note 4.

 25
CONCLUSION
The Court should deny the Administration’s motion for a stay pending appeal.
Respectfully submitted,
CARTER G. PHILLIPS
DOUGLAS N. LETTER
General Counsel
VIRGINIA A. SEITZ
JOSEPH R. GUERRA
Counsel of Record
CHRISTOPHER A. EISWERTH TODD B. TATELMAN

Sidley Austin LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
cphillips@sidley.com

Deputy General Counsel

MEGAN BARBERO

Associate General Counsel

JOSEPHINE MORSE

Associate General Counsel

KRISTIN A. SHAPIRO

Assistant General Counsel

Office of General Counsel
U.S. House of Representatives
219 Cannon Building
Washington, D.C. 20515
(202) 225-9700
Douglas.Letter@mail.
house.gov
JULY 19, 2019