Case: 19-51144 Document: 00515247830 Page: 1 Date Filed: 12/23/2019 No. 19-51144 United States Court of Appeals for the Fifth Circuit  EL PASO COUNTY, TEXAS; BORDER NETWORK FOR HUMAN RIGHTS, – v. – Plaintiffs-Appellees, DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, In his official capacity; MARK ESPER, SECRETARY, DEPARTMENT OF DEFENSE, In his official capacity; CHAD F. WOLF, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, In his official capacity; DAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, In his official capacity; STEVEN T. MNUCHIN, SECRETARY, U.S. DEPARTMENT OF TREASURY, In his official capacity; TODD T. SEMONITE, In his official capacity as Commanding General United States Army Corps of Engineers, Defendants-Appellants. ___________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS (EL PASO) OPPOSITION TO MOTION FOR STAY PENDING APPEAL ANTON METLITSKY EPHRAIM MCDOWELL O’MELVENY & MYERS LLP Seven Times Square New York, New York 10036 (212) 326-2000 ametlitsky@omm.com KRISTY PARKER Counsel of Record JUSTIN FLORENCE DEANA K. EL-MALLAWANY JESSICA MARSDEN ERICA NEWLAND STEPHANIE LLANES CAMERON KISTLER THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Avenue, N.W., #163 Washington, DC 20006 (202) 579-4582 kristy.parker@protectdemocracy.org Attorneys for Plaintiffs-Appellees (For Further Appearances See Reverse Side of Cover) Case: 19-51144 Document: 00515247830 STUART GERSON EPSTEIN BECKER GREEN 1227 25th Street, N.W. Washington, DC 20037 (202) 861-4180 SGerson@ebglaw.com LAURENCE H. TRIBE Carl M. Loeb University Professor and Professor of Constitutional Law HARVARD LAW SCHOOL 1575 Massachusetts Avenue Cambridge, Massachusetts 02138 (617) 495-1767 tribe@law.harvard.edu Page: 2 Date Filed: 12/23/2019 RICHARD MANCINO SHAIMAA M. HUSSEIN WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, New York 10019 (212) 728-8000 RMancino@willkie.com DAVID BOOKBINDER NISKANEN CENTER 820 First Street, N.E. Washington, DC 20002 (301) 751-0611 dbookbinder@niskanencenter.org Case: 19-51144 Document: 00515247830 Page: 3 Date Filed: 12/23/2019 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. El Paso County, Texas - Plaintiff/Appellee Border Network for Human Rights - Plaintiff/Appellee Kristy Parker - Counsel for Plaintiffs/Appellees Justin Florence - Counsel for Plaintiffs/Appellees Deana K. El-Mallawany - Counsel for Plaintiffs/Appellees Erica Newland - Counsel for Plaintiffs/Appellees Stephanie Llanes - Counsel for Plaintiffs/Appellees Cameron Kistler - Counsel for Plaintiffs/Appellees Protect Democracy Project, Inc. - Counsel for Plaintiffs/Appellees Anton Metlitsky - Counsel for Plaintiffs/Appellees Ephraim McDowell - Counsel for Plaintiffs/Appellees O’Melveny & Myers LLP - Counsel for Plaintiffs/Appellees Richard Mancino - Counsel for Plaintiffs/Appellees Shaimaa M. Hussein - Counsel for Plaintiffs/Appellees Willkie Farr & Gallagher LLP - Counsel for Plaintiffs/Appellees -i- Case: 19-51144 Document: 00515247830 Page: 4 Date Filed: 12/23/2019 Stuart Gerson - Counsel for Plaintiffs/Appellees Epstein Becker Green - Counsel for Plaintiffs/Appellees David Bookbinder - Counsel for Plaintiffs/Appellees Niskanen Center - Counsel for Plaintiffs/Appellees Laurence H. Tribe - Counsel for Plaintiffs/Appellees /s/ Anton Metlitsky Anton Metlitsky COUNSEL FOR PLAINTIFFS-APPELLEES - ii - Case: 19-51144 Document: 00515247830 Page: 5 Date Filed: 12/23/2019 TABLE OF CONTENTS Page INTRODUCTION ....................................................................................................1 BACKGROUND ......................................................................................................2 A. The Administration Seeks a Border Wall ..................................2 B. The President Signs the CAA and Declares a National Emergency .................................................................................3 C. The Administration’s Wall-Funding Plan..................................5 D. Procedural History .....................................................................6 ARGUMENT ............................................................................................................7 I. DEFENDANTS HAVE NOT MADE A STRONG SHOWING THAT THEY ARE LIKELY TO SUCCEED ON THE MERITS ...............................................................................................8 A. Plaintiffs Have Article III Standing ...........................................8 1. El Paso County Has Standing ..........................................8 2. BNHR Has Standing ......................................................12 B. Congress Has Not Authorized DoD’s $3.6 Billion Border-Wall Expenditure .........................................................14 C. The District Court Did Not Abuse Its Discretion in Granting an Injunction .............................................................20 II. THE REMAINING FACTORS WEIGH AGAINST A STAY .........21 III. IF THE COURT GRANTS A STAY, IT SHOULD EXPEDITE THIS APPEAL ...................................................................................23 CONCLUSION .......................................................................................................23 - iii - Case: 19-51144 Document: 00515247830 Page: 6 Date Filed: 12/23/2019 TABLE OF AUTHORITIES Page(s) Cases Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350 (5th Cir. 1999) ..........................................................................8, 12 California v. Trump, 2019 WL 6727860 (N.D. Cal. 2019) .................................................................. 22 Chamber of Commerce v. DOL, 885 F.3d 360 (5th Cir. 2018) .............................................................................. 20 Chevron v. NRDC, 467 U.S. 837 (1984) ............................................................................................ 17 City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) ........................................................................9, 10 City of Olmsted Falls v. FAA, 292 F.3d 261 (D.C. Cir. 2002) ........................................................................9, 10 Clapper v. Amnesty International, 568 U.S. 398 (2013) ............................................................................................ 12 Clinton v. City of New York, 524 U.S. 417 (1998) (Kennedy, J., concurring) ...............................................1, 9 Collins v. Mnuchin, 938 F.3d 553 (5th Cir. 2019) ................................................................................ 8 Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730 (5th Cir. 2016) ................................................................................ 9 Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) ....................................................................................9, 12 Detroit Int’l Bridge Co. v. Gov’t of Canada, 883 F.3d 895 (D.C. Cir. 2018) ............................................................................ 16 - iv - Case: 19-51144 Document: 00515247830 Page: 7 Date Filed: 12/23/2019 TABLE OF AUTHORITIES (continued) Page(s) eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) ............................................................................................ 20 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ............................................................................................ 14 Foretich v. U.S., 351 F.3d 1198 (D.C. Cir. 2003) .......................................................................... 10 McCardell v. HUD, 794 F.3d 510 (5th Cir. 2015) ..........................................................................8, 12 Meese v. Keene, 481 U.S. 465 (1987) ......................................................................................11, 12 Missouri v. Jenkins, 515 U.S. 70 (1995) .............................................................................................. 22 Murphy v. NCAA, 138 S. Ct. 1461 (2018) ........................................................................................ 11 NCAA v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013) ............................................................................... 11 Nevada v. DOE, 400 F.3d 9 (D.C. Cir. 2005) ................................................................................ 15 Nken v. Holder, 556 U.S. 418 (2009) .............................................................................................. 7 OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017) ..................................................................12, 13, 14 Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497 (1936) ............................................................................................ 18 Rumsfeld v. FAIR, 547 U.S. 47 (2006) ................................................................................................ 8 -v- Case: 19-51144 Document: 00515247830 Page: 8 Date Filed: 12/23/2019 TABLE OF AUTHORITIES (continued) Page(s) Scott v. Schedler, 771 F.3d 831 (5th Cir. 2014) .............................................................................. 12 Sierra Club v. Trump, 379 F. Supp. 3d 883 (N.D. Cal. 2019) ................................................................ 20 Tex. Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) ................................................................................ 8 Texas v. U.S., __ F.3d __, 2019 WL 6888446 (5th Cir. Dec. 18, 2019) ..................................... 9 Texas v. U.S., 787 F.3d 733 (5th Cir. 2015) ................................................................................ 7 Texas v. U.S., 809 F.3d 134 (5th Cir. 2015) ..........................................................................9, 22 Trump v. Sierra Club, 140 S. Ct. 1 (2019) .............................................................................................. 22 U.S. v. MacCollom, 426 U.S. 317 (1976) ..................................................................................1, 14, 15 U.S. v. Mead Corp., 533 U.S. 218 (2001) ............................................................................................ 17 Walker v. City of Mesquite, 129 F.3d 831 (5th Cir. 1997) .............................................................................. 10 Wash. St. Dep’t of Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371 (2003) ............................................................................................ 19 Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) ................................................................................................ 21 Wyoming v. Oklahoma, 502 U.S. 437 (1992) ............................................................................................ 10 - vi - Case: 19-51144 Document: 00515247830 Page: 9 Date Filed: 12/23/2019 TABLE OF AUTHORITIES (continued) Page(s) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring) ................................................... 21 Statutes 10 U.S.C. § 2801(a) ................................................................................................. 19 10 U.S.C. § 2801(c)(4) ............................................................................................. 19 10 U.S.C. § 2808 ..................................................................................................6, 23 10 U.S.C. § 2808(a) ................................................................................................. 10 31 U.S.C. § 1532 ......................................................................................................18 50 U.S.C. § 1601 et seq.............................................................................................. 4 2020 Consolidated Appropriations Act, H.R. 1158, 116th Cong. (1st Sess. 2019) ............................................................................................................ 4 Pub. L. No. 115-31, 131 Stat. 135, 434 (2017).......................................................... 2 Pub. L. No. 115-141, 132 Stat. 348, 616 (2018)........................................................ 3 Pub. L. No. 116-6 (2019) ........................................................................................... 3 Pub. L. No. 116-6, Title II, § 230(a)(1) (2019).......................................................... 4 Pub. L. No. 116-6, Title II, § 230(c) (2019) ........................................................4, 15 Title VII, § 739........................................................................................................... 4 Other Authorities H.R.J. Res. 46, 116th Cong. (2019) ........................................................................... 5 Michael J. Vassalotti & Brendan W. McGarry, Cong. Research Serv., Military Construction Funding in the Event of a National Emergency 2-3 (2019) ........................................................................................ 20 - vii - Case: 19-51144 Document: 00515247830 Page: 10 Date Filed: 12/23/2019 TABLE OF AUTHORITIES (continued) Page(s) OMB, Exec. Office of the President, Budget of the United States Government, Fiscal Year 2018, at 18 (2017) ....................................................... 3 Project, American Heritage Dictionary (5th ed. 2011) ........................................... 16 S.J. Res. 54, 116th Cong. (2019) ............................................................................... 5 White House Fact Sheet (Mar. 11, 2019), https://www.whitehouse.gov/briefings-statements/presidentdonald-j-trump-promoting-fiscally-responsible-pro-american2020-budget/ ....................................................................................................... 16 Regulations 82 Fed. Reg. 8793 (Jan. 25, 2017) ............................................................................. 2 84 Fed. Reg. 4949 (Feb. 15, 2019) ........................................................................4, 5 Constitutional Provisions U.S. Const. art. I, § 9, cl. 7 ....................................................................................... 14 - viii - Case: 19-51144 Document: 00515247830 Page: 11 Date Filed: 12/23/2019 INTRODUCTION Recognizing that when “the decision to spend [is] determined by the Executive alone, … liberty is threatened,” the Framers vested the power of the purse exclusively in Congress. Clinton v. City of New York, 524 U.S. 417, 451 (1998) (Kennedy, J., concurring). That power, embodied in the Appropriations Clause, gives rise to the following rule: an “expenditure of public funds” by the Executive Branch is “proper only when authorized by Congress.” U.S. v. MacCollom, 426 U.S. 317, 321 (1976). The district court faithfully applied these principles and enjoined Defendants’ effort, under 10 U.S.C. § 2808, to spend $3.6 billion on border-wall construction. As the court recognized, Congress carefully considered whether and to what extent to fund a border wall—a dispute over that question produced the Nation’s longestever government shutdown—and decided to appropriate only $1.375 billion for wall construction. And to erase any doubt, Congress enacted a provision specifically barring the Executive Branch from increasing funding for projects beyond the amounts appropriated. The district court correctly rejected Defendants’ attempt to circumvent these congressional judgments. Defendants now request a stay of the district court’s injunction pending appeal. But the applicable factors cut decisively against that request. Most critically, Defendants have not made the required strong showing that their appeal is likely to 1 Case: 19-51144 Document: 00515247830 Page: 12 Date Filed: 12/23/2019 succeed: Plaintiffs have suffered injuries that suffice for Article III standing, and Defendants’ § 2808 wall construction is unlawful because Congress never authorized it and in fact expressly precluded it. Nor do the equities favor Defendants. A delay of § 2808 wall construction that has not even commenced will not irreparably harm them. Meanwhile, Plaintiffs’ injuries will compound if a stay is granted. Finally, there is no public interest in allowing Defendants to continue spending funds in a manner that Congress never authorized. Their stay request should be denied. BACKGROUND A. The Administration Seeks a Border Wall Five days after his inauguration, President Trump directed the Executive Branch to “take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border.” 82 Fed. Reg. 8793, 8794 (Jan. 25, 2017). Initially, the Administration sought border-wall funding through the ordinary congressional appropriations process. In 2017, the President requested that Congress appropriate $999 million for “the first installment of the border wall.” ECF 55-6, at 5. Congress instead appropriated $341.2 million to replace 40 miles of existing fencing. Pub. L. No. 115-31, 131 Stat. 135, 434 (2017). In 2018, the 2 Case: 19-51144 Document: 00515247830 Page: 13 Date Filed: 12/23/2019 President requested that Congress appropriate $2.6 billion for a wall. 1 Congress instead appropriated $1.571 billion for border-security technology and fencing in specified areas. Pub. L. No. 115-141, 132 Stat. 348, 616 (2018). In February 2018, the President made his initial fiscal-year 2019 budget request, seeking “$1.6 billion to construct approximately 65 miles of border wall.” ECF 55-8, at 58. But mere weeks before fiscal-year 2018 appropriations were to expire, the President instead declared that he was seeking at least $5 billion and would be “proud to shut down the government for border security.” ECF 55-9, at 11. On December 22, 2018, the longest government shutdown in American history began. About two weeks into the shutdown, the President sent a letter to the Senate Appropriations Committee “request[ing] $5.7 billion for construction of a steel barrier for the Southwest border.” ECF 55-28, at 1. He also announced that if the “negotiated process” did not yield sufficient border-wall funding, he could “call a national emergency and build [the wall] very quickly.” ECF 55-10, at 25. B. The President Signs the CAA and Declares a National Emergency On February 14, 2019, Congress passed the 2019 Consolidation Appropriations Act (CAA), Pub. L. No. 116-6, 133 Stat. 13 (2019). The CAA OMB, Exec. Office of the President, Budget of the United States Government, Fiscal Year 2018, at 18 (2017). 1 3 Case: 19-51144 Document: 00515247830 Page: 14 Date Filed: 12/23/2019 appropriates $1.375 billion to the Department of Homeland Security (DHS) “for the construction of primary pedestrian fencing … in the Rio Grande Valley Sector.” 133 Stat. at 28, Title II, § 230(a)(1). And it establishes a process through which DHS would consult with Congress about whether more border-wall appropriations should be made in future years. Id. § 230(c). The CAA also contains a provision precluding certain additional Executive Branch spending. Specifically, § 739 of Title VII, which applies “GovernmentWide,” states: None of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce 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, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act. 133 Stat. at 197. On February 15, 2019, the President signed the CAA into law. 2 On that same day, the President invoked the National Emergencies Act (“NEA”), 50 U.S.C. § 1601 et seq., to declare “[t]he current situation at the southern border” a “national emergency.” 84 Fed. Reg. 4949 (Feb. 15, 2019). The emergency Proclamation states “that this emergency requires the use of the Armed Forces” and Congress recently enacted the 2020 Consolidated Appropriations Act, H.R. 1158, 116th Cong. (1st Sess. 2019), which maintains the same level of border-wall funding ($1.375 billion) and contains a provision identical to § 739. See id. Title II, § 209(a)(1); Title VII, § 739. 2 4 Case: 19-51144 Document: 00515247830 Page: 15 Date Filed: 12/23/2019 “that the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretary of Defense.” Id. When announcing the Proclamation, the President observed that he “could do the wall over a longer period of time” and “didn’t need to do this.” ECF 55-15, at 16. But, he said, “I’d rather do it much faster.” Id. Congress twice passed bipartisan joint resolutions terminating the President’s emergency declaration, see H.R.J. Res. 46, 116th Cong. (2019); S.J. Res. 54, 116th Cong. (2019), but the President vetoed both. C. The Administration’s Wall-Funding Plan After the President issued the Proclamation, the Administration announced a plan to fund and build the border wall. ECF 95-5. That plan contains two elements. First, it invokes 10 U.S.C. § 2808 as authority to spend $3.6 billion on the wall. ECF 95-5, at 4. Section 2808 allows the Department of Defense (DoD) to “undertake military construction projects” in the event of a “national emergency” declared “in accordance with the [NEA].” Second, it invokes 10 U.S.C. § 284—which allows DoD to “provide support for the counterdrug activities” of other agencies—as authority to spend an additional $2.5 billion on the wall. Id. Only DoD’s use of § 2808 is at issue in this stay proceeding. On September 3, 2019, DoD determined to spend $3.6 billion of § 2808 funds on border-wall construction. ECF 123-2, at 9-10. Some of that construction will 5 Case: 19-51144 Document: 00515247830 Page: 16 Date Filed: 12/23/2019 take place in southern New Mexico, a two-hour drive from El Paso, Texas. ECF 112-1, at 3; ECF 123-2, at 11. Because the $3.6 billion must come from “the total amount of funds that have been appropriated for military construction,” 10 U.S.C. § 2808(a), DoD defunded 128 already-planned military construction projects, ECF 123-2, at 87-89, including a $20 million “Defense Access Roads” project at Fort Bliss, a military base within El Paso County, Texas, id. at 89; ECF 114-1, at 2. D. Procedural History Plaintiffs here are El Paso County and the Border Network for Human Rights (BNHR). The County sits on the U.S.-Mexico border and is “defined by [its] relationship with Mexico and the presence of [its] many immigrant residents.” ECF 55-25, ¶ 5. BNHR is a community organization headquartered in El Paso, consisting of about 5,000 members who live and work in west Texas and southern New Mexico. ECF 55-27, ¶ 4. Since 1998, BNHR has “mobilize[d] [its] members to advocate for positive change in policies” affecting “the immigrant community.” Id. ¶ 3. The County and BNHR brought suit against Defendants in district court, challenging the President’s Proclamation and Defendants’ §§ 2808 and 284 wall construction. On October 11, 2019, the district court granted Plaintiffs summary judgment, holding that Plaintiffs had Article III standing, ECF 129, at 8-24, and that Defendants’ §§ 2808 and 284 construction “violates the CAA generally and specifically violates § 739 [thereof],” id. at 24. The court did not address Plaintiffs’ 6 Case: 19-51144 Document: 00515247830 Page: 17 Date Filed: 12/23/2019 alternative argument that the Proclamation exceeds the President’s authority under the NEA. On December 10, 2019, the court issued a declaratory judgment that the President’s Proclamation and Defendants’ § 2808 construction is unlawful and permanently enjoined the § 2808 construction. ECF 136, at 20-21. Although the district court declared Defendants’ § 284 construction unlawful in its summaryjudgment opinion, the court declined to enjoin it. Id. at 15. 3 The district court denied Defendants’ request for a stay pending appeal. ECF 141. ARGUMENT A “stay is an intrusion into the ordinary processes of administration and judicial review.” Nken v. Holder, 556 U.S. 418, 427 (2009). This Court “consider[s] four factors in deciding whether to grant a stay pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Texas v. U.S., 787 F.3d 733, 746-47 (5th Cir. 2015). Each factor weighs heavily against a stay. Plaintiffs have cross-appealed the district court’s denial of equitable relief as to Defendants’ § 284 construction. 3 7 Case: 19-51144 I. Document: 00515247830 Page: 18 Date Filed: 12/23/2019 DEFENDANTS HAVE NOT MADE A STRONG SHOWING THAT THEY ARE LIKELY TO SUCCEED ON THE MERITS Defendants have made no showing—let alone a strong one—that they are likely to prevail on appeal. Plaintiffs have standing under settled precedent. Congress did not authorize DoD’s § 2808 wall expenditures. And the district court did not abuse its discretion in granting an injunction. A. Plaintiffs Have Article III Standing “[T]he injury in fact requirement under Article III is qualitative, not quantitative, in nature.” Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 357-58 (5th Cir. 1999). A plaintiff’s injury “need not measure more than an identifiable trifle.” Id. at 358. And “[t]he required injury to challenge agency action” in particular “is minimal.” Collins v. Mnuchin, 938 F.3d 553, 586 (5th Cir. 2019) (en banc). When evaluating standing at the summary-judgment stage, courts must “take as true” the evidence a plaintiff submits. McCardell v. HUD, 794 F.3d 510, 520 (5th Cir. 2015). Plaintiffs have easily shown standing to challenge DoD’s § 2808 expenditures. 4 1. El Paso County Has Standing a) DoD’s § 2808 expenditures cause the County “economic injury”—“a quintessential injury upon which to base standing.” Tex. Democratic Party v. Even if only one Plaintiff had standing, Article III jurisdiction would attach. See Rumsfeld v. FAIR, 547 U.S. 47, 52 n.2 (2006). 4 8 Case: 19-51144 Document: 00515247830 Page: 19 Date Filed: 12/23/2019 Benkiser, 459 F.3d 582, 586 (5th Cir. 2006). A county has standing when it shows “harm to its own economic interests.” City of Olmsted Falls v. FAA, 292 F.3d 261, 268 (D.C. Cir. 2002); see City of Oakland v. Lynch, 798 F.3d 1159, 1164 (9th Cir. 2015); cf. Texas v. U.S., 809 F.3d 134, 152 (5th Cir. 2015) (states had standing to challenge rule that affected “the states’ fiscs”). Such harm can include a county’s lost opportunity for an economic “benefit.” Clinton, 524 U.S. at 431; cf. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (state had standing when it could “lose out on federal funds”); Texas v. U.S., __ F.3d __, 2019 WL 6888446, at *7 (5th Cir. Dec. 18, 2019) (same). To finance its § 2808 wall construction, DoD has defunded a planned $20 million construction project at Fort Bliss. According to a top County official’s sworn declaration, Fort Bliss is the “lifeblood of the El Paso economy.” ECF 55-26, ¶ 15. Fort Bliss has a “$5.9 billion economic impact on El Paso County,” and “create[s] nearly 62,000 jobs with more than $4 billion in compensation to area households.” Id. “[T]he financial health of Fort Bliss,” therefore, “affects the real estate market and every other aspect of the economy in El Paso.” Id. Under “basic law[s] of economics,” Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730, 738 (5th Cir. 2016), the planned $20 million construction project would have created jobs, fostered growth, and boosted tax revenues. Losing that benefit gives the County Article III standing. 9 Case: 19-51144 Document: 00515247830 Page: 20 Date Filed: 12/23/2019 Defendants’ only response is that the County must show “a loss of specific tax revenues” to establish standing. Mot. 9 (quoting Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992)). Not so. Wyoming merely agreed with a Special Master’s conclusion that losing specific tax revenues was sufficient to show standing—not that it was necessary. 502 U.S. at 448. Unsurprisingly, multiple circuit-court decisions postdating Wyoming have upheld municipal standing absent proof of specific lost tax revenues. See City of Olmsted Falls, 292 F.3d at 268; City of Oakland, 798 F.3d at 1164. b) The County has independently been injured by the President’s Proclamation—an essential element of DoD’s § 2808 expenditures. 10 U.S.C. § 2808(a) (precondition for “military construction projects” is “declaration by the President of a national emergency”). Plaintiffs challenged DoD’s § 2808 construction on the ground that the Proclamation is invalid. While the district court did not rule on that issue, Plaintiffs will seek affirmance based on it. Accordingly, the Court must consider the harm caused by the Proclamation in its standing analysis. “[I]njury to reputation can constitute a cognizable injury sufficient for Article III standing.” Foretich v. U.S., 351 F.3d 1198, 1211 (D.C. Cir. 2003); see Walker v. City of Mesquite, 129 F.3d 831, 832-33 (5th Cir. 1997). “[W]here reputational injury derives directly from an unexpired and unretracted government action, that injury satisfies the requirements of Article III standing to challenge that action.” Foretich, 10 Case: 19-51144 Document: 00515247830 Page: 21 Date Filed: 12/23/2019 351 F.3d at 1213. Even “the need to take ... affirmative steps to avoid the risk of harm to [one’s] reputation constitutes a cognizable injury.” Meese v. Keene, 481 U.S. 465, 475 (1987). The Proclamation substantially damages the County’s reputation. The County markets itself to tourists and investors as a safe, beautiful, multicultural border community. ECF 55-26, ¶ 4. But as County officials have explained, the Proclamation has “falsely told the world the exact opposite”: “that El Paso County and the southern border are crime-ridden and dangerous, that [its] immigrant community comprises criminals and drug traffickers…, that [its] proximity to Mexico is an existential threat, and that [it] can be rescued only through the blight of massive wall construction and militarization.” Id. ¶ 8; see id. ¶ 6; ECF 55-25, ¶ 6. Because of the Proclamation, “every meeting anyone promoting El Paso has must now include extra efforts to persuade people that El Paso County is a good place to invest in and visit.” ECF 55-26, ¶ 11; see id. ¶ 12; ECF 55-25, ¶ 6. Just as sports leagues in NCAA v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013), 5 were “harmed by their unwanted association” with gambling, the County is “harmed by [its] unwanted association” with crime, construction, and militarization. Id. at 220. Far from speculative (Mot. 9-10), the County’s reputational harms are The Supreme Court reversed this decision on the merits without questioning the Third Circuit’s standing analysis. See Murphy v. NCAA, 138 S. Ct. 1461 (2018). 5 11 Case: 19-51144 Document: 00515247830 Page: 22 Date Filed: 12/23/2019 substantiated by government officials’ uncontroverted sworn declarations. See Meese, 481 U.S. at 474 (finding reputational standing based on plaintiff’s “uncontradicted” affidavits). At the summary-judgment stage, this Court must take those declarations “as true.” McCardell, 794 F.3d at 520. And unlike the plaintiffs’ injuries in Clapper v. Amnesty International, 568 U.S. 398 (2013), which involved “a highly attenuated chain of possibilities,” id. at 410, the County’s injury is direct: third parties view El Paso more negatively because the President has used an official Proclamation to designate the border a dangerous emergency zone. A plaintiff’s injury that rests “on the predictable effect of Government action on the decisions of third parties” satisfies Article III. Dep’t of Commerce, 139 S. Ct. at 2566. 2. BNHR Has Standing “[A]n organization has standing to sue on its own behalf where it devotes resources to counteract a defendant’s allegedly unlawful practices.” Fowler, 178 F.3d at 360. This Court has consistently found standing when an organization responds to a government policy by counseling its members about that policy’s effects. See OCA-Greater Houston v. Texas, 867 F.3d 604, 612 (5th Cir. 2017) (organization responded to voting law by “educat[ing] voters”); Scott v. Schedler, 771 F.3d 831, 837 (5th Cir. 2014) (organization responded to state’s noncompliance with voting law by holding voter-registration drives). By contrast, the Court has denied standing when an organization expends resources solely on “lobbying and 12 Case: 19-51144 Document: 00515247830 Page: 23 Date Filed: 12/23/2019 litigation-related expenses.” OCA-Greater Houston, 867 F.3d at 611. BNHR has standing under these precedents. In normal circumstances, BNHR dedicates its resources to “its core mission” of “promoting immigration reform.” ECF 55-27, ¶ 13. But recently, the Proclamation and impending § 2808 construction have caused BNHR to divert resources away from that core mission to respond to its members’ needs. In particular, the Proclamation has made BNHR members “feel targeted and endangered” and “worried … [about] violence against them and their children.” Id. ¶ 12. Moreover, one of the impending § 2808 construction projects will take place in southern New Mexico—where many BNHR members live— threatening those members’ “basic quality of life by forcing them to deal with the noise,” [t]raffic slowdowns,” and “blight.” Id. ¶¶ 35-36. To mitigate these effects on its members, BNHR has redirected resources away from “organizing efforts around immigration reform” and toward “counsel[ing] community members who are fearful,” and “helping [its] members deal with the harmful impacts” of construction. Id. ¶¶ 13, 37. For instance, BNHR has increased the frequency of “Know Your Rights” presentations five-fold. Id. ¶¶ 14-15. Defendants entirely ignore how the Proclamation and impending § 2808 construction in southern New Mexico have affected BNHR members and thus required an organizational response. Instead, they observe that redirecting resources “to litigation and legal counseling” does not establish standing. Mot. 10. True 13 Case: 19-51144 Document: 00515247830 Page: 24 Date Filed: 12/23/2019 enough—but BNHR’s injuries stem from diverting resources toward counseling affected members, not litigation. Defendants also belittle BNHR’s injuries as “selfinflicted.” Id. at 11. But BNHR’s injuries are no more self-inflicted than the injuries in OCA-Greater Houston and Scott. In those cases, the government did not force the organization to expend resources—yet this Court still found standing because the organization shifted resources toward “mitigating [the policy’s] real-world impact on [its members].” OCA-Greater Houston, 867 F.3d at 612. B. Congress Has Not Authorized DoD’s $3.6 Billion Border-Wall Expenditure The Appropriations Clause provides 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. This command means that “the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.” MacCollom, 426 U.S. at 321. The question is thus whether Congress authorized DoD to spend $3.6 billion of § 2808 military construction funds on a border wall. To answer that question, the Court must read the relevant statutory provisions “in context,” recognizing that “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000). Applying this analysis, it is clear that Congress did not authorize DoD’s expenditure: the CAA and § 739 14 Case: 19-51144 Document: 00515247830 Page: 25 Date Filed: 12/23/2019 thereof show that Congress did not approve border-wall spending beyond the $1.375 billion appropriated in the CAA; and even absent the CAA, § 2808’s terms themselves do not permit border-wall construction. 1. From 2018-2019, Congress and the President debated border-wall funding, and that dispute resulted in the Nation’s longest-ever government shutdown. Ultimately, Congress appropriated $1.375 billion for wall construction in “the Rio Grande Valley Sector,” while creating procedures for considering future border-wall appropriations. 133 Stat. at 28, §§ 230(a)(1), (c). Congress thus definitively rejected the President’s request for approximately $6 billion in wall funding. That congressional decision precludes Defendants’ assertion here that Congress has appropriated $3.6 billion in additional wall-construction funds. “Where Congress has addressed [a] subject” and “authorized expenditures where a condition is met, the clear implication is that where the condition is not met, the expenditure is not authorized.” MacCollom, 426 U.S. at 321. And “[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. DOE, 400 F.3d 9, 16 (D.C. Cir. 2005). Congress’s specific appropriation of $1.375 billion for wall construction thus precludes Defendants’ reliance on § 2808’s general terms. Defendants’ suggestion that Congress had to “explicitly” prohibit wall construction beyond the CAA’s appropriation (Mot. 13), gets these 15 Case: 19-51144 Document: 00515247830 Page: 26 Date Filed: 12/23/2019 settled appropriations-law principles backwards. 2. To remove any potential doubt about this question, however, Congress enacted CAA § 739, which states that “[n]one 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.” DoD’s § 2808 expenditures flout this prohibition. They use appropriated funds to increase funding for a “project”—namely, a border wall. See American Heritage Dictionary 1408 (5th ed. 2011) (“project”: “an undertaking requiring concerted effort”); Detroit Int’l Bridge Co. v. Gov’t of Canada, 883 F.3d 895, 901 (D.C. Cir. 2018) (referring to bridge construction as a “project”). And that project was “proposed in the President’s budget request for a fiscal year.” Specifically, the President requested $5.7 billion “for construction of a steel barrier for the Southwest border” in fiscal-year 2019, ECF 55-28, at 1, and $8.6 billion for a wall in fiscalyear 2020, $3.6 billion of which would be appropriated to DoD. 6 As the district court correctly held, § 739 expressly prohibits Defendants’ expenditure of $3.6 billion that the President requested but Congress rejected. Defendants’ sole response is that the Court should adopt the Government White House Fact Sheet (Mar. 11, 2019), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumppromoting-fiscally-responsible-pro-american-2020-budget/. 6 16 Case: 19-51144 Document: 00515247830 Page: 27 Date Filed: 12/23/2019 Accountability Office’s (GAO) definition of “program, project, or activity,” i.e., an “[e]lement within a budget account.” Mot. 16. Not only is this argument waived because it was not raised below, but it disregards the ordinary meaning of “project.” 7 Defendants’ argument also fails on its own terms. To start, even if Defendants were correct that § 739 restricts only funding increases within single agencies, it would not matter. As noted, the President’s fiscal-year 2020 request sought $3.6 billion in wall funding for DoD. Congress has not appropriated funds to fulfill that request, including in the recently passed 2020 Consolidated Appropriations Act. See supra at 4 n.2. And DoD is now increasing funding for the President’s proposed project in the precise amount that the President requested and Congress declined. Section 739 squarely forbids that effort, even under Defendants’ own reading of that provision. In any event, Defendants’ reading is incorrect: Section 739 broadly restricts funding increases channeled through any agency—not just the agency for which the President requested funds. Congress placed § 739 in Title VII of the CAA under the heading of “General Provisions—Government-Wide … (Including Transfer of Defendants do not ask the Court to defer to the GAO’s construction under Chevron v. NRDC, 467 U.S. 837 (1984). Nor could they, because the GAO was not construing the “particular statutory provision” at issue here, Congress did not “delegate[] authority to” the GAO “generally to make rules carrying the force of law,” and the GAO’s Glossary was not “promulgated in the exercise of [any such] authority.” U.S. v. Mead Corp., 533 U.S. 218, 226-27 (2001). 7 17 Case: 19-51144 Document: 00515247830 Page: 28 Date Filed: 12/23/2019 Funds).” Provisions in that Title therefore apply to fund transfers throughout the whole Executive Branch, not simply within particular agencies. And § 739’s comprehensive sweep is further confirmed by its application to funds “in this or any other appropriations Act”—not funds in a specific account—and to “the President’s” full “budget request”—not a request for a specific agency. Indeed, Defendants’ reading of “program, project, or activity” would effectively nullify § 739. Other statutory provisions already prohibit individual agencies from transferring money between accounts to supplement funding for preferred projects. See 31 U.S.C. § 1532 (funds may not “be withdrawn from one appropriation account and credited to another” unless “authorized by law”). Section 739 has meaning only if it preemptively restricts increased funding of projects that cut across agencies—like the border wall. 3. As the district court held, the CAA precludes DoD’s § 2808 construction outright. Even if § 2808’s terms otherwise permitted wall construction, they could not overcome the CAA because the CAA is the later-enacted law. See Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503 (1936). But to be clear, § 2808 does not authorize wall construction at all. Section 2808 permits DoD to “undertake military construction projects” in the event of a national emergency declaration. A “military construction” project is construction “carried out with respect to” a “base, camp, post, station, yard, center, 18 Case: 19-51144 Document: 00515247830 Page: 29 Date Filed: 12/23/2019 or other activity under the jurisdiction of the Secretary of a military department.” 10 U.S.C. §§ 2801(a), (c)(4). DoD has invoked § 2808 to build a wall “with respect to” the southern border, claiming that the border is an “activity under the jurisdiction of the Secretary of a military department.” See ECF 123-2, at 2-3. But the border is an international boundary line, not an “activity.” Indeed, “activity” follows an enumerated list of military sites, and when “general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature” to the enumerated ones. Wash. St. Dep’t of Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003). “Activity” must therefore be construed to encompass only military sites and activities, which the southern border is not. Attempting to squeeze wall construction into § 2808’s language, DoD has devised a novel scheme to acquire military jurisdiction over the border—land owned by other agencies will be transferred to DoD, and land owned by private parties will be purchased or condemned. ECF 123-2, at 3, 9-10. But nothing in § 2808’s text or history suggests that Congress envisioned that provision as granting DoD authority to acquire swaths of new land that was previously unconnected to a military site to build a $3.6 billion project to prevent unlawful immigration. Before DoD’s current gambit, it had invoked § 2808 only twice, both times for construction on traditional 19 Case: 19-51144 Document: 00515247830 Page: 30 Date Filed: 12/23/2019 military sites under the control of military departments. 8 “[T]hat it took [DoD] [decades] to discover its novel interpretation further highlights [its] unreasonableness.” Chamber of Commerce v. DOL, 885 F.3d 360, 380 (5th Cir. 2018). C. The District Court Did Not Abuse Its Discretion in Granting an Injunction The district court did not abuse its discretion in enjoining DoD’s § 2808 construction after finding it unlawful. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). As the court correctly held, Plaintiffs’ injuries would compound absent an injunction: the County’s economy would continue to suffer from lost Fort Bliss and tourism dollars; its reputation would remain tarnished; and BNHR would drain further resources counseling members. ECF 136, at 8-14. And as the court properly recognized, the public interest is served by protecting Congress’s prerogative to exercise its power of the purse. Id. at 17. Conversely, Defendants have not shown that they would be substantially injured by an injunction of § 2808 construction. Even when the Administration has received appropriated funds for a border wall, its construction has not proved swift, undermining Defendants’ claimed exigency. See Sierra Club v. Trump, 379 F. Supp. See Michael J. Vassalotti & Brendan W. McGarry, Cong. Research Serv., Military Construction Funding in the Event of a National Emergency 2-3 (2019). 8 20 Case: 19-51144 Document: 00515247830 Page: 31 Date Filed: 12/23/2019 3d 883, 927 n.22 (N.D. Cal. 2019) (DHS had only constructed 1.7 miles of fencing with $1.571 billion in 2018 funding). And while border security presents a serious concern, Congress itself considered that concern and appropriated only $1.375 billion for a wall. Finally, § 2808 construction has not even begun, and Defendants still have billions of dollars to spend on wall construction under § 284, which the district court did not enjoin. Citing Winter v. NRDC, 555 U.S. 7 (2008), Defendants argue that courts should refrain from enjoining the Executive Branch’s unlawful conduct when it asserts a national security interest. See Mot. 17-19. But Winter held only that enjoining the Navy’s use of sonar technology in training would be improper when the plaintiffs’ “ultimate legal claim is that the Navy must prepare an [environmental impact statement], not that it must cease sonar training.” 555 U.S. at 32. Unlike the Winter plaintiffs, Plaintiffs here do claim that the Administration “must cease” § 2808 construction. Id. Regardless, Winter stressed that “military interests do not always trump other considerations.” Id. at 26. And there can be no more important “other consideration” than ensuring that “the Executive be under the law.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 (1952) (Jackson, J., concurring). II. THE REMAINING FACTORS WEIGH AGAINST A STAY Defendants also cannot show that the equities favor a stay. Defendants’ 21 Case: 19-51144 Document: 00515247830 Page: 32 Date Filed: 12/23/2019 claimed irreparable injuries ring hollow. See supra at 20-21. And while Defendants may incur costs from contract suspension (Mot. 20), they have only themselves to blame for entering contracts amid litigation. Defendants’ reliance (id.) on the district court’s decision to stay its own injunction of § 2808 construction in California v. Trump, 2019 WL 6727860 (N.D. Cal. 2019), is misplaced. That decision was based exclusively on the Supreme Court’s stay of an injunction of § 284 construction in the very same case. See id. at *26; Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.). The Supreme Court’s decision about different construction in a different case with different plaintiffs says nothing about Defendants’ stay request here. That is all the more true because the Supreme Court’s single line of reasoning expressed doubt about the plaintiffs’ “cause of action,” Trump, 140 S. Ct. at 1, and Defendants have not even argued that Plaintiffs here lack a cause of action. Defendants’ alternative plea for an injunction tied only to the $20 million in Fort Bliss funds (Mot. 20-21) likewise fails. An injunction’s proper breadth turns on “the nature and scope of the [relevant] violation.” Missouri v. Jenkins, 515 U.S. 70, 88 (1995). And this Court has held that nationwide injunctions are “not beyond the power of a court [to issue] in appropriate circumstances.” Texas, 809 F.3d at 188. This is such a circumstance: all of DoD’s § 2808 expenditures are unlawful, so all of those expenditures must be enjoined. Anything less would not accord with 22 Case: 19-51144 Document: 00515247830 Page: 33 Date Filed: 12/23/2019 the scope of Defendants’ violation. III. IF THE COURT GRANTS A STAY, IT SHOULD EXPEDITE THIS APPEAL If the Court grants a stay, it should order expedited briefing and argument of this appeal (and Plaintiffs’ cross-appeal), with oral argument scheduled no later than March 2020, because Defendants’ continued expenditure of § 2808 funds will cause Plaintiffs ongoing irreparable harm. CONCLUSION The motion for a stay pending appeal should be denied. Dated: December 23, 2019 Respectfully submitted, /s/ Anton Metlitsky ANTON METLITSKY EPHRAIM MCDOWELL O’MELVENY & MYERS LLP Seven Times Square New York, NY 10036 KRISTY PARKER Counsel of Record JUSTIN FLORENCE DEANA K. EL-MALLAWANY JESSICA MARSDEN ERICA NEWLAND (motion for admission pending) STEPHANIE LLANES (motion for admission pending) CAMERON KISTLER THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Avenue, N.W., No. 163 23 Case: 19-51144 Document: 00515247830 Page: 34 Date Filed: 12/23/2019 Washington, DC 20006 STUART GERSON EPSTEIN BECKER GREEN 1227 25th Street, N.W. Washington, DC 20037 RICHARD MANCINO SHAIMAA M. HUSSEIN WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 DAVID BOOKBINDER NISKANEN CENTER 820 First Street, N.E. Washington, DC 20002 LAURENCE H. TRIBE Carl M. Loeb University Professor and Professor of Constitutional Law HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 Affiliation Noted for Identification Purposes Only 24 Case: 19-51144 Document: 00515247830 Page: 35 Date Filed: 12/23/2019 CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Rule 27(d)(2)(A) because it contains 5,196 words, excluding the certificate of interested persons. 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in Times New Roman 14-point font. Dated: December 23, 2019 Respectfully submitted, /s/ Anton Metlitsky ANTON METLITSKY O’MELVENY & MYERS LLP Seven Times Square New York, NY 10036 25 Case: 19-51144 Document: 00515247830 Page: 36 Date Filed: 12/23/2019 CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of December, 2019, I electronically filed the foregoing with the Clerk of the Court for the U.S. Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. All participants are registered CM/ECF users, and will be served by the appellate CM/ECF system. Dated: December 23, 2019 Respectfully submitted, /s/ Anton Metlitsky ANTON METLITSKY O’MELVENY & MYERS LLP Seven Times Square New York, NY 10036 26