FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

S T A T E O F C AL I F O R

N I A ; S T A T E O F C O L O R AD O ; S T A T E O F C ON NE C T I C U T ; S T A T E O F D E LAW AR E ; S T AT E O F H AW

AI I ; S T A T E O F M A I

NE ; S T A T E O F M I N NE S O T A ; S T A T E O F N E W J E R S EY ; S T A T E O F N EW M EX I C O ; S T A T E O F N EV AD A ; S T A T E O F N E W Y O R K ; S T A T E O F O R

E G O N ; C O MM ONWEAL T H O F V I RGI N I A ; S T A T E O F I L L I

N O I S ; S T A T E O F M AR YLA ND ; D A N A N E S S E L , A T T O R NEY G E NE R AL , ON B E HAL F O F
T H E P E O P L E O F M I C H I G A N ; S T AT E O F W I S C ON S I

N ; S T A T E O F M A S S A C HU S E T T S ; S T AT E O F V E R M ON T ; S T A T E O F RH O D E I S LA ND , Plaintiffs-Appellees
,

v

.

D ON AL D J. T R

UM P , in his official capacity as President of the United States of Am erica; UN I T E D S T A T E S
O F A ME R

I C A ; U N I T E D S T A T E S D E P A R T ME N T O F D E F E

N S E ; M A

R K T. E S P E R , in his official capacity as Acting Secretary of Defense; RY A N D. M C C AR

T HY , senior official No. 19-16299

D.C. No. 4:19-cv-00872- HSGS T A T E O F C AL I F O R N I A V

. T R

UMP 2

perform ing the duties of the Secretary of the Army; R I C H AR D V. S P E N C E R , in his official capacity as Secretary of the Navy; H EA T H E R W I L S ON , in her official capacity as Secretary of the Air Force; U N I T E D S T A T E S D E P A

R T ME N T O F T H E T R EA S UR Y ; S T EVE

N T E R NE R M N U C H I N , in his official capacity as Secretary of the Departm ent of the Treasury; U.S. D E P A

R T ME N T O F T H E I N T E R I O R ; D A V I D B E R NHAR D T , in his official capacity as Secretary of the Interior; U.S. D E P AR

T ME N T O F H O ME LA

ND S E C UR

I T Y ; C H AD F. W O L F , in his official capacity as Acting Secretary of Hom eland Security, Defendants-Appellants.S T A T E O F C AL I F O R N I A V

. T R

UMP 3

S T A T E O F C AL I F O R

N I A ; S T A T E O F N E W M EX I C O , Plaintiffs-Appellants
,

v

.

D ON AL D J. T R

UM P , in his official capacity as President of the United States of Am erica; UN I T E D S T A T E S
O F A ME R

I C A ; U N I T E D S T A T E S D E P A R T ME N T O F D E F E

N S E ; M A

R K T. E S P E R , in his official capacity as Acting Secretary of Defense; RY A N D. M C C AR

T HY , senior official perform ing the duties of the Secretary of the Army; R I C H AR D V. S P E N C E R , in his official capacity as Secretary of the Navy; H EA T H E R W I L S ON , in her official capacity as Secretary of the Air Force; U N I T E D S T A T E S D E P A

R T ME N T O F T H E T R EA S UR Y ; S T EVE

N T E R NE R M N U C H I N , in his official capacity as Secretary of the Departm ent of the Treasury; U.S. D E P A

R T ME N T O F T H E I N T E R I O R ; D A V I D B E R NHAR D T , in his official capacity as Secretary of the Interior; U.S. D E P AR

T ME N T O F H O ME LA

ND S E C UR

I T Y ; C H AD F. W O L F , in his official capacity as Acting Secretary of Hom eland Security, Defendants-Appellees. No. 19-16336

D.C. No. 4:19-cv-00872- HSG

OPINIONS T A T E O F C AL I F O R N I A V

. T R

UMP 4

Appeal from

the United States District Court for the Northern District of California H aywood S. Gilliam , Jr., District Judge, Presiding

Argued and Subm itted November 12, 2019 San Francisco, California

Filed June 26, 2020

Before: Sidney R. Thom as, Chief Judge, and Kim McLane W ardlaw and Daniel P. Collins, Circuit Judges.

Opinion by Chief Judge Sidney R. Thom as; Dissent by Judge CollinsS T A T E O F C AL I F O R N I A V

. T R

UMP 5

SUMMARY *

Appropriations

The p anel affirm ed the district court’s judgm ent holding that budgetary transfers o f funds for the construction of a wall

on the southern border of the United States in California and New Mexico were n ot au th o r ized under the Departm ent o f Defense Appropriations Act of 2019.

Section 8 0 0 5 and Section 9002 of the Act (collectively “Section 8005”) w as invoked to transfe r $ 2. 5 billion o f Departm ent of Defense funds appropriated for other purposes to fu n d border w all construction. Sixteen states, including California and Ne w Mexico, filed suit challenging the Executive Branch’s funding of the border wall. The district
court granted California and New Mexico’s m otion for p artial

summ ary judgm ent, and issued declaratory relief, h olding the Section 8005 transfer of funds as to the El Centro and El Paso sectors unlawful.

The panel held that California and N ew M e xico established the requisite Article III standing to challenge the federal defendants’ actions.

Conc e rn i n g the injury in fact elem ent o f standing, the panel h eld that California and New Mexico alleged that the actions of the federal defendants will cause particularized and

c o n c rete injuries in fact to the environm ent and wildlife of their respective states as well as to their sovereign interests in

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.S T A T E O F C AL I F O R N I A V

. T R

UMP 6

enforcing their environm ental laws. First, the panel held that California an d Ne w Mexico each provided sufficient evidence, if taken as true, that would allow a reasonable factfin d e r to conclude that both states would suffer injuries in fact to their environm ental interests, and in particu lar, to protect endangered species within their borders. Second, the panel also held that California and N ew Mex ico d em onstrated that border wall construction i nj ured their quasi-sovereign interests by preventing them from enforcing their environm ental laws.

Concerning the causation elem ent for standing, the panel held that California alleged environm enta l a n d sovereign injuries that were fairly tra ce able to the federal defendants’ conduct. Th e p a n e l held that with respect to m ost of the environm ental injuries, c au s a tion was apparent. The panel also concluded that the c aus ation requirem ent was likewise satisfied f or the injuries to Ca l ifornia’s and New Mexico’s quasi-sovereign interests.

Concerning th e r e dressability elem ent of standing, the panel held that a ruling in California and New Mexico’s favor would redress their h arm s. W ithout the Section 8005 f unds, the Departm ent of D efense would have inadequate funding to finance construction of the proje c t s , and this would prevent both the alleged and environm ental and sovereign injuries.

The p a n el h eld that California and N ew Mexico had the right to challenge the transfer of funds under the Adm inistrative Procedure Act (“ APA” ). Specifically, the panel held that Section 8005 im posed c e rtain obligations
upon the Departm ent o f Defense, which it did n o t satisfy. The panel further held that California and New Me x i c o , as aggrieved parties, could pursue a rem edy under the A P A, asS T A T E O F C AL I F O R N I A V

. T R

UMP 7

long as they fell within Section 8005’s zone of interests. The panel held that California and New Mexico were suitable challengers because their interests were congruent w ith those of Congress and were not inconsistent with the purposes i mp l i cit in the statute. The panel concluded that C aliforn ia and New Mexico easily fell within the zone of interests o f Section 8005.

The p an e l held that Section 8005 did not authorize the Dep artm ent of Defense’s b udgetary transfer to fund construction of the El Paso and El Ce n tro Sectors. Spec ifi c ally, the panel concluded that the district court correctly d eterm ined that the border wall was not an unforeseen m ilitary requirem ent , and that funding for the wall had been denied by Congress. Absent such statutory authority, the E xecutive Branch lacked independent constitutiona l authority to transfer the funds at issue here. The panel concluded that the transfer of funds w as unlawful, and affirm ed the district court’s declaratory judgm ent to California and New Mexico.

Finall y , th e panel declined to reverse the district court’s denial of California and New Mexico’s request for perm anent injunctive relief, without prejudice to renewal.

Judge Collins dissented. He agreed that at least California established Article III standing, but would hold that the States lacked any cause of action to challenge the transfer of funds under the APA or otherwise. E ven assum ing that they had a

cause of action, Judge Collins would conclude that the transfers were lawful and reverse th e district court’s p artial judgm ent for the States and rem and for entry of pa rtial

summ ary judgm ent in favor of the defendants.S T A T E O F C AL I F O R N I A V

. T R

UMP 8

C OUNSEL

H. Thom as Byron III (argued), Anne Murphy, and Courtney L. Dixon, Appellate Staff; Hashim M. Mooppan a n d J am es M. Burnham
, Deputy Assistant A ttorneys General; Joseph H

. Hu n t , Assistant Attorney General; Civil Division, Unite d States Departm ent of Justice, W ashingto n , D .C.; for Defendants-Appellants/Cross-Appellees.

Dror Ladin (argued), No o r Zafar, Jonathan H afetz, Hina Sham si, and Om ar C. Jadwat, Am erican C iv il L ib erties Union Foundation, New York, New Y ork; Cecillia D. W ang, Am eric an C ivil L iberties Union Foundation, San Francisco, California; Mollie M. L ee and Christine P. Sun, Ame r i can Civil L iberties Union Foundation of Northern California Inc., San Francisco, California; David Donatti and Andre I. S egura, Am erican Civil L iberties Unio n F o un d atio n o f T ex a s, Houston, Texas; Sanjay Narayan and Gloria D. Sm ith, Sierra Club Environm ental Law Program , Oakland, California; for Plaintiffs-Appellees.

Douglas N. Letter (ar gued), Todd B. Tatelm an, Megan Barbero, Josephine Morse, and Kristin A. Shap i r o, United S tates H o u se o f R epresentatives, W ashington
, D

. C

. ; C arter G

. Phillips, Virginia A. Seitz, Joseph R. Guerra, and Christopher A. Eiswerth, Sidley Au st in LLP, W ashington, D .C.; for Am icus Curiae United States House of Representatives.

J ames F. Z ahradka II (argued), Brian J. Bilford, Sparsh S. Khandeshi, Heather C

. Leslie, Lee I. Sherm an, and Janelle M. Sm ith, Deputy Attorneys General; Michael P. Cayaban, C hristin e C hu an g , an d E d

w a r d H

. O choa, Superv isin g D ep uty Attorneys General; Ro b ert W

. Byrne, Sally Magnani, and Michael L

. N ewm an, S enior A ssista nt Attorneys G eneral;S T A T E O F C AL I F O R N I A V

. T R

UMP 9

X av ier B ecerra, A tto rn ey G en eral; A tto rn ey G en eral’s O f f ice, Oakland, California; Jennie Lusk, Civil Rights Bureau Chief; Nicholas M. Sydow, Civil Appellate Ch i e f; Tania Maestas, Chief Deputy Attorney General; Hector Balde r as, Attorney Gener al; Office o f the Attorney General, Santa Fe, New Mexico; for Am ici Curiae States o f Ca l ifornia and New Mexico.

Christopher J. Hajec, Imm igration Refo rm Law Institute, W ashington, D.C.; Lawrence J. Joseph, W ashington, D.C.; for Am icus C uriae United States Representative Andy Barr.

John W

. Howard, George R. W entz Jr., Richard Seam on, and D. C olton Boyles, Da v i llier Law Group LLC, Sandpoint, Ida ho, for Am icus Curiae State o f Arizona House o f Representatives Federal Relations Com m ittee.

Richard P. Hutchis o n , Landm ark Legal Foundation, Kansas City, Missouri; Micha e l J

. O’Neill and Matthew C. Forys, Landm ark Legal F oundation, Le e sburg, Virginia; for Am ici Curiae Angel Fa mi lies, Sabine Durden, Don Rosenberg, Brian McAnn, J u dy Zeito, Maureen Mulroney, Maureen Laquerre, Dennis Bixby, and Advocates for Victim s of Illegal Alien Crim es.
Douglas A. W inthrop, Arnold & Po rt er Kaye Scholer LLP, S an F ran c isco, California; Irvin B. Nathan, Robert N. W e in er, Andrew T. Tutt, Kaitlin K onkel, and Sam u el F. Callahan, Arnold & Porter Kay e Scholer LLP, W ashington, D.C.; for Am ici Curiae Form er Mem bers of Congress.

Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and Ash win P. Phatak, Constitutional Accountability Center, W ashington, D.C., f

or Am ici Curiae Federal Courts S cholars.S T A T E O F C AL I F O R N I A V

. T R

UMP 10

Steven A. Zalesin, Adeel A. Mangi
, a n d Am ir Badat, Patterson Bel kn ap We bb & Tyler LLP, New York, New York, for Am ici Curiae 75 Religious Organizations.

Harold Hongju Koh, Peter Gruber R u le of Law Clinic, Yale Law School, New Haven, C onnecticut; Kathleen R. Hartnett, B o ies S ch iller Flexner LLP, San F ran cisco
, C alif o rn ia; P h illip Spector, Me s s ing & Spector LLP, Baltim ore, Maryland; for Am ici Curiae Form er United States Governm ent Officials.

Sam uel F. Daughety and Suzanne R

. S chaeffer, Dentons US LLP, W ashington, D .C.; Joshua O. Rees, Acting Attorney General, Tohono O’Odham N ation, Sells, Ari zona; for Am icus Brief Tohono O’Odham Nation.S T A T E O F C AL I F O R N I A V

. T R

UMP 11

OPINION

THOMAS, Chief Judge:

This appeal presents the q uestion o f whethe r the Departm ent of Defense Appropria tions Act of 2019 authorized the De p a rt m ent of Defense (“DoD”) to m ake budgetary transfers from funds appropriated by Congress to it for other purposes in order to fund the construction of a wall on the southern b order of the United States in California and New Mexico. W e conclude th at the transfers were not authorized by the term s of the Act, and we affirm the judgm ent of the district court. 1

I

The P reside n t has long supported the construction of a border wall on the southern border b etween the United States

a n d Mexico. Since the President took office in 2017, however, Congress has repea t e dly declined to provide the

am ount of funding requested by the President.

The debate over border wall f unding cam e to a h ead in Decem b er of 2018. During nego t i a t i ons to pass an appropriations bill for th e rem ainder of the fiscal year, the Presi d ent announced that he would not sign any legislation that did not allocate substantial funds to b o r d er wall construction. On January 6, 2 019, the White House requested $5.7 billion to fu n d the construction of approxim ately

1 There are c o m

p a n io n appeals concerning som e o f the sam e issues in Sierra Club, et. al. v. Trump et. a l.
, Nos. 19-16102 and 19-16300. Those appeals will be the subject of a separate opinion.S T A T E O F C AL I F O R N I A V

. T R

UMP 12

234 m iles of new p hysical barrier. 2 Budget negotiati ons concerning bo rder wall funding reached an im passe, triggering the longest p artial governm ent shutdown in United States history.

After 35 d ays, the governm ent shutdown ended wi thout

an agreem ent to provide increased border wall funding in the

am ount requested by the President. On February 14, 2 0 1 9, Congres s p assed the C onsolidated Appropriations Act o f 2019 (“CAA”), which included the Departm ent of Hom eland Se c urity Appropriations Act for Fiscal Year 2019, Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019). The CAA appropriated o nly $1.375 billion for border wall construction, specifying that the funding was for “the constru ction o f prim ary pedestrian fencing

. . . in the Rio Grande Valley Sector.” Id. § 230(a)(1). T he President signed the CAA into law the following day.

The President concurrently issued a pro c l a m ation under the National E m erge n cies Act, 5 0 U.S.C. §§ 1601–1651, “declar[ing] that a national em ergency exists at the southern border of the United States.” P roclam ation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019). 3 An accom panying White House Fact Sheet explained that the President w as “ u sing his legal authority to take Executive actio n t o secure additional resources” to b uild a border wall, and it specified that “the

2 Som e form of a physical barrier already exists at the site of som e o f the construction projects. In those places, construction would r einforce o r rebuild the existing portions.

3 Subsequently, Congress adopted t wo joint resolutions term inating the President’s em ergency declaration pursuant to its au th o rity under 50 U.S.C

. § 1622(a)(1). The President vetoed each resolution, and Congress failed to override these vetoes.S T A T E O F C AL I F O R N I A V

. T R

UMP 13

Adm inistration [had] so far identified up to $8.1 billion that [would] b e available to build the border wall once a national

em ergency [was] declared and addi tional funds [ were]
reprogramm ed.” The F act Sheet identified sev er a l funding
sources, including $2.5 billion of Departm ent of De fe nse (“DoD”) funds that could b e transferred to pr o v i de support for counterdrug activities of oth e r federal governm ent agencies under 10 U.S.C. § 284 (“Section 284”). 4 Executive Branch agencies began using the funds identified by the Fact Sheet to fund b order wall construction. On February 2 5, the Departm ent of Hom eland Security (“DHS”) subm itted to DoD a request for Section 2 84 assistance to block drug

sm uggling corridors. In partic ul ar, it requested that DoD fund “approxim ately 218 m iles” o f wall using this authority,

com prised of num erous projects, including the El Centro Sector Project 1 in C alifornia and the El Paso Sector P roject 1 in New M e x i co, as relevant to this case. On March 25, Acting Secretary of Defense Patrick S h an ah an ap p ro v e d three b o rd er w a ll co nstruction projects: Yum a Sector P ro jects 1 an d 2 in Arizona and El Paso Se ct o r Pr oject 1 in New Mexico. On May 9, Shanahan approve d four m ore border wall construction projects: El Centro Sector Project 1 in California and Tucson Sector Projects 1–3 in Arizona.

4 Section 2 84 authorizes the Secretary of Defense to “provide support for the counterdrug activities

. . . of any other departm ent or agency of the Federal Governm ent” if it re c e i ves a request f rom “the official who h as responsibility for the counterdrug activiti e s

. ” 10 U.S.C. §§ 284(a), 284(a)(1)(A). The statute p erm i t s , am o ng other things, support f o r “[c]onstruction of r oads and fences and installation of l i ghting to block dru g s m uggling corridors across international boundaries o f the United States.” Id. § 284(b)(7). D oD’s provision of support for other a g en cies pursuant to Section 284 does not re qu ire the declaration o f a national

em ergency.S T A T E O F C AL I F O R N I A V

. T R

UMP 14

Because these projects were undertak e n to construct barriers and roads in fu rth erance of border security, Acting Secretary of Hom eland Security Ke vin McAleenan invoked the authorit y g r anted to him by Section 102(c) of the Illegal Imm ig r a tion Reform and Imm igrant R esponsibility Act o f 1996 (“I I RIRA”), Pub. L. No. 104-208, Div. C, § 102(c), 110 Stat. 3009-546, 3009-554 (1996) (codified as am ended as

a note to 8 U.S.C. § 1 103), to “waive all legal requirem ents” that would otherwise apply to the borde r wall construction projects “to ensure

. . . expeditious construction

. ” 84 Fed. Reg. 17185-01 (April 24, 2 019). On April 24, with respect to the El Paso Sector, he “waive[d] in their entirety, with respect to the construction o f physical barriers and roads” a long list of statutes, “including all fe d eral, state, or other laws, regulation s, and legal requirem ents of, deriving from
, o r rel a te d to the subject of” “[t]he National E nvironm ental Policy Ac t” “(42 U.S.C. 4321 et seq.),” “the Endangered Species A ct” “(16 U.S.C. 1531 et seq.),” “the Federal W ater Pollution Control Act ( c o mmonly referred to as the C lean W ater A ct (33 U.S.C. 1251 et seq.)),” and “the Clean A ir A ct (42 U.S.C. 7401 et seq.).” Id. He executed a sim ilar Section 102(c) waiver with respect to the El Centro Sector on May 15. 84 Fed. Reg. 21800-01 (May 15, 2019).

At the tim e Sha n a h a n authorized these border wall construction projects, th e counter-narcotics support account contained only $238,306,000 in uno b li gated funds, or less than one tenth of the $2.5 bi llion needed to com plete those projects. To provide th e support requested, Shanahan invoked the b udgetary transfer authority fo und in Section 8005 of the 2019 DoD Appropriations Act to transfer funds from other DoD appropriations accounts into the Section 284 Drug Interdiction and Counter-Drug Activi t i es-Defense appropriations account.S T A T E O F C AL I F O R N I A V

. T R

UMP 15

For the first set of projects, Shana ha n transferred $1 billion from Army personnel funds. F or the second set o f projects, Shanahan transferred $1.5 billion from “various

excess appropriations,” which contained fun d s originally appropriated for purposes such as m odification of in-service

m issiles and support for U.S. allies in Afghanistan.

As authority for the transfers, DoD specifically relied on Section 8005 and Section 9002 of the Departm ent of Defense Appropriations Act of 2019, Pub. L

. No

. 1 1 5

- 245, 132 Stat. 2981 (2018) (“Section 8005”). 5

Section 8005 provides, in relevant part, that:

Upon determ ination by the Sec retary o f Defense that su c h action is necessary in the national interest, he m ay, with the approval o f the Office of Managem ent and Bu d get, transfer not t o exceed $ 4,000,000,000 o f working cap ital funds o f the Departm ent o f Defense or f

unds m ade available in this Act to the Departm ent of Defense for m ilit a ry functions (except m ilitary construction) between such appropriati on s or funds or any subdivision thereof, to be m erged with and to be available f

or the sam e purposes, and for the

5 For sim plicity, because t

he transfer authorities are both subject to Se c t i o n 8005’s substantive requirem ents, this opinion refers to these authorities collectively as Secti o n 8 0 0 5
, as did the district court and the

m otions panel. Our holding in thi s case therefore extends to both the transfer of funds pursuant to Section 8005 and Section 9002.S T A T E O F C AL I F O R N I A V

. T R

UMP 16

sam e tim e period, as the appropriation or fund to which transferred. 6

Section 8005 also explicitly lim its when its authority can be invoked: “Provided
, That such authority to tr a n sfer m ay not be used unless for higher priority item s, b ased on unforeseen m ilitary requirem ents, than those for which originally appropriated and in no case where the item for which funds are requested has b een denied by the Congress.”

Although Section 8005 does n ot require form al
cong ressional approval of transfers, historically DoD h ad adhered to a “gentlem an’s agreem ent,” by wh ich it sought approval from the relevant congressional comm ittees before transferring the funds. DoD deviated from this pract i c e here—it did not request congressional approval before authorizing the transfe r. Further, the House Comm ittee on Arm ed Services and the House Comm ittee on Appropriations both wrote letters to D oD form ally disapproving of the
reprogramm ing action after the fact. Moreover, with respect to the second tr a n sfer, Shanahan expressly directed that the transfer of funds was to o ccur “without regard to com ity6 S ecti on 9002 provides t hat: “ Upon the determ ination of the Secretary of D efense that such action is necessary in the national interest,
th e Se cretary m ay, with the approval of t he Office of Managem ent and Bu d g et , t ransfer up to $2,000,000,000 b etween the appropriations or f un d s

m ade available t o the D epartm ent of Defense in this title: Provided
, That the Secretary shall notify the Congress p ro m ptly of each t

ransfer m ade pursuant to the authority in this section: Provided further
, That the authority p rovided in this section is in addition to any other transfer authority available to t

he Departm ent of D efense and i s subject t o the

sam e t erm s and conditions as the au th o ri ty provided in section 8005 o f this Act.”S T A T E O F C AL I F O R N I A V

. T R

UMP 17

based policies that require prior approval from congressional

comm ittees.”

In the end, Section 8005 w as invoked to transfer $2.5 billion o f DoD funds appropriated for other p urposes to fund border wall construction.

II

On Fe b ruary 18, 2019, sixteen states, 7 including California and New Mexico, filed a la ws uit challenging the Executive Branch’s f

unding of the b order wall. T he States pled theories of violation of the constitutional separation o f
powers, violation of the Appropriations Clause, ultra v i r es action, violations of the Adm inistrative Procedure A ct ( “ APA”), and violations of the National E nvironm ental Policy Ac t ( “NEPA”). The next day, Sierra Club and the Southern Border Comm uniti e s Coalition filed a separate action challenging the sam e border wall funding. 8

7 S pecifically, the action was filed by the following states: California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, New York, Ore g o n , the Comm onwealth of Virginia, and Attorney General Dana Nessel on behalf of the People of Michigan. The com plaint was later am ended to add the fo llowing states: Rhode Island, Verm o nt, W isconsin, and the Comm onweal th of Massachusetts. State parties are collectively referenced as “the States.”

8 Both lawsuits nam ed as d efe n d a n ts D onald J. Trum p, President o f the United S tates, Patrick M. Sh an a h an, form er Acting S ecretary o f Defense, Kirstjen M. N i el sen , f o r m e r S ecr et ar

y of Hom eland Security, and Steven Mnuchin, Secretary of the Treasury i n their offic i a l c apacities, along w i th num erous other Executive Branch officials (collectively referenced as “the Federal Defendants”).S T A T E O F C AL I F O R N I A V

. T R

UMP 18

The States subsequently filed a m oti o n requesting a prelim inary injunction to enjoin the tran s fe r of funds to construct a b order wall in New Mexico’s El Paso Sector. The district court held that New Mexico had sta n d i n g, but it denied without prejudice the prelim inary injunction m otion. The court based part o f its reasoning on the fa c t th at it h ad already im

posed a prelim inary injunction in the S ierra Club action such that the grant o f a prelim inary injunction in favor of the States wo u l d b e duplicative. California subsequently filed another m otio n r e q

uesting a prelim inary injunction to enjoin the transfer o f funds to con s tru c t a border wall in California’s El Centro Sector.

Ca l i fornia and New Mexico then m oved for p artia l

summ ary judgm ent o n their declaratory judgm ent action as to the E l Centro and El Paso Sectors, and additionally m oved for

a perm anent injunction to enjoin funding the construction o f these sectors. The Federal De fendants filed a cross-m otion for summ ary judgm ent on all c l ai ms. The district court granted California and New Mexico’s m otion f o r p artia l

summ ary judgm ent, and issued declaratory relief, h olding the Section 8005 transfer of funds as to the El Centro and El Paso
sectors unlawful. The district court denied th e Federal Defendants’ m otion for summ ary judgm ent.

Th e c o urt also d enied California and New Mexico’s

mo t i o n f or a perm anent injunction, this tim e basing i t s reasoning, in p art, on the perm anent injunction ordered by the district court in the com p anion Sierra Club case. 9

9 The Suprem e Court subsequentl y g ra nted a stay of the district court’s perm anent injunction in the se p a ra t e com panion case, Trump v. Sierra Club , 140 S. Ct. 1 (2019) (m em .).S T A T E O F C AL I F O R N I A V

. T R

UMP 19

The Federal Defendants re quested that the district court certify its o rder as a final judgm ent for imm ediate ap p eal pursuant to F ed. R. Civ. P. 54(b). In response, the district
court considered the appropriate factors, m ade ap p ropriate findings, and certified the order as final pursuant to Rule 54(b). See Pakootas v. Teck Cominco Metals, L td.
, 905 F.3d 565, 5 74 (9th Cir. 2018) (listing factors). The Federal Defendants tim ely appealed the district court’s judgm ent, and the States tim ely cross-appealed the district court’s denial o f injunctive relief. The district court’s R ule 54(b) certification

was proper; therefore, we h ave jurisdiction under 28 U.S.C. § 1291. See Durfey v. E. I

. Du Pont De Nemours & Co.
, 59 F .3d 121, 124 (9th Ci r

. 1 995) (appeal is proper upon certification as a final judgm ent pursuant to Rule 54(b)).

W e review the existence of Article III standing de n ovo

. See Califor n ia v. U.S. Dep’t o f Health & Human Servs.
, 941 F.3d 410, 420 (9t h Ci r. 2019). W e review questions o f

s ta tu t o ry interpretation de novo

. S ee United States v. Kelly
, 874 F.3d 1037, 1046 (9th Cir. 2017).

III

Ca l i fo rnia and N ew Mexico h ave Article III standing to pursue their claim s. In order to establish Article III standing,

a plaintiff m

ust have (1) suffered an injury in fact, (2) that is fairly tracea ble to the challenged conduct of the defendant, and (3) that is likely to b e r e dr essed by a f avorable judicial decision. L ujan v. Def

s

. of Wildlife
, 504 U.S. 555, 560–61 (1992). 1 0 At summ ary judgm ent, a p lainti ff c a nnot rest on

10 T he Federal Defendants do no t challenge California’s and New Mexico’s Article III standing i n these ap p ea ls. However, “the court h as

an independe nt obligation to assure that standing exists, regardless o fS T A T E O F C AL I F O R N I A V

. T R

UMP 20

m ere allegatio n s , but “m ust set f orth b y affidavit or other evidence specific facts.” Clap per v. Amnesty Int’l USA
, 56 8 U. S. 398, 412 (2013) (internal quotations and citations

om itted). T hese specific facts, set forth “for purposes of the

summ ary judgm ent m otion[,] will be taken to be true.” Lujan , 504 U.S. at 561.

States are “entitled to special solicitud e in our standing analysis.” Massachusetts v. EPA
, 549 U.S. 497, 520 (2007). As a quasi-sovereign, a state “has an interest independent o f and behi n d the titles o f its citizens, in all the earth and air within its dom ain.” Georgia v. Te n n. Copper Co.
, 206 U.S. 230, 237 ( 1 9 07 ). Thus, a state m ay sue to assert its “quasisovereign interes t s in the health and well-being—both physical and econom ic—of its residents in genera l

. ” Alfred L. S n app & Son, Inc. v. Puerto R ico
, 458 U.S. 592, 6 0 7 (1982). In addition, “[d]istinct from but related to the g eneral well-being of it s residents, the State has an interest in securing o bservance of the term s under which it participates in the federal system .” Id

. at 607–08.

A

Here, California and New Mexico have a l l e ged that the actions of the Federal Defendants will cause pa rticularized and concrete injuries in fact to the environm ent and wildlife

whether it is challenged b y any of the parties.” Summers v. Earth Island Inst. , 555 U.S. 488, 499 (2009).

The Federal Defendants challenged New Mexico ’s standing before the district court, but conflated its challenge with th e APA “zone o f interest” requirem ent, which we will discuss later. The district court held that New Mexico had established Article III standing.S T A T E O F C AL I F O R N I A V

. T R

UMP 21

of their respective states as well as to their sovereign interests in enforcing their environm ental laws.

1

The El Centro Se c t o r P roject 1 involves the Jacum ba W ilderness area. California cont e n d s that this area is hom e to a large num

ber of se n sitive plant and anim al species that

are listed as “endangered,” “threatened,” or “rare” under the federal Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. , or the Ca l i fornia Endangered Species Act, Cal. Fish & Gam e Code § 2050 et seq. Californi a a lleges that “[t]he construction o f border b arriers within or near the Jacum ba W ilderness Area

. . . w ill have significant adverse effects on environm ental resources, including d i rect and indirect im p a c ts to endangered or threatened wildlife.” One such
sp ecies i s t

h e f e d erally an d state-end an g ered p eninsular desert bighorn sheep. Another is the flat-tailed horned lizard, a California species of special concern. 1 1

11 A species of special concern is “a species, s ub s p ecies, or distinct population o f an anim al n ative t o California that currently satisfies one o r

m ore of the following ( but not necessarily m utually exclusive) criteria: is extirp a t e d fro m the State

. . .; is listed as Federally-, but not State-, threatened or endangered; m e e t s the S tate definition of threatened o r endangered but has not form ally b een listed; is experiencing, or form erly

ex p eri en ced
, serious ( noncyclical) p opulation declines o r r an g e r et r a c t i o n s (not reversed) that, if continued or resum ed, could qualify i t for State
t h r eat en ed o r en d an g er ed st atus; has naturally sm all populat i o n s e xh i b i t i n g high susceptibility of to risk from any f actor(s), that if realized, could lead
to declines that would qualify it f or State threatened or endangered status.” C A L

. D EPT

. O F F IS H A N D W ILD LIF E , S P ECIES O F S P E CIES C O N CERN , h t t p s : / / w i l d l i f

e

. c a

. g o v / C o n s e r v a t i o n / S S C # 3 9 4 8 7 1 3 2 4

- w h a t

- i s

- t h e

relationship-between-sscs-and-the-california-wildlife-action-plan.S T A T E O F C AL I F O R N I A V

. T R

UMP 22

California has adequately set forth facts and other evidence, which taken a s tru e, support these allegations for the purpose of Article III stan di n g

. According to the California Departm ent of Fish and W ildlife 2018 annual report addressing she ep m onitoring in the Jacum ba W ilderness area, “[t]he Jacum ba ewe group is dependent on

resources both within the US and Mexico. A fence along the US-Mexico b order would prohibit m ovem ent to, and use of, prelambin g and lam

b-rearing habitat and summ er water sources,” and the developm ent of energy projects adjacent to the Jacum

ba Mountains “com

bined with disturbance by border security activities” “will have significant adverse im pacts on this ewe group.” Ca l i fornia contends that road construction; grading and construction of equipm ent storage and p arking areas; and off road m ovem ent of v ehicle and
equ i p me nt involved in construction w ill alter the norm al behavior of peninsular bighorn sheep, with the m ost significant effect on the endangered peninsular bighorn sheep being the perm anen t reduction of its north-south m ovem ent

across the U.S.-Mexico border. California further avers that the effects of a border wall will place additional pressure on the survival and recovery of the bighorn sheep because the unim peded m ovem ent of the peninsular bighorn sheep between the United States and Mexico i s im portant for increasing and m aintaining their ge n e t ic diversity. It contend s th a t as the num ber of anim als that m ove between these two countries declines or ceases, the species will begin
to suffer the deleterious effe c t s o f inbreeding and reduced genetic diversity.

Likewise, California asserts that the flat-tailed horned lizard lives within the project footprint and surrounding area, and that the e x t e n s ive trenching, construction of roads, and staging of m aterials proposed in the area will h arm o r killS T A T E O F C AL I F O R N I A V

. T R

UMP 23

lizards that are either active o r in un derground burrows within
the project footprint. It claim s that the construction of th e border wall wi ll also greatly increase the predation rate o f lizards adjacent to the wall by p roviding a p erch f or b irds o f
prey and w ill effectively sever the linkage that currently exists between populations on both sides of the border.

New Mexico alleges that “[t]h e construction of a border wall in th e El Paso S ector along N ew Mexico’s southern border will have adverse effects on the State’s environm ental
resources, including d irect a n d in d irect im

p acts to en d an g e red

or threatened wildlife.” Such h arm “would includ e the blocking o f wildlife m igration, flooding, and habitat loss.” It
notes that the Chihuahuan desert i s bi s ected b y the New Mexico-Mexico border, and this “bootheel” re g ion is the

m ost biologically diverse desert in the W estern H em isphere, containing num erous endangered or threatened species. Such species include the Mexican gray wolf and the jaguar, both o f which coexist in this region along the U.S.-Mexico border.

New Mexico has adequately set forth facts and o th e r evi d e n c e , which taken as true, support these allegations for the purpose o f Ar ticle III standing. It contends that the construction of El Paso Sector P roject 1 m ay have a num ber of adverse effects on the Mexi can wolf, including injury, death, h arm , and harassm ent due to construction and related activities, a s we l l as abandonm ent of the area for essential behaviors such as f

eeding, resting, and m ating due to night lighting and the elim ination of food sources and habitat in the

area. Moreover, New Mexico avers that the construction o f El Paso Sector Project 1 would interrupt the m ovem ent of the Mexican wolf across the U. S.-Mexico border, p utting additional pr e s s ur e on the species’ survival and recovery in the wild b ecause the un i m peded m o vem ent of MexicanS T A T E O F C AL I F O R N I A V

. T R

UMP 24

wolves between the United St ates and Mexico is im p ortant for increasing and m ain t a i ni ng their genetic diversity. New Mexico notes that the docum ente d m ovem ent of a radiocollared Mexican wolf across the border in the ar e a s where border w all construction is planned dem onstrates that construction will indeed cause such an interruption.

Additionally, the jaguar is considered endangered by the U.S. Fish and W ildlife Service (“ U SFW S”). New Mexico

avers that jaguars were form erly widespread in the southwest United States, but were extirpated by hunting. It claim s that, in recent decades, sm al l num b ers o f individuals have dispersed n orth from breeding populations in northern Mexico, with som e reaching the m ountains in sou thwestern New Mexico west o f L una County. N ew M e x ico contends that, if further long-term recolonization o f jaguars continues,

areas in Doña Ana and Luna counties include suitable h abitat, but construction of El P aso Sector Project 1 would stop jaguar

m ovem en t thr o u g h th e r e g i on , p o t e n t i a l l y l im iting recolonization.

For these reasons, we conclude that California and New Mexico have each provided sufficient evidence which, if
t aken as true, w ould allow a reasonable fact-finder to conclude that b o th states will suffer injuries in fact to their

env iro nm e ntal interests, and in particular, to protected sp ecies within their borders.

2

In addition, California and New Mexico have alleged that the Federal Defendants’ actions h ave interfered with their respective abilities to enforce their environm ental laws, thus interfering with the term s under which they participate in theS T A T E O F C AL I F O R N I A V

. T R

UMP 25

federal system

. They alleged that they have suffered, and will continue to suffer, injuries to their concrete, quasi-sovereign interests rel at i n g to the p reservation of wildlife resources within their boundaries, including but not lim ited to wildlife on state properties.

California and New Mexico h ave adequate l y se t forth facts and other evidenc e , wh i ch taken as true, support these allegations for the purpose of Article III standing. They have dem onstrated that border wall construction injures their quasi-sovereign interests by preventing them from enforcing their environm ental laws.

Under Californi a law, the California W ater Resources Control B oard and nine regional board s e s t ablish water quality objectives and stan d a r d s, an d f o r c o n stru ction projects like El Cen tr o Se c tor P roject 1, where dredge and fill activities are exp e c t e d to o ccur, a regional board m ust ordinarily certify com

pl i ance with water quality standards. The record indicates that, absent the Secretary of Hom eland Security’s Section 102(c) IIRIRA waiver of the Clean W ater Act re qu i rem ents for the project, El Centro Project 1 could
not proceed without com pleting certification i ssued by a regional water board because the E l Centro Project 1 will

occur within or near the Pinto W ash and will traverse at least six ephem eral washes that have been ident i fi e d as waters o f the United States. The record further indicates that, du e to the n a tur e and location of construction, El Centro Project 1 would also require enroll ment in the State W ater Board’s statewide National P ollutant Discharge Elim ination General Perm it for Storm W ater Di scharges Associated with Construction and Land Disturbance Activities.S T A T E O F C AL I F O R N I A V

. T R

UMP 26

Likewise, the S ection 102(c) w aiver of th e Clean Air Act’s requirem ents underm ines California’ s enforcem ent o f its air quality standards for com plying with the Clean Air A ct

as set forth in California’s State Im p l em entation Plan (“SIP”). In particular, but for the w aiver, in order to m o v e forward with El Centro Project 1, the F ederal Defendants “would be obligated to com

ply with Rule 8 01 [of the SIP], wh i c h requires the developm ent and im plem entation of a dustcontrol plan for construction projects to prevent, reduce, and

m itigate [fine particulate m atter] em issions.”

Moreover, the Section 102(c) waiver exem pts the Federal Defendants from com

plyi n g w ith laws designed to protect endangered o r threatened species. For instance, it ex e mpts the Federal Defendants fromconsulting with the USFW S to

ens ure that El Centro Sector Project 1 “is not likely to jeopardize the continued existence of any endangered species

o r threatened species or result in the destruction or advers e

m odification o f habitat of such species” that are identified as endangered under California and federa l l a w. 16 U.S.C. § 1536(a)(2). A s we have noted, California contends that the El Centro S ector P roject 1 is likely to h a rm federal and California endangered species such as the peninsular bighorn sheep and the flat-tailed horned lizard. The presence o f these species led the USFW S, Bureau o f La nd Managem ent (“BLM”)
, California Departm ent o f Fish and W ildlife, and California State Parks to develop and im plem ent the “FlatTailed H orn e d L izard Rangewide Managem ent Strategy,” which im poses restrictions on projects resulting in larg e-scale soil disturbances in the project area and prohibits activities that restrict the lizards’ interc h a n ge with lizard populations

acros s th e b order. W ithout the Section 102(c) waiver, this

m anagem ent strategy would im pose certain restr i c t i ons and

m itigation m easures on the border wall construction projects.S T A T E O F C AL I F O R N I A V

. T R

UMP 27

Under New Mexico law, the Federal Defendants, absent the Section 102(c) waiv e r of the Clean Air Act’s requirem ents, would n orm ally be r equ ired to com ply with New Mexico’s fugitive dust control rule and High W ind Fugitive Dust M i t igation Plan that New Mexico adopted under the Clean Air Act. See N.M. Adm in. Co de §§ 20.2.23.109–.112 (m andating that “[n]o person

. . . shall

cause or allow visible em ission s f rom fugitive dust sources that: p ose a threat to pub li c h ealth; interfere with public welfare, including anim al or p lant injury or dam age, visibility

or the reasonable use o f p roperty” and “[e]very person subject
to this part shall utilize one or mo r e control m easures

. . . as necessary to m eet the requirem ent s of [this section]”). The waiver, however, prevents New Mexico from enforcing these air quality rules.

New Mexico further contends th a t , absent the Section 102(c) w aiver, th e Federal Defendants would also norm ally be required to consul t with the USFW S to protect species such as the Mexican wolf that are enda n g e r e d under both federal and New Mexico Law. More o v er, the USFW S’s

m anagem ent p lan for the species—the “Mexican W o lf Recovery Plan-First Revision”—which is designed to

“ facilitate the wolf’s revival,” “calls for a m inimu m of 320 wolves in the United S tate s and 2 00 in Mexico to m eet recovery goals.” The “ b in a t ional recovery strategy” of this plan was developed by the USFW S “in coo r di n a tion with federal agencies in Mexico and state , fe d eral, and Tribal agencies in the United States,” and “[e ]ffective recovery

r e quires participation by m ultiple parties within Feder a l
, state, and local governm ents.” U SFW S, M EXI C A N W O L F RE C O VE R

Y P LA N -F I R S T REV I S I ON at 10, 16 (2 017). Construction underm ines this plan because it i n hibits theS T A T E O F C AL I F O R N I A V

. T R

UMP 28

“utilization of habitat” and does not pro m ote “m etapopulation connectivity.”

T h e S ectio n 1 0 2 (c) w a iver likewise p revents N e w Mex ico from enforcing its W ildlife Corridors Act. Port i o ns o f El Paso Project 1 cross New Mexico S tate Trust Lands, and New Mexico contends that the planned pedestrian fencing disrupts habitat corridors in New Mexico—contravening to the W ildlife Corridors Act. The Act “requires New Mexico state agencies to create a ‘wildlife corridors action plan’ to protect species’ habitat

. ” New Mexico f urther avers that New Mexico’s State Trust L ands in and around the El Paso P roject 1 site form an im

p ortan t wildlife corridor for num erous species such as m

u le deer, javeli na, p ronghorn, bighorn sheep, m ounta i n lion, bobcat, coyote, bats, quail, and other

sm all gam e like rabbits.

In sum , we conclude that C alifornia and New M e xico have each provided s u fficient evidence which, if taken as true, w ould allow a reasonable f act-finder to conclude that they have bo th suffered injuries in fact to their sovereign interests.

B

Turning to the causation requ i r em ent, we conclude that California has alleged environm enta l a nd sovereign injuries

“ fairly traceable” to the F ederal Defendants’ conduct. T o satisfy this requirem ent, California and New Mexico “need
not show that [Section 8005 is] ‘the very last step in the chain of causation.’” Ass’n o f Pub. Ag e ncy Customers v. Bonneville P ower Admin.
, 733 F .3d 939, 953 (9th Cir. 2 013) (quoting Bennett v. S

pear , 520 U.S. 154, 169 ( 1 9 9 7)). “A

c au sal chain d oes not fail sim ply because it has severa lS T A T E O F C AL I F O R N I A V

. T R

UMP 29

‘links,’ provided those links are ‘not hypothetical or tenuous’ and rem ain ‘plausib[le].’” Maya v. Centex Corp.
, 658 F.3d 1060, 1070 (9th Cir. 2011) (quoting N at’l Audubon Soc., Inc. v. Davis , 307 F.3d 835, 849 (9th Cir. 2002)).

W ith respect to m ost of the environm ental injuries, causation is apparent—for instance, a s explained above, the construction and presence of the border wall will separate the peninsu l a r bighorn sheep and Mexican wolf populations, decreasing biodiversity, and harm ing these species.

Although slightly m o re attenuated, we also conclude that the causation requirem ent is likewise satisfied for the injuries
to C alifornia’s and New Mexico’s quasi-sovereign interests. It m akes no difference that the Section 102(c) waiver is m ost directly responsible for th ese in j ur ies b ecau se w i th o ut S ection 8005, there is no waiver. That is, without the Secti o n 8 0 05 funding to construct El Centro Se ct or Project 1 and El Paso Sector Project 1, there wo ul d be no basis to invoke Section 102(c), and therefore, n o resulting harm to California’s and New Mexico’s sovereign i nt erests. Thus, we conclude that these i n j uries too are fairly traceable to the Section 8005 transfers of funds.

C

A ruling in California and New Mexico’s favor wou l d redress their harm s. W ithout the Se c t ion 8005 funds, DoD had inadequate funding to finance construction of these projects; presum ably, without this funding, construction of El Centro Sector Project 1 and E l Paso S ector Project 1 would

cease. T his would prevent both the environm ental i nj uries and the sovereign injuries alleged.S T A T E O F C AL I F O R N I A V

. T R

UMP 30

Thus, these facts would allow a reasonable fact-finder to conclude that, if funds are diverted to c o n struct border wall projects in the El Centro and El Paso Sectors, California and New M exico will each suffer environm ental and quasisovereign injuries in fact that are fairly tracea b l e to the challenged conduct of the Federal Defendants and likely to be redressed by a favorable judicial dec ision. California and New Mexico have established the requisite Article III standing to challenge the Federal Defendants’ actions.

IV

The Federal Defendants argue that C alifornia a nd New Mexico lack the right to challenge the transfer of funds under the APA. W e disagree. 1 2

The APA provides fo r judicial review of “final agency action for which th e r e is no o ther adequate rem edy in a court.” 5 U.S.C. § 704. Where a statute im poses obligations

on a f ederal agency but the obligations do n ot “give rise to a ‘private’ right of action against the federal governm ent[,] [a]n aggrieved party m ay pursue its rem edy under the A PA.” San Carlos Apache Tribe v. U ni t ed States
, 417 F.3d 1091, 1099 (9th Cir. 2 005). C alifornia and N ew Mexico m ust, h owever, establish that they fall within th e zone of interests of the relevan t s t a tute to bring an APA claim

. See Match-E-BeNash-She-Wish Band o

f Pottawatomi India n s v. Patchak
,

12 The S t ates argue that t

hey have both an equitable u ltra vires cause of action and a c ause of action under the APA. Although each of the claim s can proceed separately, see Navajo Nation v. Dep’t of the Interior
, 876 F.3d 1144, 1170 (9th Cir. 2017), we do not need to address the ultra vires claim s here. T h e States see k th e sam e scope of relief under both causes of action and they prevail under the APA.S T A T E O F C AL I F O R N I A V

. T R

UMP 31

5 67 U.S. 209, 224 (2012) (“This Court has long held tha t a person suing under the APA m ust s a tisfy not only Article III’s standing requirem ents, but an a d d itional test: The interest he asserts m

ust be ‘arguably withi n the zone o f inter ests to be protected or regulated by the statute’ that he
says was violated.” (quoting Ass’n o f Data Processing Serv. Org., Inc. v. Camp , 397 U.S. 150, 153 (1970))).

Section 8 005 does not confer a private r i ght of action. Ins tead, it delegates a narrow slice of C ongress’s
ap pr op riation power to DoD to allow the agency to respond flexibly to unforeseen circum stances im plicating the national interest. In doing so, the statute imposes certain obligations
upon DoD— i.e.
, DoD cannot invoke S ection 8005 unless there is an unforeseen m ilitary requi r em ent and unless Congres s did not previously deny the item requested. Californi a and New Mexico argue that DoD did not satisfy these o bligations. W e agree. T h erefore, as aggrieved parties, California and New Mexico m ay pursue a rem edy under the APA, so long as they fall within S ecti o n 8 0 05’s zone o f interests.

As a threshold m atter, Section 8005 is the relevant statute for the zone o f interests test. “Whether a p laintiff’s interest is ‘arguably

. . . prot e c t e d

. . . by the statute’ within the

m eaning of the zone-of-interests test is to be determ ined not by reference to the overall purpose of the Act in q uestion

. . . but by reference to the particular provision of law upon which the p laintiff relies.” B ennett , 520 U.S. at 175–76 (em phasis added). Here, for purposes of th e i r APA claim
, California and New Me x ico rely on Section 8005’s lim itations. Thus, Section 8005 is the relevant statute for the zone of interests test.S T A T E O F C AL I F O R N I A V

. T R

UMP 32

The Suprem e Court has clarified that, in the APA context, the zone o f interests test d oes “not require any ‘indication o f congressional purpose to benefit the would-be plain t iff.’” Patchak
, 567 U.S. at 225 (quoting Clarke v. Sec. Indus. Ass’n
, 479 U.S. 388, 399–400 (1987)). It has repeatedly em phasized that the zone of interests test is “not ‘especially dem anding’” in the APA context. L exmark Int’l, Inc. v. Sta t i c Control Components, In c. , 572 U.S. 118, 130 (2014) (quoting Patchak
, 567 U.S. at 225). Instead, fo r APA challenges, a plaintiff can satisfy the test in either o ne of two ways: (1) “if it is am ong those [who] Congress ex p r e s s ly or directly indicated w ere the intended beneficiaries of a statute,” o r (2) “if it is a suitable ch a l l enger to enforce the statute—that is, if its interests are sufficiently congruent with those of the intended beneficiaries that the litigants are not m ore likely to frustrate than to f

urther

. . . statutory objectives.” Scheduled Airlines Traffic Offices, Inc. v. D ep ’ t of Def.
, 87 F.3d 1356, 1359 (D.C. Cir. 1996) (alterations in original) (quotations and citations om itted). “ The test forecloses suit o nly when a p laintiff’s ‘interests are so m arginally related to o r inconsistent with the purpo ses im plicit in the statute that it
cannot reasonably b e assum e d th a t Congress intended to perm it the suit.’” Patchak
, 567 U .S. at 225 (quoting Clarke
, 479 U.S. at 399). “W e apply the test i n keeping with Co n gress’s ‘evident intent’

. . . ‘to m ake agency action
presum ptively reviewable[,]’” and note th a t “ the benefit o f

a n y doubt g oes to the plaintiff.” Id. (quoting C lark e , 479 U.S. at 399).

In enacting Section 8005, Congress prim arily intended to benefit itself and its constitutional power to m anage appropriations. The obligations im posed by the section lim it the scope of the authority delegated to DoD, r e s e rv i ng to Congress in m ost instances the power to appropriate funds toS T A T E O F C AL I F O R N I A V

. T R

UMP 33

particular DoD accounts for specific purp o ses. This conclusion is reinforced by the legislative history. Congress first im posed lim its on DoD’s transfer authority in order to “tighten congressional control o f the reprogramm ing process.” H.R. Rep. No. 93-662, at 16 (1973).

The field of suitable challengers m ust be construed broadly in th i s context because, although Section 8005’s obligations were intended to protect Congress, restrictions on congressional standing m a ke it difficult for Congress to enforce these o b l igations itself. See Goldwater v. Carter
, 617 F.2d 697, 702 (D.C. C ir. 1979), v a cated and remanded

on other grounds
, 44 U. S. 9 96 (1979) (explaining that a

m em ber o f Congr e s s has standing only if “the alleged dim inution in congressional i n fluence

. . . am ount[s] to a disenfranchisem ent, a com plete n u llif icatio n o r w ithdrawal o f

a voting o pportunity”). Indeed, the House of Representatives filed its own lawsuit in the U.S. District Court for the District of Colum b ia challenging this sam e transfer of funds, but the
court held that th e Ho u s e lacked standing to sue. See U .S. House of Reps. v. Mnuchin
, 3 79 F. S upp. 3d 8, 11 (D.D.C. 2019) (“And while the Constitution bestows upon Mem bers of the House m any powers, it does not grant them standing to h ale the Executive Branch into court claim ing a dilut i o n of Congress’s legislative authority.”).

California an d New Mexico are suitable challengers because their interests are congruent with those of Congress and are not “inconsiste n t with the purposes im plicit in the statute.” Patcha k
, 5 67 U.S. at 2 25. First, this challenge actively furthers Congress’s intent to “tighten congressional control of the reprogramm ing process.” H.R. Re p

. No. 93- 662, at 16 (1973). In parti c u l ar, this challenge furthers this intent because, even though Section 8 005 does no t r e quireS T A T E O F C AL I F O R N I A V

. T R

UMP 34

form al congressional approval to reprogram funds
, th e congressional comm ittee s expressly disapproved o f DoD’s use of the authority here.

Second, Califo rni a and New Mexico’s challenge strives
to reinforce the sam e structural constitutional p rinciple Congress sought to protect through Section 8005: congressional p o w er o v er ap p ro p riations. See U.S. Const. art. I, § 9, cl. 7 (“No Money shall b e drawn from the Treasury, but in Consequence of Appropriations m ade b y L aw

. . . .”);

se e a l so Office of Pers. Mgmt. v. Richmond
, 496 U .S. 414, 424 (1990) (explaining that this “straightforward and explicit

comm and” “‘m eans sim

ply that no m oney can be paid o ut o f the Trea s ury unless it has been appropriated by an act o f Congress’” (quoting Cincinnati Soap Co. v. U nited States
, 301 U.S. 308, 321 (1937))). California and New Mexico’s interest in r e i n forcing these structural separation of powers principles is unique b ut aligned with that o f Congress because just as those p rinciples are intended “to prot e c t each branch of [the federal] governm ent from incursion by the others,” the “allocation o f p o wers in our federal system [ also] preserves the integrity, dignity, and residual sovereignty of the States,” because “[f]ederalism has m o re than one dynam ic.” Bond v. United Sta t es , 564 U.S. 211, 221–22 (2011). This interest applies with particular force here because the use of Section 8005 here im

p acts California’s and New Mexico’s ability to enforce their state environm ental laws. S ee Massachusetts v. EPA
, 5 4 9 U.S. at 518–19 (“‘[T]he State has an interest independent of and behind the titles of it s citizens, in all the earth and air w ithin its dom ain. It has th e last word as to whether its m ountains shall be stripped o f their forests and its inhabitants shall breathe p ure air.’” (quoting T enn. Copper Co.
, 206 U.S. at 237)); see also Maine v. Taylor
, 4 7 7 U.S. 131, 151 (1986) (“[A state] retains broad regulatory authorityS T A T E O F C AL I F O R N I A V

. T R

UMP 35

to protect the health and safety of its citizens and the integrity of its n a tur a l resources.”). Here, the use of Section 8005 allows the g o vernm ent to invoke Section 102(c) of IIRIRA to waive state environm ental law requirem ents for purposes of building the border wall. 1 3 Thus, Section 8005’s lim itations protect California’s and New Mexico’s soverei g n i nterests, just as they protect Congress’s constitutional inte rests, because they ensure that, ordinarily, Executive action cannot override these interests wi thout congressional approval and funding. Therefore, just as Section 8005’s lim itations serve C o n g ress to preserve the “equilibriu m th e C o n stitu tio n so u g ht to establish—so that ‘a gradual concentrati o n of the several
powers in the sam e departm ent,’ can effectively be resisted,” they likewise serve C alifornia and New Mexico as well. M o rrison v. Olson
, 487 U.S. 654, 699 (1988) (Scalia, J

. , dissenting) (quoting Federalist N o. 51, p. 321 (J. Madison)).

Moreover, that the states r e gu larly benefit from DoD’s

use of Section 8005 reinforces that Cal i f ornia and New Mexico’s interests are not “so m arginally related” that “it can[] reasonab ly b e assum ed that Congress intended to p erm it suit.” Patchak
, 567 U.S. at 225. For instance, in 2004 DoD invoked S ecti o n 8 00 5 to transfer funds to pay for storm d am ages incurred b y airforce bases across Florida dur i n g Hurr i c a ne C harley. Office of the Under Sec’y o f Def. (Com ptro ller), FY 04-37 PA, Reprogramm ing Action (2004). Likewise, in 2008 DoD invoked S ection 8005 to finance costs incurred by the National Guard in re s p o n d ing to Hurricane

13 As we explained with respect to Article III standing, California and New Mexico have provided sufficient evidence by declaration t o establish that they have suffered cognizable injuries to their sovereign interests and that t his injury is f

airly traceable to the Federal D efendants’ use o f Section 8005.S T A T E O F C AL I F O R N I A V

. T R

UMP 36

Gustav in Louisiana, Texas, Mississippi, and Alabam a, as well as operations related to Hu rr ic ane Ike in Texas and Louisiana. Office of the Under Sec’y of Def. (Com ptroller), FY 08-43 PA, Reprogramm ing Action (2008). The h istorical

use o f Section 8005 supports that states are “reasonable” and “predictable” challengers to its use, and this instance is no

anom aly. Patchak , 567 U.S. at 227.

For these reasons, California and New Mexico easily fall within the zone of interests of Section 8005 and are suitable challengers to enforce its obligations. W e therefore a ffi rm the g r a nt of summ ary judgm ent to the States. To conclude otherwise would effectively hol d th at no entity could fall within Section 8005’s zone of interests, and that no agency action taken pursuant to Section 8005 could ever be challenged under the APA. Such a conclusion is not tenable, and a result Congress surely did not intend.

V

The district court correctly held that Section 8005 did not authorize D oD’ s budgetary transfer to f und construction o f the El Paso and El Centro Sectors.

In construing a statute, we begin, as always, with the languag e o f the statute. UMG R ecordings, Inc. v. S helter Capital Partners LLC
, 718 F.3d 1006, 1026 (9th Cir. 2013). “Wh e n te rm s are n ot defined w ithin a statute, they are accorded their pla i n a n d ordinary m eaning, which can be deduced through reference so ur ces such as general usage dictionaries.” Id. Of course, “[s]tatutory language must always be read in its proper context,” id. (quotati o n s and citation om it t ed )
, as courts m u st look to the “design of the
statute as a whole and to its object and policy,” id. (quotationsS T A T E O F C AL I F O R N I A V

. T R

UMP 37

and citation om itted), and “the words o f a statute m ust b e read i n th ei r context and with a view to their place in the over a l l statutory schem e,” Home Depot U. S.A., Inc. v. Jackson
, 139 S

. Ct. 1743, 1748 (2019) (quotations and cita t i on

om itted).

Section 8005’s transfer authority canno t be invoked “unless for higher priority item s, based on unfo r e s e en

m ilitar y requirem ents, than those for which originally appropriated and in no case where the item for which funds

a r e requested has been denied by the Congress.” Two lim itations are im

portant to our analysis: (1) that the transfer

m ust b e “based on unforeseen m ilitary requi rem ents,” and (2) that the transfer authority cannot b e invoked if the “item for which f

unds are requested ha[d] b e e n denied by the Congress.” W e conclude that the district court correctly determ ined that th e b order wall was not an unforeseen

m ilitary requirem ent, that f unding for the wall had been denied by Congress, and therefore, that the transfer authority granted by Section 8005 was not perm issibly invoked.

A

Section 8005 authorizes the transfer of funds only in
response to an “unforeseen m ilitary requirem ent.” The district court properly concluded that the need for a border wall was not unforeseen. W e also conclude that the need was unrelated to a m ilitary requirem ent.

1

Secti o n 8005 does not define “unforeseen.” Therefore,

we start by considering the o rdinary m eaning o f th e word. Som ething is unforeseen when it i s “not anticipated o rS T A T E O F C AL I F O R N I A V

. T R

UMP 38

expected.” Unforeseen
, M E R R I AM -W E B S T E R O NL I NE D I C T I ON

AR Y (2020)

. By contrast, to foresee is “to see (som ething, such as a developm ent) beforeha n d .” Foresee
, M E R R I AM -W E B S T E R O NL I

NE D I C T I ON

A R Y (2020) (em

phasis added). Prior use of this authority confirm s thi s me a n ing. Previously, DoD has invoked its Section 8005 auth o rity to trans fer funds to repair hurricane and typhoon dam age to

m ilitary bases—natural disasters that inflict dam age that m ay not be anticipated or expected ahead of t i me

. W e conclude that an unforeseen re qui rem ent is one that DoD did not anticipate or expect.

Neither the problem
, nor the President’s purported solution, w as un a nticipated or unexpected here. The

sm uggling of drugs into the United States at the southern border is a longst a n d i ng problem

. U.S. C U S T O M S A ND B O R D E R P A T R O L , B O R D E R P A T R O L H I S T O R Y , ht t p s : / / w w w

. c bp

. g o v

/ b o r d e r

- s e c u

ri t y / a l o n g

- u s

- b o rd er s /

h i s t o r y (last visited June 16
, 2020) (“By [the early 1960’s] the business of ali e n sm uggling began to involve drug

sm uggling also. The Border Patrol assisted other agencies in interc epting illegal drugs from Mexico.”); United States v. Flores-Montano
, 541 U.S. 149, 153 (2004) (“That interest in protecting the borders is il l u s trated in this case by the evidence that sm

ugglers frequently attem

pt to p e n e tr ate our borders with contraband secreted in their autom obiles’ fuel tank. Over the p ast 5 1/2 f iscal years, there have been 18,788 ve h icle drug seizures at the southern California ports of entry.”). Indee d, the federal Drug Enforcem ent Adm inistration was created o ver four decades ago in 1974 in large p art to address the sm uggling of illegal drugs into the United States. See Reorganization Plan No. 2 o f 1 973, 87 Stat. 1091, as am en d ed Pub

. L. 93-253, §1, 88 Stat. 50 (1974).S T A T E O F C AL I F O R N I A V

. T R

UMP 39

Congress’s jo int resolution term inating the President’s declaration of a national em erg e n c y only reinforces this point: there w as no unanticipated crisis at the border. Nothing prevented Congress from funding solut i o n s to this problem through the ordin a ry appropriations process— Congress sim

ply chose not to fund this particular solution.

The long, well-docum ented history of th e President’s efforts to build a border wall dem onstrates that he considered the wall to be a priority from the earliest days of h i s

cam paign in 2015. S

ee, e.g. , Here’s Dona ld Tr u mp’s Presidential Announcement Speech
, T I ME (June 16, 2015) (“I would build a g reat wall

. . . I will b uild a great, great wall on

our southern bo r d e r.”); Transcript of Donald Trump’s Immigration Speech
, N E W Y O R K T I ME S (Sept. 1, 2016) (“On day one, we will begin working on an im penetrable, p hysical, tall, power, beautiful southern b order wall.”). Moreover, his repeated pronouncem ents o n th e subject m ade clear that federal agencies l i k e DoD m ight be tasked with the wall’s funding and construc t io n

. C ongress’s repeated denials o f funding only drew n ati o n a l a ttention to the issue and put agencies on notice that they m ight b e asked to f inance construction. See Securin g Am erica’s Future Act of 2018, H.R. 4760, 115th Cong. § 1 1 11 (2018); Border Security and Imm igration Reform Act of 2018, H.R. 6136, 115th Cong. § 5101 (2018); Am erican Border Act, H.R. 6415, 115th Cong. § 4101 (2018); Fund and Com plete the Bo rder W all Act, H.R. 6 6 5 7
, 115th Cong. § 2 (2018); Build the W all, Enforce the Law Ac t of 2018, H.R. 7059, 115th Cong. § 9 (2018); 50 Votes for the W all Act, H.R. 7 073, 115th Cong. § 2 (2018); WALL Act o f 2018, S. 3713, 115th C ong. § 2 (2018). In short, neither the conditions at the border nor the President’s p osition that a wall was needed to address those conditions was unanticipated or unexpected by DoD.S T A T E O F C AL I F O R N I A V

. T R

UMP 40

The Federal Defendants’ argum ents to the contrar y are unpersuasive. They assert that “an agency’s request ” “will be foreseen” o nly “when it is received b y DoD in tim e to include in the subm ission to Congress [for the yearly budget],” and that therefore, the transfer at issue here com plied with the text of the statute. (em

phasis added). There are two problem s with the Federal Defendants’ position.

First, Section 8005 perm its transfers ba s ed only on

un f o reseen m i litary req u irements —not unforeseen budgetary requests

. A requirem ent that gives rise to a funding request is distinct from the request itself. Here, the requirem ent that
gave rise to the Section 284 requests is a border w all. Thus,
t o invoke the statute, the need for a border wall m ust h a v e been unforeseen. To hold o the rwise— i.e.
, to conclude that
tra n s fe rs are p erm itted under Section 8005 if they are based

on unforeseen budgetary reque s t s —would underm ine the

narrowness of the statute and p otentially encourage DoD and other agencies to s ub mi t b udgetary requests after D oD has subm itted its final bud get to Congress in order to skirt the congressional appropriations process. Th is result is inconsistent wi th the purpose of Section 8005: to “tighten congression a l control of the reprogramm ing process.” H.R. Re p

. No. 93-662, at 16 (1973). If this interpretation prevailed, the exception would swallow the rule and underm ine Congress’s constitutional appropriations power.

Second, even if we were to accept the govern me n t ’s definition o f “requirem ent” a s eq u iv alent to “request,” DHS’s specific Section 284 request s we re both anticipated and expected, even within the confines of th e appropriations
context. Nearly six m onths before the enactm ent of the 2019 DoD Appropriations Act, the P resident wrote th e fo llowing in a m em o randum

to the Secretary of Defense, the AttorneyS T A T E O F C AL I F O R N I A V

. T R

UMP 41

General, and the Secretary of H om eland Security: “ The Secretary o f De fense shall support the Departm ent o f Hom eland Security in secu rin g th e so uth ern border and taking other necessary actions to stop the flow of deadly drugs and other contraband

. . . into this country.” Furth e r, i n a response to a request for inform ation f rom the House Arm ed Services C omm ittee, D oD wrote that the “DoD Com ptroller with[held] over 84% ($947 m illion) of [counter-drug]
app r o p r i a ted funds f

or distribution until the 4 th Quarter for possible use in supporting Southwest Border constru ctio n last fiscal year.” As explained by the S taff Director of the House Arm ed Services Comm ittee, this “su g g e s ts that DoD was considering u sing its counter-drug authority under 10 U.S.C. § 284 for southern b ord e r construction in early 2018.” Further still, because Section 284 only allows DoD to provide support that is requested by other agencies, DoD’s retention

o f funds suggests it likely anticipated such a reques t

. S e e 10 U.S.C. § 284(a)(1) (“The Secretary of Defense m a y provide support . . . if . . . such support is requested.”).

The Federal Defendants als o unpersuasively equate “foreseen” with “known.” “[T]o know” m eans “to perceive direc t l y: have d irect cognition of.” Know
, M E R R I AM

W E B S T E R O NL I

NE D I C T I ON

AR Y (2020). This interpretation effectively elim inates any elem ent of anticipation o r expectation. “‘Congress’ choice o f words is presum ed to be deliberate’ and deserving of judicial respect.” SAS Inst., Inc.

v. Iancu
, 138 S. Ct. 1348, 1355 (2018) (quoting U niv. of Tex. S w. Med. C

tr. v. Nassar
, 570 U.S. 338, 353 (2013)). Thus
, we m ust presum e that Congress’s u s e o f the word “unforeseen” is deliberate. Congress c o u l d have easily specified that a transfer is perm itted only when based on “unknown” requirem ents, but it did not. Instead, Co ng r ess specified that Section 8 0 05 perm its a transfer only where aS T A T E O F C AL I F O R N I A V

. T R

UMP 42

r e qu i r e me n t w a s u n fo r e s e e n

— i

. e

. , u n a n t i c i p a t e d o r unexpected. W e decline to read into the text a lower standard based on actual knowledge. 1 4

In sum , both the requirem ent to build a wa l l on the southern border as well as the DHS request to DoD to build that wall were anticipated and expect e d

. Thus, neither was “unforeseen” within the m eaning of Section 8005.

2

Section 8005 not o nly m andates that the requirem e n t b e unforeseen, but also that it be a m ilitary requirement

. Under relevant definitions, the construction o f El Centro and El Paso projects does not satisfy any definition of a “ m ilitary requirem ent.”

The 2019 Appropriations Act does not define “m ilitary.” Therefore, we start by considering its ordinary m eaning: “of

or relating to sol d i ers, arm s, or war.” Military
, M E R R I AM

W E B S T E R O NL I

NE D I C T I ON

A R Y (2020). The border wall construction projects here plainly fail to satisfy this definition because the Federal Defendants have argued neither that the border wall construction projects are related to the us e of soldiers or arm s, nor that the r e i s a war on the southern border.

14 Indeed, in DoD parlance, the possib il i ty that border funding from the DoD budget m ight be requested w as a “known unknown,” as opposed
to “unforeseeable,” which w ould b e an “unknown unknown,” a category

w hich form er Secretary of Defense Rum sfeld d escribed as including a “g enuine surprise.” D O N A LD R U M S F ELD , K

N O W N A N D UN K

N O W N : A M EM O IR , p. xiv. (2011).S T A T E O F C AL I F O R N I A V

. T R

UMP 43

The adm inistrative record underscores this point
, a n d supports th at the border wall construction projects are not

m ilitary ones. The record d em onstrates tha t the diverted funding is prim arily intended to support DHS—a civilian
agency entirely separate from any branch of the arm ed forces. The Assistant Secretary of Defense stated that the funds were transferred “to provide assistan ce to D H S to c o nstruct fencing
to block drug

- sm

u g g lin g co rridors in three project areas along the southern border of the United States.” He also explained that the purpose of the transfer was to “support DHS’s efforts
to secure the southern b order.” By c on trast, the transfer o f funds for border wall construction does little to assist DoD with any of its operations. Even to the extent it m ight, it does

so only insofar as it helps DoD assist DHS: as summ arized by the Chairma n o f th e Joint C hiefs of Staff and DHS, border

wa l l projects “allow DoD to provide support to DHS m o r e efficiently and effectively.” (em phasis added). In short, the fact that construction is intended to support a civilian agency,

as opposed to DoD itself o r a n y b ranch of the arm ed forces,

em phasizes that the tra n sfer fails to m eet the plain m eaning of “m ilitary.”

The border wall construction projects do n ot even satisfy

a statuto ry de finition specifically invoked by the Federal Defendants. Se e al

s o W I L L I AM N. E S K R I D GE E T AL ., L E G I S LA T I ON A

ND S T A TU T O R

Y I N T E R P R E T A T I ON 2 73 (2d ed. 200 6 ) (“A word or clause that is am biguous at first glance

m ight be clarified if ‘the sam e term inology is used elsewhere in a context that m akes its m eani ng clear’” and such coherence argum ents m ay b e invoked “acro s s a s well as within statutes” (quoting United Savings As s ’ n o f Tex. v. Timbers of Inwood Forest Assocs., L td.
, 484 U. S. 3 6 5, 371 (1988))).S T A T E O F C AL I F O R N I A V

. T R

UMP 44

The Federal Defendants have also i n v o ked 1 0 U.S.C. § 2808 (“Section 2808”) to fund other b order wall

co n struction projects on the southern border. Section 2808 incorporates the definition o f “m ilitary cons truction” provided by 10 U. S. C

. § 2801(a): it defines “m ilitary construction” as construction associated with a “m ilitary installation” or “defense access road

. ” Section 2801(c)(4) further defines “m ilitary installation” as “a base, cam p, post, station, yard, center, or other activity under the jurisdiction o f the Secretary of a m ilitary departm ent.” 1 5

Th e border wall construction projects at issue in th i s appeal are not carried out with respect to a “m ilitary installation.” The projects them selves are not a base, cam p, station, yard, or center, and unlike the projects considered by the Federal Defendants’ related Section 2808 appeal, the

15 To be sure, S ection 8 005 states that it applies only to transfers between appropriations f

or “m ilitary functions,” as opposed to t he phrase “m ilitary construction” used in Section 2808. How e ver, t he statutes address s i m i l a r subject m atter, and it is of som e significance that the Federal Defendants have invoked S ection 2808 for functionally identical
pro j ects, claim ing that such projects constitute “m ilitary construction” within the m eaning of that statute, while also asserting that such projects satisfy the term “m i litary” within the m eaning of Section 8005. And, as

we know, “‘statutes addressing the sam e subject m atter’ should be construed i n pari materia .” Fed. T rade Comm’n v. AMG Capital Mgmt., LLC
, 910 F.3d 417, 433 n.2 (9th Cir. 2018) (O’Scannlain, J., concurring) (qu o ti ng Wachovia Bank v. Schmidt
, 5 46 U.S. 303, 315 (2006)). Under that doctrine, related statutes should “ be c onstrued as i f they were o ne law.” Erlenbaugh v. United States
, 409 U.S. 2 39, 243 (1972) ( q uotations and citation om itted). Further, even apart from in pari m ateria consi derations, the Suprem e Court “has previously com pared nonanalogous statutes to aid i t s i nterpretation o f them .” Nat’l Fed’n of Fed. E mps., Local 1309 v. Dep’t of Interior
, 526 U.S. 86, 1 0 5 (1999) (O’Connor, J., dissenting) (citing O verstreet v. North Sho r e Corp.
, 318 U.S. 125, 131–32 (1943)).S T A T E O F C AL I F O R N I A V

. T R

UMP 45

projects at issue in this appeal ha v e n o t been brought under

m ilitary jurisdiction. Moreover, there are no m ilitary installations in the El Centro o r El Paso project areas, nor any claim of a requirem ent for a defense access road; instead, as

we h ave noted, the projects affect open wilderness areas—the El Centro Sector project involves the Jacum ba W ildernes s areas, and the El Paso Sector p roject involves the Chihuahuan desert. The fact th a t the construction projects fail to m eet Section 2808’s d efinition o f m ilitary construction supports that these projects fail to satisfy any m eaningful definition o f “m ilitary.”

Even if we were to afford som e considerati o n t o the subchapter title for Section 2 8 4 auth o rizin g “Military Support for Ci vilian Law Enforcem ent Agencies,” there is a distinction to be drawn between “m ilitary support,” and what the statute requires: a “m ilitary requirem ent.” Requirem ent ordinarily m eans “som e th i n g w anted or needed,” o r “som ething essential to the existence o r occurrence o f

som ething else.” Requirement
, M E R R I AM -W E B S T E R O NL I

NE D I C T I ON

AR Y (2020). T h e border wall construction projects

are not som et h i n g n e eded or essential to the arm ed forces, soldiers, arm s, or any sort of war effort. Rather, as explained above, they are designed to “provide assistance” and “suppor t ” t o DHS, a civilian agency. While providing such support m ay be appropriate under Section 284, a request for this support without connection to any m ilitary function fails
to rise to the level of a m ilitary requirem ent for purposes o f Section 8 005. Sim

ply bec au se a civilian agency requests support in furthe r an c e of a particular objective, even when such support is authorized by statute, does not m ean that the

m ilitary itself requires that objective.S T A T E O F C AL I F O R N I A V

. T R

UMP 46

To conclude that supporting projects unconnected to any

m ilitary purpose or installation satisfies the m eaning o f “military requirem ent” would effectively write the term out of Section 8005. T herefore, we conclude that the transfers at issue here do not satisfy Section 8 005’s m ilita ry p urpose requirem ent.

B

In addition, Section 8005 authorizes the transfer of funds only when “the item for which funds are requested has [not] been denied by the Congress.” The question h ere is whether by declining to provide sufficient funding for the border wall, Congress d enied the item for whic h fu n ds were requested within the m eaning of the statute.

As we h ave explained, Congress declined to fu n d th e border wall num erous ti me s in a variety of ways. Congress fa i led to pass seven different bills, see supra at 37–38, that

were proposed spec ifically to fund the wall. Congress also refused to appropriate the $5.7 billion requested by the White House in the CAA; instead, Congress appropriated $1.375 billion, less than a quarter o f the funds requested, for “the construction of prim ary pedestrian fencing

. . . in the R io Grande Valley Sector.” CAA at § 230(a)(1).

The Federal Defendants assert that the Section 80 05 transfer wo u l d be invalid only if Congress had denied a Se ct i on 2 84 b udgetary line item request to fund the borde r wall. But “[i]n comm on usage, a general denial of som ething requested can, and in this case does, encom pass m ore specific

o r narrower form s of that request.” Sierra Club v. Tr u mp , 929 F.3d 670, 691 (9th Cir. 2019). Here, Congress refused to provide the funding requested by the P resident fo r b o rderS T A T E O F C AL I F O R N I A V

. T R

UMP 47

wall construction: a general denial. This general denial necessarily encom

passes n arrower form s of denial—such as the denial o f a Section 284 budgetary line item request. W e decline to im

pose upon Congress an o bligation to deny every possible source of funding when it refuses to f und a particular project—surely when Congress withheld additional funding for the border wall, it intended to withhold additional funding for the wall, regardless of its source. “No” m eans no.

To hold that Congress d id n ot previously den y the Executive Branch’s request for funding to construct a border wall w ould be to “find secreted in the interstices of legislation the very grant of power which Congress cons c i ously withheld.” Youngstown Sh eet & Tube Co. v. Sawyer
, 343 U.S. 579, 609 (1952) (Frankfurter, J., c o n c urring). Regardless of how specific a deni a l m ay be in som e circum stances, C on g ress’s broad and resounding denial resulting in a 35-day part i a l g overnm ent shutdown m ust constitute a p revio u s d enial for purposes o f Section 8005. This history preclud e s the use of Section 8005’s transfer authority.

C

In sum , Section 8 005 did not authorize the transfer o f funds challenged b y Californi a a nd N ew Mexico. Absent such statutory authority, the Executive Branch lacked independent constitutional authority to tr a n s fer the funds at issue here. See City and Cty. of San Fr a ncisco v. Trump
, 897 F.3d 1 225, 1233–34 (9th Cir. 2018) (“[W ]hen it com es to spending, the President has none of ‘his own constitutional
power s’ to ‘rely’ upon.” (quoting Y oungstown , 343 U.S.
at 637 (Jackson, J., concurring))). Therefore, the transfer ofS T A T E O F C AL I F O R N I A V

. T R

UMP 48

funds at issue here was unlawful. W e a ffi rm the district court’s declaratory judgm ent to California and New Mexico.

VI

Finally, we c o n sider the district court’s denial o f California and New Mexico’s request for injunctive relief, a decision we review f

or an abuse of discretion. See Midgett v. Tri-Cty. Metro. Transp. Dist. of Or.
, 254 F.3d 846, 849 (9th Cir. 2001). T he district court denied the States’ request f or a perm anent injunction prim arily because the relief sought was duplicative of the relief the district court had already granted in the Sierra Club m atter. That decision, which is the only

o ne b efore us in this appeal, was certainly not an abu s e of discretion

. As w e h ave noted, however, subsequent to the district court’s decision, the S uprem e Court stayed the Sierra Club p erm anent injunction. See Sierra Club
, 140 S. Ct. at 1.

Nevertheless, give n the totality of the considerations at issue in this case, we continue to see no abuse of discretion in the district court’s order, even though at this m om ent, the injunction in Sierra Club no longer affords the States protection. W e em

p hasize, h owever, that depending on further developm ents in these cases, the S tates are free to seek further rem edies in the district court or this Court.

VII

In sum , we affirm th e district court. W e conclude that California and Ne w M exico have Article III standing to file their claim s, that California and New Mexico are sufficiently within Section 8005’s zone of interests to a s s ert an A PA claim
, and that the Federal Defendants violated S ection 8005 in transferring DoD appropriations to fund the El Centro andS T A T E O F C AL I F O R N I A V

. T R

UMP 49

El Paso Sectors of the proposed b order wall. W e also decline
to rever s e the district court’s decision against im posing a perm anent injunction, without prejudice to renewal. Given

our resolution of this case founded upon the viol a t i on s o f Section 8005, we need not—and do not—reach the m erits o f
any other theory asserted by the States, no r r e ach any other issues presented by the parties.

AFFIRMED.

COLLINS, Circuit Judge, dissenting:

In the judgm ent under revie w, the district court granted

summ ary judgm ent and declaratory relief to Ca lifornia and New Mex ico on their claim s challenging the Acting Secretary of D efense’s invocation of § 8005 and § 9002 of th e De p a rtm ent of D efense Appropriations Act, 2019 (“Do D Appropriations Act”), Pub. L. No. 115-245, Div. A, 132 Stat. 2981, 2999, 3 042 (2018), to transfer $2.5 billion in funds that Congress had appropriated for other purposes into a different Departm ent of Defe n s e (“DoD”) appropriation that could then be used b y D oD for construction of border fencing and

accom p anying roads and lighting. The S tates allege that the
trans fe r s w ere not authorized under § 8005 and § 9 002 and that, as a result of the construction activities m ade p ossible by the unlawful transfers, the State s h ave suffered injuries to their sovereign and environm e nt al interests. The m ajority concludes that the States h ave Article III standing; that they have a cause of action to challenge the tr ansfers under the Adm inistrative Pr o cedure A ct (“APA”); that the transfers

were unlawful; and that the district court p roperly determ ined that the States are not entitled to any rel i e f b eyond aS T A T E O F C AL I F O R N I A V

. T R

UMP 50

declaratory ju d g me n t. I agree that at least California has establis he d Article III standing, but in my view the States lack any cause of action to challenge the transfers, under the APA or otherwise. And even assum ing that they had a cause of action, I c on c l u d e that the transfers were lawful. Accordingly, I would reverse the district court’s p artial judgm ent for the St ates and rem and for entry of p artial

summ ary judgm ent in favor of the Defendants. I respectfully dissent.

I

The parties’ dispute over DoD’s funding transfers com es to us against the backdrop of a com p lex statutory fram ework and an equally com

plicated procedural h istory. Before turning to the m erits, I will briefly review both th at fram ework and that history.

A

Upon request from another federal departm ent, the Secretary of Defense is authorized to “provide support for the counterdrug activities” of that departm ent by undertaking the “[c]onstruction of road s and fences and installation o f lighting to blo c k drug sm uggling corridors across interna tional boundaries of the United States.” 10 U.S.C. § 2 84 ( a )
, (b)(7). O n February 25, 2019, the Departm ent o f Home l a n d Security (“DHS”) m ade a f orm al request to DoD for such assistance. Noting that its counterdrug activities included the construction of b o rder infrastructure, see Illegal Imm igration Reform and Imm igrant Responsibili ty Act o f 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, § 1 02(a), 110 Stat. 3009-546, 3009-554 (1996) (codified as am ended as

a note to 8 U.S.C. § 1 103), DHS requested that “DoD,S T A T E O F C AL I F O R N I A V

. T R

UMP 51

pursuant to its authority under 10 U.S.C. § 284(b)(7), as s i s t with the construction of fences[,] roads, and lightin g ” in several specified “Project Areas” in o rder “to bloc k drugsm uggling corridors across the international boun dary between the United States and Mexico.”

On Mar c h 2 5, 2019, the Acting Defense Secretary invoked § 2 8 4 and approved the provision of support for, i n ter alia
, DHS’s “El P aso S ector Project 1,” which wou l d involve DoD construct ion of border fencing, roads, and lighting in Luna a n d Do ña Ana Counties in New Mexico. Thereafter, the Secretary of Hom e l an d Security invoked his authority under § 102(c) of IIRIRA to wai v e a variety o f federal environm ental statute s with respect to the planned construction of border infrastructure in the El Paso Sector, as well as “all

. . . state

. . . laws, regul a t io n s, and legal requirem ents of, deriving from
, or related to the subject of,” those federal laws. See 8 4 Fed. R eg. 17185, 1 7187 (Apr. 24, 2019).

Subsequently, on May 9, 2 0 19, the Acting Defense Secretary again invoked § 2 84, this tim e to approve DoD’s construction o f sim ilar border infrastructure to support, inter alia
, DHS’s “El Centro Sector Project 1” in Im perial County, Cal i fo rn ia. Less than a week later, the Secretary o f Hom elan d S ecu

r ity ag ain invoked his authority under IIRIRA § 102(c) to wa i v e fe deral and state environm ental laws, this tim e w ith respect to the construction in the relevant section o f the El Centro Sector. See 84 Fed. Reg

. 21800, 21801 (May 15, 2019).

Although § 284 authorized the Acting Defense Secretary
to provide this support, there we r e insufficient f unds in the relevant DoD appropriation to do so. Specifically, for FiscalS T A T E O F C AL I F O R N I A V

. T R

UMP 52

Year 2019, Congress h ad appropriated for “Drug Interdiction and Counter-Dru g Activities, Defense” a total of only $670,271,000 that could be used for counter

- drug support. See D oD Appropriations Act, T itle V I, 132 St a t

. at 2997 (appropriating, under Title governing “Other Departm ent of Defense Program s,” a total of “$ 8 8 1
, 5 25,000, of which $517,171,000 shall be for counter-narcotics support”); id
., Title IX, 132 Stat. at 3 042 (appropriating $153,100,000 under the Title governing “Overseas C ontinge n c y Operations”). Ac c o rdingly, to support the El P aso Sector Project 1, the Acting Secretary on March 25, 2019 invoked his authority to transfer appropriations unde r § 8005 of the DoD Approp r iations Act and ordered the transfer of $1 billion from “excess Army m ilitary personnel funds” into the “Drug I n t e r d i c t i o n a n d C o u n t e r

- D ru g Ac t i v i t i e s , De fe n s e ”
app ropriation. That transfer w as accom plished by m oving $993,627,000 from the “Military Personnel, Army” appropriation an d $6,373,000 from the “Reserve P ersonnel, Army” appropriation.

To support the El Centro Sector Proje c t 1
, the Acting Secretary on May 9, 2019 again invoked his transfer authority
to m ove an additional $1.5 billion into the “Drug Interdiction and Counter-Drug A ctivities, Defense” appropriation. Pur s uant to § 8005 of the D oD Appropriations Act, DoD transferred a total of $818,465, 0 0 0 from 1 2 different DoD appropriations into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation. Invoking the Secretary’s d is tinct but com

parable authority under § 9002 to transfe r funds appropriated under the separate Ti t le governing “Overseas Contingency Operations,” DoD transferred $604,000,000 from

the “Afghanistan Security Forces Fund” appropriation and $77,535,000 f rom the “Op eration and Maintenance, Defense-W ide” appropriation into the “DrugS T A T E O F C AL I F O R N I A V

. T R

UMP 53

I n t e r d i c t i o n a n d Co un t e r- Dru g Ac t i v i t i e s , D e fe n s e ” appropriation.

B

The com plex p rocedural context of this case involves two parallel lawsuits and four appeal s to this court, and it has already p roduced one published Ninth Circuit opinion that
was prom ptly displaced by the Suprem e Court.

1

California and New Mexico, joined by several other States, filed this action in the d istrict court against the Acting Defense S ecretary, DoD, and a variety o f o ther federal

o fficers and agencies. In their March 13, 2 019 First Am ended Com

plaint, they sought to challenge, inter alia
, any transfer of fund s b y th e Acting Secretary under § 8005 o r § 9 0 02. T he Sierra Club and the Southern Bor d e r Comm unities C oalition (“SBCC”) filed a sim ilar action, and their March 18, 2019 First Am ende d Co mplaint also sought
to challenge any such transfers. Both sets of plaintiffs m oved for prelim inary injunctions in early April 2019. The portion of the S tates’ m otion that was directed at the § 8005 transfers

was asserted only o n behalf of Ne w Mexico and only with respect to the construction on N ew Mexico’s border ( i.e. , El Paso Sector P roject 1). The Sierra Club m otion was likewise directed at El Paso Sector Project 1, but it also challenged two other projects in Arizona (“Yum a Sector Projects 1 and 2”).

After concluding that the Sierra Club and SBCC w ere likely to prevail on their claim s that the transfer s under § 8005 w ere unlawful and that these o rganizational plaintiffs had dem onstrated a “likelihood of irreparable harm t o theirS T A T E O F C AL I F O R N I A V

. T R

UMP 54

m em bers’ aesthetic and recreation a l interests,” the district
court on May 24, 2 0 1 9 granted a prelim inary injunction

en jo in in g D ef

en d ants f rom using transferred funds for “Yum a Sector P roject 1 and E l Paso Sector Project 1. ” 1 In a

com panion o rder, however, the district c ourt denied prelim inary injunctive relief to the States. Although the court held that N ew Mexico was likely to succeed o n its claim that the transfers under § 8005 were unlawful, the court concluded that, in light o f the grant of a prelim inary injunct i o n against El Pa so Sector Project 1 to the Sierra Club and S BCC, New Mexico would not suffer irreparable harm from the denial o f its d uplicative request for such r e l i e f. On May 29, 2019, Defendants appealed the prelim inary injunction in favor o f the Sierra Club and SBCC, and after the district court refused
to stay that injunction, Defendants m oved in this court f o r an

em ergency stay on June 3, 2 019. N ew Mexico did not appeal the district court’s denial of its duplicative reques t for a prelim inary injunction.

2

While the Defendants’ em ergency stay request was being briefed and considered in this court, Californ ia and New Mexico (but not the other S tates) m oved for partial summ ary judgm ent on June 12, 2019. Th e mo t ion was lim ited to the issue of whether the transfers under § 8005 and § 9002 were lawful, and it requested corresponding declaratory relie f, as well as a p erm anent injunction against the use of transferred funds for El Paso Se ctor Project 1 and El Centro Sector

1 By t he tim e the district court ruled, DoD had decided not to u se funds t ransferre d u n d e r § 8005 for any construction in Yum a Sector Project 2, and so t

he request for a prelim inary injunction as to that project

was m oot.S T A T E O F C AL I F O R N I A V

. T R

UMP 55

Project 1. Th e Sierra Club and S BCC filed a com p arable

summ ary judgm ent m otion that sa m e day, directed at those
two p r o j ects, as well as at Yum a S ector Project 1 and three other Arizona projects (“Tucson Projects 1, 2
, a nd 3”). Defendants filed cross-m otions for summ ary judgm ent on the legality of the transfers under § 8005 and § 9002 with respect to the corresponding projects at issue in each case.

On June 2 8
, 2019, the district court granted p artial

summ ary judgm ent and declaratory relief to both s e ts o f plaintiffs, concluding that the transfers under § 8005 and § 9002 w ere un l a wful. T h e court granted perm anent injunctive relief to the Sierra Club and SBCC against all six projects, but it denied any such relief to California and New Mexico. The district court concluded that California and New Me xico had failed to prove a threat of future dem onstrable envir o n me ntal harm

. T he court expressed doubts about the States’ alternative theory that they h ad dem onstrated injury to their sovereign interests, b ut the court ultim ately concluded that it did n ot need to resolve that issue. As before, the district court instead held that California and New Mexico would not suffer any irreparable harm in light of the duplicative relief g ranted to the Sierra Club and SBCC. The district court d eni e d Defendants’ cross-m otions for

summ ary judgm ent in both cases. Invoking its authority under Federal Rule o f Civil Procedure 5 4 (b), the district court entered partial judgm ents in f avor of, respectively, the Sierra Club and SBCC, and C alifornia and New Mexic o

. The district court denied Defendants’ request to stay the
perm anent injunction pending appeal.S T A T E O F C AL I F O R N I A V

. T R

UMP 56

3

On June 29, 2019, Defendants tim e l y ap p ealed in both

cases and asked this court to stay the perm anent injunction in the S ierra Club case based o n the sam e briefing and argum ent that had been presented in the prelim inary injunction appeal in that case. California and New M e xico tim ely crossap pealed nine days later. On July 3, 2019, thi s c o urt consolidated Defendants’ appeal of the j u d gm ent and
perm anent injunction in the Sierra Club case with Defendants’ pending appeal of the prelim inary injunct i on. 2 That sam e d ay, a m otions panel of this court issued a 2–1 published decision denying Defendants’ m otion for a stay o f the perm anent injunction (which h a d overtaken the prelim inary injunction). See Sierra C lub v. Trump
, 929 F.3d 670 (9th Cir. 2019).

Defendants then applied to the Suprem e Court for a stay of the perm anent injunction pending appeal, which the Court granted o n July 26
, 2 019. S ee Trump v. Sierra Club
, 140 S. Ct. 1 (2019). That stay rem ains in effect “pending disposition of the Governm ent’s appeal in the United States Court o f Appea ls for the Ninth Circuit and disposition of the Governm ent’s petition for a writ of certiorari, if such writ is tim ely sought.” Id. at 1. In granting the sta y , the Court concluded that “the Governm ent has m ade a sufficient sho wing at this stage that [the Sierra Club and SBCC] have

no cause of action to obtain review of the Acting Secretary’s

com pliance with Section 8005.” Id.

2 This court later consolidated the appeal a n d c ro s s -appeal in the States’ case with the already-consolidated appeals in the Sierra Club case.S T A T E O F C AL I F O R N I A V

. T R

UMP 57

II

The Governm ent has not contested the Article III s tan d in g of C alifornia and New Mexico on appeal, but as the m ajority notes, “‘the court has an independent o bligation to assure that standing exists, regardless of whether it is challenged by any of the parties.’” See Maj. Opin. at 19 n.10 (quoting Summers

v. Earth Is la n d I

nst. , 555 U.S. 488, 499 (2009)). As “an indispensable part of the p laintiff’s case, each elem ent” o f Article III standing “m

ust be support e d i n the sam e way as any other m at t e r o n which the plaintiff bears the burden o f proof, i.e. , with the m anner and degree of evidence required
at the successive stages of the litigation.” Lujan v. Defenders of Wildlife (

L ujan v. D efenders ), 504 U.S. 555, 561 (1 992). Thus, alth ou gh well-pleaded allegations are enough at the

m otion-to-dism iss stage, they are insufficient to establish standing at the summ ary-judgm ent stage. Id

. “In response to

a summ ary judgm ent m otion,

. . . the p laint i ff c a n no longer
rest on such m ere allegations, but m u st set forth by affidavit

or other evidence specific facts, which for purposes of the

s umm ary judgm ent m otion will be taken to be true

. ” I d

. (sim plified). 3

In reviewing standing sua sponte in the context o f crossm otions for sum

m ary judgm ent, it is appropriate to apply the

3 I favor the general practice of reciting th e l a n g u a ge o f the quoted

source as i f that source were stating those exact word s fo r th e first tim e, thereby disregarding any i ndicia of quotations within quotations (such as brackets, ellipses, and m u ltipl e layers o f quotation m arks). Going forward, I will use the word “sim plified” rather than “cleaned up,” because it seem s less colloquial and it avoids suggesting that t he m ore precise q uotation form at needed “cleaning.” Of course , i f I m ake any changes t o the sim

plified quotation, then those would be s h o w n with brackets or ellipses.S T A T E O F C AL I F O R N I A V

. T R

UMP 58

m ore lenient standard that takes th e plaintiffs’ evidence as true and then asks whether a reasonable trier of fact could find Article III standing. Lujan v. Defenders
, 5 04 U.S. at 563 (applying this standard in evaluating whether Governm ent’s

cro s s -m otion for summ ary judgm ent should have been granted). In their briefs below concerning the parties’ crossm otions, California a n d N ew Mexico asserted that Defendants’ allegedly unlawful conduct caused both harm to th e St a t es ’ s o v e r ei g n i n t e r e s t s i n e n f o r c i n g th ei r environm ental laws as well as actual environm ental h arm to anim als and plants within the States. I agree that at least the second of these two ass e rt ed injuries—the threatened

occurrence of actual environm ental h arm —i s sufficient to establish Article III standing in this case, at least a s to California. 4 Although the district court correctly recognized tha t th e States’ evidence o f injury was very thin, see infra
note 6, Ca li fo rnia’s evidence is sufficient to establish standing at the sum m ary-judgm ent stage.

Eve n assum ing arguendo that the States m ust show a threat of injury t o a p rotected species within their borders, rather than m erely injury t o individual anim als or plants

4 As the m ajority notes, see Maj. Opin. at 1 9 n.10, the district court explicitly addressed Article III standing to challenge the transfers only in the context of New Mexico’s request f or a pre lim inary injunction. Although Article III standing was not revisited when both California and New Mexico subsequentl y m o v ed f o r summ ary judgm ent and a p erm anent i n j u n ction, the States’ showing of injury in support of a p erm anent injunction p rovides a sufficient b a s i s for evaluating their Article I II standing.S T A T E O F C AL I F O R N I A V

. T R

UMP 59

belonging to such a species, 5 I think that California h as m ade

a sufficient showing. Accepting the S tates’ evidence as true, and drawing all reasonable infere nces in their f avor, a reasonable tr i e r of fact could conclude that the construction activities associated with El Centro Sector Proje c t 1 in California could m a t e rially adversely affect the local population of flat-tailed horned lizards, which California has classified as a “Specie s of Special Concern.” Specifically, California presented declarations fr om two biologists

e xplaining h ow DoD’s construction activities, and th e resulting border barrier, would m at er i a l ly harm the lizard population by increasing opportunities f or natural p redators
t o catch lizards, by creating a “genetic break” between the populations within the species’ sm all range area o n either side of the barr i er, and by accidentally killing a potentially significant num

ber of lizar ds during the construction itself. This evidence is sufficient to establish an injury-in-fact to California’s environm ental int erests. Cf

. Massachusetts v. EPA
, 549 U.S. 497, 521 ( 2007) (significant h arm to ecosystem is an injury t o the S tate for Article III standing purposes). 6

5 There are aspects to the States’ argum ents bel o w—and of the

m ajority opinion h ere—that seem im plicitly to rest on the expansive view that the States would suffer cognizable injury-in-fact if t here is harm t o a

s in gle p rotected anim al or to any of the plants in the construction are a

. Such theories p ush the outerm ost lim its of p lausible injury-in-fact, cf

. Lujan v. Defenders
, 504 U.S. at 566–67, but i t is unnecessary t o rely o n them here.

6 At t he pe rm a n ent-injunction stage, t he district court found unpersuasive California’s evidence o f potential harm t o t h i s lizard species, especially when weighed against t he Governm ent’s countervailing evidence of m itigation efforts. I do not n ecessarily disagree w i th th at weighing of t

he com peting evidence, but it addresses the i njury issue in a different posture under different standards. T he district court’s denial o fS T A T E O F C AL I F O R N I A V

. T R

UMP 60

California’s showing o f a m aterial risk to a “Species o f Special Concern” is fairly traceable to the challenged funding transfers and would be redressed b y a favor ab l e d ecision. Lujan v. Defenders
, 504 U.S. at 560–61. It therefore suffices
to give us Article III jurisdiction to address the m erits of the States’ c auses of action. W e thus m ay p roceed to do so without having to address New Mexico’s standing. See Secretary of the Interior v. California
, 464 U.S. 312, 319 n.3 (1984) (“Since th e St a te of California clearly does have standing, we need not address the standing of th e other [plaintiffs], whose position here is identical to the State’s.”). And giv e n my view that the States’ legal challenges fail, I perceive no obstacle to entering judgm ent against both California and New Mexico without determ ining whether the latter has st a n d i n g. See S teel Co. v. C

itizens for a Better Environment
, 523 U.S. 83, 98 (1998). 7

perm anent injunctive relief reflected an exerci s e of remedial d iscretion after t he court ha d found the transfers invalid as a m atter of law. Accordingly, in weighing the States’ evidence of injury in deciding how
to exercise that discretion, the district court was not required to, and did not, evaluate the States’ evidence of injury in the light m ost favorable to th e m (a s w e m

ust do as to the standing issue here). See Continental Airlines

, In c

. v

. Intra Brokers, I n c. , 24 F.3d 1099, 1102 (9th Cir. 1994) (where d istrict court granted summ ary judgm ent and p erm anent injunction, power to issue injun ct io n w as reviewed de novo, but “the distri c t c ourt’s exercise o f that power” was reviewed “for abuse o f discretion”).

7 By contrast, New Mexico’s standing is relevant to the scope of relief that can be afforded if, as the m ajority concludes, the § 8005 and § 9002 transfers are invalid

. California suffers no i njury from the construction activities concerning the El Paso Sector Project 1, and so California lacks standing to r equest or o btain relief that extends to that separate p roject. Lewis v. Casey
, 518 U.S. 343, 357 (1996) (“The rem edy m ust o f c ourse be lim ited to the inadequacy that pro du c e d the injury in fact that the plaintiff has estab l i shed.”). Accordingly, before affirming the districtS T A T E O F C AL I F O R N I A V

. T R

UMP 61

III

Our first task is to determ ine wh e ther the States have asserted a v iable cause of action that properly b rings the lawfulness of the transfers before us. S ee Air Courier Conf.

v. American Postal Workers U nion AFL-CIO
, 498 U.S. 517, 530–31 (1991). The m ajority holds that California and New Mexico have a valid cause of action under the APA. See Maj. Op i n. a t 30. I disagree with that conclusion, and I al s o disagree with the States’ alternative argum ents that they m ay assert either an equitable cause of action under the Constitution or an “ultra vires” cause of action. 8

c ourt’s declaratory judgm ent that the use o f funds transferred u n de r § 8005 and § 9002 “for E l Paso Sector P roject 1

. . . is unlawful,” the

m ajority properly exam ines New Mexico’s standing. I express no view

as t o w h eth er the m ajority is correct in concluding that New Mexico’s evidence of environm ental harm was sufficient, notwithstanding the district court’s conclusion that this evidence rested largely on un supported speculation. See Maj. Opin. at 23–24; cf

. California v. Trump
, 2019 W L 2715421, at *4 (N.D. Cal. June 28, 2019) (“New Mexico’s speculation that a border barrier might prevent i nterbreeding, which might h a m per genetic diversity, which might render Mexican w o lves more susceptible
to diseases falls far short of the necessary dem onstrable evidence of harm
to a p rotected species”). However, for the re a s ons expressed below, I disagree w ith the m ajority’s conclusion that New Mexico and California have standing based o n their inability to enforce their environm ental laws. Maj. Opin. at 24–28. Given that t his asserted injury is due t o the Secretary

o f Hom eland Security’s waiver under § 102 of IIRIRA, and not to th e funding transfers, it would not be redressed by an injunction aim ed only at the transfers. See infra at 68–70.

8 In its m erits analysis, t

he m ajority scarcely cites the m o tions panel’s published decision, which addressed the Sierra Club’s and SB CC’s likelihood of success on the m erits o f m any of the sam e issues before us. I agree with the m ajority’s i m plicit conclusion that the m otion s p a n el ’s opinion does not prevent this m eri t s p a nel from exam ining these issues afresh. Alth o ugh the m otions panel decision is a precedent, it rem ainsS T A T E O F C AL I F O R N I A V

. T R

UMP 62

A

In authorizing suit by any p erson “adv e r s el y affected o r aggrieved by agency action within the m eaning o f a relevant statute,” 5 U.S.C. § 702, the APA incorporates th e fa m iliar zone-of-interests test, which reflects a background principle of law that always “applies unles s i t i s expressly negated,” Bennett v. S

pear , 520 U.S. 154, 1 6 3 (1997); see also Lexmark Int’l, Inc. v. Static C

ontrol C omponents, Inc.
, 572 U.S. 118, 129 (2014). 9 Th a t test requires a plaintiff to “establish that the injury he com

plains of ( his aggrievem ent, or the adverse effect upon him ) falls within the ‘zone of interests’ sought to be protected by the statutory p rovision whose violation f o rm s th e legal b asis for his com p laint.” L ujan v. NWF

, 497 U. S.
at 883 (quoting Clarke v. Securities Indus. Ass’ n , 47 9 U.S.

subject to r econsideration by this court until we issue ou r m andate. See U n i t e d States v. Houser
, 804 F.2d 565, 567–68 (9th Cir. 1986) (distinguishing, on this point, between r econsideration of a prior panel’s decision “during the course of a single appeal” and a decision “on a prior appeal”); cf

. Gonzalez v. Arizona
, 6 77 F.3d 3 8 3
, 389 n.4 (9th Cir. 2012) (en banc) (three-judge panel lacks authority to overrule a decision in a prior appeal in the sam e case). To the extent that Lair v. Bullock
, 798 F.3d 736, 747 (9th Cir. 2015), suggests otherwise, that suggestion is dicta and directly contrary to our decision i n Houser

. See East Bay Sanctuary Covenant v. Trump
, 950 F .3d 1242, 1261–65 (9th Cir. 2020). I n all events, t he precedential force o f the m o tions panel’s o pinion was largely, if not entirely, vitiated by t he Suprem e Court’s subsequent decision to grant the very stay that the m o tions panel’s opinion denied.

9 The Suprem e Court has not squarely addressed whether the zone-ofinterests t est applies t o a plaint iff who claim s to have “suffer[ed] legal
wrong because of a g e n cy action,” which is the other class of persons authorized to sue under the APA, 5 U.S.C. § 702. See Lujan v. National Wildlife Fed. (

L ujan v. NWF

), 497 U.S. 871, 882–83 (1990). The States have not invoked any such theory here, so I have no occasion to address it.S T A T E O F C AL I F O R N I A V

. T R

UMP 63

388, 396–97 (1987)). T his test “is not m eant to be especially dem anding.” Clarke
, 479 U.S. at 399. B ecause the A PA was intended to confer “generous review” of agency acti o n , th e zone-of-interests test is m ore flexibly applied un der that
statute than elsewhere, and it requires only a showing that the plaintiff is “ arguably within the zone of interes t s to be protected or regul a t ed by the statute or constitutional guarantee in question.” Association of Data Processing Serv. Orgs., Inc. v. C

amp ( Data Processing), 397 U.S. 150, 153, 156 (1970) (em

p hasis added); see also Bennett
, 5 2 0 U. S. at 163 (“what com es within the zone of interests of a statute for pur p os es of obtaining judicial review of adm inistrative action under the generous review p rovisions of the APA m ay not do so for other purposes”) (sim plified). Because an A PA plaintiff n eed only show th a t its interests are “arguably” within the relevant zone of interests, “the benefit of any doubt
goes to the pl ai n tiff.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indi a ns v. Patchak
, 567 U.S. 209, 225 (2012). Although these standards are generous, the States have failed to satisfy them

.

1

In applying the zone-of-interests test , we m ust first identify the “statutory provision whose violati on f orm s the legal basis f

or [the] com

plaint” or the “gravam en of the

com plaint.” Lujan v. NWF

, 497 U.S. at 8 83, 886; see also Air Cou r ier C

onf.
, 498 U.S. at 529. That question is easy here. The States’ com

plaint alleges that the transfers m ade b y DoD “do not satisfy the criteria under section 8005”; that Defendants therefore “have acted ultra vires in seeki n g to transfer funding pursuant to section 8005”; tha t DoD consequently “acted unconstitutionally and in excess of [its] statutory authority in diverting federal funds” purs u a n t toS T A T E O F C AL I F O R N I A V

. T R

UMP 64

§ 8005; and that therefore “these actions are unlawful a n d should b e set aside under 5 U.S.C. section 706.” 1 0 Section 8005 is plainly the “gravam en of th e c o mplaint,” and it therefore de fi nes the applicable zone of interests. Lujan v. NWF , 497 U.S. at 886.

Altho u g h th e S tates inv o k e th e Ap p r o priations Clause and the constitutional separation of powers i n contending that Defendants’ actions are “unlawful” within the m eaning of the APA, any such const i tu t i o nal violations here can be said to have occurred only if the transfers violated the lim itations set forth i n § 8005: if Congress authorized DoD to transfer the appropriated funds f

rom o ne account to another, and to spend them accordingly, th e n the m oney has been spent “in Consequence o f Appropriations m ade b y Law,” U.S. C ON S T

. art. I, § 9, cl. 7, and the Executive has not otherwi se tr a n sg ressed the separation of p owers. 1 1 All of California’s theories for challenging the transfe r s un d er the APA— whether styled as constituti on a l claim s or as statutory claim s—thus rise or fall based on whether DoD has transgressed the lim itation s o n transfers set forth in § 8005. As a result, § 8005 is obviously the “statute whose violation is the gravam en of the com plaint.” Lujan v. NWF

, 497 U.S.

a t 8 8 6

. To m aintain a claim under the APA, therefore, California m

ust establish that it is w ithin the zone of interests

10 Because the lim i tations on transfers set forth in § 8005 also apply to transfers under § 9002, see 132 Stat. at 3042, the parties use “§ 8005” to refer to both provisions, and I will generally do so as well.

11 Th e o nly p ossible exception is the S tates’ argum ent that § 8005 itself violates the Appropriations Clause and the constitutional separation of powers. As explained b elow, that co n te ntion is frivolous. See infra at 76–77.S T A T E O F C AL I F O R N I A V

. T R

UMP 65

of § 8 005. On this p o int, the m ajority and I are in ap p arent agreem ent. S

ee Maj. Opin. at 30–31. 1 2

2

Having identified the relevant statute, our next task is to “discern the interests arguably to be p rotected by the statutory provision at issue” and then to “inquire whether the plaintiff’s interests affected b y the agency action in question are am ong them .” National C

redit U nion Admin. v. First Nat’l Bank & Trust Co. (

NCUA ), 522 U.S. 479, 492 (1998) (sim plified). Identifying the interests protected by § 8005 is n o t d ifficult, and here the States’ asserted interests are not am ong them

.

Section 8005 is a grant of g e neral transfer authority that allows the Secretary of Defense, if he d eterm ines “that such action is necessary in the national interest” and if the Office of Managem ent and Budget approves, to transfer f rom o ne DoD “appropriation” i n t o another up to $4 billion o f the funds that have been appropriated under the DoD Appropriatio ns Act “for m ilitary functions (except m ilitary construction).” See 132 Stat. at 2999. Section 8005 contains

12 The States briefly c o n t e n d t hat DoD has exceeded its authority under § 284, but even assum ing a rguendo that t he States have a cause o f action to raise such a challenge, it is patent l y without m erit. The States
note that § 284 contain s a special reporting requirem ent for “sm all scale construction” projects, which are defined as projects costing $750,000 o r less, 10 U.S.C. § 284(h)(1)(B), (i)(3), and they argue that this shows t hat Congress did not authorize pro j ec ts o n the scale at issue here. The inference is a n on sequitur: the fact that Congress requires special reporting o f the s e s m a l l er projects d oes not m ean that they are the only projects authorized. Congress m ay have im posed such a unique reporting requirem ent in order to capture the sort of sm a l l e r-s c ale activities t hat

m ight otherwise have escaped its notice.S T A T E O F C AL I F O R N I A V

. T R

UMP 66

five provisos that further regulate this transfer authority, and the only lim itations on the Secretary’s authority tha t th e States claim were violated here are all c o n t a i n e d in the first such proviso. That proviso states that “such aut h o rity to transfer m ay not be used unless for higher priority item s, based on unforeseen m ilitary requirem ents, than th o s e for which originally appropriated and in no case where the item for which funds are requested h as been d e n ie d by the Congress.” Id

. 1 3 The rem aining prov isos require prom pt notice to Congress “of all transfers made pursuant to this authority or any other authority in this Act”; proscribe the use of funds to m ake requests to the C omm itte es on Appropriations f

or repr og r amm ings that are inconsistent with the restrictions described in the first proviso; set a tim e lim it for m aking requests fo r m ultiple reprogramm ings; and

exem p t “transfers am ong m ilitary personnel appropriations” from counting towards the $4 billion lim it. Id

. Focusing on “the particular provision of law upon which the plaintiff relies,” Bennett
, 520 U.S. at 175–76, m akes clear that § 8005 as a whole, and its first proviso in particular, are aim ed at tigh te ning congressional control over the
appro priations process. The first proviso’s g eneral prohibition on transferring funds f or any item that “has been denied by the Congress” is, on its face, a prohibition o n using the transfer authority to effectively reverse C ongress’s specific decision to d eny funds to DoD for that item

. 1 32 S tat. at 2 999. The second m ajor lim itation im posed by the first proviso states that the tr a n s fer authority is not to be used unless, considering the it e ms “ for which [ the funds

13 Sim ilar language has been codified into perm anent l a w

. See 10 U.S.C. § 2 214(b). No party contends that § 2214(b) alters the relevant analysis under the comparably worded provision in § 8005.S T A T E O F C AL I F O R N I A V

. T R

UMP 67

were] originally appropriated,” there are “higher priority item s” f or which the funds should now be u s e d in light o f “m ilitary requirem ents” that were “ unforeseen” in DoD’s request for F iscal Year 2019 appropriations. Id

. The obvious focus of this restriction is likewise to p rotect congressional judgm ent s about appropriations by (1) restricting DoD’s ability to reprioritize the use o f funds differently from h ow Congress decide d t o do so and (2) precluding DoD from
transferring funds appropriated by Congress for “m ilita ry functions” for purposes that d o not reflect “m ilitary requirem ents.” The rem aining provisos, including the
cong ressional reporting requirem ent, all sim ilarly aim to

m aintain congressional control over appropriations. And all of the operative restrictions i n § 8005 that the States invoke here are focu s ed solely on lim iting DoD’s ability to u se the transfer aut h o rity to reverse the congressional judgm ents reflected in D oD’s appropriations.

In addition to p reserving congressional control over DoD’s appropriations, § 8005 also aim s to give DoD som e

m easure of fl e x ibility to m ake necessary changes. Notably, in authorizing the Secretary to m ak e tr ansfers am ong appropriations, § 8005’s fi r s t proviso specifies only o ne criterion that he m

ust consider in e x ercising that discretion: he m ust d eterm ine whether the item for which the funds will be used i s a “ higher priority item []” in light o f “unforeseen military requirem ents.” 132 S tat. at 2999 (em p hasis added). Under the statute, he need not consider any other f actor concerning either the o r i ginal use for which the f unds were appropriated or the new use to which they will now be put.

In light of these features of § 8005, the “interests” that the States claim a r e “affected by the agency action in question”

a re not “am ong” the “interests arguably to b e protec t e d” b yS T A T E O F C AL I F O R N I A V

. T R

UMP 68

§ 8005. NCUA
, 522 U.S. at 4 92 (s i mp lified). In particular, the States’ asserted environm ental interests clearly lie outside the zone o f i n te re sts protected by § 8005. The statute does
not me n t i on environm ental interests, nor does it require the Secretary to consider such interests. On the con tr a ry, the
statute requires him o nly to consider whether a n i tem is a “higher priority” in light of “m ilitary requirem ents,” and it is otherwise entirely neut r a l as to the uses to which the funds will b e put. Indeed, that neutrality is reflected on the face o f the statute, which says that, o nce the transfer is m ade, the fun d s are “m erged w ith and

. . . available for the same purposes , and for the sam e tim e period, as the appropriation

o r fund to which transferred .” 132 Stat. at 2999 (em phasis added). Be cause the alleged environm ental harm s that the States assert here play no role in the analysis that § 8005
requ i re s the S ecretary to conduct, and are not am ong the harm s that § 8005’s lim itations seek to address or p rotect, the States’ interes t s i n avoiding these harm s are n ot within § 8005’s zone of interests.

Moreover, focusing on the specific interests for which the States have presented sufficient evidentiary support at the

summ ary-judgm ent stage, see Lujan v. NWF
, 4 97 U.S.
at 884–85, f

urther confirm s that, in deciding whether to

r e d ir e c t excess m ilitary personnel funds under § 8005 to assist DHS b y b uilding fencing to stop international drug

sm u g gl i n g, the Acting Secretary of Defense did not h ave to give even the slightest consideration to whether that
reprogramm ing of f

unds wo ul d result in the death of m ore flat-tailed horned lizards. 1 4 Put sim ply, the States’

14 It is unnecessary t o exhaustively review whether California or New Mexico has p rovided the requisite fa c tu al support w ith respect to their claim s of potential harm s to other species of anim als or plants, see supraS T A T E O F C AL I F O R N I A V

. T R

UMP 69

environm ental interests are “‘so m arginally related to

. . . the
purposes im

plicit in the statute that it c a n not reasonably be

assum ed that Congress intended to p e rm it the suit.’” Patchak , 567 U.S. at 225 (quoting Clarke , 479 U.S. at 399).

For sim ilar reasons, the States’ invocation of th eir sovereign interests is also insufficient. The m ajority finds that these interests “app[ly] with particular force” because the Se cretary’s transfer of funds ultimately had an effect o n “California’s and New Mexico’s ability to enforce their state environm ental laws,” see Maj. Opin. at 34
, but that consideration plays no role—not even indirectly—i n th e

a n alysis that § 8005 requires. Section 8005 authorizes the Secretary to m ove funds from one appropriation to another if (1) that transfer is consistent w ith the appropriations-processbased constraints discussed earlier; and (2) the transfer is for item s that the Secretary deem s to be “higher priority” in light of “m ilitary requirem ents.” 132 S tat. at 2 9 9 9

. The statute does not itself m en t io n or contem plate the displacem ent o f
state laws as a res u l t of the transfer, nor does it require that
any such derogation from state sovereignty be considered in evaluatin g the proposed transfer. Moreover, here the ultim ate preem ption o f state law o ccurred, not as a result of § 8005, but rather as a result of DHS’s separate d eterm ination, under

a com pletely separate statute ( viz
., IIRIRA § 1 0 2 (c ) ), that
state (and federal) environm ental laws would be waived. The States m ight perhaps b e within the z on e of interests with respect to that statute, but they do not challenge the validity of that waiver under § 102(c ) in this case, and in any event, California h as al re a dy b rought (and lost) a challenge to an earlier § 102(c) waiver with respect t o a s im ilar border

note 7, because t

here is n o basis i n l a w o r lo g ic for concluding that i t would m ake any difference t o the zone-of-interests analysis under § 8005.S T A T E O F C AL I F O R N I A V

. T R

UMP 70

fencing project. See In re Border Infrastructure Envtl. Litig
., 915 F.3d 1213 (9th Cir. 2019).

The States nonetheless insist that they are within § 8005’s

zone of interests because the actual activities that are taking place under the valid waiver, in derogation of th ei r sovereignty, are only o ccurring becau s e th e § 8005 transfer

was approved. This argum ent fails. Once a v alid § 102(c) waiver has been issued, the S tates’ laws have been definitively set aside as a dejure m atter under the Suprem acy Clause, and halting construction wi l l not bring those laws back into f

orce or redress that in j ury to the States’ sovereig n ty

. The residual interest o n which the S tates rely, therefore, is not an injury to their sovereignty, b ut m erely the interest in ensuring that activities that the States consider undesir ab l e d o not occur. But the S uprem e Court has consistently held that “assertion of a right to a particular kind of G overnm ent conduct, which the Governm ent has violated by acting d ifferently, cannot alone satisfy the requirem ents o f Art. III without dra ining those requirem ents of m eaning,” Lujan v. Defenders
, 504 U.S. at 576 (sim plified), and an intere st that is not cognizable f or Article III purposes is irrelevant for zone-of-interests purposes as w ell, Sierra Club

v. Morton
, 405 U.S. 727, 733 (1972). Sim ilarly, to the extent that the States rely on an interest in “hav[ing] the Governm ent act in a c c ordance with law” such as § 8005, see Lujan v. Defenders
, 504 U.S. at 575, such an interest is not cognizable under Article III and cannot satisfy the zone-of-interests test here.S T A T E O F C AL I F O R N I A V

. T R

UMP 71

3

The m ajority m akes two m ain argum ents a s t o why the States n onetheless fall within § 8 005’s zone of interests, but neither has m erit.

First, the m ajorit y c o ntends that “the states regularly benefit from D oD’s use of S ection 8005,” and it cites several past exam ples in which the statute was used to transfer funds that allowed the m ilitary to assist in addressing storm dam age from hurricanes that occurred in va rious States. See Maj. Opin. at 35–36. This argum ent is foreclosed by the Suprem e Court’ s d ecision in Lujan v. NWF

. The Court in that case held that, because satisfaction of the zone-of-interests test is

an elem ent of the cause of action that th e plaintiff seeks to invoke, the plaintiff at the summ ary-judgme n t stage has the burden “to set forth specific f acts (even though they m ay be controverted b y the Governm ent) showing that he has satisfied its term s,” i.e.
, that “the injury he com p lains o f ( his aggrievem ent, or th e a dverse effect u pon him )” falls within the relevant statute’s zone o f i n terests. 497 U.S. at 883–84. Here, in opposing summ ary j u dg ment, California and New Mexico m ade no showing whatsoever that, in the absence o f these tra nsfers to the “Drug Interdiction and Counter-Drug Activities, Defense” appropria t ion, the funds in question would otherwise h ave been transferred for the d irect benefit of either State. Absent such an e v i de n t i ary showing, the States have failed to show that they s a t i s fy the zone-ofinterests test under such a theory. Id

. at 882–99 (exhaustively analyzing the evidence presente d at summ ary judgm ent and concluding that the plaintiffs had failed to carry their burden under the zone-of-interests test).S T A T E O F C AL I F O R N I A V

. T R

UMP 72

Second, the m ajority asserts that California and New Mexico fall within § 8005’s zone of interests because § 8005

was “prim arily intended to bene fit [Congress] and its constitutional power to m anage appropriations,” and the States’ “interests are congruent with those of Congress.” See Maj. Opin. at 32–33 (em

p hasis added). This theory also fails. As the Suprem e Court m ade clear in L ujan v. NWF
, the zoneof-interests test requires the plaintiff t o make a factual showing that the pl a intiff itself, or som eone else whose interests the plaintiff m ay properly assert, has a cognizable in t e rest that falls within the relevant statute’s zone o f interests. 497 U .S. at 885–99 (addressing whethe r the interests of NW F—or of any of its m em bers, whose interests NW F could validly assert under the associational standing doctrine of H

unt v. Washington State Apple Advert. C omm’n
, 432 U.S. 333 (1977 )—had been shown to be within the relevant zone o f i n terests). I am aware of no precedent that would support the view that C alifornia and New Mexico can represent the interests o f Congress (akin to NW F’s representation of the interests o f its m em bers), m u ch less that the States ca n d o s o m erely because they are sym p athetic to Congress’ s p erceived policy objectives. 1 5 But I do not read the m ajority opinion as actually relying o n s u ch a novel theory. Instead, the m ajority suggests tha t , m erely because the S tates’ ove r a ll litigation objectives here are sufficiently

15 Even if the States could assert Congress’s interests in s o m e representational capacity, t hey could do so only if the injury t o Congress’s interests satisfied the requirem ents o f Article I II standing. See A i r Courier Conf.
, 498 U.S. at 523–24 (zone-o f-i n t e rests t est is applied to those injuries-in-fact that m eet Article III requirem ents). I express no view on
th a t qu e stion. Cf

. U.S. House of Reps. v. Mnuchin
, 379 F. Supp. 3d 8 (D.D.C. 2019) (holding that House lacks Article III standing to challenge the transfers at issue here), appeal ordered heard en banc
, 2 0 20 W L 1228477 (D.C. Cir. 2020).S T A T E O F C AL I F O R N I A V

. T R

UMP 73

congruent with those of Congress, the St a t es have thereby satisfied the zone-of-interests test with respect to the States’

own interests. This contention is clearly wrong.

The critical flaw in the m ajority’s analysis is that it rests, not on the interests asserted by the States (preservation of the flat-tailed horned lizard, etc.), b ut on the legal theory that the States invoke to protect those interests here. But the zone-ofint e re s ts test focuses on the f orm er and not the latter. See Lujan v. NWF

, 497 U.S. at 885–89. In de e d, if the m ajority

were correct, that would effectively elim inate the zone-ofinterests test. By definition, anyone who alleges a violation of a particular statute has thereby invoked a legal theory that is “congruent” with the interests of those other perso ns o r entities who are within that statute’s zone-of-interests. Such

a tautological congruence b et ween the States’ legal theory and Congress’s institutional interes ts i s n o t sufficient to satisfy the zone-of-interests test here.

The m ajority suggests that its approac h is supported by the D.C. Circuit’s dec i s i on in Scheduled Airlines Traffic Offices, Inc. v

. Department of Defense
, 87 F.3d 1356 (D.C. Cir. 1996), see Maj. Opin. at 32, but that is wrong. As the opinion in that case m akes clear, the D.C. Circuit w as relying

on the sam e traditional zone-of-interests test, under which a plaintiff’s interests are “outside the statute’s ‘zone o f interests’ only ‘if the plaintiff’ s i n terests are so m arginally rel a te d to or inconsistent with the purposes im plicit in the

s tatute that it cannot reasonably be assum ed that C ongres s intended to perm it the suit.’” 8 7 F.3d at 1360 (quoting Clarke
, 479 U.S. at 399). The court m entioned “congruence” in the course of explaining why the plaintiff’s interests in that

cas e were “not m o re likely to frustrate than to further statutory objectives,” i.e.
, why those interests were notS T A T E O F C AL I F O R N I A V

. T R

UMP 74

inconsistent with the purposes imp l icit in the statute. Id

. (sim plified). It did n ot thereby suggest—and could not properly have suggested—that th e mere lack of any such inconsistenc y is alone sufficient under the zone-of-interests
test. He r e, the problem is not that the States’ interests are inconsistent with the p urposes of § 8005, but rather that they

are too “m arginally related” to those p urpo se s. See supra at 68–69.

Lastly, the m ajority suggests that we m ust apply the zoneof-interests test “broadly in this context,” because—given the difficulties that congressional plaintiffs have i n establishing Article II I standing—otherwise “no agency action taken pursuant to Section 8005 could ever be challenged under the APA.” See Maj. Opin. at 33, 36. The assum p tion that no o ne will ever be able to sue fo r any violation of § 8005 seem s doubtful, cf

. Si e rra C

lub v. Trump
, 929 F.3d at 7 15 (N.R. Sm ith, J., dissenting) (suggesting that “those who would have been entitled to the funds as originally appropriated” m ay be within the zone of interests of § 80 0 5), but in any event, we

are not entitled to b en d t

h e o t h e r w ise applicable—and already lenient—standards to ensure that som eone will be able to sue in this case or others like it.

B

In addition to asserting claim s under the APA, California and Ne w M e xico also purport to assert claim s under the Constitution, as well as an equitable cause of action to enjoin “ultra vires” conduct. T he States do no t h av e a cause o f action under either of these theories.S T A T E O F C AL I F O R N I A V

. T R

UMP 75

1

The States contend that they are not r e qu i red to satisfy
any zone-of-interests t e st to the extent that they assert nonAPA causes o f action to enjoin Executive officials fr om taking unconstitutional action. 1 6 E ven ass um ing that an equitable cause of action to enjo i n unconstitutional conduct exists alongside the APA’s cause o f action, see Juliana v. United States , 947 F.3d 1159, 1167–68 (9th Cir. 2020); Navajo Nation v. Department of the Interior
, 876 F.3d 1144, 1172 (9th Cir. 2017); but see S ierra Club v. Trump
, 929 F.3d
at 715–17 (N.R. Sm ith, J., dissenting), it a v a il s the States

n othi n g here. The States have f ailed to allege the sort o f constitutional claim that m ight give rise to such an equitable action, b ecause their “constitutional” claim is effectively the
very sam e § 8 0 0 5

- based claim dressed up in constitutional garb. And even if this claim counte d a s a “constitutional” one, it would still be governed by the sam e zone of interests defined by the relevant lim itations in § 8005.

a

The St ates assert two constitutional claim s in their operative com

plaint: (1) that Defendants have violated the

16 It i s n ot entirely clear that the S tates are contending that their APA

c la i m s to enjoin unconstitutional conduct, see 5 U.S.C. § 706(2)(B), a re

exem pt from the zone-of-i nterests t est. To t he extent that they are so contending, the point seem s doubtful. See Da ta Pr ocessing
, 397 U .S.
at 1 53 ( zone-of-interests test re qu i re s APA claim ant to show that its interest “is argu ably w ithin the zone of interests to be protected o r regulated by the statute or constitutional guarantee in question”). But in all events, any such APA-based claim to enjoin unconstitutional conduct would fail f

or the sam e reasons as th e S tates’ purported free-standing equitable claim

to enjoin such conduct.S T A T E O F C AL I F O R N I A V

. T R

UMP 76

Presentm ent Clause, and the constitutional separation o f
p o w ers m o re g en erally
, b y “u n i laterally d iv erting funding th at Congress already appropriated f or other purposes to fu nd a border wall for which Congress has provid e d n o appropriations”; and (2) that Defendants have vi o lated the Appropriations C lause “by funding constructio n of the border wall with funds that were not appropriated for that purpose.” As clarified in their subsequent briefing, the States assert both what I will call a “s tro ng” form of these constitutional
argum ents and a m ore “lim ited” form

. In its strong form
, the Sta t e s ’ argum ent is that, even if § 8005 authorized the transfers in question here
, those transfers nonetheless violated the separation of powers, the Presentm ent Clause, and the Appropriations C lause. In its m ore lim ited form
, the States’ arg u me n t is that the transfers violated the separation of powers, th e Presentm ent Clause, and the Appropriations Clause b ecause the transfers were not authorized by § 8005.

I need not address whether th e States have an equitable

cause of action to assert the strong f orm of their constitutional
argum ent, because in my view that argum ent on the m erits is

so “wholly insubstantial and f rivolous” that it would not even give rise to federal jurisdiction. Bell v. Hood
, 327 U.S. 678, 682–83 (1946); see also Steel C o

. , 523 U.S. at 89. If § 8005 allowed the transfers here, then that necessarily m eans that the Exe c ut i ve has properly spent funds that Congress, by statute, has appropriated and allowed to be spent for that
pur p os e

. The States cite no authority for the extraordinary proposition that the Appropriations Clause itself con s trains Congress’s ability to give agencies latitud e in how to spend appropriated funds, and I am aware of no such authority. Cf

. Lincoln v. Vigil
, 508 U.S. 182, 192 (1993) (“allocation o f f u n d s fr o m a lu mp

- s u m ap p r op r i a t i o n i s a n o t h e r adm inistrative decision traditionally regarded as co mmittedS T A T E O F C AL I F O R N I A V

. T R

UMP 77

to agency discretion”). An d b y transferring funds after finding that the statutory conditions for doing so are m et, an agency thereby “execut[es] the p o li cy that Congress h ad

em bodied in the statute” and does not unilaterally alter o r repeal any law in violation of the Presentm ent Clause or the separati on of powers. See Clinton v. City of New York
, 524 U .S. 417, 444 (1998). If anything, it is the States’ theory—that the f

ederal courts m

u st give effect to an alleged broader congressional judgm ent ag a inst border funding regardless of whether that judgm ent is embodied in binding statutory language—that would offend separation-of-powers principles.

That leaves only the mo r e lim ited form of the States’

a r g um ent, which is that, if § 8005 did not authorize th e transfers, then the expenditures violated the Appropriations Clause, the P resen

tm ent C lau se, and the separation of powers. Under D alton v. Specter
, 5 11 U.S. 462 (1994 )
, this th eo ry

— d esp ite its co n stitutional garb—is prop erly classif ied

as “a statutory one,” id

. at 474. It therefore does n ot fall within the scope of the asserted non-APA equitable cause o f action to enjoin unconstitutional conduct. 1 7

In Dalton
, the Court addressed a non-APA claim to enjoin Exe c utive officials from im plem enting an allegedly

un co n stitu

tio n a l P resid ential decision to close certain m i l i tary bases under the Defense Base Closure and Realignm ent Act

17 T here rem ains the States’ claim that statutory vi olations m ay be enjoined under a non-APA ultra vires cause of action for equitable r elief, but that also fails for the reasons discussed below. See infra at 84–85.S T A T E O F C AL I F O R N I A V

. T R

UMP 78

of 1990. 511 U.S. at 471. 1 8 But the claim in D alton was not that the President had directly transgressed an applicable constitutional lim itation; rather, the cl a im was that, because Executive officials “violated the procedural requirem ents” o f the statute on which the P resident’s decision ult i ma t ely rested, th e President thereby “act[ed] in excess of his

s t a t u t o r y a u t h o r i t y ” a n d t h e r e f o r e “ v i o l a t e [ d ] t h e constitutional separation-of-powers doctrine.” Id

. at 471–72. The Suprem e Court rejected this effort to “eviscerat[e]” the well-established “distinction between claim s that an official exceeded his statutory authority, on the one hand, and claim s that he acted in violation of the Constitution
, on the other.” Id

. at 474 (em

phasis added). A s the Court explained, its “cases do not support the proposition that every action by the President, or by another executive o ffici a l
, in excess of his statutory authority is ipso facto in violation of the Constitution.” Id. at 472. The Court distinguished Youngstown Sheet & Tu b e Co. v. Sawyer
, 343 U.S. 579 (1952), on the ground that there “the Governm ent disclaim ed
any statutory authority fo r the P resident’s seizure of steel

m ills,” and as a result the Constitution itself supplied the rule of dec ision for determ ining the legality of the President’s actions. Dalton
, 511 U.S. at 473. Because the “only basis o f authority asserted was the President’s inherent constitutional
p owe r as the Executive and the Comm ander in C hief o f the Arm ed Forces,” Youngs t o wn thus “necessarily turned on whether the Constitution a uthorized the President’s actions.” Id

. (em phasis added). By con tr a s t , given that the claim in Dalton was that the Pre s i d e n t had violated the Constitution

18 The plaintiffs in Dalton also asserted a claim under the APA itself, but that claim failed for the separate reason that the challenged f inal action

was take n b y the President p ersonally, and the President is not an “agency” for purposes of the APA. See 511 U.S. at 469.S T A T E O F C AL I F O R N I A V

. T R

UMP 79

b ec ause Executive o fficials had “violated the term s of th e 1990 Act,” the term s o f th a t statute provided the applicable rule of decision and the claim was therefore “a statutory one.” Id

. at 474. And because those claim s sought t o enjoin conduct on the ground s that it violated statutory requirem ents, it was subject to the “longstanding” lim itation that non-APA “review is not available when the statu t e i n question comm its the decision to the discretion o f the President.” Id

.

Un d e r Dalton
, the States’ p urported “constitutional” claim s—at least in their m ore lim ited version—are properly classified as statutory claim s that do not fall within any nonAPA cause o f action to enjoin unc o n stitutional conduct. 511 U.S. at 474. Here, as in Dalto n , Defendants have

“ c l aim ed” the “statutory authority” of § 8 005, and a n y asserted v iolation of the Constitution would occur only if, and only because, Defen d ants’ conduct is assertedly not authorized by § 8005. Id

. at 473

. Th e rule o f decision for this dispute is th u s not supplied, as in Youngstown
, b y the Constitution; rather, i t i s supplied only by § 8005. Id

. at 473–74. Because these claim s by the States are thus “statutory” under Dalton
, they m ay only proceed, if at all, under an equitable cause of action to enjoin ultra v i r es

con du ct, and they w ould be subject to any lim itations applicabl e to such claim s. Id

. at 474. The States do assert such a fallback claim here, but it fails for the reasons I explain below. See infra at 84–85.

b

But even if the States’ claim s m ay properly be classified

as constitutional ones for purposes of the particular equitable

cause of action they invoke here, those claim s w ould still f ail.S T A T E O F C AL I F O R N I A V

. T R

UMP 80

To the extent that the States argue tha t th e Constitution i t se l f g rants a cause of action allowing any plaintiff with a n Ar ticle III injury to sue to enjoin an alleged violation o f th e Appropriations Clause, the Presentm ent Clause, or the separation of powers, there is no support for such a th e o ry. None of th e c a s es cited by the States involved putative plaintiffs, such as the States here, wh o are near the outer perim eter of Article III standing. On the contrary, these cases involved either allegedly unconstitutional agency actions dir e c tly targeting the claim ants, see Bond v. United States
, 564 U.S. 211, 2 25–26 (2011) (crim inal d efendant challenged
statute under which she was convicted on f ederalism and separation-of-powers grounds); United States v. McIntosh
, 833 F.3d 1163, 1174–75 (9th C ir. 2016) (crim inal defendants sought to enjoin, b ased on a n appropriations rider and the Appropriations Clause, the Justice Departm ent’s expenditure of funds to prosecute them ), o r they involved a suit based on

an express statutory cause of action, see Clinton v. City of New York
, 524 U.S. a t 4 2 8 ( n oting that right o f action was expressly conferred by 2 U.S.C. § 692(a)(1) (1996 ed.)).

Moreover, any claim that the Constitution requires recognizing, in this context, an equitable cause of action that extends to the outer lim its of Articl e I I I seem s difficult to

s quare with the Suprem e Court’s d ecision in A rmstrong v. Exceptional Child Ctr., Inc.
, 575 U.S. 320 (2015). There, the Court rejecte d the view that the Suprem acy Clause itself created a private right o f a c tion for equitable relief against
preem pted statutes, and instead held that any such equ itable claim rested on “judge-m ade” rem edies th a t are subject to “express and im

plied statutory li mi t ations.” Id

. at 325–27. The Suprem acy Clause provides a particularly apt analogy here, b ecause (like the Appropriations Clause) the asserte d

“ unconstitutionality” of the challenged action g enerall yS T A T E O F C AL I F O R N I A V

. T R

UMP 81

depends upon whether it falls with i n o r outside the terms of

a federal statute : a state statute is “unconstitutional under the Suprem acy Clause” only if it is “contrary to federa l l a w, ” Burbank-Glendale-Pasade n a Airport Auth. v. City of Burbank
, 136 F .3d 1360, 1361–62 (9th Cir. 1998), and here, the transfers violated the Appropriations Clause only if they

were barred by the lim itations in § 8005. An d just as the S u p r em a cy C lau se p rotects C ongress’s “ b ro ad d iscretion w ith regard to the enactm ent of laws,” Armstrong
, 575 U.S.
at 3 2 5–26, so too the Appropria t ions Clause protects “co n g ressional control over funds in th e T reasu ry , ” McIn to sh
, 833 F.3d at 1175. It i s “ un l i k ely that the Constitution gave Congress such broad discretion” to enact appropriations laws only to simultaneously “ require[] Congress to p e rm it the enforcem ent of its laws” b y any “private actor[]” with even

m inim al Article III standing, thereby “ limit[ing] C ongress’s power” to decide how “t o e n force” the spending lim itations it enacts. Armstrong , 575 U.S. at 325–26.

The Appropriations Clause thus d oes n o t itself create a constitutionally re qu ired cause of action that extends to the lim its of Article III. On the contrary, any equitable cause o f action to e n f

orce that clause w ould rest on a “judge-m ade”

rem edy: as Armstrong observed, “[t]he ability to sue to enjoin unconstitutional action s by state and f ederal officers is the creation of courts of e qu i ty, and reflects a long history o f judicial revi e w of illegal executive action, tracing back to England.” 575 U.S. at 327. At leas t wh e re, as here, the
contours of the applicable constitutional line (under the Appropriations Clause) are d efined by and parallel a statutory line (under § 8005), any such judge-m ade equitable cause o f action w ould b e subject to “express and im pl i e d statutory lim itations,” as well as traditional lim itations governing such equitable claim s. Id

.S T A T E O F C AL I F O R N I A V

. T R

UMP 82

One long-established “‘judicially self-im posed lim it[] on the exercise of federal jurisdi c t ion’”—including federal equitable jurisdiction—is the requirem ent “that a plaintiff’s grievance m

ust arguably fall within the zone o f in terests protected or regulated by th e statutory provision o r constitutional guarantee invoked in the suit.” B ennett , 520 U.S. at 162 (quoting Allen v. Wright
, 468 U.S. 737, 751 ( 1 9 8 4 )). This lim itation is not confined to the APA, b u t rather reflects a “prudential standing requirem ent[] of g eneral application” that alway s “ applies unless it is expressly negated” by Congress. Id

. at 163. 1 9 Because Congr e ss has
not expressly negated that test in any relevant respect, the States’ equ i t ab le c au s e o f action to enforce the Appropriations Clause here re ma i n s subject to the zone-ofinterests test. Cf

. Thompson v. North American Stainless, LP
, 562 U.S. 1 70, 176–77 (2011) (construing a cause of action as extending to “any perso n i n j ured in the Article III sense” would often produ ce “absurd consequences” and is for that

reason rarely done). And gi v e n th e unique nature of an Appropriations Clause claim, a s just discussed, the line between cons titutional and unconstitutional conduct here is defined entirely by the lim itations in § 8005, and therefore the

19 The States wrongly contend th a t, by quoting this language from Bennett
, and stating that t he zone-of-interests test therefore “applies to all statutorily created causes of action,” Lexmark
, 572 U.S. at 129 ( em phasis added), the Court in Lexmark thereby intended t o signal that t he test only applies to statutory claim s a n d n ot to n on-statutory equitable claim s. N o t h i n g i n L exm ark actually suggests any such negative pregnant; inst ead
, the Court’s referen c e t o “statutorily created causes of action” reflects nothing m ore than the fact that only statutory claim s were before the Court in that case. See id

. at 129. Moreover, Lexmark notes tha t the zone-ofinterests test’s roots lie in th e comm on law, id

. at 130 n.5, and Bennett (upon which Lexmark relied) states that t he test reflects a “ prudential standing re qu irem ent[] of general application” that applies to any “exercise of federal jurisdiction,” 520 U.S. at 162–63.S T A T E O F C AL I F O R N I A V

. T R

UMP 83

relevant zone of interests for the States’ AppropriationsClause-based equitable claim rem ains defined b y those lim itations. The States a r e thus outside the applicable zone of interests for this claim as well.

In arguing for a contrary view, the States rely heavily on United States v. McIntosh
, asserting that th e r e we granted non-APA injunct i v e relief b ased on the Appropriations Clause without inquiring whether the claim ants were within the zone of interests of the underlying appropriations statute. McIntosh cannot bear the considerable w eight that the States place on it.

In McIntosh
, we asserted interlocutory jurisdic t io n over the district courts’ refusal to enjoin the expenditure of funds
to prosecute the d efendants—an expenditure that allegedly violated an appropriations ri d er barring the Justice Departm ent from spending funds to prevent certain States from “‘im

plem enting their own laws that authorize the u se, d i s t r i b u t i o n , p o s s e s s i o n , o r c u l t i v a t i o n o f me d i c a l

m arijuana.’” 833 F.3d at 1175; see also id

. at 1172–73. W e held that th e defendants had Article III standing and that, if the Departm ent was in fact “spending m o ney in violation” o f that rider in prosecuting the defendants, th a t would produce

a violation o f the Appropriations Clause that could be raised by the defendants in challenging the ir prosecutions. Id

. at 1175. Aft e r construing the m eaning of the rider, we then

rem anded the m atter for a determ inat ion whether the rider

was being violated. Id

. at 1179. Contrary to the States’ dogthat-didn’t-bark theory, nothing can be gleaned from the fact that the zone-of-interests test was never dis c u ssed in McIntosh

. See Cooper Indus., Inc. v. Aviall S e rvs, Inc.
, 543 U.S. 157, 170 (2004) (“‘Questions which m erely lurk in the record, neither brought to the attention of the court norS T A T E O F C AL I F O R N I A V

. T R

UMP 84

rul e d up on, are not to be considered as having been so decided as to constitute precedents.’”) (quoting Webster v. Fall
, 266 U.S. 507, 511 (1925)). Moreover, any such silence

seem s m ore likely to have been due to the fact that it was so overwhelm ingly obvious that the defendants were within the rider’s zone of interests that the point was incontestable and uncontested. An asserted inter e s t in n ot going to prison for complying with state m edical-m arijuana laws see ms well within the zone of interests of a statute prohibiting interference with the imp lem entation of such state laws.

2

The only rem ainin g question is whether the States m ay evade the APA’s zone-of-int e r e s ts test by asserting a nonAPA claim f

or ultra v ires conduct in excess o f statutory authority. E ven assum ing that such a cause of action e x ists alongside the APA, c

f

. Trudeau v. Federal Trade C omm’n
, 456 F .3d 178, 189– 9 0 ( D. C. Cir. 2006), I conclude that it would be subject to the sam e zone-of-interests lim itations as the States’ APA claim s and therefore likewise fails.

For the sam e reasons discussed above, any such equitable cause of action rests on a judge-m ade rem edy that is subject
to the zone-of-interests test. See supra at 79–84. The States identify no case from this court affirm atively holding that the zone-of-interests test does not apply to a non-APA equitable

cause of action to enjoin conduct allegedly in excess o f statutory authority, and I am aware of none. Indeed, it m akes little sense, when evaluating a claim that Executive officials exceeded the limitations in a federal statu t e , n ot to ask whether the plaintiff is within the zone of interests p rotected by those statut o ry lim itations. Cf

. Haitian Refugee Ctr. v. Gracey
, 809 F .2d 794, 811 n.14 (D.C. Cir. 1987) ( althoughS T A T E O F C AL I F O R N I A V

. T R

UMP 85

plaintiff asserting ultra vires claim m ay not need to show that its interests “fall within the zones o f interests of the constitutional and statutory powers invoked ” by Executive officials, when “a particular constitutional o r statutory provision w as intended to protect persons like the litigant by limiting the authority conferred,” then “the litigant’s interest

m ay be said to fa l l wi thin the zone protected by the limitation ”) (em

phasis added). 2 0

* * *

Given that each of the States’ as s e rted theories fail, the States la c k any cause of action to challenge the DoD’s transfer of funds under § 8005.

IV

Alternatively, even if the States had a cause of action, their claim s would fail on the m erits, because the challenged transfers did not violate § 8005 or § 9002. The States argue that the transfers violated th e first proviso o f § 8005, which
states that the transfer authority granted by that section “m ay not be used unless for higher priority it e m s, b ased on

un foreseen m ilitary requirem ents, than those for which originally appropriated and in no case where the item for which f unds are requested has been denied by the Congress.”

20 Even if the States were correct that the zone-of-interests test does
not apply t o a non-APA equitable cause of action, that woul d not necessarily m ean that such equitable jurisdiction extends, as the States
sug g e s t , t o the outer lim its of Article III. Declining t o apply the APA’s generous zone-of-interests test m ight arguably render applicable the sort

o f n arrower review o f agency action t hat preceded the APA standards articula t e d i n Data Processing
, 397 U.S. at 153. See also Clarke
, 479 U.S. at 400 n.16.S T A T E O F C AL I F O R N I A V

. T R

UMP 86

132 Stat. at 2999. The requirem ents of this proviso likewise lim it th e transfer authority under § 9002. See id

. at 3042 (stating that the transfer authority in § 9002 is in addition to that specified in § 8005, but “is subject to the sam e term s and conditions as the authority provided in section 8005 o f th is Act”). T he States argue, and the m ajority agrees, that two o f the requirem ents in this proviso are not m et, because (1) the transfers were for an item for which C ongress has denied funding; and (2) they were not f or “un fo r e s e en m ilitary requirem ents.” See Maj. Opin. at 37–47. I disagree.

A

The proviso states that the Secretary m ay not transfer funds for an adm ittedly “higher priority item []

. . . than those for which or i g i n a l ly appropriated” if “the item for which funds are requeste d has b een denied by the Congress.” 1 32 St at. at 2999. In my v iew, the Secretary’s transfers di d not violate this condition.

Determ ining whether Congress “den ied” the relevant “it em ” at issue here turns on the m eaning of the phrase “the item for which funds are requested.” According to the States, the relevant “item ” should be broadly d efined to include any “border barrier construction,” and Congress should be held to have “denied” that i t em except to the extent that it appropriated funds for “prim ary pedestrian fe n c ing” in § 230(a)(1) o f the D epartm ent of Hom eland Se c ur ity Appropriations Act, 2019, s e e P ub. L. No. 116-6, D iv. A
, § 230(a)(1), 133 Stat. 13, 28 (2019). T he S tates’ reading is im plausible, because it ignores the context of the appropriations process that § 8005 addresses.S T A T E O F C AL I F O R N I A V

. T R

UMP 87

As a provision designed to p reserve Congress’s authority

over the appropriations process , § 8005’s restriction on transfers can only be understood against the backdrop of that
process and of the role of transfers and reprogramm ings in it. Home Depot U.S.A., Inc. v. Jackson
, 139 S. Ct. 17 4 3
, 1 748 (2019) (“It is a fundam ental canon of statu t o ry construction that the words of a statute m us t be read in their context and with a view to th ei r place in the overall statutory schem e.”) (sim plified). That process is usefully set forth in Chapter 2 o f th e GA O ’s auth o ritativ e Prin c ip les o f F e d era l A p p ro p r i a tio n s La w , o th erwise known as the “Red Book,” and I borrow heavily from that treatise in setting forth that relevant context. See Lincoln
, 5 08 U.S. at 192 (citing Red Book in addressing suit challenging reallocation of funds).

Wh ile C o n g re s s o r d i n a

r i l y ap p ro p riates f

un d s annu ally f

o r agencies to use in specified am ounts for enu me r a t ed
purposes, Congress has al so recognized that “a certain

am ount of flexibili ty ” i s som etim es warranted. See 2 U.S. G O V ’ T A C C O U

N T AB I L I T Y O F F

. (“GAO”), P R I N C I P L E S O F F E D E R AL A P P RO P R

I A T I ON S L A

W (4th ed. 2016 rev.) (“RE D B O O K”), p t. B, § 7, 2016 W L 1275442, at * 1

. Two ways in which such flexibility m ay be achieved are through “transfer and reprogramm ing.” Id

. A “transfer”—which is the specific subject of § 8005—refers to “the shifting of funds between appropriations,” and it is g enerally p rohibited in the absence of specific statutory authority. Id .; see a lso 31 U.S.C. § 1532. By contrast, a “reprogram m ing shifts funds within a single appropriation,” and in th e absence o f specific statutory lim itatio n s o n rep ro g ram

m in g , ag encies have b ro ad d iscretion to d o so “as long as the resulting o bligations and expenditures are consistent with the purpose restrictions applicable to the appropriation.” See RE D B O O K , 2016 W L 12 75442, at *6 (em phasis add ed) (citing Lincoln
, 5 08 U.S. at 192). InS T A T E O F C AL I F O R N I A V

. T R

UMP 88

contrast to a transfer—which is e a s y to identify, because it shifts f unds b etween se p arate appropriations that are “welldefined and delineated with specific la n guage in an appropriations act”—it is m ore d ifficult to i d e n t i fy what
counts as a reprogramm ing within an appropriation, because the appropriations act itself “d oes not set forth the subdivisions that are relevant to determ ine whether an agency has reprogramm ed funds.” See id. at *6. There is o nly a need
to identify a “reprogram m ing” when Congress has sought to place lim its on an agency’s ability to do so. See
, e.g. , Pub. L. No. 111-80, § 7 12, 123 Stat. 2090, 2120–21 (2009) (requiring 15-days advance notice to Congress before certain “reprogram m ing[s] of f

unds” m ay be m ade by v arious agriculture-related agencies)

. I n such cases, whether a shift of funds within an appropriation counts as a reprogramm ing is ordinarily determ ined b y considering how the reallocation of f unds com

pares to the allocation of funds that was contem plated during the appropriations process: “Typically, the itemizations and categorizations in the agency’s budget documents as well as statem ents in comm ittee reports and the President’s budget subm ission, contain the subdi visions within an agency’s appropriation that are relevant to determ ine whether an agency h as r ep r o g ram m ed funds.” RE D B O O K , 2 016 W L 1275442, at *7 (em phasis a d d ed). GAO’s Red Book illustrates the point with an exam ple, drawn from a prior opinion letter:

For in s tance, for FY 2012, the Comm odity F u t u r e s T r a d i n g C o m m i s s i o n ( C F T C ) received a single lum

p -sum appropriation. Id. CFTC’s F Y 2012 budget request included an item within tha t lu mp sum to fund an Office of Proceedings. A r e programm ing would

occu r if CFTC shifted am ounts that it h adS T A T E O F C AL I F O R N I A V

. T R

UMP 89

previously designated to carry o u t the functions of the Office of P roceedings to carry out different

functions.

Id

. (citing GAO, B-323792
, Commodity Futures Trading Commission—Reprogramming Notification (Jan. 23, 2013)) (em phasis added).

Against this backdrop, the im port o f § 8005’s first proviso is clear. In evaluating a transfer from o ne appro p riation to another, the Secretary m ust justify the transfer, not at the bro a d l e vel of each overall appropriation itself ( i.e.
, not by

com paring the statutory appropriation cat e gory f or “Drug Interdic tion and Counter-Drug Activities, Defense” versus that for “Mil i t a ry Personnel, Army ”), but rather at the sam e

“ item ” level at which the Secretary would h a v e to justify a reprogra mmi n g within an appropriation. See Pub. L. No. 115-245, Div. A, § 8005, 132 Stat. a t 2 99 9 (requiring Secretary to com

pare whether the item to which the transferred funds w ill be directed is a “high e r priority” than the item s “for which originally appropriated”). The point o f reference for determ ining whether the destination “item ” justifies the transfer is therefore, as with a reprogramm ing, “the item izations and categorizations in the agency’s budget docum ents as well as statem ents in comm ittee reports and the President’s budget subm ission.” R E D B O O K , 2 016 W L 1275442, at *7.

Several features of the language of § 8005 confirm this reading. The statutory reference to “those [item s] for which originally appropriated,” 132 Stat. at 2999 (em phasis added), is unm istakably a reference to the f am iliar concept of the item izations contained within the current appropriation, as set forth in the already existing budgetary docum ents exchangedS T A T E O F C AL I F O R N I A V

. T R

UMP 90

and generated during the appropriations process for DoD. Air Wisconsin Air l ines Corp. v. H oeper , 571 U.S. 237, 248 (2014) (“It is a cardinal rule of statuto ry construction that, when Congress em

ploys a term of art, it presum ably k nows and adopts the cluster of ideas that were attac h e d t o e ach borrowed word in th e b ody of learning from which it is taken.”) (sim

p lified). And becau s e th ose “original[]” item s

are to be com

pared with the new “item s” for which the transfer auth ority is to “be used,” 132 Stat. at 2999, these lat te r “ i tem s” m

ust likewise be understood as a reference to the destination item s w ith in th e tran sf eree D o D appropriation. Law v. Siegel
, 571 U.S. 415, 422 (2014) (“[W ] ords repeated in different parts of the sam e statute g enerally have the sam e

m eaning”).

The destination item is a l s o referred to in the statute as “the item for which funds are requested ,” which is an unusual
way to refer to a transfer that an agency approves on its own. 132 Stat. at 2999 (em

phasis added). But the use of that term

m akes perfect sense when the language is again construed against the backgro u

n d o f th e ap p ro p riatio ns process, because it is a com m on practice for agencies—despite the decision in I NS v. Chadha
, 462 U.S. 919 (1983)—to “request” th e appropriations comm ittees’ approval fo r transfers and
reprogramm ings as a m atter of com ity. See Lincoln
, 5 0 8 U.S.
at 193 (“[W ]e hardly need to note that an agency’s decision
to ignore congressional expectation s [concerning the use o f

ap p r o p r i a t i o n s ] ma y e x p o s e i t t o g r a v e p o l i t i c a l consequences”). That reading is confirm ed b y § 8005’s third proviso, which enforces the exclusivity of the first proviso by barring DoD from using any appropriated fun d s to “prepare

or present a request to the Comm ittees on Appropriations for
reprogramm ing of funds,” unless it m eets the requirem ents o f the first p roviso. 1 3 2 Stat. at 2999 (em phasis added). ThisS T A T E O F C AL I F O R N I A V

. T R

UMP 91

l a n guage also confirm s what is already otherwise appare n t , which is that any transfer under § 8005 is to be analyzed, and papered, as a request f

o r “ reprogrammi n g o f funds.” Id

. (em phasis added). Indeed, although DoD m ade a conscious decision to depart from the com ity-based practice of m aking

a request in this case, the House Comm ittee on Appropriations nonetheless procee ded to construe DoD’s notification of the transfer as a “requested reprogramm ing action” and “denie[d] the request.” Se e House Comm

. on Appropriations, Press Release: Visclosky Denies Request to Use Defense F

unds for Unauthorized Border Wall (Mar. 27, 2 0 1 9 )
, h t t p s : / / a p p r o p r i a t i o n s

. h o u s e

. g o v / n e w s / p r e s s

r e l e a s e s / v i s c l o s ky

- d e n i e s

- r e qu es t

- t o- u s e

- defense-funds-forunauthorized-border-wall.

For all of these reasons, the “item s” at issue under § 8005

m ust be und e r s t o od against the b ackdrop of the sort o f fa mi liar item -level analysis required in a budgetary reprogramm ing, and the benchm ark for evaluati n g the proposed destination i te m is therefore, as with any reprogramm ing, the original allocation am ong item s that is reflec t ed in the records of the DoD appropriations process. Accor dingly, when § 8005 requires a consideration o f whether “the item for which funds are requested h as b een denied by the Congress,” it is referring to whether Congress, during DoD’s appropriations p rocess , denied an “item ” that corresponds to th e “item for which funds are requested.” Un der that standard, this case is easy. The States do not contend (and could not contend) that Congress ever “denied” such an itemto DoD during DoD’s appropriations process.

Instead, the States argue that a grant of funds to another
agency (DHS) in its appropriations, in an am ount l e s s th an that agency requested, should be construed as a denial of anS T A T E O F C AL I F O R N I A V

. T R

UMP 92

analogous item to DoD under its entirely separate authorities and appr o pr iations. This disregards the appropriations-law
context against which § 8005 m u s t b e construed, which

m akes clear that the relevant clause refers only to denials that

are applicable to DoD within the context of its appropriations
p ro c e ss. Taking into account the broader context of th e political struggle between the President and the Co n g re s s

over DHS’s requests for border-barrier funding, the m ajority concludes that Congress thereby issued a “general denial” o f “border w all” funding, which should be construed as “n ecessarily encom

pass[ing] narrower form s of denial—such

as the denial of a Section 284 budgetary li n e i t e m request.” See Maj. Opin. at 4 6–47. But § 8005’s proviso only applies if, during the DoD appropriations p rocess, such an item “has been denie d by the Congress,” 132 Stat. at 2999, and that

m anifestly did not occur here, given that (1) no such request

was presented and denied during that p rocess; and (2) indeed, that process ended several m onths be f o r e the ultim ate “denial” that the m ajority claim s we should n ow retroactively apply to DoD’s transfer authority.

More fundam en tally, the m ajority is quite wrong in positing that § 8005 assigns to u s the task of disc erni n g th e contours of the larger p olitical struggle between the P resident and the Congress over border-barrier funding (including by reviewing cam

paign speeches and th e l i ke), see Maj. Opin.
at 39, and then giving legal effect to what we think, based on that rev iew, is “Congress’s broad and resounding denial resulting in a 35-day partial governm ent shutdown,” id

. at 47. Our job under § 8005 is the m ore m odest one of determ ining whether a proposed item o f DoD spendi n g wa s presented to Congress, and “denied” b y it, d uring DoD’s appropriations
process, and all agree that that did not o ccur h ere. Any action that Congress took in the separate appropriations processS T A T E O F C AL I F O R N I A V

. T R

UMP 93

concerning DHS would crea t e a “denial” as to DoD only if there is som e language in the DHS Appropr i a t ions Act that

som ehow extends that Act’s denial vis -à-vis DHS to other agencies. 2 1 But the only relevant lim itation in th a t Ac t that

even arguably extends b eyond D HS is a prohibition o n the construction of “pedestrian f encing” in f

ive designated parks and refuge areas, see P ub. L. No. 1 16

- 6
, Di v

. A, § 231, 133 Stat. at 28 (“None of the funds m ade available by this Act or prior Acts are available” for such cons tru c tion) (em phasis

a d d e d )
, but no one contends that this lim itation is b eing violated here. Beyond that, it is not o ur role under § 8005 to give effect to a perce i v e d big-picture “denial” that we think is im plicit in the “real-world events in the m onths and years l eading up to the 2019 appropriations bills.” Sierra Cl u b v. Trump
, 929 F.3d at 691.

B

The m ajority alternatively h o ld s t h at , ev en if Congress did
not d eny the “item ” i n question, the transfers were still unlawful because the requirem ents invoked b y the Secretary here to justify the transfers were neither “m ilitary” in nature

nor “unforeseen.” See Maj. O pin. at 37–46. The m ajority is wrong on both counts.

21 Nor is this a situation in which DoD is invoking the transfer authority to m ove funds into D HS’s a ppropriations

. The destination item here involves the authority un d er § 2 8 4 for DoD t o undertake “[c]onstruction of roads and fences” alon g th e border. 10 U.S.C. § 284(b)(7). In d e e d
, § 8045(a) of the DoD Appropriations A ct specifically forbids DoD from “transferr[ing] to any o ther departm ent”
any funds available to i t for “counter-drug activities,” ex cept “as specifically provided in an appropriations law.” 132 Stat. at 3012.S T A T E O F C AL I F O R N I A V

. T R

UMP 94

1

The DoD’s provision of support f or counterd

ru g activities under § 284 is plainly a “m ilitary” requirem ent wi th i n the

m eaning of § 8005. As the m ajority notes, § 8 0 0 5 d o e s not define the term “m ilitary,” see Maj. Opin. a t 42, and so the word should b e given its ordinary m eaning. A sgrow Seed Co.

v. Winterboer
, 513 U .S. 1 79, 187 (1995). In comm on parlance, the w ord “m ilitary” sim p ly m eans “[o]f, relating to,

or involving the arm e d fo r c es.” Military
, B LA C K ’ S L A W D I C T I ON

AR Y (11th ed. 2019); see also Military
, A ME R I C A N H E R I T A GE D I C T I ON

AR Y (5th ed. 2 018) ( “ Of, relating to, o r characteristic o f m em

bers of the arm ed forces”; “Perform ed

or supported by the arm ed forces” ) ; Military
, W E B S T E R ’ S T H I R D N E W I N T E RN A T I O N A L D I C T I O N A R Y ( 1 9 6 1 ) (“W E B S T E R ’ S T H I R

D ”) (“of o r relating to soldiers, arm s, o r war”; “perform ed or m ade by a rme d forces”). Because Congress, by statute, has forma l ly assigned to DoD the task of providing “support for the counterdrug activities” of other departm ents through the “[c]onstruction of roads and fences and installation of lighting to block d rug sm uggling corridors

across international bounda r i e s of the United States,” 10 U.S.C. § 284(a), (b)(7), that task “relat[e s ] to” and “involv[es] the arm ed forces,” and is “ [p]erform ed o r supported by the arm ed forces.” As such, it is a “m ilitary” task. 2 2

22 The m ajority is wrong in suggesting that the Governm ent has never argued that the con struction projects “ are related to the use of soldiers.” See Maj. Opin. at 42. The G overnm ent affirm atively a rg u e s i n its brief that “the military m ay be, and h ere is, required to assis t i n co m batting” drug trafficking under § 284 ( em phasis added). Moreover, the evidence subm itted t o the district court showed that t he const ru c t ion was to be carried o ut by the U.S. Arm y Corps of Engineers. Even granting that m o st of that agency’s em

ployees are civilians, the agency rem ains within theS T A T E O F C AL I F O R N I A V

. T R

UMP 95

Two other textual clues support this conclusion. First, the chapter heading for the chapter of Title 10 that includes § 284 is e ntitled, “

Military Support f

or Civilian Law Enforcem ent Agencies,” thereby further confirm ing that th e support authorized to be provided under § 284 counts as mi li tary support. See Hende r

s on v. Shinseki
, 562 U .S. 428, 439 (2011 ) ( t itle o f subchapter aided in resolving am b iguity concerning provision in that subchapter). Se c o nd, the DoD Appropriations A ct itself classifies the activities c a rried out under § 284 as “m ilitary” activities. The Act recognizes, on its face, that funds appropriated for “Drug Interdict i o n a n d Counter-Drug Activities, Defense,” m ay be transferred out o f that appropriation under § 8005. See DoD Ap p r opriations Act, § 8007(b)(6), 132 Stat. at 3 000 (exem pting transfers o f funds out of this appropriation f rom an otherwise applicable
pro h ib i ti o n on transferring funds under § 8005). G iven that the transfer authority granted by § 8005 applies only to “funds

m ade available in this A ct to the Departm ent of Defense for military functions (except m ilitary constructi on),” 1 32 Stat.
at 2999 (em

phasis added), the Act necessarily deem s funds in th e “Drug Interd ictio n an d C o unter-D ru g A ctiv ities, D ef en se” appropriation to be for “m ilitary functions.” The m ajority’s insistence that such counter-drug functions are not “m ilitary” activities thus flatly contradicts the statute itself.

The m aj o r i ty is also wrong in relying on the distinctive definition given in 10 U.S.C. § 2801 for the p hrase “m ilitary construction.” See Maj. Opin. at 4 4–45. At the outset, this

m akes little sense, because § 8 0 05 states on its face that it applies only to transfers between appropriations f or “m ilitary functions ” and not for “m ilitary construction.” 132 St at.

Departm ent o f the Arm

y and is led by a m ilitary officer. See 10 U.S.C. §§ 7011, 7036, 7063.S T A T E O F C AL I F O R N I A V

. T R

UMP 96

at 2999 (em

phasis added). Indeed, Congre s s h a s long handled appropriations for “m ilitary construction” separately from those for m ilitary functions, and it did so ag a i n for Fiscal Y ear 2019: appropriations for “m ilitary construction”

were m ade in a separate appropriations statute e n a c ted o ne

we e k b efore the D oD Appropriations Act. See Pub. L. No

. 115-244, Div. C, Title I, 132 Stat. 2 897, 2946 (2018). Of all the term s to consider in construing “m ilitary” f or p urposes o f the DoD Appropriations A ct, “m ilitary construction” m ay be the least appropriate.

Moreover, the m ajority fails to rec o g n i z e that “m ilitary construction” is a term of art, with its own unique definition, and it therefore provides an inapt guide for trying to discern the m eaning of “m ilitary” in a different phrase in a different
context. Absent a special definition, one would have thought that the p hrase “m ilitary con s truction” em braces any “construction” that is p erform ed by or f or the “m ilitary.” See
supra at 9 4 (quoting definitions o f “ mi l i tary”). But § 2801

m ore narrowly defines “m ilitary construction” as g enerally referring only to “construction

. . . carried out with respect to

a m ili t a ry i n s tallation

. . . or any acquisition of land o r construction of a defense access road,” and i t d efines a “m ilitary installation” as a “base, cam p, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a m i l i t a ry departm ent.” 1 0 U.S.C. § 2801(a), (c)(4). Nothing about this distinctive definition o f “ military construction” creates or reflects a general gloss on the word

“ military ,” m

u ch less does it suggest that the ordinary

m eaning of “m ilit a ry ” in other contexts carries all of this baggage w ith it. The m ajority’s effort to im port the specific features of this term of art (“m ilitary construction”) into o ne

o f th e component words of that phrase m akes neither lin guistic nor logical sense, and it is therefore irrelevantS T A T E O F C AL I F O R N I A V

. T R

UMP 97

whether or not the § 284 activities at issue here m eet that definition. 2 3

The m ajority also contends that, even if th e a c ti vities i n v ol ved here are “m ilitary” ones, they still did not invol v e “m ilitary requirements .” See Maj. Opin. at 45–45 (em phasis added). That is wrong. The term “requirem ent” is not lim ited to those tasks that DoD is compelled to undertake, nor i s it lim ited to those actions that DoD undertakes for it s e l f

. The term also includes “som ething that is wanted or needed”

or “ s o m ething called for or dem anded,” see Requirement
, W E B S T E R ’ S T H I R

D ; see also Requirement
, B LA C K ’ S L A W D I C T I ON

AR Y ( 11th ed. 2019) (listing, as an alternative definition, “[s]om ething that som eone n eeds or asks f or”), and that readily applies to the request for assistance that was

m ade to DoD in this case under § 284. W e should be

23 Th e m ajority notes that the phrase “ m ilitary construction” is used in 10 U.S.C. § 2808, which “[t]he Federal Defendants have also invoked

. . . to fund othe r b o rder wall construction projects on t he southern border.” Maj. Opin. at 44. But that statute w as i nvoked only with respect to a different set of funds t o be used for activities that D efendants contend d o qualify as “m ilitary construction” for purposes of DoD’s additional construction authority after a declaration o f a n a t i o n a l em ergency. See 10 U.S.C. § 2808(a). The States also challenged the use of that separate
set of f unds in their suit below, but these challenges form no part of th e Rule 54(b) p artial judgm ent n ow b efore us, and any issue concerning them has no bearing on the di s ti n ct questions presented here. Relatedly, the President’s proclam ation declaring such an em ergency is relevant only to that o ther set of funds and has no legal bearing on the Secretary’s transfers here. Cf

. Maj. Opin. at 12–13, 39 (discussing th e d e c laration). And Congress’s joint resolutions attem pt i n g t o term inate the em ergency declaration, see id

. at 39
, a re irrelevant for the further reason t hat they

were vetoed and never becam e law. See id

. at 1 2 n.3; see also 50 U.S.C. § 1622(a)(1) ( congressional term ination requires “enact[ i n g] into law a joint resolution term inating th e em ergency”); Chadha
, 462 U.S. at 946–48.S T A T E O F C AL I F O R N I A V

. T R

UMP 98

cautious before adopting an unduly crabbed reading of what constitutes a mi litary “requirem ent,” especially when Congress has explicitly assigned a task t o the m ilitary, as it did in § 284. Cf

. Winter v. Natural Res. De f

. Council
, 555 U.S. 7
, 24 (2008) (“great deference” is generally given to the m ili t ary ’s judgm ent of the im portance of a m ilitary interest).

According l y , DoD’s provision of support to DHS under § 284 involves a “m ilitary requirem ent[]” within the m eaning of § 8005. The m ajority errs in concluding otherwise.

2

The m ajority is likewise wrong in contending that DoD’s need to provide assistanc e to DHS for these projects under § 284 was no t “unforeseen” within the m eaning of § 8005. See Maj. Opin. at 37–42.

Once again, the m ajority f ails to construe § 8005 against the backdrop of the appropriations process. In ordinary
usage, “foresee” m eans “ t o s ee (as a future occurrence o r developm ent) as certain or unavoidable : look forward to with

assurance .” F

oresee , W E B S T E R ’ S T H I R D (em phasis added). In the context of the appropriations process, a n “ item ” has b ee n se en as certain o r unavoidable only if it is reflected i n DoD’s b udgetary subm issions or in Congress’s review and revision of those subm issions. Conversely, it is “unforeseen” if it is not reflected as an item in any of those m aterials. The Red Book confirm s this understa n ding. In explaining the need for reprogramm ing, i t quotes the Deputy Defense Secretary’s statem ent that reprogramm ing allows agencies to respond to “unforeseen changes” that a re not reflected in theS T A T E O F C AL I F O R N I A V

. T R

UMP 99

“budget estimates” on w hi ch the final appropriations are based :

“Th e d e fense b udget does not exist in a

vacuum

. There ar e forces at work to play havoc with even the best of budget estim ates. The economy m ay v ary in term s of inflation; political realities m ay bring external forces to b e a r; fact-of-life or programm atic changes

m ay o ccur. The very n a tur e of the lengthy and overlapping cycles of the b u dget process poses continual th reats to the integrity o f b u d g et estim ates. R ep ro g ram m in g p r o c e d

u r e s perm it us to respond to these unforeseen

c h a n g e s a n d s t i l l m e e t o u r d e f e n s e requirem ents.”

RE D B O O K , 2016 W L 1275442, at * 5 (citation om itted). A s the GAO has explained
, th e question is not whether a particular item “wa s unforeseen in general ”; “[r]ather, the question und er section 8 005 is whether it was unforeseen at the tim e of the b udget re qu est and enactm ent o f appropriations.” U.S. GAO, B-330862, Departmen t o f Defense—Availability of A ppropriations for Border Fence Con struction at 7–8 (Sept. 5
, 2019) (em phasis added), https://www.gao.gov/assets/710/701176.pdf. Under this standard, the item s at issue h ere were “unforeseen”; indeed, the States do not contend that funding for the DoD assistance
at issue here was ever requested, proposed, or considered during DoD’s appropriations process.

In reaching a contrary conclusion, the m ajority m akes two legal errors. First, it m akes precisely the m istake the GAO identified, nam ely, it exam ines whether the “problem ” (drugS T A T E O F C AL I F O R N I A V

. T R

UMP 100

sm uggling) and the “solution” (a border b arrier) were foreseen in general
, rather than whether they were foreseen within the appropriations process

. S ee Maj. Opin. at 40–41. Thus, in concluding that DoD’s n eed to provid e assistance under § 284 was not “unforeseen,” the m ajority relies on the general prem ises that “the conditions at the border” have been known to be a problem since at least the 1960s and that “the President’s position th a t a wall was needed to address those conditions” was publicly known well befo r e h e took office. Id

. at 35, 37. Second, by rejecting the view that “foreseen” is equivalent to “known” or that it requires “actual knowledge,” id

. at 39–40, the m ajority effectively rewrites the statute as if it said “ foreseeable ” rather than “foreseen.” Contrary to the

m ajority’s view that re quiring f oreknowledge would “effectively elim inate[] any elem ent of ant i cipation o r expectation,” see id

. at 39, “foreseen” is comm only understood to be interchangeable with “foreknown.” See
, e.g. , Foresee
, W E B S T E R ’ S T H I R D (listing “foreknow” as a synonym ). By wrongly shifting the focus away from whether

a current need m atches up with the assum ptions on which the budget and ap p r o p riations were based, the m ajority’s errors

wo uld preclude DoD from m aking transfers based on a ny factors that were anticipated within the larger society and, as

a result, would essentially reduce the transfer power in § 8005 to a nullity.

3

DoD’s transfers here we r e thus based on “m ilitary” “requirem ents” that were “unforeseen” within the m eaning o f § 8005. The S tates do not o therwise contest the Secretary’s determ ination that the i tem s in q uestion were “higher
p r i o r i t y ” i t e m s t h a n “ t h o s e f o r w h i c h o r i g i n a l l yS T A T E O F C AL I F O R N I A V

. T R

UMP 101

appropriated.” This elem ent of § 8005’s first proviso was therefore also satisfied here.

C

The Stat e s contend that, even if the transfers com plied with the conditions in § 8005, the particular transfer that was

m ade under § 9002, see supra at 5 2–53, did not satisfy that section’s additional requirem ent that transfers under that

s ec tion be m ade only “between the appropriations o r funds

m ade availabl e t o the Departm ent of Defense in this title

. ” 132 Stat. at 3042 (em

phasis added). According to the States, the appropriations under that t i t l e are only f or “Overseas Contingency Operations,” and the transferee appropriation does not c o un t

. This argum ent is plainly incorrect. The separate title in the D oD Ap pr o p r iations Act that is entitled “Overseas Co n t i ngency Operations” contains w ithin it a specific appropriatio n for “Drug Interdiction and CounterDrug Activities, De fense,” 132 Stat. at 3042, which is the appropriation to which the funds were transferred. T h e fact that the am ounts in th a t fu nd are designated as funds for

“ O v e r s e a s C o n t i n g e n c y O p e r a t i o n s / G l o b a l W a r o n Terrorism ” for purposes of calculating b udgetary caps under § 251(b)(2)(A)(ii) of the Ba lanced B udget and Em ergency Deficit Control Act of 1985, 2 U.S.C. § 901(b)(2)(A)(ii), does
not thereby im

pose an additional lim itati o n o n the purposes for which such funds m ay be expended.

V

Based on the foregoing, I conclude that at least California has Article III standing, but that the States lack any cause o f action to challenge these § 8005 and § 9002 transfers. Alternatively, if the S tates did have a c au s e of action, theirS T A T E O F C AL I F O R N I A V

. T R

UMP 102

claim s fail on the m erits a s a matter of law because the transfers com

plied with the lim itations in § 8 005 and § 9002. I therefore w ould reverse the district court’s partial gra n t o f

summ ary judgm ent to the States and w ould rem and the m atter with i nstructions to grant the Governm ent’s m otion for

summ ary judgm ent on this set o f claim s. Becaus e the

m ajority concludes otherwise, I respectfully dissent.