Case: 19-51144 Document: 00515247141 Page: 1 Date Filed: 12/23/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT EL PASO COUNTY, TEXAS; BORDER NETWORK FOR HUMAN RIGHTS; Plaintiffs-Appellees, No. 19-51144 v. DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, ET AL., Defendants-Appellants. BRIEF BY AMICI PROJECT ON GOVERNMENT OVERSIGHT, ET AL., IN OPPOSITION TO DEFENDANTS-APPELLANTS’ MOTION FOR STAY PENDING APPEAL OF ORDER GRANTING INJUNCTION Richard D. Bernstein 1875 K Street, N.W. Washington, D.C. 20006-1238 Telephone: (301) 775-2064 rbernsteinlaw@gmail.com Richard B. Kapnick Nancy A. Temple Jeffrey R. Tone Katten & Temple, LLP 209 S. LaSalle Street, Suite 950 Chicago, IL 60604 (312) 663-0800 rkapnick@kattentemple.com ntemple@kattentemple.com jtone@kattentemple.com December 23, 2019 Case: 19-51144 Document: 00515247141 Page: 2 Date Filed: 12/23/2019 SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES (1) 19-51144 and El Paso County, Texas et al. v. Donald J. Trump, et al.; On Appeal from the U.S. District Court for the Western District of Texas El Paso Division (EP-19-CV-66-DB) before the Honorable David Briones. (2) 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. Plaintiffs- Appellees El Paso County, Texas Border Network for Human Rights Counsel for Plaintiffs- Appellees Project Democracy Project, Inc. O’Melveny & Myers, L.L.P. Epstein, Becker & Green, P.C. Willkie Farr & Gallagher, L.L.P. John Charles Padalino Defendants- Appellants Counsel for Defendants-Appellants Donald J. Trump, as President of the United States Department of Justice United States Mark T. Esper, as Secretary of Defense Chad F. Wolf, as Acting Secretary of Department of Homeland Security David Bernhardt, as Secretary of Department of the Interior Steven T. Mnuchin, as Secretary of Department of Treasury Todd T. Samonite, as Commanding General U.S. Army Corps of Engineers Amici Curiae Project for Government Oversight Christopher Shays Christine Todd Whitman John Bellinger III Samuel Witten Stanley Twardy Richard Bernstein Counsel for Amici Curiae Richard D. Bernstein Katten & Temple LLP Law Office of Max Renea Hicks i Case: 19-51144 Document: 00515247141 Page: 3 Date Filed: 12/23/2019 (3) Pursuant to Fed. R. App. P. 26.1, Project for Government Oversight, Inc. is a not-for-profit entity and, as such, no entity has any ownership interest in it. December 23, 2019 /s/ Richard D. Bernstein______ Richard D. Bernstein 1875 K Street, N.W. Washington, D.C. 20006-1238 Telephone: (301) 775-2064 rbernsteinlaw@gmail.com DC Bar No. 416427 Richard B. Kapnick Nancy A. Temple Jeffrey R. Tone Katten & Temple, LLP 209 S. LaSalle Street, Suite 950 Chicago, IL 60604 (312) 663-0800 rkapnick@kattentemple.com ntemple@kattentemple.com jtone@kattentemple.com Counsel for Amici Project On Government Oversight, Christopher Shays, Christine Todd Whitman, John Bellinger III, Samuel Witten, Stanley Twardy, and Richard Bernstein ii Case: 19-51144 Document: 00515247141 Page: 4 Date Filed: 12/23/2019 TABLE OF CONTENTS SUPPLEMENTAL STATEMENT……………………………………………… i TABLE OF CONTENTS………………………………………………………… iii TABLE OF AUTHORITIES………………………………………………………iv STATEMENT OF INTEREST…………………………………………………… 1 INTRODUCTION AND SUMMARY OF ARGUMENT………………………... 1 ARGUMENT………………………………………………………………….. 3 Section 739’s Prohibition Clause Applies to the Disputed Additional Funds Under 2808……………………………………. 3 I. II. Separation-of-Powers Concepts Favor Construing Section 739 to Bar Executive’s Disputed Funding Increases…………………… 8 CONCLUSION…………………………………………………………………. 10 CERTIFICATE OF SERVICE………………………………………………….. 11 CERTIFICATE OF COMPLIANCE…………………………………………….. 12 APPENDIX A……………………………………………………………………. 13 iii Case: 19-51144 Document: 00515247141 Page: 5 Date Filed: 12/23/2019 TABLE OF AUTHORITIES Cases Clinton v. City of New York, 524 U.S. 417 (1998) ............................................................................................8, 9 Zadvydas v. Davis, 533 U.S. 678 (2001) ................................................................................................8 Statutes 10 U.S.C. § 2808………………………………………………………….. passim Pub. L. 115-141 ..........................................................................................................9 Pub. L. 116-6, 133 Stat. 13 .............................................................................. passim Regulations Exec. Order No. 13767, 82 Fed. Reg. 8793 ...............................................................4 Legislative Material Consolidated Appropriations Act, 2020, H.R. 1158, 116th Cong. (2020)……………………………………………… passim Other Authorities A Budget for A Better America, White House 2020 Budge Fact Sheet, (2019)……………………………………………………………………………… 6 Dept. of Defense Briefing on Use of 2808 MILCON Funds for Construction of the Border Wall, (Sept. 3, 2019)……………………………………………… 7 General Accounting Office, A Glossary of Terms Used in the Federal Budget Process 80 (Sept. 2005) .......................................................................................... 3 Memorandum for Acting Under Secretary of Defense Mike Esper (Sept. 9. 2019)…………………………………………………………………… 7 President Donald J. Trump’s Border Security Victory, White House Fact Sheet (Feb. 15, 2019)………………………...................................................... 6,7 iv Case: 19-51144 Document: 00515247141 Page: 6 Date Filed: 12/23/2019 President Donald J. Trump is Promoting a Fiscally Responsible and Pro-American 2020 Budget, White House Fact Sheet (Mar. 11, 2019)………... 6 v Case: 19-51144 Document: 00515247141 Page: 7 Date Filed: 12/23/2019 STATEMENT OF INTEREST The Project On Government Oversight is a nonpartisan independent organization that, since 1981, has defended separation of powers and other constitutional safeguards, among other things. The individual amici include a Republican former Congressman and former executive branch officials in Republican administrations. They are described in Appendix A to this brief. The interest of all amici is in seeing that congressional power over appropriations is not improperly shifted to unilateral executive branch actions.1 INTRODUCTION AND SUMMARY OF ARGUMENT Section 739 (“Section 739”) of Division D of the Consolidated Appropriations Act, 2019, Pub. L. 116-6, 133 Stat. 13 (“2019 CAA”), and Section 739 of Division C of the recently enacted Consolidated Appropriations Act, 2020, H.R. 1158 (enacted Dec. 20, 2019) (“2020 CAA”), each prohibits the use of funds under 10 U.S.C. § 2808 (“2808”) to construct the southern border barrier. In both CAAs, Section 739 applies “Government-Wide” and states in pertinent part: “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 1 No counsel for any party authored the brief in whole or in part, and no person or entity other than amici made a monetary contribution to its preparation or submission. 1 Case: 19-51144 Document: 00515247141 Page: 8 Date Filed: 12/23/2019 pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.” Part I below shows that Section 739’s prohibition clause precludes the increased military construction funding that the executive branch seeks under 2808. The government argues that a southern border wall built by the Department of Defense (“DOD”) using its funds is a different “project” than when the wall is built by the Department of Homeland Security (“DHS”) using its funds. The text of the “Government-wide” Section 739 shows that this is wrong. Building the southern border wall, as sought by each of the President’s unenacted budget requests for fiscal 2019 and fiscal 2020, remains the same “project” regardless of which or how many executive branch agencies are building that wall. As important, and independently, the government’s argument does not apply here. Using DOD military construction funds to build the wall is exactly what the President’s unenacted March 2019 budget request for fiscal year 2020 sought and what the Administration would do but for the District Court’s injunction. The government’s motion ignores the President’s unenacted March 2019 budget request for DOD funds to build the wall. Part II below shows that separation-of-powers concepts favor interpreting Section 739 to preclude unilateral executive branch funding under 2808 for the wall. 2 Case: 19-51144 Document: 00515247141 Page: 9 Date Filed: 12/23/2019 ARGUMENT I. SECTION 739’S PROHIBITION CLAUSE APPLIES TO THE DISPUTED ADDITIONAL FUNDS UNDER 2808. The government’s belated and sole argument is that, when the southern border wall is funded under 2808, the wall becomes a different “project” because the funds the DOD is using are not from a “DHS budget account.” Motion at 16-17.2 This argument misinterprets Section 739 and, in any event, is inapplicable to the undisputed situation here where the President in March 2019 made an unenacted budget request to use DOD military construction funds to build the wall. To start, the District Court’s opinion demonstrates that the government’s argument contradicts the dictionary definition of “project.” The government does not dispute this. Instead, for the first time on December 16, 2019, the government belatedly cited a statement in the General Accounting Office, A Glossary of Terms Used in the Federal Budget Process (Sept. 2005), that a project is “[a]n element within a budget account.” Id. at 80. The government seriously overreads the Glossary, which says only that projects are found within budget accounts, as opposed to other government documents or statements. Nothing in the Glossary says that moving a project from one budget account to another creates a different project. The government cannot and does not dispute the District Court’s ruling that 2808 is not a provision of an appropriations Act. (See Mem. Op. at 31-32.) 2 3 Case: 19-51144 Document: 00515247141 Page: 10 Date Filed: 12/23/2019 By way of analogy, suppose an investor seeks to accumulate stock in American Airlines. To do so, the investor uses a Fidelity brokerage account to provide the funds for, and hold within, some of the shares. The investor also uses a Vanguard brokerage account to fund the purchase of, and hold within, the other shares. Purchasing and holding American Airline shares is one project, not two. This analogy is particularly apt here. Under the President’s Executive Order 13767, issued January 25, 2017, and still in effect, “the policy of the executive branch”— including DOD and DHS—is to construct “a physical wall on the southern border,” defined as “a contiguous, physical wall, or other similarly secure, contiguous, and impassable physical barrier.” 82 Fed. Reg. 8793, sections 2(a) and 3(e) (emphases added). Whether funded from one account or two, the executive branch’s project is to build the wall. There are two additional reasons in Section 739’s text to reject the government’s argument that Section 739 limits the use of funds only for the agency for which funds were requested. First, Section 739 is triggered by funding “proposed in the President’s budget request.” (Emphasis added). The President presides over the entire executive branch, not merely one agency. Section 739 does not even use the word “agency.” Surely, the word “agency” would appear in Section 739’s text if Section 739 permitted a President to spend an amount of construction funds that Congress chose not to appropriate simply by the President’s substituting a different 4 Case: 19-51144 Document: 00515247141 Page: 11 Date Filed: 12/23/2019 agency as the builder. Second, if Section 739 limited only funding for the wall using DHS funds, then the 2019 CAA and 2020 CAA each would have placed Section 739 in the wrong Title and Division. Section 739 is part of Title VII of Division D of the 2019 CAA and Title VII of Division C of the 2020 CAA. Each Title VII contains each CAA’s explicitly “Government-Wide” restrictions on the use of funds. Each CAA has a different Division and Title that contains restrictions focused on the one agency funded by that Division. The restrictions on use of DHS funds are contained in Title V of Division A of the 2019 CAA and in Title V of Division D of the 2020 CAA. By arguing that Section 739 only restricts the use of DHS funds to build the wall, the government is improperly attempting to rewrite the two CAAs by moving the “Government-wide” Section 739 in each to a different Title of a different Division. Independently, even assuming that using DOD funds to build the wall is a different project than using DHS funds for the wall, here the undisputed situation is that the President made a budget request for the appropriation of military construction funds to DOD to build the wall. Congress did not enact that request for DOD funds. Instead, the 2020 CAA reenacted Section 739 with no exception for use of DOD funds for the wall. The government ignores that the President made a budget request for the wall on March 11, 2019, this one for fiscal year 2020. Section 739 of each CAA applies to 5 Case: 19-51144 Document: 00515247141 Page: 12 Date Filed: 12/23/2019 the March 2019 budget request for fiscal year 2020 because Section 739 applies whenever the President makes a “budget request for a fiscal year.” (Emphasis added). The March 2019 request included literally what the District Court enjoined—“military construction” of the wall by DOD to benefit DHS. The March 2019 budget request proposed appropriations of “$8.6 billion for the border wall, funded by Department of Defense (DOD) and Department of Homeland Security (DHS).” Fact Sheets: President Donald J. Trump is Promoting a Fiscally Responsible and Pro-American 2020 Budget (March 11, 2019) (emphases added). OMB’s Budget Fact Sheet, also issued March 11, 2019, stated that the President’s March 2019 budget request included “$3.6 billion in new military construction” of the wall using DOD funds in order “to assist DHS.” 2020 Budget Fact Sheet: A Budget for a Better America (2019) (emphasis added).3 Just as the President’s unenacted March 2019 budget request for fiscal year 2020 sought military construction funds for DOD, in addition to DHS funds, to build “the border wall,” so does the enjoined construction under 2808. On February 15, 2019, the White House said that the executive branch would use both the $1.375 billion appropriated to DHS by Section 230 of Division D of the CAA (“Section 230”) and 3 The March 11, 2019 Fact Sheets are publicly available at: https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-promoting-fiscallyresponsible-pro-american-2020-budget/; and https://www.whitehouse.gov/wp-content/uploads/2019/03/FY20-FactSheet_Overview_FINAL.pdf. 6 Case: 19-51144 Document: 00515247141 Page: 13 Date Filed: 12/23/2019 additional DOD funds under 2808 to “build the border wall.” President Donald J. Trump’s Border Security Victory, White House Fact Sheet (Feb. 15, 2019), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumpsborder-security-victory/ (emphasis added). On September 3, 2019, in announcing the proposed use of 2808 funding to construct the southern border wall, DOD Secretary Mike Esper stated that “these barriers will allow DOD to support DHS more efficiently and effectively.” Memorandum from Secretary Esper, dated Sept. 3, 2019.4 The DOD further explained that all of the 2808 construction areas “were identified by DHS previously,” and that “DHS and DOD” together have “been going through the planning, the permitting process, and the engineering process,” and that 2808 “funding will all go to adding significantly new capabilities to DHS’s ability to prevent illegal entry.” DOD Briefing on Use of 2808 MILCON Funds for Construction of the Border Wall, Sept. 3, 2019, available at https://www.defense.gov/Newsroom/Transcripts/Transcript/Article/1952191/dodbriefing-on-use-of-2808-milcon-funds-for-construction-of-the-border-wall/. The upshot is that the “project” in the President’s unenacted budget requests and in the executive branch’s unilateral action under 2808 is the same—DOD and DHS 4 Available at https://media.defense.gov/2019/Sep/04/2002178837/-1/-1/1/MILCONSTRUCTION-NECESSARY-TO-SUPPORT-THE-USE-OF-ARMED-FORCES-INADDRESSING-THE-NATIONAL-EMERGENCYOSD009322-19-FOD-FINAL.PDF. 7 Case: 19-51144 Document: 00515247141 Page: 14 Date Filed: 12/23/2019 working together to build the border wall. The enjoined funding under 2808 thus falls squarely within Section 739’s prohibition. II. SEPARATION-OF-POWERS CONCEPTS FAVOR CONSTRUING SECTION 739 TO BAR THE EXECUTIVE’S DISPUTED FUNDING INCREASES. “[I]t is a cardinal principle of statutory interpretation . . . that when an Act of Congress raises a serious doubt as to its constitutionality, [a] Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (quotations and citations omitted). The government’s reading of Section 739 would be unconstitutional. Under the government’s reading, the 2019 CAA and the 2020 CAA each appropriated only $1.375 billion for southern border fencing limited to specified locations and designs, but Section 739 permits the executive branch effectively to reject those limits on funding, locations, and types of barrier based on facts and circumstances that existed before each CAA was enacted. It violates the Presentment Clause, however, when a statute both appropriates a certain amount and gives the executive, “based on the same facts and circumstances that Congress considered,” the option of “rejecting the policy judgment made by Congress and relying on [its] own policy judgment.” Clinton v. City of New York, 524 U.S. 417, 444-45 & n.35 (1998). The Presentment Clause is satisfied only if the statute at least generally specifies “the occurrence of particular events subsequent to enactment” 8 Case: 19-51144 Document: 00515247141 Page: 15 Date Filed: 12/23/2019 under which the executive may reverse the policy. Id. The government’s misreading of Section 739 does not require any “events subsequent to enactment” for any President to order spending that Congress chose not to enact. Indeed, here the executive branch’s announcement on February 15, 2019, that it was using 2808 to provide more funds for the wall, was simultaneous with the 2019 CAA’s enactment of less funding for the wall. Clinton v. City of New York would be a dead letter if the legerdemain of switching budget accounts constitutes a subsequent event. Section 739 should not be construed to authorize such a violation of separation of powers. A different provision from Section 739 of each CAA provided a non-unilateral way for the executive branch to obtain more funding for the wall for fiscal years 2019 and 2020 that does not raise any separation-of-powers issues. Section 230(c) of the 2019 CAA required DHS to submit to the congressional appropriations committees a plan “that includes the elements required under section 231(a) of Division F of the Consolidated Appropriations Act, 2018 [“Consolidated 2018”].” The required elements include the planned “fencing [and] other physical barriers” and “estimates for the planned obligations of funds for fiscal years 2019 through 2027.” Consolidated 2018, Pub. L. 115-141 (Mar. 23, 2018), Div. F., section 230(a)(1), (4). After DHS submitted those estimates, the Comptroller General had to report its evaluation to the congressional appropriations committees within 120 9 Case: 19-51144 days. Document: 00515247141 Page: 16 Date Filed: 12/23/2019 Id. Section 231(b); CAA, Section 230(c) (readopting this evaluation requirement). Section 209(e) of the 2020 CAA reenacts the same process. Section 230(c) of the 2019 CAA and Section 209(e) of the 2020 CAA thus provide that the executive branch would attempt to persuade Congress to appropriate more money for construction of the wall in fiscal 2019 and thereafter. It would improperly render both Section 230(c) of the 2019 CAA and Section 209(e) of the 2020 CAA superfluous if Section 739 of these same statutes enabled the executive branch instead to cut Congress out of the picture altogether by switching budget accounts or otherwise. CONCLUSION The Court should deny the motion for a stay. December 23, 2019 Respectfully submitted, /s/ Richard D. Bernstein______ Richard D. Bernstein 1875 K Street, N.W. Washington, D.C. 20006-1238 Telephone: (301) 775-2064 rbernsteinlaw@gmail.com Richard B. Kapnick Nancy A. Temple Jeffrey R. Tone Katten & Temple, LLP 209 S. LaSalle Street, Suite 950 Chicago, IL 60604 (312) 663-0800 rkapnick@kattentemple.com ntemple@kattentemple.com jtone@kattentemple.com jtone@kattentemple.com Counsel for Amici Project On Government Oversight, Christopher Shays, Christine Todd Whitman, John Bellinger III, Samuel Witten, Stanley Twardy, and Richard Bernstein 10 Case: 19-51144 Document: 00515247141 Page: 17 Date Filed: 12/23/2019 CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who have consented to electronic service are being served with a copy of the attached Brief by Amici Project On Government Oversight, et al., in Opposition to Defendants-Appellants’ Motion for Stay Pending Appeal of Order Granting Injunction via the CM/ECF system on December 23, 2019. /s/ Richard D. Bernstein Richard D. Bernstein 11 Case: 19-51144 Document: 00515247141 Page: 18 Date Filed: 12/23/2019 CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because this brief contains 2,184 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). 2. This brief complies with the typeface requirements of Cir. R. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2013 with 14-point Times-New Roman font in the body and 12-point Times New Roman font in the footnotes. Richard D. Bernstein______ Richard D. Bernstein 1875 K Street, N.W. Washington, D.C. 20006-1238 Telephone: (301) 775-2064 rbernsteinlaw@gmail.com DC Bar No. 416427 Richard B. Kapnick Nancy A. Temple Jeffrey R. Tone Katten & Temple, LLP 209 S. LaSalle Street, Suite 950 Chicago, IL 60604 (312) 663-0800 rkapnick@kattentemple.com ntemple@kattentemple.com jtone@kattentemple.com Counsel for Amici Project On Government Oversight, Christopher Shays, Christine Todd Whitman, John Bellinger III, Samuel Witten, Stanley Twardy, and Richard Bernstein 12 Case: 19-51144 Document: 00515247141 Page: 19 Date Filed: 12/23/2019 APPENDIX A To Amici Brief of Project On Government Oversight, Inc., Christopher Shays, Christine Todd Whitman, John Bellinger III, Samuel Witten, Stanley Twardy, and Richard Bernstein as Amici Curiae 13 Case: 19-51144 Document: 00515247141 Page: 20 Date Filed: 12/23/2019 LIST OF INDIVIDUAL AMICI CURIAE Christopher Shays, Representative, U.S. Congress, 1987–2009; Chairman, Subcommittee of National Security and Foreign Affairs of the House Oversight and Government Reform Committee; Member, Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment of the House Homeland Security Committee. Christine Todd Whitman, Administrator, Environmental Protection Agency, 2001–2003; Governor, New Jersey, 1994–2001. John Bellinger, III, Legal Adviser to the Department of State, 2005–2009; Senior Associate Counsel to the President and Legal Adviser to the National Security Council, 2001–2005. Samuel Witten, Acting Assistant Secretary of State for Population, Refugees, and Migration, 2007–2009; Principal Deputy Assistant Secretary of State for Population, Refugees, and Migration, 2007–2010; Deputy Legal Adviser to the Department of State, 2001–2007. Stanley Twardy, U.S. Attorney for the District of Connecticut, 1985–1991. Richard Bernstein, Appointed by the Supreme Court to argue in Carmell v. Texas, 529 U.S. 513, 515 (2000); Montgomery v. Louisiana, 136 S. Ct. 718, 725 (2016). 14