Case: 19-51144 Document: 00515362219 Page: 1 Date Filed: 03/27/2020 No. 19-51144 United States Court of Appeals for the Fifth Circuit  EL PASO COUNTY, TEXAS; BORDER NETWORK FOR HUMAN RIGHTS, – v. – Plaintiffs-Appellees Cross-Appellants, 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 Cross-Appellees. ___________________________ On Appeal From the United States District Court For the Western District of Texas, El Paso Division, No. 3:19-cv-66-DB BRIEF FOR PLAINTIFFS-APPELLEES CROSS-APPELLANTS 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 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 Cross-Appellants (For Further Appearances See Reverse Side of Cover) Case: 19-51144 Document: 00515362219 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: 03/27/2020 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 Additional Attorneys for Plaintiffs-Appellees Cross-Appellants Case: 19-51144 Document: 00515362219 Page: 3 Date Filed: 03/27/2020 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 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 Stuart Gerson - Counsel for Plaintiffs/Appellees i Case: 19-51144 Document: 00515362219 Page: 4 Date Filed: 03/27/2020 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 Appellees-Cross Appellants ii Case: 19-51144 Document: 00515362219 Page: 5 Date Filed: 03/27/2020 STATEMENT REGARDING ORAL ARGUMENT Plaintiffs-Appellees/Cross-Appellants El Paso County, Texas and the Border Network for Human Rights (“Plaintiffs”) respectfully request oral argument. This case involves novel and important questions about the Appropriations Clause, the National Emergencies Act, and numerous federal statutes. The district court below enjoined Defendants from spending $3.6 billion of funds appropriated by Congress for other purposes on a border wall. Plaintiffs believe that oral argument would help the Court fully understand the issues in this case. iii Case: 19-51144 Document: 00515362219 Page: 6 Date Filed: 03/27/2020 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS ........................................................i STATEMENT REGARDING ORAL ARGUMENT ............................................ iii TABLE OF CONTENTS .........................................................................................iv TABLE OF AUTHORITIES ................................................................................. vii INTRODUCTION ....................................................................................................1 JURISDICTIONAL STATEMENT .........................................................................4 STATEMENT OF THE ISSUES..............................................................................4 STATEMENT OF THE CASE .................................................................................6 I. II. Factual Background..............................................................................6 A. An Impasse Over Border-Wall Funding Leads To The Nation’s Longest-Ever Government Shutdown.........................6 B. Congress Passes And The President Signs The CAA ............... 8 C. The President Declares A National Emergency To Obtain More Wall Funding ....................................................................9 D. Defendants Devise A Plan To Build The Wall With Funds Appropriated For Other Purposes .................................10 1. Section 284 ....................................................................10 2. Section 2808 ..................................................................12 Procedural History..............................................................................12 SUMMARY OF ARGUMENT ..............................................................................14 STANDARD OF REVIEW ....................................................................................18 ARGUMENT ..........................................................................................................18 DEFENDANTS’ APPEAL .....................................................................................18 I. Plaintiffs’ Challenges to the § 2808 Expenditures And Proclamation Are Justiciable..............................................................18 A. Plaintiffs Have Standing To Challenge The § 2808 Expenditures And Proclamation ..............................................19 1. The County Has Standing ..............................................20 2. BNHR Has Standing ......................................................27 iv Case: 19-51144 Document: 00515362219 Page: 7 Date Filed: 03/27/2020 TABLE OF CONTENTS (continued) Page B. II. III. 1. Plaintiffs’ Claims Are Reviewable Under the APA ......31 2. Plaintiffs’ Claims Are Also Reviewable Under Equitable Principles .......................................................34 Defendants’ § 2808 Expenditures Violate the CAA And Thus The Appropriations Clause.................................................................35 A. By Specifically Appropriating $1.375 Billion For A Border Wall, Congress Precluded Additional BorderWall Expenditures ....................................................................36 B. In Addition, CAA § 739 Expressly Precludes BorderWall Expenditures Beyond The $1.375 Billion Appropriated In The CAA .......................................................40 Regardless Of The CAA, Defendants’ § 2808 Expenditures Are Unlawful .............................................................................................45 A. B. IV. Plaintiffs’ Challenges To The § 2808 Construction And Proclamation Are Reviewable .................................................31 The Proclamation Violates The NEA ......................................46 1. Congress Passed the NEA to Constrain the President’s Emergency Powers .....................................46 2. The NEA Does Not Allow the President to Impose a Policy That Congress Considered and Rejected .........48 3. Defendants’ Contrary Reading Raises Serious Constitutional Questions................................................51 4. Defendants’ Reviewability Arguments Lack Merit ......54 The Border Wall Is Not A “Military Construction Project” Under § 2808’s Terms ...............................................57 The District Court Did Not Abuse Its Discretion In Granting An Injunction............................................................................................58 PLAINTIFFS’ CROSS-APPEAL ...........................................................................61 I. Plaintiffs Have Standing To Challenge Defendants’ § 284 Expenditures And Antecedent Transfer .............................................62 A. The County Has Standing ........................................................62 v Case: 19-51144 Document: 00515362219 Page: 8 Date Filed: 03/27/2020 TABLE OF CONTENTS (continued) Page B. II. III. BNHR Has Standing ................................................................63 Defendants’ § 284 Expenditures Are Unlawful .................................63 A. Defendants’ § 284 Expenditures Violate The CAA And Thus The Appropriations Clause .............................................64 B. Defendants’ § 284 Expenditures Rest On An Unlawful Transfer Of Funds ....................................................................64 The District Court Abused Its Discretion In Declining To Issue A Declaratory Judgment And Injunction Against Defendants’ § 284 Expenditures After Holding Them Unlawful...........................66 CONCLUSION .......................................................................................................69 CERTIFICATE OF COMPLIANCE ..................................................................... 72 CERTIFICATE OF SERVICE .............................................................................. 73 vi Case: 19-51144 Document: 00515362219 Page: 9 Date Filed: 03/27/2020 TABLE OF AUTHORITIES Page Cases Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) .............................................................................................34 Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350 (5th Cir. 1999) ................................................................... 19, 27, 30 Bengzon v. Sec’y of Justice of the Philippine Islands, 299 U.S. 410 (1937) .............................................................................................66 Bennett v. Spear, 520 U.S. 154 (1997). ............................................................................................31 Bluebonnet Hotel Ventures, LLC v. Wells Fargo Bank, N.A., 754 F.3d 272 (5th Cir. 2014) ................................................................................18 Bond v. U.S., 564 U.S. 211 (2011) .............................................................................................33 Califano v. Yamasaki, 442 U.S. 682 (1979) .............................................................................................61 Carpenters Indus. Council v. Zinke, 854 F.3d 1 (D.C. Cir. 2017)..................................................................................22 Chamber of Commerce v. DOL, 885 F.3d 360 (5th Cir. 2018) ................................................................................58 Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) ...................................................................... 34, 54 Chevron v. NRDC, 467 U.S. 837 (1984) .............................................................................................42 Cincinnati Soap Co. v. U.S., 301 U.S. 308 (1937) ...............................................................................................1 City of El Cenizo v. Texas, 890 F.3d 164 (5th Cir. 2018) ................................................................................27 vii Case: 19-51144 Document: 00515362219 Page: 10 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) ....................................................................... 20, 23 City of Olmsted Falls v. FAA, 292 F.3d 261 (D.C. Cir. 2002) ................................................................ 20, 23, 62 City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004) ..............................................................................62 Clapper v. Amnesty Int'l, 568 U.S. 398 (2013) .............................................................................................25 Clark v. Martinez, 543 U.S. 371 (2005) .............................................................................................53 Clarke v. Sec. Indus. Ass’n, 79 U.S. 388 (1987) ..............................................................................................35 Clinton v. City of N.Y., 524 U.S. 417 (1998) .............................................................................................20 Clinton v. Jones, 520 U.S. 681 (1997) .............................................................................................18 Collins v. Mnuchin, 938 F.3d 553 (5th Cir. 2019) ................................................................... 19, 31, 34 Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730 (5th Cir. 2016) ................................................................................22 Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061 (2018) .........................................................................................45 Dalton v. Specter, 511 U.S. 462 (1994) .............................................................................................55 Dames & Moore v. Regan, 453 U.S. 654 (1981) .............................................................................................54 Dep’t of Commerce v. N.Y., 139 S. Ct. 2551 (2019) .................................................................................. 20, 25 viii Case: 19-51144 Document: 00515362219 Page: 11 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page Dep’t of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012) .......................................................................1, 40 Detroit Int’l Bridge Co. v. Gov’t of Canada, 883 F.3d 895 (D.C. Cir. 2018 ...............................................................................41 Dodds v. DOE, 845 F.3d 217 (6th Cir. 2016) ................................................................................67 Dunlop v. Bachowksi, 421 U.S. 560 (1975) .............................................................................................55 East Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018) ................................................................................28 eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) .............................................................................................59 El-Shifa Pharm. Indus. v. U.S., 607 F.3d 836 (D.C. Cir. 2010) .............................................................................56 Foretich v. U.S., 351 F.3d 1198 (D.C. Cir. 2003) .................................................................... 24, 26 Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010) .............................................................................................34 Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979) ...............................................................................................20 Gundy v. U.S., 139 S. Ct. 2116 (2019) .........................................................................................52 Hollingsworth v. Perry, 558 U.S. 183 (2010) .............................................................................................67 Indus. Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607 (1980) .............................................................................................53 Iowa ex rel. Miller v. Block, 771 F.2d 347 (8th Cir. 1985) ................................................................................23 ix Case: 19-51144 Document: 00515362219 Page: 12 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page J.W. Hampton, Jr., & Co. v. U.S., 276 U.S. 394 (1928) .............................................................................................51 Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) ................................................................................59 Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019) ................................................................................23 Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986) .............................................................................................55 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), ............................................................................................35 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .............................................................................................19 Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015) .............................................................................................54 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ...............................................................................18 Markle Interests, LLC v. FWS, 827 F.3d 452 (5th Cir. 2016) ................................................................................32 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) .............................................................................................32 McCardell v. HUD, 794 F.3d 510 (5th Cir. 2015) ......................................................................... 19, 25 Meese v. Keene, 481 U.S. 465 (1987) ...................................................................................... 24, 27 Moses v. Wash. Parish Sch. Bd., 379 F.3d 319 (5th Cir. 2004) ................................................................................18 Murphy v. NCAA, 138 S. Ct. 1461 (2018) .........................................................................................25 x Case: 19-51144 Document: 00515362219 Page: 13 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page NAACP v. City of Kyle, 626 F.3d 233 (5th Cir. 2010) ................................................................................30 NCAA v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013) .................................................................................25 Nevada v. DOE, 400 F.3d 9 (D.C. Cir. 2005)............................................................... 36, 37, 38, 39 Norris v. Causey, 869 F.3d 360 (5th Cir. 2017) ................................................................................27 North Carolina v. League of Women Voters of N.C., 575 U.S. 950 (2015) .............................................................................................67 Northshore Dev., Inc. v. Lee, 835 F.2d 580 (5th Cir. 1988). ...............................................................................61 OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017) ............................................................. 27, 28, 29, 30 OPM v. Richmond, 496 U.S. 414 (1990) .............................................................................................36 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) ...................................................................................... 51, 52 Pennsylvania v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976) .............................................................................23 Robertson v. Seattle Audubon Soc’y, 503 U.S. 429 (1992) ...................................................................................... 36, 45 Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) ..............................................................................59 Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006) ...............................................................................................19 Scheduled Airlines Traffic Offices, Inc. v. DoD, 87 F.3d 1356 (D.C. Cir. 1996) .............................................................................33 xi Case: 19-51144 Document: 00515362219 Page: 14 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page Scott v. Schedler, 771 F.3d 831 (5th Cir. 2014) ................................................................................28 Sebelius v. Cloer, 569 U.S. 369 (2013) .............................................................................................48 Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794 (5th Cir. 2012) ................................................................................35 Sierra Club v. Trump, 2019 WL 2715422 (N.D. Cal. 2019) ....................................................................11 Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019) ............................................................. 11, 65, 66, 68 Soudavar v. Bush, 46 Fed. App’x 731 (5th Cir. 2002) .......................................................................56 Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69 (2013) ...............................................................................................31 Strawser v. Atkins, 290 F.3d 720 (4th Cir. 2002) ................................................................................44 Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) .............................................................................................19 Taylor v. Blair, 414 F.2d 815 (5th Cir. 1969) ................................................................................48 Tex. Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) ................................................................................20 Texas v. U.S., 809 F.3d 134 (5th Cir. 2015) ................................................................... 20, 32, 61 Trump v. Hawaii, 138 S. Ct. 2392 (2018) .........................................................................................35 Trump v. Sierra Club, 140 S. Ct. 1 (2019) ........................................................................................ 11, 67 xii Case: 19-51144 Document: 00515362219 Page: 15 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) .............................................................................................50 U.S. v. Gov’t of V.I., 363 F.3d 276 (3d Cir. 2004) .................................................................................48 U.S. v. Lauderdale Cty., 914 F.3d 960 (5th Cir. 2019) ................................................................................18 U.S. v. MacCollom, 426 U.S. 317 (1976) ...................................................................................... 36, 40 U.S. v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) ..............................................................................33 U.S. v. Mead Corp., 533 U.S. 218 (2001) .............................................................................................42 U.S. v. Whaley, 577 F.3d 254 (5th Cir. 2009) ................................................................................52 U.S. v. McGill, 74 F.3d 64 (5th Cir. 1996) ....................................................................................45 Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014) ...................................................................................... 44, 58 Walker v. City of Mesquite, 129 F.3d 831 (5th Cir. 1997) ................................................................................24 Wash. St. Dep’t of Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371 (2003) .............................................................................................57 Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) ...............................................................................51 Weyerhauser Co. v. FWS, 139 S. Ct. 361 (2018) ...........................................................................................32 xiii Case: 19-51144 Document: 00515362219 Page: 16 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) ...................................................................................... 51, 52 Williams v. Parker, 843 F.3d 617 (5th Cir. 2016) ................................................................................30 Willy v. Admin. Review Bd., 423 F.3d 483 (5th Cir. 2005) ................................................................................18 Winter v. NRDC, 555 U.S. 7 (2008) .................................................................................................60 World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747 (5th Cir. 2009) ................................................................................27 Wyoming v. DOI, 674 F.3d 1220 (10th Cir. 2012) ............................................................................23 Wyoming v. Oklahoma, 502 U.S. 437 (1992) ...................................................................................... 21, 22 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ..................................................................................... passim Zadvydas v. Davis, 533 U.S. 678 (2001) .............................................................................................51 Zivotofsky v. Clinton, 566 U.S. 189 (2012) .............................................................................................56 Constitutional Provisions U.S. Const. art. I, § 9, cl. 7 ............................................................................ 1, 33, 35 Statutes 5 U.S.C. § 702(2) .....................................................................................................31 5 U.S.C. § 706(2) .....................................................................................................31 7 U.S.C. § 5712(c) ...................................................................................................47 xiv Case: 19-51144 Document: 00515362219 Page: 17 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page 10 U.S.C. § 275 ........................................................................................................27 10 U.S.C. § 2808 .............................................................................................. passim 10 U.S.C. § 284 ............................................................................................. 2, 10, 64 10 U.S.C. § 284(a) ...................................................................................................10 10 U.S.C. § 2801 ......................................................................................................57 18 U.S.C. § 1385 ......................................................................................................27 28 U.S.C. § 1291 ........................................................................................................4 10 U.S.C. § 1331 ........................................................................................................4 31 U.S.C. § 1532 ......................................................................................................43 40 U.S.C. § 3147 ......................................................................................................47 50 U.S.C. § 1515 ......................................................................................................47 50 U.S.C. § 1621 ......................................................................................................47 50 U.S.C. § 1622(a) .................................................................................................55 2019 DoD Appropriations Act, Pub. L. No. 115-245, 132 Stat. 298 (2018)................................................................................................. 10, 11, 64, 65 2020 Consolidated Appropriations Act, Pub. L. No. 116-93, 133 Stat. 2317 (2019).............................................................................................................9 Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, 131 Stat. 135 ..........................................................................................................................7 Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348 ..........................................................................................................................7 Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13 ...... passim H.R.J. Res. 46, 116th Cong. (2019) ...........................................................................9 xv Case: 19-51144 Document: 00515362219 Page: 18 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page International Emergency Economic Powers Act, Pub. L. No. 95-223, 91 Stat. 1625 (1977) ..................................................................................................50 S. Rep. No. 93-1170 (1974) .....................................................................................46 S. Rep. No. 94-1168 (1976) .............................................................................. 47, 49 S.J. Res. 54, 116th Cong. (2019) ...............................................................................9 Regulations 55 Fed. Reg. 31803 ..................................................................................................50 57 Fed. Reg. 47553 ..................................................................................................50 61 Fed. Reg. 8843 ....................................................................................................50 66 Fed. Reg. 48199 ..................................................................................................50 70 Fed. Reg. 54227 ..................................................................................................50 74 Fed. Reg. 55439 ..................................................................................................50 82 Fed. Reg. 8793 ......................................................................................................6 84 Fed. Reg. 4949 ..................................................................................... 2, 9, 12, 49 Other Authorities 3 Joseph Story, Commentaries on the Constitution of the United States § 1342 (1833)..........................................................................................................1 American Heritage Dictionary (5th ed. 2011) .........................................................41 Antonin Scalia, Testimony to the House of Representatives (Apr. 9, 1975) .............................................................................................................. 47, 49 Black’s Law Dictionary (6th ed. 1990) ...................................................................66 Brennan Center for Justice, A Guide To Emergency Powers and Their Use (Dec. 5, 2018) ......................................................................................... 47, 53 xvi Case: 19-51144 Document: 00515362219 Page: 19 Date Filed: 03/27/2020 TABLE OF AUTHORITIES (continued) Page Defense Budget Overview ........................................................................................41 GAO, Principles of Federal Appropriations Law (4th ed. 2017) .............. 38, 39, 42 Michael J. Vassalotti & Brendan W. McGarry, Cong. Research Serv., Military Construction Funding in the Event of a National Emergency (2019)....................................................................................................................58 Office of Mgmt. & Budget, Exec. Office of the President, Budget of the United States Government, Fiscal Year 2018 (2017) ............................................7 Office of the Under Sec’y of Def. (Comptroller), Dep’t of Def., DOD Serial No. FY 04-37 PA, Reprogramming Action - Prior Approval (Sept. 3, 2004) ......................................................................................................65 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak .......................................................50 The Federalist No. 58 (Madison)...............................................................................1 U.S. Army Fort Bliss................................................................................................20 U.S. Border Patrol, Mileage of Pedestrian and Vehicle Fencing By State (Aug. 2, 2017).........................................................................................................6 Webster’s New Collegiate Dictionary (8th ed. 1976) .............................................48 White House Fact Sheet (Mar. 11, 2019).................................................................41 xvii Case: 19-51144 Document: 00515362219 Page: 20 Date Filed: 03/27/2020 INTRODUCTION The Framers vested the power of the purse exclusively in Congress. That decision is reflected in the Appropriations Clause—“[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—which forms “a bulwark of the Constitution’s separation of powers,” and “is particularly important as a restraint on Executive Branch officers,” because it establishes a clear “restriction upon the disbursing authority of the Executive department.” Dep’t of Navy v. FLRA, 665 F.3d 1339, 1347 (D.C. Cir. 2012) (Kavanaugh, J.); Cincinnati Soap Co. v. U.S., 301 U.S. 308, 321 (1937). Indeed, the Framers viewed the power of the purse “as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” The Federalist No. 58 (Madison). And the Framers thought it critical that this power reside outside the Executive Branch: “If it were otherwise, the executive would possess an unbounded power over the public purse of the nation … and might apply all its moneyed resources at his pleasure.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1342, at 213-14 (1833). This case involves the Executive’s attempt to wrest the power of the purse from Congress’s control. Since taking office, President Trump and the Executive Branch officials sued here (“Defendants”) have sought a wall stretching along the full southern border. The President repeatedly requested wall funding from Case: 19-51144 Document: 00515362219 Page: 21 Date Filed: 03/27/2020 Congress, and the debate over wall funding precipitated the Nation’s longest-ever government shutdown. But Congress declined to fund the President’s desired wall. Congress instead passed the 2019 Consolidated Appropriations Act (“CAA”), Pub. L. No. 116-6, 133 Stat. 13, which appropriates only $1.375 billion for border fencing in Texas’s Rio Grande Valley—not the approximately $6 billion the President sought for a full border wall. Instead of respecting Congress’s judgment, Defendants usurped the appropriations power. On the same day the President signed the CAA into law, he issued a Proclamation declaring the “current situation at the southern border” a “national emergency.” Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019). Pursuant to the Proclamation, Defendants claimed authority to spend $3.6 billion in “military construction” funds on a border wall. 10 U.S.C. § 2808. On top of that, Defendants claimed separate authority to spend an additional $2.5 billion in “counterdrug support” funds on a wall. 10 U.S.C. § 284. Through these actions, Defendants set out to spend the same amount ($6.1 billion) on the same project (the border wall) that Congress had considered and rejected. Defendants’ actions violate bedrock constitutional principles and multiple congressional enactments. The Appropriations Clause prohibits the Executive from spending funds except when Congress affirmatively authorizes it to do so. In the CAA, Congress appropriated $1.375 billion for wall construction in Texas’s Rio 2 Case: 19-51144 Document: 00515362219 Page: 22 Date Filed: 03/27/2020 Grande Valley. It did not appropriate $6.1 billion for a full border wall, despite the President’s request for that amount. And to erase any doubt, it enacted a provision— CAA § 739—barring the Executive from spending additional funds on a “project” that was “proposed in the President’s budget request.” Far from affirmatively authorizing Defendants’ plan to spend $6.1 billion on a border wall, the CAA expressly forbids it. The plan therefore violates the Appropriations Clause and the CAA. Recognizing the unlawfulness of Defendants’ actions, the district court held that Defendants’ §§ 2808 and 284 expenditures violate the CAA, and enjoined the § 2808 expenditures. That decision was manifestly correct and should be affirmed. In fact, even beyond the glaring CAA violation, Defendants’ actions transgress multiple additional statutes that the district court did not have occasion to address, but that provide additional bases for affirmance. The district court’s lone error was declining to declare unlawful and enjoin Defendants’ § 284 expenditures after already granting Plaintiffs summary judgment on that issue. In so doing, the court felt unnecessarily bound by a Supreme Court order staying an injunction pending appeal in a different case involving different plaintiffs and arguments. This Court should reverse that single aspect of the district court’s judgment—thereby ensuring that Defendants can no longer spend funds on a border wall that Congress considered and rejected, in contravention of the Framers’ design. 3 Case: 19-51144 Document: 00515362219 Page: 23 Date Filed: 03/27/2020 JURISDICTIONAL STATEMENT Defendants’ jurisdictional statement is correct as to their appeal. As to Plaintiffs’ cross-appeal, the district court had jurisdiction over Plaintiffs’ claim that Defendants’ § 284 expenditures are unlawful under 28 U.S.C. § 1331. The district court granted summary judgment to Plaintiffs on this issue on October 11, 2019. ROA.2128. But on December 10, 2019, the district court declined to enjoin the § 284 expenditures. ROA.2181. Plaintiffs timely appealed that decision on December 20, 2019. ROA.2257. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES Defendants’ Appeal 1. Whether Plaintiffs’ claims are justiciable. 2. Whether Defendants’ § 2808 border-wall expenditures are unlawful, where: (a) Congress specifically addressed border-wall expenditures in the CAA and barred the Executive from increasing funding for a “project” proposed in the President’s budget request; (b) the § 2808 expenditures rely on an emergency declaration addressing the precise issue that Congress considered in the CAA; and 4 Case: 19-51144 Document: 00515362219 Page: 24 Date Filed: 03/27/2020 (c) the § 2808 funds are being used for a wall to impede unlawful immigration, even though § 2808 authorizes only “military construction projects.” 3. Whether the district court abused its discretion in permanently enjoining Defendants’ § 2808 expenditures. Plaintiffs’ Cross-Appeal 1. Whether Defendants’ § 284 border-wall expenditures are unlawful where: (a) Congress specifically addressed border-wall expenditures in the CAA and barred the Executive from increasing funding for a “project” proposed in the President’s budget request; and (b) the § 284 expenditures rest on an antecedent transfer of funds that is permissible only if it is for an “unforeseen military requirement” and not for an “item” Congress “denied.” 2. Whether the district court abused its discretion in declining to grant a declaratory judgment that Defendants’ § 284 expenditures are unlawful and permanently enjoin those expenditures after holding that Congress did not authorize them. 5 Case: 19-51144 Document: 00515362219 Page: 25 Date Filed: 03/27/2020 STATEMENT OF THE CASE I. Factual Background A. An Impasse Over Border-Wall Funding Leads To The Nation’s Longest-Ever Government Shutdown Over the past two decades, Congress has repeatedly addressed illegal immigration—including by funding border barriers. By 2016, Congress had funded the construction of 354 miles of primary pedestrian fencing and 300 miles of vehicle fencing along the southern border.1 Nonetheless, presidential candidate Donald Trump made building a wall across the entire southern border his signature issue. On the first day of his campaign, he promised that, if elected, he “would build a great wall” that Mexico would pay for. ROA.361. And soon after his election, President Trump again promised, “[w]e’re going to build a wall.” ROA.415. Five days after President Trump’s inauguration, he issued an order directing 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 President sought border-wall funding through the ordinary appropriations process. For fiscal-year 2017, the President requested that Congress appropriate $999 million “[for] the first installment of the border wall.” ROA.433. U.S. Border Patrol, Mileage of Pedestrian and Vehicle Fencing By State (Aug. 2, 2017), https://www.cbp.gov/sites/default/files/assets/documents/2017Sep/Border%20Patrol%20Fence%20Totals.pdf. 1 6 Case: 19-51144 Document: 00515362219 Page: 26 Date Filed: 03/27/2020 Congress responded by appropriating $341.2 million to replace 40 miles of existing fencing. Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, 131 Stat. 135, 434. For fiscal-year 2018, the President requested $2.6 billion in wall funding.2 Congress responded by appropriating $1.571 billion for border-security technology and fencing in specified areas. Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348, 616. The President’s initial fiscal-year 2019 budget request sought “$1.6 billion to construct approximately 65 miles of border wall.” ROA.619. But mere weeks before fiscal-year 2018 appropriations were to expire, the President declared that he wanted at least $5 billion for a wall and would be “proud to shut down the government for border security.” ROA.729. On December 22, 2018, the Nation’s longest-ever government shutdown 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.” ROA.944. “The Administration’s full request,” the letter explained, “would fund construction of a total of approximately 234 miles of new physical barrier.” ROA.944. Office of Mgmt. & Budget, Exec. Office of the President, Budget of the United States Government, Fiscal Year 2018, at 18 (2017), https://www.govinfo.gov/content/pkg/BUDGET-2018-BUD/pdf/BUDGET-2018BUD.pdf. 2 7 Case: 19-51144 Document: 00515362219 Page: 27 Date Filed: 03/27/2020 In the midst of the shutdown, the President also raised a new idea: If the “negotiated process” with Congress did not yield sufficient border-wall funding, he could “call a national emergency and build [the wall] very quickly.” ROA.756. According to the President, he had “[an] absolute right to do [a] national emergency if [he] want[ed],” and the “threshold” for declaring an emergency would be if he could not “make a deal with people [in Congress] that are unreasonable.” ROA.763. B. Congress Passes And The President Signs The CAA On February 14, 2019, Congress passed the CAA, which 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, § 230(a)(1), and 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 spending. Specifically, § 739 of Division D, Title VII, which applies “Government-Wide,” 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. 8 Case: 19-51144 Document: 00515362219 Page: 28 Date Filed: 03/27/2020 133 Stat. at 197. On February 15, 2019, the President signed the CAA into law.3 C. The President Declares A National Emergency To Obtain More Wall Funding On the same day, the President invoked the NEA to declare “the current situation at the southern border” a “national emergency.” 84 Fed. Reg. at 4949. Observing that “[t]he problem of large-scale migration through the southern border is long-standing,” the Proclamation “declare[s] that this emergency requires the use of the Armed Forces” and “that the construction authority provided in [10 U.S.C. § 2808] is invoked and made available, according to its terms, to the Secretary of Defense.” Id. When announcing the Proclamation, the President noted that he “could do the wall over a longer period of time” and “didn’t need to do this,” but would “rather do it much faster.” ROA.812. 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. Congress has enacted the 2020 Consolidated Appropriations Act, Pub. L. 116-93, 133 Stat. 2317 (2019), which maintains the same level of border-wall funding ($1.375 billion), 133 Stat. 2511, and contains a provision identical to § 739, 133 Stat. 2494. 3 9 Case: 19-51144 D. Document: 00515362219 Page: 29 Date Filed: 03/27/2020 Defendants Devise A Plan To Build The Wall With Funds Appropriated For Other Purposes After the President issued the Proclamation, Defendants announced a plan to divert funds appropriated for other purposes “to build the border wall.” ROA.1489. That plan contains two main elements. First, it invokes 10 U.S.C. § 284 as authority to spend $2.5 billion on the wall. ROA.1489. Section 284 allows DoD to “provide support for the counterdrug activities” of other agencies. 10 U.S.C. § 284(a). Second, the plan invokes 10 U.S.C. § 2808 as authority to spend $3.6 billion on the wall. ROA.1489. Section 2808 allows DoD to “undertake military construction projects” in the event of a “national emergency” declared “in accordance with the [NEA].” 10 U.S.C. § 2808. 1. Section 284 On February 25, 2019, DHS requested § 284 “counterdrug support” from DoD, asking it to build over 200 miles of the border wall. ROA.863-70. This included “El Paso Project 1,” 46 miles of construction in Luna and Doña Ana Counties, New Mexico. ROA.870. Doña Ana County neighbors El Paso County, Texas. DoD approved DHS’s request, agreeing to spend $2.5 billion on wall construction. ROA.1493-94. Congress, however, had appropriated DoD just $517.2 million for “counternarcotics support,” most of which had already been spent. See DoD Appropriations Act, 2019, Pub. L. No. 115-245, 132 Stat. 2981, 2997 (2018). To overcome this 10 Case: 19-51144 Document: 00515362219 Page: 30 Date Filed: 03/27/2020 shortfall, DoD transferred $2.5 billion from other appropriation accounts to its counterdrug support account. ROA.900; ROA.1494. As its asserted authority for that transfer, DoD cited § 8005 of the 2019 DoD Appropriations Act, Pub. L. No. 115-245, 132 Stat. 2981, 2999 (2018), ROA.1493, which allows transfers “based on unforeseen military requirements,” but “in no case where the item for which funds are requested has been denied by the Congress,” 132 Stat. at 2999.4 On June 28, 2019, a federal district court enjoined DoD’s § 8005 transfer. See Sierra Club v. Trump, 2019 WL 2715422, at *6 (N.D. Cal. 2019). The Ninth Circuit denied a stay of the injunction pending appeal, Sierra Club v. Trump, 929 F.3d 670, 707 (9th Cir. 2019), but in a 5-4 decision, the Supreme Court granted a stay, Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem). The Court’s one-paragraph order states that “[a]mong the reasons” for the stay was “that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Id. Since the stay, DoD has built portions of the wall using § 284 funds, including in Doña Ana County. DoD also cited § 9002 of the Act, but that provision is “subject to the same terms and conditions” as § 8005. Pub. L. No. 115-245, 132 Stat. at 3042; see ROA.2089. 4 11 Case: 19-51144 2. Document: 00515362219 Page: 31 Date Filed: 03/27/2020 Section 2808 The President’s Proclamation “invoke[s]” and “ma[kes] available” “the construction authority provided in [10 U.S.C. § 2808].” 84 Fed. Reg. at 4949. On September 3, 2019—nearly seven months after the President declared an “emergency” at the border—DoD determined to spend $3.6 billion of § 2808 funds on 175 miles of border-wall construction. ROA.1888-89. To that end, DoD is acquiring swaths of new land—both from private parties and other agencies—and transferring that land to its own administrative jurisdiction. ROA.1882. Nominally, that new land will be part of Fort Bliss, an Army installation in El Paso County. The § 2808 construction includes “El Paso Project 2,” a 23.5-mile stretch in Hidalgo and Luna Counties, New Mexico—a two-hour drive from El Paso County. ROA.1890. Because the $3.6 billion had to come from “the total amount of funds that have been appropriated for military construction,” 10 U.S.C. § 2808(a), DoD defunded 127 already-planned military construction projects, including a $20 million “Defense Access Roads” construction project at Fort Bliss, ROA.1968. The money for that project was supposed to have been awarded to Fort Bliss in January 2020, but was redirected to the border-wall project. ROA.1968. II. Procedural History Plaintiffs here are El Paso County, Texas and Border Network for Human Rights (“BNHR”). The County sits on the U.S.-Mexico border and is “defined by 12 Case: 19-51144 Document: 00515362219 Page: 32 Date Filed: 03/27/2020 [its] relationship with Mexico and the presence of [its] many immigrant residents.” ROA.915. 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. ROA.931. BNHR’s twin missions are supporting the local immigrant community and advocating for policy change. ROA.931. The County and BNHR sued Defendants in district court, challenging the Proclamation and §§ 284 and 2808 expenditures. ROA.273-81. On October 11, 2019, the court granted Plaintiffs summary judgment. ROA.2128. The court first held that both Plaintiffs had Article III standing based on economic, reputational, and organizational injuries. ROA.2105-20. And on the merits, the court held that Defendants’ “funding plan violates the CAA generally and specifically violates § 739 [thereof].” ROA.2120. The court did not address Plaintiffs’ alternative arguments that the Proclamation violates the NEA, that DoD’s § 2808 expenditures are not authorized by that provision, or that DoD’s transfer of funds is not authorized by § 8005. On December 10, 2019, the district court issued a declaratory judgment that the Proclamation and § 2808 expenditures are unlawful and permanently enjoined the § 2808 expenditures. ROA.2194-95. The district court declined to issue a declaratory judgment that the § 284 expenditures are unlawful or to enjoin those expenditures, even though it had held that they violate the CAA in its summary- 13 Case: 19-51144 Document: 00515362219 Page: 33 Date Filed: 03/27/2020 judgment opinion. ROA.2181. The court based its decision solely on the Supreme Court’s Sierra Club order. ROA.2181. A motions panel of this Court stayed the injunction pending appeal. ROA.2262-63. Judge Higginson dissented, explaining that he could not agree “that the government presently has shown either a likelihood of success on the merits or irreparable harm.” ROA.2263. The panel also denied Plaintiffs’ motion to expedite this appeal, ROA.2263—again over Judge Higginson’s dissent, ROA.2263-64. SUMMARY OF ARGUMENT Defendants’ Appeal I. Plaintiffs’ challenges to the § 2808 expenditures and Proclamation are justiciable. A. Both Plaintiffs have Article III standing. 1. The County has standing based on two independent injuries. First, Defendants’ § 2808 expenditures have caused the County economic harm. To make those expenditures, DoD cancelled a planned $20 million project at Fort Bliss—the lifeblood of El Paso’s economy. Second, the Proclamation has caused the County reputational injury by declaring the southern border an emergency zone. Because of the Proclamation, tourists and investors have expressed negative perceptions of the County and wariness about doing business there. That uncontroverted evidence establishes reputational injury. 14 Case: 19-51144 Document: 00515362219 Page: 34 Date Filed: 03/27/2020 2. BNHR likewise has standing. BNHR normally dedicates its resources to the dual missions of supporting the local immigrant community and advocating policy reform. But because the Proclamation and § 2808 construction have directly affected community members, BNHR has had to divert substantial resources toward community support and away from advocacy. That diversion of resources establishes organizational standing. B. Plaintiffs’ claims are reviewable under both the Administrative Procedure Act (“APA”) and equitable principles. 1. The APA authorizes Plaintiffs’ suit because they have been adversely affected by Defendants’ § 2808 expenditures and the Proclamation. The Administration has waived its contention that Plaintiffs fall outside the CAA’s zone of interests. In any event, as the intended beneficiary of appropriated funds, the County falls within the zone of interests of the Appropriations Clause and CAA. Moreover, Plaintiffs may enforce structural constitutional provisions intended to protect liberty. 2. Plaintiffs also have an equitable right to enjoin unlawful executive conduct. The zone-of-interests test does not apply to that right of action. II. Defendants’ § 2808 expenditures violate the CAA and thus the Appropriations Clause. 15 Case: 19-51144 Document: 00515362219 Page: 35 Date Filed: 03/27/2020 A. Through the CAA, Congress spoke directly to border-wall construction, appropriating only $1.375 billion for construction in the Rio Grande Valley. Under established appropriations-law principles, that specific appropriation precludes Defendants from relying on § 2808’s more general “military construction” authority to spend additional funds on wall construction elsewhere. B. To remove any doubt, Congress enacted CAA § 739, which expressly precludes the Executive from increasing funding for projects proposed by the President beyond the amounts Congress has appropriated. Defendants seek to increase funding for the border wall—a project proposed by the President—beyond the $1.375 billion appropriated for that project. Section 739 bars that effort. III. Regardless of the CAA, Defendants’ § 2808 expenditures are unlawful. A. DoD may invoke § 2808 only if the President has issued a valid emergency declaration. But this Proclamation is invalid because it violates the NEA by imposing a policy that Congress considered and rejected. B. Separately, § 2808 itself does not authorize Defendants’ expenditures because the border wall is not a “military construction project” under that phrase’s statutory definition. IV. The district court did not abuse its discretion in enjoining Defendants’ § 2808 expenditures after holding them unlawful. Defendants’ asserted national- 16 Case: 19-51144 Document: 00515362219 Page: 36 Date Filed: 03/27/2020 security interest does not outweigh the public interest in protecting Congress’s power of the purse. Plaintiffs’ Cross-Appeal I. Plaintiffs have standing to challenge DoD’s § 284 expenditures and antecedent transfer of funds. A. The County has standing because its economy is harmed by § 284 construction in an adjacent county. B. BNHR has standing for the reasons it has standing to challenge the § 2808 construction and Proclamation—in fact, its standing here is even clearer because more BNHR members are affected by § 284 construction. II. DoD’s § 284 expenditures are unlawful for two independent reasons. A. Just like the § 2808 expenditures, the § 284 expenditures violate the CAA and Appropriations Clause. B. The § 284 expenditures also rest on an unlawful antecedent transfer of funds. Section 8005 requires that a transfer be for an “unforeseen military requirement,” but this transfer was for a long-coveted civilian project. Section 8005 also bars transfers for “item[s]” that Congress “denied,” and this transfer was for a wall that Congress considered and rejected. 17 Case: 19-51144 Document: 00515362219 Page: 37 Date Filed: 03/27/2020 III. The district court abused its discretion in denying a declaratory judgment and injunction after holding the § 284 expenditures unlawful. It legally erred by treating the Sierra Club order as determinative. STANDARD OF REVIEW This Court reviews structural-constitutional and statutory-interpretation issues de novo. Willy v. Admin. Review Bd., 423 F.3d 483, 490 (5th Cir. 2005); U.S. v. Lauderdale Cty., 914 F.3d 960, 964 (5th Cir. 2019). It reviews summaryjudgment grants de novo, recognizing that it “may affirm summary judgment on any ground supported by the record, even if it is different from that relied on by the district court.” Bluebonnet Hotel Ventures, LLC v. Wells Fargo Bank, N.A., 754 F.3d 272, 275-76 (5th Cir. 2014). And it reviews a district court’s decision whether to grant an injunction for abuse of discretion. Moses v. Wash. Parish Sch. Bd., 379 F.3d 319, 327 (5th Cir. 2004). ARGUMENT DEFENDANTS’ APPEAL I. PLAINTIFFS’ CHALLENGES TO THE § 2808 EXPENDITURES AND PROCLAMATION ARE JUSTICIABLE Defendants spend most of their brief asking this Court to abdicate its duty “to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and hold their actions unreviewable. Defendants’ Opening Brief (“OB”) 15-27. This Court should reject that request and “exercise [its] Article III jurisdiction to decide 18 Case: 19-51144 Document: 00515362219 Page: 38 Date Filed: 03/27/2020 whether [Defendants’] official conduct conformed to the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997). A. Plaintiffs Have Standing To Challenge The § 2808 Expenditures And Proclamation “To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014). “[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). “The required injury to challenge agency action is minimal,” Collins v. Mnuchin, 938 F.3d 553, 586 (5th Cir. 2019) (en banc), and “need not measure more than an identifiable trifle,” Fowler, 178 F.3d at 358. At summary judgment, courts must “take as true” the evidence plaintiffs submit to establish standing. McCardell v. HUD, 794 F.3d 510, 520 (5th Cir. 2015); see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). As the district court correctly held, both Plaintiffs have standing to challenge the § 2808 expenditures and Proclamation.5 Even if only one Plaintiff had standing, Article III jurisdiction would attach. See Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 52 n.2 (2006). 5 19 Case: 19-51144 1. Document: 00515362219 Page: 39 Date Filed: 03/27/2020 The County Has Standing a. Defendants’ § 2808 expenditures have caused the County “economic injury”—“a quintessential injury upon which to base standing.” Tex. Democratic Party v. 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 Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 110-11 (1979) (“diminish[ed] … tax base” is cognizable injury); City of Oakland v. Lynch, 798 F.3d 1159, 1164 (9th Cir. 2015) (“Oakland’s expected loss of tax revenue satisfies the requirements of Article III.”); cf. Texas v. U.S., 809 F.3d 134, 152 (5th Cir. 2015) (states had standing to challenge rule that had “a major effect on the states’ fiscs”). Such harm can include the county’s lost opportunity for an economic “benefit.” Clinton v. City of N.Y., 524 U.S. 417, 431 (1998); cf. Dep’t of Commerce v. N.Y., 139 S. Ct. 2551, 2565 (2019) (state had standing where it could “lose out on federal funds”). To finance its § 2808 construction, DoD has defunded a planned $20 million construction project at Fort Bliss, an Army installation in El Paso that is home to about 70,000 soldiers and family members and ranks as the Nation’s second-largest Army base.6 According to a top County official’s declaration, Fort Bliss is the “lifeblood of the El Paso economy.” ROA.926; ROA.925 (Fort Bliss “drives our 6 U.S. Army Fort Bliss, https://home.army.mil/bliss/index.php/my-fort. 20 Case: 19-51144 Document: 00515362219 Page: 40 Date Filed: 03/27/2020 economy”). The Army installation 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.” ROA.926. “[T]he financial health of Fort Bliss,” therefore, “affects the real estate market and every other aspect of the economy in El Paso.” ROA.926. The $20 million construction project there would have boosted growth and tax revenues. And “the diversion of funds away” from that project will inflict “economic harm to El Paso County,” giving it Article III standing. ROA.92526. Ignoring this evidence of Fort Bliss’s economic impact and the harm that will flow from cancelling the project there, Defendants instead stress the irrelevant fact that the County submitted its declarations before DoD had officially cancelled the Fort Bliss project. OB20. But when those declarations were submitted, DoD had listed Fort Bliss as a project likely to be defunded, so County officials were fully able to—and did—discuss the economic impact that action would have. ROA.926. Defendants’ reliance on Wyoming v. Oklahoma, 502 U.S. 437 (1992), is misplaced. There, Oklahoma passed a law requiring in-state power plants to use at least 10% Oklahoma-mined coal. Id. at 440. Wyoming, which imposed a severance tax on Wyoming-mined coal, sued Oklahoma. Id. at 442-45. The Court agreed with a Special Master’s conclusion that Wyoming had standing because “the Oklahoma statute … deprive[d] Wyoming of severance tax revenues.” Id. at 447. In so doing, 21 Case: 19-51144 Document: 00515362219 Page: 41 Date Filed: 03/27/2020 the Court distinguished cases denying standing to states claiming that federal action “had injured [their] economy and thereby caused a decline in general tax revenues.” Id. at 448. Wyoming is far afield from this case. Most importantly, it involved a state, not a county. A state with a large, diverse economy may have difficulty showing that federal action caused concrete economic harm absent specific lost tax revenues. But that does not mean a community like El Paso cannot show concrete economic harm when the government directs adverse action at the “lifeblood” (ROA.926) of its comparatively modest economy. Indeed, it is a “basic law of economics” that losing a project slated for a locality’s economic hub will inflict “actual economic injury.” Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730, 738 (5th Cir. 2016); see Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 (D.C. Cir. 2017) (Kavanaugh, J.) (when evaluating standing, “common sense can be a useful tool”). After all, why would members of Congress work to steer military projects to their communities if those projects had no economic impact? Recognizing Wyoming’s limited scope, multiple circuit-court decisions have upheld municipal standing without citing Wyoming, where the municipality simply showed “harm to its own 22 Case: 19-51144 Document: 00515362219 Page: 42 Date Filed: 03/27/2020 economic interests”—even absent specific lost tax revenues. City of Olmsted Falls, 292 F.3d at 268; see City of Oakland, 798 F.3d at 1164.7 Alternatively, Defendants argue that the County’s lost $20 million project would at most confer “standing to enjoin the use of that $20 million.” OB21. That “conflates standing with relief.” Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 275 (5th Cir. 2019). A “challenge to the scope of relief is better addressed in terms of the court’s exercise of discretion in tailoring the remedy, not in terms of standing.” Id. The County’s economic harm gives it standing to challenge DoD’s § 2808 expenditures. If it prevails on that challenge, a separate question arises about the scope of the remedy. As explained below, that remedy should be an injunction of all § 2808 wall expenditures. See infra at 61. But for present purposes, the County’s injury unquestionably allows its suit to proceed to the merits. Defendants’ cases, by contrast, all involved diffuse and attenuated harm that is different in kind from the loss of a specific $20 million project. See Wyoming v. DOI, 674 F.3d 1220, 1231-34 (10th Cir. 2012) (state alleged that “restrictions on snowmobile access” in national parks caused economic harm without providing any “underlying evidence to support [that] claim,” and court still “d[id] not foreclose the argument that reduced tax revenues can provide” standing); Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985) (state alleged that “but for the Secretary’s implementation of [certain] disaster relief programs, agricultural production will suffer, which will dislocate agriculturally-based industries, forcing unemployment up and state tax revenues down”); Pennsylvania v. Kleppe, 533 F.2d 668, 671-72 & n.14 (D.C. Cir. 1976) (state alleged in “sketchy and uncertain” terms that without federal assistance in rebuilding hurricane-damaged businesses, state would lose “tax revenues”). 7 23 Case: 19-51144 b. Document: 00515362219 Page: 43 Date Filed: 03/27/2020 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”). “[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, 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 strikes at the heart of the County’s reputation. The County markets itself to tourists and investors as a safe, beautiful, multicultural border community. ROA.922. 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.” ROA.923. The Proclamation thus poses “a serious threat to both tourism and economic development because of the false and negative 24 Case: 19-51144 Document: 00515362219 Page: 44 Date Filed: 03/27/2020 impression of El Paso that it creates”—which in turn will cause a “drop-off” in the County’s “$4 million in tax revenue based on tourism.” ROA.922-23; ROA.915. And “every meeting anyone promoting El Paso has now must include extra efforts to persuade people that El Paso County is a good place to invest in and visit.” ROA.924; ROA.916. Just as sports leagues in NCAA v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013), were “harmed by their unwanted association” with gambling, the County is “harmed by [its] unwanted association” with crime, construction, and militarization. Id. at 220.8 Far from “speculat[ive]” (OB19), the County’s reputational harms are substantiated by County officials’ uncontroverted declarations. See Meese, 481 U.S. at 474 (reputational standing based on plaintiff’s “uncontradicted” affidavits). At summary judgment, this Court must take those declarations “as true.” McCardell, 794 F.3d at 520. And a plaintiff’s injury that rests “on the predictable effect of Government action on the decisions of third parties”—here, potential tourists and investors—satisfies Article III. Dep’t of Commerce, 139 S. Ct. at 2566; compare Clapper v. Amnesty Int’l, 568 U.S. 398, 410 (2013) (alleged injury rested on “a highly attenuated chain of possibilities”). The Supreme Court reversed the Third Circuit on the merits without questioning its standing analysis. See Murphy v. NCAA, 138 S. Ct. 1461 (2018). 8 25 Case: 19-51144 Document: 00515362219 Page: 45 Date Filed: 03/27/2020 Defendants argue that the County has not suffered reputational injury because no § 2808 construction is occurring there. OB15-16. But the County’s reputational injury stems from the Proclamation itself—which brands the “southern border [as] crime-ridden and dangerous,” ROA.923—not from any specific construction. Defendants never address the Proclamation, even though it has always been Plaintiffs’ principal basis for reputational injury. ROA.309-10. Defendants also attempt to downplay the County’s injury as a “policy disagreement[] with the President’s views.” OB17. But the County does not challenge a view espoused by the President; it challenges a Proclamation declaring the border an emergency zone and invoking $3.6 billion to build a wall there. It defies reality to suggest that the Proclamation is simply “a government message without corresponding action.” OB17. Finally, the County’s injury would likely be redressed by a judgment declaring the Proclamation unlawful. As courts have consistently held, “[a] judicial determination that” the relevant action is “unlawful[] … will provide a significant measure of redress for the harm to [plaintiff’s] reputation.” Foretich, 351 F.3d at 1214. Here, such a judgment would strip the Proclamation of legal force, restoring 26 Case: 19-51144 Document: 00515362219 Page: 46 Date Filed: 03/27/2020 the County’s image and allowing County officials to stop taking “affirmative steps to avoid the risk of harm to [the County’s] reputation.” Meese, 481 U.S. at 475. 9 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. Applying this rule, this Court has found standing when an organization responds to a government policy related to its mission by spending resources counseling individuals about that policy’s effects when it would otherwise spend those resources in other ways. See OCA-Greater Houston v. Texas, 867 F.3d 604, 612 (5th Cir. 2017) (voter-outreach organization responded to voting restriction by The state of Texas, as amicus, argues that the County lacks state-law authority to bring this suit. That argument is not jurisdictional, Norris v. Causey, 869 F.3d 360, 366-67 (5th Cir. 2017), and because the Administration has forfeited it, this Court should “not consider [it],” World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752 n.3 (5th Cir. 2009) (“It is well-settled in this circuit that an amicus curiae generally cannot expand the scope of an appeal”). In any event, amicus’s argument is wrong. Texas counties often bring constitutional and statutory claims for injunctive relief, including in one of amicus’s principal authorities. City of El Cenizo v. Texas, 890 F.3d 164, 173 (5th Cir. 2018) (“Texas cities, counties, and local officials challenge Senate Bill 4” (emphasis added)). And S.B. 4 does not withdraw that authority because it merely “prohibit[s] sanctuary city policies” by “forbid[ding] local entities from limiting the enforcement of federal immigration law”—e.g., failing to “shar[e] immigration-status information with federal agencies.” Id. at 173-74 (emphasis added). This lawsuit does not limit the federal government’s ability to enforce immigration laws in the manners proscribed by S.B. 4, id. at 190; rather, it seeks to prevent unlawful wall construction by DoD, a military agency that federal law already bars from enforcing the immigration code, 18 U.S.C. § 1385; 10 U.S.C. § 275. 9 27 Case: 19-51144 Document: 00515362219 Page: 47 Date Filed: 03/27/2020 “educat[ing] voters”); Scott v. Schedler, 771 F.3d 831, 837 (5th Cir. 2014) (civilrights organization responded to state’s noncompliance with voting law by holding voter-registration drives); see also East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 766 (9th Cir. 2018) (organizations had standing based on “diversion of resources, independent of expenses for this litigation, from their other initiatives”). By contrast, the Court has denied standing when an organization expends resources solely on “lobbying and litigation-related expenses.” OCA-Greater Houston, 867 F.3d at 611. BNHR has standing under these authorities. BNHR devotes its resources to twin missions of (a) empowering the “immigrant community” in west Texas and southern New Mexico and (b) “policy and advocacy” work. ROA.931. The Proclamation and § 2808 construction have directly affected the immigrant community in west Texas and southern New Mexico, including BNHR members. In particular, the Proclamation has made that community “feel targeted and endangered” and “worried … [about] violence against them and their children.” ROA.934. Moreover, § 2808 construction is occurring in southern New Mexico— threatening residents’ “basic quality of life by forcing them to deal with the noise,” “[t]raffic slowdowns,” and “blight.” ROA.941. To mitigate these effects on the immigrant community it serves, BNHR has redirected resources away from advocating for “immigration reform” and toward “counsel[ing] community 28 Case: 19-51144 Document: 00515362219 Page: 48 Date Filed: 03/27/2020 members who are fearful,” and “helping [its] members deal with the harmful impacts” of construction. ROA.935; ROA.941. For instance, BNHR has increased the frequency of “Know Your Rights” presentations five-fold. ROA.935. BNHR’s diversion of “extra time and money educating [and supporting] its members” because of Defendants’ actions establishes standing. OCA-Greater Houston, 867 F.3d at 610. Defendants profoundly mischaracterize BNHR’s injury. To start, they suggest that BNHR has merely “redirect[ed] some of its resources to litigation and legal counseling.” OB21. But BNHR’s injury stems from diverting its resources to support community members affected by Defendants’ actions—the precise theory of injury in OCA-Greater Houston and Scott—not from litigation expenses. Defendants again miss the point in contending that BNHR cannot base standing on its “advocacy work”—including denouncing the President’s rhetoric, proposing policies, and documenting constitutional violations. OB22-23. That is not BNHR’s standing theory. BNHR has standing because the Proclamation and § 2808 construction have required it to shift resources away from advocacy and toward “organiz[ing]” and “educat[ing]” the local “immigrant community,” 29 Case: 19-51144 Document: 00515362219 Page: 49 Date Filed: 03/27/2020 ROA.931—thereby “frustrat[ing] and complicat[ing] [BNHR’s] routine … activities.” OCA-Greater Houston, 867 F.3d at 610. 10 Lastly, Defendants belittle BNHR’s injures as “self-inflicted.” OB22. But organizational diversion-of-resources injury always involves “expenditures that the organization has chosen to incur” (id.)—the government, after all, never forces organizations to spend money. Defendants’ cited cases involve self-inflicted injuries because the organizations there spent money on lobbying or litigation alone. See Williams v. Parker, 843 F.3d 617, 622 (5th Cir. 2016) (organization spent money on “signature drive” to repeal law); Fowler, 178 F.3d at 358-60 (distinguishing “an organization’s litigation-related expenses,” which are “self-inflicted,” from its “expend[iture of] definite resources counteracting the effects of” the challenged policy). That is fundamentally different, however, from diverting resources toward “mitigating [the challenged policy’s] real-word impact on [organizational members],” as BNHR has done here. OCA-Greater Houston, 867 F.3d at 612. For this reason, too, Texas’s reliance on NAACP v. City of Kyle, 626 F.3d 233 (5th Cir. 2010), is misplaced. Texas Amicus Br. 10-12. There, the court found no standing because the organization’s resource expenditure did not differ from its “routine lobbying activities.” Kyle, 626 F.3d at 238. Here, by contrast, BNHR’s new counseling activities are anything but routine. Moreover, OCA-Greater Houston, 867 F.3d at 612, expressly rejects Texas’s suggestion that Kyle requires organizations to “identif[y] specific projects [they] had to put on hold,” 626 F.3d at 238. 10 30 Case: 19-51144 B. Document: 00515362219 Page: 50 Date Filed: 03/27/2020 Plaintiffs’ Challenges To The § 2808 Construction And Proclamation Are Reviewable Once Article III’s requirements are met, “a federal court’s obligation to hear and decide a case is virtually unflagging.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013). Here, both the APA and equitable principles allow Plaintiffs to sue. 1. Plaintiffs’ Claims Are Reviewable Under The APA The APA “embodies the basic presumption of judicial review to one suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.” Collins, 938 F.3d at 573; see 5 U.S.C. §§ 702(2) 706(2). Plaintiffs have been adversely affected by Defendants’ § 2808 construction and the Proclamation. The APA therefore allows them to sue agency officials to enjoin those actions. Defendants’ contrary argument that Plaintiffs fail the zone-of-interests test (OB2427) is waived and wrong. The zone-of-interests test applies to the “substantive provisions … [that] serve as the gravamen of the complaint.” Bennett v. Spear, 520 U.S. 154, 175 (1997). Plaintiffs’ principal claim is that Defendants’ § 2808 expenditures violate the Appropriations Clause, as implemented by the CAA and § 739 thereof. ROA.27680. So, properly applied, the zone-of-interests test should focus on those appropriations provisions. 31 Case: 19-51144 Document: 00515362219 Page: 51 Date Filed: 03/27/2020 Yet in the district court, Defendants never argued that Plaintiffs fall outside the zone of interests of those provisions. ROA.2120 (district court holding that “Defendants do not repeat their arguments that Plaintiffs do not fall within the zone of interests of the CAA”); ROA.1451 (summary-judgment brief citing zone-ofinterests test without mentioning Appropriations Clause or CAA). Rather, they argued only that Plaintiffs could not satisfy the zone-of-interests test for §§ 284 and 2808, ROA.1451-52—an argument they no longer make. OB24-27. Defendants have therefore waived their current zone-of-interests argument, and this Court should not address it. See Markle Interests, LLC v. FWS, 827 F.3d 452, 462 (5th Cir. 2016) (zone-of-interest argument waived when not raised), vacated and remanded on other grounds, Weyerhauser Co. v. FWS, 139 S. Ct. 361 (2018). In any event, Defendants’ zone-of-interests argument is misconceived. The zone-of-interests test asks only whether Plaintiffs’ interests are “arguably within the zone of interests to be protected” by the provisions at issue. Match-E-Be-Nash-SheWish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012). It is “not meant to be especially demanding and is applied in keeping with Congress’s evident intent when enacting the APA to make agency action presumptively reviewable.” Texas, 809 F.3d at 162. Plaintiffs easily meet this low threshold. The Appropriations Clause, and statutory provisions implementing it, protect those who will benefit from 32 Case: 19-51144 Document: 00515362219 Page: 52 Date Filed: 03/27/2020 congressionally appropriated funds, and whose interests are then infringed by the Executive “draw[ing] [those funds] from the Treasury” without an “Appropriation[] made by law.” U.S. Const. art. I, § 9, cl. 7. Defendants’ unsupported suggestion that those provisions merely “regulate the back-and-forth relationship between agencies and Congress” (OB25) ignores that Congress appropriates money to benefit the public. Because the County would have benefited from $20 million appropriated for Fort Bliss had Defendants not usurped Congress’s appropriations power, it falls within the zone of interests of the Appropriations Clause and its implementing statutes. See Scheduled Airlines Traffic Offices, Inc. v. DoD, 87 F.3d 1356, 1360 (D.C. Cir. 1996) (“government contract bidder[]” fell within zone of interests of statutes designed to “benefit … the public fisc and Congress’s appropriation power”). More fundamentally, the Appropriations Clause—like all “structural principles secured by the separation of powers”—“protect[s] the individual.” Bond v. U.S., 564 U.S. 211, 222 (2011). It does not simply “regulate” inter-branch conflicts. OB25. And “[i]f the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.” Bond, 564 U.S. at 223; U.S. v. McIntosh, 833 F.3d 1163, 1175 (9th Cir. 2016) (applying this reasoning to Appropriations Clause). As this Court recently held, “[a] plaintiff with Article III standing can maintain a direct 33 Case: 19-51144 Document: 00515362219 Page: 53 Date Filed: 03/27/2020 claim against government action that violates the separation of powers.” Collins, 938 F.3d at 587. The County and BNHR are composed of individuals whose liberty is protected by structural constitutional provisions including the Appropriations Clause. Just as individual plaintiffs vindicated structural provisions in Bond and Collins, Plaintiffs can do so here. 2. Plaintiffs’ Claims Are Also Reviewable Under Equitable Principles In addition to the APA, Plaintiffs have an equitable right to sue to enjoin “violations of federal law by federal officials.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015); see Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (APA “does not repeal the review of ultra vires actions recognized long before”). That right is rooted in the “long history of judicial review of illegal executive action, tracing back to England,” Armstrong, 575 U.S. at 327, and has consistently provided plaintiffs a cause of action in separation-of-powers cases, see Free Enter. Fund v. PCAOB, 561 U.S. 477, 491 n.2 (2010); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 583 (1952). Plaintiffs may invoke that right to challenge Defendants’ unlawful wall expenditures. 11 Defendants’ claim that Plaintiffs never asserted an equitable right of action (OB26) is incorrect: both Plaintiffs’ amended complaint (ROA.274-77) and summary-judgment briefing (ROA.1675-76) do so. 11 34 Case: 19-51144 Document: 00515362219 Page: 54 Date Filed: 03/27/2020 Defendants contend that the zone-of-interests test forecloses Plaintiffs’ equitable right of action. OB26. But the zone-of-interests test applies “only in cases seeking review of agency decisions under the APA,” Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 802 (5th Cir. 2012)—not in cases seeking review under the equitable right to enjoin executive conduct. That follows from the test’s origin “as a gloss on the meaning of [APA] § 702.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 400 n.16 (1987). Indeed, since Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), made clear that the zone-of-interests test asks “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim,” id. at 127 (emphasis added), the Supreme Court has not applied that test to equitable rights of action, see, e.g., Trump v. Hawaii, 138 S. Ct. 2392 (2018). Unsurprisingly, the Administration cites no case applying the zone-of-interests test to an equitable action to enjoin the Executive. OB26-27. In any event, Plaintiffs satisfy the zone-of-interests test to the extent it applies, as already explained. See supra at 32-34. II. DEFENDANTS’ § 2808 EXPENDITURES VIOLATE THE CAA AND THUS THE APPROPRIATIONS CLAUSE 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 language establishes a “straightforward and explicit command”: “the payment of money from the Treasury must be authorized by a statute.” OPM v. 35 Case: 19-51144 Document: 00515362219 Page: 55 Date Filed: 03/27/2020 Richmond, 496 U.S. 414, 424 (1990). Its “fundamental … purpose … is to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good.” Id. at 427-28. Congress did not authorize Defendants to spend funds on a border wall beyond the $1.375 billion specifically appropriated in the CAA. To remove any doubt, Congress enacted CAA § 739, which expressly bars executive spending on projects proposed by the President beyond the amounts appropriated for those projects. Because the Administration’s border-wall expenditures have not been “authorized by a statute,” those expenditures violate the Appropriations Clause’s “explicit rule of decision.” Id. at 424. A. By Specifically Appropriating $1.375 Billion For A Border Wall, Congress Precluded Additional Border-Wall Expenditures “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.” U.S. v. MacCollom, 426 U.S. 317, 321 (1976). 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); see Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992) (“specific provisions [in an appropriations act] qualify general ones” elsewhere). Applying that rule, the D.C. Circuit has held that Congress’s specific appropriation of $1 million to Nevada for 36 Case: 19-51144 Document: 00515362219 Page: 56 Date Filed: 03/27/2020 scientific oversight responsibilities precluded Nevada from receiving funds from a general $190 million appropriation for “nuclear waste disposal activities”—even though that general appropriation would have otherwise permitted Nevada to receive funding. Nevada, 400 F.3d at 15-16. The foregoing principles preclude Defendants’ border-wall spending. Congress and the President debated border-wall funding, resulting in the Nation’s longest-ever government shutdown. See supra at 7-8. During the shutdown, the President requested that Congress appropriate $5.7 billion for a full border wall. ROA.944. Ultimately, however, Congress appropriated only $1.375 billion for construction in “the Rio Grande Valley Sector.” 133 Stat. at 28, § 230(a)(1). Congress thus definitively rejected the President’s wall-funding request. Nonetheless, Defendants are spending an additional $3.6 billion from appropriations for “military construction projects,” 10 U.S.C. § 2808, on border-wall construction outside the Rio Grande Valley. To the extent § 2808’s reference to “military construction projects” allows border-wall spending at all, but see infra at 57-58, it does so in only general terms. The CAA, by contrast, speaks directly to border-wall spending. Under settled appropriations-law principles, Defendants may not rely on § 2808’s general authority to subvert the CAA’s specific funding plan. In the words of the Government Accountability Office (“GAO”)—the agency tasked with interpreting appropriations law, which Defendants cite when convenient 37 Case: 19-51144 Document: 00515362219 Page: 57 Date Filed: 03/27/2020 (OB33): “The appropriation of a specific amount for a construction project … is the exclusive source of funds for the project and may not be augmented with funds from some other appropriation.” GAO, Principles of Federal Appropriations Law, 13197 (3d ed. 2008) (“GAO RedBook”). Defendants argue that the specific-controls-general principle does not apply because there is no irreconcilable conflict between the CAA’s appropriation of $1.375 billion for border-wall construction in the Rio Grande Valley, and Defendants’ use of § 2808 to spend an additional $3.6 billion on border-wall construction elsewhere. OB30. But in appropriations law, the specific-controlsgeneral principle applies even absent an irreconcilable conflict. In Nevada, for instance, there was no irreconcilable conflict between the two relevant appropriations benefiting Nevada, and yet the court, citing the GAO, held that “the $1 million appropriated expressly for Nevada … bar[red] any grants from the $190 million Waste Fund appropriation.” 400 F.3d at 16. Any other rule would threaten the separation of powers by licensing the Executive to creatively “evade or exceed congressionally established spending limits.” GAO RedBook, at 3-407-08. This does not mean that § 2808 is no longer “effective” (OB30): DoD can of course still use § 2808 for “military construction projects”—just not the same project that Congress considered and rejected. 38 Case: 19-51144 Document: 00515362219 Page: 58 Date Filed: 03/27/2020 Defendants also claim that Nevada does not apply because it “involved a single federal agency,” whereas this case involves two (DHS and DoD). OB31. But Nevada itself rejects a similar argument, holding that “specific appropriations preclude the use of general ones even when the two appropriations come from different accounts.” 400 F.3d at 16. Defendants offer no reason why this logic would not hold true “when the two appropriations come from different accounts” of different agencies. Id.; see GAO RedBook, 3-408-09 (specific appropriation to Army Corps of Engineers precluded spending by Navy). After all, the separationof-powers threat is no less acute when two agencies conspire to “evade or exceed congressionally established spending limits” than when one does. Id. Recognizing as much (and contrary to Defendants’ suggestion (OB31-32)), the GAO ties the specific-controls-general principle to the object for which funds are used, not the agency that will use them: “an appropriation for a specific object is available for that object to the exclusion of a more general appropriation that might otherwise be considered available for the same object.” GAO RedBook, 3-408 (emphasis added). Instead of the specific-controls-general principle, Defendants press the inverse rule: to “place restrictions on the construction of border barriers,” Congress had to “d[o] so explicitly.” OB29. But Congress has explicitly barred border-wall expenditures beyond those authorized in the CAA through § 739, as explained below. See infra at 40-45. Regardless, Defendants’ suggestion flips black-letter 39 Case: 19-51144 Document: 00515362219 Page: 59 Date Filed: 03/27/2020 appropriations law on its head. The actual rule is that “the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.” MacCollom, 426 U.S. at 321 (emphasis added). Or as then-Judge Kavanaugh put the point: “[A]ll uses of appropriated funds must be affirmatively approved by Congress; the mere absence of a prohibition is not sufficient.” Dep’t of Navy, 665 F.3d at 1348. Through the CAA, Congress spoke recently and specifically to border-wall funding. After losing a battle with Congress over that subject, Defendants cannot deploy a vague, earlier-enacted “military construction” statute to accomplish the precise plan Congress rejected. “It is quite impossible … when Congress did specifically address itself to a problem … to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.” Youngstown, 343 U.S. at 609 (1952) (Frankfurter, J., concurring). B. In Addition, CAA § 739 Expressly Precludes Border-Wall Expenditures Beyond The $1.375 Billion Appropriated In The CAA To dispel any doubt about the Executive’s ability to spend beyond the CAA’s limits, Congress enacted § 739. Section 739 applies “Government-Wide,” and 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.” 133 Stat. at 197. 40 Case: 19-51144 Document: 00515362219 Page: 60 Date Filed: 03/27/2020 Defendants’ border-wall expenditures flout this prohibition. They use appropriated money to increase funding for a “project”—namely, the 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, ROA.944, and $8.6 billion for a wall in fiscal-year 2020, $3.6 billion of which would be appropriated to DoD. 12 Section 739 expressly prohibits DoD’s attempt to “increase … funding” for the same borderwall project that the President proposed but Congress rejected. Defendants do not dispute that the ordinary meaning of “project” encompasses the border wall. Rather, for the first time on appeal, Defendants cite a GAO definition of “program, project, or activity”—viz., an “element within a budget account.” OB33. But that GAO definition—which the GAO itself recognizes does See White House Fact Sheet (Mar. 11, 2019), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumppromoting-fiscally-responsible-pro-american-2020-budget/; Defense Budget Overview (Mar. 2019), at 6-9, https://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2020/fy2020_B udget_Request_Overview_Book.pdf. (“The FY 2020 budget request includes $9.2 billion of emergency funding for unspecified military construction to build border barriers”). 12 41 Case: 19-51144 Document: 00515362219 Page: 61 Date Filed: 03/27/2020 not apply when context dictates otherwise, see GAO RedBook, 8-21-22, 24—cannot save Defendants.13 To start, even if Defendants were correct that § 739 restricts only funding increases applicable to single agency accounts, it would still bar Defendants’ borderwall expenditures. As noted, the President’s fiscal-year 2020 request sought $3.6 billion in funding for DoD’s “military construction” account to be used on the wall. See supra at 41 & n.12. Congress has not appropriated funds to fulfill that request. And DoD is now using its “military construction” account to increase funding for the President’s proposed project. OB34 (“DoD is using funds previously appropriated by Congress for DoD military construction projects.”). It is immaterial that the President requested DoD wall funding in 2020, whereas DoD is using 2019 appropriations for the wall: § 739 bars funding increases for projects “proposed in the President’s budget request for a fiscal year”—not just the fiscal year in which the increase occurs. Section 739 thus squarely forbids DoD’s gambit, even under Defendants’ own reading of that provision. Besides, Defendants’ reading of § 739 is incorrect: Section 739 broadly restricts unauthorized project funding increases channeled through any agency or 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 this “particular statutory provision.” U.S. v. Mead Corp., 533 U.S. 218, 226-27 (2001). 13 42 Case: 19-51144 Document: 00515362219 Page: 62 Date Filed: 03/27/2020 account—not just the agency or account for which the President requested funds. Congress placed § 739 in Division D, Title VII of the CAA under the heading of “General Provisions—Government-Wide.” 133 Stat. at 187. Provisions in that Title therefore apply to the whole Executive Branch, not simply to particular agencies or accounts. 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 or account). Id. at 197 (emphasis added). Indeed, Defendants’ reading of “program, project, or activity” would nullify § 739. The President could simply avoid § 739 by framing his budget requests without mentioning specific accounts, as the President did here. Moreover, other statutory provisions already prohibit agencies from transferring money between their own 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 restricts increased funding of presidentially-proposed projects that cut across agencies and accounts—like the border wall. That the CAA sometimes uses “project” to refer to elements within an agency’s account (OB33-34) only proves Plaintiffs’ point. In those provisions, the CAA is addressing appropriations to particular agencies (as Defendants’ own DHS 43 Case: 19-51144 Document: 00515362219 Page: 63 Date Filed: 03/27/2020 example shows, OB34 (citing 133 Stat. at 16)), so “project” obviously carries an agency-specific meaning. But § 739 is very different: as explained, that provision applies “General[ly] … Government-Wide”—not to a particular agency. In the context of § 739, then, “project” cannot mean only an element within an agency’s account. See Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 320 (2014) (“the presumption of consistent usage readily yields to context”). Beyond the GAO definition, Defendants offer little else on § 739. They gesture at the canon against implied repeals (OB32), but that canon has no application where a later statute “does not repeal the general operation” of an earlier provision, but rather “create[s] a specific, discrete exception to that [provision].” Strawser v. Atkins, 290 F.3d 720, 733 (4th Cir. 2002). In that scenario, the specificcontrols-general canon (discussed above) takes priority. Id. The CAA “does not repeal the general operation” of § 2808. Id. After the CAA, DoD can still use § 2808 “to undertake military construction projects.” 10 U.S.C. § 2808(a). Rather, the CAA merely “create[s] a specific, discretion exception” to § 2808, Strawser, 290 F.3d at 733: funds appropriated for § 2808 “military construction” cannot be used to build the wall that Congress directly addressed in the CAA. Accordingly, the specificcontrols-general canon, not the implied-repeals canon, governs. Even if the implied-repeals canon applied, the result would not change. Congress “may amend substantive law in an appropriations statute, as long as it does 44 Case: 19-51144 Document: 00515362219 Page: 64 Date Filed: 03/27/2020 so clearly.” Robertson, 503 U.S. at 440; see U.S. v. McGill, 74 F.3d 64, 66 (5th Cir. 1996). Whether Congress has done so “turns on [its] intent.” Id. In the CAA, Congress clearly intended to preclude Defendants from spending over $1.375 billion on a border wall. It not only specifically appropriated that amount, but it also wrote § 739, which bars the Executive from increasing funding for “projects” beyond the amounts Congress appropriated. By plainly restricting Defendants from using § 2808 to build a border wall, Congress has overcome the presumption against implied repeals to the extent it applies. See McGill, 74 F.3d at 67. As a last-ditch effort, Defendants resort to casting aspersions on Congress’s handiwork—repeatedly calling § 739 a “boilerplate” provision. OB25, 32. But Congress “wrote the statute it wrote,” Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1073 (2018)—and referring to it as “boilerplate” cannot erase it from the Public Laws. Congress had good reason to enact § 739—guarding its power of the purse—but even if did not, this Court must enforce Congress’s statute as written. III. REGARDLESS OF THE CAA, DEFENDANTS’ § 2808 EXPENDITURES ARE UNLAWFUL The above analysis suffices to affirm the district court’s judgment that Defendants’ § 2808 expenditures are unlawful. But there are also additional grounds on which to affirm: Even setting the CAA aside, Defendants’ expenditures are unlawful because § 2808 itself does not authorize them. Section 2808 provides that 45 Case: 19-51144 Document: 00515362219 Page: 65 Date Filed: 03/27/2020 “[i]n the event of … the declaration by the President of a national emergency in accordance with the [NEA] that requires use of the armed forces,” DoD “may undertake military construction projects … that are necessary to support such use of the armed forces.” For military construction to be valid under this text, there must be (1) a “national emergency” declaration “in accordance with the [NEA]”; and (2) a “military construction project.” Neither of these preconditions is satisfied. A. The Proclamation Violates The NEA Because the Proclamation imposes a policy that Congress considered and rejected, it exceeds the President’s NEA authority. Even if the NEA were ambiguous, Defendants’ reading must be avoided because it raises grave constitutional questions. 1. Congress Passed the NEA to Constrain the President’s Emergency Powers From the 1930s through the 1960s, presidents exercised unfettered discretion in declaring national emergencies pursuant to over 400 separate “emergency statutes.” S. Rep. No. 93-1170, at 2 (1974). By 1974, hundreds of emergencies were in effect, four of which had lasted continuously for 40 years. Id. at 1. Each such emergency authorized the President to wield “extraordinary powers” and “manage every aspect of the lives of all American citizens.” Id. at 2. In 1976, Congress passed the NEA. The statute “end[ed] the states of emergency under which the United States ha[d] been operating for more than 40 46 Case: 19-51144 Document: 00515362219 Page: 66 Date Filed: 03/27/2020 years.” S. Rep. No. 94-1168, at 2 (1976). And it constrained the President’s emergency authority by “insur[ing] that the extraordinary powers which now reside in the hands of the Chief Executive … could be utilized only when emergencies actually exist.” Id. As then-Assistant Attorney General Antonin Scalia, testifying in support of the NEA, explained: “Those powers which society really no longer views as emergency powers should not be called that,” and “we have to be careful not to slap that label on something that doesn’t merit it.” Antonin Scalia, Testimony to the House of Representatives, at 95 (Apr. 9, 1975) (“Scalia Testimony”). The NEA provides that “during the period of a national emergency, … the President is authorized to declare such emergency.” 50 U.S.C. § 1621. Only once the President declares “such emergency” may he exercise “any special or extraordinary power” under 123 separate statutes that can be triggered by an emergency declaration. Id.14 Those powers include, inter alia: permitting testing of chemical weapons on human subjects, 50 U.S.C. § 1515; prohibiting the export of any agricultural commodity, 7 U.S.C. § 5712(c); and suspending minimum-wage requirements for public contracts, 40 U.S.C. § 3147. See Brennan Center for Justice, A Guide To Emergency Powers and Their Use (Dec. 5, 2018), https://www.brennancenter.org/our-work/researchreports/guide-emergency-powers-and-their-use (“A Guide to Emergency Powers”) (listing statutory authorities triggered by emergency declarations) . 14 47 Case: 19-51144 2. Document: 00515362219 Page: 67 Date Filed: 03/27/2020 The NEA Does Not Allow the President to Impose a Policy That Congress Considered and Rejected The following rule emerges from the NEA’s text and history: an NEA emergency declaration cannot be used to impose a policy addressing a longstanding problem that Congress considered and rejected. Start with the text. The NEA does not define “emergency,” so it must be construed “in accordance with [its] ordinary meaning.” Sebelius v. Cloer, 569 U.S. 369, 376 (2013). The ordinary meaning of “emergency” is an “unforeseen combination of circumstances” that “calls for immediate action.” Webster’s New Collegiate Dictionary 372 (8th ed. 1976) (emphasis added). Interpreting the term “emergency” in other contexts, courts (including this one) have adhered to this ordinary meaning. See, e.g., Taylor v. Blair, 414 F.2d 815, 821 (5th Cir. 1969) (an “emergency” is “a condition arising suddenly and unexpectedly … and which calls for immediate action … without time of deliberation”); U.S. v. Gov’t of V.I., 363 F.3d 276, 289 n.10 (3d Cir. 2004) (invalidating Governor’s emergency declaration because a wastewater problem that “could not be construed as surprising or unexpected” was not an “emergency”). Next consider the NEA’s history. Before the NEA, presidents had unbounded discretion to declare national emergencies. See supra at 46. The NEA responded by contracting presidential powers, ensuring that presidents declare national 48 Case: 19-51144 Document: 00515362219 Page: 68 Date Filed: 03/27/2020 emergencies—and invoke the sweeping authority accompanying them—only when emergencies “actually exist.” S. Rep. No. 94-1168, at 2 (emphasis added). This Proclamation cannot be squared with the NEA’s text and history. The Proclamation declares “[t]he problem of large-scale unlawful migration through the southern border”—which it acknowledges to be “long-standing”—a “national emergency.” 84 Fed. Reg. at 4949. And it invokes § 2808 to build a wall to address that problem. Id. But in the CAA, Congress considered the issue of unlawful migration through the southern border, and addressed it by appropriating $1.375 billion for fencing in Texas’s Rio Grande Valley. 133 Stat. at 28. The President thus issued the Proclamation on the same day he signed the CAA, to address the same longstanding problem that Congress addressed in the CAA. In fact, the President openly acknowledged that the Proclamation was “another way” of building a wall that he would use if he could not “make a deal with” Congress. ROA.756; ROA.763. Nothing in the NEA’s text (which uses the narrow term “emergency”) or history (which stresses constraints on presidential power) suggests that Congress intended the President to invoke the statute to override a considered legislative judgment. In the words of Antonin Scalia, this Proclamation “distorts our whole process” by “slap[ping] [the] label [of emergency] on something that doesn’t merit it.” Scalia Testimony, at 95. 49 Case: 19-51144 Document: 00515362219 Page: 69 Date Filed: 03/27/2020 The history of presidential emergency declarations supports this conclusion. Of the 62 emergency declarations since the NEA’s passage, 54 were declared in tandem with an emergency under the International Emergency Economic Powers Act (“IEEPA”), Pub. L. No. 95-223, 91 Stat. 1625 (1977), for the single purpose of imposing economic sanctions on a foreign nation. Because foreign affairs and international trade fall within the President’s inherent Article II authority, U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), the NEA declarations had little functional effect in these instances. Only seven national emergencies since 1976 (other than the one at issue here) have not been declared in connection with IEEPA, and all seven have responded to unforeseen circumstances, not longstanding political disagreements.15 Indeed, Defendants have identified no other instance in which a president has declared an emergency to override a considered legislative judgment. That is the feature of this Proclamation that most gravely threatens the separation of powers. Iraq’s invasion of Kuwait, E.O. 12722, 55 Fed. Reg. 31803 (Aug. 3, 1990); Hurricanes Andrew and Iniki, Proc. No. 6491, 57 Fed. Reg. 47553 (Oct. 14, 1992); Cuban attacks on U.S. civilian aircraft, Proc. No. 6867, 61 Fed. Reg. 8843 (Mar. 1, 1996); the 9/11 terrorist attacks, Proc. No. 7463, 66 Fed. Reg. 48199 (Sept. 14, 2001); Hurricane Katrina, Proc. 7924, 70 Fed. Reg. 54227 (Sept. 8, 2005); the swineflu epidemic, Proc. No. 8443, 74 Fed. Reg. 55439 (Oct. 23, 2009); and the coronavirus pandemic, see Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-nationalemergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. 15 50 Case: 19-51144 3. Document: 00515362219 Page: 70 Date Filed: 03/27/2020 Defendants’ Contrary Reading Raises Serious Constitutional Questions Defendants read the NEA differently. In their view, the NEA is an “intentional decision [by Congress] to leave to the President the determination about when and under what circumstances to declare a national emergency.” ROA.1424. For the reasons just discussed, Defendants’ reading contravenes the statutory text and history. But even if Defendants’ reading were plausible, it should be avoided because it would—at minimum—raise “a serious doubt” about the NEA’s constitutionality. Zadvydas v. Davis, 533 U.S. 678, 689 (2001). Article I of the Constitution vests “[a]ll legislative Powers herein granted … in a Congress of the United States.” “This text permits no delegation of those powers.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). Congress must therefore “lay down by legislative act an intelligible principle to which” the Executive “is directed to conform.” J.W. Hampton, Jr., & Co. v. U.S., 276 U.S. 394, 409 (1928). Under the “intelligible principle” test, “the degree of [executive] discretion that is acceptable varies according to the scope of the power congressionally conferred.” Whitman, 531 U.S. at 475. Whereas Congress has more leeway to delegate in areas of “less interest,” it must independently regulate “important subjects.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825). In Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), the Supreme Court applied the nondelegation doctrine to invalidate a statute “authoriz[ing] [the 51 Case: 19-51144 Document: 00515362219 Page: 71 Date Filed: 03/27/2020 President] to prohibit the transportation in interstate and foreign commerce of petroleum” products beyond state production quotas. Id. at 406. That statute, the Court concluded, “establish[ed] no criterion to govern the President’s” decision and “left the matter to the President without standard or rule, to be dealt with as he pleased.” Id. at 415, 418. Accordingly, the Court held, Congress had unconstitutionally “transfer[red] … its lawmaking function … to the President.” Id. at 430; see Gundy v. U.S., 139 S. Ct. 2116, 2123 (2019) (plurality) (a statute giving the Executive “unguided and unchecked authority” is unconstitutional). The NEA, as Defendants construe it, suffers from the same infirmity. According to Defendants, the NEA provides no standards to guide presidential action. ROA.1424. On that view, the NEA is no different than the statute in Panama Refining. 293 U.S. at 418 (statute contained no “standard or rule”). If anything, under Defendants’ reading, the delegation here is even more extreme. In Panama Refining, at least the delegation took place within a confined area of economic policy. See U.S. v. Whaley, 577 F.3d 254, 264 (5th Cir. 2009) (upholding delegation because “the authority delegated is relatively small”). Here, by contrast, the delegation would authorize the President to “affect the entire nation[]”—giving him access to billions of dollars and expansive policymaking powers—simply by making the unreviewable determination that an “emergency” exists. Whitman, 531 U.S. at 475. Were the Judiciary to bless such a delegation, the only limit on executive 52 Case: 19-51144 Document: 00515362219 Page: 72 Date Filed: 03/27/2020 “emergency” power would be the President’s own imagination. See Youngstown, 343 U.S. at 650 (Jackson, J., concurring) (emergencies “afford a ready pretext for usurpation”). Seeking to minimize constitutional concerns, Defendants have argued that § 2808’s prerequisites supply an intelligible principle. ROA.1437. But when evaluating the NEA’s constitutionality, this Court must consider not only § 2808 but also the 123 separate statutory authorities that an NEA emergency declaration unlocks. After all, when one statutory interpretation “would raise a multitude of constitutional problems, the other should prevail—whether or not those constitutional problems pertain to the particular litigant before the [c]ourt.” Clark v. Martinez, 543 U.S. 371, 380-81 (2005). 96 of the 123 statutes triggered by the NEA contain no additional constraints beyond the mere declaration of an emergency. See Guide to Emergency Powers, supra at n.14. The aggregation of these vast, unfettered powers raises serious nondelegation concerns. This Court should therefore adopt Plaintiffs’ interpretation. See Indus. Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607, 645-46 (1980) (applying constitutional-avoidance canon when government’s reading would create “such a sweeping delegation of legislative power that it might be unconstitutional”).16 If this Court deems Defendants’ interpretation of the NEA unambiguously correct, it should invalidate the NEA as an unconstitutional delegation. 16 53 Case: 19-51144 4. Document: 00515362219 Page: 73 Date Filed: 03/27/2020 Defendants’ Reviewability Arguments Lack Merit In the district court, Defendants argued that Plaintiffs’ NEA challenge is unreviewable because (a) the NEA precludes judicial review, and (b) the politicalquestion doctrine applies. Both arguments fail. a. In adjudicating claims against agency officials, courts may determine whether “the President [has] act[ed] in contravention of the will of Congress.” Dames & Moore v. Regan, 453 U.S. 654, 669 (1981) (citing Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring)); Reich, 74 F.3d at 1327 (courts may review “validity of [Executive] Order” on which agency action is based). In Dames & Moore, for instance, when reviewing claims against agency officials, the Court asked whether the Executive Orders on which those officials relied exceeded the President’s statutory authority. 453 U.S. at 669-88. So when evaluating the lawfulness of Defendants’ § 2808 expenditures here, this Court may evaluate whether the President’s Proclamation—on which those expenditures rely—violates the NEA. Defendants cannot satisfy their “heavy burden” of “show[ing] that Congress prohibit[ed] all judicial review of the [Executive’s] compliance with” the NEA. Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015). The NEA contains no provision barring such review. And nothing in the NEA’s legislative history suggests that “Congress gave thought to the matter of preclusion of judicial review.” 54 Case: 19-51144 Document: 00515362219 Page: 74 Date Filed: 03/27/2020 Dunlop v. Bachowksi, 421 U.S. 560, 567 (1975). To be sure, Congress authorized itself to “terminate” an already-existing “emergency” by passing a veto-proof “joint resolution.” 50 U.S.C. § 1622(a). But Congress’s ability to terminate an existing emergency ex post does not preclude a litigant’s challenge to an emergency declaration ex ante. Dalton v. Specter, 511 U.S. 462 (1994), does not help Defendants. There, the Court found a claim unreviewable under the APA, because only presidential action carried any “direct consequences” for the plaintiffs, and the “President is not an ‘agency’” under the APA. Id. at 469-70. Here, conversely, DoD’s expenditure of § 2808 funds carries direct consequences for Plaintiffs, so the APA permits them to challenge that expenditure by invalidating the Proclamation. Dalton also held that presidential action is unreviewable “when the statute in question commits the decision to the discretion of the President.” 511 U.S. at 474. But as explained, the NEA does no such thing. See supra at 48-50. b. Defendants have also argued that the political-question doctrine prevents courts from determining whether the Proclamation violates the NEA. That argument bucks the rule that “purely legal question[s] of statutory interpretation” are not political questions even if they “may have significant political overtones.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). In fact, “[t]he Supreme Court has never applied the political question doctrine in cases” alleging 55 Case: 19-51144 Document: 00515362219 Page: 75 Date Filed: 03/27/2020 “that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive,” because doing so “would systematically favor the Executive Branch over the Legislative Branch.” El-Shifa Pharm. Indus. v. U.S., 607 F.3d 836, 855, 857 (D.C. Cir. 2010) (Kavanaugh, J., concurring in the judgment). Plaintiffs solely argue—based on statutory text and history—that an emergency declaration violates the NEA when it imposes a policy solution for a longstanding problem that Congress itself rejected. See supra at 48-50. Because Plaintiffs do not argue that the border wall is unwise policy, or that the conditions at the border fail to justify the Proclamation, this case is fundamentally different than past challenges to emergency declarations that courts have found unreviewable. See, e.g., Soudavar v. Bush, 46 Fed. App’x 731, 731 (5th Cir. 2002) (plaintiff argued that “President Bush unjustly issued executive orders imposing trade sanctions against Iran”). To resolve Plaintiffs’ claims, the Court must only “decide if [Plaintiffs’] interpretation of the statute is correct, and whether the statute is constitutional.” Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012). “This is a familiar judicial exercise,” falling within the judicial competency “[a]t least since Marbury v. Madison.” Id. 56 Case: 19-51144 B. Document: 00515362219 Page: 76 Date Filed: 03/27/2020 The Border Wall Is Not A “Military Construction Project” Under § 2808’s Terms Even if the CAA did not bar Defendants’ § 2808 expenditures, and even if those expenditures were premised on a valid emergency declaration, they would still be unlawful for a third reason: § 2808’s text does not permit them. Section 2808 allows DoD to “undertake military construction projects” in the event of an emergency declaration. A “military construction” project is construction “carried out with respect to” a “base, camp, post, station, yard, center, 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.” ROA.1880-85. 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 endeavors, 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 57 Case: 19-51144 Document: 00515362219 Page: 77 Date Filed: 03/27/2020 by other agencies will be transferred to DoD, and land owned by private parties will be purchased or condemned by DoD. ROA.1882. That land will then be administratively assigned to Fort Bliss. But nothing in § 2808 suggests that Congress intended that provision to grant DoD carte blanche authority to acquire swaths of new land previously unconnected to military sites and build multi-billiondollar projects serving civilian purposes. And Congress normally “speak[s] clearly if it wishes to assign to an agency decisions of vast economic and political significance” like this one. Util. Air Regulatory Grp., 573 U.S. at 324. Tellingly, before DoD’s current maneuver, it had invoked § 2808 only twice, both times for modest construction on established military sites under the control of military departments. 17 “[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). IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN GRANTING AN INJUNCTION Defendants do not attack the district court’s decision to grant a declaratory judgment that the § 2808 expenditures are unlawful. OB34-39. Rather, they solely contend that the district court abused its discretion in enjoining those expenditures See Michael J. Vassalotti & Brendan W. McGarry, Cong. Research Serv., Military Construction Funding in the Event of a National Emergency 2-3 (2019). 17 58 Case: 19-51144 Document: 00515362219 Page: 78 Date Filed: 03/27/2020 after finding them unlawful. This Court should reject Defendants’ novel contention that the district court was powerless to halt unlawful government action. A permanent injunction against governmental action is warranted when a plaintiff demonstrates irreparable injury, and “the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The district court did not abuse its discretion in enjoining Defendants’ § 2808 expenditures after finding them unlawful. Plaintiffs would be irreparably harmed absent an injunction: the County would continue to lose Fort Bliss and tourism dollars, without any prospect of recovering damages; its reputation would remain tarnished; and BNHR would drain further resources counseling the local immigrant community rather than advocating policy reform. ROA.2182-88. The public interest, moreover, is served by protecting Congress’s power of the purse. See Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014) (district court does “not abuse its discretion in finding that [an] injunction would not disserve the public interest because it will prevent constitutional deprivations”). Conversely, Defendants have not shown that they would be substantially injured by an injunction of § 2808 construction. The government, after all, “cannot suffer harm from an injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013). True, border security presents a serious concern—but Congress considered that concern and appropriated only 59 Case: 19-51144 Document: 00515362219 Page: 79 Date Filed: 03/27/2020 $1.375 billion for a wall. “When Congress itself has struck the balance … a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.” Youngstown, 343 U.S. at 609-10 (Frankfurter, J., concurring). Defendants identify no case reversing a permanent injunction when the government’s challenged action violates the law. Rather, Defendants rest exclusively on Winter v. NRDC, 555 U.S. 7 (2008)—a preliminary-injunction case—and argue that courts should refrain from enjoining unlawful executive conduct when the Executive asserts a national-security interest. OB36-37. But Winter held only that preliminarily enjoining the Navy’s use of sonar technology in training—which “ha[d] been going on for 40 years with no documented episode of harm”—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 32-33. Here, unlike in Winter, Defendants’ § 2808 construction is novel, not entrenched, and Plaintiffs do claim that Defendants “must cease” that construction. Id. at 32. 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 protecting Congress’s power of the purse. As the Court made clear in Youngstown—another case in which the Executive urged a national-security justification for its actions—“[t]he Founders of this Nation 60 Case: 19-51144 Document: 00515362219 Page: 80 Date Filed: 03/27/2020 entrusted the law[-]making power to the Congress alone in both good and bad times.” 343 U.S. at 589.18 Defendants’ back-up plea for an injunction tied only to the $20 million in Fort Bliss funds (OB38) likewise fails. “[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). And nationwide injunctions are “not beyond the power of a court [to issue] in appropriate circumstances.” Texas, 809 F.3d at 188. Here, all of Defendants’ § 2808 expenditures are unlawful, so all of those expenditures must be enjoined. A contrary holding would mean that Defendants could simply divert $20 million from a different project and proceed to spend the same $3.6 billion in violation of the law. Because “a geographically-limited injunction would [thus] be ineffective,” an injunction of all § 2808 border-wall spending must issue. Id. PLAINTIFFS’ CROSS-APPEAL Defendants’ expenditure of $2.5 billion on border-wall construction under § 284 is also unlawful. The district court correctly held that both Plaintiffs have standing to challenge that expenditure, and that the CAA precludes it. ROA.2105- Defendants also emphasize the motions panel’s stay decision. OB37-38. But a motions panel’s decision—especially one made in an expedited posture over a dissent—is obviously “not binding precedent.” Northshore Dev., Inc. v. Lee, 835 F.2d 580, 583 (5th Cir. 1988). 18 61 Case: 19-51144 Document: 00515362219 Page: 81 Date Filed: 03/27/2020 28. Yet the court declined to grant an injunction, believing it was bound by the Supreme Court’s one-paragraph order granting a stay pending appeal in Sierra Club. ROA.2181. That was an abuse of discretion. I. PLAINTIFFS HAVE STANDING TO CHALLENGE DEFENDANTS’ § 284 EXPENDITURES AND ANTECEDENT TRANSFER A. The County Has Standing The County can establish standing by showing “harm to its own economic interests.” City of Olmsted Falls, 292 F.3d at 268. In City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004), for instance, Sausalito sued to enjoin the government from redeveloping a “former military base near Sausalito.” Id. at 1194. The court held that the city had standing because the development project “would result in a detrimental increase in traffic and crowds in downtown Sausalito,” and cause “aesthetic damage [that] will erode its tax revenue.” Id. at 1198-99; see City of Olmsted Falls, 292 F.3d at 268 (city sufficiently “alleged harm to its own economic interests based on the environmental impacts of the approved project”). Defendants are using § 284 funds to build a wall in Doña Ana County, New Mexico—which neighbors El Paso County and is “only 15 miles from downtown El Paso.” ROA.918. That nearby construction is disrupting the County’s “regional economy,” ROA.918, and its “ability to compete for business investment and tourism,” ROA.926-27; see ROA.917-18. As one County official explained, recent meetings with “local business leaders” have indicated that the Doña Ana County 62 Case: 19-51144 Document: 00515362219 Page: 82 Date Filed: 03/27/2020 construction is “generating fears of potential investors that the community will be mired in … the blight of construction, and impediments to crossing back and forth across the border.” ROA.924. Defendants’ § 284 expenditures are thus inflicting economic harm on the County—exactly the sort of injury that was sufficient in City of Sausalito and City of Olmsted Falls. B. BNHR Has Standing For the same reasons BNHR has standing to challenge Defendants’ § 2808 expenditures, see supra at 27-30, it has standing to challenge Defendants’ § 284 expenditures. If anything, BNHR’s standing to assert a § 284 challenge is even clearer, since the § 284 construction is occurring in El Paso’s immediate vicinity— where most BNHR members live. ROA.931; ROA.941. Because “BNHR and its member families will … be harmed by the … construction [near] the port of entry at Santa Teresa, New Mexico, and the entirety of the border in Doña Ana County,” BNHR is steering resources away from its advocacy work and toward “helping [its] members deal with the harmful impacts they experience from [the construction].” ROA.940-41. That establishes organizational standing. II. DEFENDANTS’ § 284 EXPENDITURES ARE UNLAWFUL Defendants’ § 284 expenditures are unlawful for two independent reasons. First, just like Defendants’ § 2808 expenditures, they are barred by the CAA and the 63 Case: 19-51144 Document: 00515362219 Page: 83 Date Filed: 03/27/2020 Appropriations Clause. Second, they rest entirely on DoD’s unauthorized transfer of funds. A. Defendants’ § 284 Expenditures Violate The CAA And Thus The Appropriations Clause The CAA bars Defendants’ § 284 expenditures for the same reasons it bars their § 2808 expenditures. The CAA speaks specifically to border-wall expenditures, appropriating $1.375 billion for construction in the Rio Grande Valley. Section 284, conversely, authorizes DoD to “provide support for the counterdrug activities” of other agencies. 10 U.S.C. § 284. That general counterdrug support authority cannot override the CAA’s specific wall-funding scheme. Indeed, the district court recognized that the specific-controls-general principle prohibits DoD’s § 284 expenditures no less than its § 2808 expenditures. ROA.2122. The same is true of § 739. The border wall is a project that the President proposed in his fiscalyear 2019 and 2020 budget requests. And Defendants are using § 284 to increase funding for that project. Section 739 prohibits that use. B. Defendants’ § 284 Expenditures Rest On An Unlawful Transfer Of Funds In fiscal-year 2019, Congress appropriated only $517.2 million to DoD for “counter-narcotics support.” 132 Stat. at 2997. So when DHS requested § 284 “counterdrug support” from DoD, DoD lacked sufficient funds to provide it. To make up the shortfall, DoD transferred $2.5 billion from other appropriations 64 Case: 19-51144 Document: 00515362219 Page: 84 Date Filed: 03/27/2020 accounts—mainly its military personnel account—to its counter-narcotics support account. See supra at 10-11. Conceding that this transfer requires congressional permission, Defendants cite § 8005 of the 2019 DoD Appropriations Act as authority. That provision allows DoD transfers “based on unforeseen military requirements,” but “in no case where the item for which funds are requested has been denied by the Congress.” 132 Stat. at 2999. DoD’s transfer does not comply with this provision, as the Ninth Circuit has held. Sierra Club, 929 F.3d at 690-92.19 1. DoD’s transfer is not “based on unforeseen military requirements.” “Unforeseen military requirement” refers to an unanticipated military threat or event affecting the military. For example, DoD has previously invoked § 8005 to pay for unexpected hurricane damage to military bases. 20 Here, DoD is transferring funds based on Congress’s decision to appropriate less money for a border wall than the President requested, and the President’s directive to build the wall anyway. A congressional defeat is not an “unforeseen military requirement.” Nor is the alleged The district court declined to “address either parties’ arguments regarding the statutory authority of DOD … to spend under § 8005,” citing the Supreme Court’s Sierra Club order. ROA.2102. But as explained below, Sierra Club merely suggests that the plaintiffs there lacked a cause of action and says nothing about DoD’s § 8005 authority. 20 Office of the Under Sec’y of Def. (Comptroller), Dep’t of Def., DOD Serial No. FY 04-37 PA, Reprogramming Action - Prior Approval (Sept. 3, 2004), https://comptroller.defense.gov/Portals/45/Documents/execution/reprogramming/f y2004/prior1415s/04-37_PA_AF_Storm_Damage.pdf. 19 65 Case: 19-51144 Document: 00515362219 Page: 85 Date Filed: 03/27/2020 need for a border wall. The border wall is a project to support DHS—a civilian agency—in addressing an immigration problem, not a military one. ROA.1523. And far from “unforeseen,” the border wall has been openly sought by the President since before his election. 2. DoD’s transfer is independently invalid because “the item for which funds are requested has been denied by the Congress.” In appropriations law, an “item” is “an indivisible sum of money dedicated to a stated purpose.” Black’s Law Dictionary 832 (6th ed. 1990); see Bengzon v. Sec’y of Justice of the Philippine Islands, 299 U.S. 410, 414-15 (1937) (“An item of an appropriation bill” is “a specific appropriation of money”). On January 6, 2019, the President “request[ed] $5.7 billion for construction of a steel barrier for the Southwest border.” ROA.944. Congress considered that request, but rejected it in favor of a $1.375 billion appropriation for fencing in the Rio Grande Valley. In so doing, Congress “denied” the “item”—a $5.7 billion wall—that the President requested. Sierra Club, 929 F.3d at 692. DoD is transferring funds to be used for that same item, in violation of § 8005. III. THE DISTRICT COURT ABUSED ITS DISCRETION IN DECLINING TO ISSUE A DECLARATORY JUDGMENT AND INJUNCTION AGAINST DEFENDANTS’ § 284 EXPENDITURES AFTER HOLDING THEM UNLAWFUL The district court’s summary-judgment opinion correctly holds that Defendants’ § 284 expenditures are unlawful. ROA.2122; ROA.2126-27. Yet the 66 Case: 19-51144 Document: 00515362219 Page: 86 Date Filed: 03/27/2020 district court’s remedial opinion—without reconsidering its earlier ruling—declines to issue a declaratory judgment or enjoin Defendants’ § 284 expenditures. ROA.2180-81. The court’s sole justification for allowing the unlawful expenditures to proceed was that a declaratory judgment and/or injunction would “effectively override” the Supreme Court’s one-paragraph order in Sierra Club. ROA.2181. That order, issued over four dissents, stayed an injunction of DoD’s § 8005 transfer pending appeal, reasoning that “the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of [DoD’s] compliance with Section 8005.” Sierra Club, 140 S. Ct. at 1. Sierra Club does not preclude a declaratory judgment or injunction here, and the district court abused its discretion in holding otherwise. A Supreme Court stay order is, by definition, preliminary: A stay applicant must simply show a “fair prospect” of success on the merits. Hollingsworth v. Perry, 558 U.S. 183, 190-91 (2010). Sierra Club recognizes as much, stating only that “the Government has made a sufficient showing at this stage.” 140 S. Ct. at 1 (emphasis added). This is why courts of appeals do not treat Supreme Court stay orders as determinative, see, e.g., Dodds v. DOE, 845 F.3d 217, 221 (6th Cir. 2016), and why the Supreme Court often leaves lower-court rulings intact after staying them initially, see, e.g., North Carolina v. League of Women Voters of N.C., 575 U.S. 950 (2015) (mem.). Because Sierra Club is only a tentative determination that Defendants had 67 Case: 19-51144 Document: 00515362219 Page: 87 Date Filed: 03/27/2020 a “fair prospect” of success, it cannot foreclose a final decision that Defendants ultimately did not succeed. That is especially so, because Sierra Club differs from this case in crucial respects. For one, Sierra Club involved only the argument that DoD’s transfer of funds violates § 8005; the Court did not consider Plaintiffs’ primary argument here—i.e., that Defendants’ § 284 expenditures violate the CAA and Appropriations Clause—because the Sierra Club plaintiffs never made that argument. Even as to § 8005, moreover, the Court addressed only the Sierra Club plaintiffs’ cause of action (not the merits), and Plaintiffs here press different cause-of-action theories. Whereas the Sierra Club plaintiffs asserted environmental and aesthetic injuries, 929 F.3d at 682, Plaintiffs here assert primarily economic injuries. So the zone-ofinterests test applies differently here (to the extent it applies at all). Yet the district court ignored these distinctions when treating Sierra Club as binding. Because Sierra Club was not binding, the district court should have certainly granted at least a declaratory judgment. And for the same reasons an injunction of § 2808 expenditures is warranted, see supra at 58-61, an injunction of § 284 expenditures is warranted as well. This Court should accordingly reverse the decision below and order a declaratory judgment and injunction against Defendants’ § 284 border-wall expenditures. 68 Case: 19-51144 Document: 00515362219 Page: 88 Date Filed: 03/27/2020 CONCLUSION For the foregoing reasons, the district court’s decision to declare unlawful and enjoin Defendants’ § 2808 expenditures should be affirmed, and its decision not to issue a declaratory judgment and injunction against Defendants’ § 284 expenditures should be reversed. 69 Case: 19-51144 Document: 00515362219 Dated: March 27, 2020 Page: 89 Date Filed: 03/27/2020 Respectfully submitted, /s/ Anton Metlitsky Anton Metlitsky Ephraim McDowell O’MELVENY & MYERS LLP Seven Times Square New York, NY 10036 (212) 326-2000 Kristy Parker Counsel of Record Justin Florence Deana K. El-Mallawany Jessica Marsden Erica Newland Cameron Kistler THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Avenue., NW, #163 Washington, DC 20006 (202) 579-4582 David Bookbinder NISKANEN CENTER 820 First Street, NE Washington, DC 20002 (301) 751-0611 Richard Mancino Shaimaa M. Hussein WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 (212) 728-8000 Stuart Gerson EPSTEIN BECKER GREEN 1227 25th Street, NW 70 Case: 19-51144 Document: 00515362219 Page: 90 Date Filed: 03/27/2020 Washington, DC 20037 (202) 861-4180 Laurence H. Tribe Carl M. Loeb University Professor and Professor of Constitutional Law HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767 *Affiliation noted for identification purposes only Counsel for Plaintiffs-Appellees/CrossAppellants 71 Case: 19-51144 Document: 00515362219 Page: 91 Date Filed: 03/27/2020 CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Fed. R. App. P. 28.1(e)(2)(B) because it contains 15,237 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 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. 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: March 27, 2020 /s/ Anton Metlitsky Anton Metlitsky O’MELVENY & MYERS LLP Seven Times Square New York, NY 10036 Telephone: (212) 326-2000 ametlitsky@omm.com 72 Case: 19-51144 Document: 00515362219 Page: 92 Date Filed: 03/27/2020 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of March, 2020, I electronically filed the foregoing document with the U.S. Court of Appeals for the Fifth Circuit by using the CM/ECF system, which will send notifications of such filing to all CM/ECF counsel of record. Dated: March 27, 2020 /s/ Anton Metlitsky Anton Metlitsky O’MELVENY & MYERS LLP Seven Times Square New York, NY 10036 Telephone: (212) 326-2000 ametlitsky@omm.com 73