Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 1 of 21
U.S. District Court [LIVE] Western District of Texas (El Paso) CIVIL DOCKET FOR CASE #: 3:19−cv−00066−DB

APPEAL

El Paso County, Texas et al v. Trump et al Assigned to: Judge David Briones Case in other court: 5th Circuit Court of Appeals, USCA#
19−51144 Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 02/20/2019 Date Terminated: 12/10/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

El Paso County, Texas

represented by Anton Metlitsky O'Melveny & Myers LLP Times Square Tower 7 Times Square New York, NY 10036 212−326−2291 Fax: 212−326−2061 Email: ametlitsky@omm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Bookbinder Niskanen Center 820 First Street, NE Washington, DC 20002 301−751−0611 Fax: 929−777−8428 Email: dbookbinder@niskanencenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deana K. El−Mallawany Protect Democracy Project, Inc. 10 Ware Street Cambridge, MA 02138 202−579−4582 Fax: 929−777−8428 Email: deana.elmallawany@protectdemocracy.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ephraim A. McDowell O'Melveny & Myers LLP 1625 Eye Street, NW Washington, DC 20006 202−383−5102 Fax: 202−383−5414 Email: emcdowell@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erica Newland Protect Democracy Project, Inc. 2020 Pennsylvania Ave., NW, #163 Washington, DC 20006 202−579−4582 Fax: 929−777−8428 Email: erica.newland@protectdemocracy.org

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LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Florence Protect Democracy Project, Inc. 2020 Pennsylvania Ave., NW, #163 Washington, DC 20006 202−579−4582 Fax: 929−777−8428 Email: justin.florence@protectdemocracy.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristy Parker Protect Democracy Project, Inc. 2020 Pennsylvania Ave., NW, #163 Washington, DC 20006 202−579−4582 Fax: 929−777−8428 Email: kristy.parker@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe Law Office 1575 Massachusetts Avenue Cambridge, MA 02138 617−495−1767 Fax: 617−496−4947 Email: tribe@law.harvard.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Dollan Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019−6099 212−728−8583 Fax: 212−728−9583 Email: mdollan@willkie.com TERMINATED: 05/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Mancino Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019−6099 212−728−8243 Fax: 212−728−9243 Email: rmancino@willkie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samantha G. Prince Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019−6099 212−728−8909 Fax: 212−728−9909

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Plaintiff Border Network for Human Rights

Email: sprince@willkie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shaimaa Hussein Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019−6099 212−728−8638 Fax: 212−728−9638 Email: mao@willkie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Llanes Protect Democracy Project, Inc. 222 Broadway, 19th Floor New York, NY 10038 202−579−4582 Fax: 929−777−8428 Email: stephanie.llanes@protectdemocracy.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stuart M. Gerson Epstein Becker & Green, P.C. 1227 25th Street, NW, Suite 700 Washington, DC 20037 202−861−4180 Fax: 202−861−3540 Email: sgerson@ebglaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John Charles Padalino The Law Office of John Padalino 401 Congress Avenue, Suite 1540 Austin, TX 78701 512−596−2944 Fax: 512−596−2944 Email: john@padalinolaw.com ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Bookbinder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 4 of 21
Ephraim A. McDowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica Newland (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Florence (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristy Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Dollan (See above for address) TERMINATED: 05/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Mancino (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samantha G. Prince (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shaimaa Hussein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Llanes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stuart M. Gerson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John Charles Padalino

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(See above for address) ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump In his official capacity as President of the United States of America
Defendant Patrick M. Shanahan In his official capacity as Acting Secretary of Defense
Defendant Kirstjen M. Nielsen In her official capacity as Secretary of Homeland Security

represented by Andrew Irwin Warden U.S. Department of Justice 1100 L St. NW Washington, DC 20005 202−616−5084 Email: andrew.warden@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham U.S. Department of Justice 950 Pennsylvania Ave., NW, Room 3131 Washington, DC 20530 202−353−2793 Email: james.m.burnham@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Joseph Gerardi U.S. Dept of Justice, Civil Division, Fed. Programs Branch 1100 L St. NW, No. 12212 Washington, DC 20005 202−616−0680 Email: michael.j.gerardi@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Joseph Gerardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Joseph Gerardi

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 6 of 21

Defendant David Bernhardt In his official capacity as Acting Secretary of the Interior
Defendant Steven T Mnuchin In his official capacity as Secretary of the Treasury
Defendant William Barr U.S. Attorney General
Defendant John F. Bash

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Joseph Gerardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Joseph Gerardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Joseph Gerardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Joseph Gerardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 7 of 21

Defendant Todd T. Semonite In his official capacity as Commanding General United States Army Corps of Engineers
Amicus Ray Elbert Parker
Amicus Brennan Center for Justice
Amicus Iraq and Afghanistan Veterans of America
Amicus Former Republican and Democratic Members of Congress
Amicus Former Republican Members of Congress

represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Joseph Gerardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ray Elbert Parker 5021 Seminary Road, Ste. 725 Alexandria, VA 22311 702−328−1015 PRO SE
represented by Elizabeth Goitein Brennan Center for Justice at NYU Law 1140 Connecticut Ave. NW, Ste. 1150 Washington, DC 20036 202−249−7192 Email: goiteine@brennan.law.nyu.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Clark Willis Richards Richards Rodriguez & Skeith LLP 816 Congress Avenue, Suite 1200 Austin, TX 78701 (512)476−0005 Fax: (512)476−1513 Email: crichards@rrsfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by E. Christopher Beeler Arnold & Porter Kaye Scholer LLP 777 S. Figueroa Street 44th Floor Los Angeles, CA 90017 213−243−4079 Email: chris.beeler@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles E. Fowler McKool Smith 300 W. 6th Street Suite 1700 Austin, TX 78701

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Amicus Project on Government Oversight
Amicus Christopher Shays
Amicus Christine Todd Whitman
Amicus Peter Keisler

512−692−8722 Fax: 512−692−8744 Email: cfowler@mckoolsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Max Renea Hicks Law Office of Max Renea Hicks P. O. Box 303187 Austin, TX 78703 (512) 480−8231 Email: rhicks@renea−hicks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Bernstein Law Office 1875 K Street, NW Washington, DC 20006 301−775−2064 Email: rbernsteinlaw@gmail.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Bernstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Bernstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Bernstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 9 of 21

Amicus Carter Phillips
Amicus John Bellinger, III
Amicus Samuel Witten
Amicus Samuel Twardy
Amicus 49 Religious Organizations

represented by Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Bernstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Bernstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Bernstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Bernstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adeel A. Mangi Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212−336−2000 Email: aamangi@pbwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela M. Liu Dechert LLP 35 West Wacker Dr., Suite 3400 Chicago, IL 60601

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Amicus Andy Barr

312−646−5800 Fax: 312−646−5858 Email: angela.liu@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Abraham Dechert LLP 300 W. Sixth St., Ste 2010 Austin, TX 78701 512−394−3004 Fax: 512−394−3001 Email: joseph.abraham@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mohammed A. Badat Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212−336−2000 Email: abadat@pbwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Zalesin Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas NewYork, NY 10036 212−336−2000 Email: sazalesin@pbwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Roger Borgelt Borgelt Law 614 S. Capital of Texas Hwy. Austin, TX 78746 (512) 600−3467 Email: roger@borgeltlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/20/2019
02/20/2019 02/20/2019 02/20/2019 02/20/2019 02/20/2019

# Docket Text
1 COMPLAINT Emergency Powers ( Filing fee $ 400 receipt number 0542−11788257), filed by El Paso County, Texas, Border Network for Human Rights. (Attachments: # 1 Civil Cover Sheet, # 2 Corporate Disclosure)(Padalino, John) (Entered: 02/20/2019)
2 REQUEST FOR ISSUANCE OF SUMMONS by Border Network for Human Rights, El Paso County, Texas. Trump (Padalino, John) (Entered: 02/20/2019)
3 REQUEST FOR ISSUANCE OF SUMMONS by Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/20/2019)
4 REQUEST FOR ISSUANCE OF SUMMONS by Border Network for Human Rights, El Paso County, Texas. Nielsen (Padalino, John) (Entered: 02/20/2019)
5 REQUEST FOR ISSUANCE OF SUMMONS by Border Network for Human Rights, El Paso County, Texas. Bernhardt (Padalino, John) (Entered: 02/20/2019)
6 REQUEST FOR ISSUANCE OF SUMMONS by Border Network for Human Rights, El Paso County, Texas. Mnuchin (Padalino, John) (Entered: 02/20/2019)

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02/20/2019 02/20/2019 02/20/2019
02/20/2019 02/21/2019 02/22/2019 02/25/2019 02/25/2019 02/25/2019 02/25/2019 02/25/2019 02/25/2019 02/25/2019 02/25/2019 02/25/2019 02/25/2019 02/25/2019 02/26/2019

7 REQUEST FOR ISSUANCE OF SUMMONS by Border Network for Human Rights, El Paso County, Texas. AG (Padalino, John) (Entered: 02/20/2019)
8 REQUEST FOR ISSUANCE OF SUMMONS by Border Network for Human Rights, El Paso County, Texas. US Atty (Padalino, John) (Entered: 02/20/2019)
Case assigned to Judge David Briones. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (mn) (Entered: 02/21/2019)
If ordered by the court, all referrals will be assigned to Magistrate Judge Berton (mn) (Entered: 02/21/2019)
9 Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General (mn) (Entered: 02/21/2019)
10 Letter regarding pro hac vice appearance. Mailed to counsel.(lc3) (Entered: 02/22/2019)
11 MOTION to Appear Pro Hac Vice by John Charles Padalino Richard Mancino ( Filing fee $ 100 receipt number 0542−11805742) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
12 MOTION to Appear Pro Hac Vice by John Charles Padalino Shaimaa Hussein ( Filing fee $ 100 receipt number 0542−11805806) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
13 MOTION to Appear Pro Hac Vice by John Charles Padalino Matthew Dollan ( Filing fee $ 100 receipt number 0542−11805835) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
14 MOTION to Appear Pro Hac Vice by John Charles Padalino Samantha Prince ( Filing fee $ 100 receipt number 0542−11805864) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
15 MOTION to Appear Pro Hac Vice by John Charles Padalino David Bookbinder ( Filing fee $ 100 receipt number 0542−11805959) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
16 MOTION to Appear Pro Hac Vice by John Charles Padalino Deana El−Mallawany ( Filing fee $ 100 receipt number 0542−11806045) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
17 MOTION to Appear Pro Hac Vice by John Charles Padalino Justin Florence ( Filing fee $ 100 receipt number 0542−11806086) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
18 MOTION to Appear Pro Hac Vice by John Charles Padalino Stuart Gerson ( Filing fee $ 100 receipt number 0542−11806123) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
19 MOTION to Appear Pro Hac Vice by John Charles Padalino Eric Newland ( Filing fee $ 100 receipt number 0542−11806173) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
20 MOTION to Appear Pro Hac Vice by John Charles Padalino Kristy Parker ( Filing fee $ 100 receipt number 0542−11806221) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
21 MOTION to Appear Pro Hac Vice by John Charles Padalino Laurence Tribe ( Filing fee $ 100 receipt number 0542−11806275) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 02/25/2019)
22 ORDER GRANTING 17 Motion to Appear Pro Hac Vice for Attorney Justin Florence for Border Network for Human Rights,Justin Florence for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)

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02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019

23 ORDER GRANTING 21 Motion to Appear Pro Hac Vice for Attorney Laurence H. Tribe for Border Network for Human Rights,Laurence H. Tribe for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
24 ORDER GRANTING 20 Motion to Appear Pro Hac Vice for Attorney Kristy Parker for Border Network for Human Rights,Kristy Parker for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
25 ORDER GRANTING 19 Motion to Appear Pro Hac Vice for Attorney Erica Newland for Border Network for Human Rights,Erica Newland for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
26 ORDER GRANTING 18 Motion to Appear Pro Hac Vice for Attorney Stuart M. Gerson for Border Network for Human Rights,Stuart M. Gerson for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
27 ORDER GRANTING 14 Motion to Appear Pro Hac Vice for Attorney Samantha G. Prince for Border Network for Human Rights,Samantha G. Prince for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
28 ORDER GRANTING 13 Motion to Appear Pro Hac Vice for Attorney Matthew Dollan for Border Network for Human Rights,Matthew Dollan for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
29 ORDER GRANTING 12 Motion to Appear Pro Hac Vice for Attorney Shaimaa Hussein for Border Network for Human Rights,Shaimaa Hussein for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
30 ORDER GRANTING 11 Motion to Appear Pro Hac Vice for Attorney Richard Mancino for Border Network for Human Rights,Richard Mancino for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
31 ORDER GRANTING 16 Motion to Appear Pro Hac Vice for Attorney Deana K. El−Mallawany for Border Network for Human Rights,Deana K. El−Mallawany for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
32 ORDER GRANTING 15 Motion to Appear Pro Hac Vice for Attorney David Bookbinder for Border Network for Human Rights,David Bookbinder for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register

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03/08/2019 03/08/2019 03/08/2019 03/08/2019 03/08/2019 03/08/2019 03/08/2019 03/08/2019 03/08/2019 03/08/2019 03/08/2019 03/12/2019
04/09/2019
04/09/2019 04/10/2019

for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 02/27/2019)
33 MOTION to Appear Pro Hac Vice by John Charles Padalino Stephanie Llanes ( Filing fee $ 100 receipt number 0542−11856092) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 03/08/2019)
34 SUMMONS Returned Executed by El Paso County, Texas, Border Network for Human Rights. William Barr served on 3/7/2019, answer due 3/28/2019. (Padalino, John) (Entered: 03/08/2019)
35 SUMMONS Returned Executed by Border Network for Human Rights, El Paso County, Texas. David Bernhardt served on 3/5/2019, answer due 3/26/2019. (Padalino, John) (Entered: 03/08/2019)
36 SUMMONS Returned Executed by Border Network for Human Rights, El Paso County, Texas. Steven T Mnuchin served on 2/25/2019, answer due 3/18/2019. (Padalino, John) (Entered: 03/08/2019)
37 SUMMONS Returned Executed by Border Network for Human Rights, El Paso County, Texas. Kirstjen M. Nielsen served on 2/25/2019, answer due 3/18/2019. (Padalino, John) (Entered: 03/08/2019)
38 SUMMONS Returned Executed by Border Network for Human Rights, El Paso County, Texas. Patrick M. Shanahan served on 2/25/2019, answer due 3/18/2019. (Padalino, John) (Entered: 03/08/2019)
39 SUMMONS Returned Executed by Border Network for Human Rights, El Paso County, Texas. Donald J. Trump served on 2/25/2019, answer due 3/18/2019. (Padalino, John) (Entered: 03/08/2019)
40 SUMMONS Returned Executed by Border Network for Human Rights, El Paso County, Texas. John F. Bash served on 3/1/2019, answer due 4/30/2019. (Padalino, John) (Entered: 03/08/2019)
41 MOTION for Leave to File Amicus Brief by Ray Elbert Parker. (lc3) (Additional attachment(s) added on 3/11/2019: # 1 Brief) (lc3). (Entered: 03/11/2019)
42 Memorandum in Support of 41 MOTION for Leave to File Amicus Brief by Ray Elbert Parker.(lc3) (Entered: 03/11/2019)
43 NOTICE of Filing Notice of Hearing (lc3) (Entered: 03/11/2019)
44 ORDER GRANTING 33 Motion to Appear Pro Hac Vice for Attorney Stephanie Llanes for Border Network for Human Rights,Stephanie Llanes for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 03/13/2019)
45 NOTICE of Attorney Appearance by Michael Joseph Gerardi on behalf of William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. Attorney Michael Joseph Gerardi added to party William Barr(pty:dft), Attorney Michael Joseph Gerardi added to party John F. Bash(pty:dft), Attorney Michael Joseph Gerardi added to party David Bernhardt(pty:dft), Attorney Michael Joseph Gerardi added to party Steven T Mnuchin(pty:dft), Attorney Michael Joseph Gerardi added to party Kirstjen M. Nielsen(pty:dft), Attorney Michael Joseph Gerardi added to party Patrick M. Shanahan(pty:dft), Attorney Michael Joseph Gerardi added to party Donald J. Trump(pty:dft) (Gerardi, Michael) (Entered: 04/09/2019)
46 Unopposed MOTION for Leave to File Motion to Dismiss in Excess of Page Limits and to Set Briefing Schedule by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Proposed Order)(Gerardi, Michael) (Entered: 04/09/2019)
47 NOTICE of Attorney Appearance by Andrew Irwin Warden on behalf of William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. Attorney Andrew Irwin Warden added to party

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04/10/2019 04/23/2019 04/23/2019 04/24/2019 04/25/2019 04/25/2019
04/25/2019 04/25/2019
04/30/2019 04/30/2019 05/01/2019
05/01/2019

William Barr(pty:dft), Attorney Andrew Irwin Warden added to party John F. Bash(pty:dft), Attorney Andrew Irwin Warden added to party David Bernhardt(pty:dft), Attorney Andrew Irwin Warden added to party Steven T Mnuchin(pty:dft), Attorney Andrew Irwin Warden added to party Kirstjen M. Nielsen(pty:dft), Attorney Andrew Irwin Warden added to party Patrick M. Shanahan(pty:dft), Attorney Andrew Irwin Warden added to party Donald J. Trump(pty:dft) (Warden, Andrew) (Entered: 04/10/2019)
48 ORDER GRANTING 46 Motion for Leave to File Signed by Judge David Briones. (lc3) (Entered: 04/10/2019)
49 Scheduling Recommendations/Proposed Scheduling Order by Border Network for Human Rights, El Paso County, Texas. (Attachments: # 1 Proposed Order)(El−Mallawany, Deana) (Entered: 04/23/2019)
50 MOTION to Appear Pro Hac Vice ( Filing fee $ 100 receipt number 30033945) by Ray Elliot Parker. (Attachments: # 1 payment)(lc3) (Entered: 04/24/2019)
51 SCHEDULING ORDER:. Signed by Judge David Briones. (lc3) (Entered: 04/24/2019)
52 AMENDED COMPLAINT against David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump, Todd T. Semonite amending, filed by Border Network for Human Rights, El Paso County, Texas.(Mancino, Richard) (Entered: 04/25/2019)
53 ORDER GRANTING 50 Motion to Appear Pro Hac Vice for Attorney Elizabeth Goitein for Ray Elliot Parker. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 04/25/2019)
54 MOTION for Summary Judgment or, in the alternative, a Preliminary Injunction by Border Network for Human Rights, El Paso County, Texas. (Mancino, Richard) (Entered: 04/25/2019)
55 AFFIDAVIT in Support of 54 MOTION for Summary Judgment or, in the alternative, a Preliminary Injunction (Declaration of Richard Mancino) by Border Network for Human Rights, El Paso County, Texas. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28)(Mancino, Richard) (Entered: 04/25/2019)
56 MOTION to Appear Pro Hac Vice by John Charles Padalino ( Filing fee $ 100 receipt number 0542−12057334) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 04/30/2019)
57 MOTION to Appear Pro Hac Vice by John Charles Padalino ( Filing fee $ 100 receipt number 0542−12057397) by on behalf of Border Network for Human Rights, El Paso County, Texas. (Padalino, John) (Entered: 04/30/2019)
58 ORDER GRANTING 57 Motion to Appear Pro Hac Vice for Attorney Anton Metlitsky for Border Network for Human Rights,Anton Metlitsky for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 05/01/2019)
59 ORDER GRANTING 56 Motion to Appear Pro Hac Vice for Attorney Ephraim A. McDowell for Border Network for Human Rights,Ephraim A. McDowell for El Paso County, Texas. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 05/01/2019)

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 15 of 21

05/02/2019 05/03/2019 05/03/2019 05/03/2019 05/08/2019 05/09/2019 05/09/2019 05/09/2019 05/16/2019 05/16/2019
05/16/2019 05/17/2019 05/17/2019 05/17/2019 05/17/2019 05/17/2019 05/21/2019
05/21/2019

60 MOTION for Leave to File Amicus Brief by Elizabeth Goitein. by Brennan Center for Justice. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Goitein, Elizabeth) (Entered: 05/02/2019)
61 Unopposed MOTION for Leave to File Amicus Brief by Clark Richards. by Iraq and Afghanistan Veterans of America. (Attachments: # 1 Brief, # 2 Proposed Order)(Richards, Clark) (Entered: 05/03/2019)
62 ORDER GRANTING 60 Motion for Leave to File Amicus Brief Signed by Judge David Briones. (lc3) (Entered: 05/03/2019)
63 BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMAYR JUDGMENT by Brennan Center for Justice. (lc3) (Entered: 05/03/2019)
64 MOTION to Withdraw as Attorney by Border Network for Human Rights, El Paso County, Texas. (Attachments: # 1 Proposed Order)(Dollan, Matthew) (Entered: 05/08/2019)
65 ORDER GRANTING 61 Motion for Leave to File Amicus Brief by Iraq and Afghanistan Veterans of America, Signed by Judge David Briones. (mt) (Entered: 05/09/2019)
66 ORDER GRANTING 64 Motion to Withdraw as Attorney as counsel for Plaintiffs El Paso County, Texas, and Border Network for Human Rights, Signed by Judge David Briones. (mt) (Entered: 05/09/2019)
67 BRIEF of Iraq and Afghanistan Veterans of America as AMICUS BRIEF (mt) (Entered: 05/09/2019)
68 MOTION for Leave to File Amicus Brief by Charles E. Fowler. by Former Republican Members of Congress. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Fowler, Charles) (Entered: 05/16/2019)
69 Consent MOTION for Leave to File Amicus Brief by E. Christopher Beeler. by Former Republican Members of Congress. (Attachments: # 1 Brief of Former Members of Congress as Amici Curiae ISO Plaintiffs' MSJ or in the Alternative A Preliminary Injunction, # 2 Proposed Order Granting Consent Motion)(Beeler, E.) (Entered: 05/16/2019)
70 REQUEST FOR ISSUANCE OF SUMMONS by Border Network for Human Rights, El Paso County, Texas. Semonite (Padalino, John) (Entered: 05/16/2019)
71 ORDER GRANTING 68 Motion for Leave to File Amicus Brief Signed by Judge David Briones. (mm1) Modified on 5/17/2019 (mm1). (Entered: 05/17/2019)
72 ORDER GRANTING 69 Motion for Leave to File Brief of Former Members of Congress as Amici Curiae Signed by Judge David Briones. (mm1) (Entered: 05/17/2019)
73 BRIEF regarding 54 MOTION for Summary Judgment or, in the alternative, a Preliminary Injunction by Former Republican and Democratic Members of Congress. (mm1) (Entered: 05/17/2019)
74 AMICUS BRIEF by Former Republican and Democratic Members of Congress. (mm1) (Entered: 05/17/2019)
75 Summons Issued as to Todd T. Semonite. (mm1) (Entered: 05/17/2019)
76 Unopposed MOTION for Leave to File Amicus Brief by Renea Hicks. by Amici Project on Government Oversight, Christopher Shays, Christine Todd Whitman, Peter Keisler, Carter Phillips, John Bellinger, III, Samuel Witten, Samuel Twardy, Richard Bernstein. (Attachments: # 1 Brief Amicus Brief with Appendices A,B,C, # 2 Proposed Order)(Hicks, Max) (Entered: 05/21/2019)
77 MOTION to Appear Pro Hac Vice by Max Renea Hicks on Behalf of Richard D. Bernstein ( Filing fee $ 100 receipt number 0542−12138154) by on behalf of Amici Project on Government Oversight, John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Samuel Twardy, Christine Todd Whitman, Samuel Witten. (Attachments: # 1 Proposed Order)(Hicks, Max) (Entered: 05/21/2019)

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 16 of 21

05/22/2019 05/22/2019 05/22/2019
05/23/2019 05/23/2019 05/23/2019 05/23/2019 05/23/2019 05/23/2019 05/23/2019 05/24/2019 05/24/2019 05/24/2019
05/24/2019
05/24/2019
05/24/2019

78 ORDER GRANTING 76 Motion for Leave to File Amicus Brief Signed by Judge David Briones. (lc3) (Entered: 05/22/2019)
79 BRIEF by Peter Keisler, Carter Phillips, Project on Government Oversight, Christopher Shays, Samuel Twardy, Christine Todd Whitman, Samuel Witten. (lc3) (Entered: 05/22/2019)
80 ORDER GRANTING 77 Motion to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 05/22/2019)
81 Consent MOTION for Leave to File Amicus Brief by Joseph M. Abraham. by 49 Religious Organizations. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Abraham, Joseph) (Entered: 05/23/2019)
82 MOTION to Appear Pro Hac Vice by Joseph M. Abraham on Behalf of Mohammed A. Badat ( Filing fee $ 100 receipt number 0542−12149143) by on behalf of 49 Religious Organizations. (Attachments: # 1 Proposed Order)(Abraham, Joseph) (Entered: 05/23/2019)
83 MOTION to Appear Pro Hac Vice by Joseph M. Abraham on Behalf of Angela M. Liu ( Filing fee $ 100 receipt number 0542−12149251) by on behalf of 49 Religious Organizations. (Attachments: # 1 Proposed Order)(Abraham, Joseph) (Entered: 05/23/2019)
84 MOTION to Appear Pro Hac Vice by Joseph M. Abraham on Behalf of Adeel A. Mangi ( Filing fee $ 100 receipt number 0542−12149295) by on behalf of 49 Religious Organizations. (Attachments: # 1 Proposed Order)(Abraham, Joseph) (Entered: 05/23/2019)
85 MOTION to Appear Pro Hac Vice by Joseph M. Abraham on Behalf of Steven A. Zalesin ( Filing fee $ 100 receipt number 0542−12149315) by on behalf of 49 Religious Organizations. (Attachments: # 1 Proposed Order)(Abraham, Joseph) (Entered: 05/23/2019)
86 ORDER GRANTING 41 Motion for Leave to File Amicus Brief by Ray Elbert Parker, Signed by Judge David Briones. (mt) (Entered: 05/23/2019)
87 Amicus BRIEF in Support of Defendant Donald J. Trump, President of the United States of America by Ray Elbert Parker. (mt) (Entered: 05/23/2019)
88 ORDER GRANTING 81 Motion for Leave to File Amicus Brief Signed by Judge David Briones. (lc3) (Entered: 05/24/2019)
89 BRIEF by 49 Religious Organizations. (lc3) (Entered: 05/24/2019)
90 ORDER GRANTING 83 Motion to Appear Pro Hac Vice for Attorney Angela M. Liu for 49 Religious Organizations. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 05/24/2019)
91 ORDER GRANTING 85 Motion to Appear Pro Hac Vice for Attorney Steven A. Zalesin for 49 Religious Organizations. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 05/24/2019)
92 ORDER GRANTING 84 Motion to Appear Pro Hac Vice for Attorney Adeel A. Mangi for 49 Religious Organizations. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 05/24/2019)
93 ORDER GRANTING 82 Motion to Appear Pro Hac Vice for Attorney Mohammed A. Badat for 49 Religious Organizations. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 17 of 21

06/04/2019 06/10/2019
06/24/2019 06/25/2019 06/25/2019 06/25/2019 06/26/2019 07/10/2019
07/17/2019 07/19/2019 07/19/2019 07/22/2019 07/31/2019
08/08/2019

in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge David Briones. (lc3) (Entered: 05/24/2019)
94 NOTICE of Attorney Appearance by Joseph M. Abraham on behalf of 49 Religious Organizations. Attorney Joseph M. Abraham added to party 49 Religious Organizations(pty:am) (Abraham, Joseph) (Entered: 06/04/2019)
95 Cross MOTION for Summary Judgment , MOTION to Dismiss and Opposition to Plaintiffs' Motion for Summary Judgment and a Preliminary Injunction by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Proposed Order)(Gerardi, Michael) (Entered: 06/10/2019)
96 MOTION for Extension of Time to File Attorney Elizabeth Goitein's Application for Admission to the Western District of Texas by Brennan Center for Justice. (Attachments: # 1 Proposed Order)(Goitein, Elizabeth) (Entered: 06/24/2019)
97 MOTION for Leave to File Amicus Brief by Roger Borgelt. by Andy Barr. (Borgelt, Roger) (Entered: 06/25/2019)
98 BRIEF regarding 97 MOTION for Leave to File Amicus Brief by Roger Borgelt. by Andy Barr. (Borgelt, Roger) (Entered: 06/25/2019)
99 ORDER GRANTING 96 Motion for Extension of Time to File Signed by Judge David Briones. (lc3) (Entered: 06/25/2019)
100 ORDER GRANTING 97 Motion for Leave to File Amicus Brief Signed by Judge David Briones. (mv) (Entered: 06/26/2019)
101 REPLY to Response to Motion, filed by Border Network for Human Rights, El Paso County, Texas, re 54 MOTION for Summary Judgment or, in the alternative, a Preliminary Injunction filed by Plaintiff Border Network for Human Rights, Plaintiff El Paso County, Texas, 95 Cross MOTION for Summary Judgment MOTION to Dismiss and Opposition to Plaintiffs' Motion for Summary Judgment and a Preliminary Injunction filed by Defendant William Barr, Defendant Todd T. Semonite, Defendant John F. Bash, Defendant David Bernhardt, Defendant Steven T Mnuchin, Defendant Kirstjen M. Nielsen, Defendant Patrick M. Shanahan, Defendant Donald J. Trump (Plaintiffs' Reply Memorandum In Support Of Motion For Summary Judgment Or, In The Alternative, A Preliminary Injunction, And Opposition To The Government's Cross−Motion To Dismiss Or Summary Judgment) (Metlitsky, Anton) (Entered: 07/10/2019)
102 Unopposed MOTION for Hearing and Expeditious Ruling by Border Network for Human Rights, El Paso County, Texas. (Attachments: # 1 Proposed Order on Plaintiffs' Motion for Oral Argument and Expeditious Ruling)(Parker, Kristy) (Entered: 07/17/2019)
103 ORDER GRANTING 102 Motion for Hearing Oral Argument Hearing set for 8/29/2019 10:30 AM before Judge David Briones, Signed by Judge David Briones. (mn) (Entered: 07/19/2019)
104 FEDEX Mailing of 103 Order on Motion for Hearing (dc) (Entered: 07/19/2019)
105 FEDEX Mail Receipt of 104 Certified Mailing (dc) (Entered: 07/23/2019)
106 REPLY to Response to Motion, filed by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump, re 95 Cross MOTION for Summary Judgment MOTION to Dismiss and Opposition to Plaintiffs' Motion for Summary Judgment and a Preliminary Injunction filed by Defendant William Barr, Defendant Todd T. Semonite, Defendant John F. Bash, Defendant David Bernhardt, Defendant Steven T Mnuchin, Defendant Kirstjen M. Nielsen, Defendant Patrick M. Shanahan, Defendant Donald J. Trump (Gerardi, Michael) (Entered: 07/31/2019)
107 ORDER re 102 Unopposed MOTION for Hearing and Expeditious Ruling filed by Border Network for Human Rights, El Paso County, Texas. Signed by Judge David

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 18 of 21

08/21/2019 08/27/2019 08/29/2019 09/03/2019 09/03/2019 09/04/2019 09/05/2019 09/06/2019
09/09/2019 09/09/2019
09/10/2019

Briones. (lc3) (Entered: 08/08/2019)
108 NOTICE of Attorney Appearance by James Mahoney Burnham on behalf of William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Burnham, James) (Entered: 08/21/2019)
109 NOTICE of Decision by the Department of Defense to Authorize Additional Border Barrier Projects Pursuant to 10 USC 284 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Gerardi, Michael) (Entered: 08/27/2019)
110 Minute Entry for proceedings held before Judge David Briones: Miscellaneous Hearing held on 8/29/2019 (Minute entry documents are not available electronically.). (Court Reporter M S Briggs.)(lc3) (Entered: 08/29/2019)
111 TRANSCRIPT REQUEST by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump for proceedings held on August 29. Proceedings Transcribed: Summary Judgment Hearing.. (Warden, Andrew) (Entered: 09/03/2019)
112 NOTICE of Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. s 2808 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Gerardi, Michael) (Entered: 09/03/2019)
113 TRANSCRIPT REQUEST by El Paso County, Texas for proceedings held on 8/29/19. Proceedings Transcribed: Hearing on Motion for Summary Judgment. Court Reporter: Maria Briggs. (Parker, Kristy) (Entered: 09/04/2019)
114 NOTICE (Supplemental) of Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. s 2808 by David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit 1)(Gerardi, Michael) (Entered: 09/05/2019)
115 Transcript filed of Proceedings held on 8−29−19, Proceedings Transcribed: Oral Argument. Court Reporter/Transcriber: Maria S. Briggs, Telephone number: 915−834−0568. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 9/27/2019, Redacted Transcript Deadline set for 10/7/2019, Release of Transcript Restriction set for 12/5/2019, (mb) (Entered: 09/06/2019)
116 Unopposed MOTION for Leave to File Supplemental Brief In Support Of Motion For Summary Judgment by Border Network for Human Rights, El Paso County, Texas. (Attachments: # 1 Exhibit A − Proposed Supplemental Brief, # 2 Proposed Order)(Metlitsky, Anton) (Entered: 09/09/2019)
117 MOTION to Extend Time to File Supplemental Briefing Regarding the Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Proposed Order)(Gerardi, Michael) Modified on 9/10/2019 (lc3). (Entered: 09/09/2019)
118 Response in Opposition to Motion, filed by Border Network for Human Rights, El Paso County, Texas, re 117 MOTION for Leave to File Supplemental Briefing Regarding the Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808 filed by Defendant William Barr, Defendant Todd T. Semonite, Defendant John F. Bash, Defendant David Bernhardt, Defendant Steven T Mnuchin, Defendant Kirstjen M. Nielsen, Defendant Patrick M. Shanahan, Defendant Donald J. Trump (Metlitsky, Anton) (Entered: 09/10/2019)

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 19 of 21

09/10/2019 09/10/2019 09/11/2019
09/11/2019 09/13/2019 09/16/2019 09/20/2019 09/20/2019 09/24/2019 09/30/2019 10/11/2019
10/21/2019

119 ORDER GRANTING 116 Plaintiff's Motion for Leave to Supp Briefing Signed by Judge David Briones. (lc3) (Entered: 09/10/2019)
120 Plaintiffs Supplemental Brief re: section 2808 as to Border Network for Human Rights. (mv) (Entered: 09/11/2019)
121 REPLY to Response to Motion, filed by William Barr, John F. Bash, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump, re 117 MOTION for Leave to File Supplemental Briefing Regarding the Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808 filed by Defendant William Barr, Defendant Todd T. Semonite, Defendant John F. Bash, Defendant David Bernhardt, Defendant Steven T Mnuchin, Defendant Kirstjen M. Nielsen, Defendant Patrick M. Shanahan, Defendant Donald J. Trump (Gerardi, Michael) (Entered: 09/11/2019)
122 ORDER DENYING 117 Motion for Leave to File Supplemental Briefing Regarding the Decision by the Department of Defense to Authorize Border Barrier Projects Signed by Judge David Briones. (lc3) (Entered: 09/11/2019)
123 NOTICE of Filing of Administrative Record For Section 2808 Border Barrier Projects by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit Certification, # 2 Exhibit 2808 Administrative Record)(Warden, Andrew) (Entered: 09/13/2019)
124 NOTICE Supplemental Notice Regarding Decision by the Department of Defense to Authorize Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump re 109 Notice (Other), (Attachments: # 1 Exhibit)(Warden, Andrew) (Entered: 09/16/2019)
125 NOTICE of Supplemental Authority by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 GAO Opinion B−330862)(Gerardi, Michael) (Entered: 09/20/2019)
126 SUPPLEMENTAL MEMORANDUM ADDRESSING BORDER BARRIER CONSTRUCTION PURSUANT TO 10 U.S.C. s 2808 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Gerardi, Michael) (Entered: 09/20/2019)
127 SUPPLEMENTAL MEMORANDUM (Supplemental Reply Brief In Light Of Notice Of Decision By The Department Of Defense To Authorize Border Barrier Projects Pursuant To 10 U.S.C. Sec. 2808) by Border Network for Human Rights, El Paso County, Texas. (Metlitsky, Anton) (Entered: 09/24/2019)
128 NOTICE Regarding Funding of Border Barrier Projects Pursuant to 10 U.S.C. § 284 in Fiscal Year 2020 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit)(Warden, Andrew) (Entered: 09/30/2019)
129 MEMORANDUM OPINION AND ORDER GRANTING 54 Motion for Summary Judgment; DENYING 95 Motion for Summary Judgment; DENYING 95 Motion to Dismiss. IT IS FINALLY ORDERED that Plaintiffs El Paso County, Texas, and Border Network for Human Right shall FILE A PROPOSED PRELIMINARY INJUNCTION specifying the scope of said injunction WITHIN TEN DAYS OF THIS MEMORANDUM OPINION and then Defendants Donald J. Trump, Patrick M. Shanahan, Kirstjen M. Nielsen, David Bernhardt, Steven T. Mnuchin, William Barr, John F. Bash, and Todd T. Semonite will be given an opportunity to RESPOND WITHIN FIVE DAYS. Signed by Judge David Briones. (mv) (Entered: 10/11/2019)
130 SUPPLEMENTAL MEMORANDUM / Supplemental Brief Addressing Scope of Remedy by Border Network for Human Rights, El Paso County, Texas. (Attachments: # 1 Proposed Order Granting a Declaratory Judgment and Permanent Injunction)(Metlitsky, Anton) (Entered: 10/21/2019)

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 20 of 21

10/23/2019 10/24/2019 10/24/2019 10/28/2019 12/10/2019 12/10/2019
12/10/2019 12/10/2019
12/11/2019 12/16/2019 12/16/2019 12/16/2019
12/17/2019

131 MOTION For Leave To File Amended Proposed Order re 130 Supplemental Memorandum, by Border Network for Human Rights, El Paso County, Texas. (Attachments: # 1 Amended Proposed Order)(Metlitsky, Anton) (Entered: 10/23/2019)
132 ORDER GRANTING 131 Motion for Leave to File Signed by Judge David Briones. (lc3) (Entered: 10/24/2019)
133 PROPOSED ORDER GRANTING A DECLARATORY JUDGMENT AND PERMANENT INJUNCTION by El Paso County, Texas (lc3) (Entered: 10/24/2019)
134 SUPPLEMENTAL MEMORANDUM Addressing Scope of Remedy by John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump. (Gerardi, Michael) (Entered: 10/28/2019)
135 Appeal of Order entered by District Judge 129 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump. No filing fee submitted (Warden, Andrew) (Entered: 12/10/2019)
136 It is Ordered that a Declaratory Judgment Issue declaring the Proclamation 9844 of February 15, 2019, 84 Fed. Reg. 4949, UNLAWFUL to the extent it authorizes agency head Defendants Mark T. Esper, Chad F. Wolf, Todd T. Semonite, David Bernhardt, and Steven T. Mnuchin to use 2808 funds beyond the $1.375 billion in the 2019 Consolidated Appropriations Act for the border wall construction. IT IS FINALLY ORDERED that agency head Defendants Mark T. Esper, Chad F. Wolf, Todd T. Semonite, David Bernhardt, and Steven T. Mnuchin arePERMANENTLY ENJOINED from using 2808 funds beyond the #1.375 billion in the 2019 Consolidated Appropriations Act for border wall construction, Signed by Judge David Briones. (mt) (Entered: 12/10/2019)
137 MEMORANDUM OPINION. Signed by Judge David Briones. (lc3) (Entered: 12/10/2019)
NOTICE OF APPEAL as to 135 Notice of Appeal (E−Filed) by Donald J. Trump. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (lc3) (Entered: 12/13/2019)
Notice of Correction: re 137 Memorandum Opinion and Order is duplicate order entry of document #136. (lc3) (Entered: 12/11/2019)
138 Amended Appeal of Final Judgment 129 , 136 , 137 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump. No filing fee submitted (Warden, Andrew) (Entered: 12/16/2019)
139 MOTION to Stay Order Granting Permanent Injunction Pending Appeal by David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 LeMaster Declaration, # 2 Pazos Declaration, # 3 Proposed Order)(Gerardi, Michael) (Entered: 12/16/2019)
AMENDED NOTICE OF APPEAL following 138 Notice of Appeal (E−Filed) by John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (mm1) (Entered: 12/17/2019)
140 Response in Opposition to Motion, filed by Border Network for Human Rights, El Paso County, Texas, re 139 MOTION to Stay Order Granting Permanent Injunction Pending Appeal filed by Defendant Todd T. Semonite, Defendant David Bernhardt, Defendant Steven T Mnuchin, Defendant Kirstjen M. Nielsen, Defendant Patrick M. Shanahan, Defendant Donald J. Trump (Metlitsky, Anton) (Entered: 12/17/2019)

Case: 3:19-cv-66 As of: 05/22/2020 12:51 PM CDT 21 of 21

12/17/2019 12/20/2019 12/20/2019
01/09/2020
01/14/2020 01/22/2020 01/28/2020 01/29/2020 02/13/2020
03/18/2020 04/06/2020 04/29/2020

141 ORDER DENYING 139 Motion to Stay Order Granting Permanent Injunction. Signed by Judge David Briones. (mt) (Entered: 12/17/2019)
142 Cross Appeal of Order entered by District Judge 136 , 137 by Border Network for Human Rights, El Paso County, Texas. No filing fee submitted (Parker, Kristy) (Entered: 12/20/2019)
NOTICE OF APPEAL following 142 Notice of Appeal (E−Filed) by Border Network for Human Rights, El Paso County, Texas. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (lc3) (Entered: 12/20/2019)
143 ORDER of USCA (certified copy) USCA# 19−51144 regarding granting District Court's Injunction Pending Appeal; IT IS FURTHER ORDERED that Appellees' motion to expedite appeal is DENIED. Appellees' motion for oral argument to be scheduled no later than March 2020 is DENIED. Further rulings incorporated in this Order.(em) (Entered: 01/09/2020)
144 USCA Appeal Fees received $ 505 receipt number 300035664 re Notice of Appeal,, filed by Border Network for Human Rights, El Paso County, Texas (lc3) (Entered: 01/14/2020)
145 NOTICE Regarding Section 2808 Projects (Supplemental) by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit A)(Gerardi, Michael) (Entered: 01/22/2020)
USCA# 19−51144 Certified and Transmitted Record on Appeal to US Court of Appeals RE: Notice of Appeal, Notice of Appeal, (em) (Entered: 01/28/2020)
Certification of the Electronic Record on Appeal USCA# 19−51144 has been accepted by the 5th Circuit re Notice of Appeal,, Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (em) (Entered: 01/29/2020)
146 NOTICE Regarding Authorization of Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit Seventh Rapuano Declaration, # 2 Exhibit Second Stiglich Declaration)(Warden, Andrew) (Entered: 02/13/2020)
Certification of the Electronic Record on Appeal has been accepted by the 5th Circuit re Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (em) (Entered: 03/18/2020)
Certification of the Electronic Record on Appeal USCA# 19−51144 has been accepted by the 5th Circuit re Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (em) (Entered: 04/06/2020)
147 NOTICE of Changes In Funding For Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 in Fiscal Year 2019 by William Barr, John F. Bash, David Bernhardt, Steven T Mnuchin, Kirstjen M. Nielsen, Todd T. Semonite, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit)(Warden, Andrew) (Entered: 04/29/2020)

 
 Case 3:19-cv-00066 Document 1 Filed 02/20/19 Page 1 of 39

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

________________________________________________

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EL PASO COUNTY, TEXAS

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500 E. San Antonio

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El Paso, TX 79901,

)

)

BORDER NETWORK FOR HUMAN RIGHTS

)

2115 N Piedras St

)

El Paso, TX 79930,

)

Plaintiffs,

)

)

v.

)

Civil Action No. 3:19-cv-66

)

DONALD J. TRUMP, in his official capacity as

)

President of the United States of America

)

1600 Pennsylvania Avenue, NW

)

Washington, D.C. 20500,

)

)

PATRICK M. SHANAHAN, in his official capacity as )

Acting Secretary of Defense

)

1000 Defense Pentagon

)

Washington, D.C. 20301,

)

)

KIRSTJEN M. NIELSEN, in her official capacity as

)

Secretary of Homeland Security

)

245 Murray Lane, SW, Mail Stop 0485

)

Washington, DC 20528-0485,

)

)

DAVID BERNHARDT, in his official capacity as

)

Acting Secretary of the Interior

)

1849 C Street, NW

)

Washington, DC 20240,

)

)

STEVEN T. MNUCHIN, in his official capacity as

)

Secretary of the Treasury

)

1500 Pennsylvania Avenue, NW

)

Washington, D.C. 20220

)

Defendants.

)

_______________________________________________ )

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COMPLAINT Introduction 1. Plaintiffs El Paso County, Texas, and Border Network for Human Rights, Inc. (“BNHR”), bring this action seeking relief from the President’s unlawful conduct in declaring a national emergency and violating laws of Congress limiting funding for barriers at the United States-Mexico border (the “southern border”). Plaintiffs ask this Court to provide redress by declaring that the President’s actions are unauthorized by, and contrary to, the Constitution and laws of the United States, and by enjoining the Secretaries of Defense, Interior, Homeland Security, and Treasury from taking any action pursuant to the President’s Proclamation of February 15, 2019, on Declaring a National Emergency Concerning the Southern Border of the United States (the “Proclamation”).1 2. The Constitution grants Congress the exclusive power to decide how the government spends money. “The United States Constitution exclusively grants the power of the purse to Congress, not the President.” City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1231 (9th Cir. 2018). The Constitution’s Appropriations Clause provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. And the Spending Clause grants Congress alone the “Power To lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. As James Madison wrote in The Federalist Papers, “[t]he power over the purse may [be] the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” THE FEDERALIST NO. 58. Indeed, when “the decision to spend [is] determined by the Executive alone, without adequate
1 Proclamation, Donald J. Trump, “Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States” (Feb. 15, 2019), available at https://bit.ly/2UVgXfY.
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control by the citizens’ Representatives in Congress, liberty is threatened.” Clinton v. City of New York, 524 U.S. 417, 451 (1998) (Kennedy, J., concurring).
3. The Constitution also grants Congress the exclusive power to make laws. The President may propose measures to Congress (U.S. Const. art. II, § 3), and he must sign bills for them to go into law (U.S. Const. art. I, § 7), unless his veto is overridden. But otherwise the President’s role in our system of checks and balances is to execute the laws Congress has enacted (U.S. Const. art. II, § 3), not to make the laws himself.
4. The Constitution further charges Congress to conduct oversight of the military. Pursuant to this power, Congress passed the Posse Comitatus Act, 18 U.S.C. §1385, which bars the military from engaging in domestic law enforcement except where expressly authorized by the Constitution or Congress. This statute enshrines the democratic norm, which took root at this nation’s founding, that the military shall not be used for domestic purposes.
5. Domestic deployment of the military without legislative authority was such an affront to the Founders that they discussed it in the Declaration of Independence, in their catalog of George III’s tyrannical conduct: “He has kept among us, in times of peace, Standing Armies, without the Consent of our legislatures.” The Supreme Court has warned of the dangers of a President deploying the armed forces to disrupt the checks and balances in our Constitution. In Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson observed that no doctrine could be “more sinister and alarming” than to allow a President to “vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.” 343 U.S. 579, 642 (1952) (Jackson, J., concurring).
6. The architects of our Constitution understood that executive usurpation of legislative powers would lead to tyranny, and they saw the separation of powers as among the Constitution’s primary safeguards against it. Madison cautioned that “[t]he accumulation of all
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powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” THE FEDERALIST NO. 47.
7. Pursuant to this constitutional framework, the President asked Congress to authorize and appropriate certain funding for barriers at the southern border. After careful consideration and extensive political debate within each House and with the President, Congress enacted the 2019 Consolidated Appropriations Act. It included $1.375 billion in funding for fencing in specific locations along the border, limiting the fencing to a previously deployed design. President Trump signed this measure into law on February 15, 2019.
8. The same day the President signed the Consolidated Appropriations Act, he also issued his Proclamation declaring a national emergency to access additional unappropriated funds for the unauthorized construction of a border wall.2
9. The President’s Proclamation and accompanying White House Statement3 laid claim to $6.7 billion that Congress did not appropriate, for the purpose of building a border wall that Congress did not authorize. In an attempt to override the limits that Congress had enacted and he had signed, the President purported to issue his Proclamation under the National Emergencies Act (“NEA”), 50 U.S.C. §1601 et seq., citing 10 U.S.C. § 2808, the military construction statute, as a funding source. He also issued a White House Statement announcing that he would use—for the purpose of building a border wall—money that Congress had designated for use under different laws. In particular, the Proclamation and White House Statement direct the use of funds under 10 U.S.C. § 284, which permits the Department of
2 References to “border wall” in this Complaint refer to any barrier or border-related infrastructure and/or project relating to the construction of a barrier or border-related infrastructure along the southern border that President Trump has called for and has not been approved by Congress. 3 Statement, White House, “President Donald J. Trump’s Border Security Victory” (Feb. 15, 2019), available at https://bit.ly/2GLqvGD.
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Defense to support drug interdiction activities, and the Treasury Department’s Asset Forfeiture Fund, which is governed by 31 U.S.C. § 9705. As explained below, none of these laws allow the President to spend funds on constructing a border wall. That is all the more so because Congress addressed border-fence funding specifically in the appropriations law the President signed the same day he issued the Proclamation. And under well-established rules of statutory construction, a specific law controls over more general laws.
10. Beyond this, the Proclamation itself and the President’s accompanying statements belie the notion that there is a qualifying “emergency” within the terms of the NEA. While announcing the Proclamation in the White House Rose Garden, the President acknowledged that the “emergency” was his inability to persuade Congress to authorize the construction of a border wall or to appropriate funds to do so in the manner and amount he wants. As the President said, “I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster.”4
11. By declaring a national emergency where none exists, the Proclamation also violates long-standing laws prohibiting the military from engaging in domestic activity that Congress has not authorized. Invoking 10 U.S.C. § 12302, the Proclamation purports to authorize the Secretary of Defense to deploy Ready Reserve Units to the border in contravention of laws limiting the military’s ability to engage in domestic law enforcement. The President’s Proclamation therefore represents a dangerous abuse of executive power of the sort the Framers of our Constitution sought to—and did—guard against.
12. The issuance of the Proclamation imposed concrete and immediate harms on Plaintiffs El Paso County and the Border Network for Human Rights. El Paso County is a
4 President Donald J. Trump, Remarks from the White House Rose Garden (Feb. 15, 2019) available at https://bit.ly/2GAsKgG.
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flourishing border community that has already been harmed by the President’s declaration of an emergency and faces additional imminent harm from the actions authorized by the Proclamation. The BNHR likewise has sustained concrete harms to itself as an organization and to its members, hundreds of families and thousands of individuals living along the border where the President has declared an emergency, ordered the area’s militarization, and authorized construction.
13. Seeking redress for those harms, Plaintiffs come before this Court to ask it to fulfill its role in our constitutional system by saying what the law is and enforcing the plain meaning of statutes passed by Congress and the constitutional provisions on which they rest. When the President oversteps his authority and overrides the constitutional powers of the legislative branch, it is the appropriate role of the judicial branch to enforce the separation of powers. See, e.g., Clinton v. City of New York, 524 U.S. 417 (1998). The executive branch often seeks great deference from the courts in carrying out its discretionary functions, especially where “national security” is allegedly at stake. But no such deference is owed to the executive here, where the President is violating statutes and usurping the legislative branch’s role. The only deference owed in this instance is to Congress and to the Constitution, which grants to Congress the powers that the President purports to exercise. Put another way, having seized the power of the legislative branch to make law and spend federal funds, the President may not attempt to sideline the judicial branch by arguing that it cannot interpret and apply the law. Plaintiffs urge this Court to reject any such entreaties. Otherwise, it would license the executive to accumulate all powers—legislative, executive, and judicial—in just the way the Framers feared.
PARTIES 14. Plaintiff, El Paso County, Texas, (“El Paso County”) is a county recognized as a legal subdivision of the State. Tex. Const. art. 11, § 1. El Paso County has the constitutional and statutory authority to set policies and regulations, raise revenue, and administer programs for its
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residents in certain areas, including administering its County judicial system and providing health and social services to many County residents regardless of their national origin.
15. Plaintiff El Paso County is bilingual, bi-national, multicultural, and geographically distinct. El Paso County has over 800,000 residents, more than 82 percent of whom are Hispanic and more than 25 percent of whom are foreign born. It is part of the largest border community on the Rio Grande, and one of the safest communities in the nation. El Paso County takes great pride in protecting all its residents and its values, and has been a leader in the fight against discrimination of all types for decades, with a special focus on protecting the civil rights of its immigrant communities.
16. Plaintiff Border Network for Human Rights is a community-based membership organization incorporated in Texas with 501(c)(3) tax-exempt status. Founded in 1998, BNHR is one of the leading human rights advocacy and immigration reform organizations located at the southern border. BNHR has over 4,000 members in West Texas and southern New Mexico. It has been working with border communities for over 20 years with a mission to organize them through human rights education and to mobilize its members to ignite change in immigration and border enforcement policy and practice. BNHR facilitates the education, organizing, and participation of marginalized border communities in defending and promoting human and civil rights. BNHR supports these communities’ work to create political, economic, and social conditions where every human being is equal in dignity and rights. BNHR brings this action on its own behalf and on behalf of its members, who live and work in El Paso County, as well as southern New Mexico.
17. Defendant Donald J. Trump is the President of the United States, and is sued in his official capacity. He issued the Proclamation in contravention of the NEA, other statutes, and the United States Constitution.
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18. Defendant Patrick M. Shanahan is the Acting Secretary of the United States Department of Defense (“DOD”), and is sued in his official capacity. According to the Proclamation and White House announcement of February 15, 2019, Acting Secretary Shanahan is responsible for exercising military construction authority and spending under 10 U.S.C. § 2808, for reprogramming funds under 10 U.S.C. § 284, for deploying Ready Reserve units to the southern border under 10 U.S.C. § 12302, and for taking other action to use or support the use of those authorities, including, if necessary, the transfer and acceptance of jurisdiction over border lands.
19. Defendant Kirstjen M. Nielsen is Secretary of the United States Department of Homeland Security (“DHS”), and is sued in her official capacity. According to the Proclamation, Secretary Nielsen is responsible for taking all appropriate actions to use or support the use of 10 U.S.C. § 2808 and 10 U.S.C. § 12302, including, if necessary, the transfer and acceptance of jurisdiction over border lands.
20. Defendant David Bernhardt is Acting Secretary of the United States Department of the Interior (“DOI”), and is sued in his official capacity. According to the Proclamation, Acting Secretary Bernhardt is responsible for taking all appropriate actions to use or support the use of 10 U.S.C. § 2808 and 10 U.S.C. § 12302, including, if necessary, the transfer and acceptance of jurisdiction over border lands.
21. Defendant Steven T. Mnuchin is Secretary of the United States Treasury, and is sued in his official capacity. According to the Proclamation and White House Statement of February 15, 2019, Secretary Mnuchin is responsible for directing money from the Department of Treasury Forfeiture Fund for use to build a wall at the southern border.
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JURISDICTION AND VENUE 22. This Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action arises under the United States Constitution, the Administrative Procedure Act (“APA”), the NEA, and other federal statutes. 23. The Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, the APA, 5 U.S.C. § 706, and its equitable powers. 24. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and (e)(1). A substantial part of the events giving rise to these claims occurred in this district, the Plaintiffs reside in this district, and each Defendant is an officer of the United States sued in his or her official capacity.
RELEVANT STATUTORY BACKGROUND A. The 2019 Consolidated Appropriations Act
25. Congress passed and the President signed into law the 2019 Consolidated Appropriations Act on February 15, 2019. Congress enacted the measure after extensive debate, including a government shutdown, over the appropriate funding levels for border wall construction.
26. In the Consolidated Appropriations Act, Congress authorized and appropriated the expenditure of $1.375 billion to repair certain existing border fencing or barriers and to provide for 55 miles of new fencing in the Rio Grande Valley Sector, using a previously deployed design. This was less funding, fewer miles of fencing, and a different design than the President had proposed in his fiscal year 2019 budget request.
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B. The National Emergencies Act 27. Congress enacted the NEA in 1976 with overwhelming majorities in both houses,
out of a recognition that Presidents were overusing the powers that Congress had granted them to act quickly in situations where Congress lacked adequate time to do so. The NEA terminated existing emergencies (some of which had persisted for decades) and created a new framework to cabin the President’s authority. 50 U.S.C. § 1601 et seq. The NEA’s primary purpose was to prevent the President from exercising unbounded authority to declare emergencies and to continue states of emergency in perpetuity.
28. The NEA provides: “with respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency.” 50 U.S.C. § 1621.
29. The NEA does not define the term “emergency,” so it is construed “in accordance with [its] ordinary meaning.’” Sebelius v. Cloer, 569 U.S. 369, 376 (2013). In 1976, “emergency” was understood, as it is today, as an unforeseen combination of circumstances that calls for immediate action.
30. The NEA further provides that when the President declares the emergency, he must specify which statutes authorize the acts he proposes to address it: “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” 50 U.S.C. § 1631.
31. The NEA thus permits the President to direct the use of certain resources, but only in a qualifying emergency and only in the manner and to the extent that Congress has previously authorized by statute. While the NEA gives the President broad authority to declare an emergency, it does not permit the President to do so when no emergency exists, or to fabricate an
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improper or pretextual basis for the declaration. And even under a proper declaration of emergency, the NEA does not give the President the power to do anything he wants.
32. The statute’s legislative history makes clear that the NEA was intended to ensure that “the extraordinary powers which now reside in the hands of the Chief Executive . . . could be utilized only when emergencies actually exist”; that “[r]eliance on emergency authority, intended for use in crisis situations would no longer be available in non-crisis situations”; and that “the United States travels a road marked by carefully constructed legal safeguards.”5 Senator Charles Mathias, Republican from Maryland and one of the Act’s co-sponsors, called it a “safeguard” against abuses of presidential power. C. The Specific Statutes and Authorities Invoked in the Proclamation
33. The Proclamation and accompanying White House Statement invoke 10 U.S.C. § 2808(a), which permits certain military construction activities during national emergencies; 10 U.S.C. § 284, which allows specified counterdrug activities for the Department of Defense; and the Department of Treasury Forfeiture Fund, which is governed by 31 U.S.C. § 9705. These statutes do not permit the President to override specific congressional appropriations for construction at the southern border or specific authorizations for the use of the United States military, either by their plain language or under the constitutional separation of powers.
1. 10 U.S.C. § 2808(a) 34. Article I enumerates congressional powers over the military and national defense. Congress has the power to make and limit military appropriations, raise and support armies, provide for and maintain a navy, declare war, and provide for organizing and calling forth the national guard. And Congress has taken specific action to enforce its powers to oversee the military, exercising extensive oversight and spending authority over military construction
5 S. Rep. No. 94-1168, at 291 (1976), available at https://bit.ly/2UYaRvb.
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through the enactment of the Military Construction Codification Act and the National Defense Authorization Act.
35. The Military Construction Codification Act provides a narrowly cabined exception to the requirement of congressional authorization for all military construction projects. It provides that, in the event the President declares war or a national emergency under the NEA that “requires use of the armed forces,” the Secretary of Defense “may undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.” 10 U.S.C. § 2808(a).
36. Under 10 U.S.C. § 2808(a), a President could order military construction to support the use of U.S. troops that were deployed to respond to a national emergency of a kind requiring use of the armed forces. But the statute vests the authority to make the determination of whether the national emergency “requires use of the armed forces” in the Secretary of Defense, not the President. See 10 U.S.C. § 2808(a) (authorizing the Secretary of Defense to take certain actions “in the event of” a national emergency “that requires use of the armed forces”). A President’s attempt to make this determination in place of the Secretary of Defense is therefore without force or effect. And any determination by the Secretary of Defense that “use of the armed forces” is “require[d]” must be made consistent with the APA.
37. Even if a President had authority to determine that the use of the Armed Forces is required and could thereby unilaterally invoke the powers created by section 2808, any invocation of the statute must be consistent with the statute’s terms. The statute authorizes a construction project “necessary to support . . . use of the armed forces,” 10 U.S.C. § 2808(a). It does not authorize deploying the armed forces for purposes of engaging in a domestic, nonmilitary construction project. A non-military construction project does not become an authorized
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exercise of the statute simply by deploying troops to do the work—that approach would turn the statute on its head.
38. In addition, the statute defines “military construction” in subsection (a) of 10 U.S.C. § 2801 as a project “carried out with respect to a military installation.” And “military installation” refers to “a base, camp, yard, center, or other activity under the jurisdiction of the Secretary of a military department.”
39. Decades of experience demonstrate the meaning of “military installation” for the purposes of 10 U.S.C. § 2808. Presidents have twice invoked military construction authority pursuant to 10 U.S.C. § 2808 and the NEA. President George H.W. Bush invoked the pair of statutes during Operation Desert Shield, and President George W. Bush invoked them in the aftermath of the terrorist attacks of September 11, 2001. According to the Congressional Research Service, “from 2001 through 2014, the [Department of Defense] funded a total of 18 projects under 10 U.S.C. § 2808, after the President invoked the NEA, with a combined value of $1.4 billion. With the exception of one project dating from December 2001 related to security measures for weapons of mass destruction at sites in the continental United States, most of the projects took place at overseas locations.”6 Military construction projects funded under the NEA have included, inter alia, barracks and airport runways in Afghanistan and courthouse security at the U.S. Naval Base at Guantanamo Bay.
2. 10 U.S.C. § 284 40. Congress authorized and funded the Department of Defense to support certain counterdrug activities under 10 U.S.C. § 284. Within limits, one type of support enumerated in
6 Michael J. Vassalotti & Brendan W. McGarry, Military Construction Funding in the Event of a National Emergency, Congressional Research Service (Jan. 11, 2019), available at https://bit.ly/2Ipi3zi.
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section 284 is “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(b)(7).
41. In enacting 10 U.S.C. § 284, Congress authorized the Defense Secretary only “to provide support” for the counterdrug activities of other agencies, not to undertake a major construction project (emphasis added). The plain language of the statute makes that clear. Subsection (h)(1)(B) requires the Defense Secretary to give Congress fifteen-days’ written notice before providing such support, including “a description of any small scale construction project for which support is provided” (emphasis added). The statute defines “small scale construction” as “construction at a cost not to exceed $750,000 for any project.” Congress would not have required a description of “any small scale construction” projects if it was, at the same time, authorizing support for $2.5 billion of fences. Cf. Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress . . . does not, one might say, hide elephants in mouseholes.”).
42. The scale of the “[c]onstruction of road and fences . . . to block drug smuggling corridors across international boundaries” authorized by 10 U.S.C. § 284 must also be understood relative to the scale of the other types of “support” authorized by the statute. Those include providing maintenance and repair of equipment, transporting personnel, and “establish[ing] (including an unspecified minor military construction project) and operat[ing] bases of operations or training facilities for the purpose of facilitating counterdrug activities.” 10 U.S.C. § 284(b)(4) (emphasis added). None of these are on the scale of constructing a multibillion-dollar border wall.
43. Furthermore, the entirety of the 1,954-mile southern border does not constitute a “drug smuggling corridor” under 10 U.S.C. § 284(b)(7). The term “corridor” refers to a passageway. At most, section 284(b)(7) allows support for up to $750,000 of fencing along
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specific passageways across which drug smuggling is known to occur, not an extensive barrier along the international border.
3. The Treasury Department’s Forfeiture Fund 44. The President has announced that up to $601 million will be drawn from the Department of the Treasury Forfeiture Fund to fund the border wall. 45. Congress, however, placed clear restrictions on the use of that Fund. Those restrictions are found in 31 U.S.C. § 9705. There, Congress expressly limited the Secretary of Treasury’s use of the Treasury Forfeiture Fund to specific purposes, including maintaining the fund itself, paying overtime and salaries of law enforcement officers, paying informants, and upgrading law enforcement vehicles. 46. Construction projects are not among the authorized uses of the Treasury Forfeiture Fund.
FACTUAL ALLEGATIONS A. After extensive debate, Congress has enacted, and the President has signed into law,
appropriations for a limited amount of funding for border construction. 47. Since at least 1996, Congress has exercised its legislative authority with respect to issues surrounding the southern border and, more specifically, has limited the funding and construction of fencing along the border. 48. In 1996, for example, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (Pub. L. 104-208, div. C), section 102 of which authorized no more than $12 million for construction of fencing and road improvements near the San Diego, CA border. IIRIRA Section 102(b)(4) also sets out express limitations on mileage, stating that “the Attorney General shall provide for the construction along the 14 miles of the international land border of the United States, starting at the Pacific Ocean and extending
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eastward, of second and third fences, in addition to the existing reinforced fence, and for roads between the fences.” (emphasis added).
49. In 2006, Congress amended Section 102(b) of IIRIRA (Pub. L. 104 208; 8 U.S.C. § 1103) to mandate fencing in specific and geographically-defined places. For example, Congress mandated fencing extending only 10 miles west and 10 miles east of the Tecate, CA port of entry; 10 miles west of the Calexico, CA port of entry and five miles east of the Douglas, AZ port of entry; five miles west of the Columbus, NM port of entry and 10 miles east of the El Paso, TX port of entry; five miles northwest of the Del Rio, TX port of entry and five miles southeast of the Eagle Pass, TX port of entry; and 15 miles northwest of the Laredo, TX port of entry to the Brownsville, TX port of entry.7
50. In 2007, Congress passed the Department of Homeland Security Appropriations Act of 2007 (H.R. 5441), appropriating $1,187,565,000 “for customs and border protection fencing, infrastructure, and technology.”
51. In 2008, Congress passed the Consolidated Appropriations Act of 2008 (Pub. L. 110-161, div. E), appropriating $1,225,000,000 for customs and border protection fencing, infrastructure, and technology, and directing the Secretary of Homeland Security to “construct reinforced fencing” only “where fencing would be most practical and effective.”
52. In 2018, Congress enacted the Consolidated Appropriations Act (H.R. 1625), again expressly setting limits as to both money and miles. Section 230 of this Act limited border funding to $1,571,000,000, for “[p]rocurement, [c]onstruction and [i]mprovements” along the southern border, to be distributed in specific amounts for specific projects at specific locations.
53. Congress rejected numerous other proposed pieces of legislation for more funding for a border wall.
7 Secure Fence Act of 2006, Pub. L. 109-367, §3 (2006).
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54. In early 2019, the President asked Congress to appropriate $5.7 billion for constructing border barriers. He also asked Congress to approve border barrier construction in any location and using any design. Congress considered these proposals in the “End the Shutdown and Secure the Border Act” (Senate Amendment 5 to H.R. 268), but the Senate rejected them.
55. Instead, Congress enacted the 2019 Consolidated Appropriations Act (H.J. Res. 31) which provides $1.375 billion for “the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector,” per Section 230. The Act does not provide any funding for fencing in or within hundreds of miles of El Paso, Texas. The Act also restricts the fencing to that which uses a previously developed design, prohibits construction of fencing within several wildlife areas along the southern border, requires DHS and local officials to reach mutual agreement about the design and alignment of physical barriers within each border city, and provides for a notice and comment period.
56. President Trump signed this bill into law on February 15, 2019. B. After signing the Consolidated Appropriations Act, the President issued a
Proclamation and Statement declaring an emergency and directing the government to spend additional funds on border fencing. 57. On the same day the President signed the Consolidated Appropriations Act, February 15, 2019, he also issued the Proclamation along with an accompanying White House Statement setting forth the authority under which he purported to act. The Proclamation seeks to declare a national emergency under the National Emergencies Act and to direct federal agencies to take action at the southern border under certain specified statutes. The White House Statement issued with the Proclamation further states that $6.7 billion additional funds “will be available to build the border wall” upon declaration of an emergency. This includes $601 million from the Treasury Forfeiture Fund; up to $2.5 billion under the Department of Defense funds transferred
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from Support for Counterdrug Activities (10 U.S.C. § 284); and up to $3.6 billion reallocated from Department of Defense military construction projects under the President’s declaration of a national emergency (10 U.S.C. § 2808). The White House Statement indicates that “[n]ew projects could include: new levee wall, new and replacement primary pedestrian barrier, new vehicle-to-pedestrian barrier, and new secondary barrier.”8
58. The Proclamation does not acknowledge the 2019 Consolidated Appropriations Act the President signed the very same day he issued the Proclamation. Nor does it acknowledge other specific Acts of Congress, set forth above, which govern construction of border fencing. C. The Proclamation does not meet the NEA’s definition of “emergency.”
59. As set forth above, the NEA permits the President to act in unforeseen situations that need action so immediate that only the President is capable of ordering it. That is the opposite of what the President has done here.
60. As alleged, supra, Congress has acted repeatedly to make policy and to appropriate funds for construction on the southern border over a sustained period of time. And the President has repeatedly acknowledged that the situation at the border is not unforeseen and that he was not compelled to act with immediacy to respond to it.
61. The President and Congress have disagreed over how to address immigration and drug enforcement issues at the southern border for the entirety of the President’s time in office. President Trump campaigned on the promise of building a wall along the length of the southern border that Mexico would pay for. During the first two years of his presidency, after it became clear that Mexico would not be paying for the promised border wall, Congress declined to grant
8 Statement, White House, President Donald J. Trump’s Border Security Victory (Feb. 15, 2019), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-bordersecurity-victory/.
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the President’s full requests for funding for new border barriers, notwithstanding that the President’s party controlled both chambers of Congress.
62. For fiscal year 2017, Congress voted to appropriate $341 million to DHS to replace existing barriers on the southern border.9 For fiscal year 2018, Congress voted to appropriate $1.57 billion to build or replace fencing on the southern border.10
63. The disagreement came to a head prior to the 2018 midterm elections and escalated after Democrats won control of the House of Representatives (but before the new, Democratic-controlled House, was sworn in). As part of his proposed 2019 budget for DHS, President Trump twice requested that Congress appropriate $1.6 billion for the construction of 65 miles of new border wall.11 Congress three times rejected that request: twice before the 2018 midterm elections, when both houses of Congress were controlled by Republicans, and once after, when Democrats won control of the House of Representatives.
64. There was no absence of action by Congress on border security policy. There was no absence of action by Congress on funding for border fences. And there was no lack of time for Congress to act.
65. In December 2018 and January 2019, the President refused to sign a budget resolution that did not contain funding for construction of a border wall, resulting in a 35-day partial government shutdown. The shutdown ended when the President agreed to sign a threeweek continuing resolution with $1.6 billion in appropriations for border security, but no funds for new border wall construction.
9 Consolidated Appropriations Act of 2017, Pub. L. No. 115-31, 131 Stat. 433-34 (2017). 10 Consolidated Appropriations Act of 2018, Pub. L. No. 115-141, H.R. 1625—269 (2018). 11 See, e.g., Office of Mgmt. & Budget, An American Budget: Budget of the U.S. Government— Fiscal Year 2019 (Feb. 12, 2018), available at https://bit.ly/2nTPE7s.
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66. On January 4, 2019, in the midst of the budget standoff, the President began threatening to reframe his policy dispute with Congress as an “emergency.” On that day, the President asserted that if Congress did not give him the border wall funding he wanted, he would declare a national emergency as an alternative. He called the Proclamation “another way of doing it” if he could not achieve his agenda through “a negotiated process”: “We can call a national emergency because of the security of our country, absolutely. No, we can do it. I haven’t done it. I may do it. I may do it, but we could call a national emergency and build [the wall] very quickly, and it’s another way of doing it. But if we can do it through a negotiated process, we’re giving that a shot.”
67. Thereafter, on multiple occasions over the ensuing six weeks, the President publicly asserted that a he had the power to declare an emergency. But he acknowledged both in his words and his actions that there was no immediate need to declare one, saying at various times that he would not do it “right now,” or “so fast.” Instead, the President characterized his claimed emergency power as a backup plan “if I can’t make a deal with people [in Congress] that are unreasonable.” This posture stands in direct contradiction with the purpose of the NEA, which is to empower the President to act when, because of the unforeseen nature of the emergency, Congress lacks the time to do so.
68. Following a series of warnings over several weeks, the President finally declared an emergency at the southern border after signing the Consolidated Appropriations Act, which limited appropriations for border fencing to a lower amount and fewer miles than he wanted for construction of a border wall. During his announcement of his Proclamation declaring an emergency, and after recounting his disagreement with Congress over funding for a border wall, the President said that “I didn’t need to do this.”
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69. The President’s Proclamation marks the first time a President has used the NEA to contravene the clearly expressed will of Congress on a policy and appropriations matter.
70. The President’s Proclamation states that the “emergency” at the southern border derives from the fact that the southern border is “a major entry point for criminals, gang members, and illicit narcotics.” But this problem is not new, and in fact, most illegal drugs enter the country through legal ports of entry.12 The President also cites “the problem of large-scale unlawful migration through the southern border,” but acknowledges that it is “long-standing.” Indeed, illegal crossings at the southern border have declined dramatically over time. He also cites a “sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending.” However, most migrants come to the border to present themselves for asylum, which they have a legal right to do under 8 U.S.C. § 1158(a). The Proclamation is thus based on false factual predicates.
71. In addition, there is nothing unforeseen about the “emergency” the President’s Proclamation describes at the southern border. Even if it were true, there is nothing unforeseen about the border being a “major entry point for criminals, gang members, and illicit narcotics.” Moreover, the Proclamation describes “unlawful migration” as a “long-standing” problem.
72. A President’s wish for more money to build a border wall, based on decades-old issues, does not meet the definition of an emergency. And construction, in whatever form, is not an “immediate” solution to the longstanding “emergency” the President has discussed since he announced his candidacy in 2015.
12 Alan Gomez, Fact-Checking Trump Officials: Most Drugs Enter US Through Legal Ports of Entry, Not Vast, Open Border, USA TODAY (Jan. 16, 2019), https://bit.ly/2GUa0I5.
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73. Furthermore, an “emergency” is not something that is addressed after a purposeful weeks-long delay.
74. The President issued his Proclamation six weeks after first suggesting that he could use a national emergency for funding that Congress decided to withhold. During that time, Congress voted multiple times not to fund a border wall.
75. President Trump’s treatment of an emergency Proclamation as a back-up plan to be invoked only if Congress rejected his policy proposal, along with his usurpation of Congress’s role on an appropriations issue, establish that the President’s Proclamation does not address an “emergency” within the meaning of the NEA and that this Court should enjoin its implementation. D. The Proclamation directs activities that are not authorized by the statutes it invokes.
76. Even if the Proclamation did lawfully invoke the NEA, the statutes and authorities cited in the Proclamation and White House Statement do not permit construction of a border wall.
77. The principal funding statute cited in the Proclamation is 10 U.S.C. § 2808. But this statute does not permit the President to fund border-barrier construction that Congress has not authorized. To begin, because the 2019 Consolidated Appropriations Act, like the 2018 Act, specifically addresses border fencing, section 2808 simply does not apply.
78. Moreover, section 2808 does not authorize border-barrier construction even if there were a bona fide emergency. As set forth above, in the event of a declaration of an emergency that (1) “requires use of the armed forces,” this statute permits the Secretary of Defense to (2) “undertake military construction projects . . . that are necessary to support such use of the armed forces.”
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79. The Proclamation does not satisfy either of these two statutory requirements for invoking section 2808. First, the Proclamation itself counters the claim that an emergency “requires use of the armed forces.” The Proclamation describes criminal law and humanitarian challenges, as well as long-standing civilian problems on the border—but does not articulate any situation that requires the use of the armed forces.
80. Second, the construction of a border wall does not qualify as “military construction” as defined by subsection (a) of 10 U.S.C. § 2801, which describes “military construction” as a project “carried out with respect to a military installation.” And in subsection (c)(4), “military installation” refers to “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” But “[a] border wall, by contrast, is a civilian structure to be manned by civilian authorities to perform a civilian mission. The troops would not be creating a military fortification for military use.”13
81. The non-military nature of this construction project is reinforced by two decades of experience. Since 1996, hundreds of miles of southern border barriers have been built without any use of the armed forces. Likewise, policing the southern border has been the function of the Department of Homeland Security, and prior to that the Immigration and Naturalization Service, not the military.14
82. Beyond that, the construction of a border wall is not (in the language of section 2808) “necessary to support [the required] use of the armed forces.” The Proclamation turns the statute on its head, seeking to mobilize the armed forces to engage in a civilian construction
13 David French, Trump’s Emergency Declaration Is Contemptuous of the Rule of Law, NATIONAL REVIEW (Feb. 15, 2019), https://bit.ly/2TWwY56. 14 Federation for American Immigration Reform, The Current State of the Border Fence, (Jan. 2017), https://www.fairus.org/issue/national-security/current-state-border-fence.
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project; not to engage in a construction project necessary to support the mobilization of the armed forces.
83. Section 284 also does not permit using the funds Congress has designated for counterdrug programs for border-barrier construction. As explained above, this statute only allows DOD to provide support for designated small-scale construction projects—not to fund its own large-scale construction.
84. The Treasury Forfeiture Fund, invoked in the White House Statement, also cannot be used to fund barrier construction at the border. The statute governing the Fund articulates certain lawful purposes—but construction is not one of them. 31 U.S.C. § 9705. E. The Issuance of the Proclamation Injures Plaintiffs El Paso County and the BNHR.
85. The President’s Proclamation, through its declaration of an emergency on the border and invocation of statutes allowing military mobilization, causes immediate and concrete injury to border communities, including Plaintiffs.
86. During the latter half of the Twentieth Century, El Paso County, anchored by the City of El Paso, grew as a population and economic center. In addition to housing Fort Bliss, it was a center for copper mining, oil refining, and the garment industry. In the 1990s, the economy of the region underwent a significant shift with the signing of the North American Free Trade Agreement. Lower-wage manufacturing labor across the border displaced low-wage manufacturing, such as textiles, in El Paso County. El Paso County’s services industry grew in its place. According to the Federal Reserve Bank of Dallas El Paso Branch, “The growth of the service sector . . . more than offset the decline in manufacturing employment.”15
15 Jesus Cañas, A Decade of Change: El Paso’s Economic Transition of the 1990s, EL PASO BUSINESS FRONTIER (2002), https://bit.ly/2BLqhMh.
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87. El Paso County and the City within it emphasize tourism as a local economic driver and have various programs for the explicit purpose of attracting visitors to El Paso. Since 2016, the County has invested $1,137,582 in tourist promotion, which includes promoting the historic Mission Trail. For that same time period, El Paso County has also spent $13,003,405 in operating the El Paso Coliseum, which, located approximately half a mile from the border, draws visitors from all over the country for various entertainment acts. The results of the County’s promotion of tourism have been impressive. The number of people visiting El Paso has steadily increased since 2014.16 This has led to an increase in the number of jobs in the region dedicated to the travel and hospitality industries, as well as increases in government revenues stemming from tourism.
88. The Rio Grande Council of Governments (“RGCOG”), which is an association of local governments established under state law that includes El Paso County, has recognized that: “The travel industry makes a substantial contribution to local government tax revenue across the [West] Texas counties. Local tax revenue is collected by counties and municipalities, as levied on applicable travel-related businesses and includes the transient lodging and local sales taxes. The economic impact of tourism in most [West] Texas Counties has increased consistently from 2010 to 2015.”17 This increase includes El Paso County.
89. A central driver of El Paso County’s success has been the remarkable safety of the community, and just as importantly, the national perception of El Paso County and its environs as a safe destination to live, work, and travel. The City of El Paso, located within El Paso County, has been recognized as one of the top 10 safest cities in the country for two consecutive
16 Michael Ikahihifo, Tourism in El Paso Is on the Rise, KFOX14 (Apr. 12, 2018), https://bit.ly/2GC2PVB. 17 Rio Grande Council of Governments, West Texas Economic Development District: 2016-2020 Comprehensive Economic Development Strategy (Jan. 27. 2017), available at https://bit.ly/2NiIeWX.
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years based on its low rates of violent crime and property crime.18 El Paso’s murder rate is approximately half that of the national average19 and much lower than that of other major cities.20
90. Although the President has claimed that El Paso’s crime rate dropped when border barriers were constructed in El Paso, that is not true. Violent crime in the City of El Paso has fallen steadily since the mid-90s, mirroring crime trends around the country. Even while this trend has been national, El Paso’s crime rates have been substantially lower than other areas its size.21
91. These conditions have not just allowed for growth in tourism and revenue in recent years in El Paso County; they are the foundation upon which El Paso County has already planned for future growth. In 2017, the RGCOG’s Board of Directors, which also serves as the West Texas Economic Development District (“WTEDD”), updated the 2016-2020 Comprehensive Economic Development Strategy (“CEDS”) for the WTEDD. This Strategy lays out El Paso County’s economic development plans for the next several years and informs County decision-making and local economic planning. It projects that the region “will become a preferred area for businesses creation and relocation looking for,” among other things, “[h]igh quality of life for new and existing residents.”22 It bases this projection, in part, on an assessment that one of the “strengths” of the region is “[a]mple availability of land at affordable prices,” and that an “opportunity” for the region is the “[i]ncrease[d] awareness of the region’s strong
18 Press Release, City of El Paso, City of El Paso Named Second Safest City in America (Aug. 2017), available at https://bit.ly/2TZkGsX. 19 Jane C. Timm, Fact Check: Trump Claims a Wall Made El Paso Safe. Data Shows Otherwise, NBC NEWS (Feb. 11, 2019), https://nbcnews.to/2BxGyo2. 20 Ames Grawert and Cameron Kimble, Crime in 2018: Updated Analysis, Brennan Center for Justice (Dec. 2018), https://bit.ly/2sWnQlh. 21 Id. 22 Rio Grande Council of Governments, supra note 17.
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assets.”23 But it warns of several weaknesses that could impair growth, including “[n]egative perceptions of low quality and high crime,” “[l]osses due to inefficiency in border crossings,” and “[t]ourism slumps.” And most notably and especially relevant to this complaint, it cites as a “threat” to future growth: “[p]erception of unrest along the Mexico border.”24
92. Prior to issuance of the Proclamation, President Trump’s messages about El Paso were mixed. Most dominantly, he has repeatedly warned of the crisis levels of drugs, gang violence, and crime taking place in border communities like El Paso. Yet he also has said that while El Paso was once one of the most dangerous places in the country, it is “one of America's safest cities now.”25 He attributed that supposed change to the construction of border barriers within El Paso, but that is not true. El Paso was a low-crime area even before sections of wall were added in the 2000s. When El Pasoans attempted to fact check the President’s misleading claims about their region by pointing out that El Paso has long been one of the safest places in America, the President responded by accusing El Paso of trying to doctor crime data, saying at a February 11, 2019 political rally in El Paso: “they’re full of crap.”26
93. The President then superseded this dispute with his emergency Proclamation, which described the southern border where both El Paso County and the Border Network for Human Rights are located as the site of a “humanitarian crisis that threatens core national security interests and constitutes a national emergency.”27 He went on to use the full force of the federal government to officially declare that “[t]he southern border is a major entry point for criminals, gang members, and illicit narcotics,” and, contrary to his statements at the El Paso
23 Id. 24 Id. 25 President Donald J. Trump, State of the Union Address (Feb. 5, 2019), available at https://bit.ly/2BmeYdo. 26 Justin Wise, Trump: People Saying Wall Hasn't Made Difference in El Paso Are ‘Full of Crap’, THE HILL (Feb. 11, 2019), https://bit.ly/2SJydar. 27 Proclamation, supra note 1.
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rally, that “the situation has worsened in certain respects in recent years.” The White House issued a Statement calling the area “highly dangerous.”28 The President declared that the situation at the border where plaintiffs are located is so bad that it requires a militarization effort and the deployment of the Armed Forces.
94. The President’s Proclamation and the activity it directs by its very issuance create the negative perception the County has sought to counter. In particular, the Proclamation is an official government statement that the southern border is the site of crisis levels of crime and low quality of life.
95. The President’s re-appropriation of billions of dollars of funds to militarize the region sends an immediate message to businesses or travelers thinking of spending time or money in El Paso County that it will be a far less attractive place to work, visit, or live.
96. Because the President’s Proclamation has, by its very signing, materialized the weaknesses and threats identified by El Paso County as to what would derail future economic growth in its strategic economic plan for 2016-2020, the County must now repurpose resources to respond to the President’s action, plan for revenue changes, and devote resources that would have gone to other activities and services for its residents to this planning and the actions it requires. County officials have already devoted significant amounts of human resource hours to planning a response to the Proclamation and its effects on the County’s residents and economy.
97. In addition, Plaintiff El Paso County is injured by the Proclamation’s frustration of the County’s national campaign to promote El Paso’s history and culture and its ongoing efforts to attract visitors to the County who will spend money and engage in commerce. People all over the country are deterred from coming to El Paso County by the presidential designation of a national emergency there.
28 White House Statement, supra note 3.
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98. Plaintiff El Paso County is further injured by the Proclamation’s mandate for construction and the deployment of troops to the border. El Paso County relies on its geographic location, local history, environment, and natural beauty to attract development. El Paso County’s resources and development efforts are harmed by disruptive construction, seizure of private property, noise and air pollution, and the blocking of aesthetic views of the local scenery.
99. These collective harms, including reputational harm to El Paso County, result in a decline in revenue for the County, causing damage to the County fisc.
100. During the period in which El Paso County was experiencing both a decline in crime and growth in economic activity and population, various community organizations were central players in the region’s turnaround. One of those organizations is Plaintiff Border Network for Human Rights.
101. Plaintiff BNHR provides a variety of services and programs for families living near the southern border. These services include working with the community and local and federal law enforcement to promote public safety, informing residents of their civil rights, and conducting campaigns to integrate residents of El Paso and neighboring communities into city government, public safety departments, and the local economy. BNHR has devoted and continues to devote substantial resources to advocacy opposing additional construction of border barriers and militarization of the border in order to protect the interests of BNHR as an organization and of its members.
102. The Proclamation’s mandate for construction and the deployment of troops to the border injures BNHR in at least three ways. First, it has forced BNHR to divert organizational resources from its normal programming to respond to the President’s Proclamation. In the aftermath of the President’s Proclamation, BNHR has been forced to spend resources responding to the consequences of the Proclamation, including counseling and responding to concerns from
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members about the effects of the Proclamation on their well-being, their property and rights, and their opportunities to engage in public advocacy to mitigate the damage to BNHR members. In addition, BNHR is shifting and spending resources to recruit and train attorneys to handle the increase in incoming complaints and concerns that the Proclamation is generating among its members. The demand for these resources is causing BNHR to divert resources from two programs that are central to its mission. One is BNHR’s immigration reform advocacy campaign. The other is BNHR’s annual Hugs Not Walls event, which aims to build trust between the community and law enforcement, including border patrol. For years, border patrol granted BNHR a permit to reunite families—for a day—along the Rio Grande canal. Due to the Proclamation and the diversion in resources it is requiring, BNHR has been forced to cancel the event for 2019. The Proclamation, therefore, has caused the waste of both human and monetary resources that BNHR spent in preparation for upcoming Hugs Not Walls events.
103. Second, the Proclamation’s mandate for construction and the deployment of troops to the border injures BNHR’s organizational mission. As alleged above, the Proclamation is impairing BNHR’s key programs of immigration reform advocacy and initiatives to build trust and engagement between law enforcement and community members. The Proclamation has stigmatized BNHR’s community members, reducing their ability and willingness to cooperate with local and federal law enforcement. This stigmatization frustrates BNHR’s mission and campaigns, and increases the public safety risk for its members. And the President’s order that additional Armed Forces are necessary at the border is requiring BNHR to prepare and plan for how it will achieve its mission of building trust between its members and law enforcement when it now expects an influx of law enforcement and military personnel from outside the community with whom it will need to start its mission-based activities anew.
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104. Third, the Proclamation’s mandate for border wall construction and deployment of troops harms BNHR’s member families’ quality of life by creating public safety issues and high levels of noise and other forms of pollution from military and construction activity. The Proclamation and wall construction also impair BNHR members’ ability to enjoy the natural environment in which they have made their homes. And lastly, the Proclamation and accompanying White House Statement in intent and effect have stigmatized immigrant communities, heightening racial tensions and causing fear among BNHR’s member families. The President’s Proclamation and pledge to militarize the area because of threats he claims are caused by immigrants at the border have caused BNHR’s member families to suffer. They reasonably fear race-based violence towards them as a result of the false claims on which the Proclamation is based. They also reasonably fear an influx of law enforcement with whom they have not built up the levels of trust that BNHR has worked for years to cultivate in the El Paso community. The President's Proclamation will thus put BNHR’s member families at greater risk of rights violations. As a result of all of this, they fear increased public safety risks for children and for the community, which they must takes steps now to mitigate unless and until the President’s unlawful action is stopped.
105. For at least these reasons, the Proclamation has caused immediate and concrete injury to El Paso County and to BNHR. That injury would be remedied by a declaration from this Court that the President’s Proclamation is unlawful and by an order from this Court enjoining the Proclamation from taking any effect or federal officials from acting upon it.
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CLAIMS FOR RELIEF COUNT I
(Ultra Vires Action in Violation of Federal Funding Statutes, the National Emergencies Act, 10 U.S.C. § 2808, 10 U.S.C. § 284, and 31 U.S.C. § 9705)
106. The foregoing allegations are realleged and incorporated by reference herein. 107. Congress has enacted a series of specific statutes that limit the location, type, and funding of additional fencing at the southern border. In particular, Congress enacted and the President signed into law the 2019 Consolidated Appropriations Act, which specifically limited the level and nature of appropriations for border fencing, the location of new fencing, and the design of new fencing. The Proclamation and accompanying White House Statement direct construction of a wall that violates each of these limits on new border fencing appropriations, locations, and design. As such, they are ultra vires. 108. The Defendants’ ultra vires invocation of general statutes to override the relevant and specific limits in the Consolidated Appropriations Act inflicts ongoing harm upon the Plaintiffs. 109. The Defendants’ invocation of the NEA to justify spending that Congress refused to authorize is also ultra vires. 110. The Defendants’ invocation of 10 U.S.C. § 2808 to undertake military construction—i.e., a border wall—at the U.S.-Mexico border is ultra vires because it is not a construction project that supports the use of the armed forces and is it not “military construction.” 111. The White House announced on February 15, 2019, that it would also fund $2.5 billion of additional wall pursuant to 10 U.S.C. § 284. But $2.5 billion in funding is not “support” under that statute, which permits only support of small-scale construction projects, not to exceed $750,000, such as fencing along specific “drug smuggling corridors.”
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112. The President also cannot fund $601 million of the border wall from the Department of the Treasury Forfeiture Fund because 31 U.S.C. § 9705 restricts use of those funds to specified purposes, none of which include construction projects, much less projects for which there have been appropriations in limited amounts under other statutes.
113. The Proclamation is also ultra vires because it exceeds the President’s authority to declare a national emergency under the NEA. The NEA provides that “[w]ith respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency.” 50 U.S.C. § 1621(a). An “emergency” must be an unforeseen combination of circumstances that calls for immediate action. The President’s declaration of emergency does not meet this or any other reasonable definition.
114. Plaintiffs have a right of action to redress unlawful action by the President that exceeds his statutory authority.
115. Defendants’ ultra vires violation of the NEA and specific and general funding statutes inflicts ongoing harm upon the Plaintiffs.
COUNT II (Article I, Section 8, Clause 1—Spending Clause) 116. The foregoing allegations are realleged and incorporated by reference herein. 117. Plaintiffs have a right of action to enjoin and declare unlawful official action that is ultra vires. 118. The Constitution grants to Congress the exclusive power to spend money on behalf of the United States and the exclusive power to enact and pass laws in accordance with the general welfare of the United States.
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119. Article I, Section 8, Clause 1 provides “[t]he Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”
120. President Trump’s Proclamation violates the Spending Clause and is ultra vires by misusing the NEA and other statutes to override Congress’s express refusal to pass legislation funding the very physical barrier at the southern border that President Trump now seeks to build.
121. Defendants’ violation of the Spending Clause inflicts ongoing harm upon the Plaintiffs.
COUNT III (Article I, Section 9, Clause 7—Appropriations Clause) 122. The foregoing allegations are realleged and incorporated by reference herein. 123. Plaintiffs have a right of action to enjoin and declare unlawful official action that is ultra vires. 124. The Constitution grants to Congress the exclusive power to spend money on behalf of the United States and to designate the purpose for which the money shall be spent. 125. Article I, Section 9, Clause 7 provides “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” 126. President Trump’s Proclamation violates the Appropriations Clause and is ultra vires by misusing the NEA and other statutes to override Congress’s express refusal to pass legislation appropriating funds very physical barrier at the US-Mexico border that President Trump now seeks to build. 127. Defendants’ violation of the Appropriations Clause inflicts ongoing harm upon the Plaintiffs.
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COUNT IV (Articles I, II, Article III – Separation of Powers) 128. The foregoing allegations are realleged and incorporated by reference herein. 129. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires. 130. The Spending Clause grants Congress the “Power To lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. 131. The Appropriations Clause of the U.S. Constitution provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. 132. The Constitution grants the President neither such power, per established separation of powers principles. See, e.g., U.S. Const. art. II, § 3. 133. Defendants have purported to exercise powers that Congress repeatedly and specifically withheld, and in direct transgression of specific limits imposed by validly enacted statutes, thereby violating the constitutional principle of Separation of Powers. 134. Defendants’ violation of the Separation of Powers inflicts ongoing harm on the Plaintiffs.
COUNT V (Violation of the Administrative Procedure Act Through Violations of the Constitution, the
NEA, 10 U.S.C. § 2808, and Arbitrary and Capricious Action) 135. The foregoing allegations are realleged and incorporated by reference herein. 136. The APA requires courts to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power, privilege, or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A)-(C). Defendants have
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acted contrary to the Spending and Appropriations Clauses of Article I of the United States Constitution, the NEA, and the statutes purportedly authorizing action under the Proclamation.
137. Further, upon information and belief, in enacting and implementing the President’s Proclamation, Defendants have acted arbitrarily and capriciously. Among other arbitrary actions and omissions, Defendants have not explained the rational nexus between construction of the border wall and any “emergency” conditions that would be remedied immediately.
138. Through their actions as described in this Complaint, Defendants have violated the substantive requirements of the APA. Defendants’ violations inflict ongoing harm upon the Plaintiffs.
COUNT VI (The Take Care Clause) 139. The foregoing allegations are realleged and incorporated by reference herein. 140. The Proclamation violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3, cl. 5. The Supreme Court has called this duty the President’s “most important constitutional duty.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992). 141. This duty of “faithful” execution of the laws imposes on the President a duty to act in good faith in his execution of the laws. That encompasses an obligation to act honestly— in good faith—in rendering declarations, determinations, and findings that he may only render because of a delegation of authority from Congress. 142. The President has not acted in good faith in his declaration that there exists a national emergency of the type described in the NEA. President Trump has access to information sources that renders in bad faith his repeated reliance on demonstrably false claims to support a declaration of a national emergency and to support other findings or determinations.
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143. The President has not acted in good faith in rendering his determination that the

purported national emergency “requires” the use of the military. President Trump’s public

statement that “I didn’t need to” declare a national emergency shows that his purported

determination that the situation at the southern border “requires” use of the armed forces is not

made in good faith. Moreover, by declaring an emergency as an express response to legislation

enacted by Congress, that specifically limits border fence funding, President Trump has not acted

in good faith.

144. The President’s issuance of the Proclamation in violation of the duty to faithfully

execute the laws inflicts ongoing harm on Plaintiffs.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that the Court:

A. Declare that the President’s Proclamation of February 15, 2019 is unauthorized by, and

contrary to, the Constitution and laws of the United States;

B. Enjoin Defendants from taking any action pursuant to the Proclamation, the NEA, or any

statutes cited in the Proclamation or the White House Statement issued February 15, 2019; and

C. Award such additional relief as the interests of justice may require.

Dated: February 20, 2019

By: /s/ John C. Padalino John C. Padalino (Texas State Bar No. 24041638) 401 Congress Avenue, Suite 1540 Austin, Texas 78701 Telephone: (512) 596-2944 Facsimile: (512) 596-2944 john@padalinolaw.com

Kristy Parker (Pro hac vice forthcoming) Justin Florence (Pro hac vice forthcoming) Erica Newland (Pro hac vice forthcoming) THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Avenue., NW, #163 Washington, DC 20006 Telephone: (202) 579-4582 Facsimile: (929) 777-8428

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justin.florence@protectdemocracy.org kristy.parker@protectdemocracy.org erica.newland@protectdemocracy.org
Deana K. El-Mallawany (Pro hac vice forthcoming) THE PROTECT DEMOCRACY PROJECT, INC. 10 Ware Street Cambridge, MA 02138 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 deana.elmallawany@protectdemocracy.org
Stephanie Llanes (Pro hac vice forthcoming) THE PROTECT DEMOCRACY PROJECT, INC. 222 Broadway, 19th Floor New York, NY 10038 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 stephanie.llanes@protectdemocracy.org
David Bookbinder (Pro hac vice forthcoming) NISKANEN CENTER 820 First Street, NE Washington, DC 20002 Telephone: (301) 751-0611 dbookbinder@niskanencenter.org
Richard Mancino (Pro hac vice forthcoming) Shaimaa M. Hussein (Pro hac vice forthcoming) Matthew Dollan (Pro hac vice forthcoming) Samantha G. Prince (Pro hac vice forthcoming) WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 728-8000 Facsimile: (212) 728-8111 RMancino@willkie.com SHussein@willkie.com MDollan willkie.com SPrince@willkie.com
Stuart Gerson (Pro hac vice forthcoming) EPSTEIN BECKER GREEN 1227 25th Street, NW Washington, DC 20037 Telephone: (202) 861-4180 Email: SGerson@ebglaw.com
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Case 3:19-cv-00066 Document 1 Filed 02/20/19 Page 39 of 39 Laurence H. Tribe (Pro hac vice forthcoming) Carl M. Loeb University Professor and Professor of Constitutional Law HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 Telephone: (617) 495-1767 Email: tribe@law.harvard.edu *Affiliation noted for identification purposes only Counsel for Plaintiffs
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 Case 3:19-cv-00066-DB Document 52 Filed 04/25/19 Page 1 of 50

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

EL PASO COUNTY, TEXAS, and
BORDER NETWORK FOR HUMAN RIGHTS,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
PATRICK M. SHANAHAN, in his official capacity as Acting Secretary of Defense,
KEVIN McALEENAN, in his official capacity as Acting Secretary of Homeland Security,
TODD T. SEMONITE, in his official capacity as Commanding General United States Army Corps of Engineers
DAVID BERNHARDT, in his official capacity as Acting Secretary of the Interior, and
STEVEN T. MNUCHIN, in his official capacity as Secretary of the Treasury,
Defendants.

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Civil Action No. 3:19-cv-66

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PLAINTIFFS’ FIRST AMENDED COMPLAINT

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FIRST AMENDED COMPLAINT INTRODUCTION
1. Plaintiffs El Paso County, Texas, and Border Network for Human Rights, Inc. (“BNHR”), bring this action seeking relief from Defendants’ unlawful conduct in declaring a national emergency and violating laws of Congress limiting funding for barriers at the United States-Mexico border (the “southern border”). Plaintiffs ask this Court to provide redress by declaring that the President’s actions are unauthorized by, and contrary to, the Constitution and laws of the United States, and by enjoining the Secretaries of Defense, Interior, Homeland Security, and the Commanding General of the U.S. Army Corps of Engineers, from taking any action pursuant to or arising out of the President’s Proclamation of February 15, 2019, on Declaring a National Emergency Concerning the Southern Border of the United States (the “Proclamation”).1
2. The Constitution grants Congress the exclusive power to decide how the government spends money. “No money can be paid out of the Treasury [except pursuant to] an act of Congress.” OPM v. Richmond, 496 U.S. 414, 424 (1990). The Constitution’s 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. And the Spending Clause grants Congress alone the “Power To lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. As James Madison wrote in The Federalist Papers, “[t]he power over the purse may [be] the most complete and effectual weapon with which any constitution can arm the immediate
1 Proclamation, Donald J. Trump, “Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States” (Feb. 15, 2019), available at https://bit.ly/2UVgXfY.
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representatives of the people.” THE FEDERALIST NO. 58. Indeed, when “the decision to spend [is] determined by the Executive alone, without adequate control by the citizens’ Representatives in Congress, liberty is threatened.” Clinton v. City of New York, 524 U.S. 417, 451 (1998) (Kennedy, J., concurring).
3. The Constitution also grants Congress the exclusive power to make laws. The President may propose measures to Congress (U.S. Const. art. II, § 3), and he must sign bills in order for them to become law (U.S. Const. art. I, § 7), unless his veto is overridden. But otherwise the President’s role in our system of checks and balances is to execute the laws Congress has enacted (U.S. Const. art. II, § 3), not to make the laws himself.
4. The Constitution further charges Congress to exercise oversight of the military. Pursuant to this power, Congress passed the Posse Comitatus Act, 18 U.S.C. § 1385, which bars the military from engaging in domestic law enforcement except where expressly authorized by the Constitution or Congress. This statute enshrines the democratic norm, which took root at this nation’s founding, that the military shall not be used for domestic purposes.
5. Domestic deployment of the military without legislative authority was such an affront to the Founders that they discussed it in the Declaration of Independence, in their catalog of George III’s tyrannical conduct: “He has kept among us, in times of peace, Standing Armies, without the Consent of our legislatures.” The Supreme Court has warned of the dangers of a President deploying the armed forces to disrupt the checks and balances in our Constitution. In Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson observed that no doctrine could be “more sinister and alarming” than to allow a President to “vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.” 343 U.S. 579, 642 (1952) (Jackson, J., concurring).
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6. The architects of our Constitution understood that concentrating power in a single branch of government would lead to tyranny, and they saw the separation of powers as among the Constitution’s primary safeguards against it. Madison cautioned that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” THE FEDERALIST NO. 47.
7. Pursuant to this constitutional framework, the President asked Congress to authorize and appropriate certain funding for barriers at the southern border. After careful consideration and extensive political debate within each House and with the President, Congress enacted the 2019 Consolidated Appropriations Act. It includes $1.375 billion in funding for fencing in specific locations along the southern border, limiting the fencing to a previously deployed design. President Trump signed this measure into law on February 15, 2019.
8. The same day the President signed the Consolidated Appropriations Act, he also issued his Proclamation declaring a national emergency in order to access additional unappropriated funds for the unauthorized construction of a border wall.2
9. The President’s Proclamation and accompanying White House Statement3 laid claim to $6.7 billion that Congress did not appropriate, for the purpose of building a border wall that Congress did not authorize. In an attempt to override the limits that Congress had enacted and he had signed, the President purported to issue his Proclamation under the National Emergencies Act (“NEA”), 50 U.S.C. § 1601 et seq., citing 10 U.S.C. § 2808, the military
2 References to “border wall” in this Complaint refer to any barrier or border-related infrastructure and/or project relating to the construction of a barrier or border-related infrastructure along the southern border that President Trump has called for and has not been approved by Congress. 3 Statement, White House, “President Donald J. Trump’s Border Security Victory” (Feb. 15, 2019), available at https://bit.ly/2GLqvGD.
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construction statute, as a funding source. He also issued a White House Statement announcing that he would use—for the purpose of building a border wall—money that Congress had designated for use under different laws. In particular, the Proclamation and White House Statement direct the use of funds under 10 U.S.C. § 284, which permits the Department of Defense to support drug interdiction activities. As explained below, this law does not allow the President to spend funds on constructing a border wall or delegate congressional appropriations power to the President. Such acts are all the more unlawful because Congress specifically addressed border-fence funding in the appropriations law the President signed the same day he issued the Proclamation. Under well-established rules of statutory construction, a specific law controls over more general laws and statutes are construed to avoid constitutional conflicts.
10. Beyond this, the Proclamation itself and the President’s accompanying statements belie the notion that there is a qualifying “emergency” within the terms of the NEA. While announcing the Proclamation in the White House Rose Garden, the President acknowledged that the “emergency” was his inability to persuade Congress to authorize the construction of a border wall or to appropriate funds to do so in the manner and amount he wants. As the President said, “I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster.”4
11. By declaring a national emergency where none exists, the Proclamation also violates long-standing laws prohibiting the military from engaging in domestic activity that Congress has not authorized. Invoking 10 U.S.C. § 12302, the Proclamation purports to authorize the Secretary of Defense to deploy Ready Reserve Units to the southern border in
4 President Donald J. Trump, Remarks from the White House Rose Garden (Feb. 15, 2019), available at https://bit.ly/2GAsKgG.
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contravention of laws limiting the military’s ability to engage in domestic law enforcement. The President’s Proclamation therefore represents a dangerous abuse of executive power of the sort the Framers of our Constitution sought to—and did—guard against.
12. The issuance of the Proclamation imposed concrete and immediate harms on Plaintiffs El Paso County and Border Network for Human Rights. El Paso County is a flourishing border community that has already been harmed by the President’s declaration of an emergency and faces additional imminent harm from the actions authorized by the Proclamation. BNHR likewise has sustained concrete harms to itself as an organization and to its members— hundreds of families and thousands of individuals living along the border where the President has declared an emergency, ordered the area’s militarization, and authorized construction. The harm to Plaintiffs does not stop with the Proclamation but will further increase with the actions already being taken pursuant to the President’s Proclamation. The Department of Defense has already transferred funds to provide for wall construction in the El Paso Sector in Doña Ana County and also planned for further wall construction in Santa Teresa, New Mexico.
13. Seeking redress for those harms, Plaintiffs come before this Court to ask it to fulfill its role in our constitutional system by saying what the law is and enforcing the plain meaning of statutes passed by Congress and the constitutional provisions on which they rest. Congress and the President must each observe their proper constitutional roles. When the President misapplies a statute as if it delegates to him the constitutional powers of the legislative branch, it is the appropriate role of the judicial branch to enforce the separation of powers. See, e.g., Clinton v. City of New York, 524 U.S. 417 (1998). The executive branch often seeks great deference from the courts in carrying out its discretionary functions, especially where “national security” is allegedly at stake. But no such deference is owed to the executive here, where the
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President is violating statutes and usurping the legislative branch’s role. The only deference owed in this instance is to Congress and to the Constitution, which grants to Congress the powers that the President purports to exercise. Put another way, having seized the power of the legislative branch to make law and spend federal funds, the President may not attempt to sideline the judicial branch by arguing that it cannot interpret and apply the law. Plaintiffs urge this Court to reject any such entreaties. Otherwise, it would license the executive to accumulate all powers—legislative, executive, and judicial—in just the way the Framers feared.
PARTIES 14. Plaintiff El Paso County, Texas (“El Paso County”) is a county recognized as a legal subdivision of the State of Texas. Tex. Const. art. 11, § 1. El Paso County has the constitutional and statutory authority to set policies and regulations, raise revenue, and administer programs for its residents in certain areas, including administering its County judicial system and providing health and social services to many County residents regardless of their national origin. 15. Plaintiff El Paso County is bilingual, bi-national, multicultural, and geographically distinct. El Paso County has over 800,000 residents, more than 82 percent of whom are Hispanic and more than 25 percent of whom are foreign born. It is part of the largest border community on the Rio Grande and one of the safest communities in the nation. El Paso County takes great pride in protecting all its residents and its values, and has been a leader in the fight against discrimination of all types for decades, with a special focus on protecting the civil rights of its immigrant communities. 16. Plaintiff Border Network for Human Rights is a community-based membership organization incorporated in Texas with 501(c)(3) tax-exempt status. Founded in 1998, BNHR
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is one of the leading human rights advocacy and immigration reform organizations located at the southern border. BNHR has over 5,000 members in West Texas and southern New Mexico. For over 20 years, it has worked with border communities to fulfill its mission: to use human rights education to organize and mobilize border communities and to ignite change in immigration and border enforcement policy and practice. BNHR facilitates the education, organizing, and participation of marginalized border communities in defending and promoting human and civil rights. BNHR supports these communities’ work to create political, economic, and social conditions where every human being is equal in dignity and rights. BNHR brings this action on its own behalf, but in so doing seeks to protect the interests of its members, who live and work in El Paso County and southern New Mexico.
17. Defendant Donald J. Trump is the President of the United States, and is sued in his official capacity. He issued the Proclamation in contravention of the NEA, other statutes, and the United States Constitution.
18. Defendant Patrick M. Shanahan is the Acting Secretary of the United States Department of Defense (“DOD”), and is sued in his official capacity. According to the Proclamation and White House announcement of February 15, 2019, Acting Secretary Shanahan is responsible for exercising military construction authority and spending under 10 U.S.C. § 2808, for reprogramming funds under 10 U.S.C. § 284, for deploying Ready Reserve Units to the southern border under 10 U.S.C. § 12302, and for taking other action to use or support the use of those authorities, including, if necessary, the transfer and acceptance of jurisdiction over border lands.
19. Defendant Kevin McAleenan is the Acting Secretary of the United States Department of Homeland Security (“DHS”), and is sued in his official capacity. According to the
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Proclamation, Acting Secretary McAleenan is responsible for taking all appropriate actions to use or support the use of 10 U.S.C. § 2808 and 10 U.S.C. § 12302, including, if necessary, the transfer and acceptance of jurisdiction over border lands.
20. Defendant Todd T. Semonite is the Commanding General of the United States Army Corps of Engineers, and is sued in his official capacity. The Army Corps of Engineers is responsible for awarding construction contracts pursuant to 10 U.S.C. § 2808 and 10 U.S.C. § 284.
21. Defendant David Bernhardt is Acting Secretary of the United States Department of the Interior, and is sued in his official capacity. According to the Proclamation, Acting Secretary Bernhardt is responsible for taking all appropriate actions to use or support the use of 10 U.S.C. § 2808 and 10 U.S.C. § 12302, including, if necessary, the transfer and acceptance of jurisdiction over border lands.
JURISDICTION AND VENUE 22. This Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action arises under the United States Constitution, the Administrative Procedure Act (“APA”), the NEA, and other federal statutes. 23. This Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, the APA, 5 U.S.C. § 706, and its equitable powers. 24. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and (e)(1). A substantial part of the events giving rise to these claims occurred in this district, the Plaintiffs reside in this district, and each Defendant is an officer of the United States sued in his or her official capacity.
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RELEVANT STATUTORY BACKGROUND A. The 2019 Consolidated Appropriations Act
25. Congress passed and the President signed into law the 2019 Consolidated Appropriations Act on February 15, 2019. Congress enacted the measure after extensive debate, including a government shutdown, over the appropriate funding levels for border wall construction.
26. In the Consolidated Appropriations Act, Congress authorized and appropriated the expenditure of $1.375 billion to repair certain existing border fencing or barriers and to provide for 55 miles of new fencing in the Rio Grande Valley Sector, using a previously deployed design. This was less funding, fewer miles of fencing, and a different design than the President had proposed in his fiscal year 2019 budget request. B. The National Emergencies Act
27. Congress enacted the NEA in 1976 with overwhelming majorities in both houses, recognizing that presidents were overusing the powers that Congress had granted them to act quickly in situations where Congress lacked adequate time to do so. The NEA terminated existing emergencies (some of which had persisted for decades) and created a new framework to cabin the President’s authority. 50 U.S.C. § 1601 et seq. The NEA’s primary purpose was to prevent the President from exercising unbounded authority to declare emergencies and to continue states of emergency in perpetuity.
28. The NEA provides: “with respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency.” 50 U.S.C. § 1621.
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29. The NEA does not define the term “emergency,” so it is construed “‘in accordance with [its] ordinary meaning.’” Sebelius v. Cloer, 569 U.S. 369, 376 (2013) (citation omitted). In 1976, “emergency” was understood, as it is today, as an unforeseen combination of circumstances that calls for immediate action.
30. The NEA further provides that when the President declares an emergency, he must specify which statutes authorize the acts he proposes to address it: “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” 50 U.S.C. § 1631.
31. The NEA thus permits the President to direct the use of certain resources, but only in a qualifying emergency and only in the manner and to the extent that Congress has previously authorized by statute. While the NEA gives the President broad authority to declare an emergency, it does not permit the President to do so when no emergency exists, or to fabricate an improper or pretextual basis for the declaration. And even under a proper declaration of emergency, the NEA does not give the President the power to do anything he wants.
32. The statute’s legislative history makes clear that the NEA was intended to ensure that “the extraordinary powers which now reside in the hands of the Chief Executive . . . could be utilized only when emergencies actually exist”; that “[r]eliance on emergency authority, intended for use in crisis situations would no longer be available in non-crisis situations”; and that “the United States travels a road marked by carefully constructed legal safeguards.”5
5 S. Rep. No. 94-1168, at 291 (1976), available at https://bit.ly/2UYaRvb. 11

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Senator Charles Mathias, Republican from Maryland and one of the Act’s co-sponsors, called it a “safeguard” against abuses of presidential power.6
33. Nothing in the NEA suggests that it was intended to delegate congressional appropriations power, or any other legislative power, to the President. C. The Specific Statutes and Authorities Invoked in the Proclamation
34. The Proclamation and accompanying White House Statement invoke 10 U.S.C. § 2808(a), which permits certain military construction activities during national emergencies and 10 U.S.C. § 284, which allows specified counterdrug activities for the Department of Defense. These statutes do not permit the President to override specific congressional appropriations for construction at the southern border or specific authorizations for the use of the United States military, either by their plain language or under the constitutional separation of powers.
1. 10 U.S.C. § 2808(a) 35. Article I enumerates congressional powers over the military and national defense. Congress has the power to make and limit military appropriations, raise and support armies, provide for and maintain a navy, declare war, and provide for organizing and calling forth the national guard. And Congress has taken specific action to enforce its powers to oversee the military, exercising extensive oversight and spending authority over military construction through the enactment of the Military Construction Codification Act and the National Defense Authorization Act. 36. The Military Construction Codification Act provides a narrowly cabined exception to the requirement of congressional authorization for all military construction projects. It provides that, in the event the President declares war or a national emergency under the NEA
6 Id.
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that “requires use of the armed forces,” the Secretary of Defense “may undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.” 10 U.S.C. § 2808(a).
37. Under 10 U.S.C. § 2808(a), a president could order military construction to support the use of U.S. troops that were deployed to respond to a national emergency of a kind requiring use of the armed forces. But the statute vests the authority to determine whether the national emergency “requires use of the armed forces” in the Secretary of Defense, not the President. See 10 U.S.C. § 2808(a) (authorizing the Secretary of Defense to take certain actions “in the event of” a national emergency “that requires use of the armed forces”). A president’s attempt to make this determination in place of the Secretary of Defense is therefore without force or effect. And any determination by the Secretary of Defense that “use of the armed forces” is “require[d]” must be made consistent with the APA.
38. Even if a President had authority to determine that the use of the armed forces is required and could thereby unilaterally invoke the powers created by section 2808, any invocation of the statute must be consistent with the statute’s terms. The statute authorizes a construction project “necessary to support . . . use of the armed forces,” 10 U.S.C. § 2808(a). It does not authorize deploying the armed forces for purposes of engaging in a domestic, nonmilitary construction project. A non-military construction project does not become an authorized exercise of the statute simply by deploying troops to do such work—that approach would turn the statute on its head.
39. In addition, the statute defines “military construction” in subsection (a) of 10 U.S.C. § 2801 as a project “carried out with respect to a military installation,” defined as “a base,
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camp, yard, center, or other activity under the jurisdiction of the Secretary of a military department.”
40. History makes clear the meaning of “military installation” under 10 U.S.C. § 2808. Presidents have twice invoked military construction authority pursuant to 10 U.S.C. § 2808 and the NEA. President George H.W. Bush invoked the pair of statutes during Operation Desert Shield, and President George W. Bush invoked them in the aftermath of the terrorist attacks of September 11, 2001. According to the Congressional Research Service, “from 2001 through 2014, the [Department of Defense] funded a total of 18 projects under 10 U.S.C. § 2808, after the President invoked the NEA, with a combined value of $1.4 billion. With the exception of one project dating from December 2001 related to security measures for weapons of mass destruction at sites in the continental United States, most of the projects took place at overseas locations.”7 Military construction projects funded under the NEA have included, inter alia, barracks and airport runways in Afghanistan and courthouse security at the U.S. Naval Base at Guantanamo Bay.
2. 10 U.S.C. § 284 41. Congress authorized and funded the Department of Defense to support certain counterdrug activities under 10 U.S.C. § 284. Within limits, one type of support enumerated in section 284 is “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(b)(7). 42. In enacting 10 U.S.C. § 284, Congress authorized the Defense Secretary only “to provide support” for the counterdrug activities of other agencies, not to undertake a major
7 Michael J. Vassalotti & Brendan W. McGarry, Military Construction Funding in the Event of a National Emergency, Congressional Research Service (Jan. 11, 2019), available at https://bit.ly/2Ipi3zi.
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construction project. (Emphasis added). The statute’s plain language makes that clear. Subsection (h)(1)(B) requires the Defense Secretary to give Congress fifteen days’ written notice before providing such support, including “a description of any small scale construction project for which support is provided.” (Emphasis added). The statute defines “small scale construction” as “construction at a cost not to exceed $750,000 for any project.” Congress would not have required a description of “any small scale construction” projects if it was, at the same time, authorizing support for $2.5 billion of fences. Cf. Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress . . . does not, one might say, hide elephants in mouseholes.”).
43. The scale of the “[c]onstruction of roads and fences . . . to block drug smuggling corridors across international boundaries” authorized by 10 U.S.C. § 284 must also be understood relative to the scale of the other types of “support” authorized by the statute. Those include providing maintenance and repair of equipment, transporting personnel, and “establish[ing] (including an unspecified minor military construction project) and operat[ing] bases of operations or training facilities for the purpose of facilitating counterdrug activities.” 10 U.S.C. § 284(b)(4) (emphasis added). None of these are on the scale of constructing a multibillion-dollar border wall.
44. Furthermore, the entirety of the 1,954-mile southern border does not constitute a “drug smuggling corridor” under 10 U.S.C. § 284(b)(7). The term “corridor” refers to a passageway. At most, section 284(b)(7) allows support for up to $750,000 of fencing along specific passageways across which drug smuggling is known to occur, not an extensive barrier along the international border.
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FACTUAL ALLEGATIONS A. After extensive debate, Congress has enacted, and the President has signed into law,
appropriations for a limited amount of funding for border construction. 45. Since at least 1996, Congress has exercised its legislative authority with respect to issues surrounding the southern border and, more specifically, has limited the funding and construction of fencing along the border. 46. In 1996, for example, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) (Pub. L. No. 104-208, div. C), section 102 of which authorized no more than $12 million for construction of fencing and road improvements near the San Diego, CA border. IIRIRA section 102(b)(4) also sets out express limitations on mileage, stating that “the Attorney General shall provide for the construction along the 14 miles of the international land border of the United States, starting at the Pacific Ocean and extending eastward, of second and third fences, in addition to the existing reinforced fence, and for roads between the fences.” (Emphasis added). 47. In 2006, Congress amended section 102(b) of IIRIRA (Pub. L. No. 104-208; 8 U.S.C. § 1103) to mandate fencing in specific and geographically defined places. For example, Congress mandated fencing extending only 10 miles west and 10 miles east of the Tecate, CA port of entry; 10 miles west of the Calexico, CA port of entry and five miles east of the Douglas, AZ port of entry; five miles west of the Columbus, NM port of entry and 10 miles east of the El Paso, TX port of entry; five miles northwest of the Del Rio, TX port of entry and five miles southeast of the Eagle Pass, TX port of entry; and 15 miles northwest of the Laredo, TX port of entry to the Brownsville, TX port of entry.8
8 Secure Fence Act of 2006, Pub. L. No. 109-367, § 3 (2006).
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48. In 2007, Congress passed the Department of Homeland Security Appropriations Act of 2007 (H.R. 5441), appropriating $1,187,565,000 “for customs and border protection fencing, infrastructure, and technology.”
49. In 2008, Congress passed the Consolidated Appropriations Act of 2008 (Pub. L. No. 110-161, div. E), appropriating $1,225,000,000 for customs and border protection fencing, infrastructure, and technology, and directing the Secretary of Homeland Security to “construct reinforced fencing” only “where fencing would be most practical and effective.”
50. In 2018, Congress enacted the Consolidated Appropriations Act (H.R. 1625), again expressly setting limits as to both money and miles. Section 230 of this Act limited border funding to $1,571,000,000 for “[p]rocurement, [c]onstruction and [i]mprovements” along the southern border, to be distributed in specific amounts for specific projects at specific locations.
51. Congress rejected numerous other proposed pieces of legislation for more funding for a border wall.
52. In early 2019, the President asked Congress to appropriate $5.7 billion for constructing border barriers. He also asked Congress to approve border barrier construction in any location, using any design. Congress considered these proposals in the “End the Shutdown and Secure the Border Act” (Senate Amendment 5 to H.R. 268), but the Senate rejected them.
53. Instead, Congress enacted the 2019 Consolidated Appropriations Act (H.J. Res. 31), which provides $1.375 billion for “the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector,” per section 230. The Act does not provide any funding for fencing in or within hundreds of miles of El Paso, Texas, nor does it provide funding for fencing along the New Mexico-Mexico border in Doña Ana County. The Act provides additional restrictions, including restricting fencing to only that utilizing a
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previously developed design, prohibiting construction of fencing within several wildlife areas along the southern border, requiring DHS and local officials to reach mutual agreement about the design and alignment of physical barriers within each border city, and providing for a notice and comment period.
54. President Trump signed this bill into law on February 15, 2019. B. After signing the Consolidated Appropriations Act, the President issued a
Proclamation and Statement declaring an emergency and directing the government to spend additional funds on border fencing. 55. On the same day the President signed the Consolidated Appropriations Act, February 15, 2019, he also issued the Proclamation along with an accompanying White House Statement setting forth the authority under which he purported to act. The Proclamation seeks to declare a national emergency under the National Emergencies Act and to direct federal agencies to take action at the southern border under certain specified statutes. The White House Statement issued with the Proclamation further states that $6.7 billion in additional funds “will be available to build the border wall” upon declaration of an emergency. This includes $601 million from the Treasury Department’s Asset Forfeiture Fund; up to $2.5 billion under the Department of Defense funds transferred from Support for Counterdrug Activities (10 U.S.C. § 284); and up to $3.6 billion reallocated from Department of Defense military construction projects under the President’s declaration of a national emergency (10 U.S.C. § 2808). The White House Statement indicates that “[n]ew projects could include: new levee wall, new and replacement primary pedestrian barrier, new vehicle-to-pedestrian barrier, and new secondary barrier.”9
9 Statement, White House, President Donald J. Trump’s Border Security Victory (Feb. 15, 2019), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-bordersecurity-victory/.
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56. The Proclamation does not acknowledge the 2019 Consolidated Appropriations Act that the President signed the very same day he issued the Proclamation. Nor does it acknowledge other specific Acts of Congress, set forth above, which govern construction of border fencing.
57. On February 25, 2019, DHS officially requested that the Department of Defense supply it with military funds to construct approximately 200 miles of barriers along the southern border.
58. On February 26, 2019, the House of Representatives passed a resolution pursuant to the National Emergencies Act to terminate the President’s emergency declaration. Shortly thereafter, the Senate passed the same resolution with a 59-41 bipartisan majority. On March 15, 2019, President Trump vetoed the disapproval resolution.
59. By March 11, 2019, Defendants informed Congress that they were preparing a transfer of funds into the Drug Interdiction and Counter-Narcotics Activities account under 10 U.S.C. § 284 for diversion to border barrier construction. This transfer was necessary because DOD had already spent more than 90 percent of the $881.5 million appropriated for that account in fiscal year 2019, while the administration had announced its intention to funnel $2.5 billion to the wall through that account.
60. On March 18, 2019, Acting Defense Secretary Shanahan sent a “Fact Sheet” to Congress identifying a pool of military construction funding sources available for use under 10 U.S.C. § 2808 to construct border barriers. Among the military construction funds identified as available for such use is $52.3 million for three projects at Fort Bliss Army Base in El Paso. Fort Bliss is a primary driver of the El Paso County and regional economy.
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61. On March 25, 2019, DOD confirmed the transfer of $1 billion from previously appropriated military personnel accounts to the depleted Drug Interdiction and Counter-Drug Activities account for further diversion to DHS wall construction.
62. In making that transfer, DOD relied on section 8005 of the 2019 Department of Defense Appropriations Act, Pub. L. No. 115-245. That section allows for transfers of funds only “based on unforeseen military requirements,” and “in no case where the item for which funds are requested has been denied by the Congress.” And it further states that transfers may be made only “for military functions (except military construction).”
63. On March 25, 2019, Defendant Shanahan confirmed in a letter to DHS that he “ha[d] decided to undertake Yuma Sector Projects 1 and 2 and El Paso Sector Project 1 by constructing 57 miles of 18-foot-high pedestrian fencing.” El Paso Sector Project 1 entails the construction of 46 miles of new or replacement border walls in southern New Mexico. This project will cover the entirety of the border in Doña Ana County, New Mexico, which is immediately adjacent to El Paso County. Residents of Plaintiff El Paso County and members of Plaintiff BNHR frequently drive back and forth between El Paso County and the New Mexico border in Doña Ana County, use natural resources on the New Mexico-Mexico border, are affected by traffic and congestion in the region’s ports, and will be injured by the construction of a border wall in this area.
64. In the letter, Defendant Shanahan authorized the U.S. Army Corps of Engineers to “coordinate directly with DHS/CBP and immediately begin planning and executing up to $1B in support of DHS/CBP.”
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65. According to a spokesperson for the Army Corps of Engineers, contracts for construction in these areas will be sent to builders in April 2019, and construction could begin in May 2019.
66. On April 9, 2019, DOD announced the award of a $789 million fixed-firm contract “for border replacement wall construction.” It further announced that “[w]ork will be performed in Santa Teresa, New Mexico, with an estimated completion date of Oct. 1, 2020.” The Santa Teresa port of entry is 15 miles from downtown El Paso and is used frequently by residents of Plaintiff El Paso County and members of Plaintiff BNHR. The construction of this border replacement wall in Santa Teresa will result in additional harm to residents of El Paso County and members of BNHR. C. The Proclamation does not meet the NEA’s definition of “emergency.”
67. As set forth above, the NEA permits the President to act in unforeseen situations that require action so immediate that only the President is capable of ordering it. That is the opposite of what the President has done here.
68. As alleged, supra, Congress has acted repeatedly to make policy and to appropriate funds for construction on the southern border over a sustained period of time. And the President has repeatedly acknowledged that the situation at the border is not unforeseen and that he was not compelled to act with immediacy to respond to it.
69. The President and Congress have disagreed over how to address immigration and drug enforcement issues at the southern border for the entirety of the President’s time in office. President Trump campaigned on the promise of building a wall along the length of the southern border that Mexico would pay for. During the first two years of his presidency, after it became clear that Mexico would not be paying for the promised border wall, Congress declined to grant
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the President’s full requests for funding for new border barriers, notwithstanding that the President’s party controlled both chambers of Congress.
70. For fiscal year 2017, Congress voted to appropriate $341 million to DHS to replace existing barriers on the southern border.10 For fiscal year 2018, Congress voted to appropriate $1.57 billion to build or replace fencing on the southern border.11
71. The disagreement came to a head prior to the 2018 midterm elections and escalated after Democrats won control of the House of Representatives (but before the new, Democratic-controlled House, was sworn in). As part of his proposed 2019 budget for DHS, President Trump twice requested that Congress appropriate $1.6 billion for the construction of 65 miles of new border wall.12 Congress three times rejected that request: twice before the 2018 midterm elections, when both houses of Congress were controlled by Republicans, and once after, when Democrats won control of the House of Representatives.
72. There was no absence of action by Congress on border security policy. There was no absence of action by Congress on funding for border fences. And there was no lack of time for Congress to act.
73. In December 2018 and January 2019, the President refused to sign a budget resolution that did not contain funding for construction of a border wall, resulting in a 35-day partial government shutdown. The shutdown ended when the President agreed to sign a threeweek continuing resolution with $1.6 billion in appropriations for border security, but no funds for new border wall construction.
10 Consolidated Appropriations Act of 2017, Pub. L. No. 115-31, 131 Stat. 433–34 (2017). 11 Consolidated Appropriations Act of 2018, Pub. L. No. 115-141, H.R. 1625—269 (2018). 12 See, e.g., Office of Mgmt. & Budget, An American Budget: Budget of the U.S. Government— Fiscal Year 2019 (Feb. 12, 2018), available at https://bit.ly/2nTPE7s.
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74. On January 4, 2019, in the midst of the budget standoff, the President began threatening to reframe his policy dispute with Congress as an “emergency.” On that day, the President asserted that if Congress did not give him the border wall funding he wanted, he would declare a national emergency as an alternative. He called the Proclamation “another way of doing it” if he could not achieve his agenda through “a negotiated process”: “We can call a national emergency because of the security of our country, absolutely. No, we can do it. I haven’t done it. I may do it. I may do it, but we could call a national emergency and build [the wall] very quickly, and it’s another way of doing it. But if we can do it through a negotiated process, we’re giving that a shot.”
75. Thereafter, on multiple occasions over the ensuing six weeks, the President publicly asserted that he had the power to declare an emergency. But he acknowledged both in his words and his actions that there was no immediate need to declare one, saying at various times that he would not do it “right now,” or “so fast.” Instead, the President characterized his claimed emergency power as a backup plan “if I can’t make a deal with people [in Congress] that are unreasonable.” This posture stands in direct contradiction with the purpose of the NEA, which is to empower the President to act when, because of the unforeseen nature of the emergency, Congress lacks the time to do so.
76. Following a series of warnings over several weeks, the President finally declared an emergency at the southern border after signing the Consolidated Appropriations Act, which limited appropriations for border fencing to a lower amount and fewer miles than he wanted for construction of a border wall. During his announcement of his Proclamation declaring an emergency, and after recounting his disagreement with Congress over funding for a border wall, the President said that “I didn’t need to do this.”
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77. The President’s Proclamation marks the first time a President has used the NEA to contravene the clearly expressed will of Congress on a policy and appropriations matter.
78. The President’s Proclamation states that the “emergency” at the southern border derives from the fact that the southern border is “a major entry point for criminals, gang members, and illicit narcotics,” and in his remarks that day, the President repeatedly stated that there was “an invasion” of drugs, criminals and gangs across the border. None of this is true. There is no evidence that the southern border is a “major entry point” for criminals or gang members. On January 10, 2019, the President stated that without a wall, “you’re going to have MS-13 and the gangs coming in” and had previously (February 23, 2018) tweeted that “MS-13 gang members are being removed by our Great ICE and Border Patrol Agents by the thousands.” However, according to the U.S. Border Patrol, of the hundreds of thousands of unaccompanied children who entered the U.S. between 2012 and 2017, only 56 were suspected of having MS-13 ties.
79. Nor, contrary to the Declaration, would a wall affect any flow of drugs into the U.S. Although the President stated on February 15 that, “a big majority of the big drugs—the big drug loads—don’t go through ports of entry. They can’t go through ports of entry,” the Drug Enforcement Administration (“DEA”) has stated just the opposite, that “Mexican TCOs [Transnational Criminal Organizations] transport the bulk of their drugs over the Southwest Border through ports of entry (“POEs”) using passenger vehicles or tractor trailers.” In its most recent drug threat assessment, the DEA reported that marijuana was the only illicit drug which saw a majority smuggled between ports of entry. As to all other drugs, the DEA said “the majority of the flow is through POVs [privately owned vehicles] entering the United States at legal ports of entry.”
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80. The President also cites “the problem of large-scale unlawful migration through the southern border,” but acknowledges that it is “long-standing.” Indeed, illegal crossings at the southern border have declined dramatically over time. Combining several metrics, DHS recently estimated a “91 percent decline” in illegal crossings between 2000 and 2016. Efforts by DHS to Estimate Southwest Border Security Between Ports of Entry, U.S. Dep’t of Homeland Security Off. of Immigr. Stat. 1 (Sept. 2017), http://tinyurl.com/DHSOISReport. The President then cites as his only example of this “unlawful migration” the “sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending.” However, these families come to the border to present themselves for asylum, which they have a legal right to do under 8 U.S.C. § 1158(a), meaning that the Proclamation’s entire predicate of “unlawful migration” is false. Southwest Border Migration FY 2019, U.S. Dep’t of Homeland Security, U.S. Customs & Border Protection (Apr. 2019), https://tinyurl.com/l5p7rgq.
81. In addition, there is nothing unforeseen about the “emergency” the President’s Proclamation describes at the southern border. Even if it were true, there is nothing unforeseen about the border being a “major entry point for criminals, gang members, and illicit narcotics.” Moreover, the Proclamation describes “unlawful migration” as a “long-standing” problem.
82. A President’s wish for more money to build a border wall, based on decades-old issues, does not meet the definition of an emergency. And construction, in whatever form, is not an “immediate” solution to the long-standing “emergency” the President has discussed since he announced his candidacy in 2015. To the extent there is a crisis at the southern border involving migrants seeking asylum, a wall has no impact because migrants are presenting themselves for
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surrender. Furthermore, additional segments of border wall will take months or years to construct.
83. Furthermore, an “emergency” is not something that is addressed after a purposeful weeks-long delay.
84. The President issued his Proclamation six weeks after first suggesting that he could use a national emergency for funding that Congress decided to withhold. During that time, Congress voted multiple times not to fund a border wall.
85. President Trump’s treatment of an emergency Proclamation as a backup plan to be invoked only if Congress rejected his policy proposal, along with his usurpation of Congress’s role on an appropriations issue, establish that the President’s Proclamation does not address an “emergency” within the meaning of the NEA and that this Court should enjoin its implementation. D. The Proclamation directs activities that are not authorized by the statutes it invokes.
86. Even if the Proclamation did lawfully invoke the NEA, the statutes and authorities cited in the Proclamation and White House Statement do not permit construction of a border wall.
87. The principal funding statute cited in the Proclamation is 10 U.S.C. § 2808. But this statute does not permit the President to fund border-barrier construction that Congress has not authorized. To begin, because the 2019 Consolidated Appropriations Act, like the 2018 Act, specifically addresses border fencing, section 2808 simply does not apply.
88. Moreover, section 2808 does not authorize border-barrier construction even if there were a bona fide emergency. As set forth above, in the event of a declaration of an emergency that (1) “requires use of the armed forces,” this statute permits the Secretary of
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Defense to (2) “undertake military construction projects . . . that are necessary to support such use of the armed forces.”
89. The Proclamation does not satisfy either of these two statutory requirements for invoking section 2808. First, the Proclamation itself counters the claim that an emergency “requires use of the armed forces.” The Proclamation describes criminal law and humanitarian challenges, as well as long-standing civilian problems on the border—but does not articulate any situation that requires the use of the armed forces.
90. Second, the construction of a border wall does not qualify as “military construction” as defined by subsection (a) of 10 U.S.C. § 2801, which describes “military construction” as a project “carried out with respect to a military installation.” And in subsection (c)(4), “military installation” refers to “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” But “[a] border wall, by contrast, is a civilian structure to be manned by civilian authorities to perform a civilian mission. The troops would not be creating a military fortification for military use.”13
91. The non-military nature of this construction project is reinforced by two decades of experience. Since 1996, hundreds of miles of southern border barriers have been built without any use of the armed forces. Likewise, policing the southern border has been the function of the Department of Homeland Security, and prior to that the Immigration and Naturalization Service, not the military.14
13 David French, Trump’s Emergency Declaration Is Contemptuous of the Rule of Law, National Review (Feb. 15, 2019), https://bit.ly/2TWwY56. 14 Federation for American Immigration Reform, The Current State of the Border Fence (Jan. 2017), https://www.fairus.org/issue/national-security/current-state-border-fence.
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92. Beyond that, the construction of a border wall is not (in the language of section 2808) “necessary to support [the required] use of the armed forces.” The Proclamation turns the statute on its head, seeking to mobilize the armed forces to engage in a civilian construction project; not to engage in a construction project necessary to support the mobilization of the armed forces.
93. Section 284 also does not permit using the funds Congress has designated for counterdrug programs for border-barrier construction. As explained above, this statute only allows DOD to provide support for designated small-scale construction projects—not to fund its own large-scale construction.
94. Nor does section 8005 of the 2019 Department of Defense Appropriations Act authorize DOD to reprogram funds to provide support for the border wall under 10 U.S.C. § 284. Defendants’ purported need to construct a border wall is not an “unforeseen military requirement[].” And the President’s request for funds above the appropriated $1.375 billion to construct a border wall was “denied by Congress.”
95. In relying on section 8005, Defendants must argue that the border wall is not “military construction,” because that provision expressly prohibits fund transfers for “military construction.” Yet in relying on section 2808, Defendants press the exact opposite argument: that the border wall is “military construction.” Both interpretations cannot be correct. E. The issuance of the Proclamation injures Plaintiffs El Paso County and BNHR.
96. The President’s Proclamation, through its declaration of an emergency on the border and invocation of statutes allowing military mobilization, causes immediate and concrete injury to border communities, including Plaintiffs.
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El Paso County’s Reputation Is Damaged by the Proclamation 97. During the latter half of the Twentieth Century, El Paso County, anchored by the
City of El Paso, grew as a population and economic center. In addition to housing Fort Bliss, which continues to anchor the local economy, it was a center for copper mining, oil refining, and the garment industry. In the 1990s, the economy of the region underwent a significant shift with the signing of the North American Free Trade Agreement. Lower-wage manufacturing labor across the southern border displaced low-wage manufacturing, such as textiles, in El Paso County. El Paso County’s services industry grew in its place. According to the Federal Reserve Bank of Dallas El Paso Branch, “The growth of the service sector . . . more than offset the decline in manufacturing employment.”15
98. El Paso County and the City within it emphasize tourism as a local economic driver and have various programs for the explicit purpose of attracting visitors to El Paso. Since 2016, the County has invested $1,137,582 in tourist promotion, which includes promoting the historic Mission Trail. For that same time period, El Paso County has also spent $13,003,405 in operating the El Paso Coliseum, which, located approximately half a mile from the southern border, draws visitors from all over the country for various entertainment acts. The results of the County’s promotion of tourism have been impressive. The number of people visiting El Paso has steadily increased since 2014.16 This has led to an increase in the number of jobs in the region dedicated to the travel and hospitality industries, as well as increases in government revenues stemming from tourism.
15 Jesus Cañas, A Decade of Change: El Paso’s Economic Transition of the 1990s, EL PASO BUSINESS FRONTIER (2002), https://bit.ly/2BLqhMh. 16 Michael Ikahihifo, Tourism in El Paso Is on the Rise, KFOX14 (Apr. 12, 2018), https://bit.ly/2GC2PVB.
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99. The Rio Grande Council of Governments (“RGCOG”), which is an association of local governments established under state law that includes El Paso County, has recognized that: “The travel industry makes a substantial contribution to local government tax revenue across the [West] Texas counties. Local tax revenue is collected by counties and municipalities, as levied on applicable travel-related businesses and includes the transient lodging and local sales taxes. The economic impact of tourism in most [West] Texas Counties has increased consistently from 2010 to 2015.”17 This increase includes El Paso County.
100. A central driver of El Paso County’s success has been the remarkable safety of the community, and just as importantly, the national perception of El Paso County and its environs as a safe destination to live, work, and travel. The City of El Paso, located within El Paso County, has been recognized as one of the top 10 safest cities in the country for two consecutive years based on its low rates of violent crime and property crime.18 El Paso’s murder rate is approximately half that of the national average19 and much lower than that of other major cities.20
101. These safe conditions have not just allowed for growth in tourism and revenue in recent years in El Paso County; they are the foundation upon which El Paso County has already planned for future growth. In 2017, the RGCOG’s Board of Directors, which also serves as the West Texas Economic Development District (“WTEDD”), updated the 2016-2020
17 Rio Grande Council of Governments, West Texas Economic Development District: 2016-2020 Comprehensive Economic Development Strategy (Jan. 27, 2017), available at https://bit.ly/2NiIeWX. 18 Press Release, City of El Paso, City of El Paso Named Second Safest City in America (Aug. 2017), available at https://bit.ly/2TZkGsX. 19 Jane C. Timm, Fact Check: Trump Claims a Wall Made El Paso Safe. Data Shows Otherwise, NBC News (Feb. 11, 2019), https://nbcnews.to/2BxGyo2. 20 Ames Grawert and Cameron Kimble, Crime in 2018: Updated Analysis, Brennan Center for Justice (Dec. 2018), https://bit.ly/2sWnQlh.
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Comprehensive Economic Development Strategy for the WTEDD. This strategy lays out El Paso County’s economic development plans for the next several years and informs County decision-making and local economic planning. It projects that the region “will become a preferred area for businesses creation and relocation looking for,” among other things, “[h]igh quality of life for new and existing residents.”21 It bases this projection, in part, on an assessment that one of the “strengths” of the region is “[a]mple availability of land at affordable prices,” and that an “opportunity” for the region is the “[i]ncrease[d] awareness of the region’s strong assets.”22 But it warns of several weaknesses that could impair growth, including “[n]egative perceptions of low quality and high crime,” “[l]osses due to inefficiency in border crossings,” and “[t]ourism slumps.” And most notably and especially relevant to this complaint, it cites as a “threat” to future growth: “[p]erception of unrest along the Mexico border.”23
102. Prior to issuance of the Proclamation, President Trump’s messages about El Paso were mixed. Most dominantly, he has repeatedly warned of the crisis levels of drugs, gang violence, and crime taking place in border communities like El Paso. Yet he also has said that while El Paso was once one of the most dangerous places in the country, it is “one of America’s safest cities now.”24 He attributed that supposed change to the construction of border barriers within El Paso, but that is not true. Violent crime in the City of El Paso has fallen steadily since the mid-90s, mirroring crime trends around the country. Even while this trend has been national, El Paso’s crime rates have been substantially lower than other areas its size.25 When El Pasoans
21 Rio Grande Council of Governments, supra note 17. 22 Id. 23 Id. 24 President Donald J. Trump, State of the Union Address (Feb. 5, 2019), available at https://bit.ly/2BmeYdo. 25 Id.
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attempted to fact check the President’s misleading claims about their region by pointing out that El Paso has long been one of the safest places in America, the President responded by accusing El Paso of trying to doctor crime data, saying at a February 11, 2019 political rally in El Paso: “they’re full of crap.”26 The Proclamation Harms El Paso County’s Economic Development and Tourism Campaigns
103. The President then superseded this dispute with his emergency Proclamation, which described the southern border where both El Paso County and Border Network for Human Rights are located as the site of a “humanitarian crisis that threatens core national security interests and constitutes a national emergency.”27 He went on to use the full force of the federal government to officially declare that “[t]he southern border is a major entry point for criminals, gang members, and illicit narcotics,” and, contrary to his statements at the El Paso rally, that “the situation has worsened in certain respects in recent years.” The White House issued a Statement calling the area “highly dangerous.”28 The President declared that the situation at the border where Plaintiffs are located is so bad that it requires a militarization effort and the deployment of the armed forces.
104. The President’s Proclamation and the activity it directs by its very issuance create the negative perception the County has sought to counter. In particular, the Proclamation is an official government statement that the southern border is the site of crisis levels of crime and low quality of life.
26 Justin Wise, Trump: People Saying Wall Hasn’t Made Difference in El Paso Are “Full of Crap,” The Hill (Feb. 11, 2019), https://bit.ly/2SJydar. 27 Proclamation, supra note 1. 28 White House Statement, supra note 3.
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105. The President’s re-appropriation of billions of dollars of funds to militarize the region sends an immediate message to businesses or travelers thinking of spending time or money in El Paso County that it will be a far less attractive place to work, visit, or live.
106. The President’s Proclamation has, by its very signing, materialized the weaknesses and threats identified by El Paso County as to what would derail future economic growth in its strategic economic plan for 2016-2020.
107. In addition, Plaintiff El Paso County is injured by the Proclamation’s frustration of the County’s national campaign to promote El Paso’s history and culture and its ongoing efforts to attract visitors to the County who will spend money and engage in commerce. El Paso County employees who work on tourist and economic development initiatives are daily required to defend the County’s reputation and to disabuse misconceptions that, in their experience, and that of their professional advertisers, are a deterrent to people visiting or investing in El Paso County. El Paso Is Further Harmed by the Planned Border Construction
108. Plaintiff El Paso County is further injured by the Proclamation’s mandate for construction and the deployment of troops to the southern border, and by the government’s now imminent plans to commence wall construction in neighboring Doña Ana County, New Mexico. El Paso County relies on its geographic location, local history, environment, and natural beauty to attract development. El Paso County’s resources and development efforts are harmed by disruptive nearby construction, seizure of private property, noise and air pollution, and the blocking of aesthetic views of the local scenery.
109. Plaintiff El Paso County’s economy and culture also rely on its proximity to Mexico and the accessibility of its ports of entry. Substantial delays in crossings at the ports
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injure El Paso County by making it difficult for people and products to cross the southern border. The government’s policies for processing migrants are currently causing lengthy wait times at the El Paso ports. Nearby wall construction that threatens to restrict or delay use of alternative ports of entry in New Mexico, or that affects the movement of traffic on nearby highways, further undermines El Paso County’s status as a desirable place to visit and invest.
110. These collective harms, including reputational harm to El Paso County, threaten a decline in revenue for the County. The Proclamation Injures BNHR by Harming its Mission and Diverting its Resources
111. During the period in which El Paso County was experiencing both a decline in crime and growth in economic activity and population, various community organizations were central players in the region’s turnaround. One of those organizations is Plaintiff Border Network for Human Rights.
112. Plaintiff BNHR provides a variety of services and programs for families living near the southern border. These services include working with the community and local and federal law enforcement to promote public safety, informing residents of their civil rights, and conducting campaigns to integrate residents of El Paso and neighboring communities into city government, public safety departments, and the local economy. Among BNHR’s long-standing core mission functions is organizing and advocating for comprehensive immigration reform. BNHR has also devoted and continues to devote substantial resources to advocacy opposing additional construction of border barriers and militarization of the border in order to protect the interests of BNHR as an organization and of its members.
113. The Proclamation’s mandate for construction and the deployment of troops to the southern border injures BNHR in at least four ways. First, it has forced BNHR to divert
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organizational resources from its normal programming to respond to the President’s Proclamation. In the aftermath of the President’s Proclamation, BNHR has been forced to spend resources responding to the consequences of the Proclamation, including counseling and responding to concerns from members about the effects of the Proclamation on their well-being, their property and rights, and their opportunities to engage in public advocacy to mitigate the damage to BNHR members. Every weekend since the Proclamation, BNHR has conducted some activity—an advocacy event, a community training, or something similar—related to the President’s Proclamation. Even more, since the Proclamation, BNHR has conducted 10 to 15 “Know Your Rights” presentations per week in member communities. In the three years preceding the Proclamation, BNHR conducted between one and three such presentations per week. BNHR has also hired an additional policy consultant at an organizational cost of $14,400 to assist with an advocacy campaign to combat the division and fear sparked by the Proclamation’s misinformation. Finally, as a direct result of the Proclamation, BNHR has been sending regular delegations to meet with members of Congress in Washington D.C. to provide them with accurate information regarding the situation at the southern border; it has hosted several fact-finding congressional delegations in El Paso; and it has had to increase the frequency with which it works with local attorneys. As of April 17, 2019, these additional efforts have cost BNHR $26,956.00—$9,948 toward marches and protests; $7,995 toward travel; and $6,013 toward materials, equipment, rentals, and supplies.
114. The efforts in responding to the Proclamation have caused BNHR to abandon many of the services that it normally provides to its members and programs that are central to its mission, such as BNHR’s immigration reform advocacy campaign and BNHR’s annual Hugs Not Walls event, which aims to build trust between the community and law enforcement,
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including border patrol. For years, border patrol granted BNHR a permit to reunite families—for a day—along the Rio Grande canal. Due to the Proclamation and the diversion in resources it is requiring, BNHR was forced to cancel the event for 2019.
115. Even more, the Proclamation has caused BNHR staff and central members of the organization to divert their attention away from activities that are vital to sustaining the organization. For example, the day-to-day tasks of Fernando Garcia, BNHR’s Executive Director, have shifted dramatically since the Proclamation. Since the Proclamation, he meets with BNHR’s regional partners and allies on a daily basis to discuss new enforcement strategies at the border, he checks in daily with BNHR’s administrative team on the status of various financial and administrative processes, and he meets with directors twice daily, when he previously only met with them once a day. These efforts have minimized the time he is able to dedicate to his other executive director duties, such as fund-raising. The Proclamation, therefore, has caused the waste of both human and monetary resources that BNHR spent in preparation for upcoming Hugs Not Walls events.
116. Second, the Proclamation’s mandate for construction and the deployment of troops to the border injures BNHR’s organizational mission. As alleged above, the Proclamation is impairing BNHR’s key programs of immigration reform advocacy and initiatives to build trust and engagement between law enforcement and community members. The Proclamation has stigmatized BNHR’s community members, reducing their ability and willingness to cooperate with local and federal law enforcement. This stigmatization frustrates BNHR’s mission and campaigns, and increases the public safety risk for its members. And the President’s order that additional armed forces are necessary at the southern border is requiring BNHR to prepare and plan for how it will achieve its mission of building trust between its members and law
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enforcement when it now expects an influx of law enforcement and military personnel from outside the community with whom it will need to start its mission-based activities anew.
117. Third, the Proclamation’s mandate for border wall construction, the nowimminent construction along the New Mexico border, and threatened deployment of troops harms BNHR’s member families’ quality of life by creating the risk of public safety and traffic issues; clogged ports of entry where BNHR members and their families cross back and forth into Mexico; and the potential for high levels of noise and other forms of pollution from military and construction activity. BNHR members have already suffered because of escalating delays in border crossings at the El Paso ports of entry. The increase in time it now takes to cross the border in El Paso has hindered BNHR members in their ability to travel to Ciudad Juárez, Mexico, welcome family members from Ciudad Juárez, travel to their places of employment, and travel to medical appointments. BNHR must expend organizational resources to respond to these harms to its members. Additional harms are imminent, as DOD has transferred funds to provide “support” under 10 U.S.C. § 284 for a wall in the El Paso Sector in Doña Ana County, New Mexico, and has awarded contracts for construction at Santa Teresa, New Mexico. Residents of Plaintiff El Paso County and members of Plaintiff BNHR travel back and forth in this area, using roads and ports that will be affected by the construction. Construction in this area of a regional economy will also affect Plaintiffs’ economic interests.
118. And lastly, the Proclamation and accompanying White House Statement in intent and effect have stigmatized immigrant communities, heightening racial tensions and causing fear among BNHR’s member families. The President’s Proclamation and pledge to militarize the area because of threats he claims are caused by immigrants at the southern border have caused BNHR’s member families to suffer. They reasonably fear race-based violence towards them as a
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result of the false claims on which the Proclamation is based. They also reasonably fear an influx of law enforcement with whom they have not built up the levels of trust that BNHR has worked for years to cultivate in the El Paso community. BNHR member families are afraid to take their children to school, go to doctor’s appointments, show up at work, and even seek help from law enforcement when they need it. The President’s Proclamation has thus put BNHR’s member families at greater risk of rights violations. As a result of all of this, they fear increased public safety risks for children and for the community, which they must take steps now to mitigate unless and until the President’s unlawful action is stopped. BNHR must expend organizational resources to respond to these harms to its members.
119. For at least these reasons, the Proclamation has caused immediate and concrete injury to El Paso County and to BNHR. That injury would be remedied by a declaration from this Court that the President’s Proclamation is unlawful and by an order from this Court enjoining the Proclamation from taking any effect or federal officials from acting upon it.
CLAIMS FOR RELIEF COUNT I
(Proclamation Violates National Emergencies Act) 120. The foregoing allegations are realleged and incorporated by reference herein. 121. Under the National Emergencies Act, the President “is authorized to declare [a] national emergency” and thereby invoke certain “provisions of law conferring powers and authorities to be exercised during a national emergency . . . .” 50 U.S.C. § 1621. 122. The Proclamation violates the NEA because the current situation at the southern border does not qualify as an “emergency” under that term’s plain meaning. Whereas an emergency is an unforeseen event requiring immediate action, the issue of illegal immigration across the southern border is long-standing and has improved in recent years. Indeed, Congress
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considered the problem of illegal immigration and resoundingly rejected the idea that it required a wall stretching the length of the southern border. At bottom, illegal immigration is a political issue with which the legislative and executive branches have been grappling for years; it is not an “emergency” necessitating unilateral presidential action.
123. In signing the Proclamation, the President himself acknowledged that no “emergency” exists, stating, among other things, that: “I could do the wall over a longer period of time. I didn’t need to do this.”
124. If the current border situation qualifies as an “emergency,” then nothing would limit the President’s authority under the Act, raising significant constitutional doubts under the nondelegation doctrine. See Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935). The Act must be construed to avoid these constitutional concerns and thus to preclude the President’s declaration of an “emergency” at the southern border. See Indus. Union Dep’t AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (construing statute to avoid “a sweeping delegation of legislative power that might be unconstitutional” (quotation marks and citation omitted)).
125. Plaintiffs have a right of action to declare unlawful and enjoin unlawful executive action. See Chamber of Commerce v. Reich, 74 F.3d 1322, 1332 (D.C. Cir. 1996).
126. Plaintiffs have been injured, and will continue to be injured, by the Proclamation and Defendants’ actions taken pursuant thereto.
COUNT II (National Emergencies Act, As Construed By the Proclamation, Violates the Nondelegation
Doctrine) 127. The foregoing allegations are realleged and incorporated by reference herein. 128. A statute unconstitutionally delegates legislative power when it confers policymaking authority on the executive branch without providing an “intelligible principle to
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which” the executive branch “is directed to conform.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001); Panama Ref. Co., 293 U.S. 388.
129. The NEA allows the President to invoke “Acts of Congress authorizing the exercise . . . of any special or extraordinary power” whenever the President “declare[s] [a] national emergency.” 50 U.S.C. § 1621(a). The NEA does not define “emergency” or expressly specify any “intelligible principle” to guide the President’s “emergency” determination.
130. As noted supra, to avoid constitutional concerns, the NEA should be construed to require an actual “emergency,” viz., an unforeseen combination of circumstances that calls for immediate action. Under that definition, the Proclamation violates the NEA, because the situation at the southern border is not unforeseen, does not call for immediate action, and has been considered and addressed by Congress.
131. If the NEA is instead construed to authorize the Proclamation, the NEA amounts to an unconstitutional delegation of legislative power. That is especially so, because the appropriations authority triggered by an emergency declaration is a quintessentially legislative power. See, e.g., OPM v. Richmond, 496 U.S. 414, 424 (1990) (the Appropriations Clause’s “straightforward and explicit command” is that “no money can be paid out of the Treasury unless it has been appropriated by an act of Congress” (citation and quotation marks omitted)).
132. Plaintiffs have a right of action to declare unlawful and enjoin the instant application of the NEA as unconstitutional executive action taken pursuant to an excessive delegation of legislative power. See Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). Defendants have relied, and will rely, on the President’s emergency declaration to fund a border wall under 10 U.S.C. § 2808. Those actions should be declared unlawful and enjoined.
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133. Plaintiffs have been injured, and will continue to be injured, by the Proclamation, the NEA as construed by the Proclamation, and Defendants’ actions taken pursuant thereto.
COUNT III (Use of Unappropriated Funds to Construct Border Wall Under 10 U.S.C. § 2808 Violates
Article I, § 9, Clause 7 of the Constitution) 134. The foregoing allegations are realleged and incorporated by reference herein. 135. Defendants may not “draw[] [Money] from the Treasury, but in Consequence of Appropriations made by Law . . . .” U.S. Const. art. I, § 9, cl. 7. 136. 10 U.S.C. § 2808 does not authorize Defendants to spend up to $3.6 billion to construct a wall along the southern border. 137. Even assuming that the President has declared a valid national emergency under the National Emergencies Act, section 2808 places limitations on DOD’s use of funds pursuant to that declaration. In particular: (1) the national emergency must “require[] the use of the armed forces”; (2) the funding must be spent on a “military construction project”; and (3) the project must be “necessary to support such use of the armed forces.” 10 U.S.C. § 2808. 138. Defendants’ expenditure of section 2808 funds on a border wall satisfies none of these limitations. 139. First, the asserted national emergency at the southern border does not “require[] the use of the armed forces.” 140. Second, the construction of a border wall along the southern border is not a “military construction project.” 141. Third, the construction of a border wall along the southern border is not “necessary to support the use of the armed forces.”
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142. Plaintiffs have a right of action to declare unlawful and enjoin unconstitutional executive action. See Armstrong v. Exceptional Child Ctr. Inc., 135 S. Ct. 1378, 1384 (2015); Franklin, 505 U.S. at 801.
143. Plaintiffs have been injured, and will continue to be injured, by Defendants’ unconstitutional actions.
COUNT IV (Use of Unappropriated Funds to Construct Border Wall Under 10 U.S.C. § 284 Violates
Article I, § 9, Clause 7 of the Constitution) 144. The foregoing allegations are realleged and incorporated by reference herein. 145. Defendants may not “draw[] [Money] from the Treasury, but in Consequence of Appropriations made by Law . . . .” U.S. Const. art. I, § 9, cl. 7. 146. Congress has enacted a series of specific statutes that limit the location, type, and funding of additional fencing at the southern border. In particular, Congress enacted and the President signed into law the 2019 Consolidated Appropriations Act, which specifically limited the level and nature of appropriations for border fencing, the location of new fencing, and the design of new fencing. The Proclamation and accompanying White House Statement direct construction of a wall that violates each of these limits on new border fencing appropriations, locations, and design. The Department of Defense and Department of Homeland Security, in turn, have taken concrete steps to carry out this construction pursuant to 10 U.S.C. § 284. 147. Congress has not appropriated $2.5 billion in funds for the purposes authorized by 10 U.S.C. § 284 to construct a wall along the southern border. 148. 10 U.S.C. § 284 allows the Secretary of Defense to “provide support for the counterdrug activities . . . of any other department or agency . . . .” One form of authorized
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support is the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Id. § 284(b)(7).
149. But providing $2.5 billion in funding for a border wall is not “support” under 10 U.S.C. § 284’s terms. Nor is a wall stretching the length of the entire southern border a “fence . . . to block drug smuggling corridors.”
150. Section 8005 of the 2019 Department of Defense Appropriations Act authorizes the Secretary of Defense to reprogram funds “for military functions (except military construction) . . . based on unforeseen military requirements,” but “in no case where the item for which funds are requested has been denied by the Congress.” Pub. L. No. 115-245 § 8005.
151. Citing section 8005, DOD has transferred $1 billion in military pay and pension funds to the drug interdiction fund tied to 10 U.S.C. § 284 for purposes of building a border wall, a portion of which will be built in the El Paso Sector, where members of Plaintiff BNHR live.
152. That transfer is not authorized by section 8005. Defendants’ purported need to construct a border wall is not based on an “unforeseen military requirement[].” And the President’s request for funds above $1.375 billion to construct a border wall was “denied by Congress.”
153. The transfer also founders under Defendants’ own logic. Defendants claim that the border wall is a “military construction project” for purposes of 10 U.S.C. § 2808. That is wrong. But to the extent the Defendants are correct that construction of a border wall is a “military construction project” under section 2808, their transfer of funds is prohibited for that same reason under section 8005, which precludes reprogramming for “military construction.”
154. Plaintiffs have a right of action to declare unlawful and enjoin unconstitutional executive action. See Armstrong, 135 S. Ct. at 1384; Franklin, 505 U.S. at 801.
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155. Plaintiffs have been injured, and will continue to be injured, by Defendants’ unconstitutional actions.
COUNT V (Use of Funds Under 10 U.S.C. § 2808, 10 U.S.C. § 284, and 31 U.S.C. § 9705 to Construct
Border Wall Violates the Administrative Procedure Act) 156. The foregoing allegations are realleged and incorporated by reference herein. 157. Relying on 10 U.S.C. § 2808, 10 U.S.C. § 284, and 31 U.S.C. § 9705, the Proclamation directs Defendants to transfer appropriated money for purposes of funding a border wall. Defendants have taken concrete steps to do so: for instance, DOD has transferred $1 billion to the drug interdiction fund tied to section 284, and the Department of Treasury has made available $242 million to DHS. Such actions, among others, constitute “final agency action” subject to judicial review under the Administrative Procedure Act. 5 U.S.C. § 704. 158. The APA directs courts to “hold unlawful and set aside agency action” that is, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power, privilege or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706. 159. Section 739 of the Consolidated Appropriations Act of 2019 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 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.” Pub. L. No. 1166, § 739.
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160. Section 739 applies to and prohibits all of the administration’s proposed border wall funding. Those funds have been “made available” in appropriations Acts, and the border wall is a “program, project, or activity” for which the President’s budget has requested funds. Accordingly, “[n]one of [those] funds . . . may be used to increase” funding for the border wall.
161. The administration’s proposed funding increases do not fall under section 739’s exception for “change[s] . . . made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.” The statutory provisions invoked—10 U.S.C. § 2808, 10 U.S.C. § 284(b)(7), and 31 U.S.C. § 9705(g)(4)—are not “reprogramming or transfer provisions” of an “appropriations Act.”
162. Because the Defendants’ border wall funding plan violates the Consolidated Appropriations Act, as well as 10 U.S.C. § 2808, 10 U.S.C. § 284, and 31 U.S.C. § 9705, it is “in excess of statutory jurisdiction” and “not in accordance with law.” 5 U.S.C. § 706. It therefore must be “set aside.” Id.
163. Plaintiffs have a right of action to declare unlawful and enjoin final agency action in violation of the APA. 5 U.S.C. § 702.
164. Plaintiffs have been injured, and will continue to be injured, by Defendants’ actions in violation of the APA.
COUNT VI (Transfer of Funds to Construct Border Wall Under 10 U.S.C. § 284 Violates the
Administrative Procedure Act) 165. The foregoing allegations are realleged and incorporated by reference herein. 166. On March 25, 2019, invoking section 8005 of the 2019 Department of Defense Appropriations Act, Defendants transferred $1 billion for purposes of constructing a border wall
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under 10 U.S.C. § 284. That transfer constitutes “final agency action” subject to judicial review under the Administrative Procedure Act. 5 U.S.C. § 704.
167. The APA directs courts to “hold unlawful and set aside agency action” that is, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power, privilege or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706.
168. Defendants’ transfer of $1 billion for purposes of constructing a border wall is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “contrary to constitutional . . . power,” and “in excess of statutory jurisdiction [or] authority.” It therefore violates the APA and should be set aside.
169. Plaintiffs have a right of action to declare unlawful and enjoin final agency action in violation of the APA. 5 U.S.C. § 702.
170. Plaintiffs have been injured, and will continue to be injured, by Defendants’ actions in violation of the APA.
COUNT VII (The Take Care Clause) 171. The foregoing allegations are realleged and incorporated by reference herein. 172. The Proclamation violates the President’s constitutional duty to “take Care that the Laws be faithfully executed . . . .” U.S. Const. art. II, § 3, cl. 5. The Supreme Court has called this duty the President’s “most important constitutional duty.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992). 173. This duty of “faithful” execution of the laws imposes on the President a duty to act in good faith in his execution of the laws. That encompasses an obligation to act honestly—
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in good faith—in rendering declarations, determinations, and findings that he may only render because of a delegation of authority from Congress.
174. The President has not acted in good faith in his declaration that there exists a national emergency of the type described in the NEA. President Trump has access to information sources that renders in bad faith his repeated reliance on demonstrably false claims to support a declaration of a national emergency and to support other findings or determinations.
175. The President has not acted in good faith in rendering his determination that the purported national emergency “requires” the use of the military. President Trump’s public statement that “I didn’t need to” declare a national emergency shows that his purported determination that the situation at the southern border “requires” use of the armed forces is not made in good faith. Moreover, by declaring an emergency as an express response to legislation enacted by Congress that specifically limits border fence funding, President Trump has not acted in good faith. The President’s issuance of the Proclamation in violation of the duty to faithfully execute the laws inflicts ongoing harm on Plaintiffs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court: A. Declare that the President’s Proclamation of February 15, 2019 is unauthorized by, and contrary to, the Constitution and laws of the United States; B. Enjoin Defendants from taking any action pursuant to the Proclamation, the NEA, or any statutes cited in the Proclamation or the White House Statement issued February 15, 2019, or any other statutes Defendants have cited to justify actions taken pursuant to or arising out of the Proclamation; and C. Award such additional relief as the interests of justice may require.
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Dated: April 25, 2019

By: /s/ Richard Mancino_____________ Richard Mancino (Pro hac vice) WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 728-8000 Facsimile: (212) 728-8111 rmancino@willkie.com
Kristy Parker (Pro hac vice) Justin Florence (Pro hac vice) Erica Newland (Pro hac vice) THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Avenue., NW, #163 Washington, DC 20006 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 kristy.parker@protectdemocracy.org justin.florence@protectdemocracy.org erica.newland@protectdemocracy.org
Deana K. El-Mallawany (Pro hac vice) THE PROTECT DEMOCRACY PROJECT, INC. 125 Walnut Street, Ste. 202 Watertown, MA 02472 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 deana.elmallawany@protectdemocracy.org
Stephanie Llanes (Pro hac vice) THE PROTECT DEMOCRACY PROJECT, INC. 222 Broadway, 19th Floor New York, NY 10038 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 stephanie.llanes@protectdemocracy.org
Anton Metlitsky (Pro hac vice forthcoming) O’MELVENY & MYERS LLP Seven Times Square New York, NY 10036 Telephone: (212) 326-2000 ametlitsky@omm.com

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Ephraim McDowell (Pro hac vice forthcoming) O’MELVENY & MYERS LLP 1625 Eye Street NW Washington, DC 20006 Telephone: (202) 383-5300 emcdowell@omm.com
David Bookbinder (Pro hac vice) NISKANEN CENTER 820 First Street, NE Washington, DC 20002 Telephone: (301) 751-0611 dbookbinder@niskanencenter.org
Shaimaa M. Hussein (Pro hac vice) Matthew Dollan (Pro hac vice) Samantha G. Prince (Pro hac vice) WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 728-8000 Facsimile: (212) 728-8111 shussein@willkie.com mdollan willkie.com sprince@willkie.com
Stuart Gerson (Pro hac vice) EPSTEIN BECKER GREEN 1227 25th Street, NW Washington, DC 20037 Telephone: (202) 861-4180 sgerson@ebglaw.com
Laurence H. Tribe (Pro hac vice) Carl M. Loeb University Professor and Professor of Constitutional Law HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 Telephone: (617) 495-1767 tribe@law.harvard.edu
*Affiliation noted for identification purposes only
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Case 3:19-cv-00066-DB Document 52 Filed 04/25/19 Page 50 of 50 John C. Padalino (Texas SB# 24041638) 401 Congress Avenue, Suite 1540 Austin, TX 78701 Telephone: (512) 596-2944 Facsimile: (512) 596-2944 john@padalinolaw.com Counsel for Plaintiffs
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 Case 3:19-cv-00066-DB Document 54 Filed 04/25/19 Page 1 of 64

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

EL PASO COUNTY, TEXAS, and
BORDER NETWORK FOR HUMAN RIGHTS,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
PATRICK M. SHANAHAN, in his official capacity as Acting Secretary of Defense,
KEVIN McALEENAN, in his official capacity as Acting Secretary of Homeland Security,
TODD T. SEMONITE, in his official capacity as Commanding General United States Army Corps of Engineers
DAVID BERNHARDT, in his official capacity as Acting Secretary of the Interior, and
STEVEN T. MNUCHIN, in his official capacity as Secretary of the Treasury,
Defendants.

) ) ) ) ) ) ) ) ) ) Civil Action No. 3:19-cv-66 ) ) ) PLAINTIFFS’ MOTION FOR ) SUMMARY JUDGMENT OR, ) IN THE ALTERNATIVE, A ) PRELIMINARY INJUNCTION ) ) ) ) ) ) ) ) ) ) ) )

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TABLE OF CONTENTS (continued)

Page

INTRODUCTION ......................................................................................................................... 1 STATEMENT OF UNDISPUTED FACTS .................................................................................. 3
A. For Decades, Congress Addresses Border Security................................... 3 B. President Trump Makes a Border Wall His Signature Issue ..................... 3 C. President Trump Shuts Down the Government for a Border Wall ............ 4 D. President Trump Raises the Possibility of Declaring a National
Emergency ................................................................................................. 5 E. Congress Passes the 2019 Consolidated Appropriations Act .................... 5 F. President Trump Declares a National Emergency and Announces a
Plan to Fund a Border Wall ....................................................................... 6 G. Defendants Begin the Wall Construction Process ..................................... 7 H. Proceedings ................................................................................................ 8 ARGUMENT ................................................................................................................................. 8 I. PLAINTIFFS HAVE STANDING........................................................................ 9 A. El Paso County Has Standing .................................................................. 10 B. BNHR Has Standing ................................................................................ 16 II. THE PRESIDENT’S PROCLAMATION IS UNLAWFUL ............................... 19 A. The Proclamation Exceeds the President’s Authority Under the
NEA ......................................................................................................... 19 B. If Read to Authorize the Proclamation, the NEA Is
Unconstitutional ....................................................................................... 26 III. DEFENDANTS’ USE OF FUNDS TO BUILD A BORDER WALL
VIOLATES THE APPROPRIATIONS CLAUSE .............................................. 30 A. Defendants’ Wall-Funding Plan Violates the CAA................................. 33 B. Section 2808 Does Not Authorize Defendants’ Border-Wall
Expenditures ............................................................................................ 36 C. Section 284 Does Not Authorize Defendants’ Border-Wall
Expenditures ............................................................................................ 40 IV. DEFENDANTS’ ACTIONS VIOLATE THE ADMINISTRATIVE
PROCEDURE ACT............................................................................................. 44 A. Defendants’ Determination to Spend Funds on a Border Wall
Violates the APA ..................................................................................... 45 B. DOD’s Fund Transfers Violate the APA ................................................. 46

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TABLE OF CONTENTS (continued)

Page

V. EVEN IF A PERMANENT INJUNCTION WERE NOT YET WARRANTED, PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION...................................................................................................... 48
CONCLUSION............................................................................................................................ 50

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TABLE OF AUTHORITIES (continued)

Page(s)

Cases
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).................................................................................................................29
Alvarez v. Trump, No. 19-00404 (Apr. 2, 2019) (D.D.C.) ....................................................................................19
Ass’n of Cmty Organizations for Reform Now v. Fowler, 178 F.3d 350 (5th Cir. 1999) .........................................................................................9, 16, 17
Bauer v. Albemarle Corp., 169 F.3d 962 (5th Cir. 1999) .....................................................................................................8
Bennett v. Spear, 520 U.S. 154 (1997).................................................................................................................15
Bond v. United States, 564 U.S. 211 (2011).................................................................................................................29
Busic v. United States, 446 U.S. 398 (1980).................................................................................................................33
Carpenters Indus. Council v. Zinke, 854 F.3d 1 (D.C. Cir. 2017) .....................................................................................................15
Chamber of Commerce v. Dep’t of Labor, 885 F.3d 360 (5th Cir. 2018) .............................................................................................40, 43
Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937).................................................................................................................31
City & Cnty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) ...........................................................................................23, 30
City of Indianapolis v. Edmond, 531 U.S. 32 (2000)...................................................................................................................37
Clinton v. City of New York, 524 U.S. 417 (1998).............................................................................................................2, 30
Crowell v. Benson, 285 U.S. 22 (1932)...................................................................................................................24
Duarte ex rel. Duarte v. City of Lewisville, 759 F.3d 514 (5th Cir. 2014) ...................................................................................................10
Duncan v. Walker, 533 U.S. 167 (2001).................................................................................................................43

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TABLE OF AUTHORITIES (continued)

Page(s)

Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) .........................................................................................11, 16
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979)...................................................................................................................14
Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970) .................................................................................................48
Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977) .................................................................................................32
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).....................................................................................................16, 17, 18
Industrial Union Dept., AFL-CIO v. American Petroleum Inst., 448 U.S. 607 (1980).....................................................................................................24, 25, 26
INS v. St. Cyr, 533 U.S. 289 (2001).................................................................................................................24
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).................................................................................................................26
Jones v. Tex. Dep’t of Criminal Justice, 880 F.3d 756 (5th Cir. 2018) .....................................................................................................8
K.P. v. LeBlanc, 627 F.3d 115 (5th Cir. 2010) ...................................................................................................13
Lincoln v. Vigil, 508 U.S. 182 (1993).................................................................................................................44
Louisiana State v. U.S. Army Corps of Engineers, 834 F.3d 574 (5th Cir. 2016) ...................................................................................................44
Lujan v. Def. of Wildlife, 504 U.S. 555 (1992).......................................................................................................9, 10, 26
Marbury v. Madison, 5 U.S. 137 (1803).......................................................................................................................2
McCardell v. Dep’t of Hous. & Urban Devel., 794 F.3d 510 (5th Cir. 2015) ...............................................................................................9, 13
Meese v. Keene, 481 U.S. 465 (1987)...........................................................................................................11, 12
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).................................................................................................................12

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TABLE OF AUTHORITIES (continued)

Page(s)

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983)...................................................................................................................48
N.E. Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993).................................................................................................................14
NCAA v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013), rev’d on other grounds sub nom., 138 S. Ct. 1461 (2018) ........................................................................................................................11, 12
Nevada v. Dep’t of Energy, 400 F.3d 9 (D.C. Cir. 2005) ...............................................................................................33, 34
NLRB v. CNN Am., Inc., 865 F.3d 740 (D.C. Cir. 2017) .................................................................................................48
OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017) .............................................................................................17, 18
Old Dominion Branch No. 496 v. Austin, 418 U.S. 264 (1975).................................................................................................................23
OPM v. Richmond, 496 U.S. 414 (1990).................................................................................................................31
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).....................................................................................................27, 28, 29
Planned P’hood of Gulf Coast Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017) .............................................................................................49, 50
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)...................................................................................................................2
Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338 (D.C. Cir. 1996) .................................................................................................45
Roberts v. Sea-Land Servs., Inc., 566 U.S. 93 (2012)...................................................................................................................41
Salinas v. United States, 522 U.S. 52 (1997)...................................................................................................................42
SBA List v. Driehaus, 573 U.S. 149 (2014).......................................................................................................9, 13, 15
Scott v. Schedler, 771 F.3d 831 (5th Cir. 2014) .............................................................................................17, 18
Sebelius v. Cloer, 569 U.S. 369 (2013).................................................................................................................20

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TABLE OF AUTHORITIES (continued)

Page(s)

SEC v. Sethi, 910 F.3d 198 (5th Cir. 2018) .....................................................................................................8
Taylor v. Bair, 414 F.2d 815 (5th Cir. 1969) ...................................................................................................21
Tesfamichael v. Gonzales, 411 F.3d 169 (5th Cir. 2005) ...................................................................................................49
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ...................................................................................................11
Thompson v. Cherokee Nation of Okla., 334 F.3d 1075 (Fed. Cir. 2003)................................................................................................46
U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012) .........................................................................................30, 31
UARG v. EPA, 573 U.S. 302 (2014)...........................................................................................................42, 43
United States v. Bloom, 112 F.3d 200 (5th Cir. 1997) .....................................................................................................8
United States v. Foreman, 369 F.3d 776 (4th Cir. 2004) ...................................................................................................44
United States v. Govt. of VI, 363 F.3d 276 (3d Cir. 2004)...............................................................................................21, 22
United States v. MacCollom, 426 U.S. 317 (1976).....................................................................................................31, 33, 34
United States v. Pino, 855 F.2d 357 (6th Cir. 1988) ...................................................................................................44
United States v. Powell, 137 Fed. Appx. 701 (5th Cir. 2005).........................................................................................44
United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973)...................................................................................................................9
United States v. Vasquez, 298 F.3d 354 (5th Cir. 2002) .............................................................................................43, 44
United States v. Whaley, 577 F.3d 254 (5th Cir. 2009) .............................................................................................26, 29
Van de Walle v. Am. Cyanamid Co., 477 F.2d 20 (5th Cir. 1973) .....................................................................................................21

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TABLE OF AUTHORITIES (continued)

Page(s)

Walker v. City of Mesquite, 129 F.3d 831 (5th Cir. 1997) ...................................................................................................11
Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825)...................................................................................................27
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001)......................................................................................................... passim
Yakus v. United States, 321 U.S. 414 (1944)...........................................................................................................26, 28
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).....................................................................................................26, 29, 38
Zavydas v. Davis, 533 U.S. 678 (2001).................................................................................................................24

Statutes 1 U.S.C. § 105................................................................................................................................36 2 U.S.C. § 622(5) ...........................................................................................................................36 5 U.S.C. § 552................................................................................................................................29 5 U.S.C. § 553................................................................................................................................29 5 U.S.C. § 706................................................................................................................................29 5 U.S.C. § 706(2) ...............................................................................................................44, 45, 48 5 U.S.C. § 706(2)(A)......................................................................................................................48 6 U.S.C. § 202................................................................................................................................37 6 U.S.C. § 202(2) ...........................................................................................................................39 6 U.S.C. § 251................................................................................................................................37 8 U.S.C. § 1103................................................................................................................................3 8 U.S.C. § 1103(a)(5).....................................................................................................................37 8 U.S.C. § 1103(a)(10)...................................................................................................................37 10 U.S.C. § 275..............................................................................................................................38 10 U.S.C. § 284...................................................................................................................... passim 10 U.S.C. § 284(i)(3) .....................................................................................................................42 10 U.S.C. § 284(a) ...................................................................................................................33, 41 10 U.S.C. § 284(a)(7).....................................................................................................................33

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10 U.S.C. § 284(b) .........................................................................................................................41 10 U.S.C. § 284(b)(1)-(10) ............................................................................................................41 10 U.S.C. § 284(b)(7) ..............................................................................................................41, 43 10 U.S.C. § 284(h) .........................................................................................................................41 10 U.S.C. § 284(h)(1)(B) .........................................................................................................41, 42 10 U.S.C. § 2801(a) .................................................................................................................38, 39 10 U.S.C. § 2801(c)(4).............................................................................................................38, 39 10 U.S.C. § 2808.................................................................................................................... passim 10 U.S.C. § 2808(a) .......................................................................................................................35 18 U.S.C. § 1385............................................................................................................................38 21 U.S.C. § 360bbb-3 ....................................................................................................................25 31 U.S.C. § 1301......................................................................................................................32, 34 31 U.S.C. § 1301 et seq..................................................................................................................31 31 U.S.C. § 1341............................................................................................................................32 31 U.S.C. § 1532......................................................................................................................32, 46 47 U.S.C. § 606(c) .........................................................................................................................25 50 U.S.C. § 1621......................................................................................................................20, 27 Consolidated Appropriations Act, Pub. L. No. 110-161, 121 Stat. 1844 (2008).................3, 22, 38 Consolidated Appropriations Act, Pub. L. No. 115-31, 131 Stat. 135 (2017)...........................4, 36 Consolidated Appropriations Act, Pub. L. No. 115-141, to be printed at 132 Stat.
348 (2018) ..................................................................................................................................4 Consolidated Appropriations Act, Pub. L. No. 116-6, § 230 (2019) .......................................34, 47 Consolidated Appropriations Act, Pub. L. No. 116-6, § 230(a) (2019) ........................................32 Consolidated Appropriations Act, Pub. L. No. 116-6, § 230(a)(1) (2019)......................................5 Consolidated Appropriations Act, Pub. L. No. 116-6, § 231 (2019) ..................................... passim Consolidated Appropriations Act, Pub. L. No. 116-6, § 739 (2019) .......................................33, 34 Consolidated Appropriations Act, Pub. L. No. 116-6, to be printed at 133 Stat. 13
(2019) .........................................................................................................................................5 Department of Defense Appropriations Act, Pub. L. No. 115-245 (2019)..............................35, 46 Department of Defense Appropriations Act, Pub. L. No. 115-245, Title VI (2019) .....................46

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TABLE OF AUTHORITIES (continued)

Page(s)

Further Additional Continuing Appropriations Act, 2019, Pub. L. No. 116-5, to be printed at 133 Stat. 10 (2019) ....................................................................................................5
Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104208, 110 Stat. 3009 (1996).............................................................................................3, 22, 38
Invoking the National Emergencies Act (NEA), Pub. L. No. 94-412, 90 Stat. 1255 (1976) .......................................................................................................................................18
Military Construction Codification Act, Pub. L. No. 97-124, 96 Stat. 153-177 (1982) .................................................................................................................................35, 36
National Defense Authorization Act, Pub. L. No. 114-328, 130 Stat. 2000 (2016) ......................36
Secure Fence Act, Pub. L. No. 109-367, 120 Stat. 2368 (2006)..............................................22, 38

Other Authorities
2 Commentaries on the Constitution of the United States § 1348 (3d ed. 1858) ..........................31
Antonin Scalia, Testimony to the House of Representatives, Subcommittee on Administrative Law and Government Relations of the Committee on the Judiciary (Apr. 9, 1975) .....................................................................................................20, 24
CBP Enforcement Statistics FY 2019, U.S. Customs & Border Protection, https://tinyurl.com/CBPFY19Stats ..........................................................................................22
Corridor, American Heritage Dictionary (4th ed. 2006) ...............................................................43
Department of Defense Appropriations Act, H.R. 695, 115th Cong. (2018) ..................................5
Efforts by DHS to Estimate Southwest Border Security Between Ports of Entry, U.S. Dep’t of Homeland Security Off. of Immigr. Stat., 17 (Sept. 2017), http://tinyurl.com/DHSOISReport ...........................................................................................22
Emergency, American Heritage Dictionary (1st ed. 1976)............................................................20
Emergency, Webster’s New Collegiate Dictionary (8th ed. 1976)................................................20
Feb. 15 Rose Garden Remarks, http://tinyurl.com/TrumpRoseGardenRemarks ..........................23
The Federalist No. 58 (James Madison) ........................................................................................31
H.R. 1625, 115th Cong. (2018)........................................................................................................3
H.R. 5441, 110th Cong. (2007)........................................................................................................3
Janet A. McDonnell, After Desert Storm 221-22 (Dep’t of the Army 1999), https://tinyurl.com/McDonnellAfterDesertStorm ....................................................................39
Michael J. Vassalotti & Brendan McGarry, Cong. Research Serv., IN11017, Military Construction Funding in the Event of a National Emergency 3 (2019), https://tinyurl.com/CRS-MilConFunding ...................................................................39

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TABLE OF AUTHORITIES (continued)

Page(s)

Press Release, City of El Paso, City of El Paso Named Second Safest City in America (Aug. 2017), available at https://bit.ly/2TZkGsX .......................................................9
Project, Merriam-Webster’s Dictionary (10th ed. 1998)...............................................................35
Remarks by President Trump After Meeting With Congressional Leadership on Border Security, White House (Jan. 4, 2019), https://tinyurl.com/TrumpJan4Remarks ..................................................................................23
S. 3109, 115th Cong. (2018) ............................................................................................................4
S. Rep. No. 93-1170 (1974) ...........................................................................................................19
S. Rep. No. 94-1168 (1976) .....................................................................................................20, 24
Support, Oxford English Dictionary Online (last visited Apr. 25, 2019) ......................................42
To Secure the Border and Make America Safe Again, We Need to Deploy the National Guard, Department of Homeland Security, https://www.dhs.gov/news/2018/04/04/secure-border-and-make-america-safeagain-we-need-deploy-national-guard .....................................................................................22
White House Fact Sheet (Feb. 15, 2019), https://www.whitehouse.gov/briefingsstatements/president-donald-j-trumps-border-security-victory/ ..............................................35

Rules Fed. R. Civ. P. 56(e) ........................................................................................................................9

Regulations 82 Fed. Reg. 8793, § 2(a)...............................................................................................................35 82 Fed. Reg. 8793, § 3(a)...............................................................................................................35 Exec. Order No. 12,722, 55 Fed. Reg. 31,803 (Aug. 2, 1990) ......................................................39 Exec. Order No. 12,734, 55 Fed. Reg. 48,099 (Nov. 14, 1990) ....................................................39 Exec. Order No. 13,235, 66 Fed. Reg. 58,343 (Nov. 16, 2001) ....................................................39 Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017) ...........................................................3

Constitutional Provisions U.S. Const. art. 1, § 1 .....................................................................................................................26 U.S. Const. art. I, § 9, cl. 7.............................................................................................................31 U.S. Const. art. II, § 3 ....................................................................................................................26

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INTRODUCTION After failing to persuade Congress to fund a wall along the southern border, President Trump and his co-Defendants have adopted a novel plan to try to obtain that funding anyway. The plan began with President Trump’s declaration of a “national emergency” at the southern border under the National Emergencies Act (NEA). And it continued with the invocation of two other statutes that supposedly authorize wall funding. Both elements of this plan are egregiously unlawful. Begin with the emergency declaration. Courts construe statutory terms in accordance with their ordinary meaning, and the word “emergency” means an unforeseen circumstance calling for immediate action. The current situation at the southern border does not come close to fitting within this definition: the President’s emergency declaration itself acknowledges that the issue of unlawful immigration is “long-standing,” and Congress has rejected the notion that it requires immediate action in the form of a border wall. In truth, President Trump has declared a faux emergency because he could not achieve the result he wanted through the legislative process. The government’s principal argument in response to this point has been the following: because the NEA does not define “emergency,” it must grant the President unreviewable discretion to determine when an emergency exists. If adopted, that reading of the statute would render it unconstitutional, in violation of the non-delegation doctrine. That reading should accordingly be avoided. Next take the second part of Defendants’ border-wall plan. Setting aside the NEA, Defendants invoke two obscure statutes that they say enable them to spend congressionally appropriated funds on a border wall. But by their terms, neither of the statutes they invoke comes close to authorizing such expenditures. That should be no surprise, since government interpretations are usually flawed where, as here, an agency suddenly finds an expansive power in
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In the end, Defendants’ actions amount to a brazen attempt to defy statutory text and arrogate legislative power to themselves. The separation of powers, however, “establish[es] high walls and clear distinctions.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995). After all, the “[c]oncentration of power in the hands of a single branch” is “the very definition of tyranny.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring) (quoting The Federalist No. 47 (James Madison)). To vindicate these principles, the Judiciary must deploy its power to “say what the law is” and rebuke Defendants’ Executive power grab. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
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STATEMENT OF UNDISPUTED FACTS A. For Decades, Congress Addresses Border Security The issue of unlawful immigration across the U.S.-Mexico border is not new, and it has not been lost on Congress. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009-554-55, appropriating $12 million for construction of border fencing near San Diego, California. A decade later, it added new fencing in discrete border areas of California, Arizona, New Mexico, and Texas. See Pub. L. No. 104-208; 8 U.S.C. § 1103. From 2007-2008, Congress appropriated over $3 billion for border security infrastructure and technology. See H.R. 5441, 109th Cong. (2007); Consolidated Appropriations Act, Pub. L. No. 110-161, 121 Stat. 1844, 2094 (2008). And in 2018, Congress appropriated $1.5 billion for “[p]rocurement, construction, and improvements” in particular areas along the southern border. H.R. 1625, 115th Cong. (2018). B. President Trump Makes a Border Wall His Signature Issue On the first day of his presidential campaign, then-candidate Trump promised that he “would build a great wall” along the U.S.-Mexico border that Mexico would pay for. Ex. 1, at 2.1 According to then-candidate Trump, a wall was necessary because “the worst elements in Mexico” were “being pushed into the United States,” bringing “infectious disease,” “drugs[,] and death.” Ex. 2, at 3. At campaign rallies, supporters would erupt in chants of “Build the wall!” Ex. 3, at 12. Soon after his election, President Trump again promised “[w]e’re going to build a wall.” Ex. 4, at 19. “I could wait about a year-and-a-half until we finish our negotiations with Mexico,” he explained, “but . . . I don’t feel like waiting a year or a year-and-a-half.” Id. Five days after
1 All references to “Ex. __” refer to exhibits to the declaration of Kristy Parker, attached hereto. All page numbers refer to PDF page numbers, rather than internal page numbers.
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President Trump’s inauguration, he issued an executive order directing the Secretary of Homeland Security to “take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border.” Exec. Order No. 13,767, 82 Fed. Reg. 8793, 8794 (Jan. 25, 2017) (Ex. 5, at 2).
In 2017, President Trump requested $999 million in congressional appropriations for “the first installment of the border wall.” Ex. 6, at 5. A Republican-controlled Congress instead provided the Department of Homeland Security (DHS) with $341.2 million “to replace approximately 40 miles of existing primary pedestrian and vehicle border fencing along the southwest border.” Consolidated Appropriations Act, Pub. L. No. 115-31, 131 Stat. 135, 434 (2017). In 2018, President Trump requested $1.6 billion in congressional appropriations for 74 miles of new or replacement border wall. Ex. 7, at 3. In response, Congress appropriated $1.571 billion for new border security technology and new and replacement fencing in specified areas on the southern border. Consolidated Appropriations Act, Pub. L. No. 115-141 (2018) (to be printed at 132 Stat. 348, 616).
C. President Trump Shuts Down the Government for a Border Wall In February 2018, President Trump issued his fiscal year 2019 budget request, seeking “$1.6 billion to construct approximately 65 miles of border wall.” Ex. 8, at 58. Near the end of 2018, Congress began working on a fiscal year 2019 appropriations bill, to be enacted before the December 22, 2018 deadline when federal funding would expire for nine governmental departments. The initial Senate appropriations bill included the exact amount that the President had requested in February 2018: $1.6 billion for 65 miles of border fencing. S. 3109, 115th Cong. (2018). On December 11, 2016, President Trump met with then-House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer to discuss the impending funding deadline. At
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that meeting, President Trump stated that he wanted $5 billion for a border wall and would be “proud to shut down the government for border security.” Ex. 9, at 11. On December 19, 2018, two days before the funding deadline, the Senate passed a continuing resolution funding the government through February 8, 2019. Department of Defense Appropriations Act, H.R. 695, 115th Cong. (2018). Because that continuing resolution contained no border wall funding, however, the President refused to support it. On December 22, 2018, federal funding for a substantial portion of the government expired, precipitating the longest government shutdown in American history.
D. President Trump Raises the Possibility of Declaring a National Emergency On January 4, 2019, in the midst of the government shut down, President Trump raised a new idea: If the “negotiated process” with Congress did not lead to border wall funding, he explained, he could “call a national emergency and build [the wall] very quickly.” Ex. 10, at 25. Five days later, President Trump stated that he has “an absolute right to do [a] national emergency if [he] want[s],” and that the “threshold” for declaring an emergency would be if “I can’t make a deal with people that are unreasonable.” Ex. 11, at 1; Ex. 12, at 4. Three days after that, the President noted that “the easy solution is for me to call a national emergency,” and that if Congress “can’t do it, I will declare a national emergency.” Ex. 13, at 2, 15. After the government shut down had lasted for over a month, the President finally agreed to end it on January 25, 2019. He signed a continuing resolution funding the government through February 15, 2019. See Further Additional Continuing Appropriations Act, Pub. L. No. 116-5 (2019) (to be printed at 133 Stat. 10). That continuing resolution provided no additional border wall funding. Id. E. Congress Passes the 2019 Consolidated Appropriations Act On February 14, 2019, Congress passed the 2019 Consolidated Appropriations Act (CAA),
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Pub. L. No. 116-6 (2019) (to be printed at 133 Stat. 13). The CAA provides $1.375 billion for “the construction of primary pedestrian fencing” in “the Rio Grande Valley Sector.” CAA, § 230(a)(1). And it states that none of the funds appropriated by the Act can be used “for the construction of pedestrian fencing” in any of five areas of the border. Id. § 231. On February 15, 2019, President Trump signed the CAA into law.
F. President Trump Declares a National Emergency and Announces a Plan to Fund a Border Wall
On the same day that President Trump signed the CAA, he issued a Proclamation declaring “the current situation at the southern border” to be a “national emergency.” Ex. 14, at 1. According to the Proclamation, “[t]he problem of large-scale unlawful migration across the southern border is long-standing,” requiring deployment of the military to the border and construction of a wall there. Id. When announcing his Proclamation, President Trump noted that he “could do the wall over a longer period of time” and “didn’t need to do this.” Ex. 15, at 6. But, he said, “I’d rather do it much faster.” Id.
In addition to declaring a national emergency, the President announced a plan, to be carried out by Defendant Acting Secretaries of Defense and Homeland Security, to use funds Congress appropriated for other purposes to build a border wall. As relevant, the White House directed those Acting Secretaries to use: (1) $2.5 billion of Department of Defense (DOD) funds for Support for Counterdrug Activities under 10 U.S.C. § 284; and (2) $3.6 billion of DOD funds for “military construction projects” under 10 U.S.C. § 2808.2
Less than two weeks after the President’s Proclamation, Congress repudiated his emergency declaration. Both the House of Representatives and the Senate passed a resolution
2 President Donald J. Trump’s Border Security Victory, White House Fact Sheet (Feb. 15, 2019) (“Fact Sheet”), https://www.whitehouse.gov/briefings-statements/president-donald-jtrumps-border-security-victory/.
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terminating that declaration. Exs. 16-17. The President then vetoed the disapproval resolution. Ex. 18.
G. Defendants Begin the Wall Construction Process Since President Trump’s Proclamation, Defendants have begun the process of building a wall along the southern border. On February 25, 2019, DHS officially requested that DOD supply it with funds under § 284 to build approximately 200 miles of barriers along the border. Ex. 19. DOD then informed Congress that it was preparing to reprogram funds from its Military Personnel Account into its Drug Interdiction and Counter-Narcotics Activities Account (“Drug Interdiction Account”), so that it would have sufficient funds to transfer to DHS for the border wall. Ex. 20, at 1. The reprogramming was necessary because DOD had already spent over 90% of the $881.5 million appropriated to the Drug Interdiction Account in 2019. Id. On March 18, 2019, DOD sent Congress a “Fact Sheet” identifying “military construction” funds available under § 2808 to build a border wall. Ex. 21. Among the funds DOD identified was $52.3 million for three projects at the Fort Bliss Army Base in El Paso County, Texas. Id. at 4, 13. On March 25, 2019, DOD confirmed the reprogramming of $1 billion from its Military Personnel Account to its Drug Interdiction Account, for eventual transfer to DHS. Ex. 22, at 1. That same day, DOD also confirmed in a letter that DOD and DHS “ha[d] decided to undertake Yuma Sector Projects 1 and 2 and El Paso Sector Project 1 by constructing 57 miles of 18-foothigh pedestrian fencing.” Ex. 23. El Paso Sector Project 1 involves the construction of 46 miles of new or replacement border walls in southern New Mexico, in the nearby vicinity of El Paso County, Texas. Ex. 19, at 9. On April 9, 2019, DOD announced the award of a $789 million contract to a private company “for border replacement wall construction.” Ex. 24, at 1. It further announced that “[w]ork will be performed in Santa Teresa, New Mexico, with an estimated completion date of
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October 1, 2020.” Id. The Santa Teresa port of entry is only twenty minutes from downtown El Paso, Texas. Ex. 26, Samaniego Decl. ¶ 17.
H. Proceedings Plaintiffs El Paso County, Texas (“the County”) and the Border Network for Human Rights (“BNHR”) filed a complaint in this Court on February 20, 2019. See No. 3:19-cv-66, Doc. 1. On April 25, 2019, Plaintiffs filed an amended complaint. Plaintiffs now hereby move for summary judgment or, alternatively, a preliminary injunction, on all seven claims in the amended complaint.
ARGUMENT As shown below, this Court should grant Plaintiffs summary judgment and permanent declaratory and injunctive relief on the seven claims in their amended complaint. “Summary judgment is appropriate where there is no genuine issue of material fact and the parties are entitled to judgment as a matter of law.” SEC v. Sethi, 910 F.3d 198, 202 (5th Cir. 2018). Because this case involves solely legal questions, no discovery is necessary to resolve it. And with no genuine issues of material fact present, summary judgment is warranted. See, e.g., Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999) (“[A] summary judgment motion can be decided without any discovery.”); United States v. Bloom, 112 F.3d 200, 205 n.17 (5th Cir. 1997) (“The summary judgment rule does not require that any discovery take place before summary judgment can be granted.”). Even if a permanent injunction were not yet warranted, however, this Court should grant Plaintiffs a preliminary injunction against Defendants’ unlawful actions. As explained infra, Plaintiffs have “a substantial likelihood of success on the merits”; they will suffer “irreparable injury if the injunction is not issued”; “the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted”; and “the grant of an injunction will not disserve the public interest.” Jones v. Tex. Dep’t of Criminal Justice, 880 F.3d 756, 759 (5th Cir.
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2018) (quotations omitted). I. PLAINTIFFS HAVE STANDING
“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) (quotations omitted). “[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). So while an “injury must be (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical, to pass constitutional muster,” it “need not measure more than an identifiable trifle.” Id. at 358 (citations and quotations omitted); see United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 690 n.14 (1973) (noting that the Court has upheld standing where plaintiffs have “no more at stake in the outcome of an action than a fraction of a vote, a $5 fine and costs, and a $1.50 poll tax”).
When a plaintiff “challeng[es] the legality of government action,” the “nature and extent of facts that must be averred” to establish standing “depends considerably upon whether the plaintiff is [itself] an object of the action” at issue. Lujan v. Def. of Wildlife, 504 U.S. 555, 56162 (1992). If it is, “there is ordinarily little question that the action . . . has caused [it] injury, and that a judgment preventing . . . the action will redress [that injury].” Id.
At the summary-judgment stage, plaintiffs “must ‘set forth’ by affidavit or other evidence ‘specific facts’” to establish their standing. Id. at 561 (quoting Fed. R. Civ. P. 56(e)). When evaluating plaintiffs’ standing, courts must “take as true” the factual evidence plaintiffs submit. McCardell v. Dep’t of Hous. & Urban Dev., 794 F.3d 510, 520 (5th Cir. 2015); see Lujan, 504 U.S. at 561.
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A. El Paso County Has Standing El Paso County is located in west Texas, squarely on the U.S.-Mexico border. A vibrant, multicultural community, the County is “defined by [its] relationship with Mexico and the presence of [its] many immigrant residents.” Ex. 25, Keller Decl. ¶ 5. It ranks as one of the nation’s safest communities. Id.; see also Press Release, City of El Paso, City of El Paso Named Second Safest City in America (Aug. 2017), available at https://bit.ly/2TZkGsX. The County’s economy relies heavily on tourism and commercial development. Ex. 25, Keller Decl. ¶ 4. It recently entered a three-year, multi-million-dollar tourism campaign with the City of El Paso aimed at increasing the City’s and County’s shares of the Texas tourism market. Ex. 26, Samaniego Decl. ¶ 9; Ex. 25, Keller Decl. ¶ 10. And it has secured the opening of new downtown hotels and refurbished historical sites “as part of a strategic plan to bring tourism and its attendant revenue to the county.” Ex. 26, Samaniego Decl. ¶ 9. As a primary selling point to tourists and investors, the County seeks to market itself as a safe, aesthetically beautiful, multicultural border community. Id. ¶ 4. To that end, the County has contracted with a private company to run “an advertising campaign that would promote a positive image of El Paso and the border community.” Ex. 25, Keller Decl. ¶ 10. The County’s efforts have begun to pay off: its current annual budget projects that it will earn $4 million in tax revenue from tourism. Ex. 26, Samaniego Decl. ¶ 5. In this case, the County “challeng[es] the legality of government action,” Lujan, 504 U.S. at 561—namely, the President’s Proclamation and Defendants’ attendant actions to build a wall along the southern border. Those actions make the County, and all such border communities, their direct “object.” Id.; see Ex. 14, at 1 (Proclamation defines the national emergency as the “current situation at the southern border”). As a result, there is “little question” that the County has standing to challenge those actions. Lujan, 504 U.S. at 561; see Duarte ex rel. Duarte v. City of Lewisville,
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759 F.3d 514, 518 (5th Cir. 2014) (“It follows from Lujan that if a plaintiff is an object of a government regulation, then that plaintiff ordinarily has standing to challenge that regulation.”).
And indeed, the County has demonstrated two interconnected, concrete injuries stemming from Defendants’ actions. First, the County has shown an injury to its reputation. “[I]njury to reputation can constitute a cognizable injury sufficient for Article III standing.” Foretich v. United States, 351 F.3d 1198, 1211 (D.C. Cir. 2003); see Walker v. City of Mesquite, 129 F.3d 831, 83233 (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).
In Meese, for instance, the Supreme Court held that a plaintiff had standing, based on reputational injury, to challenge a federal law classifying films he wished to show as “political propaganda.” Id. at 472-77. By forcing the plaintiff to “choose between exhibiting the films and incurring the risk that public perception of this [legal] scheme will harm [his] reputation,” the law inflicted concrete injury. Id. at 477. And in NCAA v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013), rev’d on other grounds sub nom., 138 S. Ct. 1461 (2018), whose standing analysis the Fifth Circuit has favorably cited, see Texas v. United States, 809 F.3d 134, 156 (5th Cir. 2015), the court held that sports leagues had standing, based on reputational injury, to challenge a state law legalizing sports gambling, NCAA, 730 F.3d at 220. The court held that the leagues had shown cognizable reputational injury on the ground that “they are harmed by their unwanted association with an activity they (and large portions of the public) disapprove of—gambling.” Id.
Here, the President’s Proclamation and Defendants’ actions carrying it out have caused the
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County cognizable reputational injury. According to County officials, El Paso County takes pride in its “reputation as a safe place to live, work, and visit,” and as a vibrant “bilingual, bi-national, multicultural” community. Ex. 26, Samaniego Decl. ¶¶ 3-4. But Defendants’ actions have “falsely told the world the exact opposite”: “that El Paso County and the Southern border are crime-ridden and dangerous, that [its] immigrant community comprises criminals and drug traffickers . . ., that [its] proximity to Mexico is an existential threat, and that [it] can be rescued only through the blight of massive wall construction and militarization.” Id. ¶ 8; id. ¶ 10 (“I have already heard personally from people who have a false impression that El Paso County is a dangerous place and who do not want to come here [because of the President’s Proclamation].”). Indeed, Defendants’ actions amount to a message “transmitted all over the world” that “all of [the County’s] strengths are actually weaknesses” and that the County is “so endangered by immigrants and [its] closeness to Mexico that [it] need[s] a wall to protect [it].” Ex. 25, Keller Decl. ¶ 6. Because of Defendants’ actions, County officials now must “not only promot[e] El Paso’s image, but actively defend[] it.” Id. As those officials have explained, “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.” Ex. 26, Samaniego Decl. ¶ 11; see Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 154 (2010) (finding standing based on plaintiffs’ need “to take certain measures to minimize the likelihood” of harm).
The County’s reputational injuries track those found sufficient for standing in NCAA and Meese. Just as the sports leagues in NCAA were “harmed by their unwanted association” with gambling, the County is “harmed by [its] unwanted association” with crime, danger, construction, and militarization. 730 F.3d at 220. And just as the plaintiff in Meese had to take “affirmative steps to avoid the risk of harm to his reputation” posed by the challenged law, 481 U.S. at 475, the
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County must now take steps to “actively defend[]” its reputation against the depiction of the border conveyed by the Proclamation and Defendants’ subsequent actions, Ex. 25, Keller Decl. ¶ 6; see Ex. 26, Samaniego Decl. ¶ 12 (“I have spent approximately 30% of my time [as County Judge] . . . defending El Paso’s reputation”).
Second, the County’s reputational injury—though alone sufficient for standing—is intimately tied to “a direct pecuniary injury that generally is sufficient to establish injury-in-fact.” K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010) (quotations omitted). By treating the border as a danger zone requiring military occupation and a wall, Defendants’ actions have already begun to discourage tourism and commercial development in the County. As the County’s Chief Administrator explained, “[t]here is nothing more detrimental to a drive to bring in tourists than the perception that a community is chaotic and dangerous and that the tourists[’] access to historical and scenic destinations will be impeded by construction.” Ex. 25, Keller Decl. ¶ 8; see id. at ¶¶ 12-13 (describing economic effects of impending construction in the County’s nearby vicinity); Ex. 26, Samaniego Decl. ¶ 6 (“[T]he President’s Proclamation declaring an emergency at the Southern border is a serious threat to both tourism and economic development because of the false and negative impression of El Paso that it creates.”). And as the El Paso County Judge likewise emphasized, recent meetings with “local business leaders” have indicated that Defendants’ actions are “generating fears of potential investors that the community will be mired in a long-term state of chaos that includes . . . violent crime, the blight of construction, and impediments to crossing back and forth across the border.” Id. ¶ 11.3
While the County has already suffered economic harm flowing from Defendants’ actions,
3 In addition, the reputational harm inflicted by the Proclamation and attendant border militarization have hindered the County’s efforts to attract qualified applicants for important government posts. Ex. 25, Keller Decl. ¶ 11.
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much more is “certainly impending.” Driehaus, 573 U.S. at 158 (quotations omitted); see LeBlanc, 627 F.3d at 122 (finding injury in fact where economic harm “ha[d] not yet materialized”); McCardell, 794 F.3d at 520 (finding injury in fact where the “asserted injury would be concretely felt in the logical course of probable events flowing from an unfavorable decision by this court”). The longer the President’s Proclamation remains in effect, the more the County’s reputation will be tarnished in the eyes of tourists and developers, and the more hours County officials will have to devote to combating negative messaging, as opposed to “meeting directly with business leaders to bring business to El Paso.” Ex. 26, Samaniego Decl. ¶ 12. Any drop in the $4 million tax revenue the County earns from tourism “would significantly damage the county’s financial health.” Id. ¶ 5; see Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 110-11 (1979) (municipality’s “diminish[ed] . . . tax base” constitutes injury in fact).
Moreover, if the planned wall construction in the County’s nearby vicinity is allowed to progress, noise and traffic will surely disrupt the County’s “regional economy.” Ex. 25, Keller Decl. ¶ 13 (describing impact of planned wall construction “only 15 miles from downtown El Paso”). That disruption will, in turn, thwart the County’s “ability to compete for business investment and tourism.” Ex. 26, Samaniego Decl. ¶ 18.
Finally, Defendants have identified $52.3 million appropriated for “military construction projects” at Fort Bliss, an El Paso army base, for diversion toward the border wall. Ex. 21. “Fort Bliss is the lifeblood of the El Paso economy,” contributing billions of dollars and creating thousands of jobs. Ex. 26, Samaniego Decl. ¶ 15. Losing funds that had been appropriated for use at Fort Bliss “creates the imminent prospect of economic harm to El Paso County.” Id. ¶ 16. That loss of funds also represents a missed opportunity to “obtain a benefit,” which can suffice to show injury in fact. N.E. Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993).
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With the County’s injury in fact established, standing doctrine’s final two requirements— causation and redressability—easily follow. To begin, the causation element is satisfied because the County’s reputational and economic injuries are “fairly traceable” to Defendants’ actions. Bennett v. Spear, 520 U.S. 154, 167 (1997). The President’s Proclamation expressly declares a “national emergency” on the “southern border”—including El Paso County—based on its status as a “major entry point for criminals, gang members, and illicit narcotics.” Ex. 14, at 1. And Defendants’ recent deployment of the military to build a border wall reinforces the County’s image as dangerous and uninviting, while threatening to increase noise and congestion in the area.
As County officials explained, these precise actions bear a “causal connection” to the County’s reputational and economic injuries described above. Driehaus, 573 U.S. at 158; see Ex. 25, Keller Decl. ¶ 6 (“The President’s Proclamation . . . is an official government statement that damages El Paso County’s ability to compete for business investment and tourism.”); id. ¶ 10 (“Because of the President’s Proclamation, we are now in the process of strategizing how to combat a falsely negative image.”); id. ¶¶ 12-13 (impending wall construction will create a “massive construction zone,” deterring “tourism and business development”); Ex. 26, Samaniego Dec. ¶ 10 (“The President’s Proclamation has falsely told the world the exact opposite of who we are and what we promote”); id. ¶ 16 (diversion of funds from Fort Bliss “creates the imminent prospect of economic harm”).
Finally, where, as here, a plaintiff challenges government action, “[c]ausation and redressability typically overlap as two sides of a causation coin.” Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 n.1 (D.C. Cir. 2017). “After all, if a government action causes an injury, enjoining the action usually will redress that injury.” Id. That is true here. As to the County’s reputational injuries, enjoining Defendants’ actions will countermand the negative image of the
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County that those actions have perpetuated and allow County officials to refocus their resources on improving tourism and commerce, not defending the County against Defendants’ attacks. See Foretich, 351 F.3d at 1214 (invalidating government action from which “reputational injury . . . derives” “provide[s] meaningful relief”). And as to the County’s pecuniary injuries, enjoining Defendants’ actions will help restore the County’s image in the eyes of tourists and investors and forestall disruptive border wall construction. Accordingly, the County has standing to bring its claims.
B. BNHR Has Standing Founded in 1998, BNHR is a community organization headquartered in El Paso, Texas. Ex. 27, Garcia Decl. ¶¶ 2-3. It consists of about 5,000 members who live and work in west Texas, metropolitan El Paso, and southern New Mexico. Id. ¶ 4. BNHR’s mission is to “organize border communities through human rights education” and “mobilize [its] members to advocate for positive change in policies” affecting “the immigrant community.” Id. ¶ 3. To fulfill that mission, BNHR “educate[s] [its] own members about their rights” and “train[s] them to educate and organize other members of the immigrant community.” Id. It also works to forge bonds between its members and the area’s law-enforcement officials. Id. ¶ 10. “An organization has standing to sue on its own behalf if it meets the same standing test that applies to individuals.” Fowler, 178 F.3d at 356. In Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the Supreme Court held that an organization devoted to counseling low-income home buyers met that test, enabling it to challenge defendants’ “racial steering practices.” Id. at 379. The Court found sufficient the organization’s allegation that it “had to devote significant resources to identify and counteract” defendants’ unlawful practices. Id. If defendants’ “steering practices have perceptibly impaired [the organization’s] ability to provide” its services, the Court explained, “there can be no question that the organization has suffered injury in fact.” Id. “Such
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concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback to the organization’s abstract social interests.” Id.
Applying Havens Realty, the Fifth Circuit has announced the following rule: “an 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; see Scott v. Schedler, 771 F.3d 831, 837 (5th Cir. 2014). In OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017), for instance, the Fifth Circuit held that an advocacy organization had standing to challenge a Texas law restricting the “interpretation assistance that English-limited voters may receive.” Id. at 606, 612. Because the organization “went out of its way to counteract the effect of Texas’s allegedly unlawful” restriction—for instance, by “educat[ing] voters” about it—the organization had suffered cognizable injury, even if that “injury was not large.” Id. at 612. Similarly, in Scott, the Fifth Circuit held that the Louisiana NAACP had standing to challenge Louisiana’s alleged failure to comply with the National Voter Registration Act. 771 F.3d at 837. Because one NAACP member “devoted resources to counter[acting] [the State’s] allegedly unlawful practices” by conducting “voter- registration drives,” the NAACP “suffered injury in fact.” Id.
BNHR has standing under the foregoing precedents. In normal circumstances, BNHR dedicates its resources to “its core mission” of human rights education and “promoting immigration reform.” Ex. 27, Garcia Decl. ¶ 13. Because of Defendants’ emergency declaration and attendant border militarization, however, BNHR has had to “divert resources” away from that core mission, and toward “counsel[ing] community members who are fearful,” “organizing [its] community in opposition to the President’s declaration,” and “opposing the illegal [border wall] construction.” Id. ¶¶ 13, 37. BNHR has held and scheduled Proclamation-related weekend events
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that it would not otherwise hold, and has increased the frequency of its “Know Your Rights” presentations approximately five-fold. Id. ¶¶ 14-15. It has also hired an additional policy consultant (costing $14,400) to deal with its increased advocacy workload in light of the Proclamation, and has sent delegations to discuss the Proclamation’s effects with congressional members in Washington, D.C. Id. ¶¶ 16, 19. In short, as the organization’s Executive Director stated in his declaration, the Proclamation and Defendants’ subsequent actions have “required BNHR to expend significant resources that could have, and would have, gone elsewhere,” leading to a total of $23,956 in additional organizational expenses. Id. at ¶¶ 16, 21.4
In addition to draining BNHR’s resources, the Proclamation has forced BNHR to end one of its “major initiatives” to build trust between the immigrant community and law enforcement, called the “Hugs Not Walls” campaign. Id. ¶ 32. That campaign’s signature event has now been cancelled. Id.
Like the organizational plaintiffs in Havens Realty, OCA-Greater Houston, and Scott, BNHR has standing to challenge Defendants’ actions. As shown, BNHR has gone “out of its way to counteract” those actions, OCA-Greater Houston, 867 F.3d at 612, by diverting resources from its traditional activities toward “counsel[ing]” and “organizing” community members in relation to the national emergency and border wall, Ex. 27, Garcia Decl. ¶¶ 13, 37. And Defendants’ actions have inflicted “demonstrable injury to the organization’s activities,” because those actions have forced BNHR to cancel initiatives it would otherwise spearhead. Havens Realty, 455 U.S. at 379. All of BNHR’s organizational injuries, moreover, have a “causal nexus” to Defendants’ actions, and would be redressed if this Court were to enjoin those actions. See Scott, 771 F.3d at
4 Beyond these monetary costs, BNHR staff members have faced longer hours and a more burdensome workload as a result of Defendants’ actions. See id. ¶ 22.
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838-39. BNHR has standing. II. THE PRESIDENT’S PROCLAMATION IS UNLAWFUL
Invoking the National Emergencies Act (NEA), Pub. L. No. 94-412, 90 Stat. 1255 (1976), President Trump’s Proclamation declares a “national emergency” at “the southern border.” Based on that declaration, Defendants plan to use $3.6 billion in funds appropriated for “military construction projects” to build a border wall. 10 U.S.C. § 2808. But to properly rely on the NEA, a president must identify an actual “emergency”—i.e., an unforeseen combination of circumstances requiring immediate action. Because the “current situation at the southern border” does not qualify as an “emergency” under that definition, the Proclamation exceeds the President’s authority under the NEA. As a result, the Proclamation should be declared unlawful, and Defendants should be enjoined from using § 2808 “military construction” funding for a border wall.
To avoid this straightforward conclusion, Defendants have argued in other courts that the NEA grants the President complete discretion in determining whether an “emergency” exists. See Defendants’ Motion to Dismiss at 21, Alvarez v. Trump, No. 19-00404 (D.D.C. Apr. 2, 2019) (“Defs.’ MTD”). If this Court were to adopt that reading, the NEA would violate the nondelegation doctrine, which prohibits Congress from transferring its legislative power to the Executive Branch. In that scenario, the NEA and Proclamation should be declared unconstitutional, and Defendants should similarly be enjoined from using “military construction” funding for a border wall.
A. The Proclamation Exceeds the President’s Authority Under the NEA 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 such emergencies were in effect, four of which had existed continuously for close to forty years. Id. at 1. Each of these emergencies authorized the President
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to wield “extraordinary powers” and “manage every aspect of the lives of all American citizens.” Id. at 2.
To narrow the concept of “emergency” and prevent presidential abuse, Congress passed the NEA. The NEA “would end the states of emergency under which the United States has been operating for more than 40 years.” S. Rep. No. 94-1168, at 2 (1976). And it would “insure that the extraordinary powers which now reside in the hands of the Chief Executive . . . could be utilized only when emergencies actually exist, and then, only under safeguards of congressional review.” Id. Testifying on behalf of the Justice Department in support of the NEA, then-Assistant Attorney General Antonin Scalia stated that “[t]hose powers which society really no longer views as emergency powers should not be called that.” Antonin Scalia, Testimony to the House of Representatives, Subcommittee on Administrative Law and Government Relations of the Committee on the Judiciary, at 95 (Apr. 9, 1975) (“Scalia Testimony”). “[W]e have to be careful not to slap that label on something that doesn’t merit it,” Scalia warned. Id.
The NEA’s core provision states that, “[w]ith respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such emergency.” 50 U.S.C. § 1621. Once a President declares a national emergency pursuant to § 1621, he gains “special or extraordinary power[s]” under a broad swath of separate statutes, including 10 U.S.C. § 2808, which the President has invoked here.
The NEA does not define the term “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 or the resulting state that calls for immediate action.” Webster’s New Collegiate Dictionary 372 (8th ed. 1976); see also American
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Heritage Dictionary 427 (1st ed. 1976) (defining “emergency” as “[a] situation or occurrence of a serious nature, developing suddenly and unexpectedly, and demanding immediate action”). Interpreting the term “emergency” in other contexts, courts (including the Fifth Circuit) have long adhered to this ordinary meaning. See, e.g., Van de Walle v. Am. Cyanamid Co., 477 F.2d 20, 23 (5th Cir. 1973) (because employee’s shift “was neither unfamiliar nor unexpected,” it could “hardly be characterized as an ‘emergency’ as that term is commonly used”); Taylor v. Bair, 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 for deliberation”). Indeed, the Third Circuit applied this very definition when invalidating an emergency declaration issued by the Government of the Virgin Islands, holding that a wastewater problem was not an “emergency” because it was longstanding and “could not be construed as surprising or unexpected.” United States v. Gov’t of V.I., 363 F.3d 276, 289 n.10 (3d Cir. 2004).
Invoking NEA § 1621, President Trump’s Proclamation declares “[t]he current situation at the southern border . . . a national emergency.” Ex. 14, at 1. Specifically, it claims that “[t]he southern border is a major entry point for criminals, gang members, and illicit narcotics.” Id. And, it adds, “recent years have seen sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending.” Id. Based on this “emergency,” the Proclamation invokes 10 U.S.C. § 2808 for purposes of building a border wall. Id.
The Proclamation exceeds the President’s authority under the NEA because the “current situation at the southern border” does not qualify as an “emergency” under that word’s ordinary meaning: it is not “unforeseen,” and it does not “call for immediate action” in the form of a border wall.
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First, the Proclamation itself acknowledges that the “current situation at the southern border” is not unforeseen, emphasizing that “[t]he problem of large-scale unlawful migration through the southern border is long-standing.” Id. (emphasis added); see Gov’t of V.I., 363 F.3d at 289 n.10 (longstanding issue cannot be “emergency”). The political branches have grappled with unlawful immigration for decades, and Congress has repeatedly acted to address the issue.5 Unlawful immigration across the southern border thus presents a decades-old, political dilemma requiring inter-branch solutions, not a sudden or unforeseen event necessitating a unilateral executive response.
Second, the “current situation” does not “call for immediate action” in the form of a wall stretching the length of the U.S.-Mexico border. Congress considered and rejected such a proposal, instead determining that targeted fencing in the Rio Grande Valley area was the appropriate course. See CAA, § 231. That narrower approach reflects the facts on the ground, as evidenced by the government’s own data. DHS recently estimated a “91 percent decline” in illegal border crossings between 2000 and 2016.6 The amount of drugs Customs and Border Protection (CBP) seized between ports of entry has decreased from 2014 to 2018.7 And family migration occurs mostly at ports of entry, where families turn themselves in and seek asylum.8 The
5 See, e.g., Consolidated Appropriations Act, Pub. L. No. 110-161, 121 Stat. 1844, 2090 (2008); Secure Fence Act of 2006, Pub. L. No. 109-367, 120 Stat. 2368 (2006); Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996).
6 Efforts by DHS to Estimate Southwest Border Security Between Ports of Entry, U.S. Dep’t of Homeland Security Off. of Immigr. Stat., 17 (Sept. 2017), http://tinyurl.com/DHSOISReport.
7 CBP Enforcement Statistics FY 2019, U.S. Customs & Border Protection, https://tinyurl.com/CBPFY19Stats (showing the amount of drugs seized annually at and between ports of entry from 2014 to 2018).
8 See To Secure the Border and Make America Safe Again, We Need to Deploy the National Guard, Department of Homeland Security (Apr. 4, 2018), https://www.dhs.gov/news/2018/04/04/secure-border-and-make-america-safe-again-we-needdeploy-national-guard.
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President’s disagreement with how Congress has dealt with a problem does not create an “emergency.”
President Trump’s own words also belie the notion that the “current situation at the southern border” calls for immediate action. See, e.g., Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 274-75 (1975) (considering presidential announcement accompanying signing of executive order); City & Cty. of S.F. v. Trump, 897 F.3d 1225, 1242-43 (9th Cir. 2018) (considering presidential statements when construing executive order). Before issuing the Proclamation, President Trump characterized an emergency declaration as “another way” of building a wall that he would use “if I can’t make a deal with people [in Congress] that are unreasonable.” Ex. 11, at 1; Ex. 12, at 4. And during his Rose Garden announcement of the emergency declaration, President Trump stated 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.” Ex. 15, at 4. By definition, an “emergency” is not something one can opt to address “over a longer period of time” or “didn’t need to” address at all.
To be sure, since its enactment, Presidents have invoked the NEA numerous times in various contexts, but that history does not validate President Trump’s unique power grab. As an initial matter, most presidential emergency declarations have gone unchallenged, so the mere fact that many other emergencies have been declared does not suggest that those declarations were uniformly lawful. In any event, the government has not identified another instance in which the President has wielded his emergency power to claim funding that Congress has expressly denied. And lest there be any doubt that is what occurred here, recall that President Trump stated that the emergency declaration was “another way” of building a wall if “a negotiated process” failed to bear fruit. Ex. 10, at 25. Treating an emergency declaration as a political tool to effectuate an agenda repudiated by Congress mocks the NEA, which was designed for instances “when
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emergencies actually exist.” S. Rep. No. 94-1168, at 2 (1976). In the words of Antonin Scalia, President Trump’s emergency declaration “debases the currency” and “distorts our whole process” by “slap[ping] [the] label [of emergency] on something that doesn’t merit it.” Scalia Testimony, at 95.
Even if the NEA’s text could be read to permit this emergency declaration (it cannot), that reading should be avoided because it would raise “a serious doubt” about the NEA’s constitutionality. Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). The nondelegation doctrine prohibits Congress from transferring its legislative power to the Executive Branch. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). As explained infra, Defendants’ proposed reading of the NEA—as an “intentional decision [by Congress] to leave to the President the determination about when and under what circumstances to declare a national emergency,” Defs.’ MTD at 21—would violate the nondelegation doctrine. But at a minimum, that reading “would raise serious constitutional problems,” requiring the Court to adopt Plaintiffs’ “alternative interpretation of the statute” as long as it is “fairly possible.” INS v. St. Cyr, 533 U.S. 289, 300 (2001) (quotations omitted). Here, Plaintiffs’ proposed reading, viz., that an “emergency” under the NEA is an unforeseen circumstance requiring immediate action, is “fairly possible,” id., given that it comports with the term’s ordinary meaning and past judicial interpretations.
The Supreme Court employed this canon to avoid nondelegation concerns in Industrial Union Department., AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980). There, the government took the “extreme position” that a statutory command to “set a standard ‘which most adequately assures . . . that no employee will suffer material impairment of health’” required it to “impose standards that either guarantee workplaces that are free from any risk of material health
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impairment, however small, or that come as close as possible to doing so without ruining entire industries.” Id. at 641 (plurality op.). A plurality held that “[i]n the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the [executive] the unprecedented power” it claimed, because “the statute would make such a sweeping delegation of legislative power that it might be unconstitutional.” Id. at 645-46 (citations and quotation marks omitted). According to the plurality, “[a] construction of the statute that avoids this kind of openended grant should certainly be favored.” Id. at 646.9
Here, as in Industrial Union, Defendants have pressed an “extreme position,” id. at 641: that there are no “standards by which to evaluate the President’s exercise of [his NEA] authority” and that the emergency determination has been “le[ft] to the President,” Defs.’ MTD at 21. That position would result in a “sweeping delegation of legislative power,” Indus. Union, 448 U.S. at 646, empowering the President to declare an emergency on a whim—or more likely, whenever he loses a political battle—and thereby unlock breathtaking executive authority under a wide array of separate statutes. See, e.g., 47 U.S.C. § 606(c) (in event of emergency, President may direct “the clos[ure] of any station for radio communication”); 21 U.S.C. § 360bbb-3 (in event of emergency, Secretary of Health and Human Services may authorize use of unapproved “drug, device, or biological product”). “[I]t is unreasonable to assume that Congress intended to give the [President] th[is] unprecedented power.” Indus. Union, 448 U.S. at 645. Because another “construction of the statute [would] avoid[] this kind of open-ended grant”—and in fact would best cohere with the
9 Although only a plurality of the Court reached this conclusion, that was because thenJustice Rehnquist would have gone even further and held the statute unconstitutional under the nondelegation doctrine. Id. at 686 (“We ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority . . . .”) (Rehnquist, J., concurring in the judgment).
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plain meaning of “emergency”—that construction “should certainly be favored.” Id. at 646.10 B. If Read to Authorize the Proclamation, the NEA Is Unconstitutional Article I, § 1 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, 531 U.S. at 472. In a nondelegation challenge, then, “the constitutional question is whether the statute [at issue] has delegated legislative power” to the Executive Branch. Id.
The Supreme Court has developed the “intelligible principle” test to determine whether Congress has violated the nondelegation doctrine. Under that test, if “Congress shall lay down by legislative act an intelligible principle to which the person or body [to whom power is delegated] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928); see United States v. Whaley, 577 F.3d 254, 263 (5th Cir. 2009). An intelligible principle must not only be clear enough to guide the Executive, but it must also enable the Judiciary to evaluate whether the Executive has acted within the bounds of its authority. See, e.g., Yakus v. United States, 321 U.S. 414, 423, 425 (1944) (requiring that courts be able to see “in an appropriate proceeding” that there is a “substantial basis” for the executive action and that the “will of Congress has been obeyed”).
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 itself must regulate “important subjects,” it has more leeway to delegate in
10 By flagrantly disregarding the NEA through his declaration of a fabricated emergency, the President has also violated his “most important constitutional duty, to ‘take Care that the Laws be faithfully executed.’” Lujan, 504 U.S. at 577 (quoting U.S. Const. art. II, § 3); see Am. Compl. Count VII. The Take Care Clause would be rendered a dead letter if construed to authorize badfaith presidential actions designed to subvert the will of another governmental branch. As the Supreme Court explained in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be the lawmaker.” Id. at 587.
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areas of “less interest.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825). So, for example, while Congress “must provide substantial guidance on setting air standards that affect the entire national economy,” it need not flesh out relatively minor matters, like the definition of “country elevators.” Whitman, 531 U.S. at 475.
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 President] to prohibit the transportation in interstate and foreign commerce of petroleum” products in excess of state production quotas. Id. at 406. Because regulation of oil transportation was a question “of legislative policy,” the Court asked whether Congress had “set up a standard for the President’s action,” or “required any finding by the President in the exercise of the authority to enact the prohibition.” Id. at 415. The Court held that the statute did not do so: it “establishe[d] no criterion to govern the President’s” decision of “whether or in what circumstances or under what conditions” to prohibit oil transportation. Id. Nor did it “require any finding by the President as a condition of his action.” Id. Instead, the statute gave the President “unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit,” unguided by any “standard or rule.” Id. at 415, 418; see id. at 418 (“The Congress left the matter to the President without standard or rule, to be dealt with as he pleased.”). Accordingly, the Court concluded, Congress had unconstitutionally “transfer[red] . . . its lawmaking function . . . to the President.” Id. at 430.
The NEA, as Defendants have construed it, suffers from the same constitutional infirmity. As earlier explained, the Act permits the President to claim “special or extraordinary power[s]” under numerous separate statutes whenever he declares an “emergency.” 50 U.S.C. § 1621. By its terms, the Act does not define “emergency” or provide any intelligible principle to guide the
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President’s emergency determination. As a result, the natural approach is to construe “emergency” in accordance with its ordinary meaning—an unforeseen circumstance requiring immediate action—which would thereby give the President the requisite intelligible principle from which to operate. See supra at 20-25.
Defendants, however, have rejected this approach. In their view, because the NEA “does not define the term national emergency or provide courts with any standards by which to evaluate the President’s exercise of this authority,” Congress has “le[ft] to the President the determination about when and under what circumstances to declare a national emergency.” Defs.’ MTD at 21. Moreover, Defendants have asserted, “[t]he NEA sets forth no criteria from which the Court could judge the President’s action or make a determination about whether a particular issue constitutes a national emergency.” Id. at 26.
Under this (flawed) reading, the NEA amounts to an unconstitutional delegation of legislative power. The NEA, Defendants have argued, provides no “standards” to guide presidential action. Id. at 21. That is another way of saying that the statute lacks an intelligible principle. See Panama Refining, 293 U.S. at 418 (invalidating statute because it established no “standard or rule” to govern the President’s determination). And the NEA, Defendants have contended, “sets forth no criteria from which” a court can evaluate the President’s emergency determination. Defs.’ MTD at 26. That is yet another way of saying that the statute flunks the intelligible principle test. See Yakus, 321 U.S. at 423 (courts need “substantial basis” for evaluating executive action).
In fact, under Defendants’ reading, the delegation here is even more flagrantly unconstitutional than the one in Panama Refining. In both cases, the relevant statute left “the matter to the President without standard or rule, to be dealt with as he pleased.” Panama Refining,
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293 U.S. at 418. But there, at least the delegation took place within a relatively confined area of economic policy. See Whitman, 531 U.S. at 475 (“[T]he degree of [executive] discretion that is acceptable varies according to the scope of the power congressionally conferred.”); Whaley, 577 F.3d at 264 (upholding delegation because “the authority delegated is relatively small”). Here, by contrast, the delegation would authorize the President to “affect the entire nation[],” Whitman, 531 U.S. at 475—giving him access to scores of new funds and policymaking powers—simply by making the unreviewable determination that an emergency exists. Were the Judiciary to bless such a delegation, the only future limit on presidential 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”); id. at 652 (“[E]mergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.”).
If all this were not enough, two other aspects of the delegation in this case exacerbate its unconstitutionality. First, the NEA delegates power directly to the President, as opposed to an administrative agency. Unlike an administrative agency, which is subject to procedural requirements and robust judicial review, see 5 U.S.C. §§ 552, 553, 706, the President can act with speed and insulation—often enacting and implementing policies long before courts can review them. The President’s deployment of legislative authority therefore threatens the separation of powers and, in turn, individual liberty, to a greater extent than an administrative agency’s. See Bond v. United States, 564 U.S. 211, 222 (2011) (“The structural principles secured by the separation of powers protect the individual”). For this reason, it is no surprise that the two cases in which the Supreme Court has found nondelegation-doctrine violations involved direct delegations to the President. See Panama Refining, 293 U.S. 388; A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
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Second, the delegation opens the door to the President spending appropriated funds in violation of their assigned purpose. Appropriating funds is a uniquely legislative function: The Appropriations Clause vests Congress with the “exclusive power over the federal purse” and forms the “bulwark of the Constitution’s separation of powers.” U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339, 1346-47 (D.C. Cir. 2012) (Kavanaugh, J.); see Part III infra. When “the decision to spend [is] determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened.” Clinton, 524 U.S. at 451 (Kennedy, J., concurring). Under Defendants’ reading of the NEA, Congress has given the President unconstrained authority to declare an emergency and thereby use funds appropriated for other purposes to address that emergency. See, e.g., 10 U.S.C. § 2808 (in event of emergency declaration, allowing expenditures on “military construction projects”). On this view, in other words, Congress has licensed the President to usurp one of its quintessential functions. Not only does this consequence render Defendants’ statutory interpretation unreasonable, but it also renders the constitutional violation that would result from that interpretation all the more egregious. III. DEFENDANTS’ USE OF FUNDS TO BUILD A BORDER WALL VIOLATES
THE APPROPRIATIONS CLAUSE Even if the Proclamation were lawful, Defendants’ plan to build a border wall could not proceed. That is because the plan entails spending funds for purposes that Congress never authorized, in direct contravention of the Appropriations Clause. Because of Defendants’ Appropriations Clause violations, their plan to build a border wall—and all actions carried out in accordance with that plan—must be declared unlawful and enjoined. “The United States Constitution exclusively grants the power of the purse to Congress, not the President.” City & Cty. of S.F., 897 F.3d at 1231; Dep’t of Navy, 665 F.3d at 1348 (“Congress’s control over federal expenditures is absolute.” (quotation omitted)). In The Federalist Papers,
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James Madison described that power as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” The Federalist No. 58. And in his own constitutional commentary, Joseph Story deemed it “highly proper” that “[C]ongress should possess the power to decide how and when any money should be applied,” because “[i]f 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.” 2 Joseph Story, Commentaries on the Constitution of the United States § 1348 (3d ed. 1851).
The key source of Congress’s power of the purse is the Appropriations Clause, which declares 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. By its terms, the Clause “provides an explicit rule of decision”: “the payment of money from the Treasury must be authorized by a statute.” OPM v. Richmond, 496 U.S. 414, 424 (1990); see Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) (“[N]o money can be paid out of the Treasury unless it has been appropriated by an act of Congress.”). That means “that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.” United States v. MacCollom, 426 U.S. 317, 321 (1976) (emphasis added); see Dep’t of Navy, 665 F.3d at 1348 (“[A]ll uses of appropriated funds must be affirmatively approved by Congress; the mere absence of a prohibition is not sufficient.”). Thus, “[w]here Congress has addressed [a] subject” and “authorized expenditures where a condition is met, the clear implication is that where the condition is not met, the expenditure is not authorized.” MacCollom, 426 U.S. at 321.
Congress has “reinforce[d] [its] control over appropriated funds” pursuant to “numerous” federal statutory provisions. Dep’t of Navy, 665 F.3d at 1347 (citing 31 U.S.C. § 1301 et seq.); see also Harrington v. Bush, 553 F.2d 190, 194-95 (D.C. Cir. 1977) (“Congress has plenary power
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to give meaning to” the Appropriations Clause). These provisions include 31 U.S.C. § 1301, known as the “Purpose Statute,” which states that “[a]ppropriations shall be applied only to the objects for which the appropriations were made.” Similarly, 31 U.S.C. § 1532, known as the “Transfer Statute,” provides that funds may not “be withdrawn from one appropriation account and credited to another” unless “authorized by law.” And 31 U.S.C. § 1341, known as the “Antideficiency Act,” makes it unlawful for any federal officer to “make or authorize an expenditure or obligation exceeding an amount available in an appropriation,” or to involve the “government in a contract or obligation for the payment of money before an appropriation is made.”
Here, Defendants have announced, and begun to implement, a plan to use certain appropriated funds to build a border wall. Specifically, Defendants will draw: (1) $3.6 billion from DOD funds for military construction projects, see 10 U.S.C. § 2808; and (2) $2.5 billion from DOD funds designed to support DHS counterdrug activities, see 10 U.S.C. § 284. All told, these funding sources would provide an additional $6.1 billion toward building a border wall.
But in the CAA, Congress itself considered whether to appropriate funds for a border wall. In fact, border-wall funding was the chief issue that Congress debated, and a standoff over such funding precipitated the longest government shutdown in American history. See supra at 4-5. And in the CAA, Congress provided only $1.375 billion—not $6.1 billion (or a combined $7.5 billion)—for border-wall funding. See CAA, § 230(a). It also made clear that the appropriated $1.375 billion is for “construction of primary pedestrian fencing . . . in the Rio Grande Valley Sector” alone, not along other sections of the southern border. Id.; see also id. § 231 (“None of the funds made available by this Act or prior Acts are available for the construction of pedestrian fencing” in five specified border areas). Finally, Congress barred the use of appropriations to
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increase funding for “a program, project, or activity” beyond the allotted amount, unless authorized by a “reprogramming or transfer provision” of an appropriations statute. Id. § 739. As explained in Part III.A infra, Defendants’ funding plan violates the CAA and, in turn, the Appropriations Clause.
Separately, Defendants’ funding plan violates the Appropriations Clause because it is not authorized by the statutory provisions it invokes. See MacCollom, 426 U.S. at 321 (Appropriations Clause violated if the expenditure is not “authorized by Congress”). First, § 2808 does not authorize the planned border-wall expenditures because the President’s declared emergency does not “require[] use of the armed forces”; a border wall is not a “military construction project[]”; and a border wall is not “necessary to support [a] use of the armed forces.” 10 U.S.C. § 2808; see Part III.B infra. Second, § 284 does not authorize the planned expenditures because $2.5 billion toward a wall is not “support” for counterdrug activities, and the entire southern border is not a “drug smuggling corridor[].” 10 U.S.C. § 284(a), (b)(7); see Part III.C infra.
A. Defendants’ Wall-Funding Plan Violates the CAA “[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) (quotations omitted). “[E]stablished from time immemorial,” this rule applies “to appropriations bills the general principle of statutory construction” that “a more specific statute will be given precedence over a more general one.” Id. (quoting Busic v. United States, 446 U.S. 398, 406 (1980)). Applying this rule, the D.C. Circuit has held, for instance, that Congress’s specific appropriation of $1 million to Nevada for conducting “scientific oversight responsibilities” precluded a more general $190 million appropriation for “nuclear waste disposal activities” from being directed to Nevada. Id. The CAA appropriates $1.375 billion for border-wall expenditures and requires those
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expenditures to be made on “construction . . . in the Rio Grande Valley Sector” alone. CAA, § 230; id. § 231. Defendants’ funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes—military construction, 10 U.S.C. § 2808, and counterdrug support, 10 U.S.C. § 284—to construction of a wall along the entire southern border. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and is precluded by the CAA. See Nevada, 400 F.3d at 16; MacCollom, 426 U.S. at 321. And by using appropriated funds for different purposes than Congress chose, the plan also violates the “Purpose Statute” discussed above. 31 U.S.C. § 1301.
On top of that, CAA § 739 expressly forbids Defendants’ funding plan. Section 739 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 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. Section 739 creates a general rule and an exception. The general rule is that “[n]one of the funds made available” in an “appropriations Act” (including the CAA) “may be used to increase funding for a program, project, or activity” that was “proposed in the President’s budget request for a fiscal year.” The exception is that appropriations may be used to increase such funding if that use is authorized by “the reprogramming or transfer provisions” of an “appropriations Act.” Section 739 prohibits Defendants’ plan to fund the border wall, because the plan is barred by that provision’s general rule and does not fall within its exception. 1. Defendants’ plan is barred by Section 739’s general rule, because it (1) seeks to use funds “made available” in an “appropriations Act”; (2) “to increase funding for a program, project, or activity”; (3) that was “proposed in the President’s budget request for a fiscal year.” First, Defendants’ plan seeks to use funds “made available” in an “appropriations Act.” In
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particular, it taps appropriated military construction funds under 10 U.S.C. § 2808 and counterdrug support funds under 10 U.S.C. § 284. As the White House has acknowledged, all of those funds have been “appropriated by Congress.” Fact Sheet, note 2 supra. The military construction funds have been “made available” by Military Construction Appropriation Acts dating back to 1982. See, e.g., Pub. L. No. 97-106, 95 Stat. 1503; see also 10 U.S.C. § 2808(a) (military construction projects “may be undertaken only within the total amount of funds that have been appropriated for military construction”). And the counterdrug support funds have been “made available” by the Department of Defense Appropriations Act. See Pub. L. No. 115-245 (2019).
Second, Defendants’ plan also seeks to use these appropriations to “increase funding for a program, project, or activity.” Construction of a wall along the southern border is a singular “project” under that word’s ordinary meaning. See Merriam-Webster’s Dictionary 932 (10th ed. 1998) (defining “project” as “a specific plan or design”). Indeed, the Executive Branch has consistently referred to the wall in this manner. In the first days of his administration, the President signed an executive order stating that it is “the policy of the executive branch” 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. at 8793-94 (Ex. 5). Likewise, on the day of the President’s Proclamation, a White House fact sheet announced that the Executive Branch would use over $6 billion in additional funds to “build the border wall.” Fact Sheet, supra note 2.
Third, funding for the border wall was “proposed in the President’s budget request for a fiscal year.” On January 6, 2019, President Trump formally requested $5.7 billion for fiscal year 2019 “for construction of a steel barrier for the Southwest border.” Ex. 28, at 1.
2. Defendants’ funding plan is not saved by Section 739’s exception: the funding increases
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it proposes are not “change[s] . . . made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.” Under federal law, an “appropriations Act” is an Act whose title begins: “An Act making appropriations.” 2 U.S.C. § 622(5); 1 U.S.C. § 105. Neither 10 U.S.C. § 2808 nor 10 U.S.C. § 284 is found in an “appropriations Act.” Section 2808 is a provision of the Military Construction Codification Act, Pub. L. No. 97-124, 96 Stat. 153 (1982), which says nothing about appropriations in its title, nor makes any appropriations in its body. And § 284 is a provision of the National Defense Authorization Act, Pub. L. No. 114-328, 130 Stat. 2000, 2381, 2497 (2016), which by title and substance is not an “appropriations Act.” Cf. Pub. L. No. 115-31, 131 Stat. 135, 229 (2017) (separate statute appropriating Department of Defense funds).
Because Defendants’ funding plan runs afoul of the CAA, it must be enjoined in its entirety. But even apart from the CAA, the funding plan cannot be sustained by either of the individual statutes on which Defendants rely, as explained directly below.
B. Section 2808 Does Not Authorize Defendants’ Border-Wall Expenditures Defendants have invoked 10 U.S.C. § 2808 as authority for the Secretary of Defense to spend $3.6 billion on constructing a border wall. Section 2808 does not authorize that expenditure. In relevant part, § 2808 states: In the event . . . of the declaration by the President of a national emergency in accordance with the National Emergencies Act . . . that requires use of the armed forces, the Secretary of Defense . . . may undertake military construction projects . . . that are necessary to support such use of the armed forces. Broken down, the provision sets forth three requirements, each of which must be satisfied for border-wall construction to be permitted: (1) the relevant “national emergency” must “require[] use of the armed forces”; (2) the relevant project must be a “military construction project”; and (3) the relevant project must be “necessary to support such use of the armed forces.” Id. None of these requirements is satisfied here.
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1. The Proclamation declares that the relevant “national emergency” is the “current situation at the southern border.” Ex. 14, at 1. According to the Proclamation, the essence of that “situation” is “the problem of large-scale unlawful migration” and an “inability to provide detention space for many . . . aliens while their removal proceedings are pending.” Id. This “situation” is therefore inextricably linked to the enforcement of immigration laws.
But the enforcement of immigration laws does not “require[] use of the armed forces.” 10 U.S.C. § 2808. Such enforcement requires no military experience or training; instead, it requires only traditional law enforcement experience and training possessed by civilian officers around the country. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000) (“Securing the border . . . [is], of course, law enforcement activit[y].”). For that reason, Congress has long tasked civilian agencies such as DHS and CBP with immigration enforcement responsibilities.11 In fact, even when addressing “an actual or imminent mass influx of aliens . . . near a land border[] present[ing] urgent circumstances”—i.e., the same circumstances alleged in the Proclamation—Congress only empowered the Attorney General to authorize civilian “law enforcement officer[s]” to perform immigration functions. 8 U.S.C. § 1103(a)(10).
Not only has Congress assigned immigration enforcement solely to civilian agencies, but it has also expressly disapproved of military officers performing law enforcement duties. The Posse Comitatus Act generally bars military members from “execut[ing] the laws.” 18 U.S.C. § 1385. And other federal statutory provisions contain similar prohibitions—e.g., barring military participation in “search[es], seizure[s], arrest[s], or other similar activit[ies].” 10 U.S.C. § 275.
11 See 6 U.S.C. § 202 (assigning DHS responsibility for “[s]ecuring the borders” and “immigration enforcement functions”); id. § 251 (assigning DHS responsibility for “Border Patrol,” “detention and removal,” and “inspections”); 8 U.S.C. § 1103(a)(5) (Secretary of DHS has “duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens”).
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These laws embody the longstanding norm that the President must avoid using the military to execute domestic laws. That norm is grounded in the recognition that nothing could be “more sinister and alarming” than allowing a President to “vastly enlarge his mastery over the internal affairs of the country” through “commitment of the Nation’s armed forces.” Youngstown, 343 U.S. at 642 (Jackson, J., concurring).
Lastly, setting aside immigration enforcement, the act of constructing a border wall itself does not “require[] use of the armed forces.” 10 U.S.C. § 2808. Since 1996, Congress has provided for construction of hundreds of miles of southern-border barriers.12 The military has not participated in any of that construction. That is unsurprising, since no military training or experience is necessary to build walls.
2. Even when there is a national emergency requiring use of the armed forces, § 2808 authorizes only “military construction projects.” Section 2801(a) in turn defines “military construction” as “any construction, development, conversion, or extension of any kind carried out with respect to a military installation.” 10 U.S.C. § 2801(a). And “military installation” means “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” Id. § 2801(c)(4).
Given these statutory definitions, § 2808 does not authorize a border wall. The southern border, where the wall construction will be “carried out,” is not a “military installation.” Id. § 2801(a). It is not a “base, camp, post, station, yard, center, or other activity.” Id. § 2801(c)(4).
12 See Pub. L. No. 104-208, 110 Stat. 3009, 3009-546, 554-55 (1996) (authorizing Attorney General to install barriers “in areas of high illegal entry” and directing construction of 14 miles of barriers in San Diego); Pub. L. No. 109-367, 120 Stat. 2368, 2638-39 (2006) (directing construction of barriers in specific areas and designating five “priority areas”); Pub. L. No. 110161, 121 Stat. 1844, 2090 (2008) (allowing DHS to determine where fencing would be “most practical and effective”).
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Rather, the southern border is an international boundary line. Nor is the border “under the jurisdiction of the Secretary of a military department.” Id. But to the extent the border is under any agency’s “jurisdiction,” it would be DHS, which is responsible for “[s]ecuring the borders,” 6 U.S.C. § 202(2)—not DOD.
Past practice highlights Defendants’ misapplication of the phrase “military construction projects” under § 2808. Presidents have twice invoked § 2808 and the NEA to authorize “military construction projects.” First, President George H.W. Bush did so during Operation Desert Shield.13 Based on that invocation, Army officials opted to use $20.5 million to construct new facilities at an Army base in Kuwait.14 Second, President George W. Bush invoked § 2808 in the aftermath of September 11th,15 leading to eighteen different military construction projects.16 Seventeen of those projects occurred at overseas military sites, such as the construction of barracks at camps in Afghanistan. Id. The one project on American soil involved construction necessary to secure weapons of mass destruction. Id. at 2.
Every past use of § 2808 has thus involved mine run military construction—i.e., construction taking place on military sites under the control of military departments. Never has the Executive Branch sought to stretch § 2808’s words like Defendants have here, to authorize construction of a law-enforcement project away from a military site. The novelty of Defendants’
13 See Exec. Order No. 12,734, 55 Fed. Reg. 48,099 (Nov. 14, 1990); Exec. Order No. 12,722, 55 Fed. Reg. 31,803 (Aug. 2, 1990).
14 See Janet A. McDonnell, After Desert Storm 221-22 (Dep’t of the Army 1999), https://tinyurl.com/McDonnellAfterDesertStorm. Ultimately, however, the Kuwaiti government paid the construction costs, so the Army never had to use the emergency construction authority. Id. at 225.
15 See Exec. Order No. 13,235, 66 Fed. Reg. 58,343 (Nov. 16, 2001). 16 Michael J. Vassalotti & Brendan W. McGarry, Cong. Research Serv., Military Construction Funding in the Event of a National Emergency 2-3 (2019), https://tinyurl.com/CRSMilConFunding.
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application of § 2808 is itself a reason to reject it. See Chamber of Commerce v. Dep’t of Labor, 885 F.3d 360, 380 (5th Cir. 2018) (“[T]hat it took [an agency] forty years to discover its novel interpretation further highlights [that interpretation’s] unreasonableness.” (quotation marks omitted)).
3. Even if a border wall were a “military construction project[],” it would need to be “necessary to support such use of the armed forces” for § 2808 to allow it. For instance, the Secretary of Defense has previously invoked § 2808 to build military hangars, runways, logistics hubs, and ammunition-storage facilities. See Vassalotti & McGarry, note 16 supra, at 2-3. Those projects “support” uses of the armed forces by enabling them to more effectively carry out military functions.
The relevant “use of the armed forces” here would be immigration enforcement at the border, because that is what the alleged “national emergency” purportedly requires. See supra at 37. But immigration enforcement is not a valid “use of the armed forces” at all, as discussed above. And even assuming it were, a border wall is not “necessary to support” the armed forces in its enforcement of immigration laws at the border. Instead, a wall would obviate the need for the military to enforce immigration laws, rather than “support[ing]” its effort to do so. As President Trump explained: “If we had a wall, we don’t need the military because we’d have a wall.” Ex. 15, at 6. That explanation shows that a border wall cannot be “necessary to support” the relevant use of the armed forces.
C. Section 284 Does Not Authorize Defendants’ Border-Wall Expenditures Defendants have also invoked 10 U.S.C. § 284 as authority to spend $2.5 billion on a border wall. Section 284(a) states that “[t]he Secretary of Defense may provide support for the counterdrug activities . . . of any other department or agency . . . for any of the purposes set forth in subsection (b).” 10 U.S.C. § 284(a). Section 284(b)(7) lists as one such purpose: “Construction
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of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(b)(7). Relying on these provisions, Defendants have announced, and begun to carry out, a plan in which the Acting Secretary of Defense will “support” DHS by providing it $2.5 billion for construction of a wall along the entire southern border. To validate that plan, this Court would have to conclude that: (1) $2.5 billion toward a border wall qualifies as “support” for DHS’s “counterdrug activities”; and (2) the entire southern border qualifies as a “drug smuggling corridor[].” Neither of these conditions is met.
1. To determine the meaning of “support” in § 284, one must view that term in the context of the provision as a whole. See, e.g., Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101 (2012) (“[s]tatutory language” is not “construed in a vacuum” and “must be read in . . . context and with a view to [its] place in the overall statutory scheme”). Section 284(b) lists ten forms of support that DOD may provide to other agencies. 10 U.S.C. § 284(b). These forms of support include maintaining and repairing equipment, transporting personnel, establishing training facilities, detecting air and sea traffic, constructing roads and fences, establishing computer networks, providing intelligence analysis, and performing aerial and ground reconnaissance. See 10 U.S.C. § 284(b)(1)-(10). After listing the types of support that DOD may give, § 284 specifies instances in which the Secretary must notify Congress about “support” DOD has provided. 10 U.S.C. § 284(h). And there, it states that “[i]n the case of support for a purpose described in subsection (b)”—including subsection (b)(7)—the Secretary must offer “a description of any small scale construction project for which support is provided.” Id. § 284(h)(1)(B). “[S]mall scale construction,” in turn, is defined as “construction at a cost not to exceed $750,000 for any project.” Id. § 284(i)(3).
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Taken together, § 284’s interlocking provisions show that “support” cannot include $2.5 billion toward a border wall. For starters, an expenditure in that amount for a project of that magnitude is totally disproportionate to the other forms of “support” that § 284(b) authorizes. In accordance with the ordinary meaning of “support”—“assistance or backing,” Oxford English Dictionary Online (last visited Apr. 23, 2019)—those other forms amount to subsidiary acts of aid. A $2.5 billion outlay for a border wall, by contrast, would be the primary driver of a mammoth construction project.
Indeed, § 284’s congressional notification provisions make clear that “support” in the context of § 284(b)(7) can include only assistance with “small scale construction project[s]” costing no more than $750,000. 10 U.S.C. §§ 284(h)(1)(B), 284(i)(3). Congress, after all, only required notification for construction projects of that scale. Id. Defendants’ contrary reading makes no sense: the Secretary would be required to notify Congress of construction projects costing under $750,000, but would not need to notify Congress of a massive construction project costing over 3,000 times that amount. Congress, as the keeper of the public fisc, would obviously want a description of the more expensive project over the less expensive one, just as any parent would want their teenager to alert them before making a $5,000 purchase more so than a $5 one. No plausible reading could lead to such an “incongruous” result. Salinas v. United States, 522 U.S. 52, 58 (1997).
And there is still another reason to reject the government’s interpretation of “support.” By reading that word to authorize a $2.5 billion payment for a border wall, the Acting Secretary of Defense is “claim[ing] to discover in a long-extant statute an unheralded power.” UARG v. EPA, 573 U.S. 302, 324 (2014). But as the Supreme Court has held, Congress does not grant agencies such powers through “vague terms or ancillary provisions—it does not, one might say, hide
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elephants in mouseholes.” Whitman, 531 U.S. at 468. It is unsurprising, then, that DOD has never, before now, contended that § 284 authorizes anywhere near this level of spending. Where, as here, an agency announces such a novel contention, courts “typically greet it[] . . . with a measure of skepticism.” UARG, 573 U.S. at 324; accord Chamber of Commerce, 885 F.3d at 380.
2. Regardless of whether $2.5 billion for a border wall can qualify as “support,” Defendants’ reliance on § 284 fails on a separate ground. Recall that Defendants have invoked § 284(b)(7), which authorizes support for construction of “fences . . . to block drug smuggling corridors across international boundaries of the United States,” 10 U.S.C. § 284(b)(7), to build a wall that will ultimately span the entire “international boundar[y]” with Mexico. But that application of § 284(b)(7) cannot be reconciled with its text. Section 284(b)(7) differentiates between “corridors” and “international boundaries,” by stating that “corridors” exist “across” such boundaries. So while an international boundary may feature numerous “corridors,” an international boundary cannot itself be a “corridor.” Read Defendants’ way, the word “corridors” is superfluous, as § 284(b)(7) would allow “fences to block . . . international boundaries.” See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (rejecting interpretation that rendered word “insignificant, if not wholly superfluous”).
Nor can the ordinary meaning of “corridor” be stretched to encompass an entire international boundary. “Corridor” means “passageway.” American Heritage Dictionary 412 (4th ed. 2006). Recognizing as much, courts (including the Fifth Circuit) have used the phrase “drug corridor” to refer to discrete passageways through which drugs are transported. See, e.g., United States v. Vasquez, 298 F.3d 354, 357 (5th Cir. 2002) (referring to “Highway 59” as a “known corridor for . . . drug trafficking”); United States v. Powell, 137 F. App’x 701, 702, 706 (5th Cir. 2005) (referring to “Interstate 45” as “known major drug corridor”); United States v. Foreman,
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369 F.3d 776, 784-85 (4th Cir. 2004) (referring to “Route 13” as a “frequented corridor for illegal narcotics”); United States v. Pino, 855 F.2d 357, 358 (6th Cir. 1988) (referring to “Interstate 24” as a “drug corridor”). Such discrete passageways might cross the border at certain points. See Vasquez, 298 F.3d at 355 (noting that “South Texas highways often serve as corridors for illegal immigration and drug-trafficking activity originating in Mexico”). But the entirety of the southern border is not itself a discrete passageway. IV. DEFENDANTS’ ACTIONS VIOLATE THE ADMINISTRATIVE PROCEDURE
ACT The Administrative Procedure Act (APA) directs courts to “hold unlawful and set aside agency action, findings, and conclusions found to be,” inter alia: “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power, privilege, or immunity”; and “in excess of statutory jurisdiction [or] authority.” 5 U.S.C. § 706(2). Here, Defendants Shanahan and McAleenan, as Acting Secretaries of Defense and Homeland Security, respectively, have violated the APA in two separate ways. First, they have made a determination to spend funds on a border wall under 10 U.S.C. §§ 284 and 2808, even though neither of those provisions authorizes such expenditures. Second, Defendant Shanahan has made a determination to transfer funds from one DOD appropriations account to another and then to DHS, even though the Department of Defense Appropriations Act bars such transfers. Although an agency’s “allocation of funds from a lump-sum appropriation” is unreviewable under the APA, Lincoln v. Vigil, 508 U.S. 182, 192 (1993), Plaintiffs here do not challenge such an action. Rather, Plaintiffs contend that Defendants’ use of funds violates express “restrictions in [their] operative statutes”—a claim to which APA review fully applies. Id. at 193; see Louisiana State v. U.S. Army Corps of Eng’rs, 834 F.3d 574, 585-88 (5th Cir. 2016) (conducting APA review of agency’s funding decisions where statutes constricted agency’s
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discretion). Courts have reviewed and invalidated agency fund-allocation decisions in precisely these circumstances. See Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338, 1347, 1350 (D.C. Cir. 1996) (agency’s allocation of funds was reviewable under APA and violated governing statute). This Court should do the same here.
A. Defendants’ Determination to Spend Funds on a Border Wall Violates the APA
As explained above, Defendants Shanahan and McAleenan, acting pursuant to the President’s direction, have decided to spend appropriated funds on a border wall. They have taken several actions in pursuit of that plan: DHS has requested funds from DOD, citing 10 U.S.C. § 284, see Ex. 19; DOD has provided Congress with a “Fact Sheet” identifying § 2808 “military construction” funding that could be used for building a border wall, including funding that Congress originally appropriated for use on projects at Fort Bliss in El Paso County, see Ex. 21; DOD has confirmed in a letter to DHS that the agencies have decided to undertake “El Paso Sector Project 1,” which entails the construction of 46 miles of border walls in the direct vicinity of El Paso County, see Ex. 19, at 9; and DOD has awarded a private contract for wall construction in the direct vicinity of El Paso County, see Ex. 24, at 1.
For the same reasons that Defendants’ wall-funding plan violates the Appropriations Clause, it also violates the APA. Defendants claim that 10 U.S.C. §§ 284 and 2808 justify the actions they have taken toward building a border wall. But in fact, neither of those provisions authorizes such actions. See supra at 36-44. Accordingly, Defendants’ actions are “not in accordance with law,” “contrary to constitutional . . . power,” and “in excess of statutory . . . authority.” 5 U.S.C. § 706(2). This Court must therefore hold them “unlawful” and “set [them] aside.” Id.; see Ramah Navajo Sch. Bd., 87 F.3d at 1350.
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B. DOD’s Fund Transfers Violate the APA As explained above, DOD plans to “support” DHS under § 284 by providing it $2.5 billion to construct a border wall. But even aside from the fact that § 284 does not allow such an expenditure, that plan is unlawful for multiple other reasons. DOD has stated that it will provide “support” to DHS under § 284 by transferring it funds from DOD’s Drug Interdiction appropriations account. See Ex. 23. In the 2019 Department of Defense Appropriations Act, Pub. L. No. 115-245, however, Congress expressly barred such a transfer. Section 8045(a) of that Act states: “None of the funds available to the Department of Defense for any fiscal year for drug interdiction or counter-drug activities may be transferred to any other department or agency of the United States except as specifically provided in an appropriations law.” Even if § 284 allowed DOD’s intended transfer on its own terms (it does not), § 284 is not “an appropriations law.” See supra at 36. Thus, Section 8045 forbids DOD’s $2.5 billion transfer to DHS. DOD’s plan to provide § 284 “support” to DHS falters for another, independent reason. Congress appropriated $881,525,000 to DOD’s Drug Interdiction account for fiscal year 2019— far less than the $2.5 billion that DOD plans to give DHS. See Pub. L. No. 115-245, Title VI. To make up the shortfall, DOD has reprogrammed $1 billion from its Military Personnel appropriation account to its Drug Interdiction Account. See Exs. 22-23. DOD may engage in such reprogramming only if Congress has authorized it to do so. As discussed in Part III supra, Congress, exercising its Appropriations Clause powers, has provided that funds “may be withdrawn from one appropriation account and credited to another . . . only when authorized by law.” 31 U.S.C. § 1532 (emphasis added); see supra at 32. Here, DOD points to Section 8005 of the DOD Appropriations Act as the requisite authorization. That section reads as follows:
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[The Secretary may transfer] funds made available in this Act to the Department of Defense for military functions (except military construction) . . . [p]rovided [t]hat such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress. Section 8005 accordingly authorizes DOD’s reprogramming only if: (1) it is “based on unforeseen military requirements”; (2) “the item for which funds are requested” has not “been denied by the Congress”; and (3) the transfer is “for military functions (except military construction).” None of these prerequisites is satisfied here. 1. DOD has reprogrammed funds in order to provide money to DHS for a border wall. That reprogramming is not “based on unforeseen military requirements.” For all the reasons given in Part II supra, the alleged need for a border wall to impede unlawful immigration is not “unforeseen.” See supra at 22. To the contrary, as the President’s Proclamation admits, dealing with unlawful immigration is a “long-standing” political issue that Congress and the President have debated over decades. See Ex. 14, at 1. Nor would DOD’s reprogramming be for a “military requirement.” Enforcing immigration laws is, and has always been, a civilian responsibility. See supra at 37. And certainly, military members—who are trained to fight wars—are not “require[d]” to build a wall. See supra at 38. 2. DOD has requested funds to be transferred so that a wall can be built along the southern border. But such a wall is an “item” that has “been denied by the Congress.” Congress considered providing funding for a border wall. Ultimately, however, it elected to appropriate only $1.375 billion for construction of barriers in specified areas. See CAA, §§ 230-31. In so doing, Congress “denied” the precise “item”—a $7.5 billion wall stretching the entire border—for which DOD now seeks to transfer funds. Section 8005 therefore fails to authorize that transfer. 3. DOD’s transfer is also not “for military functions.” It is for a wall designed to better
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prevent unlawful immigration. Preventing unlawful immigration and building walls are civilian, not military, functions. But to the extent building a border wall is a “military function,” it would of course be “military construction.” Indeed, in invoking 10 U.S.C. § 2808, Defendants expressly assert that building a border wall qualifies as “military construction.” See supra at 36. That poses a problem for Defendants, because Section 8005 states that no transfer of funds may be used for “military construction.” So under any scenario, Defendants’ transfer is barred.
What’s more, DOD’s assertion of contradictory positions on the meaning of “military construction” is a classic example of “arbitrary [and] capricious” agency action, in violation of the APA. 5 U.S.C. § 706(2)(A). An agency may not give a term opposite definitions in two related actions, based purely on convenience. See, e.g., NLRB v. CNN Am., Inc., 865 F.3d 740, 751 (D.C. Cir. 2017) (rejecting agency interpretation that “chang[ed] . . . course” without “a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored” (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970)). To uphold such a gambit would be to abdicate this Court’s role of ensuring “rational” agency decisionmaking. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins., 463 U.S. 29, 42 (1983).
For all these reasons, this Court must “hold unlawful and set aside” DOD’s plan to provide § 284 “support” to DHS. 5 U.S.C. § 706(2). Not only is DOD’s transfer to DHS prohibited by Section 8045, but its reprogramming of funds between appropriations accounts is barred by Section 8005 and is arbitrary and capricious. V. EVEN IF A PERMANENT INJUNCTION WERE NOT YET WARRANTED,
PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION Plaintiffs principally request that this Court grant summary judgment in their favor and declare unlawful and permanently enjoin Defendants’ actions. In the alternative, however, Plaintiffs ask this Court to grant a preliminary injunction, thereby placing Defendants’ unlawful
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actions on hold while this litigation runs its course. To be entitled to a preliminary injunction, Plaintiffs must show: “(1) a substantial
likelihood that [they] will prevail on the merits, (2) a substantial threat that [they] will suffer irreparable injury if the injunction is not granted, (3) [their] threatened injury outweighs the threatened harm to the party whom [they] seek[] to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.” Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 457 (5th Cir. 2017). Each of these factors weighs in Plaintiffs’ favor.
First, for all the reasons given above, Plaintiffs have established a “likelihood of success on the merits,” which is “arguably the most important” preliminary injunction factor. Tesfamichael v. Gonzales, 411 F.3d 169, 176 (5th Cir. 2005).
Second, Plaintiffs have demonstrated a “substantial threat” of “irreparable injury.” Gee, 862 F.3d at 457. As an official government policy treating the border as a place of crime and chaos, the Proclamation injures the County’s reputation every day that it remains on the books. That reputational injury, combined with the impending border-wall construction, is costing the County tourism and commercial dollars that it can never recoup. Likewise, BNHR will be forced to divert more and more resources to combat Defendants’ actions as long as they remain in effect, depleting the organization’s coffers.
Third, Plaintiffs’ injuries outweigh any potential harm that an injunction would inflict on Defendants. See id. As the President’s Proclamation notes, the issue of unlawful immigration is “long-standing,” Ex. 14, at 1, and delaying border-wall construction until its legality is determined will simply leave intact the solution that Congress has chosen for dealing with that issue. Moreover, building a wall along the southern border would undoubtedly take years. A preliminary injunction would cause only a short delay of that lengthy process.
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Finally, granting a preliminary injunction would not “disserve the public interest.” Gee, 862 F.3d at 457. To the contrary, because Defendants’ actions are unlawful, the public interest would be served by halting them. And even if those actions were lawful, the public interest would not be disserved by the minor delay of a years-long construction process.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for summary judgment should be granted and Defendants’ actions should be declared unlawful and permanently enjoined. In the alternative, Plaintiffs’ motion for a preliminary injunction should be granted.

Dated: April 25, 2019

Respectfully submitted,
By: /s/ Richard Mancino Richard Mancino (Pro hac vice) WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 728-8000 Facsimile: (212) 728-8111 rmancino@willkie.com
Kristy Parker (Pro hac vice) Justin Florence (Pro hac vice) Erica Newland (Pro hac vice) THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Avenue., NW, #163 Washington, DC 20006 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 kristy.parker@protectdemocracy.org justin.florence@protectdemocracy.org erica.newland@protectdemocracy.org
Deana K. El-Mallawany (Pro hac vice) THE PROTECT DEMOCRACY PROJECT, INC. 125 Walnut Street, Ste. 202 Watertown, MA 02472 Telephone: (202) 579-4582 Facsimile: (929) 777-8428
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deana.elmallawany@protectdemocracy.org
Stephanie Llanes (Pro hac vice) THE PROTECT DEMOCRACY PROJECT, INC. 222 Broadway, 19th Floor New York, NY 10038 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 stephanie.llanes@protectdemocracy.org
Anton Metlitsky (Pro hac vice forthcoming) O’MELVENY & MYERS LLP Seven Times Square New York, NY 10036 Telephone: (212) 326-2000 ametlitsky@omm.com
Ephraim McDowell (Pro hac vice forthcoming) O’MELVENY & MYERS LLP 1625 Eye Street NW Washington, DC 20006 Telephone: (202) 383-5300 emcdowell@omm.com
David Bookbinder (Pro hac vice) NISKANEN CENTER 820 First Street, NE Washington, DC 20002 Telephone: (301) 751-0611 dbookbinder@niskanencenter.org
Shaimaa M. Hussein (Pro hac vice) Matthew Dollan (Pro hac vice) Samantha G. Prince (Pro hac vice) WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 728-8000 Facsimile: (212) 728-8111 shussein@willkie.com mdollan willkie.com sprince@willkie.com
Stuart Gerson (Pro hac vice) EPSTEIN BECKER GREEN 1227 25th Street, NW Washington, DC 20037
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Telephone: (202) 861-4180 sgerson@ebglaw.com Laurence H. Tribe (Pro hac vice) Carl M. Loeb University Professor and Professor of Constitutional Law HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 Telephone: (617) 495-1767 tribe@law.harvard.edu *Affiliation noted for identification purposes only John C. Padalino (Texas SB# 24041638) 401 Congress Avenue, Suite 1540 Austin, TX 78701 Telephone: (512) 596-2944 Facsimile: (512) 596-2944 john@padalinolaw.com Counsel for Plaintiffs
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CERTIFICATE OF SERVICE

I hereby certify that on this same date, I electronically filed the foregoing document with

the U.S. District Court for the Western District of Texas by using the CM/ECF system, which will

send notifications of such filing to all CM/ECF counsel of record.

Dated: April 25, 2019

/s/ Richard Mancino Richard Mancino (Pro hac vice) WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 728-8000 Facsimile: (212) 728-8111 rmancino@willkie.com

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 Case 3:19-cv-00066-DB Document 95 Filed 06/10/19 Page 1 of 75

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

EL PASO COUNTY, TEXAS; BORDER NETWORK FOR HUMAN RIGHTS,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America, et al.
Defendants.

Case No. EP-19-CV-66-DB

MEMORANDUM IN SUPPORT OF THE GOVERNMENT’S CROSS-MOTION TO DISMISS OR FOR SUMMARY JUDGMENT, AND OPPOSITION TO PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT AND A PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................................... 1 BACKGROUND .............................................................................................................................................. 4
Congress’s Authorization of Border Barrier Construction .............................................. 4 DHS’s Recent Efforts to Expedite Border Barrier Construction ................................... 5 Congress’s Authorization for U.S. Military Support of DHS’s Border Security Efforts ...................................................................................................................................... 5 DoD’s Current Support for DHS’s Efforts to Secure the Southern Border.................6 The President’s Proclamation Declaring a National Emergency at the Southern Border....................................................................................................................................... 7 The Use of Statutory Authorities for Barrier Construction ............................................. 9 STATUTORY BACKGROUND.................................................................................................................11 The National Emergencies Act ..........................................................................................11 10 U.S.C. § 284......................................................................................................................15 10 U.S.C. § 2808....................................................................................................................17 31 U.S.C. § 9705....................................................................................................................18 PLAINTIFFS’ CLAIMS .................................................................................................................................18 STANDARDS OF REVIEW........................................................................................................................19 Rule 12 Standard...................................................................................................................19 Rule 56 Standard...................................................................................................................19 ARGUMENT................................................................................................................................................... 20 Plaintiffs’ Challenge to the President’s Declaration of a National Emergency Should Be Dismissed (Counts I-II, VII).........................................................................................20 The NEA Evidences Congress’s Intent to Preclude Judicial Review of National Emergency Declarations......................................................................................................20 Plaintiffs’ Challenge to the President’s National Emergency Declaration Presents a Nonjusticiable Political Question.......................................................................................23 The President Should Be Dismissed as a Party to this Lawsuit Because There Is No Cause of Action Against the President and Plaintiffs Cannot Obtain Equitable Relief Against the President. ..........................................................................................................28 Plaintiffs’ Nondelegation Challenge to the NEA Is Meritless (Count II)....................30 Plaintiffs Cannot Establish Article III Standing Over Any of Their Claims. ..............33 Plaintiffs Have No Standing to Challenge Future Border Barrier Construction Under § 2808. ....................................................................................................................................33 Plaintiffs Have No Standing to Challenge an Alleged Violation of § 8005 of the DoD Appropriations Act...............................................................................................................34
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El Paso County Has No Standing to Challenge the Proclamation or § 284 Construction. ......................................................................................................................... 35 1. Reputational Harm..................................................................................................35 2. Pecuniary Injuries....................................................................................................39 BNHR Lacks Standing to Challenge the Proclamation or § 284 Construction. .........40 Plaintiffs Have Not Satisfied the APA’s Requirements for Review of Agency Action. ....................................................................................................................................44 There Is No “Final Agency Action” Respecting § 2808 Because the Acting Secretary Has Not Yet Decided to Undertake or Authorize Any Barrier Construction Projects Under That Authority. .........................................................................................................44 The Use of § 2808 Construction Authority Is Committed to Agency Discretion by Law and Is Unreviewable Under the APA. ......................................................................45 Plaintiffs’ Claims Do Not Fall Within the Zone of Interest of § 8005, § 284, or § 2808. .......................................................................................................................................47 Plaintiffs’ APA Claims Related to the Funding of the Border Wall (Counts V–VI) Fail On the Merits. ...............................................................................................................49 Section 9705 ..........................................................................................................................49 Section 2808 ..........................................................................................................................50 Section 284 ............................................................................................................................51 The Consolidated Appropriations Act ..............................................................................53 Section 8005 ..........................................................................................................................56 Plaintiffs’ Appropriations Clause Claims Must Be Dismissed (Counts III–IV)..........58 CONCLUSION ............................................................................................................................................... 60
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Cases

TABLE OF AUTHORITIES

Am. Airlines, Inc. v. Herman, 176 F.3d 283 (5th Cir. 1999)......................................................................................................................44

American Butterfly Ass’n v. Nielsen, 2019 WL 634596 (D.D.C. Feb. 14, 2019)..................................................................................................5

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015).................................................................................................................................21

Am. Fed. of Labor and Cong. of Ind. Org. v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) ...................................................................................................................60

Arizona v. United States, 567 U.S. 387 (2012) .............................................................................................................................. 26, 50

Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015).......................................................................................................................... 28, 48

Ashcroft v. Iqbal, 556 U.S. 662 (2009).....................................................................................................................................19

Assoc. for Retarded Citizens of Dallas v. Dallas Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241 (5th Cir. 1994) ........................................................................................................................39

Assoc. of Community Organizations for Reform Now v. Fowler, 178 F.3d 350 (5th Cir. 1999)......................................................................................................................41

Baker v. Carr, 369 U.S. 186 (1962) .............................................................................................................................. 25, 26

Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017) ............................................................................................................... 36, 43

Beacon Prods. Corp. v. Reagan, 814 F.2d 1 (1st Cir. 1987)..............................................................................................................14, 22, 32

Beacon Prods. Corp. v. Regan, 633 F. Supp. 1191 (D. Mass. 1986).................................................................................................... 22, 24

Bennett v. Spear, 520 U.S. 154 (1997).....................................................................................................................................44

Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) .............................................................................................................................. 20, 22

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Case 3:19-cv-00066-DB Document 95 Filed 06/10/19 Page 5 of 75
Bynum v. FMC Corp., 770 F.2d 556 (5th Cir. 1985)......................................................................................................................50
CASA de Maryland, Inc. v. Trump, 355 F. Supp. 3d 307 (D. Md. 2018) ..........................................................................................................30
Celotex Corp. v. Catrett, 477 U.S. 317 (1986).....................................................................................................................................19
Centro Presente v. DHS, 332 F. Supp. 3d 393 (D. Mass. 2018) .......................................................................................................30
Chang v. United States, 859 F.2d 893 (Fed. Cir. 1988)....................................................................................................................24
Chaplaincy of Full Gospel Churches v. U.S. Navy (In re Navy Chaplaincy), 534 F.3d 756 (D.C. Cir. 2008) ............................................................................................................ 36, 43
Chichakli v. Szubin, 2007 WL 9711515 (N.D. Tex. June 4, 2007)...........................................................................................23
Chichakli v. Szubin, 546 F.3d 315 (5th Cir. 2008)......................................................................................................................23
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).............................................................................................................................passim
Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987).....................................................................................................................................48
Cty. of El Paso v. Napolitano 557 U.S. 915 (2009).......................................................................................................................................5
Cty. of El Paso v. Chertoff, 2008 WL 4372693 (W.D. Tex. 2008) .........................................................................................................5
Curtis v. Anthony, 710 F.3d 587 (5th Cir. 2013)......................................................................................................................19
Dalton v. Specter, 511 U.S. 462 (1994)....................................................................................................................3, 28, 59, 60
Dist. No. 1, Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n v. Maritime Admin., 215 F.3d 37 (D.C. Cir. 2000) .....................................................................................................................47
Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984) .................................................................................................................54
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El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) ...................................................................................................................25
Ellison v. Conner, 153 F.3d 247 (5th Cir. 1998)......................................................................................................................45
Fiallo v. Bell, 430 U.S. 787 (1977).....................................................................................................................................27
Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) .................................................................................................................37
Franklin v. Massachusetts, 505 U.S. 788 (1992) .............................................................................................................................. 28, 30
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000).....................................................................................................................................33
Gilligan v. Morgan, 413 U.S. 1 (1973) .................................................................................................................................. 46, 48
Gringo Pass, Inc. v. Kiewit Sw. Co., 2012 WL 12905166 (D. Ariz. Jan. 11, 2012) .............................................................................................6
Grupo Mexicano De Desarrollo v. All. Bond Fund, 527 U.S. 308 (1999) .............................................................................................................................. 28, 29
Gulf Restoration Network v. McCarthy, 783 F.3d 227 (5th Cir. 2015)......................................................................................................................45
Harvard Pilgrim Health Care of New England v. Thompson, 318 F. Supp. 2d 1 (D.R.I. 2004) ................................................................................................................60
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .............................................................................................................................. 40, 41
Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017)......................................................................................................................29
Heckler v. Chaney, 470 U.S. 821 (1985).....................................................................................................................................45
Hein v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007).....................................................................................................................................35
Hernandez v. Mesa, 885 F.3d 811 (5th Cir. 2018)......................................................................................................................27
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Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006 (5th Cir. 1998)....................................................................................................................19
In re Border Infrastructure Envtl. Litig., 915 F.3d (9th Cir. 2019) ..............................................................................................................................5
In re Nat’l Security Agency Telecomm. Records, 671 F.3d 881 (9th Cir. 2011)......................................................................................................................31
Industrial Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980).....................................................................................................................................31
Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996) ........................................................................................................................36
INS v. Chadha, 462 U.S. 919 (1983).....................................................................................................................................15
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017)......................................................................................................................29
J.W. Hampton, Jr. Co. v. United States, 276 U.S. 394 (1928).....................................................................................................................................31
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986).....................................................................................................................................24
Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 58 F. Supp. 3d 1191 (D.N.M. 2014) .........................................................................................................60
Kaempe v. Myers, 367 F.3d 958 (D.C. Cir. 2004) .....................................................................................................................5
Karahalios v. Nat’l Fed’n of Fed. Emps., Local, 1263, 489 U.S. 527 (1989) ..........................................................................................................................22
Kleindienst v. Mandel, 408 U.S. 753 (1972).....................................................................................................................................27
Knauff v. Shaughnessy, 338 U.S. 537 (1950).....................................................................................................................................31
La. ACORN Fair Hous. v. LeBlanc, 211 F.3d 298 (5th Cir. 2000)......................................................................................................................42
Lexmark Intern., Inc. v Static Ctrl Comp., Inc., 572 U.S. 118 (2014).....................................................................................................................................48
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Case 3:19-cv-00066-DB Document 95 Filed 06/10/19 Page 8 of 75
Lincoln v. Vigil, 508 U.S. 182 (1993).....................................................................................................................................49
Loving v. United States, 517 U.S. 748 (1996).....................................................................................................................................31
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990)........................................................................................................................35, 37, 47
Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) .............................................................................................................................. 47, 48
Mathews v. Diaz, 426 U.S. 67 (1976) .......................................................................................................................................27
Meese v. Keene, 481 U.S. 465 (1987).....................................................................................................................................36
Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, (1981) ........................................................................................................................................21
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866) ..........................................................................................................23, 28, 30
Mistretta v. United States, 488 U.S. 361 (1989).....................................................................................................................................31
Murphy v. NCAA, 138 S. Ct. 1461 (2018).................................................................................................................................37
NAACP v. City of Kyle, 626 F.3d 233 (5th Cir. 2010)......................................................................................................................42
NCAA v. New Jersey, 730 F.3d 208 (3d Cir. 2013) .......................................................................................................................37
New Jersey v. United States, 91 F.3d 463 (3d Cir. 1996) .........................................................................................................................26
New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321 (5th Cir. 2008)......................................................................................................................19
Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) .................................................................................................................29
NFFE v. United States, 905 F.2d 400 (D.C. Cir. 1990) ...................................................................................................................46
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Case 3:19-cv-00066-DB Document 95 Filed 06/10/19 Page 9 of 75
Nixon v. Fitzgerald, 457 U.S. 731 (1982) .............................................................................................................................. 22, 28
Norris v. Hearst Tr., 500 F.3d 454 (5th Cir. 2007)........................................................................................................................5
North Dakota v. United States, 495 U.S. 423 (1990)........................................................................................................................46, 50, 51
OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017)......................................................................................................................41
Orloff v. Willoughby, 345 U.S. 83 (1953) .......................................................................................................................................47
Perales v. Casillas, 903 F.2d 1043 (5th Cir. 1990)....................................................................................................................46
Plyler v. Doe, 457 U.S. 202 (1982).....................................................................................................................................26
Trump v. Hawaii, 138 S. Ct. 377 (2017)...................................................................................................................................29
Resident Council of Allen Parkway Vill. v. U.S. Dep’t of Urban Hous. & Dev., 980 F.2d 1043 (5th Cir. 1993)....................................................................................................................45
Russello v. United States, 464 U.S. 16 (1983) .......................................................................................................................................53
Sadowski v. Bush, 293 F. Supp. 2d 15 (D.D.C. 2003) ............................................................................................................26
Saget v. Trump, 345 F. Supp. 3d 287 (E.D.N.Y. 2018)......................................................................................................30
Salazar v. Ramah Navajo Chapter, 567 U.S. 182 (2012) .............................................................................................................................. 54, 55
Santiago v. Rumsfeld, 2004 WL 3008724 (D. Or. 2004) ..............................................................................................................24
Santiago v. Rumsfeld, 403 F. 3d 702 (9th Cir. 2005).....................................................................................................................24
Santiago v. Rumsfeld, 407 F. 3d 1018 (9th Cir. 2005)...................................................................................................................23
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Sardino v. Fed. Reserve Bank of N.Y., 361 F.2d 106 (2d Cir. 1966) .......................................................................................................................24
Scott v. Schedler, 771 F.3d 831 (5th Cir. 2014)......................................................................................................................41
Sierra Club v. Ashcroft, 2005 WL 8153059 (S.D. Cal. Dec. 13, 2005)...........................................................................................27
Sierra Club v. Morton, 405 U.S. 727 (1972).....................................................................................................................................41
Sierra Club v. Trump, F. Supp. 3d 2019 WL 2247689 ........................................................................................................... 48, 56
Soudavar v. Bush, 46 F. App’x 731 (5th Cir. 2002) ................................................................................................................23
Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938 (5th Cir. 2011)......................................................................................................................47
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) ............................................................................................................ 29, 30
Tenet v. Doe, 544 U.S. 1 (2005) .........................................................................................................................................30
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978).....................................................................................................................................54
Texas v. United States, 106 F.3d 661 (5th Cir. 1997)......................................................................................................................27
Doe 2 v. Trump, 319 F. Supp. 3d 539 (D.D.C. 2018) ..........................................................................................................29
United States v. Amirnazmi, 645 F.3d 564 (3d Cir. 2011) ..........................................................................................................15, 21, 23
United States v. Brignoni-Ponce, 422 U.S. 873 (1975).....................................................................................................................................26
United States v. Coombs, 37 U.S. (12 Pet.) 72 (1838) .........................................................................................................................31
United States v. Delgado–Garcia, 374 F.3d 1337 (D.C. Cir. 2004) .................................................................................................................28
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United States v. Groos, 616 F. Supp. 2d 777 (N.D. Ill. 2008) ........................................................................................................24
United States v. Mirza, 454 Fed. App’x 249 (5th Cir. 2011) ..........................................................................................................33
United States v. Spawr Optical Research, Inc., 685 F.2d 1076 (9th Cir. 1982)............................................................................................................. 23, 25
United States v. Yoshida Int’l, Inc., 526 F.2d 560 (Cust. & Pat. App. 1975)....................................................................................................23
Vietnam v. Regional Comm’r of Customs, Region II, 459 F.2d 676 (3d Cir. 1972) .......................................................................................................................24
Warger v. Shauers, 574 U.S. 40 (2014) .......................................................................................................................................33
Whitman v. Am. Trucking Associations, 531 U.S. 457 (2001).....................................................................................................................................32
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).....................................................................................................................................60
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).................................................................................................................................29
Zimmerman v. City of Austin, 881 F.3d 378 (5th Cir. 2018)......................................................................................................................38
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012).....................................................................................................................................25
Administrative and Executive Materials Fed. R. Civ. P. 56(a).........................................................................................................................................19 Exec. Order No. 12722...................................................................................................................................17 Exec. Order No. 12734...................................................................................................................................18 Exec. Order No. 12735.............................................................................................................................. 2, 14 Exec. Order No. 12938...................................................................................................................................14 Exec. Order No. 12978...................................................................................................................................14 Exec. Order No. 13047.....................................................................................................................................2
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Exec. Order No. 13194...................................................................................................................................13 Exec. Order No. 13235...................................................................................................................................18 Exec. Order No. 13350...................................................................................................................................18 Exec. Order No. 13405.....................................................................................................................................2 Exec. Order No. 13581...................................................................................................................................14 Exec. Order No. 13712.............................................................................................................................. 2, 13 Exec. Order No. 13767.....................................................................................................................................5 60 Fed. Reg. 54579 (Oct. 21, 1995)...............................................................................................................14 66 Fed. Reg. 7389 (Jan. 18, 2001) ..................................................................................................................13 74 Fed. Reg. 55439 (Oct. 23, 2009)...............................................................................................................13 82 Fed. Reg. 8793 (Jan. 25, 2017) ....................................................................................................................5 83 Fed. Reg. 46067 (Sept. 10, 2018)..............................................................................................................18 83 Fed. Reg. 56251 (Nov. 8, 2018)................................................................................................................14 84 Fed. Reg. 17185–87 (Apr. 24, 2019) ..........................................................................................................5 Proc. No. 6867 .................................................................................................................................................13 Proc. No. 7463 .................................................................................................................................................18 Proc. No. 8443 .................................................................................................................................................13 Proc. No. 9398 .................................................................................................................................................13 Secretary of Defense, Secretary of Homeland Security, and the Attorney General titled, “Securing
the Southern Border of the United States.” See Presidential Memorandum, 2018 WL 1633761 (Apr. 4, 2018).................................................................................................7, 8, 9, 10 Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States, 2019 WL 643819 (Feb. 15, 2019)................................................................................................................1 Nat’l Emergency With Respect to Iran, 2016 WL 6518765 (Nov. 3, 2016).............................................................................................................13
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Case 3:19-cv-00066-DB Document 95 Filed 06/10/19 Page 13 of 75 Other Authorities 1999 WL 258030 (Apr. 27, 1999) ............................................................................................................. 8, 23 H.J. Res. 46, 2019 WL 1219481 .......................................................................................................... 8, 11, 30 H.R. Rep. No. 103-200, 1993 WL 298896 ...................................................................................................16 Pub. L. No. 104-208 ..........................................................................................................................................5 S. Appropriations Hr’g on the DHS FY 2018 Budget,
2017 WL 2311065 (May 25, 2017)..............................................................................................................5
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INTRODUCTION On February 15, 2019, the President issued a proclamation declaring that a national emergency exists at the southern border. See Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States, 2019 WL 643819, at *1 (Feb. 15, 2019) (“Proclamation”). The situation at the southern border places a tremendous strain on the limited resources of the Department of Homeland Security (DHS), exacerbating risks to border security, public safety, and the safety of the migrants themselves. See Letter from Secretary of Homeland Security Kirstjen M. Nielsen to Members of Congress (Mar. 28, 2019) (Nielsen Letter) (Ex. 1). Facilities are overcrowded, officers are stretched thin, and resources are being redirected away from law enforcement to address this humanitarian and security crisis. Id. In May 2019, over 132,887 people were apprehended between ports of entry on the southern border, compared with 99,304 in April and 92,840 in March. See DHS Sw. Border Migration Statistics FY 2019, at 2 (dated June 5, 2019) (Ex. 2); see also U.S. Customs & Border Protection Announces May 2019 Migration Statistics (Ex. 3). The Government has been building barriers along the southern border since the 1990s pursuant to congressional authorization. To address the current national emergency at the southern border, three statutory authorities and sources of funding have been identified to continue the construction of additional barriers, in addition to the $1.375 billion recently appropriated by Congress for such construction: (1) the Treasury Forfeiture Fund (31 U.S.C. § 9705); (2) the Department of Defense’s (DoD) counter-drug support authority (10 U.S.C. § 284); and (3) the authority to spend unobligated military construction funds to undertake military construction projects necessary to support the use of the armed forces in response to a national emergency (10 U.S.C. § 2808). Plaintiffs El Paso County and Border Network for Human Rights (BNHR) challenge the Proclamation and the Government’s reliance on these authorities. The Proclamation follows a 40-year tradition of multiple Presidents of both parties declaring
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national emergencies to address a wide range of problems. Indeed, many of the declarations concerned situations that did not involve unforeseen circumstances or call for immediate action on the part of the federal government. Thus, for example, President Obama declared a national emergency to address “political repression” in Burundi, Exec. Order No. 13712, 80 Fed. Reg. 73633 (Nov. 23, 2015); President George W. Bush declared a national emergency to address the “fundamentally undemocratic March 2006 elections” in Belarus, Exec. Order No. 13405, 71 Fed. Reg. 35485 (June 16, 2006); and President Clinton declared a national emergency because “the Government of Burma has committed large-scale repression of the democratic opposition in Burma,” Exec. Order No. 13047, 62 Fed. Reg. 28301 (May 22, 1997). And Presidents similarly have used this power to address longstanding problems, such as when George H.W. Bush declared a national emergency in 1990 to address the “proliferation of chemical and biological weapons” around the world. Exec. Order No. 12735, 55 Fed. Reg. 48587 (Nov. 16, 1990). President Trump’s Proclamation concerning the national emergency at our Nation’s southern border is neither unprecedented nor fundamentally different from past uses of the same authority, and is in fact more closely tied to exigent circumstances.
As a threshold matter, Plaintiffs’ challenge to the President’s decision to declare a national emergency on the southern border is not subject to judicial review. Judicial review of the Proclamation is not available under the National Emergencies Act (NEA), and in any event such challenges raise political questions the judiciary is not equipped to answer, as courts overwhelmingly have recognized. Independent separation-of-powers concerns also require dismissal of the President as a defendant because there is no cause of action against the President, and Plaintiffs may not obtain equitable relief directly against the President for his official conduct, where, as here, the relief Plaintiffs seek could be provided by subordinate agency officials. And since the ultimate exercise of power under an emergency declaration is channeled by the statutory requirements of § 2808, there is no concern in this case that the NEA runs afoul of the non-delegation doctrine.
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Plaintiffs also lack standing to challenge the Proclamation or the Government’s use of construction authorities. Plaintiffs’ challenge to DoD’s use of its § 2808 authority is premature because DoD has not yet decided to undertake or authorize any barrier construction projects pursuant to § 2808.1 They have no standing to challenge funding transfers under § 8005 of the 2019 DoD Appropriations Act. And neither plaintiff can show a redressible injury-in-fact caused by either the Proclamation or the sole § 284 project slated for the El Paso Sector.
Even if Plaintiffs’ statutory claims were justiciable, they fail on the merits for numerous reasons. With respect to § 2808, Plaintiffs’ APA claims fail because there is no final agency action, and any such action would be committed to agency discretion by law. Plaintiffs’ APA claims for violations of § 284, § 2808, and § 8005 also fail because the plaintiffs’ interests fall outside the zone of interests of those provisions. And Plaintiffs have failed to show a violation of the statutes they invoke, or any arbitrary and capricious agency action, that would support their APA claims.
In addition, Plaintiffs’ constitutional claims are meritless. Defendants are relying on express congressional authorization to fund border construction, not the President’s independent Article II authority. Plaintiffs’ efforts to reframe alleged statutory violations as violations of the constitution contravene the principle that “claims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’ claims.” Dalton v. Specter, 511 U.S. 462, 473 (1994).
Accordingly, the Court should deny Plaintiffs’ motion for summary judgment or a preliminary injunction, and either grant the Government’s motion to dismiss the First Amended Complaint or award summary judgment to the Government on all counts.
1 Once a § 2808 decision is made, the Government will notify opposing counsel about the decision, at which juncture the parties can determine if any modifications to the briefing schedule are needed to address § 2808 on the merits.
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BACKGROUND Congress’s Authorization of Border Barrier Construction Congress has repeatedly authorized the construction of border barrier infrastructure to prevent illegal entry of people and contraband. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which authorizes the Secretary of Homeland Security to “take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” Pub. L. No. 104208, Div. C., Title I § 102(a), 110 Stat. 3009 (1996), as amended (codified at 8 U.S.C. § 1103 note). Congress amended IIRIRA on three occasions to expand the Government’s authority to construct barriers along the southern border. In 2005, Congress passed the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Title I §102, 119 Stat. 231, 302, 306 (2005), which authorized the Secretary of Homeland Security to “to waive all legal requirements” that, in the “Secretary’s sole discretion,” are “necessary to ensure expeditious construction” of barriers and roads. Id. § 102(c)(1). The following year, Congress again amended IIRIRA as part of the Secure Fence Act of 2006, requiring construction of “physical barriers, roads, lights, cameras, and sensors” across hundreds of miles of the southern border in five specified locations, including “from 5 miles west of the Columbus, New Mexico, port of entry to 10 miles east of El Paso, Texas.” Pub. L. No. 109-367, § 3, 120 Stat. 2638 (2006). In 2007, Congress expanded this requirement and directed “construct[ion of] reinforced fencing along not less than 700 miles of the southwest border.” Consolidated Appropriations Act, 2008, Pub. L. No. 110161, Div. E, Title V § 564, 121 Stat. 2090 (2007).
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Relying on these authorities, the Department of Homeland Security (DHS) has installed 650 miles of vehicle and pedestrian barriers along the southern border since 1996. 2 See S. Appropriations Hr’g on the DHS FY 2018 Budget, 2017 WL 2311065 (May 25, 2017) (Testimony of then-Secretary of Homeland Security John Kelly). These efforts have been subject to diverse legal challenges, but courts have uniformly dismissed every lawsuit. See In re Border Infrastructure Envtl. Litig., 915 F.3d 1215 (9th Cir. 2019); N. American Butterfly Ass’n v. Nielsen, 2019 WL 634596 (D.D.C. Feb. 14, 2019); Cty. of El Paso v. Chertoff, 2008 WL 4372693 (W.D. Tex. 2008), cert. denied, 557 U.S. 915 (2009).
DHS’s Recent Efforts to Expedite Border Barrier Construction On January 25, 2017, the President issued an Executive Order directing federal agencies “to deploy all lawful means to secure the Nation’s southern border.” Border Security and Immigration Enforcement Improvements, Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017). The Order required that agencies “take all appropriate steps to immediately plan, design and construct a physical wall along the southern border,” including “[i]dentify[ing] and, to the extent permitted by law, allocat[ing] sources of Federal funds” to that effort. Id. at 8794. In furtherance of this directive, DHS has expedited border barrier projects in the El Paso region. See, e.g., Determination Pursuant to Section 102 of IIRIRA, 84 Fed. Reg. 17185–87 (Apr. 24, 2019) (construction in New Mexico portions of the El Paso Sector).
Congress’s Authorization for U.S. Military Support of DHS’s Border Security Efforts Congress also has expressly authorized the U.S. military to provide a wide range of support at the southern border, including the “construction of roads and fences and installation of lighting to
2 The Court may consider facts outside the complaint on a motion to dismiss without converting the motion into a motion for summary judgment when the facts are subject to judicial notice. Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004). “[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record.” Norris v. Hearst Tr., 500 F.3d 454, 461 n.9 (5th Cir. 2007).
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block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. §§ 271-284; see also id. §§ 371–374. Since the early 1990s, military personnel have supported civilian lawenforcement agency activities to secure the border, counter the spread of illegal drugs, and respond to transnational organized crime and other transnational threats. See H. Armed Servs. Comm. Hr’g on S. Border Defense Support (Jan. 29, 2019) (Joint Statement of John Rood, Under Secretary of Defense for Policy, and Vice Admiral Michael Gilday, Director of Operations for the Joint Chiefs of Staff) (Joint Statement of Rood and Gilday) (Ex. 4). Presidents George W. Bush and Barack Obama both deployed military personnel to the southern border to support DHS’s security efforts. Id.
For decades, U.S. military forces have played an active role in barrier construction and reinforcement during their deployments to the southern border. Military personnel were critical to construction of the San Diego border barrier in the early 1990s as well as other border fence projects. See H.R. Rep. No. 103-200, at 330–31 (1993) (commending the Department of Defense’s Joint Task Force 6 for its role in construction of the San Diego primary fence); Hr’g Before the S. Comm. On Armed Servs. Subcomm. On Emerging Threats and Capabilities, 1999 WL 258030 (Apr. 27, 1999) (Test. of Barry R. McCaffrey, Dir. of the Office of Nat’l Drug Control Policy) (military personnel constructed over 65 miles of barrier fencing). In 2006, National Guard personnel improved the southern border security infrastructure by building more than 38 miles of fence, 96 miles of vehicle barrier, and more than 19 miles of new all-weather road, and performing road repairs exceeding 700 miles. See Joint Statement of Rood and Gilday. More recently, the U.S. Army Corps of Engineers has assisted DHS by providing planning, engineering, and barrier construction support. See, e.g., Gringo Pass, Inc. v. Kiewit Sw. Co., 2012 WL 12905166, at *1 (D. Ariz. Jan. 11, 2012).
DoD’s Current Support for DHS’s Efforts to Secure the Southern Border Building on this decades-long practice, on April 4, 2018, the President issued a memorandum to the Secretary of Defense, Secretary of Homeland Security, and the Attorney General titled,
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“Securing the Southern Border of the United States.” See Presidential Memorandum, 2018 WL 1633761 (Apr. 4, 2018). The President stated “[t]he security of the United States is imperiled by a drastic surge of illegal activity on the southern border” and pointed to the “anticipated rapid rise in illegal crossings,” as well as “the combination of illegal drugs, dangerous gang activity, and extensive illegal immigration.” Id. The President determined the situation at the border had “reached a point of crisis” that “once again calls for the National Guard to help secure our border and protect our homeland.” Id. To address this crisis, the President directed the Secretary of Defense to support DHS in “securing the southern border and taking other necessary actions to stop the flow of deadly drugs and other contraband, gang members and other criminals, and illegal aliens into this country.” Id. The President also directed the Secretary of Defense to request the use of National Guard personnel to assist in fulfilling this mission. In October 2018, the President expanded the military’s support to DHS to include active duty military personnel. See Joint Statement of Rood and Gilday. Over the course of the last year, military personnel have provided a wide range of border security support to DHS, including hardening U.S. ports of entry, erecting temporary barriers, and emplacing concertina wire. See id.
The President’s Proclamation Declaring a National Emergency at the Southern Border On February 15, 2019, in accordance with requirements of the NEA, 50 U.S.C. § 1601 et seq., the President issued a proclamation declaring that “a national emergency exists at the southern border of the United States.” See Proclamation. The President determined that “[t]he current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency.” Id. The President explained: The southern border is a major entry point for criminals, gang members, and illicit narcotics. The problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch’s exercise of existing statutory authorities, the situation has worsened in certain respects in recent years. In particular, recent years have seen sharp increases in the number of family units entering and
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seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending. If not detained, such aliens are often released into the country and are often difficult to remove from the United States because they fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to locate. “Because of the gravity of the current emergency situation,” the President determined that “this emergency requires use of the Armed Forces” and “it is necessary for the Armed Forces to provide additional support to address the crisis.” Id. To achieve its purpose, the Proclamation makes 10 U.S.C. § 2808 authority available to the Acting Secretary of Defense. See id. The statute provides that “without regard to any other provision of law,” the Secretary of Defense “may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.” 10 U.S.C. § 2808(a). On March 15, 2019, the President vetoed a joint resolution passed by Congress that would have terminated the President’s national emergency declaration.3 See Veto Message for H.J. Res. 46, 2019 WL 1219481 (Mar. 15, 2019). In doing so, the President relied upon statistics published by CBP as well as recent congressional testimony by the Secretary of Homeland Security to reaffirm that a national emergency exists along the southern border. See id. The President highlighted (1) the recent increase in the number of apprehensions along the southern border, including 76,000 CBP apprehensions in February 2019, the largest monthly total in the last five years; (2) CBP’s seizure of more than 820,000 pounds of drugs in fiscal year 2018; and (3) arrests in fiscal years 2017 and 2018 of 266,000 aliens previously charged with or convicted of crimes. See id. The President also emphasized that migration trends along the southern border have changed from primarily single adults
3 Congress’s efforts to override the President’s veto to enact the joint resolution into law were unsuccessful. See Summary, H.J. Res. 46, 116th Cong. (2019), https://www.congress.gov/bill/116thcongress/house-joint-resolution/46.
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from Mexico, who could be easily removed upon apprehension, to caravans that include record numbers of families and unaccompanied children from Central America. See id. The President explained that this shift requires frontline border enforcement personnel to divert resources away from border security to humanitarian efforts and medical care. See id. Further, the President stated that criminal organizations are taking advantage of the large flows of families and unaccompanied minors to conduct a range of illegal activity. See id. With new surges of migrants expected in the coming months, the President stated that border enforcement personnel and resources are strained “to the breaking point.” See id. The President concluded that the “situation on our border cannot be described as anything other than a national emergency, and our Armed Forces are needed to help confront it.” See id.
The situation at the southern border has continued to deteriorate and DHS is facing “a systemwide meltdown.” See Nielsen Letter (Ex. 1). “DHS facilities are overflowing, agents and officers are stretched too thin, and the magnitude of arriving and detained aliens has increased the risk of life threatening incidents.” Id. So far this fiscal year there have been a total of 593,507 individuals apprehended between ports of entry, as compared to 396,579 total apprehensions during all of fiscal year 2018. See DHS Sw. Border Migration Statistics FY 2019; see also U.S. Customs and Border Protection Announces May 2019 Migration Statistics.
The Use of Statutory Authorities for Barrier Construction On the same day the President issued the Proclamation, the White House publicly released a fact sheet setting forth the sources of funding that are to be used to construct additional barriers along the southern border. In addition to the $1.375 billion appropriation in the Fiscal Year 2019 Consolidated Appropriations Act for the construction of border barriers in the Rio Grande Valley sector of Texas, see Pub. L. No. 116-6, § 230, 133 Stat. 13 (2019), the fact sheet identifies the following additional sources of funding for potential barrier construction, which it explains will be used
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sequentially and as needed: (1) About $601 million from the Treasury Forfeiture Fund, 31 U.S.C. § 9705; (2) Up to $2.5 billion under the Department of Defense funds transferred for Support for Counterdrug Activities (10 U.S.C. § 284); (3) Up to $3.6 billion reallocated from Department of Defense military construction projects under the President’s declaration of a national emergency (10 U.S.C. § 2808). See President Donald J. Trump’s Border Security Victory (Feb. 26, 2019), (Ex. 5)
In accordance with § 284, on February 25, 2019, DHS requested DoD’s assistance in blocking 11 specific drug-smuggling corridors on Federal land along certain portions of the southern border. See Declaration of Kenneth Rapuano ¶ 3 (April 25, 2019) (Ex. 6) (“Rapuano 4/25 Decl.”). The request sought the replacement of existing vehicle barricades or dilapidated pedestrian fencing with new pedestrian fencing, the construction and improvement of existing patrol roads, and the installation of lighting. Id. On March 25, 2019, the Acting Secretary of Defense approved two projects in Arizona and one in Luna County and Doña Ana County, New Mexico, designed to replace existing infrastructure at the border. Id.
To devote additional resources to border barrier construction under its counter-drug support authority, DoD transferred $1 billion in surplus Army compensation funds to the counter-narcotics support appropriation on March 25, 2019. See Rapuano 4/25 Decl. at ¶¶ 5, 6. The Acting Secretary of Defense directed the transfer of funds pursuant to DoD’s general transfer authority under § 8005 of the DoD Appropriations Act for Fiscal Year 2019, which authorizes the transfer of certain DoD funds between appropriations provided “[t]hat the authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” Pub. L. No. 115-245, § 8005; see also Rapuano 4/25 Decl. ¶ 5.
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STATUTORY BACKGROUND The National Emergencies Act The National Emergencies Act (NEA), Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50 U.S.C. §§ 1601-1651), was an effort by Congress to “establish procedural guidelines for the handling of future emergencies with provision for regular Congressional review.” S. Rep. No. 94-922, at 1 (1976).4 Title II of the NEA—codified at 50 U.S.C. § 1621—prescribes rules for the declaration of national emergencies by the President. Section 1621(a) authorizes the President to “declare [a] national emergency” with respect to statutes “authorizing the exercise, during the period of a national emergency, of any special or extraordinary power.” 50 U.S.C. § 1621(a). Section 1621(b) states that “[a]ny provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with [the NEA].” Id. § 1621(b). Congress did not define the term “national emergency” or place any conditions on the President’s ability to declare a national emergency. Instead, Congress intentionally left this determination to the President. As the co-chairmen of the Special Congressional Committee on National Emergencies that studied the issue and drafted the NEA explained, “[W]e did review this possibility of defining what national emergencies might be comprehended; and we decided you would cause more trouble by trying to define it than just saying ‘national emergency’ . . .”. We felt it would be wrong to try to circumscribe with words with what conditions a President might be confronted.”
4 The NEA was the culmination of a multi-year effort by Congress to examine the field of emergency statutes and procedures. See S. Comm. on Gov’t Operations & the Special Comm. on Nat’l Emergencies and Delegated Emergency Powers, 94th Cong., 2d Sess., The National Emergencies Act Source Book: Legislative History, Texts, and Other Documents, at 3-9 (1976) (summarizing legislative history of NEA from 1972-1976, including extensive work conducted by the Senate Special Committee on National Emergencies) (hereinafter “NEA Source Book”).
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Nat’l Emergencies Act: Hr’gs Before the Subcomm. On Admin. Law and Governmental Relations, 94th Cong. 27 (March 6, 1975) (statement of Sen. Mathias); see id. at 31 (“[W]e didn’t attempt to define it specifically because we were afraid we would circumscribe the President’s constitutional powers.”); see id. at 27 (statement of Sen. Church) (“[O]nce we got into that thicket [of defining a national emergency] it became evident that we would be creating more problems than we would be solving.”). And during the final debate on the NEA, the House of Representatives specifically rejected an amendment that would have limited the circumstances in which the President could declare a national emergency only to times of war or attacks upon the United States only. See NEA Source Book at 278– 80; see id. at 280 (statement of Rep. Moorhead) (“[T]his amendment would completely take away from the President the flexibility of acting in times of crisis or an emergency” and “it is important that we give our President some flexibility from time to time.”). At the time of its passage, Congress therefore expressly recognized that the NEA “makes no attempt to define when a declaration of national emergency is proper.” Id. at 9 (quoting S. Rep. No. 94-1168).
The NEA was “an effort by the Congress to establish clear procedures and safeguards for the exercise by the President of emergency powers conferred upon him by other statutes.” See S. Rep. No. 94-1168, at 3 (1976). Accordingly, the NEA provides that “[w]hen the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” 50 U.S.C. § 1631. The NEA thus establishes procedural guidelines for the President to follow before he may invoke other statutory authorities.
In the more than 40 years since Congress enacted the NEA, Presidents have exercised broad discretion in determining what challenges amount to national emergencies, declaring nearly 60 national emergencies addressing a wide variety of national and international challenges. For example, prior national emergency declarations have authorized the invocation of statutory powers to restrict the
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trade in uncut diamonds used to fund Sierra Leone’s civil war, Exec. Order No. 13194, 66 Fed. Reg. 7389 (Jan. 18, 2001), to address the spread of swine flu in the United States, Proc. No. 8443, 74 Fed. Reg. 55439 (Oct. 23, 2009), and to promote democracy or conflict resolution in various countries around the world, see, e.g., Exec. Order No. 13712, 80 Fed. Reg. 73633 (Nov. 22, 2015) (President Obama declared a national emergency to address the “violence against civilians” and “political repression” in Burundi).
The NEA also authorizes the President to renew declared emergencies annually without limitation. See 50 U.S.C. § 1622(d). Thirty-one national emergencies remain in effect today, with many having been renewed by multiple Presidents over several decades. For example, President Clinton declared a national emergency in 1996 after Cuban military aircraft intercepted and destroyed two unarmed U.S. registered civilian aircraft in international airspace north of Cuba. See Proc. No. 6867, 61 Fed. Reg. 8843 (Mar. 1, 1996) (authorizing the Secretary of Transportation to issue rules regulating the anchorage and movement of vessels that may travel into the territorial waters of Cuba). The emergency remains in effect today, having been renewed over the course of 23 years by Presidents Bush, Obama, and Trump, even though President Obama concluded in 2016 that “the descriptions of the national emergency set forth in Proclamations 6867 and 7757 no longer reflect the international relations of the United States related to Cuba.” See Proc. No. 9398, 81 Fed. Reg. 9737 (Feb. 24, 2016). Indeed, the first national emergency declared under the NEA—President Carter’s 1979 emergency declaration stemming from the Iran hostage crisis—has been in effect for 39 years and is now being continued because “relations with Iran have not yet normalized, and the process of implementing the agreements with Iran, dated January 19, 1981, is ongoing.” See Cont. of Nat’l Emergency With Respect to Iran, 2016 WL 6518765 (Nov. 3, 2016) (Ltr. from President Obama); see also 83 Fed. Reg. 56251 (Nov. 8, 2018) (renewal by President Trump).
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Nothing in the NEA requires that a national emergency be a sudden or unforeseen event, as some emergencies build through an accretion of events and exist over a considerable period of time. In 1990, for example, President George H. W. Bush declared a national emergency arising from the “proliferation of chemical and biological weapons” around the world. Exec. Order No. 12735, 55 Fed. Reg. 48587 (Nov. 16, 1990). Four years later, President Clinton added nuclear weapons proliferation to that emergency declaration. Exec. Order No. 12938, 59 Fed. Reg. 58099 (Nov. 14, 1994). President Clinton also declared a national emergency arising from narcotics trafficking centered in Colombia, Exec. Order No. 12978, 60 Fed. Reg. 54579 (Oct. 21, 1995), and President Obama declared a national emergency arising from the activities of certain transnational criminal organizations, Exec. Order No. 13581, 76 Fed. Reg. 44757 (July 24, 2011). These declarations, like the President’s Proclamation, addressed long-standing policy challenges confronting the United States, even though they were neither new nor unforeseen at the time they were declared to be a national emergency. Indeed, the President’s Proclamation acknowledged that the situation at the southern border is a “long-standing” problem and builds on the efforts of President Obama’s previous declaration of a national emergency targeting the threats posed by four transnational criminal organizations, including a Mexican cartel known as Los Zetas. See id.
Recognizing that, by their very nature, declarations of national emergency require the need for flexibility in policy choices that are the province of the political branches of the federal government, Congress gave itself the exclusive authority to exercise oversight of a President’s national emergency declaration. As a remedy to potential overreach, Congress has authority to terminate a national emergency by enacting into law “a joint resolution.” 50 U.S.C. § 1622(a)(1).5 Emphasizing the political
5 The original draft of the NEA would have automatically terminated a national emergency after six months. See NEA Source Book, at 7. Congress eliminated this provision during debate and replaced it with the requirement in the final version of the law that Congress pass a “concurrent resolution” to terminate a national emergency. See id.; Beacon Prods. Corp. v. Reagan, 814 F.2d 1, 4 (1st Cir. 1987)
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judgment that Congress must make, the NEA expressly requires Congress to meet “[n]ot later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, . . . to consider a vote on a joint resolution to determine whether that emergency shall be terminated.” Id. § 1622(b); see also id. § 1622(c) (establishing procedure for both Houses of Congress to vote on a joint resolution terminating a national emergency). Additionally, Congress has imposed extensive reporting requirements on the Executive Branch when the President declares a national emergency. See id. § 1641(a)–(b) (requiring the President and each executive agency to maintain a file and index of, and transmit to Congress, certain orders, rules, and regulations); id. § 1641(c) (requiring the President to periodically transmit to Congress “a report on the total expenditures incurred by the United States Government . . . which are directly attributable to the exercise of powers and authorities conferred by such declaration”). The NEA does not provide any role for the courts in reviewing a national emergency declaration, as it does not create a private right of action or contain a civil enforcement mechanism.
10 U.S.C. § 284 10 U.S.C. § 284 states that “[t]he Secretary of Defense may provide support for the counterdrug activities . . . of any other department or agency of the Federal Government,” if requested by the relevant “official who has responsibility for [such] counterdrug activities.” 10 U.S.C. § 284(a), (a)(1)(A). This support includes express authority for “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Id. § 284(b)(7). This authority does not require a declaration of national emergency. Congress first provided DoD this authority in the National Defense Authorization Act for
(Breyer, J.). In 1985, Congress amended this provision and replaced the “concurrent resolution” requirement with one that calls for termination of a national emergency by “joint resolution.” Pub. L. No. 99-93, § 801, 99 Stat. 405, 448 (1985). This amendment was the result of the Supreme Court’s decision in INS v. Chadha, 462 U.S. 919, 959 (1983), which invalidated a similar provision as unconstitutional. See United States v. Amirnazmi, 645 F.3d 564, 581 n.26 (3d Cir. 2011).
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Fiscal Year 1991. Pub. L. No. 101-510, § 1004, 104 Stat. 1485 (1991). As a specific fiscal year appropriation, § 1004 had to be periodically renewed to continue DoD’s authority to support counterdrug activities. See, e.g., Pub. L. No. 107-107, § 1004, 115 Stat. 1012 (2001). Not only did Congress regularly renew § 1004, it frequently praised DoD’s involvement in building barrier fences along the southern border and allocated additional funds to DoD to encourage its support of counter-drug construction projects. For example, in 1993, Congress “commend[ed]” DoD’s efforts to reinforce the border fence along a 14-mile drug smuggling corridor in the San Diego-Tijuana border area, calling the project “precisely the kind of federal-local cooperative effort the Congress had in mind in enacting section 1004.” H.R. Rep. No. 103-200, at 330-31, 1993 WL 298896 (1993). Government officials and Congress alike have noted the particular importance of DoD’s involvement in southern border enhancement projects to prevent drug smuggling. See Hr’g Before the S. Comm. On Armed Servs. Subcomm. On Emerging Threats and Capabilities, 1999 WL 258030 (Apr. 27, 1999) (Test. of Barry R. McCaffrey, Dir. of the Office of Nat’l Drug Control Policy) (testifying about the “vital contributions” made by DoD to construct barrier fencing along the southern border); see, e.g., H.R. Rep. No. 110-652, 420 (2008) (recommending a $5 million increase to DoD’s funding to continue construction of a southern border fence, which was described as an “invaluable counter-narcotics resource”); see also H.R. Rep. No. 109-452, 368-69 (2006) (allocating a total of $5 million of DoD funding for constructing border fencing in California, Texas, and Arizona); H.R. Rep. No. 110-146, 385-86 (2007) (recommending an $8 million increase in DoD funding to build border fencing in California and Arizona). In light of the continuing “threat posed by the production and trafficking of heroin, fentanyl (and precursor chemicals), and other illicit drugs” across our nation’s borders, Congress codified § 1004 at 10 U.S.C. § 284 in December 2016, directing DoD “to ensure appropriate resources are allocated to efforts to combat this threat.” H.R. Rep. No. 114-840, 1146 (2016).
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10 U.S.C. § 2808 First enacted as part of the 1982 Military Construction Authorization Act, Pub. L. No. 97-99, § 903, 95 Stat. 1359 (1981), and later amended by the Military Construction Codification Act of 1982, Pub. L. No. 97-214, § 2, 96 Stat. 153 (codifying 10 U.S.C. §§ 2801–08), 10 U.S.C. § 2808(a) provides: In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated. Congress recognized that “it is impossible to provide in advance for all conceivable emergency situations” and wanted to fill “a gap that now exists with respect to restructuring construction priorities in the event of a declaration of war or national emergency.” H.R. Rep. No. 97-4472 (1981). The term “military construction” as used in § 2808 “includes any construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or construction of a defense access road (as described in section 210 of title 23).” 10 U.S.C. § 2801(a). Congress in turn defined the term “military installation” to mean “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or, in the case of an activity in a foreign country, under the operational control of the Secretary of a military department or the Secretary of Defense, without regard to the duration of operational control.” Id. § 2801(c)(4). Presidents have invoked the military construction authority under Section 2808 on two prior occasions. First, in August 1990, President George H.W. Bush authorized the use of § 2808 in 1990 following the Government of Iraq’s invasion of Kuwait. See Exec. Order No. 12722, 55 Fed. Reg.
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31803 (Aug. 2, 1990); Exec. Order No. 12734, 55 Fed. Reg. 48099 (Nov. 14, 1990).6 Second, President George W. Bush invoked Section 2808 in response to the terrorist attacks against the United States on September 11, 2001. See Proc. No. 7463, 66 Fed. Reg. 48199 (Sept. 14, 2001); Exec. Order No. 13235, 66 Fed. Reg. 58343 (Nov. 16, 2001). The national emergency declaration stemming from the terrorist attacks of September 11, 2001, remains in effect today, see 83 Fed. Reg. 46067 (Sept. 10, 2018), and DoD has used its § 2808 authority to build a wide variety of military construction projects, both domestically and abroad, over the past 17 years, see Cong. Research Serv., Military Construction Funding in the Event of a National Emergency at 1–3 & tbl. 1 (updated Jan. 11, 2019) (listing projects worth $1.4 billion performed domestically and abroad using § 2808 between 2001 and 2014).
31 U.S.C. § 9705 The Department of Treasury Forfeiture Fund collects proceeds from “seizures and forfeitures made pursuant to any law (other than section 7301 or 7302 of the Internal Revenue Code of 1986) enforced or administered by the Department of the Treasury or the United States Coast Guard.” 31 U.S.C. § 9705(a). Congress established the fund in 1992, and the authorizing legislation sets forth the purposes for which the fund’s revenue may be used. See S. Rep. No. 102-398 (1992). As relevant here, § 9705(g)(4)(B) states that any surplus unobligated funds (after reserving certain statutorily required amounts) “shall be available to the Secretary, without fiscal year limitation, . . . for obligation or expenditure in connection with the law enforcement activities of any Federal agency or of a Department of the Treasury law enforcement organization.”
PLAINTIFFS’ CLAIMS Plaintiffs allege that the Proclamation violates the NEA, and, alternatively, that the NEA, “as construed by the Proclamation,” runs afoul of the “nondelegation doctrine.” Id. ¶¶ 120–33 (Counts
6 President George W. Bush terminated this national emergency and the invocation of Section 2808 authority in 2004 following the removal of the regime of Saddam Hussein. See Exec. Order No. 13350, 69 Fed. Reg. 46055 (July 29, 2004).
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I-II). Plaintiffs assert that the Government’s use of § 2808 and § 284 violates the Appropriations Clause of the Constitution, and that the use of these authorities, as well as § 9705, also violates the APA. Id. ¶¶ 134–64 (Counts III-V). Plaintiffs also challenge DoD’s use of its transfer authority to make additional funding available for border barrier construction under § 8005 of the 2019 DoD Appropriations Act. Id. ¶¶ 165–70 (Count VI). Finally, Plaintiffs assert that the President’s invocation of the NEA violates the Take Care Clause of the Constitution. Id. ¶¶ 171–75 (Count VII).
STANDARDS OF REVIEW Rule 12 Standard A court must dismiss a case under Civil Rule 12(b)(1) for lack of subject matter jurisdiction if it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). The party asserting subjectmatter jurisdiction has the burden of proving it exists by a preponderance of the evidence. See New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008). To survive a motion to dismiss under Civil Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A complaint that “tenders naked assertions devoid of further factual enhancement” is insufficient. Id. (internal citation and alteration omitted). Rule 56 Standard The parties have filed cross-motions for summary judgment. Rule 56 of the Federal Rules of Civil Procedure mandates entry of summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). The Government agrees with Plaintiffs that this case presents questions of law for the Court to resolve that do not require further factual development through discovery, Pls.’ Mot. for
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Summ. J. or, in the Alternative, a Prelim. Inj. (“Pls.’ MSJ”) at 1, ECF No. 54; in these circumstances, the Court should enter either summary judgment for the Government based on the parties’ moving papers, or dismiss the First Amended Complaint under Civil Rule 12.
ARGUMENT Plaintiffs’ Challenge to the President’s Declaration of a National Emergency Should Be Dismissed (Counts I-II, VII).7
The NEA Evidences Congress’s Intent to Preclude Judicial Review of National Emergency Declarations. The Supreme Court has instructed that in determining whether a statute “precludes judicial review,” a court must examine the “express language” as well as “the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). That Congress intended to preclude judicial review need only be “fairly discernible.” Id. at 350-51. Here, Congress’s intent to preclude judicial review is evidenced by the text of the NEA, which does not define the term national emergency or provide courts with any standards by which to evaluate the President’s exercise of this authority. See 50 U.S.C. § 1621. The lack of a definition in the statute reflects Congress’s intentional decision to leave to the President the determination about when and under what circumstances to declare a national emergency. The absence of any judicially enforceable remedy is further supported by the fact that the NEA establishes only procedural and reporting guidelines that the President must follow when he invokes other statutory authorities conditioned on a declaration of a national emergency declaration. See 50 U.S.C. §§ 1631, 1641. In the event the President declares a national emergency, he must notify Congress of the statutory authorities he intends to rely upon and provide information to Congress about how those authorities are being
7 In a footnote, Plaintiffs raise a “Take Care Clause” claim against the President stemming from violations of the NEA. Pls.’ MSJ at 26 n.10. Judgment for the Government on this count is appropriate for the same reasons Plaintiffs’ direct challenge to the NEA fails.
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utilized by the Executive Branch. See 50 U.S.C. §§ 1631, 1641. Accordingly, the NEA does not give litigants any role in the statutory process, let alone a role that Plaintiffs could enforce in court. See Amirnazmi, 645 F.3d at 581 (stating that the “NEA places the onus on Congress to ensure emergency situations remain anomalous and do not quietly evolve into default norms”).
The lack of a judicial enforcement mechanism to challenge a national emergency declaration is reinforced by the NEA’s exclusive remedial scheme for Congress to challenge through political means the President’s determination that a particular national emergency exists. See 50 U.S.C. § 1622; see also Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 15, (1981) (“In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.”). As explained above, Congress has the authority to terminate a national emergency by enacting into law “a joint resolution.” 50 U.S.C. § 1622(a)(1). Further, the NEA expressly requires Congress to vote on whether to terminate the declared emergency within six months of the President’s declaration and establishes expedited procedures for Congress to vote on such a measure once a termination resolution is introduced. Id. § 1622(b), (c). Here, majorities of both houses of Congress attempted to terminate the President’s national emergency declaration by passing a joint resolution, but the President vetoed that measure, and there was insufficient support to override the President’s veto to enact the joint resolution into law. See supra at n.3. Congress’s inability to terminate the Proclamation through the NEA’s statutory procedures only underscores that the Court should not step in to adjudicate this dispute. Cf. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015) (“Having failed to prevail in their own Houses, the suitors could not repair to the Judiciary to complain.”).
Moreover, when Congress had the opportunity to change the oversight structure of the NEA in response to the Supreme Court’s Chadha decision that declared the “legislative veto” unconstitutional, Congress notably changed the termination threshold from a “concurrent resolution,”
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which does not involve Presidential approval, to a “joint resolution,” which requires either Presidential approval or adequate congressional support to override a Presidential veto in order to be enacted.8 See supra pp. 14–15 & n.5. Congress could have instituted a different mechanism, such as creating a judicial-enforcement regime, but did not do so. See Beacon Prods. Corp., 814 F.2d at 4 (Breyer, J.) (“This legislative history makes clear that Congress intended to impose upon itself the burden of acting affirmatively to end an emergency.”). Instead, Congress gave itself the power to oversee the President’s use of statutory emergency authority, and there is no basis for the Court to create a new judicial remedy on top Congress’ carefully-crafted framework. Where, as here, the statute expressly provides Congress with authority to terminate a national emergency, it is “an ‘elemental canon’ of statutory construction that . . . courts must be especially reluctant to provide additional remedies.” Karahalios v. Nat’l Fed’n of Fed. Emps., Local 1263, 489 U.S. 527, 533 (1989) (citations omitted).
Further, the NEA was the product of a multi-year study by Congress to address the field of national emergency authorities, and nothing in that extensive legislative history suggests that Congress intended to allow judicial challenges to the President’s national emergency declarations. To the contrary, the legislative history shows that Congress, not the courts, would be the branch of government to oversee the President’s use of his emergency powers. See NEA Source Book at 338 (“every type and class of presidentially declared emergency will be subjected to congressional control” and “the legislative branch will be in a position to assert its ultimate authority”); see also Block, 467 U.S. at 349 (preclusion of judicial review may be implied from “specific legislative history” alone). Moreover, given the President’s “unique position in the constitutional scheme,” Nixon v. Fitzgerald, 457 U.S. 731, 749–50 (1982), any remedial scheme where litigants could sue the President to challenge
8 The NEA’s “provision for termination by concurrent resolution is unconstitutional because, unlike a joint resolution, termination by concurrent resolution would enable Congress to take legislative action without presenting the action to the President for his signature.” Beacon Prods. Corp. v. Regan, 633 F. Supp. 1191, 1196 (D. Mass. 1986), aff’d, 814 F.2d 1 (1st Cir. 1987); see supra note 3.
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a national emergency declaration would raise separation of powers concerns and create tension with the Supreme Court’s admonition that federal courts have “no jurisdiction of a bill to enjoin the President in the performance of his official duties.” Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1866). There is no indication in the legislative history that Congress gave consideration to those weighty issues or concluded that such lawsuits against the President should proceed. See NEA Source Book at 342 (stating that “there is [no] intent here to limit either the President’s power or flexibility to declare a national emergency” and there is no intent to limit “the subject matter of the emergency or the timing of its declaration”) (statements of Reps. Moorhead and Flowers). In the absence of clear direction from Congress, the Court should not imply a remedy that would conflict with longstanding separation-of-powers principles.
In light of the NEA’s text, structure, and legislative history, Congress has precluded judicial review of the President’s national emergency Proclamation.
Plaintiffs’ Challenge to the President’s National Emergency Declaration Presents a Nonjusticiable Political Question. Courts that have considered the issue have uniformly concluded that a Presidential declaration of a national emergency is a nonjusticiable political question. See Soudavar v. Bush, 46 F. App’x 731 (5th Cir. 2002) (per curiam) (affirming district court decision dismissing a challenge to executive orders imposing national emergency sanctions on Iran as involving a “nonjusticiable political question”); Chichakli v. Szubin, 2007 WL 9711515, at *4 (N.D. Tex. June 4, 2007) (holding that a challenge to President Bush’s declaration of a national emergency with respect to the “unstable situation” in Liberia “presents a nonjusticiable political question”), aff’d in part, vacated in part, 546 F.3d 315 (5th Cir. 2008).9
9 See also Amirnazmi, 645 F.3d at 581 (“federal courts have historically declined to review the essentially political questions surrounding the declaration or continuance of a national emergency”)(citation omitted); United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1081 (9th Cir. 1982) (“we will not address these essentially-political questions”); United States v. Yoshida Int’l, Inc., 526 F.2d 560, 573 (Cust. & Pat. App. 1975) (courts will not “review the judgment of a President that a national emergency exists”); Beacon Prods. Corp., 633 F. Supp. at 1194-95 (whether national emergency existed with respect
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Since passage of the NEA in 1976, there have been nearly 60 national emergencies that have been
declared by seven different Presidents, and even in the few instances where the declarations have been
challenged, see supra note 10, no court has ever reviewed the merits.10 This Court should not depart
from this long line of unbroken authority.
“The political question doctrine excludes from judicial review those controversies which
revolve around policy choices and value determinations constitutionally committed for resolution to
the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean
Soc’y, 478 U.S. 221, 230 (1986). Both the separation-of-powers doctrine and the policy of judicial self-
restraint require that federal courts refrain from intrusion into areas committed by the Constitution to
the Legislative and Executive Branches of the Government. See Baker v. Carr, 369 U.S. 186, 217 (1962).
The Baker Court set forth the factors that a court is to consider in determining whether a particular
to Nicaragua presents a non-justiciable political question); Sardino v. Fed. Reserve Bank of N.Y., 361 F.2d 106, 109 (2d Cir. 1966) (concluding that President Truman’s national emergency declaration concerning the situation in Korea is not justiciable and “courts will not review a determination so peculiarly within the province of the chief executive”); Veterans & Reservists for Peace in Vietnam v. Regional Comm’r of Customs, Region II, 459 F.2d 676, 679 (3d Cir. 1972) (“a President’s declaration of national emergency is unreviewable”); Santiago v. Rumsfeld, 2004 WL 3008724, at *3 (D. Or. Dec. 29, 2004) (holding that plaintiffs challenge to “whether the national emergency declared by the President continues to apply to Afghanistan” has “raised an essentially political issue” and “[c]ourts should refrain from ruling on such issues”), aff’d, 403 F.3d 702 (9th Cir. 2005) and 407 F.3d 1018 (9th Cir. 2005); United States v. Groos, 616 F. Supp. 2d 777, 788-89 (N.D. Ill. 2008) (“The court cannot question the President’s political decision” to declare a national emergency regarding “unrestricted access of foreign parties to U.S. goods and technology”); Chang v. United States, 859 F.2d 893, 896 n.3 (Fed. Cir. 1988) (“Furthermore, to the extent that the plaintiffs’ inquiry into the ‘true facts’ of the Libyan crisis would seek to examine the President’s motives and justifications for declaring a national emergency, such an inquiry would likely present a nonjusticiable political question.”).
10 Past practice also belies Plaintiffs’ suggestion that this national emergency declaration is both justiciable and invalid because the President stated that he “didn’t need” to issue the declaration and “could do the wall over a longer period of time.” See Pls.’ MSJ at 6, 23. A national emergency declaration necessarily reflects an exercise of discretion, and Presidents have often chosen to declare national emergencies to address circumstances that were neither new nor unforeseen at the time the declaration issued. See supra Statutory Background, Pt. I. No court has ever conducted the type of judicial second guessing that Plaintiffs propose here by evaluating whether an emergency could have been addressed without relying on emergency statutory authorities.
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claim raises nonjusticiable political questions:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. at 217. The existence of any one of these factors indicates the existence of a political question. Id. Here, Plaintiffs’ assertion that the situation along the southern border does not constitute a national
emergency runs afoul of most, if not all, of these factors.
First, there are no judicially manageable standards to ascertain whether or when to declare a
“national emergency.” As explained above, Congress intentionally chose not to define the term
“national emergency” and left that determination to the President, subject only to oversight from Congress. See supra, Statutory Background, pt. I. The NEA sets forth no criteria from which the Court could judge the President’s action or make a determination about whether a particular issue constitutes a national emergency. See Spawr Optical Research, 685 F.2d at 1080 (“The statute contained no standards by which to determine whether a national emergency existed or continued.”). Indeed,
Plaintiffs ask the Court to take the remarkable step of supplanting the President’s determination with
the “courts’ own unmoored determination of what United States policy toward [the southern border] should be.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012). The Court could not decide this question “without first fashioning out of whole cloth some standard for when” a national emergency “is justified.” El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 845 (D.C. Cir. 2010). To grant Plaintiffs’ requested relief, the Court would have to conduct a standardless inquiry
into how the current humanitarian and security crisis at the border impacts immigration policy, foreign relations, public safety, and national security. “The judiciary lacks the capacity for such a task.” Id.
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Second, any such determinations would require precisely the sort of “policy determination of a kind clearly for nonjudicial discretion” that the Supreme Court has indicated is a hallmark of a political question. Baker, 369 U.S. at 217. As the Supreme Court has long recognized, illegal immigration creates “significant economic and social problems” in the United States. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); see also Plyler v. Doe, 457 U.S. 202, 237 (1982) (Powell, J., concurring) (recognizing illegal immigration to be “a problem of serious national proportions”). More recently, in Arizona v. United States, 567 U.S. 387 (2012), the Court emphasized that the problems posed by illegal immigration “must not be underestimated” and credited evidence in the record of various problems “associated with the influx of illegal migration across private land near the Mexican border,” including “an epidemic of crime” and “safety risks.” Id. at 397-98 (citation omitted).
The President has chosen to confront these and other challenges traceable to the current crisis at the border by declaring a national emergency and invoking the express powers delegated to him by Congress. See Proclamation. Under these circumstances, the Court cannot review the matter without second-guessing the President’s policy determinations. Decisions “about how best to enforce the nation’s immigration laws in order to minimize the number of illegal aliens crossing our borders patently involve policy judgments about resource allocation and enforcement methods.” New Jersey v. United States, 91 F.3d 463, 370 (3d Cir. 1996). These “issues fall squarely within a substantive area clearly committed by the Constitution to the political branches; they are by their nature peculiarly appropriate to resolution by the political branches of government both because there are no judicially discoverable and manageable standards for resolving them.” Id. (citation omitted); see Sadowski v. Bush, 293 F. Supp. 2d 15, 19 (D.D.C. 2003) (“[D]eciding how to best enforce existing immigration laws and policies and how to keep out illegal immigrants requires making policy judgments that are suited for nonjudicial discretion and thus should not be made by the judiciary.”). Accordingly, the President’s Proclamation is not reviewable.
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Third, the type of policy decisions that Plaintiffs ask this Court to make are entrusted to the
political branches, not the courts. “[T]he power to exclude aliens is inherent in sovereignty, necessary
for maintaining normal international relations and defending the country against foreign
encroachments and dangers—a power to be exercised exclusively by the political branches of the
government.” Kleindienst v. Mandel, 408 U.S. 753, 765 (1972). As the Supreme Court has explained:
For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government. Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary. Mathews v. Diaz, 426 U.S. 67, 81 (1976) (footnote omitted); see also Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(“Our cases have long recognized the power to expel or exclude aliens as a fundamental sovereign
attribute exercised by the Government’s political departments largely immune from judicial control.”).
The President’s decision to declare a national emergency is a quintessential policy decision in an area
reserved to the political branches involving matters of immigration, foreign relations, use of military
forces, and national security. See, e.g., Hernandez v. Mesa, 885 F.3d 811, 819 (5th Cir. 2018) (en banc) (recognizing that “border security” presents important “[n]ational-security concerns”), petition for cert. granted, No. 17-1678 (June 20, 2018); Texas v. United States, 106 F.3d 661, 664-65, 667 (5th Cir. 1997)
(holding that the federal government’s alleged failure to control illegal immigration is a nonjusticiable political question).11 There is no basis for the Court to substitute its judgment for that of the President
on sensitive policy issues that are nonjusticiable political questions.
11 See also United States v. Delgado–Garcia, 374 F.3d 1337, 1345 (D.C. Cir. 2004) (“[T]his country’s bordercontrol policies are of crucial importance to the national security and foreign policy of the United States.”); Sierra Club v. Ashcroft, 2005 WL 8153059, at *6 (S.D. Cal. Dec. 13, 2005) (holding that the construction of border barriers “relates to matters over which the Executive Branch has independent and significant constitutional authority: immigration and border control enforcement and national security”).
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The President Should Be Dismissed as a Party to this Lawsuit Because There Is No Cause of Action Against the President and Plaintiffs Cannot Obtain Equitable Relief Against the President. Plaintiffs’ claims against the President (including the issuance of the Proclamation and their Take Care Clause claim) confront yet another obstacle: there is no cause of action against the President, and Plaintiffs may not obtain—and the Court may not order—equitable relief directly against the President for his official conduct. Plaintiffs lack a cause of action to sue the President. The actions of the President are not reviewable under the APA, see Dalton, 511 U.S. at 479, and likewise there is no implied equitable cause of action to do so. Although courts of equity may in some circumstances permit suits to “enjoin unconstitutional actions by . . . federal officers,” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015), the availability of such relief depends on whether it “was traditionally accorded by courts of equity,” Grupo Mexicano De Desarrollo v. All. Bond Fund, 527 U.S. 308, 319 (1999). Here, there is no tradition of equitable relief against the President. To the contrary, the Supreme Court recognized over 150 years ago in Mississippi v. Johnson that federal courts lack jurisdiction to “enjoin the President in the performance of his official duties,” 71 U.S. at 501, a principle the Court reaffirmed more recently in Franklin v. Massachusetts, 505 U.S. 788 (1992); id. at 827 (Scalia, J., concurring in part and concurring in the judgment) (“apparently unbroken historical tradition supports the view” that courts may not order the President to “perform particular executive . . . acts”). Moreover, the Supreme Court has twice held that causes of action that are available against other government officials should not be extended to the President absent a clear statement by Congress. See Nixon, 475 U.S. at 748 n.27 (declining to assume that Bivens and other implied statutory damages “cause[s] of action run[] against the President of the United States”); Franklin, 505 U.S. at 801 (declining to find cause of action against the President under the APA “[o]ut of respect for the separation of powers and the unique constitutional position of the President”). Accordingly, in the
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absence of an express statutory cause of action against the President or a tradition of recognizing such suits as a matter of equity, there is no basis for the Court to infer equitable relief against the President. “The reasons why courts should be hesitant to grant such relief are painfully obvious” given the President’s unique constitutional role and the potential tension with the separation of powers. Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996). Further, the Supreme Court has taken a “traditionally cautious approach to equitable powers, which leaves any substantial expansion of past practice to Congress.” Grupo Mexicano, 527 U.S. at 329. Any expansion of an equitable remedy against the President here would create its own set of separation-of-powers problems by usurping “the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.” See Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017).
Lower courts have followed the logic of Franklin and Massachusetts by dismissing the President as a defendant in civil cases and declining to impose either declaratory or injunctive relief against him in his official capacity. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017) (“In light of the Supreme Court’s clear warning that such relief should be ordered only in the rarest of circumstances we find that the district court erred in issuing an injunction against the President himself.”), vacated and remanded, 138 S. Ct. 353 (2017); Hawaii v. Trump, 859 F.3d 741, 788 (9th Cir. 2017) (“the extraordinary remedy of enjoining the President is not appropriate here”), vacated as moot, 138 S. Ct. 377 (2017); Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010) (“With regard to the President, courts do not have jurisdiction to enjoin him, and have never submitted the President to declaratory relief . . . .”); Doe 2 v. Trump, 319 F. Supp. 3d 539, 541 (D.D.C. 2018) (dismissing “the President himself as a party to this case”).
These restrictions foreclose Plaintiffs’ attempt to seek relief against the President in issuing the Proclamation. As regards the Government’s use of § 284, § 2808, and § 9705 to facilitate border barrier construction, Plaintiffs could potentially obtain relief against the agency Defendants because
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the agencies, not the President, will construct or fund border barriers pursuant to these authorities.
Accordingly, in addition to the reasons explained above, the President should be dismissed in order to avoid an unnecessary separation-of-powers conflict. 12 See Swan, 100 F.3d at 978 (“In most cases,
any conflict between the desire to avoid confronting the elected head of a coequal branch of
government and to ensure the rule of law can be successfully bypassed, because the injury at issue can be rectified by injunctive relief against subordinate officials.”).13
Plaintiffs’ Nondelegation Challenge to the NEA Is Meritless (Count II). Plaintiffs also challenge the President’s declaration of a national emergency as inconsistent
with the nondelegation doctrine implicit in the Constitution’s conferral of the legislative power on
Congress. They approach this issue in two ways. First, they argue that the NEA’s definition of an
“emergency” should be cabined to “unforeseen circumstances requiring immediate action,” in order
to avoid an interpretation of the NEA that would run afoul of the nondelegation doctrine. Pls.’ MSJ
at 24–26. Second, they argue that the NEA is unconstitutional because it does not provide an
“intelligible principle” for channeling Executive conduct. Id. at 26–30. Neither argument succeeds.
Congress may delegate its law-making authority to another branch of government so long as
it provides “an intelligible principle to which the person or body authorized to [act] is directed to
12 It is appropriate to dismiss the President even before resolving Article III standing, for two reasons. First, the Supreme Court has repeatedly described the bar against suing the President for his official duties as jurisdictional in nature. See Franklin, 505 U.S. at 802-03 (quoting Mississippi, 4 Wall at 501.). Second, even if not technically jurisdictional, it is the sort of categorical threshold defense that should be resolved prior to an exercise of jurisdiction. Cf. Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005). At a minimum, the relief against the President should be dismissed for failure to state a claim. 13 Although district courts in some recent cases have declined to dismiss the President at the motionto-dismiss stage on grounds that doing so would be premature in light of uncertainty about the relief that could be provided by the defendant agencies, that is not the situation here. See Centro Presente v. DHS, 332 F. Supp. 3d 393, 418 (D. Mass. 2018); CASA de Maryland, Inc. v. Trump, 355 F. Supp. 3d 307 (D. Md. 2018); Saget v. Trump, 345 F. Supp. 3d 287, 297 (E.D.N.Y. 2018). Here, however, there is no question that relief against the agencies in this case would be sufficient to redress Plaintiffs’ claims seeking to halt border barrier construction. See Swan, 100 F.3d at 978.
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conform.” J.W. Hampton, Jr. Co. v. United States, 276 U.S. 394, 409 (1928). To provide a constitutionally permissible “intelligible principle,” Congress need only “clearly delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” Mistretta v. United States, 488 U.S. 361, 372–73 (1989). And Congress may delegate in even broader terms in the realm of immigration, foreign affairs, and national security. See In re Nat’l Security Agency Telecomm. Records, 671 F.3d 881, 897 (9th Cir. 2011) (holding that when the delegation “arises within the realm of national security . . . the intelligible principle standard need not be overly rigid”); see also Loving v. United States, 517 U.S. 748, 772 (1996) (finding that delegations may be broader “where the entity exercising the delegated authority itself possesses independent authority over the subject matter”); Knauff v. Shaughnessy, 338 U.S. 537, 542-43 (1950) (“The exclusion of aliens is a fundamental act of sovereignty . . . [and] is inherent in the executive power to control the foreign affairs of the nation.”). “The Supreme Court has only twice invalidated legislation under this doctrine, the last time being” over eighty years ago. In re Nat’l Security Agency Telecomm. Records, 671 F.3d at 896.
Plaintiffs first argue that the Court should adopt a narrowing construction of the term “emergency” in the NEA to avoid a potential conflict between the NEA and the nondelegation doctrine, under the theory of constitutional avoidance. This canon of constitutional avoidance can be used to resolve a statutory interpretation issue when a “section admits of two interpretations, one of which brings it within, and the other presses it beyond the constitutional authority of congress.” United States v. Coombs, 37 U.S. (12 Pet.) 72, 76 (1838) (Story, J.). In Industrial Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980), the principal case on which Plaintiffs rely, it was the absence “of a clear mandate in the Act” for the “extreme position” the government advocated that led the Court to adopt a narrowing construction of an agency’s regulatory authority and thereby avoid declaring as unconstitutional the regulatory scheme Congress created. Id. at 641, 645–46.
But even if one accepts Plaintiffs’ inapt characterization of the NEA as an “extreme”
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delegation of authority to the President, it is quite clear that Congress intended it. Congress did not specify what would constitute a “national emergency” under the NEA and the legislative history shows that Congress deliberately chose to leave to the President the determination of what circumstances constituted an emergency, believing such determinations to be effectively unreviewable. See generally supra, Statutory Background, at pt. I. Past practice reveals many cases in which a national emergency did not involve unforeseen circumstances or require immediate action on the part of the federal government, as Plaintiffs insist it must. Id. And in those instances Congress never even convened a vote under the NEA to overturn the President’s declaration. See Beacon Prod. Corp., 814 F.2d at 4. Here, the Court would not be choosing one plausible reading of the statute over another in order to accept Plaintiffs’ argument, as it would in a typical constitutional-avoidance case. It would instead be substantially rewriting the NEA to adopt Plaintiffs’ policy view of what circumstances should constitute a “national emergency.” But where (as here) there is no ambiguity, “the canon of constitutional avoidance has no role to play.” Warger v. Shauers, 574 U.S. 40, 50 (2014).
Setting aside Plaintiffs’ meritless “avoidance” theory, there is no basis for striking down the NEA on nondelegation grounds. Indeed, the Supreme Court has not struck down a federal statute on that basis since 1935, Whitman v. Am. Trucking Associations, 531 U.S. 457, 474 (2001), and this case does not present a viable platform for departing from that historical streak. Plaintiffs focus on Congress’s choice not to limit the circumstances under which the President may declare a national emergency, but that focus is misplaced. The declaration of a national emergency does not, on its own, give the President any new powers. Rather, the NEA is a procedural statute that requires the President to “specif[y] the provisions of law under which he proposes that he, or other officers will act.” 50 U.S.C. § 1631. The statute does not “enlarge or add to Executive power.” See Report of the Committee on Government Operations: National Emergencies Act, S. Rep. No. 1168, 94th Cong., 2d Sess. 3 (1976). Instead, the NEA was “an effort by the Congress to establish clear procedures and
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safeguards for the exercise by the President of emergency powers conferred upon him by other statutes.” See id. (emphasis added). The only power at issue here is military construction authority under § 2808. And § 2808 plainly contains “intelligible standards” that cabin DoD’s authority: construction under § 2808 must meet the definition of “military construction” set forth in § 2801 and must be “necessary to support such use of the armed forces.” The congressional notification and reporting requirements of the NEA also impose meaningful constraints for nondelegation purposes, as the Fifth Circuit has recognized. United States v. Mirza, 454 Fed. App’x 249, 256 (5th Cir. 2011) (agreeing with three other circuits that the International Emergency Economic Powers Act, which authorizes the President to take certain actions upon a declaration of a national emergency, does not violate the nondelegation doctrine). Congress’s provision of sufficient guidance to DoD in § 2808 is thus sufficient to dispose of Plaintiffs’ non-delegation claim.
Plaintiffs Cannot Establish Article III Standing Over Any of Their Claims. To establish Article III standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000). The standing inquiry is particularly rigorous where, as here, a court is asked to find the actions of the other branches of government unconstitutional. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).
Plaintiffs Have No Standing to Challenge Future Border Barrier Construction Under § 2808. Plaintiffs lack standing to challenge possible § 2808 construction because the Acting Secretary of Defense has not yet decided to undertake or to authorize any barrier construction projects under § 2808. Rapuano 4/25/19 Decl. ¶¶ 13–14; see also Declaration of Kenneth Rapuano ¶¶ 5–7 (May 15, 2019) (“Rapuano 5/15 Decl.”) (Ex. 7) (providing latest status of § 2808 deliberations).
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The President’s invocation of § 2808 in the Proclamation is not itself sufficient to establish certainly impending injury where the subsequent decision to undertake or authorize barrier construction projects under § 2808 lies with the Acting Secretary of Defense. Before authorizing § 2808 construction, the Acting Secretary of Defense will determine whether a project is “necessary to support such use of the armed forces.” 10 U.S.C. § 2808. That determination can be considered only within the context of the Acting Secretary of Defense authorizing specific military construction projects presented to him for approval, a process that is ongoing. See Rapuano 5/15/19 Decl. ¶¶ 5– 7. Moreover DoD will need to defer military construction projects to which Congress has appropriated funds that have yet to be obligated in order to fund § 2808 construction. See id. Speculation about injuries that might result from yet-to-be-identified barrier construction projects that might be funded under § 2808 is the type of “possible future injury” that is not sufficient to establish Article III jurisdiction. See Clapper, 568 U.S. at 409. The Court should not rule on Plaintiffs’ § 2808 claim in the abstract when these specific decisions have not been made, let alone made in a manner that would injure Plaintiffs. Given the absence of any concrete harm, Plaintiffs lack standing to pursue their § 2808 claims.
Plaintiffs Have No Standing to Challenge an Alleged Violation of § 8005 of the DoD Appropriations Act. Plaintiffs also cannot establish standing to challenge DoD’s use of § 8005 of the 2019 DoD Appropriations Act to effectuate an internal transfer of funds between DoD appropriations. They neither claim an entitlement to the money transferred, nor assert that they are the “object” of that transfer, which simply moved funds among DoD’s accounts. Lujan, 504 U.S. at 562. Accordingly, their standing to challenge the transfer of funding from one DoD appropriation to another is no greater than that of any taxpayer to challenge any expenditure of taxpayer money from a particular budget account. As the Supreme Court has explained, “federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus” if “every federal taxpayer
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could sue to challenge any Government expenditure.” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 593 (2007). The intervening step of invoking § 284 is necessary to connect DoD’s use of § 8005 to the border barrier construction that is the source of Plaintiffs’ alleged injuries, and Plaintiffs cannot invoke their alleged harm from the separate act of constructing barriers utilizing authority provided by § 284 to establish standing for a claimed violation of § 8005. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891–94 (1990) (holding that APA review is limited to review of discrete agency action and multiple actions cannot be aggregated together).
El Paso County Has No Standing to Challenge the Proclamation or § 284 Construction. To date, the Government has not authorized any border barrier construction to go forward in El Paso County. Only one project—to replace existing vehicle barriers with new pedestrian fencing in Luna County, New Mexico and Doña Ana County, New Mexico—is even within close proximity. See Rapuano 4/25 Decl. ¶¶ 3-4, Ex. A at 8-9 (El Paso Sector Project 1). To overcome this obvious problem with its standing, the County alleges “two interconnected, concrete injuries stemming from Defendants’ actions”: injury to its reputation due to the Proclamation, and impact to its pecuniary interests. Pls.’ MSJ at 11. Neither provides a basis for standing. 1. Reputational Harm The County avers that the Proclamation “create[s] the negative perception” that the southern border is an area of unrest, high crime, and low quality of life. First Am. Compl. ¶¶ 104, 107, ECF No. 52. To counter this view, the County alleges its employees are “daily required to defend the County’s reputation and to disabuse misconceptions that . . . are a deterrent to people visiting or investing in El Paso County.” Id. ¶ 105, 107. In its view, the “Proclamation frustrat[es] … the County’s national campaign to promote El Paso’s history and culture and its ongoing efforts to attract visitors to the County who will spend money and engage in commerce.” Id. ¶ 107. As a threshold matter, these allegations have nothing to do with actual border-barrier
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construction and thus could not provide standing to challenge construction under § 284, § 2808, or § 9705. Plaintiffs repeatedly allege that “[t]he President’s Proclamation and the activity it directs by its very issuance create the negative perception the County has sought to counter.” Id. ¶ 94; see also id. ¶¶ 93, 96-97. But both § 284 and § 9705 are available regardless of the Proclamation, while a decision on § 2808 projects has yet to be made. Accordingly, the County’s theory goes solely to the Proclamation itself, which is unreviewable for a number of reasons entirely separate from the County’s (lack of) standing. Clapper, 568 U.S. at 411.
But even aside from all that, the County’s standing theory is not viable. “Standing is not available to just any resident of a jurisdiction to challenge a government message without a corresponding action about a particular belief.” Barber v. Bryant, 860 F.3d 345, 355 (5th Cir. 2017) (rejecting “purported stigmatic injury”); see also Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 284 (5th Cir. 1996) (“[N]o parent ought to be allowed to sue over a school policy with which he disagrees unless the policy has demonstrably injured him or his child.”); Chaplaincy of Full Gospel Churches v. U.S. Navy (In re Navy Chaplaincy), 534 F.3d 756, 764-65 (D.C. Cir. 2008) (Kavanaugh, J.) (allowing standing based on offense to a government message would “eviscerate well-settled standing limitations”). So too here, while the Proclamation authorizes actions under other statutes that may later give rise to an injury-in-fact, it is not self-effectuating. That distinguishes this case from all those cited by the County in their brief, which rely on a statute authorizing sports gambling in contravention of federal law, a statute requiring the plaintiff to label himself a distributor of “foreign propaganda,” an order of judicial sanctions against an individual attorney, and a congressional bill of attainder against an individual citizen.14 None of these are remotely similar to the Proclamation.
14 Meese v. Keene, 481 U.S. 465, 472–77 (1987) (politician’s likely injury to his reputation as a result of complying with statutory disclosure requirements for distribution of “propaganda” grounded standing because “the Department of Justice has placed the legitimate force of its criminal enforcement powers behind the label”); NCAA v. New Jersey, 730 F.3d 208, 220–24 (3d Cir. 2013) (plaintiff sports leagues
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Plaintiffs’ theory also fails because, unlike the very specific targets of the government actions at issue in the cases it cites, the Proclamation does not specifically disparage the reputation of the County. The Proclamation does not refer to the County, and it does not follow from the Proclamation that the County necessarily has “crisis levels of crime and low quality of life.” First Am. Compl. ¶ 104. Indeed, the First Amended Complaint admits the President called the city of El Paso “one of America’s safest cities” in his State of the Union address just weeks before issuing the Proclamation. Id. at ¶ 102. El Paso is frequently invoked in debates over funding for construction along the southern border precisely because it “has been recognized as one of the top 10 safest cities in the country for two consecutive years.” Id. ¶ 100; see also id. ¶ 100 n.19, ¶ 102 n.26 (articles about the debate over the role past barrier construction played in El Paso’s low crime rate). And far from treating all parts of the southern border as equally dangerous, the Government has used its construction authority in a focused manner, and provided justifications as to why projects are needed in discrete areas of the southern border. See Rapuano 4/25 Decl., Ex. A (Request for Assistance from DHS to DoD, Feb. 25, 2019).
Ignoring the contradictions in its interpretation of the Proclamation, the County indulges in “speculation about ‘the unfettered choices made by independent actors not before the court’” that cannot support standing. Clapper, 568 U.S. at 410, 414 n.5 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992)). Ms. Keller, the Chief Administrator of the County, explains that she devotes time to “plan[ning] for counteracting the emergency declaration,” including “planning for conversations in which I will have to debunk myths about El Paso,” as well as time “strategizing how to combat a falsely negative image” and adjusting to “the expectation that I will not get as many applicants as I
had standing to enforce a statutory prohibition on sports gambling both because the leagues were the effective object of efforts to legalize gambling and “the proven stigmatizing effect of having sporting contests associated with gambling”), overruled on other grounds, Murphy v. NCAA, 138 S. Ct. 1461 (2018); Foretich v. United States, 351 F.3d 1198, 1214 (D.C. Cir. 2003) (plaintiff had standing to present bill of attainder claim after Congress enacted a statute targeted at a single individual, leading to “harassment by the media, estrangement from his neighbors, and loss of business and professional opportunities”).
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have gotten in the past” for certain jobs. Decl. of Betsy Keller (“Keller Decl.”) ¶¶ 9–11, ECF No. 5525. Likewise, Judge Samaniego explains that the Proclamation is a “serious threat to both tourism and economic development” and that it is “harming our economic development efforts . . . by generating fears of potential investors that the community will be mired in a long-term state of chaos.” Decl. of Richard Samaniego (“Samaniego Decl.”) ¶¶ 6, 11, ECF No. 55-26. But fears that unknown third parties will, in response to the Proclamation’s general statements about the situation on the southern border, make their own independent judgments about whether or not to visit or spend money in El Paso County are precisely the sort of speculative harms the Supreme Court found insufficient for standing in Clapper.15
These allegations are not improved by the declarants’ statements about their alleged investment of time and resources to combat the Proclamation. See, e.g., Keller Decl. ¶¶ 9–11; Samaniego Decl. ¶¶ 11–12. “[A]sserti[ons] that [the County] suffer[s] present costs and burdens that are based on a fear of” negative economic impact cannot ground standing, even if reasonable. Clapper, 568 U.S. at 416. Such harm is traceable not to the actions the government has taken. See id. at 418; see also Zimmerman v. City of Austin, 881 F.3d 378, 389 (5th Cir. 2018) (“standing cannot be conferred by a self-inflicted injury”); Assoc. for Retarded Citizens of Dallas v. Dallas Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994) (rejecting theory that “any sincere plaintiff could bootstrap standing by expending its resources in response to actions of another”).
The County’s “reputational injury” argument also founders even if one were to assume an
15 Judge Samaniego also declared that, “In my capacity as County Judge, I have already heard personally from people who have a false impression that El Paso County is a dangerous place and who do not want to come here.” Samaniego Decl. ¶ 10. But he does not claim that the “people” he “heard” from got the “false impression” that “El Paso County is a dangerous place” from the Proclamation. Plaintiffs’ brief inserts the phrase “because of the President’s Proclamation” at the end of this statement, Pls.’ MSJ at 12, but the relevant paragraph from Judge Samaniego’s declaration, quoted in full here, does not contain, or suggest, such a qualifier.
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“injury-in-fact” has been established, for two reasons. First, the County has not shown the Proclamation itself caused the reputational injury it complains about. Public debate on the southern border has been ongoing for decades, and the County’s declarants provide little more than conclusory statements linking the Proclamation to whatever reputational harm has resulted from that debate. Negative impressions of the southern border or the County may be “associated with” the Proclamation, Keller Decl. ¶¶ 6, 8, but unless the County demonstrates causation, there is no standing.
Second, the County has failed to show how a favorable decision will redress its injury. The County asks the Court to “[d]eclare that the President’s Proclamation . . . is unauthorized by, and contrary to, the Constitution and laws of the United States,” and to enjoin the Government from “taking any actions pursuant” to it. First Am. Compl. at 47 (prayer for relief). But it is entirely speculative to suggest a judicial finding that the Proclamation does not satisfy the NEA would bring additional business and tourists to the County or would remedy the “false and negative impression of El Paso” that the Proclamation’s description of the southern border creates. Samaniego Decl. ¶ 6. Because the proposed remedy does nothing to redress the County’s asserted injuries, there is no standing for the County’s claims.
2. Pecuniary Injuries The County also argues that its “pecuniary injuries” suffice to establish standing. But neither Ms. Keller nor Judge Samaniego present evidence of concrete, imminent injury to such interests as a result of an alleged downturn in El Paso’s reputation caused by the Proclamation. Rather, their declarations speak of the Proclamation as “threat to both tourism and economic development,” Samaniego Decl. ¶ 6, and the “fears of potential investors,” id. ¶ 11. But threats and fears about the actions of third parties are not forms of “certainly impending” injury, and the County has failed to point to even a single example of actual or threatened loss of tourism dollars or business investment as a result of the Proclamation. Even if the County could eventually show, for example, that its tax
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revenues from tourism diminished since the Proclamation, Pls.’ MSJ at 14, it would also have to establish the diminution in revenue was the result of the Proclamation, not other factors, and that a declaratory judgment would undo the alleged harm caused by the statements in the Proclamation. The County has not come close to making that showing.
The remaining pecuniary injuries advanced by the County fare no better. The County argues that construction taking place across state lines “will surely disrupt the County’s ‘regional economy,’” Pls.’ MSJ at 14 (quoting Keller Decl. ¶ 13), but Ms. Keller and Judge Samaniego offer no evidence, beyond conclusory statements and speculation, that there will in fact be serious disruption to the County’s interests due to the replacement of vehicle barriers with pedestrian fencing outside of recognized ports of entry on federal land entirely outside of the County. The County also asserts that funding designated for Fort Bliss may be diverted to use under § 2808, but even assuming that is a cognizable harm, a decision has yet to be made by the Assistant Secretary of Defense regarding § 2808. Accordingly, the County’s claims should be dismissed in full for lack of Article III standing.
BNHR Lacks Standing to Challenge the Proclamation or § 284 Construction. BNHR asserts organizational standing to challenge the Proclamation and border barrier construction. First Am. Compl. ¶¶ 113–19; Pls.’ MSJ at 16–19. But the four types of organization harm it alleges are not sufficient for standing purposes, either. First, BNHR claims it has had to “divert organizational resources from its normal programming to respond to the President’s Proclamation,” including “counseling” and “recruit[ing] and train[ing] attorneys to handle the increase in incoming complaints,” hiring a policy consultant, sending a lobbying delegation to Washington D.C., and working longer hours First Am. Compl. ¶¶ 113–15; Decl. of Fernando Garcia (“Garcia Decl.”) ¶¶ 13–31, ECF No. 55-27. BNHR contends these injuries establish standing under Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), and cases applying it. But Havens Realty is a narrow decision that does not sanction standing on these facts.
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The plaintiff organization in Havens Realty was a “housing counseling service” whose organizational mission included “the investigation and referral of complaints concerning housing discrimination.” 455 U.S. at 363. It sent testers to an apartment complex in order to determine whether it practiced unlawful “racial steering,” and subsequently brought suit to challenge the practice it discovered. In rejecting a challenge to its standing, the Supreme Court agreed that the defendant’s “racial steering” had “impaired [plaintiff’s] ability to provide counseling and referral services for lowand moderate-income homeseekers,” establishing injury-in-fact. Id. at 379. Absent such a direct impairment on its mission caused by the challenged action, standing does not exist whenever a public interest organization decides to spend money opposing a governmental policy of concern or the organization suffered a “setback to [its] abstract social interests,” id. (citing Sierra Club v. Morton, 405 U.S. 727, 739 (1972)). The Fifth Circuit case law Plaintiff relies upon upholds this principle by recognizing standing only when a defendant actually inhibits a plaintiff from carrying out its organizational mission, either by imposing barriers or by neglecting a legal duty.16
This case lacks the nexus between organizational activities and defendant conduct present in Havens Realty. BNHR’s mission is community organizing, education, and advocacy. Garcia Decl. ¶ 3. But the Proclamation imposes no obstacles or constraints on BNHR’s ability to engage in these activities. BNHR cannot identify any legal or factual way in which the message of the Proclamation imposes new constraints on its members or the public, or identify a legal duty the Government is no
16 OCA-Greater Houston v. Texas, 867 F.3d 604, 610–12 (5th Cir. 2017) (finding plaintiff, an organization that encourages civic participation, had standing to challenge state law restricting interpreter assistance for voters because it expended resources to educate members about the restrictions so they could rely on the interpreter of their choice at the polls); Scott v. Schedler, 771 F.3d 831, 837–38 (5th Cir. 2014) (finding injury-in-fact and causation over a National Voter Registration Act (NVRA) claim after applying Fowler); Assoc. of Community Organizations for Reform Now v. Fowler, 178 F.3d 350, 362 (5th Cir. 1999) (recognizing potential standing of political advocacy group to challenge states’ implementation of the NVRA because “it has expended resources registering voters in low registration areas who would have been registered if the appellees had complied with” the statute).
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longer fulfilling in reliance on the Proclamation. Rather, BNHR’s efforts are explicitly intended to vindicate its “abstract social interest” in opposing the Government’s policies. See, e.g., Garcia Decl. ¶¶ 13–14 (explaining shift in resources to “combat the false negative message fostered by the Proclamation” and that purpose of events put on by BNHR is the “constant need to respond to immediate developments at the border and to denounce the administration’s false rhetoric.”).
The Fifth Circuit rejected a very similar claim of organizational standing to the one BNHR makes here in NAACP v. City of Kyle, 626 F.3d 233 (5th Cir. 2010). There, the plaintiff tried to ground standing to challenge revised housing ordinances on a study it had commissioned regarding the impact of the revisions, as well as lobbying efforts designed to persuade the defendant municipality not to implement the revised ordinances, but did not explain how those efforts “differ from the HBA’s routine lobbying activities,” or “identif[y] any specific projects that the HBA had to put on hold or otherwise curtail in order to respond to the revised ordinances.” Id. at 238. The Kyle court also reaffirmed that “redirect[ing] . . . resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization.” Id. (quoting La. ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 305 (5th Cir. 2000). BNHR’s post-Proclamation activities are not different, in kind, from its pre-Proclamation mission of education, advocacy, and organizing around its views about the southern border. Moreover, BNHR does not identify any specific project it has been required to put on hold because of the Proclamation. It notes one event, “Hugs Not Walls,” that was “effectively ended” by the Proclamation, but that outcome was a choice by BNHR. Mr. Garcia’s declaration explains that the campaign could not continue because “law enforcement is no longer supportive” of reunifying families near the border. Garcia Decl. ¶ 32. That choice has nothing to do with a diversion of resources attributable to the Proclamation. Because its alleged harm is purely incidental to the “abstract social interest” for which it advocates, BNHR cannot avail itself of standing under Havens Realty.
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Second, BNHR avers that the Proclamation “injures BNHR’s organizational mission,” not only because it diverts resources, but because it “stigmatize[s] BNHR’s community members” and disrupted their “ongoing campaign to build and maintain trust between community members and law enforcement.” First Am. Compl. ¶ 116; see also Garcia Decl. ¶ 31. This is an axiomatic “abstract social interest” as described in Havens Realty. Even so, the reasons Mr. Garcia gives for this deterioration (“our members’ fears and the shift in attitude by the Border Patrol brought on by the rhetoric that underpins the Proclamation”) are both speculative and in any event not remotely attributable to the Proclamation. Garcia Decl. ¶ 31. Moreover, “stigmatization” is not a cognizable Article III injury, as those who “are not themselves affected by a government action except through their abstract offense at the message allegedly conveyed by that action” only have standing to bring certain First Amendment claims. Barber, 860 F.3d at 353 n.4 (quoting In re Navy Chaplaincy, 534 F.3d at 764-65).
Third, the First Amended Complaint (but not the motion for summary judgment) alleges that current and future border wall construction will harm the quality of life of its members by delaying border crossings and creating unwanted pollution and noise. First Am. Compl. ¶ 117; Garcia Decl. ¶¶ 33–37. Such allegations would only permit standing to challenge the § 284 project moving forward in New Mexico. But as was true of the County’s allegations of pecuniary harm, these asserted threats lack the necessary imminence and concreteness for Article III standing. Current slowdowns at border crossings cannot be the result of “recently announced” construction on federal land outside established ports of entry, and indeed, all Mr. Garcia claims is that the construction “threatens to make this problem worse” without explaining how the project will “congest[] all of the nearby ports and access roads.” Garcia Decl. ¶ 34. Past negative experience with construction does not make future harm imminent, id. ¶ 36, and BNHR does not even allege that they have members who live in sufficient proximity to the federal land near the border such that construction would disturb them.
Finally, BNHR alleges that “the Proclamation and accompanying White House Statement in
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intent and effect have stigmatized immigrant communities,” causing their member families to “reasonably fear race-based violence,” “fear an influx of law enforcement,” and “fear increased public safety risks for children and for the community, which they must take[] steps now to mitigate.” First Am. Compl. ¶ 118. But even if BNHR reasonably and sincerely believes that it must take present action in order to mitigate risks arising from fear of future events, Clapper squarely holds that such fears do not suffice for purposes of Article III standing. Clapper, 568 U.S. at 416 (“[R]espondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.”).
BNHR also faces similar causation and redressability problems similar to those faced by the County, insofar as their challenge focuses on the Proclamation. It provides no explanation as to how the general statements about the southern border in the Proclamation, separate from decades of intense debate about the state of the southern border generally, led to their alleged harm. And it provides no answer as to why a declaratory judgment that the Proclamation does not meet the legal requirements of the NEA cures BNHR’s concerns about “false rhetoric” at the border, since a positive litigation outcome for BNHR would not disprove the factual accuracy of the statements in the Proclamation. Accordingly, BNHR also lacks standing.
Plaintiffs Have Not Satisfied the APA’s Requirements for Review of Agency Action.
There Is No “Final Agency Action” Respecting § 2808 Because the Acting Secretary Has Not Yet Decided to Undertake or Authorize Any Barrier Construction Projects Under That Authority. Because § 2808 does not provide for judicial review, APA review, if available at all, is only permitted if there has been “final agency action.” Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999). Final agency action is marked by two characteristics. First, final agency action “mark[s] the consummation of the agency’s decisionmaking process”; it is not “tentative” or “interlocutory.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citation omitted). Second, the action “must be
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one by which rights or obligations have been determined, or from which legal consequences will flow.” Id. at 178 (internal citation omitted). Thus, even when agency action affects the public, it cannot be challenged in court if it is interlocutory, or if it does not fix any legal rights. See, e.g., Resident Council of Allen Parkway Vill. v. U.S. Dep’t of Urban Hous. & Dev., 980 F.2d 1043, 1056 (5th Cir. 1993).
As discussed earlier, see supra at Argument, pt. II.A, the Acting Secretary of Defense has not yet decided to authorize any projects under § 2808. Rapuano 5/15/19 Decl. ¶ 13. The Proclamation does not mandate that DoD undertake any specific construction projects, much less projects impacting Plaintiffs. The Proclamation makes available to the Acting Secretary of Defense construction authority available under § 2808 to use at his discretion. The APA does not entitle Plaintiffs to challenge the Acting Secretary of Defense’s decision until it is final.
The Use of § 2808 Construction Authority Is Committed to Agency Discretion by Law and Is Unreviewable Under the APA. Even if there were final agency action, any decision by the Acting Secretary of Defense to undertake military construction under § 2808 is not subject to judicial review because it is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Courts may not review final agency action “if the statute is drawn so that court would have no meaningful standard against which to judge the agency’s discretion.” Ellison v. Conner, 153 F.3d 247, 251 (5th Cir. 1998) (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). “[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of discretion.’” Heckler, 470 U.S. at 830. Courts in this circuit “look first to the statutory text, paying particular attention to the words Congress has chosen,” as well as “the structure and purpose of the statute” to determine whether Congress intended to place a particular set of agency decisions beyond APA review. Gulf Restoration Network v. McCarthy, 783 F.3d 227, 233 (5th Cir. 2015). Here, there is no meaningful standard by which the Court could review any ultimate decision by the Acting Secretary of Defense to exercise his authority under § 2808. The statute gives significant
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discretion to the Acting Secretary, providing only that, in the event of a declaration of national emergency, the Secretary “may” authorize military construction projects “that are necessary to support such use of the armed forces.” 10 U.S.C. § 2808. That is a quintessential military judgment, and the statute does not specify any criteria that the Secretary must consider in making his determination. See Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (“The complex subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments . . . .”); Perales v. Casillas, 903 F.2d 1043, 1048 (5th Cir. 1990) (finding agency action committed to discretion by law when there were “no statutory standards for the court to apply”). Nor does it include any specific prohibitions limiting the Secretary’s determination of what would constitute a project “necessary” to support the use of the armed forces. See Ellison, 153 F.3d at 253 (determining that agency action was committed to agency discretion by law when there were no “procedural or substantive requirements” imposed on the decision maker).
Even if § 2808 contained “standards to apply,” such standards would not be “judicially manageable” because the determination regarding what is “necessary to support such use of the armed forces” is an inherent military judgment to which courts have routinely deferred. See North Dakota v. United States, 495 U.S. 423, 443 (1990) (“When the Court is confronted with questions relating to military discipline and military operations, we properly defer to the judgment of those who must lead our Armed Forces in battle.”); Orloff v. Willoughby, 345 U.S. 83, 93 (1953) (“judges are not given the task of running the Army”). Any judicial review of the Acting Secretary of Defense’s decision to authorize border barrier construction under § 2808 as necessary to support the use of the armed forces would necessarily require this Court to second-guess the Secretary’s considered judgment on core military matters such as allocation of military resources, readiness, and the relative value of various military construction projects within the military’s global national security strategy. There are no judicially manageable standards for conducting that type of review. See NFFE v. United States, 905
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F.2d 400, 405–06 (D.C. Cir. 1990) (concluding that decisions about which military bases to close were committed to agency discretion by law because “the federal judiciary is ill-equipped to conduct reviews of the nation’s military policy”). Such judgment is “better left to those more expert in issues of defense,” id. at 406, and inherently requires a determination of the “military value” of the proposed construction projects. Dist. No. 1, Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n v. Maritime Admin., 215 F.3d 37, 41–42 (D.C. Cir. 2000). Indeed, “[t]his court has consistently followed the command that matters implicating . . . military affairs are generally beyond the authority or competency of a court’s adjudicative powers.” Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 950 (5th Cir. 2011) (internal citation omitted). For these reasons, there are no judicially manageable standards to apply, and the Secretary’s determination is committed to agency discretion by law under the APA.
Plaintiffs’ Claims Do Not Fall Within the Zone of Interest of § 8005, § 284, or § 2808. The APA’s “zone of interests” test forecloses suit “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.” Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quotation omitted). The plaintiff bears the burden of establishing that the injury he complains of “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Nat’l Wildlife Fed’n, 497 U.S. at 883. Here, Plaintiffs seek to vindicate reputational and pecuniary interests that have absolutely no connection to the interests protected by § 8005, § 284, and § 2808. Accordingly, Plaintiffs have no APA claim for violations of these statutes. DoD’s transfer authority for appropriated funds under § 8005 comes with certain limitations that Plaintiffs now seek to have judicially enforced. But Congress never contemplated third parties inserting themselves into the DoD funding process through litigation. The Constitution puts Congress and the Executive at the center of military policy, including the military budget. See U.S.
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Const., art. I, § 8, cl. 12. “The ultimate responsibility for these decisions” about the allocation of limited resources appropriated to DoD “is appropriately vested in branches of the government which are periodically subject to electoral accountability,” not the courts. Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Section 8005 was designed to “tighten congressional control of the re-programming process,” H. Rep. 93-662 at 16-17 (9174), but it was “phrased as a directive to” DoD, “not as a conferral of the right to sue upon” those who disagree with DoD’s decision to reprogram funds. See Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1387 (2015).17 The notice provisions of § 8005 allow DoD and Congress to resolve reprogramming disagreements as a matter of comity, or via legislation and oversight. Plaintiffs’ interest in the reprogramming process is “‘so marginally related to … the purposes implicit in’” § 8005 “that it cannot reasonably be assumed that Congress authorized” suit under the statute. Lexmark Int’l Inc. v. Static Control Components, Inc., 527 U.S. 118, 130 (2014) (quoting Patchak, 567 U.S. at 225).
Much the same reasoning applies to Plaintiffs’ challenges of § 284 and § 2808. Section 284’s limitations on when DoD can provide counter-drug support are designed to regulate the relationship between Congress, DoD, and state or federal agencies seeking assistance with drug trafficking, based on budgetary control and agency focus. Likewise, § 2808 exists to regulate the relationship between Congress and the Executive Branch regarding the diversion of unobligated military construction funds for other purposes during a national emergency. The “interests protected by the” statutes are completely unrelated to the interests Plaintiffs seek to vindicate in this case. See Lexmark, 527 U.S. at
17 This problem cannot be avoided by reframing Plaintiffs’ claims as implied equitable actions under the Appropriations Clause. See Sierra Club v. Trump, --- F. Supp. 3d ----, 2019 WL 2247689, at *17. On the contrary, a stricter test applies, because “what comes within the zone of interests of a statute for purposes of obtaining judicial review . . . under the APA may not do so for other purposes.” Lexmark, 527 U.S. at 130. The Supreme Court has suggested that, where a plaintiff seeks to bring an implied cause of action in equity to enforce a statutory or constitutional provision, the zone-of-interests test requires that the provision be intended for the “especial benefit” of protecting the plaintiff at issue. See Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 396, 400 & n. 16 (1987).
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131. Neither statute is intended to give private parties a remedy for protecting themselves from negative externalities of construction. As such, the APA does not provide a remedy for alleged violations of these statutes.
Plaintiffs’ APA Claims Related to the Funding of the Border Wall (Counts V–VI) Fail On the Merits. Plaintiffs challenge the legality of the Government’s use of § 9705, § 284, and § 2808 to engage in construction along the southern border, as well as the legality of funding transfers to support § 284 construction under § 8005. None of them succeed. Accordingly, summary judgment in favor of Defendants on these counts is proper.
Section 9705 Although raised in their complaint, Plaintiffs’ motion for summary judgment does not challenge Treasury’s use of the Treasury Forfeiture Fund (TFF) to fund border barrier construction by DHS under 31 U.S.C. § 9705(g)(4)(B). The Government is entitled to summary judgment on these claims for at least three reasons. First, Plaintiffs have no standing to bring a § 9705 claim, as § 9705 funds are not being used for construction in the El Paso area, and Plaintiffs do not assert they are eligible to receive funding from the TFF that will otherwise be diverted to DHS. See Decl. of Loren Flossman ¶¶ 9–12 (April 1, 2019) (Ex. 8) (CBP will use TFF money for construction in the Rio Grande Valley Sector). Second, the allocation of TFF funds is committed to agency discretion by law and is thus unreviewable under the APA. See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (allocation of lump sum appropriation not reviewable). Third, the use of the TFF to fund border barrier construction satisfies the minimal requirements of § 9705(g)(4)(B), which authorizes Treasury to use surplus funds to support “the law enforcement activities of any Federal agency.” CBP was established to “ensure the interdiction of persons and goods illegally entering or exiting the United States,” “interdict . . . persons who may undermine the security of the United States,” and “safeguard the borders of the United States,” among other duties. 6 U.S.C. § 211(c)(2), (5), (6); see Arizona, 567 U.S. at 397
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(describing the role that DHS and CBP play in enforcing the country’s immigration laws and “securing the country’s borders”). And Congress has recognized that barriers prevent unlawful entries by aliens and smuggling of contraband across the border, see Secure Fence Act of 2006, Pub. L. No. 109-367, §§ 2–3, 120 Stat. at 2638–39, and thus help enforce the laws that prohibit such activities, e.g., 8 U.S.C. § 1325 (improper entry by an alien); 18 U.S.C. § 545 (smuggling goods into the United States); 21 U.S.C. § 865 (smuggling methamphetamine into the United States). As such, Treasury’s § 9705(g)(4)(B) transfer is lawful and judgment on Plaintiffs’ claims should be entered in the Government’s favor.
Section 2808 Plaintiffs argue that the Government cannot use § 2808 for border barrier construction because (1) the Proclamation does not establish a “national emergency” that “requires use of the armed forces”; (2) border barriers are not a “military construction project”; and (3) such projects will not be “necessary to support such use of the armed forces.” Pls.’ MSJ at 36–40. But Plaintiffs cannot show at this stage that the Government has failed to meet any of these requirements.
The use of § 2808 is predicated on a Presidential declaration of a national emergency “that requires the use of the armed forces,” and provides the Secretary of Defense with authority to “undertake military construction projects” that are “necessary to support such use of the armed forces.” 10 U.S.C. § 2808(a). The statutory scheme leaves to the President the determination of whether a national emergency “requires the use of the armed forces,” and courts have uniformly concluded that a Presidential declaration of a national emergency is a nonjusticiable political question. See supra at Discussion, pt. I.B. Similarly, determinations about whether specific construction projects would be “necessary to support such use of the armed forces” are vested in the expertise of the Secretary of Defense, and courts are not free to “second-guess military judgments.” Bynum v. FMC Corp., 770 F.2d 556, 563 (5th Cir. 1985); see North Dakota, 495 U.S. at 443 (1990) (“we properly defer
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to the judgment of those who must lead our Armed Forces in battle.”). Further, although “military construction project” is a statutorily defined term, its definition is
broad and illustrative, not specific or exclusive. See 10 U.S.C. § 2801(b). The term “military construction” is broadly defined to “include[] any construction . . . of any kind carried out with respect to a military installation.” Id. § 2801(a) (emphasis added). A “military installation,” in turn, “means a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” Id. § 2801(c)(4) (emphasis added). Broad terms defining military construction as “includ[ing]” (but not limited to, see 10 U.S.C. § 101(f)(4)) construction with respect to a military installation. The Court has no concrete record upon which to assess whether these statutory requirements have been satisfied with respect to particular construction projects. Accordingly, Plaintiffs have not made out an APA violation with respect to § 2808.
Section 284 Plaintiffs’ challenges to § 284 also miss the mark. They argue (1) that the $ 2.5 billion DoD has redirected toward border barrier construction does not qualify as “support,” and (2) that the entire southern border would have to qualify as a “drug smuggling corridor[]” in order for the authority to apply. Pls.’ MSJ at 40–44. Both arguments lack merit. The text and history of § 284 contradict Plaintiffs’ claim that the construction allowed under the statute to support counterdrug activities of other agencies is limited only to “small scale construction projects” under $750,000. Pls.’ MSJ at 42. No such monetary restriction appears in the types of support permitted under § 284. See 10 U.S.C. § 284(b)-(c). To the contrary, the statute broadly approves “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States” without regard to the size, scale, or budget of the project. Id. § 284(b)(7). And since Congress first provided this authority in 1990, DoD has repeatedly used it, with Congress’s explicit approval, to complete large-scale fencing projects along
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the southern border in support of DHS’s counterdrug activities. For example, under authority of the first counterdrug activities support appropriation, DoD built a 14-mile fence in a drug smuggling corridor along the San Diego-Tijuana border—a project Congress described as “precisely the kind of federal-local cooperative effort the Congress had in mind” in enacting such authority. H.R. Rep. No. 103-200, at 330-31 (1993). As of 2006, Congress reported with approval that, since 1990, DoD’s use of its authority to support counterdrug activities through “construction and rehabilitation” along the southern border “resulted in 7.6 miles of double-layer fencing, 59 miles of single fencing, and 169.5 miles of road.” H.R. Rep. No. 109-452, at 368. And in determining appropriations for these construction activities, Congress recommended that DoD spend millions of dollars on specific border projects. See, e.g., id. at 369 (recommending a $10 million increase in DoD’s budget for fence and roadbuilding activity on the southern border with instructions that “not less than $3.0 million” and “not less than $2.0 million” be used for fence construction projects in Texas and Arizona, respectively).
Section 284 requires the Acting Secretary of Defense to provide “a description of any small scale construction project”—which it defines as “construction at a cost not to exceed $750,000 for any project”—“for which support is provided” under § 284(b) or (c) at least 15 days in advance of providing such support. 10 U.S.C. § 284(h)(1)(B), (i)(3). Contrary to Plaintiffs’ suggestion, there is nothing inherently implausible about Congress choosing to require notice for some, but not all, projects that DoD could construct under § 284. See Pls.’ MSJ at 42. Certain types of support authorized under § 284 explicitly refer—but are not limited—to “small scale” or “minor” construction. See 10 U.S.C. § 284(b)(4) (authorizing “[t]he establishment (including an unspecified minor military construction project) and operation of bases of operations or training facilities for the purpose of facilitating counterdrug activities . . . within or outside the United States” (emphasis added)); id. § 284(c)(1)(B) (authorizing “[t]he establishment (including small scale construction) and operation of bases of operations or training facilities for the purpose of facilitating counterdrug activities . . . outside the
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United States” (emphasis added)). Accordingly, if Congress wanted to limit all § 284 construction to “small scale construction,” it could have and “presumably would have done so expressly.” Russello v. United States, 464 U.S. 16, 23 (1983). Regardless of whether Plaintiffs think the scope of permissible construction activities under § 284 should be coextensive with the scope of the congressional notification requirement, “[t]he short answer is that Congress did not write the statute that way.” Id.
Plaintiffs likewise fail to show that Defendants have violated § 284 by constructing border barriers outside of “drug smuggling corridors” permitted by the statute. Plaintiffs allege that § 284 differentiates between an “international boundary” and a “corridor” within that boundary, such that the entire southern border cannot qualify as a “drug smuggling corridor.” Pls.’ MSJ at 43–44. But there is no need for the Court to address the status of the entire southern border because the only § 284 project at issue in this case for which Plaintiffs would arguably have standing is El Paso Sector Project 1. With respect to that project, the record sets forth extensive evidence to support recent drug smuggling activities in that area. See Rapuano Decl. ¶ 3, Ex. A at 8 (thousands of pounds of illegal drugs seized between ports of entry in the El Paso Sector in fiscal year 2018). Accordingly, the Government’s use of § 284 is appropriate and does not give rise to an APA violation. 18
The Consolidated Appropriations Act Plaintiffs have also failed to show a violation of the Consolidated Appropriations Act, 2019 (CAA). Pls.’ MSJ at 33–36. Although one component of the CAA—the Department of Homeland Security Appropriations Act, 2019—places restrictions on border-barrier construction funded with DHS appropriations, the CAA does not expressly or implicitly limits the ability of the Government to
18 Additionally, there is no merit to Plaintiffs’ claim that Defendants have violation § 8045 of the DoD Appropriations Act, which prohibits the transfer of DoD counter-drug funds to another agency. See Pls.’ MSJ at 46. DoD is not transferring its counter-drug funds to DHS. Instead, DoD is constructing the border barriers using its own funds in support of DHS pursuant to § 284.
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rely upon other statutory authorities to fund the additional border-barrier construction at issue here. And the use of such statutory authorities does not violate any other provision of the CAA.
Contrary to Plaintiffs’ contentions, Congress’s decision not to appropriate to DHS the full amount of funds requested by the President for fiscal year 2019 border-barrier construction does not limit the Acting Secretary of Defense’s ability to utilize other available statutory authorities for such construction. Plaintiffs posit that Congress’s specific appropriation to DHS to fund, with restrictions, certain border-barrier construction is tantamount to a prohibition of expenditures on any other statutorily authorized border-barrier construction.19 See Pls.’ MSJ at 33–34. Not so. “An agency’s discretion to spend appropriated funds is cabined only by the text of the appropriation.” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 200 (2012) (quotation omitted). Plaintiffs have identified no restriction in the CAA on the funding of border-barrier construction pursuant to other statutory authorities, nor does its plain text include one. See Pls.’ MSJ at 6–7; see generally Pub. L. No. 116-6 (2019). Congress did not modify any of the statutes at issue here in the CAA. See id. And the CAA’s funding provisions do not otherwise alter the meaning or availability of permanent statutes already in effect. The absence of such provisions precludes any inference that Congress intended to, or actually did, disable the use of other available authorities. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 190 (1978) (“doctrine disfavoring repeals by implication applies with full vigor when the subsequent legislation is an appropriations measure”); see also Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1558 (D.C. Cir. 1984) (“[W]hen appropriations measures arguably conflict with the underlying authorizing legislation, their effect must be construed narrowly.”). In the absence of contrary language, the grant
19 The DHS Appropriations Act restricts the location and manner of border-barrier construction funded by Congress’s 2019 $1.375 billion appropriation to DHS for the purpose of such construction. See Pub. L. No. 116-6, div. A, §§ 230–32. Most of these restrictions expressly apply to the use of those funds only. See id. Plaintiffs do not allege that Defendants have violated the few restrictions that apply more generally.
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of a specific appropriation cannot be read to restrict the use of other appropriated funds for similar purposes pursuant to other statutory authority. Had Congress wished to restrict all other borderbarrier construction—including construction authorized funded under other statutory authorities—it could have plainly so stated. Because the CAA’s text includes no such restrictions, neither its limits on border-barrier construction funded by specific DHS appropriations, nor the history of negotiations regarding border barrier construction funding constrains the Acting Secretary of Defense’s ability to expend funds pursuant to other statutory authorities. See Salazar, 567 U.S. at 200.
In the absence of language specifically restricting the Acting Secretary of Defense’s actions, Plaintiffs claim that those actions are nonetheless prohibited by § 739 of the Financial Services and General Government Appropriations Act, 2019 (a component of the CAA). That provision 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. Pub. L. No. 116-6, div. D, § 739 (emphasis added). Plaintiffs’ allegations rest upon a faulty premise: that any funds used for barrier construction are necessarily adding to a CBP appropriation. That is untrue. Any funds utilized for border barrier construction pursuant to § 2808 or § 284 will be used for the purpose for which they were appropriated—military construction and counter-drug activities, respectively—and consistently with their underlying statutes, not to increase funding for a CBP program, project, or activity as proposed in the President’s budget request. The mere fact that appropriations to different agencies can be used for similar purposes does not transform a valid use of one source of appropriated funds into an improper expenditure simply because another agency may request funds for a similar purpose. The use of funds at issue here complies with § 739, and Plaintiffs have not stated a claim for violation of the CAA.
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Section 8005 Plaintiffs assert that DoD’s transfer of funds under section 8005 is unlawful because it is (1)
not “based on unforeseen military requirements,” (2) the item requested had already been “denied by
Congress,” and (3) the transfer was not “for military functions (except military construction).” Pls.’ MSJ at 46–48. But none of these arguments has merit.20
First, Plaintiffs argue that DoD violated § 8005’s requirement that transfers be for “higher
priority items, based on unforeseen military requirements,” because the situation at the southern
border is not “unforeseen.” Pls.’ MSJ at 47. But § 8005 uses the term “unforeseen” in the context of
the budgeting process. Congress does not appropriate funds to DoD on a “line item basis,” and
§ 8005 gives DoD authority to make “changes in the application of financial resources from the
purposes originally contemplated and budgeted for, testified to, and described in the justifications
submitted to congressional committees in support of budget requests.” H. Rep. No. 93-662, at 15–
16. Here, the need for DoD to exercise its § 284(b)(7) authority did not arise until February 2019,
when DHS requested support from DoD to construct fencing in drug trafficking corridors. See 10
U.S.C. § 284(a)(1) (authorizing DoD to support counter-drug activities only once “such support is
requested”). Accordingly, the need to provide support for these projects was an unforeseen military
requirement at the time of the President’s fiscal year 2019 budget request. See Rapuano Decl., Ex. C,
20 In Sierra Club v. Trump, the U.S. District Court for the Northern District of California entered a preliminary injunction prohibiting further action to construct the El Paso Sector project at issue in this case. The court concluded that DoD had not satisfied two of § 8005’s requirements, holding that DoD had transferred funds for an “item” that was previously “denied” by Congress and that supported a military requirement that was not “unforeseen.” See 2019 WL 2247689, at *18–21. The Court’s rationale was that, at the time of DoD’s appropriation, the Executive Branch’s general desire for border-wall funding was foreseen and Congress denied DoD funding by providing DHS a smaller amount of funding than it originally requested from Congress. See id. But that reasoning considers the appropriations process at far too high a level of generality in light of § 8005’s text and context. Under § 8005, an “item for which funds are requested” is a particular budget item requiring additional funding beyond the amount in the DoD appropriation for the fiscal year. And Congress’s decision to appropriate less money to DHS cannot be a denial to DoD of its preexisting § 284 authority
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at 1-2. And it remained an unforeseen military requirement through Congress’s passage of DoD’s fiscal year 2019 budget in September 2018, which was five months before DHS’s request. See Pub. L. No. 115-245, 132 Stat. 2981. DoD’s need to provide counter-drug assistance under § 284 in response to DHS’s request was thus not accounted for in DoD’s fiscal year 2019 budget and is accordingly “based on unforeseen military requirements” for purposes of § 8005.
Second, Congress has not “denied” any request by DoD to fund “the item” referenced in the transfer—namely counter-drug activities funding, including fence construction, under § 284. Plaintiffs assume that § 8005 can refer to a legislative judgment concerning the appropriation of funds for a different agency under different statutory authorities. But Congress’s affirmative appropriation of $1.375 billion to CBP for the construction of “primary pedestrian fencing” in the Rio Grande Valley Sector, Pub. L. 116-6, div. A, § 230, does not constitute a “denial” of appropriations to DoD for its counter-drug activities in furtherance of DoD’s mission under § 284. The statutory language of § 8005 is located in, and directed to, DoD’s appropriations, and nothing in the DHS appropriations statute indicates that Congress “denied” a request to fund DoD’s statutorily authorized counter-drug activities, which include fence construction 10 U.S.C. § 284(b)(7). Nor did Congress otherwise restrict the use of available appropriations for that purpose. See CAA, Pub. L. No. 116-6. Section 8005 was installed to ensure that DoD would not transfer funds for budget items that “ha[d] been specifically deleted in the legislative process.” H.R. Rep. No. 93-662, at 16 (emphasis added). And because Congress never denied DoD funds to undertake the § 284 projects at issue, Plaintiffs’ claims fail.
Third, Plaintiffs argue that border fencing cannot be built using funds transferred pursuant to § 8005 because the statute “does not authorize transferring funds for ‘military construction.’” But that overstates the scope and application of the “military construction” exception in § 8005. The text of § 8005 lists the two types of “funds” and “appropriations” that may be transferred: 1) “working capital funds” or 2) “funds made available in this Act” (i.e., the DoD FY19 Appropriations Act) “for
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military functions (except military construction).” There is no violation of § 8005 here because neither the surplus Army personnel funds from which the original $1 billion was transferred, nor the counternarcotics support line of the Drug Interdiction and Counter-Drug Activities, Defense, to which the funds were transferred, constitute military construction funds. See Pub. L. No. 115-245, title I (military personnel appropriation); title VI (Drug Interdiction and counter-drug activities appropriation); see also Rapuano 4/25/19 Decl. ¶ 5, Ex. D (notice to Congress explaining in detail the sources of funds transferred between appropriations). Nor is there a contradiction between § 8005 and the definition of “military construction” for purposes of § 2808. In the context of § 8005, “military construction” is a term of art that generally refers to the Military Construction and Veterans Affairs budget (also known as the MILCON budget). Congress has previously allowed DoD to use § 8005 to transfer funds for use under its § 284 authority and to provide support for activities on the southern border.21 Congress’s failure to object to these transfers belies the claim that DoD cannot transfer funds under § 8005 while asserting that border barrier projects also constitute “military construction” under § 2808.
Plaintiffs’ Appropriations Clause Claims Must Be Dismissed (Counts III–IV). Plaintiffs also seek to challenge the Government’s plan for funding border barrier construction under the Appropriations Clause. But these counts merely recast statutory claims in constitutional terms, and “claims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’ claims.” Dalton, 511 U.S. at 473. The Government is not relying on independent Article II authority in order to undertake border construction; the actions alleged are being undertaken pursuant to statutory authority alone. The President did not seek to reallocate appropriated funds
21 See Reprogramming Application & Congressional Approvals, Sept. 2007 (Ex. 9) (DoD infrastructure project in Nicaragua pursuant to § 284 authority); Reprogramming Application & Congressional Approvals, Sept. 2006 (transferring funds to support the National Guard’s involvement in Operation Jump Start, the DoD mission in 2006-08 to support CBP’s border security efforts, which included construction efforts by the National Guard) (Ex. 10); see also Joint Statement of Rood and Gilday (describing Operation Jump Start and National Guard’s role in “building more than 38 miles of fence”) (Ex. 4).
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based upon any claim of inherent constitutional authority. Nor did the President claim that the declaration of a national emergency gave him any authority that had not been expressly conferred by Congress. Rather, the Government relies solely upon available statutory authorities—31 U.S.C. § 9705, 10 U.S.C. § 284, and 10 U.S.C. § 2808—that Congress has delegated to the Executive Branch. The outcome of this case thus turns entirely on whether the statutes authorize or proscribe the Government’s action.
In Dalton, the Supreme Court rejected the proposition that “whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-of-powers doctrine.” 511 U.S. at 471. The Court recognized that the “distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other, is too well established to permit this sort of evisceration.” Id. at 474. By asserting that actions allegedly exceeding statutory authority are, for that reason alone, violations of the Appropriations Clause, Plaintiffs’ complaint does what the Court disapproved of in Dalton. Plaintiffs assert no violation of the Appropriations Clause separate from alleged statutory violations. See First Am. Compl. ¶¶ 134–55 (describing violations of the CAA, the NEA, § 284, § 2808, and § 8005). These allegations do not state constitutional claims. See Dalton, 511 U.S. at 473–74.
Plaintiffs do not allege that the President has exercised his inherent authority under Article II of the Constitution. Nor does the President purport to do so. Despite Plaintiffs’ allusions to President Truman’s seizure of steel mills during the Korean War, First Am. Compl. ¶ 5, this case stands in sharp contrast to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), where the President’s order to the Secretary of Commerce rested solely upon “the aggregate of his powers under the Constitution,” thereby conceding a lack of statutory authority. Id. at 585–87. The Court held the action unconstitutional. Id. at 589. In his concurrence, Justice Jackson emphasized that the President had acted in the absence of congressional authorization, where his “power is at its lowest ebb” and such
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exercise of power must be “scrutinized with caution.” Id. at 637–38 (Jackson, J. concurring). That is
not the situation here. To the contrary, each action—including the Proclamation—is based on express
statutory authority. The President and the executive agencies are acting “pursuant to an express . . .
authorization of Congress,” the situation in which “his authority is at its maximum.” Youngstown Sheet,
343 U.S. at 635 (Jackson, J. concurring). Youngstown is therefore inapposite. See AFLCIO v. Kahn, 618
F.2d 784, 787 (D.C. Cir. 1979) (en banc); see also Dalton, 511 U.S. at 473.
If Plaintiffs’ allegations rise to the level of constitutional issues, then any allegation that the
President or his agents exceeded their statutory authority could be pled as a constitutional or
separation-of-powers claim. The Supreme Court has foreclosed such tactics, “distinguish[ing]
between claims of constitutional violations and claims that an official has acted in excess of his
statutory authority.” Dalton, 511 U.S. at 472. Once “the President concedes . . . that the only source
of his authority is statutory, no constitutional question whatever is raised,” and all constitutional claims
should be dismissed. Id. at 474 n.6. (internal quotation marks omitted).22
CONCLUSION For these reasons, the Court should dismiss Plaintiffs’ complaint in full under Civil Rule 12,
or grant summary judgment to the Government pursuant to Rule 56.23
22 Even if this Court were to determine that the Complaint stated a constitutional cause of action, challenges to the constitutionality of agency action must be brought pursuant to the APA. See 5 U.S.C. § 706(2)(B); see also, e.g., Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 58 F. Supp. 3d 1191, 1237–38 (D.N.M. 2014) (“While a right to judicial review of agency action may be created by a . . . constitutional provision, once created it becomes subject to the judicial review provisions of the APA unless specifically excluded.”); Harvard Pilgrim Health Care of New England v. Thompson, 318 F. Supp. 2d 1, 10–11 (D.R.I. 2004) (“The APA’s restriction of judicial review to the administrative record would be meaningless if any party seeking review based on . . . constitutional deficiencies was entitled to broadranging discovery.”). 23 Plaintiffs, in the alternative, request a preliminary injunction. Pls.’ MSJ at 48–50. As explained in this brief, Plaintiffs have no likelihood of success on the merits of their claims, and cannot even establish Article III standing, let alone the sort of irreparable injury that would warrant a preliminary injunction. Moreover, the balance of equities tips sharply in the government’s favor in light of the emergency situation at the border and the high levels of drug trafficking that prompted DHS to seek assistance from DoD pursuant to § 284.
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Dated: June 10, 2019

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
JOHN R. GRIFFITHS Director, Federal Programs Branch
ANTHONY J. COPPOLINO Deputy Director
/s/ Andrew I. Warden ANDREW I. WARDEN (IN Bar No. 23840-49) Senior Trial Counsel, Federal Programs Branch
/s/ Michael J. Gerardi Michael J. Gerardi (D.C. Bar No. 1017949)
Kathryn C. Davis Leslie Cooper Vigen Rachael L. Westmoreland Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 1100 L St. N.W. Washington, DC 20005 Tel: (202) 616-0680 Fax: (202) 616-8460 E-mail: michael.j.gerardi@usdoj.gov
Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on June 10, 2019, I electronically filed the foregoing with the Clerk of

the Court using the CM/ECF system, which will send notification of such filing to all counsel of

record.

/s/ Michael J. Gerardi Michael J. Gerardi

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 Case 3:19-cv-00066-DB Document 129 Filed 10/11/19 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

1

EL PASO COUNTY, TEXAS and

§

BORDER NETWORK FOR HUMAN

§

RIGHTS,

§

Plaintiffs,

§

§

V.

§

EP-19-CV-66-DB

§

DONALD J. TRUMP, in his official

§

capacity as President of the United States §

ofAmerica, et al.,

§

Defendants.

§

MEMORANDUM OPINION

On this day, the Court considered Plaintiffs El Paso County, Texas, ("El Paso

County") and Border Network for Human Right's ("BNHR") (collectively, "Plaintiffs") "Motion

for Summary Judgment or, in the alternative, a Preliminary Injunction" ("Motion"), filed in the

abovecaptioned case on April 25, 2019. On June 10, 2019, Defendants Donald J. Trump,

Patrick M. Shanahan, Kirstjen M. Nielsen, David Bernhardt, Steven T. Mnuchin, William Barr,

John F. Bash, and Todd T. Semonite (collectively, "Defendants") filed their "Memorandum in

Support of the Government's CrossMotion to Dismiss or for Summary Judgment, and

Opposition to Plaintiffs' Motion for Summary Judgment and a Preliminary Injunction" ("Cross-

Motion"). On July 10, 2019, Plaintiffs filed a Reply. The Defendants filed their Reply on

July 31, 2019. The Court held a hearing on the Motion and Cross-Motion on August 29, 2019.

On September 10, 2019, Plaintiffs filed their "Supplemental Brief in Light of

Notice of Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant

to 10 U.S.C. § 2808." On September 20, 2019, Defendants filed their "Supplemental Brief Addressing Border Barrier Construction Pursuant to 10 U.S.C. § 2808." On September 24,

Case 3:19-cv-00066-DB Document 129 Filed 10/11/19 Page 2 of 33
2019, Plaintiffs filed their Reply. After due consideration, the Court is of the opinion that the Plaintiffs' Motion shall be granted.
BACKGROUND This case presents questions regarding whether the proposed plan for funding border barrier construction exceeds the Executive Branch's lawful authority under the Consolidated Appropriations Act ("CAA"), the Appropriations Clause of the Constitution, the Military Construction Act 10 U.S.C. § 2808 (" 2808"), the Funding for Counterdrug Activities 10 U.S.C. § 284 (" 284"), and the National Emergency Act ("NEA"). In 2017, President Trump requested $999 million in congressional appropriations for "the first installment of the border wall." Budget Request, Pl.'s Mot. 5, ECF No. 55-6. A
Republicancontrolled Congress instead provided the Department of Homeland Security ("DHS") with $341.2 million "to replace approximately 40 miles of existing primary pedestrian
and vehicle border fencing along the southwest border." CAA, Pub. L. No. 115-31, 131 Stat. 135, 434 (2017). In 2018, President Trump requested $1.6 billion in congressional appropriations for 74 miles of new or replacement border wall. FY 2018 Budget in Brief, Pl.'s Mot. 3, ECF No. 55-7. In response, Congress appropriated $1.57 1 billion for new border security technology and new and replacement fencing in specified areas on the southern border. CAA, Pub. L. No. 115-141(2018) (to be printed at 132 Stat. 348, 616).
In January 2019, President Trump formally requested $5.7 billion for fiscal year
2019 "for construction of a steel barrier for the Southwest border." Letter to Appropriations Chairman 1, ECF No. 55-28. On February 14, 2019, Congress passed the 2019 CAA. Pub. L. No. 116-6 (2019) (to be printed at 133 Stat. 13). The CAA provides $1.375 billion for "the construction ofprimary pedestrian fencing" in "the Rio Grande Valley Sector." CAA §
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23 O(a)( 1). And it states that none of the funds appropriated by the Act can be used "for the
construction of pedestrian fencing" in any other areas of the border. Id. § 231. A component
of the CAA, § 739 of the Financial Services and General Government Appropriations Act, 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.
Pub. L. No. 116-6, div. D, § 739. On February 15, 2019, President Trump signed the CAA into
law.
Also on February 15, 2019, the President issued a proclamation declaring that a
national emergency exists at the southern border. See Presidential Proclamation on Declaring a
National Emergency Concerning the Southern Border of the United States, 2019 WL 643819, at
*1 (Feb. 15, 2019) ("Proclamation").
The proclamation itself states:
The current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency. The southern border is a major entry point for criminals, gang members, and illicit
narcotics. The problem of largescale unlawful migration through the southern border is longstanding, and despite the executive branch's exercise of existing statutory authorities, the situation has
worsened in certain respects in recent years. In particular, recent
years have seen sharp increases in the number of family units
entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal
proceedings are pending. If not detained, such aliens are often
released into the country and are often difficult to remove from the United States because they fail to appear for hearings, do not comply
with orders of removal, or are otherwise difficult to locate. In response to the directive in my April 4, 2018, memorandum and subsequent requests for support by the Secretary of Homeland Security, the Department of Defense has provided support and
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resources to the Department of Homeland Security at the southern border. Because of the gravity of the current emergency situation,
it is necessary for the Armed Forces to provide additional support to address the crisis. Proclamation No. 9844, 84 Fed. Reg. 4, 949. In addition to declaring a national emergency, the President announced a plan, to be carried out by Defendant Acting Secretaries of Defense and Homeland Security, to use funds that Congress appropriated for other purposes to build a border wall. Most relevant, President Trump directed those Acting Secretaries to use: (1) $2.5 billion of the Department of Defense ("DOD") funds appropriated for Support for Counterdrug Activities under § 284; and (2) $3.6
billion of DOD funds appropriated for "military construction projects" under § 2808. President DonaldJ. Trump's Border Security Victory, White House Fact Sheet (Feb. 15, 2019) ("Fact
Sheet"), https://www.whitehouse.gov/briefings-statements/president-donald-j -trumps-bordersecurity-victory!.
On September 3, 2019, Defendants gave the Court notice that the DOD has made a final determination to build eleven border wall projects using $3.6 billion in military
construction funds under 10 U.S.C. § 2808. Notice of DOD Decision, ECF No. 112. And on
September 5, 2019, Defendants gave notice identifying the military construction projects that Congress had already appropriated money for that will now lose funding in order to build those
eleven wall projects. Supplemental Notice of DOD Decision, ECF No. 114. Most relevant for this case: the DOD will divert $20 million away from a planned military construction project at Fort Bliss in El Paso County, and one of the new wall projects will take place in southern New Mexico, in El Paso County's close vicinity. 2808 Deferrals in United States Territories 2, ECF No. 114-1.
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LEGAL STANDARDS The parties have filed cross-motions for summary judgment. Rule 56 of the Federal Rules of Civil Procedure mandates entry of summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). Defendants agree with Plaintiffs that this case presents questions of law for the Court to resolve that do not require further factual development through discovery. In these circumstances, the Court should enter either summary judgment for Defendants based on the parties' moving papers or dismiss the First Amended Complaint under Federal Rule of Civil Procedure 12. Furthermore, the Court must dismiss a case under Federal Rule of Civil Procedure
12(b)( 1) for lack of subject matter jurisdiction if it lacks the statutory or constitutional power to
adjudicate the case. Home Builders Ass 'n ofMiss., Inc. v. City ofMadison, 143 F.3d 1006,
1010 (5th Cir. 1998). The party asserting subjectmatter jurisdiction has the burden of proving it exists by a preponderance of the evidence. See New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008).
To survive a motion to dismiss under Civil Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcrofi v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A complaint that
"tenders naked assertions devoid of further factual enhancement" is insufficient. Id. (internal citation and alteration omitted). At the summaryjudgment stage, plaintiffs "must 'set forth' by affidavit or other evidence 'specific facts" to establish their standing. Lujan v. Def of Wildlife,
504 U.S. 555, 561 (1992) (quoting Fed. R. Civ. P. 56(e)). When evaluating plaintiffs' standing,
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courts must "take as true" the factual evidence plaintiffs submit. McCardell v. Dep 't ofHous. & Urban Dev., 794 F.3d 510, 520 (5th Cir. 2015);seeLujan, 504 U.S. at 561.
Finally, Plaintiffs have requested a preliminary injunction, which is a matter of
equitable discretion and is "an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 22 (2008). "A plaintiff seeking preliminary injunctive relief must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the
public interest." Id. at 20. ANALYSIS
Plaintiffs make several claims in their Amended Complaint and seek summary judgment, as well as permanent declaratory and injunctive relief, because the President's
J Proclamation is unlawful. Considering the Supreme Court's recent decision in Donald
Trump, President of the United Sates, et al. v. Sierra Club, et al., the Court will not further address either parties' arguments regarding the statutory authority of DOD Secretary Shanahan to spend under § 8005. See No. 19A60, 2019 WL 3369425, at*l (2019). The Supreme Court granted a stay in Defendants' favor and reasoned "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 8005." Id. The DOD Appropriations Act, § 8005, authorizes
the Secretary of the Department of Defense to transfer the $2.5 billion for § 284 Support for
Counterdrug Activities. Thus, the Court finds Plaintiffs' argument that the DOD Secretary exceeded his statutory authority under § 284 unviable. In addition, the Court will not address the Plaintiffs' arguments regarding the Treasury Forfeiture Funds, as Plaintiffs abandoned these

Case 3:19-cv-00066-DB Document 129 Filed 10/11/19 Page 7 of 33
claims at oral argument. Hr'g Tr. 67-68, ECF No. 115. Apart from the aforementioned § 284 and Treasury Forfeiture Funds arguments,
Plaintiffs argue that the Proclamation exceeded the President's authority under the National Emergency Act ("NEA"). Mot. 19, ECF No. 54. Alternatively, according to Plaintiffs, the
NEA is unconstitutional if it authorizes the President's Proclamation because it runs afoul of the nondelegation doctrine and the Take Care Clause of the Constitution. Id. at 26. Next, the Plaintiffs assert that Defendants' use of the funds to build a border wall violates the CAA, the Appropriations Clause of the Constitution, and the Administrative Procedure Act ("APA"). Id.
at 33, 45-46. Defendants counter that all Plaintiffs' claims fail because Congress intended to
preclude judicial review of national emergency declarations, that the challenge presents a nonjusticiable political question, and that Plaintiffs cannot obtain equitable relief against the President. CrossMot. 20 and 23, ECF No. 95. Regarding Plaintiffs' alternative argument, Defendants argue that the nondelegation challenge to the NEA is meritless. Id. at 30. According to Defendants, Plaintiffs' claims based on the APA are unsuccessful because they have not satisfied the APA' s requirements for review of agency action and they fail on the merits. Id. at 44 and 49. Finally, Defendants argue that Plaintiffs fail to state a claim under the CAA because nothing in the CAA modifies or disables the use of the permanent statutes at
issue in this case. Id. at 54.
Prior to the Court's discussion of the merits ofthese claims and counterclaims, the
Court will address standing. Plaintiffs claim they have standing because El Paso County is the
"object" of the Defendants' Proclamation to build a border wall in the community. Mot. 10,
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ECF No. 54. Furthermore, El Paso County has suffered reputational and economic injuries. Id. at 11-13. For its part, BNHR asserts organizational standing. Id. at 14.
Defendants counter, first, that Plaintiffs cannot challenge either the Proclamation or § 284 because the alleged reputational harm is not an injury in fact, it is not fairly traceable to the Defendants' action, it is too speculative, and it is not redressable by a favorable outcome. CrossMot. 35-39, ECF No. 95. Second, according to Defendants, the pecuniary injuries are
not sufficiently concrete or imminent, and even if they were, they are not traceable to the
Proclamation and subsequent actions. Id. at 40. Third, Plaintiffs' cannot establish standing to sue under § 2808. Id. at 34.
Finally, Defendants argue that BNHR lacks standing because there is no nexus between the organizational activities and the Defendants' conduct, rather BNHR relies on an "abstract social interest." Id. at 41-42. According to Defendants, not only is "stigmatization"
not a cognizable injury for Article III standing, but other alleged harm to the quality of life of
BNHR members is not sufficiently concrete or imminent. Id. at 43. As discussed below, the Court finds that the Plaintiffs do have standing and are entitled to summary judgment based on their CAA claim.
I. PLAINTIFFS HAVE STANDING. To establish Article III standing, "a plaintiff must show (1) it has suffered an
'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81
(2000).

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At the summary judgment stage, plaintiffs "must 'set forth' by affidavit or other
evidence 'specific facts" to establish their standing. Lujan, 504 U.S. at 561 (quoting Fed. R.
Civ. P. 56(e)). When evaluating plaintiffs' standing, courts must "take as true" the factual evidence that plaintiffs submit. McCardell, 794 F.3d at 520; see Lujan, 504 U.S. at 561. Thus, El Paso County has standing, and BNHR has standing both as an organization and because its members have suffered a concrete injury.
1. El Paso County Has Standing. El Paso County has standing to sue Defendants because they are the "object" of
the border wall construction, and they have suffered concrete reputational and economic injury. Although either reputational or economic injury alone would suffice to justify El Paso County's
day in federal court, the Court will address the viability of each in turn. a. El Paso County Is the Object of the Proclamation to Build a Border Wall. When a plaintiff "challeng[es] the legality of government action," the "nature and
extent of facts that must be averred" to establish standing "depends considerably upon whether the plaintiff is [itself] an object of the action" at issue. Lujan, 504 U.S. at 561-62. If it is, "there is ordinarily little question that the action. . . has caused [it] injury, and that a judgment preventing. . . the action will redress [that injury]." Id.; see Duarte ex rel. Duarte v. City of Lewisville, 759 F.3d 514, 518 (5th Cir. 2014) ("It follows from Lujan that if a plaintiff is an object of a government regulation, then that plaintiff ordinarily has standing to challenge that
regulation.") The Supreme Court in Lujan held the plaintiffs lacked standing to challenge the
Secretary of the Interior's refusal to extend Endangered Species Act protections to animals
abroad. Lujan, 504 U.S. at 562. The Supreme Court dismissed the case because the individual

Case 3:19-cv-00066-DB Document 129 Filed 10/11/19 Page 10 of 33
plaintiffs expressed mere "some day intentions" and failed to produce evidence on summary
judgment of "concrete plans" to visit the endangered animals abroad. Id. at 564-65 (internal
quotation marks omitted). In contrast, the Fifth Circuit held that a plaintiff, a registered child sex offender, was the target of a local ordinance restricting where registered child sex offenders could live. Duarte, 759 F.3d at 518. There the plaintiff submitted evidence that, taken in the light most favorable to him, established that he had "concrete plans" to eventually reside in areas impacted by the local ordinance, unlike the plaintiffs in Lujan. Id.
The President's Proclamation is aimed at building a border wall along the southern border between El Paso County and Mexico. Thus, unlike the plaintiffs in Lujan who had only intentions of visiting a targeted area without any concrete plans, El Paso County is the
"object" or target of the government action. Even more clearly than the plaintiff in Duarte, who merely had concrete plans to eventually reside in an impacted area, El Paso County itself is the impacted area of the government's action. The Court agrees with the Plaintiffs that because El Paso County is the object of the Proclamation, it has standing to bring this challenge.
b. El Paso County's Reputation Has Been Injured. Specifically, El Paso County has shown an injury to its reputation and has had to take affirmative steps to avoid harm. According to El Paso County Judge Samaniego ("Judge Samaniego"), El Paso County takes pride in its "reputation as a safe place to live, work, and visit," and as a vibrant "bilingual, hinational, multicultural" community. Samaniego Decl. ¶IJ 3-4, ECF No. 55-26. But Defendants' actions have "falsely told the world the exact opposite:" "that El Paso County and the Southern border are crimeridden 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
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wall construction and militarization." Id. ¶ 8; see also id. ¶ 10 ("I have already heard personally from people who have a false impression that El Paso County is a dangerous place and who do not want to come here [because of the President's Proclamation]."). And according to Chief Administrator of El Paso County Keller ("Ms. Keller"), Defendants' actions amount to a message "transmitted all over the world" that "all of [the County's] strengths are actually weaknesses" and that the County is "so endangered by immigrants and [its] closeness to Mexico that [it] need{s] a wall to protect [it]." Keller Dccl. ¶ 6, ECF No. 55-25. Because of Defendants' actions, Ms. Keller now must "not only promot[e] El Paso's image, but actively defend[] it." Id. As Judge Samaniego explained, "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." Samarnego Deci. ¶ 11, ECF No. 55-25.
El Paso County asserts that they have standing because "injury to reputation can constitute a cognizable injury sufficient for Article III standing." Foretich v. United States, 351 F.3d 1198, 1211 (D.C. Cir. 2003); see Walker v. City ofMesquite, 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); see also Monsanto Co. v. Geertson Seed Far,ns, 561 U.S. 139, 154 (2010)
(finding standing based on plaintiffs' need "to take certain measures to minimize the likelihood"
of harm). In Meese, for instance, the Supreme Court held that a plaintiff had standing, based
on reputational injury, to challenge a federal law classifying films he wished to show as
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"political propaganda." Id. at 4 72-77. By forcing the plaintiff to "choose between exhibiting the films and incurring the risk that public perception of this [legal] scheme will harm [his]
reputation," the law inflicted concrete injury. Id. at 477. And in NCAA v. Governor ofNew
Jersey, which the Fifth Circuit has favorably cited for its standing analysis (see Texas v. United States, 809 F.3d 134, 156 (5th Cir. 2015)), the court held that sports leagues had standing, based on reputational injury, to challenge a state law legalizing sports gambling. 730 F.3d 208, 220 (3d Cir. 2013), rev 'd on other grounds sub nom., 138 S. Ct. 1461(2018). The leagues had shown cognizable reputational injury because "they are harmed by their unwanted association
with an activity they (and large portions of the public) disapprove ofgambling." Id. However, "[s]tanding is not available to just any resident of a jurisdiction to
challenge a government message without a corresponding action about a particular belief." Barber v. Bryant, 860 F.3d 345, 355 (5th Cir. 2017) (rejecting "purported stigmatic injury"); see also Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 284 (5th Cir. 1996) ("[Nb parent ought to be allowed to sue over a school policy with which he disagrees unless the policy has
demonstrably injured him or his child."); Chaplaincy ofFull Gospel Churches v. US. Naiy (In
re Naiy Chaplaincy), 534 F.3d 756, 764-65 (D.C. Cir. 2008) (Kavanaugh, J.) (allowing standing based on offense to a government message would "eviscerate wellsettled standing limitations"). And to assert standing, more is required than alleging a "possible future injury." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013). Finally, the Court cannot indulge "speculation about 'the unfettered choices made by independent actors not before the court" that cannot support standing. Id. at 410, 414 n. 5 (quoting Lujan, 504 U.S. at 562).
The Court agrees with Plaintiffs that the Proclamation and subsequent
government actions of obtaining funding from various sources to build a border wall between El
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Paso County and Mexico incurs the risk ofharm to El Paso County's reputation. Like the

leagues in NCAA, El Paso County has shown cognizable reputational injury on the ground that

"they are harmed by their unwanted association with an activity they (and large portions of the

of" public) disapprove

the construction of a border wall through executive action. 730 F.3d

at 220.

Defendants' attempt to distinguish Meese and NCAA which each involved "self

effectuating" statutes from the current case, which involves the Proclamation as a catalyst for the

statutory authority that appropriates the construction funds, is unpersuasive. Even though the

Proclamation is not selfeffectuating, it directly authorizes actions under other statutes that give

rise to an injury in fact. Like Foretich, reputational injury derives from an unexpired and

unretracted government action and El Paso County's "need to take. . . affirmative steps to avoid the risk of harm to {its] reputation constitutes a cognizable injury." 351 F.3d at 1213.

Furthermore, combined with the abovereasoned conclusion that El Paso County is the "object" of the government action, it is not speculative that El Paso has suffered an injury

in fact to its reputation that is traceable to the Proclamation. See supra 9. El Paso County

submitted affidavit testimony from Ms. Keller and Judge Samaniego who testified to taking

affirmative steps to avoid the risk of harm to El Paso County's reputation. See supra 10-11.

Unlike Clapper with its "highly attenuated chain of possibilities" involving five

increasinglyspeculative logical leaps between the government action under the Foreign

Intelligence Surveillance Act and the fear that their communication with foreign contacts would

be intercepted in the future, El Paso County's injury is far more direct. Clapper, 568 U.S. at

408. El Paso County is not indulging in speculation about the unfettered choices of unknown

investors or tourists, rather El Paso County's reputation has been injured because, as in Meese,

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the risk of harm to public perception is enough to constitute a concrete injury.
Finally, the Court disagrees with the Defendants' argument that El Paso County's reputational injury is selfinflicted. See Resp. 38, ECF No. 95 (citing Clapper, 568 U.s. at 408;
Zimmerman v. City ofAustin, 881 F.3d 378, 389 (5th Cir. 2018); Assoc. for Retarded Citizens of Dallas v. Dallas Cnty. Mental Health & MentalRetardation Ctr. Rd. ofTrustees, 19 F.3d 241,
244 (5th Cir. 1994)). Again unlike Clapper where the standing inquiry was particularly
rigorous because the court was asked to find the actions of the other branches of government unconstitutional, here the Court will not reach the constitutionality of the NEA nor whether use of the funds to build a border wall violates the Appropriations Clause.
Second, the Fifth Circuit in Association for Retarded Citizens ofDallas held that redirection of an organization's "resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization."
19 F.3d at 244. Here Defendants have not submitted any argument or evidence regarding El Paso County's redirection of resources to litigation or legal counseling expenses. See generally
Def.'s CrossMot., ECF No. 95. Finally, unlike the plaintiff in Zimmerman whose desire to solicit funds did not establish an intent to accept funds above the proscribed limit in the
challenged law, El Paso County has made concrete plans with objective evidence demonstrating
an investment of time and resources to combat the Proclamation. 881 F.3d at 3 89-90; see, e.g., Keller Decl. ¶J 9-11, ECF No. 5 5-25; Samaniego Decl. ¶J 11-12, ECF No. 5 5-26 ("I have spent approximately 30% of my time [as County Judge] . . . to defending El Paso's reputation.").
El Paso County's reputational injurythough alone enough for standingis also intimately tied to "a direct pecuniary injury that generally is sufficient to establish injuryinfact" to be
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addressed in the next section. KP. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010) (quotations
omitted). c. El Paso County Has Suffered Economic Harm. Any drop in the $4 million tax revenue El Paso County earns from tourism
"would significantly damage the county's financial health." Samaniego Deci. ¶ 5, ECF No. 5526). Ms. Keller explained, "[t]here is nothing more detrimental to a drive to bring in tourists than the perception that a community is chaotic and dangerous and that the tourists['] access to historical and scenic destinations will be impeded by construction." Keller Decl. ¶ 8, ECF No. 55-25; see also Samaniego Deci. ¶ 6, ECF No. 55-26 ("[T]he President's Proclamation
declaring an emergency at the Southern border is a serious threat to both tourism and economic
development because of the false and negative impression of El Paso that it creates."). Judge
Samaniego likewise emphasized that recent meetings with "local business leaders" have
indicated that Defendants' actions are "generating fears of potential investors that the community will be mired in a longterm state of chaos that includes. . . violent crime, the blight of
construction, and impediments to crossing back and forth across the border." Samaniego Decl. ¶ 11, ECF No. 55-26.
When a plaintiff suffers "a direct pecuniary injury" that, too, is generally
"sufficient to establish injuryinfact." KP. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010); see
also Texas Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir. 2006) ("economic injury is a quintessential injury upon which to base standing"). For example, a municipality's "diminish[ed] . . . tax base" constitutes injury in fact. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 110-11 (1979). That is equally true where the economic injury stems from the "loss of a nonillusory opportunity" to obtain "a benefit." Ecosystem Investment
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Partners v. Crosby Dredging, L.L.C., 729 F. App'x 287, 292 (5th Cir. 2018); see also Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) (finding standing where challenged action deprived party of "a chance to obtain a settlement that respected [its] priority" in bankruptcy).
Even if we were to view Judge Samaniego and Ms. Keller's current fears of
construction and chaos as unpersuasive, more economic harm is "certainly impending" and may constitute an injury in fact despite having "not yet materialized." SBA v. Driehaus, 573 U.S. 149, 158 (2014) (quotations omitted); LeBlanc, 627 F.3d at 122. The longer the President's Proclamation remains in effect, the more El Paso County's reputation will be tarnished in the
eyes of tourists and developers, and the more hours El Paso County officials will have to devote
to combating negative messaging, as opposed to "meeting directly with business leaders to bring business to El Paso." Samaniego DecI. ¶ 12, ECF No. 55-26.
Moreover, Defendants will divert $20 million away from a planned military
construction project at Fort Bliss in El Paso County, and one of the new wall projects will take place in southern New Mexico, in El Paso County's close vicinity. Supplemental Notice of DOD Decision 3, ECF No. 114. "Fort Bliss is the lifeblood of the El Paso economy," contributing billions of dollars and creating thousands ofjobs. Samaniego Dccl. ¶ 15, ECF. No.
55-26. Losing funds that had been appropriated for use at Fort Bliss "creates the imminent prospect of economic harm to El Paso County." Id. ¶ 16. That loss of funds also represents a missed opportunity to "obtain a benefit," which can also suffice to show injury in fact. N.E.
Associated Gen. Contractors v. City ofJacksonville, 508 U.S. 656, 666 (1993).
d. Causation and Redressability Have Been Shown.
While Defendants admit that negative impressions of the southern border or El
Paso County are associated with the Proclamation, they argue that El Paso County cannot
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demonstrate causation. CrossMot. 39, ECF No. 95. Nor can El Paso County show how a favorable decision will redress its injury of lost business and tourism. Id.
However, the causation element is satisfied because the County's reputational and economic injuries are "fairly traceable" to Defendants' actions. Bennett v. Spear, 520 U.S. 154, 167 (1997). The President's Proclamation expressly declares a "national emergency" on the
"southern border"including El Paso Countybased on its status as a "major entry point for
criminals, gang members, and illicit narcotics." Proclamation 1, ECF 55-14. And
Defendants' desired deployment of the military to build a border wall reinforces El Paso
County's image as dangerous and uninviting, while threatening to increase noise and congestion in the area. Id.; see also To Secure the Border and Make America Safe Again, We Need to Deploy the National Guard, Department of Homeland Security (Apr. 4, 2018), https://www. dhs.gov/news/20 18/04/04/secure-border-and-make-america- safe-again-we-need-deploy-nationalguard.
As El Paso County officials explained, these precise actions bear a "causal connection" to the County's reputational and economic injuries described above. Driehaus, 573 U.S. at 158; see Keller Decl. ¶ 6 ("The President's Proclamation. . . is an official government statement that damages El Paso County's ability to compete for business investment
and toism."), ¶ 10 ("Because of the President's Proclamation, we are now in the process of
strategizing how to combat a falsely negative image."), ¶IJ 12-13 (impending wall construction will create a "massive construction zone," deterring "tourism and business development"), ECF No. 55-25; Samaniego Dec. ¶ 10 ("The President's Proclamation has falsely told the world the
exact opposite of who we are and what we promote"), ¶ 16 (diversion of funds from Fort Bliss "creates the imminent prospect of economic harm"), ECF No. 55-26.
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Finally, where, as here, a plaintiff challenges government action, "[c]ausation and redressability typically overlap as two sides of a causation coin." Carpenters Indus. Council v.
Zinke, 854 F.3d 1, 6 n.1 (D.C. Cir. 2017). "After all, if a government action causes an injury,
enjoining the action usually will redress that injury." Id. That is true here. As to El Paso County's reputational injuries, enjoining Defendants' actions will allow El Paso County officials to refocus their resources on improving tourism and commerce, not defending El Paso County against Defendants' attacks. See Foretich, 351 F.3d at 1214 (invalidating government action from which "reputational injury. . . derives" "provide[s] meaningful relief'). And as to El Paso County's pecuniary injuries, enjoining Defendants' actions will help restore El Paso County's
image in the eyes of tourists and investors and forestall disruptive border wall construction.
Accordingly, El Paso County has standing to bring its claims. 2. BNHR Has Standing.
BNHR is a community organization headquartered in El Paso, Texas. Decl. of Fernando Garcia ("Garcia Decl.") ¶J 2-3, ECF No. 55-27. It consists of about 5,000 members who live and work in west Texas, metropolitan El Paso, and southern New Mexico. Id. at ¶ 4. BNHR's mission is to "organize border communities through human rights education" and
"mobilize [its] members to advocate for positive change in policies" affecting "the immigrant
community." Id. at ¶ 3. To fulfill that mission, BNHR "educate[s] [its] own members about their rights" and "train[s} them to educate and organize other members of the immigrant
community." Id. It also works to forge bonds between its members and the area's law
enforcement officials. Id. at ¶ 10. BNHR claims that the Proclamation has impaired its organization's mission and caused it to expend an additional $23,956 to combat the unlawful conduct. Id. at ¶J 16, 21; see also id. at ¶J 13, 37, ECF No. 55-27 (explaining that BNHR has
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"divert[ed] resources" away from its core mission toward "counsel[ing] members who are fearful," "organizing [its] community in opposition to the President's declaration," and "opposing the illegal [border wall] construction.").
In addition to draining and diverting resources, BNHR had to cancel the signature event, "Hugs Not Walls," for one of its "major initiatives" to build trust between the immigrant
community and law enforcement. Id. at ¶ 32. Defendants argue that there is an insufficient nexus between BNHR' s organizational activities and the Proclamation because the Proclamation does not actually inhibit BNHR from carrying out its organizational mission, neither by imposing barriers nor by neglecting a legal duty. CrossMot. 40, ECF No. 95.
"An organization has standing to sue on its own behalf if it meets the same
standing test that applies to individuals." Fowler, 178 F.3d at 356. In Havens Really Corp. v. Coleman, the Supreme Court held a "housing counseling service" whose organizational mission
included "the investigation and referral of complaints concerning housing discrimination" met
that test, enabling it to challenge defendants' "racial steering practices." 455 U. S. 363, 379 (1982). Havens Realty Corporation sent testers to an apartment complex in order to determine whether it practiced unlawful "racial steering," and subsequently sued to challenge the practice it discovered. Id. at 363. The Supreme Court found sufficient the organization's allegation that it "had to devote significant resources to identify and counteract" defendants' unlawful practices.
Id. If defendants' "practices have perceptibly impaired [the organization's] ability to provide"
its services, the Supreme Court explained, "there can be no question that the organization has suffered injury in fact." Id. "Such concrete and demonstrable injury to the organization's
activitieswith the consequent drain on the organization's resourcesconstitutes far more than
simply a setback to the organization's abstract social interests." Id.
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Applying Havens Realty, the Fifth Circuit has announced the following rule: "an

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; see also Scott v. Schedler,

771 F.3d 831, 837 (5th Cir. 2014). In Scott, the Fifth Circuit held that the Louisiana NAACP

had standing to challenge Louisiana's alleged failure to comply with the National Voter

Registration Act. 771 F.3d at 837. Because one NAACP member "devoted resources to

counter[acting] [the State's] allegedly unlawful practices" by conducting "voterregistration

drives," the NAACP "suffered injury in fact." Id.

In a similar vein, the Fifth Circuit held in OCAGreater Houston v. Texas that an

advocacy organization had standing to challenge a Texas law restricting the "interpretation

assistance that Englishlimited voters may receive." 867 F.3d 604, 606 and 612 (5th Cir.

2017). The plaintiffs expended resources to educate members about the restrictions so they

could rely on the interpreter of their choice at the polls. Id. at 612. Because the organization

"went out of its way to counteract the effect of Texas's allegedly unlawful" restrictionfor

itthe instance, by "educat[ing] voters" about

organization had suffered cognizable injury, even

if that "injury was not large." Id.

However, absent such a direct impairment on its mission caused by the challenged

action, standing does not exist whenever a public interest organization decides to spend money

opposing a governmental policy of concern or the organization suffered a "setback to [its]

abstract social interests." Id. (citing Sierra Club v. Morton, 405 U.S. 727, 739 (1972)

(explaining that "a mere interest in a problem, no matter how longstanding the interest and no

matter how qualified the organization is in evaluating the problem, is not sufficient by itself. . (internal quotations omitted)).

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The Fifth Circuit rejected a claim of organizational standing in NAACP v. City of
Kyle. 626 F.3d 233 (5th Cir. 2010). There the plaintiff tried to ground standing to challenge revised housing ordinances in a study it had commissioned regarding the impact of the revisions, as well as lobbying efforts designed to persuade the defendant municipality not to implement the revised ordinances, but did not explain how those efforts "differ from the HBA's routine lobbying activities," or "identif]jy] any specific projects that the HBA had to put on hold or otherwise curtail in order to respond to the revised ordinances." Id. at 238. The Kyle court also reaffirmed that "redirect[ing] . . . resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization."
Id. (quoting La. ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 305 (5th Cir. 2000).
Here BNHR has explained how its current expenditures differ from its routine activities and, unlike the plaintiff in Kyle, it has not merely redirected resources to litigation and legal counseling in response to the Proclamation. In normal circumstances, BNHR
dedicates its resources to "its core mission" of human rights education and "promoting immigration reform." Garcia Decl. ¶ 13, ECF No. 55-27. Because of Defendants' emergency declaration and attendant transfer of funds to build a wall, however, BNHR has had to "divert
resources" away from that core mission, and toward "counsel[ing] community members who are fearful," "organizing [its] community in opposition to the President's declaration," and
"opposing the illegal [border wall] construction." Id. at ¶J 13, 37.
In addition, BNHR has held and scheduled Proclamation-related weekend events
that it would not otherwise hold and has increased the frequency of its "Know Your Rights" presentations approximately five-fold. Id. at ¶J 14-15. It has also hired another policy consultant (costing $14,400) to deal with its increased advocacy workload in light of the
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Proclamation, and has sent delegations to discuss the Proclamation's effects with congressional members in Washington, D.C. Id. at ¶f 16, 19. In short, as the organization's Executive Director stated in his declaration, the Proclamation and Defendants' subsequent actions have "required BNHR to expend significant resources that could have, and would have, gone elsewhere," leading to a total of $23,956 in additional organizational expenses. Id. at ¶ 16, 21.
Like the organizational plaintiffs in Havens Really, OCAGreater Houston, and
Scott, BNHR has standing to challenge Defendants' actions. As shown, BNHR has gone "out
of its way to counteract" those actions by diverting resources from its traditional activities
toward "counsel[ing]" and "organizing" community members in relation to the national
emergency and border wall. OCAGreater Houston, 867 F.3d at 612; Garcia Decl. ¶f 13, 37, ECF No. 55-27. And Defendants' actions have inflicted "demonstrable injury to the organization's activities" because those actions have forced BNHR to cancel initiatives, like the
"Hugs Not Walls" campaign signature event, it would otherwise spearhead. Havens Really, 455 U.S. at 379; Garcia Dccl. ¶ 32, ECF No. 55-27.
All BNHR's organizational injuries, moreover, have a "causal nexus" to
Defendants' actions, and would be redressed if this Court were to enjoin those actions. See
Scott, 771 F.3d at 838-39. Defendants raise the same arguments regarding causation and redressability as brought up against El Paso County, but BNHR similarly will be able to refocus their resources on their core mission after summary judgment and injunction in their favor. See supra 18. Thus, BNHR has standing and this case will not be dismissed for lack of subject matter jurisdiction.
3. Plaintiffs Have Standing to Sue Under § 2808.
Finally, Defendants initially argued that Plaintiffs lacked standing to challenge §
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2808 construction because the border barrier construction projects funded under § 2808 had not
been decided. Rapuano Deci. ¶J 5-7, ECF No. 95-7. At the time of Defendants' Cross
Motion the process was still ongoing as to which specific military construction projects would be authorized. Id. But on September 5, 2019, Defendants gave notice that the DOD had made the final determination to divert $20 million away from planned construction on "Defense Access Roads" at Fort Bliss, to be used on building a wall under § 2808. Supplemental Notice
of DOD Decision 2, ECF No. 114. A federal district court recently rejected Defendant's same argument in Sierra
Club v. Trump, 379 F. Supp.3d 883, 907-08 (N.D. Cal. 2019) (reversed on other grounds). A "future" pecuniary injury may suffice so long as there is a "substantial risk that the harm will occur." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). Furthermore, though standing may rest not rest on the independent actions of third parties, it may rest on "injury produced by determinative or coercive effect upon the action of someone else." Bennett v. Spear, 520 U.S. 154, 169 (1997) (finding standing to challenge an agency's biological opinion that "ha[d] a powerful coercive effect on the agency action. . . though the action agency was
technically free to disregard the Biological Opinion... [all were] keenly aware of the virtually determinative effect of its biological opinions.")
Especially considering the most recent developments, the Court agrees with the
Plaintiffs that they have standing to challenge Defendants' use of § 2808 funds. Plaintiffs have
demonstrated a "substantial risk" that Defendants will rely on § 2808 to fund a border wall. Reply 11-12, ECF No. 101 (quoting Driehaus, 573 U.S. at 158). The Proclamation expressly
[] "invoke[s]" and "ma[kes] available" "the construction authority provided in 2808 oftitle 10."
Proclamation 1, ECF No. 55-14. And the same day the President issued his Proclamation, the
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White House identified the amount of § 2808 funds "that will be available to build the border
wall:" $3.6 billion. Facts Sheet 4, ECF No. 95-5. There is a substantial risk that the Acting Defense Secretary will follow the President's directive to use § 2808 funds to build a border wall, rather than disregard it. See Bennett, 520 U.S. at 169. The fact that the Acting Secretary is "technically free to disregard the" Proclamation is irrelevant in light of its "virtually determinative effect" on his actions. Bennett, 520 U.S. at 170.
The Government's position is made more implausible by the fact that the DOD
has taken significant steps toward building the border wall using § 2808 fundsnamely identifying the deferred projects that will serve as sources of the funding. See supra 22. That diversion of funds substantiates the County's "direct pecuniary injury" that suffices for Article III standing. LeBlanc, 627 F.3d at 122. After all, it takes funds from the "lifeblood of the El
Pasc economy," and it eliminates jobs that new construction at Fort Bliss would have created. See Samaniego Deci. ¶IJ 14-16, ECF No. 55-26. Such "economic injur[ies] [are] quintessential injur[iesj upon which to base standing." Texas Democratic Party, 459 F.3d at 586. There is a more than substantial risk that the DOD will use § 2808 funds on a border wall, at Fort Bliss's expense. Having established that Plaintiffs have standing to challenge Defendants' actions, the Court turns to the merits. II. THE PRESIDENT'S PROCLAMATION IS UNLAWFUL.
The Proclamation is unlawful because the funding plan violates the CAA
generally and specifically violates § 739. Because this disposes of the case, the Court will not address the other merits arguments raised, including the constitutionality of the Proclamation and
the NEA, nor the Appropriations Clause and Administrative Procedures Act claims.1 Following
Defendants do not repeat their arguments that Plaintiffs do not fall within the zone of interests of the CAA, and 24

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Rule 56 of the Federal Rules of Civil Procedure, this Court will enter summary judgment because "the movant [has shown] []that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex, 477 U.S. at 322-23; Curtis, 710 F.3d at 594. Defendants agree with Plaintiffs that this case presents
legal questions for the Court to resolve without the need for further factual development.
Finally, Plaintiffs have requested a preliminary injunction, which is a matter of
equitable discretion and is "an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def Council, Inc., 555 U.s. 7, 22 (2008). Defendants have countered that Plaintiffs cannot obtain equitable relief against the President. CrossMot. 20 and 23, ECF No. 95. The Court has requested additional briefing on this issue arid will reserve judgment in this regard for a later date.
1. Defendants' Use of Funds to Build a Border Wall Violates the Consolidated Appropriations Act. To resolve this case, the Court turns to one of the three golden rules of statutory
construction "established from time immemorial" that "a more specific statute will be given
precedence over a more general one." Nevada v. Dep 't ofEnergy, 400 F.3d 9, 16 (D.C. Cir.
2005) (quoting 1 Comp. Dec. 126, 127 (1894) and Busic v. United States, 446 U.S. 398, 406
(1980)). This rule "appli[es] to appropriations bills." See id. Thus, "[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." Id. (quoting 4 Comp. Gen. 476, 476
(1924)). Applying this rule, the D.C. Circuit has held, for instance, that Congress's specific
even if they did the Court agrees with the U.S. District Court for the Northern District of California, which reasoned
that when a plaintiff seeks equitable relief against a defendant for exceeding its statutory authority, the zone-ofinterests test is inapposite. Sierra Club, 379 F.Supp.3d at 910.
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appropriation of $1 million to Nevada for conducting "scientific oversight responsibilities"
precluded a more general $190 million appropriation for "nuclear waste disposal activities" from being directed to Nevada. Id.
Like the specific appropriation in Nevada, the CAA specifically appropriates $1.3 75 billion for border-wall expenditures and requires those expenditures to be made on "construction. . . in the Rio Grande Valley Sector" alone. CAA § § 230, 231. Defendants'
funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposesmilitary construction, under § 2808, and counterdrug activities, under § 284. Their
plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA. See Nevada, 400 F.3d at 16; United States v. MacCollom, 426 U.S. 317, 321 (1976).
Defendants counter by pointing out that the CAA does not modify any of the statutes at issue here and, therefore, Congress did not intend to disable the use of other available
funding authorities. See Cross-Mot. 54, ECF No. 95. The DOD Secretary may exercise his
discretion to spend because he is only cabined by the text of the appropriation. Id. (citing Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 200 (2012) (quotation omitted). In absence of CAA provisions that specifically alter the meaning or availability of "permanent statutes" like § 284 and § 2808, it cannot be inferred that Congress meant to restrict the use of other
appropriated funds for similar purposes. Id. at 54-55 (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 190 (1978) ("doctrine disfavoring repeals by implication applies with full vigor when the subsequent legislation is an appropriations measure")); see also Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1558 (D.C. Cir. 1984) ("{W]hen appropriations measures arguably conflict with the underlying authorizing legislation, their effect must be construed narrowly.")
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However, Defendants' reliance on Salazar v. Ramah Navajo Chapter is misplaced. At issue in that case is whether the Government must pay the full amount of contract support costs when Congress appropriates enough funds to pay in full any individual contractor's contract support costs, but not enough funds to cover the aggregate amount due every contractor. Salazar, 567 U.S. at 185. Consistent with longstanding principles of government contracting law, the Supreme Court held that the Government must pay each tribe's
contract support costs in full. Id. Defendants rely on dicta in this case: "[in the absence of
contrary language, the grant of a specific appropriation cannot be read to restrict the use of other appropriated funds for similar purposes pursuant to other statutory authority." CrossMot. 5455 (citing Salazar, 567 U.s. at 200), ECF No. 95.
But in Salazar the Supreme Court reasoned that because Congress merely
appropriated a lumpsum amount (for tribes to pay contract support costs) without a statutory
restriction on what could be done with those funds, a clear inference arose that Congress did not intend to impose legally binding restrictions. 567 U.S. at 200 (citing Lincoln v. Vigil, 508 U.S. 182, 192). The Supreme Court cites Lincoln v. Vigil, which underscores the conclusion that
"[t]he allocation of funds from a lumpsum appropriation is {an] administrative decision... committed to agency discretion. After all, the very point of a lumpsum appropriation is to
give an agency the capacity to adapt to changing circumstances and meet its statutory
responsibilities in. . . the most effective. . . way." Vigil, 508 U.S. at 192. However, the CAA
is not a lump sum appropriation without restrictions, and Defendants do not profess it to be such.
See CAA § 230. The CAA provides $ 1.375 billion for "the construction of primary pedestrian fencing" in "the Rio Grande Valley Sector." CAA § 230(a)(1). And it states that none of the funds appropriated by the Act can be used "for the construction of pedestrian fencing" in any of
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the five other areas of the border. Id. § 231. Moreover, in Salazar and Lincoln, the Supreme Court makes much of the fact that

the "indicia in committee reports and other legislative history as to how funds should or are

expected to be spent do not establish any legal requirements on the agency." 567 U.S. at 200

(quoting 508 U.S. at 192). Here we have far more than "indicia" or legislative history

establishing Congressional expectations as to how the funds are spent: the plain text of the CAA

restricts the amount and location of funding for border barrier construction. See CAA §
230(a)(1), 231.

Defendants reliance on Tennessee Valley Authority v. Hill is similarly inapposite.

437 U.S. 153, 190 (1978) ("doctrine disfavoring repeals by implication 'applies with full vigor

when. . . the subsequent legislation is an appropriations measure." (quoting Committee for

Nuclear Responsibility v. Seaborg, 463 F.2d 783, 785 (1971))). There the Supreme Court held

that congressional appropriations to finish a dam that would eradicate an endangered species did

Act not impliedly repeal the Endangered Species

"the most comprehensive legislation for

preservation of endangered species ever enacted by any nation." Tennessee Valley Auth., 437

U.S. at 180, 184. Defendants imply that Plaintiffs' argument requires a repeal of the Military

Construction Act and Funding for Counterdrug Activities. See CrossMot. 54-55, ECF No. 95.

It does not. See Mot. 33, ECF No. 54. Plaintiffs argue, and this Court agrees, that the

Proclamation and its use of the statutes has violated the CAA; repeal of § 284 and § 2808 is not
necessary to reach this conclusion. Id.

Finally, Defendants cite Donovan v. Carolina Stalite Co. for the proposition that

"when appropriations measures arguably conflict with the underlying authorizing legislation,

their effect must be construed narrowly." CrossMot. 55, (citing 734 F.2d 1547, 1558 (D.C.

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Cir. 1984)). However, the CAA does not conflict with any underlying authorizing legislation,
rather the Proclamation's use of other legislation to commit additional funds to border barrier
construction conflicts with the CAA. Compare CAA § 230 with § 284, 2808. Donovan relies on Tennessee Valley Authority, which is inapplicable as described above. See supra 26.
Donovan also relies on US. v. Langston, which is illustrative of the problem with
Defendants' argument in general: Congress did not need to be prescient and specifically "alter" or repeal § 284 and § 2808 in order to limit border barrier funding to the amount appropriated in the CAA. See 734 F.2d at 1558 (citing 118 U.S. 389 (1886)). InLangston, the salary of the
minister to Haiti was originally fixed at the sum of $7,500. 118 U.S. at 394. Then subsequent
acts appropriated $5,000 for his benefit, but did not contain any language to the effect that such
sum shall be "in full compensation" for those years, nor was there in either of the subsequent acts an appropriation of money "for additional pay," from which it might be inferred that Congress
intended to repeal the act fixing his annual salary at $7,500. Id. Repeals by implication are
not favored, and the Supreme Courtin 1 886was able to look to several precedents
establishing this rule specifically in the context of appropriations for public officials' salaries. Id. at 392-93 (citing US. v. Fisher, 109 U.S. 143, 146 (1883); US. v. Mitchell, 109 U.S. 146, 149 (1883)). In contrast, this case presents an unprecedented issue, albeit with a familiar solution that the Langston opinion recommends: the congressional language in the CAA itself reveals Congress's intent to limit the border barrier funding. See id. and CAA § 739. And nowhere is this made more apparent than in § 739 of the CAA detailed below.
2. In Addition, the Proclamation Violates § 739.
CAA § 739 expressly forbids Defendants' funding plan. § 739 states:
None ofthe funds made available in this or any other appropriations Act may be used to increase. . . funding for a program, project, or
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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. § 739 creates a general rule and an exception. The general rule is that "[n]one of the funds made available" in an "appropriations Act" (including the CAA) "may be used to increase funding for a program, project, or activity" that was "proposed in the President's budget request for a fiscal year." CAA § 739. The exception is that appropriations may be used to
increase such funding if that use is authorized by "the reprogramming or transfer provisions" of
an "appropriations Act." § 739 prohibits Defendants' plan to fund the border wall because the plan is
barred by that provision's general rule and the plan does not fall within its exception. Defendants' plan is barred by § 73 9's general rule, because it (1) seeks to use funds "made available in" an "appropriations Act"; (2) "to increase funding for a program, project, or activity"; (3) that was "proposed in the President's budget request for a fiscal year."
First, Defendants' plan seeks to use funds "made available in" an "appropriations Act." CAA § 739. It taps appropriated military construction funds under § 2808 and counterdrug support funds under § 284. As the White House has acknowledged, all funds have been "appropriated by Congress." Fact Sheet, https://www.whitehouse.gov/briefingsstatements/president-donald-jtrumps-border-security-victory/. The Military Construction Appropriation Acts dating back to 1982 "made available" the § 2808 military construction funds. See, e.g., Pub. L. No. 97-106, 95 Stat. 1503; see also § 2808(a) (military construction projects
"may be undertaken only within the total amount of funds that have been appropriated for
military construction"). And the DOD Appropriations Act "made available" the § 284
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counterdrug support funds. See Pub. L. No. 115-245 (2019). So while § 2808 and § 284 themselves are not appropriations act, which is why they do not fall within the § 739 exception (detailed below, infra 31), they were "made available" by an appropriation act.
Second, Defendants' plan also seeks to use these appropriations to "increase funding for a program, project, or activity." CAA § 739. Construction of a wall along the
southern border is a singular "project" under that word's ordinary meaning. See Merriam
Webster's Dictionary 932 (11th ed. 2003) (defining "project" as "a specific plan or design") Indeed, the Executive Branch has consistently referred to the wall in this manner. In the first days of his administration, the President signed an executive order stating that it is "the policy of the executive branch" 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. 8793-94, ECF No. 55-5, (2017). Likewise, on the day of the President's Proclamation, a White House fact sheet announced that the Executive Branch would use over $6 billion in additional funds to "build the border wall." Fact Sheet, https://www. whitehouse.gov/briefings-statements/president-donald-j-trumps-border-security-victory/.
Third, funding for the border wall was "proposed in the President's budget request for a fiscal year." CAA § 739. On January 6, 2019, President Trump formally requested $5.7 billion for fiscal year 2019 "for construction of a steel barrier for the Southwest border." Letter to Appropriations Chairman 1, ECF No. 55-28. And he was denied, which led to the longest government shutdown in our country's history. See Pl.'s Mot. 4-5, ECF No. 54; see also Sierra Club, 379 F.Supp.3d at 892.
Next, Defendants' funding plan is not saved by § 739's exception: the funding increases it proposes are not "change[s] . . . made pursuant to the reprogramming or transfer
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provisions of this or any other appropriations Act." Under federal law, an "appropriations Act"
is an Act whose title begins: "An Act making appropriations." 2 U.S.C. § 622(5); 1 U.S.C. § 105. Neither § 2808 nor § 284 begins with this language. § 2808 is a provision of the Military Construction Codification Act, Pub. L. No. 97-124, 96 Stat. 153 (1982), which says nothing about appropriations in its title, nor makes any appropriations in its body. And § 284 is a
provision of the National Defense Authorization Act, Pub. L. No. 114-328, 130 Stat. 2000, 2381, 2497 (2016), which by title and substance is not an "appropriations Act." Cf Pub. L. No. 115-
31, 131 Stat. 135, 229 (2017) (separate statute appropriating DOD funds). The Proclamation
violates § 739 of the CAA. CONCLUSION
El Paso County and Border Network for Human Rights have standing to sue Defendants. Because the Proclamation seeks additional funds for border barrier funding in
violation of the CAA generally and § 739 of the CAA specifically, it is unlawful. There is no genuine dispute as to any material fact, so Plaintiffs are entitled to judgment as a matter of law.
IT IS HEREBY ORDERED that Plaintiffs El Paso County, Texas, and Border Network for Human Right's "Motion for Summary Judgment or, in the alternative, a Preliminary Injunction" is GRANTED.
IT IS FURTHER ORDERED that Defendants Donald J. Trump, Patrick M.
Shanahan, Kirstjen M. Nielsen, David Bernhardt, Steven T. Mnuchin, William Barr, John F.
Bash, and Todd T. Semonite's "CrossMotion to Dismiss or for Summary Judgment, and Opposition to Plaintiffs' Motion for Summary Judgment and a Preliminary Injunction" IS DENIED.
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Case 3:19-cv-00066-DB Document 129 Filed 10/11/19 Page 33 of 33 IT IS FINALLY ORDERED that Plaintiffs El Paso County, Texas, and Border
Network for Human Right shall FILE A PROPOSED PRELIMINARY INJUNCTION specifying the scope of said injunction WITHIN TEN DAYS OF THIS MEMORANDUM OPINION and then Defendants Donald J. Trump, Patrick M. Shanahan, Kirstjen M. Nielsen, David Bernhardt, Steven T. Mnuchin, William Barr, John F. Bash, and Todd T. Semonite will be given an opportunity to RESPOND WITHIN FIVE DAYS.
SIGNED this /1 day of October 2019. HØIONORABLE DAVID BRIONES
SENI UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

EL PASO COUNTY, TEXAS 500 E. San Antonio El Paso, TX 79901, and
BORDER NETWORK FOR HUMAN RIGHTS 2115 N. Piedras St El Paso, TX 79930,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
MARK T. ESPER, in his official capacity as Secretary of Defense,
KEVIN McALEENAN, in his official capacity as Acting Secretary of Homeland Security,
TODD T. SEMONITE, in his official capacity as Commanding General United States Army Corps of Engineers,
DAVID BERNHARDT, in his official capacity as Acting Secretary of the Interior,
STEPHEN T. MNUCHIN, in his official capacity as Secretary of the Treasury,
Defendants.

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Civil Action No. 3:19-cv-66-DB

) ) ) ) ) )

[PROPOSED] ORDER GRANTING A DECLARATORY JUDGMENT AND PERMANENT INJUNCTION

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Case 3:19-cv-00066-DB Document 133 Filed 10/24/19 Page 2 of 2
[PROPOSED] ORDER Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, the Court declares that Proclamation 9844 of February 15, 2019, 84 Fed. Reg. 4949, is unlawful to the extent it authorizes border wall construction using funds appropriated for “military construction” under 10 U.S.C. § 2808. The Court further declares that Defendants’ border wall construction using funds appropriated for “military construction” under 10 U.S.C. § 2808, and “support for counterdrug activities” under 10 U.S.C. § 284, is unlawful. Defendants Mark T. Esper, in his official capacity as Secretary of Defense, Kevin McAleenan, in his official capacity as Acting Secretary of Homeland Security, Todd T. Semonite, in his official capacity as Commanding General of the United States Army Corps of Engineers, David Bernhardt, in his official capacity as Acting Secretary of the Interior, and Steven T. Mnuchin, in his official capacity as Secretary of the Treasury, and all persons acting under their direction, are enjoined from border wall construction using funds appropriated for “military construction” under 10 U.S.C. § 2808, and “support for counterdrug activities” under 10 U.S.C. § 284. SO ORDERED this ________ day of October, 2019.
Hon. David Briones Senior United States District Judge

 
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