No. ____
IN THE

Supreme Court of the United States
____________________
EL PASO COUNTY, TEXAS ET AL.,
Petitioners,

v.
DONALD J. TRUMP ET AL.,
Respondents.
____________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
____________________
PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT
____________________
Anton Metlitsky
Counsel of Record
Bradley N. Garcia
Ephraim McDowell
O’MELVENY & MYERS LLP
Seven Times Square
New York, N.Y. 10036
(212) 326-2000
ametlisky@omm.com

Kristy Parker
Justin Florence
Deana K. El-Mallawany
THE PROTECT DEMOCRACY
PROJECT, INC.
2020 Pennsylvania Ave.,
NW #163
Washington, DC 20006
(202) 579-4582
kristy.parker@protectdemocracy.org

 Stuart Gerson
EPSTEIN BECKER GREEN
1227 25th St., NW
Washington, DC 20037
(202) 861-4180
sgerson@egblaw.com

Richard Mancino
Shaimaa M. Hussein
WILLKIE FARR & GALLAGHER LLP
787 Seventh Ave.
New York, N.Y. 10019
(212) 728-8000
rmancino@willkie.com

Laurence H. Tribe
Carl M. Loeb University
Professor Emeritus
HARVARD LAW SCHOOL*
1575 Massachusetts Ave.
Cambridge, MA 02138
(617) 495-1767
tribe@law.harvard.edu

David Bookbinder
NISKANEN CENTER
820 First St. NE
Washington, DC 20002
(301) 751-0611
dbookbinder@niskanencenter.org

*University affiliation
noted for identification purposes only

Attorneys for Petitioners

 i
QUESTIONS PRESENTED
In January 2019, during a government shutdown,
President Trump formally requested from Congress
$5.7 billion in appropriations for a wall along the
Southwest border. On February 14, 2019, Congress
passed the Consolidated Appropriations Act (CAA),
2019, Pub. L. No. 116-6, 133 Stat. 13, which appropriates $1.375 billion for wall construction “in the Rio
Grande Valley Sector” of the border, but declines to
appropriate the remaining funds requested by the
President. 133 Stat. at 28, div. A, § 230(a)(1). The
CAA further states that “[n]one of the funds made
available in this or any other appropriations Act may
be used to increase … funding for a … project … as
proposed in the President’s budget request for a fiscal
year until such proposed change is subsequently enacted in an appropriation Act.” 133 Stat. at 197, div.
D, § 739.
On the same day the President signed the CAA,
his Administration determined to spend an additional
$6.1 billion on border-wall construction, including
$2.5 billion at issue here. The questions presented
are as follows:
1. Whether the Executive Branch’s expenditure of
§2.5 billion on border-wall construction violates the
CAA and thus the Appropriations Clause.
2. Whether the Department of Defense’s transfer
of $2.5 billion between agency appropriations accounts violates § 8005 of the DoD Appropriations Act,
2019, Pub. L. No. 115-245, div. A, 132 Stat. 2999, and
thus the Appropriations Clause.

 ii
PARTIES TO THE PROCEEDING
The parties to the proceedings below were as follows:
Petitioners El Paso County, Texas and Border
Network for Human Rights were plaintiffs in the district court and appellees/cross-appellants before the
court of appeals.
Respondents Donald J. Trump, Mark Esper, Chad
F. Wolf, David Bernhardt, Steven T. Mnuchin, and
Todd T. Semonite, all in their official capacity, were
defendants in the district court and appellants/crossappellees before the court of appeals.

 iii
RULE 14.1(b)(iii) STATEMENT
Petitioners are aware of the following related
cases:
•

El Paso County et al. v. Trump et al., No. 3:19cv-00066 (W.D. Tex.);

•

El Paso County et al. v. Trump et al., No. 1951144 (5th Cir.).

Petitioners are unaware of any other directly related cases in this or any other Court, within the
meaning of Rule 14.1(b)(iii). Petitioners do note, however, that similar issues as those raised in this petition are presented in Trump v. Sierra Club and
Trump v. California, No. 20-138 (U.S.) (cert. pending).

 iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...................................... i
PARTIES TO THE PROCEEDING .......................... ii
RULE 14.1(b)(iii) STATEMENT ............................. iii
OPINIONS BELOW .................................................. 1
JURISDICTION ........................................................ 1
RELEVANT STATUTORY PROVISIONS ............... 1
INTRODUCTION ..................................................... 2
STATEMENT OF THE CASE .................................. 4
REASONS FOR GRANTING THE WRIT.............. 11
I. The Court Has Regularly Granted
Certiorari Before Judgment In
Complementary Companion Cases .............. 13
II. If The Court Grants Certiorari In
Sierra Club and California, It Should
Grant Certiorari Before Judgment Here ..... 15
CONCLUSION ........................................................ 23

 v
TABLE OF CONTENTS
(continued)
Page
APPENDIX A
District Court’s Grant of Motion for
Summary Judgment
(Oct. 11, 2019) .................................................... 1a
APPENDIX B
District Court’s Grant of Declaratory and
Injunctive Relief
(Dec. 10, 2019).................................................. 42a
APPENDIX C
Fifth Circuit Order Granting Stay
(Jan. 8, 2020).................................................... 67a
APPENDIX D
Relevant Statutory Provisions.............................. 70a

 vi
TABLE OF AUTHORITIES
Page(s)
Cases
California v. Trump,
963 F.3d 926 (9th Cir. 2020)...............2, 11, 18, 23
California v. Trump,
2019 WL 2715421 (N.D. Cal. June 28, 2019).... 10
Clarke v. Sec. Indus. Ass’n,
479 U.S. 388 (1987) ............................................ 22
Department of Homeland Security v.
Regents of the University of California,
140 S. Ct. 1891 (2020)...............................3, 12, 14
Detroit Int’l Bridge Co. v. Gov’t of Canada,
883 F.3d 895 (D.C. Cir. 2018) ............................ 17
Gratz v. Bollinger,
539 U.S. 244 (2003) ............................................ 15
Grutter v. Bollinger,
539 U.S. 306 (2003) ............................................ 15
Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak,
567 U.S. 209 (2012) .................................20, 21, 22
Nat’l Credit Union Admin. v. First Nat’l
Bank & Trust Co.,
522 U.S. 479 (1998) ............................................ 22
Nevada v. Dep’t of Energy,
400 F.3d 9 (D.C. Cir. 2005) ................................ 16
Sierra Club v. Trump,
963 F.3d 874 (9th Cir. 2020).....................2, 11, 18

 vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Sierra Club v. Trump,
929 F.3d 670 (9th Cir. 2019).....................4, 18, 23
Trump v. NAACP,
139 S. Ct. 2779 (2019)........................................ 14
Trump v. Sierra Club,
140 S. Ct. 1 (2019).........................................10, 11
United States v. Booker,
543 U.S. 220 (2005) ............................................ 14
United States v. Fanfan,
542 U.S. 956 (2004) ............................................ 14
United States v. MacCollom,
426 U.S. 317 (1976) ............................................ 16
White Stallion Energy Ctr. v. EPA,
748 F.3d 1222 (D.C. Cir. 2014) .......................... 21
Statutes
10 U.S.C. § 2808 .................................................2, 7, 8
10 U.S.C. § 284 ...................................................... 2, 8
28 U.S.C. § 1254 .................................................. 1, 13
28 U.S.C. § 1291 ........................................................ 1
28 U.S.C. § 2101 .................................................. 1, 13
50 U.S.C. § 1601 et seq. ............................................. 7
Consolidated Appropriations Act, 2017,
Pub. L. No. 115-31, 131 Stat. 135 ....................... 5

 viii
TABLE OF AUTHORITIES
(continued)
Page(s)
Consolidated Appropriations Act, 2018,
Pub. L. No. 115-141, 132 Stat. 348 ..................... 5
Consolidated Appropriations Act, 2019,
Pub. L. No. 116-6, 133 Stat. 13 .................. passim
DoD Appropriations Act, 2019, Pub. L.
No. 115-245, 132 Stat. 2981 .......................8, 9, 20
Rules and Regulations
Exec. Order No. 13767, 82 Fed. Reg.
8793 (Jan. 25, 2017) ............................................. 5
Proc. No. 9844, 84 Fed. Reg. 4949 (Feb.
15, 2019) ............................................................... 7
S. Ct. R. 11 ............................................................... 13
Other Authorities
American Heritage Dictionary (5th ed. 2011) ........ 18
GAO, Principles of Federal Appropriations
Law, 13-197 (3d ed. 2008).................................. 17
H.R.J. Res. 46, 116th Cong. (2019)........................... 7
Office of Mgmt. & Budget, Exec. Office of the
President, Budget of the United States
Government, Fiscal Year 2018 (2017). ................ 5
S.J. Res. 54, 116th Cong. (2019) ............................... 7
White House Fact Sheet (Mar. 11, 2019) ................ 18

 PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT
Petitioners El Paso County, Texas and the Border
Network for Human Rights respectfully petition for a
writ of certiorari before judgment to the United States
Court of Appeals for the Fifth Circuit.
OPINIONS BELOW
The order of the District Court granting petitioners’ motion for summary judgment is reported at 408
F. Supp. 3d 840 and reprinted in the Petition Appendix (App.) at 1a-41a. The order of the District Court
granting in part and denying in part petitioners’ request for declaratory and injunctive relief is reported
at 407 F. Supp. 3d 655 and reprinted at App. 42a-66a.
JURISDICTION
On October 11, 2019, the District Court granted
summary judgment to petitioners. App. 40a. On December 10, 2019, the District Court granted petitioners declaratory and injunctive relief in part and denied it in part. App. 66a. On January 8, 2020, the
U.S. Court of Appeals for the Fifth Circuit stayed the
District Court’s injunction pending appeal and denied
petitioners’ motion to expedite the appeal. App. 67a69a. The Fifth Circuit’s jurisdiction over petitioners’
pending appeal rests on 28 U.S.C. § 1291. The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1) and 28 U.S.C. § 2101(e).
RELEVANT STATUTORY PROVISIONS
The pertinent statutory provisions are reprinted
at App. 70a-72a.

 2
INTRODUCTION
This case presents a challenge to the Executive
Branch’s construction of a wall along the Southwest
border with funds that Congress appropriated for
other purposes. Petitioners prevailed on the merits of
their claims in the District Court. The District Court
then enjoined respondent Executive Branch officials
from spending $3.6 billion on the wall under 10 U.S.C.
§ 2808’s military construction provision, but declined
to enjoin them from spending an additional $2.5 billion under 10 U.S.C. § 284’s counterdrug support provision, even though the court had earlier held that expenditure unlawful. The Fifth Circuit stayed the District Court’s injunction pending appeal, and the case
has been briefed and argued in the Fifth Circuit.
Meanwhile, two related but different challenges to
the Executive Branch’s border-wall expenditures
have proceeded in the Ninth Circuit, and a petition
for a writ of certiorari in those cases is currently pending before this Court. In those cases, the Ninth Circuit affirmed an injunction barring the Department of
Defense (DoD) from transferring and spending the
aforementioned $2.5 billion in § 284 counterdrug support funds on the border wall. See Sierra Club v.
Trump, 963 F.3d 874 (9th Cir. 2020); California v.
Trump, 963 F.3d 926 (9th Cir. 2020). And on August
7, 2020, the Solicitor General filed a petition for certiorari in those cases. See Petition for a Writ of Certiorari, Trump v. Sierra Club, No. 20-138 (U.S. Aug. 7,
2020) (“U.S. Sierra Club Pet.”).
If this Court grants review in Sierra Club and California, it should grant this petition for certiorari before judgment as well. The Court has regularly

 3
granted certiorari before judgment in companion
cases like this one, recognizing that doing so is often
necessary to fully consider and resolve the relevant
issues. Indeed, the Court granted two such petitions
last Term in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891
(2020). In those two petitions, the Solicitor General
stressed that granting certiorari before judgment was
necessary “[t]o ensure an adequate vehicle for the
timely and definitive resolution of th[e] dispute.” Petition For a Writ of Certiorari Before Judgment,
Trump v. Nat’l Ass’n for Advancement of Colored People, No. 18-588 (“NAACP Pet.”), at 16 (Nov. 5, 2018);
Petition For a Writ of Certiorari Before Judgment,
Nielsen v. Vidal, No. 18-589 (“Vidal Pet.”), at 16 (Nov.
5, 2018).
The same logic applies here for two reasons. First,
petitioners press a merits argument that the District
Court here endorsed and that independently precludes the Executive Branch’s border-wall expenditures, but which was not raised or considered in Sierra Club or California. As the District Court correctly held, respondents’ expenditures are barred by
the Consolidated Appropriations Act, 2019, Pub. L.
No. 116-6, 133 Stat. 13. Because that argument was
not pressed to or passed upon by the Ninth Circuit, it
is not presented by the Solicitor General’s pending petition for certiorari in Sierra Club and California. Review here is thus warranted to allow for full presentation and consideration of all the arguments addressing the legality of the expenditures at issue.

 4
Second, petitioners assert different injuries and
interests than the plaintiffs in Sierra Club and California, and those injuries and interests clearly satisfy
the zone-of-interests test. The Solicitor General has
contended that the plaintiffs in Sierra Club and California, who assert recreational, aesthetic, environmental, and sovereign interests, fall outside the zone
of interests of the relevant statutory provision. Petitioner El Paso County, by contrast, asserts economic
and budgetary interests that fall comfortably within
that provision’s zone of interests. Even a dissenting
judge in Sierra Club admitted that “as a budgetary
statute regarding the transfer of funds among DoD
accounts,” the relevant provision “arguably protects
economic interests” like the County’s. Sierra Club v.
Trump, 929 F.3d 670, 715 (9th Cir. 2019) (N.R. Smith,
J., dissenting). Granting certiorari before judgment
will thus “ensure an adequate vehicle for the timely
and definitive resolution of th[e] dispute.” NAACP
Pet. at 16.
An issue of pressing importance to the Nation and
the separation of powers should be resolved in a single
instance, not in multiple iterations with different
plaintiffs and arguments. The Court should therefore
grant certiorari before judgment here.
STATEMENT OF THE CASE
1. Presidential candidate Donald Trump made
building a wall across the Southwest border one of his
signature campaign issues. See Fifth Circuit Electronic Record On Appeal (“C.A. ROA”) 361, 415. Once
elected, President Trump sought to fulfill the promise
he made to voters. Five days after his inauguration,

 5
President Trump 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.” Exec. Order No. 13767,
82 Fed. Reg. 8793, 8794 (Jan. 25, 2017).
Initially, the President sought funding for the border wall through the ordinary appropriations process.
In fiscal-year 2017, the President requested that Congress appropriate $999 million for the wall, C.A. ROA
433, and Congress responded by appropriating $341.2
million, see Consolidated Appropriations Act, 2017,
Pub. L. No. 115-31, 131 Stat. 135, 434. In fiscal-year
2018, the President requested $2.6 billion in wall
funding,1 and Congress responded by appropriating
$1.571 billion, see Consolidated Appropriations Act,
2018, Pub. L. No. 115-141, 132 Stat. 348, 616.
In fiscal-year 2019, the President began by again
employing the traditional appropriations process, requesting $1.6 billion for the border wall. C.A. ROA
619. But the President eventually gave up on that
process. Mere weeks before fiscal-year 2018 appropriations were to expire, the President declared that he
in fact was seeking at least $5 billion for the wall and
would be “proud to shut down the government for border security.” Id. at 729. On December 22, 2018, the
Nation’s longest-ever government shutdown began.
In the midst of the shutdown, the President formalized his latest funding request. He sent a letter
See 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-2018BUD/pdf/BUDGET-2018-BUD.pdf.
1

 6
to the Senate Appropriations Committee “request[ing] $5.7 billion for construction of a steel barrier for the Southwest border.” Id. at 944. “The Administration’s full request,” the letter explained,
“would fund construction of a total of approximately
234 miles of new physical barrier.” Id.
Also during the shutdown, the President raised a
new idea. If the “negotiated process” with Congress
did not yield sufficient border-wall funding, he maintained, he could “call a national emergency and build
[the wall] very quickly.” Id. at 756.
2. After the 35-day shutdown had finally ended,
Congress passed the Consolidated Appropriations
Act, 2019, Pub. L. No. 116-6, 133 Stat. 13 (CAA). Instead of satisfying the President’s request for $5.7 billion in wall funding, the CAA 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, div.
A, § 230(a)(1). It also establishes a process through
which DHS is to consult with Congress about whether
more border-wall appropriations should be made in
future years. Id. § 230(c). And, crucially here, the
CAA contains a provision—§ 739 of division D, Title
VII—that precludes additional Executive Branch
spending on projects proposed by the President that
Congress has rejected. Section 739 applies “Government-Wide” and states:
None of the funds made available in this or any
other appropriations Act may be used to increase
… funding for a program, project, or activity as
proposed in the President’s budget request for a

 7
fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless
such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.
133 Stat. at 197, div. D, § 739. On February 15, 2019,
the President signed the CAA into law.
3. On the same day the President signed the CAA,
he invoked the National Emergencies Act (NEA), 50
U.S.C. § 1601 et seq., to declare “the current situation
at the southern border” a “national emergency.” Proc.
No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019).2 Relying
on this emergency declaration, DoD invoked 10 U.S.C.
§ 2808, which states that “[i]n the event of a … declaration by the President of a national emergency in accordance with the [NEA] that requires use of the
armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake
military construction projects.” Id. § 2808(a). “[S]uch
projects,” the provision continues, “may be undertaken only within the total amount of funds that have
been appropriated for military construction.” Id.
DoD has used this § 2808 military construction
provision to spend $3.6 billion appropriated for “military construction projects” on the border wall. To do
so, DoD cancelled 127 already-planned military construction projects. C.A. ROA 1968. One of those pro-

Congress twice passed joint resolutions terminating the President’s emergency declaration, H.R.J. Res. 46, 116th Cong.
(2019); S.J. Res. 54, 116th Cong. (2019), but the President vetoed
both.

2

 8
jects was a $20 million “Defense Access Roads” construction project at Fort Bliss, in El Paso County. Id.
The money for that project was supposed to have been
awarded to Fort Bliss in January 2020, but was instead redirected toward the border wall. Id.
Most relevant here, DoD invoked 10 U.S.C. § 284
to spend an additional $2.5 billion on border-wall construction. That provision allows DoD to “provide support for the counterdrug activities” of other agencies.
Id. On February 25, 2019, ten days after the CAA’s
enactment, DHS sought counterdrug support from
DoD, requesting that it build over 200 miles of the
border wall. C.A. ROA 863-70. DoD approved this
support request. Id. at 1493-94. The § 284 counterdrug support construction includes “El Paso Project 1,” consisting of 46 miles of construction in Luna
and Doña Ana Counties, New Mexico. Id. at 870.
Doña Ana County borders El Paso County.
DoD lacked sufficient funds in its “counter-narcotics support” appropriation account, however, to proceed with DHS’s requested construction. To compensate for that shortfall, DoD transferred $2.5 billion
from other appropriations accounts—for example, its
military personnel account—to its counter-narcotics
support account. Id. at 900; id. at 1494. As its asserted authority for those transfers, DoD cited § 8005
of the DoD Appropriations Act, 2019, Pub. L. No. 115245, 132 Stat. 2981, 2999, which allows DoD transfers
in specified circumstances.3 As pertinent here, those
DoD also cited § 9002 of the Act, but that provision contains the
same substantive requirements as § 8005. See 132 Stat. at 3042,
§ 9002. For simplicity’s sake, this petition refers to § 8005 alone.

3

 9
transfers: (1) must be “based on unforeseen military
requirements,” and (2) may not be made “where the
item for which funds are requested has been denied
by the Congress.” Id.
4. In March 2019, petitioners El Paso County,
Texas and BNHR sued the President and certain Executive Branch officials in the U.S. District Court for
the Western District of Texas, challenging the President’s emergency declaration, DoD’s § 2808 military
construction and § 284 counterdrug support expenditures, and DoD’s § 8005 transfer. On October 11,
2019, the District Court granted summary judgment
to petitioners, holding that respondents’ § 2808 military construction and § 284 counterdrug support expenditures were unlawful. App. 40a. Those expenditures, the court reasoned, were barred by the CAA for
two reasons. First, the CAA’s specific appropriation
of $1.375 billion for border-wall construction in the
Rio Grande Valley Sector precludes respondents from
relying on more general statutory authorities to
spend additional funds on border-wall construction
elsewhere. App. 32a-37a. Second, § 739 of the CAA
(quoted above) “expressly forbids Defendants’ funding
plan” because that plan seeks to “increase … funding
for a … project” (the border wall) that was “proposed
in the President’s budget request for a fiscal year” beyond the amount Congress appropriated for that project. App. 37a.
On December 10, 2019, the District Court granted
a declaratory judgment and permanent injunction
against respondents’ § 2808 military construction expenditures and construction. App. 66a. It declined to

 10
declare unlawful or enjoin respondents’ § 284 counterdrug support expenditures and construction, however, in light of this Court’s order staying an injunction of DoD’s § 8005 transfer in Trump v. Sierra Club,
140 S. Ct. 1 (2019).
Respondents appealed the District Court’s declaratory judgment and injunction as to the § 2808 military construction expenditures and construction,
while petitioners cross-appealed the District Court’s
denial of relief as to the § 284 counterdrug support expenditures and construction. A motions panel of the
Fifth Circuit stayed the District Court’s injunction
and declaratory judgment pending appeal and denied
petitioners’ motion to expedite the appeal. App. 68a.
Judge Higginson dissented from both rulings. App.
68a-69a. The parties have briefed both respondents’
appeal and petitioners’ cross-appeal, and the Fifth
Circuit held oral argument on September 1, 2020.
5. In parallel with petitioners’ case here, two separate challenges to respondents’ border-wall construction have proceeded in federal court in California. In Sierra Club v. Trump, the district court enjoined DoD’s § 8005 transfer (thereby halting DoD’s
§ 284 counterdrug support expenditures and construction). The Ninth Circuit denied a stay, but this
Court granted a stay pending appeal, with four Justices dissenting. 140 S. Ct. at 1. Meanwhile, in California v. Trump, the district court held unlawful the
same § 8005 transfer but declined to enjoin it because
it had already been enjoined by the court in Sierra
Club. 2019 WL 2715421 (N.D. Cal. June 28, 2019).
On June 26, 2020, the Ninth Circuit affirmed in
both Sierra Club and California. See Sierra Club v.

 11
Trump, 963 F.3d 874 (9th Cir. 2020); California v.
Trump, 963 F.3d 926 (9th Cir. 2020). In Sierra Club,
the Ninth Circuit held that plaintiffs Sierra Club and
Southern Border Communities Coalition had equitable causes of action to sue, 963 F.3d at 887-895, and
that DoD’s § 8005 transfer exceeded its statutory and
constitutional authority, id. at 886-87. And in California, the Ninth Circuit held that California and
New Mexico had Administrative Procedure Act (APA)
causes of action to sue, 963 F.3d at 941-44, and again
held on the merits that DoD’s § 8005 transfer exceeded its statutory and constitutional authority, id.
at 944-49.
On August 7, 2020, the Solicitor General filed a
joint petition for a writ of certiorari in both Sierra
Club and California. See U.S. Sierra Club Pet. That
petition argues that the plaintiffs in Sierra Club and
California lack causes of action to sue, id. at 18-29,
and that DoD’s $2.5 billion transfer complied with
§ 8005, id. at 29-32.
6. In light of the Solicitor General’s August 7 petition, and the fact that the Ninth Circuit in Sierra
Club and California considered the legality of DoD’s
§ 284 counterdrug support expenditures, but not the
arguments adopted by the District Court in this case,
petitioners now file this petition for certiorari before
judgment.
REASONS FOR GRANTING THE WRIT
If the Court grants the Solicitor General’s petition
for certiorari in Sierra Club and California, it should
grant the petition for certiorari before judgment here.
Doing so is necessary for the Court to fully resolve the

 12
lawfulness of respondents’ construction of a wall
along the Southwest border and to avoid disjointed
consideration of related issues in different cases (and
possibly different Terms).
This Court has regularly granted certiorari before
judgment in companion cases after the Court has decided to review a major legal question. Just last
Term, for instance, the Court granted two petitions
for certiorari before judgment after it had decided to
review whether DHS had validly rescinded the Deferred Action for Childhood Arrivals (DACA) program. Regents of the Univ. of Cal., 140 S. Ct. at 1905.
The Court should do the same here, for two reasons. First, granting certiorari before judgment will
ensure full presentation and consideration of all relevant substantive challenges to the Executive Branch’s
border-wall expenditures. Petitioners here have successfully pressed a merits argument that would independently preclude respondents’ border-wall expenditures, but which was not addressed in Sierra Club or
California. Specifically, petitioners argue that respondents’ § 284 counterdrug support expenditures
are unlawful because they violate the CAA. The District Court in this case agreed with petitioners’ CAA
argument, but this CAA argument has not been
pressed or passed upon in either Sierra Club or California. Granting certiorari before judgment would allow the Court to consider and resolve both major legal
arguments challenging respondents’ border-wall expenditures at one time.
Second, granting certiorari before judgment will
ensure that the Court has a proper vehicle before it to

 13
resolve the § 8005 argument as well—which petitioners have made in addition to their CAA argument.
The Solicitor General argues that the plaintiffs in Sierra Club and California fall outside § 8005’s zone of
interests. But even if those plaintiffs’ recreational,
aesthetic, environmental, and sovereign interests do
not satisfy the zone-of-interests test, El Paso County’s
economic and budgetary interests do. A dissenting
judge in Sierra Club recognized as much. So even if
the Court were to agree with the Solicitor General’s
threshold argument in Sierra Club and California, it
would not preclude petitioners’ challenge here.
I. The Court Has Regularly Granted Certiorari Before Judgment In Complementary
Companion Cases
This Court may grant certiorari before judgment
“upon a showing that the case is of such imperative
public importance as to justify deviation from normal
appellate practice and to require immediate determination in this Court.” S. Ct. R. 11; see 28 U.S.C.
§ 1254(1) (writ of certiorari may be granted “upon the
petition of any party … before or after rendition of
judgment”); id. § 2101(e) (“An application to the Supreme Court for a writ of certiorari to review a case
before judgment … may be made at any time before
judgment.”).
On several occasions, this Court has found this
standard satisfied when a case pending in a Court of
Appeals is an important companion case to a case that
the Court has decided to review. And in particular,
the Court has deemed this approach proper in cases
involving challenges to major governmental actions,
where doing so would permit the Court to address the

 14
full scope of issues surrounding the action, or would
ensure that the Court had before it a proper vehicle to
resolve those issues.
For example, just last Term, in Regents of the University of California, 140 S. Ct. 1891 (2020), the Court
granted two petitions for certiorari before judgment
in order to ensure full consideration and resolution of
the issues involved in DHS’s rescission of DACA. See
Trump v. NAACP, 139 S. Ct. 2779 (2019). There, the
Court granted certiorari in the normal course after
the Ninth Circuit affirmed an injunction of DHS’s rescission. Regents of the Univ. of Cal., 140 S. Ct. at
1905. At that time, cases challenging the same action
were pending in two other Circuits. Id. The Solicitor
General sought certiorari before judgment in those
two cases, emphasizing the need “[t]o ensure an adequate vehicle for the timely and definitive resolution
of th[e] dispute.” NAACP Pet. at 16; Vidal Pet. at 16.
The Court granted the Solicitor General’s certiorari
before judgment petitions in both cases and consolidated all three cases for oral argument. Regents, 140
S. Ct. at 1905.
Similarly, in United States v. Fanfan, 542 U.S. 956
(2004), the Court granted a petition for certiorari before judgment in order to hear that case alongside
United States v. Booker, 543 U.S. 220 (2005). See 543
U.S. at 229. Both cases involved similar constitutional challenges to the federal sentencing guidelines,
but granting the petition in Fanfan allowed the Court
to resolve additional remedial questions at the same
time that it considered the constitutional issues. Id.
at 267.

 15
And in Gratz v. Bollinger, 539 U.S. 244 (2003), the
Court granted certiorari before judgment in order to
hear that case together with Grutter v. Bollinger, 539
U.S. 306 (2003). See Gratz, 539 U.S. at 260. While
Grutter involved an equal-protection challenge to a
law-school admissions policy, Gratz involved a similar
challenge to an undergraduate admissions policy.
Hearing both cases at once allowed the Court to “address the constitutionality of the consideration of race
in university admissions in a wider range of circumstances.” Id.
II. If The Court Grants Certiorari In Sierra
Club and California, It Should Grant Certiorari Before Judgment Here
In the foregoing cases, the Court granted certiorari
before judgment either to ensure that the full scope of
substantive issues was before the Court, or to ensure
that jurisdictional or other vehicle obstacles did not
prevent the Court from resolving those issues. If this
Court grants certiorari in Sierra Club and California,
granting this petition for certiorari before judgment
would accomplish both purposes.
First, granting certiorari before judgment would
ensure presentation of petitioners’ argument (adopted
by the District Court here) that respondents’ borderwall expenditures and construction violate the CAA.
Second, granting certiorari before judgment would facilitate resolution of the § 8005 issue that is raised
both in this case and in Sierra Club and California by
increasing the odds that at least one plaintiff falls
within § 8005’s zone of interests.

 16
Unless this petition is granted, the Court’s ultimate decisions in Sierra Club and California are unlikely to fully resolve the legality of the Executive
Branch’s border-wall expenditures. Rather than considering multiple iterations of border-wall challenges,
the Court should grant this petition for certiorari before judgment and consolidate this case for argument
alongside Sierra Club and California.
1. As noted, petitioners here argue that respondents’ border-wall expenditures violate the CAA. The
District Court in this case agreed with this argument,
but this argument was not pressed or passed upon in
either Sierra Club or California.4 This Court should
grant certiorari before judgment to ensure consideration of petitioners’ CAA argument.
a. Settled appropriations law principles govern
this case. It is well-established that “[a]n appropriation for a specific purpose is exclusive of other appropriations in general terms which might be applicable
in the absence of the specific appropriation.” Nevada
v. Dep’t of Energy, 400 F.3d 9, 16 (D.C. Cir. 2005); see
United States v. MacCollom, 426 U.S. 317, 321 (1976)
(“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.”). As the Government Accountability Office (GAO), the agency
tasked with interpreting federal appropriations law,

Another district court has also agreed with this same argument. See State v. Trump, 441 F. Supp. 3d 1101, 1115-17 (W.D.
Wash. 2020).

4

 17
has put the point when addressing construction projects in particular: “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”).
These principles preclude respondents’ borderwall expenditures. After the President had formally
requested $5.7 billion for a 234-mile border wall, C.A.
ROA 944, Congress instead appropriated only $1.375
billion for construction in “the Rio Grande Valley Sector,” 133 Stat. at 28, div. A, § 230(a)(1). Respondents
are barred from relying on more general, earlier-enacted authorities, such as § 284’s counterdrug support
provision, to circumvent Congress’s specific and recent appropriations judgment in the CAA.
To remove any doubt about the Executive Branch’s
ability to spend beyond amounts specifically appropriated, Congress enacted § 739. As noted above, that
provision 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, div. D, § 739.
Respondents’ border-wall expenditures run headlong into this express prohibition. Respondents are
using appropriated money to “increase … funding for
a … project”—namely, the border wall. See, e.g., Project, American Heritage Dictionary (5th ed. 2011)
(“project”: “an undertaking requiring concerted effort”); Detroit Int’l Bridge Co. v. Gov’t of Canada, 883

 18
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.” Not only did the President request $5.7 billion
for wall construction in fiscal-year 2019, see C.A. ROA
944, but he also requested another $8.6 billion for wall
construction in fiscal-year 2020.5 Rather than acceding to these requests, Congress appropriated $1.375
billion for construction in “the Rio Grande Valley Sector.” 133 Stat. at 28, div. A, § 230(a)(1). As a result,
§ 739 precludes respondents from using other funding
sources to accomplish the President’s proposed project
anyway.
b. The District Court in this case agreed with petitioners’ CAA argument. The court held that respondents’ border-wall expenditures “flout[] the cardinal
principle that a specific statute”—the CAA—“controls
a general one”—§§ 284 and 2808. App. 33a. And the
court further held that, in any event, “CAA § 739 expressly forbids Defendants’ funding plan.” App. 37a.
By contrast, the Ninth Circuit did not address this
CAA argument in either Sierra Club or California because it has not been raised in those cases. Instead,
the Ninth Circuit adopted a separate argument that
DoD’s transfer of funds between appropriations accounts—upon which respondents’ § 284 counterdrug
support expenditures rely—is not authorized by

See White House Fact Sheet (Mar. 11, 2019),
https://www.whitehouse.gov/briefings-statements/presidentdonald-j-trump-promoting-fiscally-responsible-pro-american2020-budget/.
5

 19
§ 8005. See Sierra Club, 929 F.3d at 886-87; California, 963 F.3d at 944-49. And because the Ninth Circuit did not address petitioners’ CAA argument, the
Solicitor General’s petition for certiorari in Sierra
Club and California does not address it either.
This Court should grant certiorari before judgment so that it can resolve petitioners’ argument that
respondents’ border-wall expenditures violate the
CAA.6 As explained, this argument provides an independent basis on which to invalidate respondents’ expenditures that the Court will be unable to consider
in Sierra Club and California. If the Court grants certiorari in Sierra Club and California, it should hear
this case alongside them for the sake of efficiency and
certainty.
2. There is an additional reason why certiorari before judgment is warranted. In its petition for certiorari in Sierra Club and California, the Solicitor General’s threshold argument is that the plaintiffs fall
outside of § 8005’s zone of interests. U.S. Sierra Club
Pet. 18-29. Because petitioner El Paso County asserts
economic and budgetary interests, it falls within
§ 8005’s zone of interests even if the plaintiffs in Sierra Club and California do not. Thus, granting certiorari before judgment will ensure that the Court has
a proper vehicle before it to resolve the § 8005 issue.
a. The Solicitor General argues that the plaintiffs
in Sierra Club and California lack a cause of action
Petitioners have also argued, and will continue to argue, that
DoD’s transfer of funds between appropriations accounts is not
authorized by § 8005. But, unlike the Sierra Club and California
plaintiffs, petitioners do not rest exclusively on that argument.

6

 20
because they fall outside the zone of interests protected by § 8005 of the DoD Appropriations Act. U.S.
Sierra Club Pet. 18. Section 8005, the Solicitor General contends, protects Congress’s budgetary “interests in the appropriations process.” Id. at 21. And the
plaintiffs’ “recreational, aesthetic, environmental, scientific, [and] sovereign interests,” the Solicitor General maintains, are not within § 8005’s zone of interests. Id. at 20.
b. Even assuming arguendo that the Solicitor General’s argument was correct in Sierra Club and California, it would not govern here. On the contrary, El
Paso County’s distinct economic and budgetary interests easily fall within § 8005’s zone of interests. Because El Paso County argues (in addition to its CAA
argument elaborated above) that DoD’s transfer of
funds between appropriations accounts violates
§ 8005, granting this petition will ensure that the
Court has a proper vehicle to resolve the merits of this
§ 8005 argument.
The zone-of-interests test asks whether “[t]he interest [the plaintiff] asserts [is] arguably within the
zone of interests to be protected or regulated by the
statute that he says was violated.” Match-E-Be-NashShe-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209, 224 (2012) (internal quotation marks
omitted). It “forecloses suit only when a plaintiff’s interests are so marginally related to or inconsistent
with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to
permit the suit.” Id. at 225 (internal quotation marks
omitted). As these formulations show, the test turns
on the interests and harms alleged by the particular

 21
plaintiff at issue and “is not meant to be especially demanding.” Id. (internal quotation marks omitted); see
id. at 227-28 (holding that plaintiff’s “economic, environmental, [and] aesthetic” interests “c[a]me with
[the relevant provision’s] regulatory ambit”); White
Stallion Energy Ctr. v. EPA, 748 F.3d 1222, 1269
(D.C. Cir. 2014) (Kavanaugh, J., concurring in part
and dissenting in part) (under zone-of-interests test,
“suit should be allowed unless the [relevant provision]
evinces discernible congressional intent to preclude
review”).
In this case, petitioner El Paso County asserts economic and budgetary interests that are entirely distinct from the recreational, aesthetic, environmental,
scientific, and sovereign interests asserted by the Sierra Club and California plaintiffs. As the District
Court held, the County has “suffered concrete … economic injury” due to respondents’ wall construction.
App. 11a. A significant portion of that construction is
occurring just 15 miles from downtown El Paso, C.A.
ROA 918, and thereby harming the County’s regional
economy and tourism industry, id.; id. at 926-27
(County official stating that the construction is impeding the County’s “ability to compete for business
investment and tourism”). In turn, a reduction in
tourism and investment depresses tax revenues and
“significantly damage[s] the County’s financial
health.” Id. at 922-23 (declaration of County official).
The County’s economic and budgetary interests
are “arguably within the zone of interests” protected
by § 8005. Patchak, 567 U.S. at 224 (internal quotation marks omitted). Read most naturally, § 8005 pro-

 22
tects those who will be harmed by DoD’s transgression of congressionally imposed transfer limits. But
even accepting the Solicitor General’s characterization that § 8005 protects Congress’s budgetary interests, see U.S. Sierra Club Pet. 21, the County’s own
budgetary interests—in a consistent stream of tax
revenues and financial health—are substantially related to the interests § 8005 protects. Certainly, the
County’s budgetary interests cannot be considered “so
marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably
be assumed that Congress intended to permit the
suit.” Patchak, 567 U.S. at 225 (internal quotation
marks omitted).
To be sure, under the Solicitor General’s characterization, Congress, not the County, is § 8005’s intended beneficiary. U.S. Sierra Club Pet. 21 (§ 8005
“principally safeguards the interests of Congress”).
But that fact is “beside the point,” because the Court
“do[es] not require any ‘indication of congressional
purpose to benefit the would-be plaintiff.’” Patchak,
567 U.S. at 225 & n.7 (quoting Clarke v. Sec. Indus.
Ass’n, 479 U.S. 388, 399-400 (1987)); see Nat’l Credit
Union Admin. v. First Nat’l Bank & Trust Co., 522
U.S. 479, 492 (1998) (“we do not ask whether, in enacting the statutory provision at issue, Congress specifically intended to benefit the plaintiff”). “The question is not whether [§ 8005] seeks to benefit [the
County],” Patchak, 567 U.S. at 225 n.7, or whether it
requires DoD “to consider [the County’s interests] before transferring funds,” U.S. Sierra Club Pet. at 20.
The question is instead whether economic and budgetary interests arguably fall within § 8005’s compass.

 23
Because they do, and because the County is asserting
precisely those interests, the County may sue to enforce § 8005’s limits.
Thus, the County’s zone-of-interests theory is critically different from that of the plaintiffs in Sierra
Club and California. Rather than economic and
budgetary interests, those plaintiffs assert recreational, aesthetic, environmental, scientific, and sovereign interests. Indeed, both dissenting judges in the
Ninth Circuit suggested that economic interests may
be protected by § 8005 even if the plaintiffs’ interests
in Sierra Club and California are not. See California,
963 F.3d at 962 (Collins, J., dissenting); Sierra Club,
929 F.3d at 715 (N.R. Smith, J., dissenting) (“as a
budgetary statute regarding the transfer of funds
among DoD accounts, it arguably protects economic
interests”). This Court should grant certiorari before
judgment to ensure that at least one plaintiff falls
within § 8005’s zone of interests, thereby permitting
the Court to reach the merits of the § 8005 issue.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari before judgment should be granted.

 24
Respectfully submitted,
Anton Metlitsky
Counsel of Record
Bradley N. Garcia
Ephraim McDowell
O’MELVENY & MYERS LLP
Seven Times Square
New York, N.Y. 10036
(212) 326-2000
ametlisky@omm.com
Stuart Gerson
EPSTEIN BECKER GREEN
1227 25th St., NW
Washington, DC 20037
(202) 861-4180
sgerson@egblaw.com
Laurence H. Tribe
Carl M. Loeb University
Professor Emeritus
HARVARD LAW SCHOOL*
1575 Massachusetts Ave.
Cambridge, MA 02138
(617) 495-1767
tribe@law.harvard.edu
*University affiliation for
identification purposes only

September 2, 2020

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