FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF CALIFORNIA; STATE OF

COLORADO; STATE OF

CONNECTICUT; STATE OF

DELAWARE; STATE OF HAWAII;

STATE OF MAINE; STATE OF

MINNESOTA; STATE OF NEW JERSEY;

STATE OF NEW MEXICO; STATE OF

NEVADA; STATE OF NEW YORK;

STATE OF OREGON;

COMMONWEALTH OF VIRGINIA;

STATE OF ILLINOIS; STATE OF

MARYLAND; DANA NESSEL,

ATTORNEY GENERAL, ON BEHALF OF

THE PEOPLE OF MICHIGAN; STATE OF

WISCONSIN; STATE OF

MASSACHUSETTS; STATE OF

VERMONT; STATE OF RHODE ISLAND,

Plaintiffs-Appellees,

v.

DONALD J. TRUMP, in his official

capacity as President of the United

States of America; UNITED STATES

OF AMERICA; UNITED STATES

DEPARTMENT OF DEFENSE; MARK T.

ESPER, in his official capacity as

Acting Secretary of Defense; RYAN

D. MCCARTHY, senior official

No. 19-16299

D.C. No.

4:19-cv-00872-

HSG
2 STATE OF CALIFORNIA V. TRUMP

performing the duties of the

Secretary of the Army; RICHARD V.

SPENCER, in his official capacity as

Secretary of the Navy; HEATHER

WILSON, in her official capacity as

Secretary of the Air Force; UNITED

STATES DEPARTMENT OF THE

TREASURY; STEVEN TERNER

MNUCHIN, in his official capacity as

Secretary of the Department of the

Treasury; U.S. DEPARTMENT OF THE

INTERIOR; DAVID BERNHARDT, in his

official capacity as Secretary of the

Interior; U.S. DEPARTMENT OF

HOMELAND SECURITY; CHAD F.

WOLF, in his official capacity as

Acting Secretary of Homeland

Security,

Defendants-Appellants.
STATE OF CALIFORNIA V. TRUMP 3

STATE OF CALIFORNIA; STATE OF

NEW MEXICO,

Plaintiffs-Appellants,

v.

DONALD J. TRUMP, in his official

capacity as President of the United

States of America; UNITED STATES

OF AMERICA; UNITED STATES

DEPARTMENT OF DEFENSE; MARK T.

ESPER, in his official capacity as

Acting Secretary of Defense; RYAN

D. MCCARTHY, senior official

performing the duties of the

Secretary of the Army; RICHARD V.

SPENCER, in his official capacity as

Secretary of the Navy; HEATHER

WILSON, in her official capacity as

Secretary of the Air Force; UNITED

STATES DEPARTMENT OF THE

TREASURY; STEVEN TERNER

MNUCHIN, in his official capacity as

Secretary of the Department of the

Treasury; U.S. DEPARTMENT OF THE

INTERIOR; DAVID BERNHARDT, in his

official capacity as Secretary of the

Interior; U.S. DEPARTMENT OF

HOMELAND SECURITY; CHAD F.

WOLF, in his official capacity as

Acting Secretary of Homeland

Security,

Defendants-Appellees.

No. 19-16336

D.C. No.

4:19-cv-00872-

HSG

OPINION
4 STATE OF CALIFORNIA V. TRUMP

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted November 12, 2019

San Francisco, California

Filed June 26, 2020

Before: Sidney R. Thomas, Chief Judge, and Kim McLane

Wardlaw and Daniel P. Collins, Circuit Judges.

Opinion by Chief Judge Sidney R. Thomas;

Dissent by Judge Collins
STATE OF CALIFORNIA V. TRUMP 5

SUMMARY*

Appropriations

The panel affirmed the district court’s judgment holding

that budgetary transfers of funds for the construction of a wall

on the southern border of the United States in California and

New Mexico were not authorized under the Department of

Defense Appropriations Act of 2019.

Section 8005 and Section 9002 of the Act (collectively

“Section 8005”) was invoked to transfer $2.5 billion of

Department of Defense funds appropriated for other purposes

to fund border wall construction. Sixteen states, including

California and New Mexico, filed suit challenging the

Executive Branch’s funding of the border wall. The district

court granted California and New Mexico’s motion for partial

summary judgment, and issued declaratory relief, holding the

Section 8005 transfer of funds as to the El Centro and El Paso

sectors unlawful.

The panel held that California and New Mexico

established the requisite Article III standing to challenge the

federal defendants’ actions. 

Concerning the injury in fact element of standing, the

panel held that California and New Mexico alleged that the

actions of the federal defendants will cause particularized and

concrete injuries in fact to the environment and wildlife of

their respective states as well as to their sovereign interests in

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
6 STATE OF CALIFORNIA V. TRUMP

enforcing their environmental laws. First, the panel held that

California and New Mexico each provided sufficient

evidence, if taken as true, that would allow a reasonable factfinder to conclude that both states would suffer injuries in

fact to their environmental interests, and in particular, to

protect endangered species within their borders. Second, the

panel also held that California and NewMexico demonstrated

that border wall construction injured their quasi-sovereign

interests by preventing them from enforcing their

environmental laws.

Concerning the causation element for standing, the panel

held that California alleged environmental and sovereign

injuries that were fairly traceable to the federal defendants’

conduct. The panel held that with respect to most of the

environmental injuries, causation was apparent. The panel

also concluded that the causation requirement was likewise

satisfied for the injuries to California’s and New Mexico’s

quasi-sovereign interests.

Concerning the redressability element of standing, the

panel held that a ruling in California and New Mexico’s favor

would redress their harms. Without the Section 8005 funds,

the Department of Defense would have inadequate funding to

finance construction of the projects, and this would prevent

both the alleged and environmental and sovereign injuries.

The panel held that California and New Mexico had the

right to challenge the transfer of funds under the

Administrative Procedure Act (“APA”). Specifically, the

panel held that Section 8005 imposed certain obligations

upon the Department of Defense, which it did not satisfy. 

The panel further held that California and New Mexico, as

aggrieved parties, could pursue a remedy under the APA, as
STATE OF CALIFORNIA V. TRUMP 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 with those

of Congress and were not inconsistent with the purposes

implicit in the statute. The panel concluded that California

and New Mexico easily fell within the zone of interests of

Section 8005.

The panel held that Section 8005 did not authorize the

Department of Defense’s budgetary transfer to fund

construction of the El Paso and El Centro Sectors. 

Specifically, the panel concluded that the district court

correctly determined that the border wall was not an

unforeseen military requirement, and that funding for the wall

had been denied by Congress. Absent such statutory

authority, the Executive Branch lacked independent

constitutional authority to transfer the funds at issue here. 

The panel concluded that the transfer of funds was unlawful,

and affirmed the district court’s declaratory judgment to

California and New Mexico.

Finally, the panel declined to reverse the district court’s

denial of California and New Mexico’s request for permanent

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. Even assuming that they had a

cause of action, Judge Collins would conclude that the

transfers were lawful and reverse the district court’s partial

judgment for the States and remand for entry of partial

summary judgment in favor of the defendants.
8 STATE OF CALIFORNIA V. TRUMP

COUNSEL

H. Thomas Byron III (argued), Anne Murphy, and Courtney

L. Dixon, Appellate Staff; Hashim M. Mooppan and James

M. Burnham, Deputy Assistant Attorneys General; Joseph H.

Hunt, Assistant Attorney General; Civil Division, United

States Department of Justice, Washington, D.C.; for

Defendants-Appellants/Cross-Appellees.

Dror Ladin (argued), Noor Zafar, Jonathan Hafetz, Hina

Shamsi, and Omar C. Jadwat, AmericanCivil Liberties Union

Foundation, New York, New York; Cecillia D. Wang,

American Civil Liberties Union Foundation, San Francisco,

California; Mollie M. Lee and Christine P. Sun, American

Civil Liberties Union Foundation of Northern California Inc.,

San Francisco, California; David Donatti and Andre I.

Segura, American Civil Liberties Union Foundation ofTexas,

Houston, Texas; Sanjay Narayan and Gloria D. Smith, Sierra

Club Environmental Law Program, Oakland, California; for

Plaintiffs-Appellees.

Douglas N. Letter (argued), Todd B. Tatelman, Megan

Barbero, Josephine Morse, and Kristin A. Shapiro, United

States House ofRepresentatives, Washington, D.C.; Carter G.

Phillips, Virginia A. Seitz, Joseph R. Guerra, and Christopher

A. Eiswerth, Sidley Austin LLP, Washington, D.C.; for

Amicus Curiae United States House of Representatives.

James F. Zahradka II (argued), Brian J. Bilford, Sparsh S.

Khandeshi, Heather C. Leslie, Lee I. Sherman, and Janelle M.

Smith, Deputy Attorneys General; Michael P. Cayaban,

Christine Chuang, andEdward H.Ochoa, Supervising Deputy

Attorneys General; Robert W. Byrne, Sally Magnani, and

Michael L. Newman, Senior Assistant Attorneys General;
STATE OF CALIFORNIA V. TRUMP 9

Xavier Becerra,AttorneyGeneral; AttorneyGeneral’s Office,

Oakland, California; Jennie Lusk, Civil Rights Bureau Chief;

Nicholas M. Sydow, Civil Appellate Chief; Tania Maestas,

Chief Deputy Attorney General; Hector Balderas, Attorney

General; Office of the Attorney General, Santa Fe, New

Mexico; for Amici Curiae States of California and New

Mexico.

Christopher J. Hajec, Immigration Reform Law Institute,

Washington, D.C.; Lawrence J. Joseph, Washington, D.C.;

for Amicus Curiae United States Representative Andy Barr.

John W. Howard, George R. Wentz Jr., Richard Seamon, and

D. Colton Boyles, Davillier Law Group LLC, Sandpoint,

Idaho, for Amicus Curiae State of Arizona House of

Representatives Federal Relations Committee.

Richard P. Hutchison, Landmark Legal Foundation, Kansas

City, Missouri; Michael J. O’Neill and Matthew C. Forys,

Landmark Legal Foundation, Leesburg, Virginia; for Amici

Curiae Angel Families, Sabine Durden, Don Rosenberg,

Brian McAnn, Judy Zeito, Maureen Mulroney, Maureen

Laquerre, Dennis Bixby, and Advocates for Victims of Illegal

Alien Crimes.

Douglas A. Winthrop, Arnold & Porter Kaye Scholer LLP,

San Francisco, California; Irvin B. Nathan, Robert N. Weiner,

Andrew T. Tutt, Kaitlin Konkel, and Samuel F. Callahan,

Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for

Amici Curiae Former Members of Congress.

Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and

Ashwin P. Phatak, Constitutional Accountability Center,

Washington, D.C., for Amici Curiae Federal Courts Scholars.
10 STATE OF CALIFORNIA V. TRUMP

Steven A. Zalesin, Adeel A. Mangi, and Amir Badat,

Patterson Belknap Webb & Tyler LLP, New York, New

York, for Amici Curiae 75 Religious Organizations.

Harold Hongju Koh, Peter Gruber Rule of Law Clinic, Yale

Law School, New Haven, Connecticut; Kathleen R. Hartnett,

Boies Schiller Flexner LLP, San Francisco,California; Phillip

Spector, Messing & Spector LLP, Baltimore, Maryland; for

Amici Curiae Former United States Government Officials.

Samuel F. Daughety and Suzanne R. Schaeffer, Dentons US

LLP, Washington, D.C.; Joshua O. Rees, Acting Attorney

General, Tohono O’Odham Nation, Sells, Arizona; for

Amicus Brief Tohono O’Odham Nation.
STATE OF CALIFORNIA V. TRUMP 11

OPINION

THOMAS, Chief Judge:

This appeal presents the question of whether the

Department of Defense Appropriations Act of 2019

authorized the Department of Defense (“DoD”) to make

budgetary transfers from funds appropriated by Congress to

it for other purposes in order to fund the construction of a

wall on the southern border of the United States in California

and New Mexico. We conclude that the transfers were not

authorized by the terms of the Act, and we affirm the

judgment of the district court.1

I

The President has long supported the construction of a

border wall on the southern border between the United States

and Mexico. Since the President took office in 2017,

however, Congress has repeatedly declined to provide the

amount of funding requested by the President.

The debate over border wall funding came to a head in

December of 2018. During negotiations to pass an

appropriations bill for the remainder of the fiscal year, the

President announced that he would not sign any legislation

that did not allocate substantial funds to border wall

construction. On January 6, 2019, the White House requested

$5.7 billion to fund the construction of approximately

1 There are companion appeals concerning some of the same issues

in Sierra Club, et. al. v. Trump et. al., Nos. 19-16102 and 19-16300. 

Those appeals will be the subject of a separate opinion.
12 STATE OF CALIFORNIA V. TRUMP

234 miles of new physical barrier.2 Budget negotiations

concerning border wall funding reached an impasse,

triggering the longest partial government shutdown in United

States history.

After 35 days, the government shutdown ended without

an agreement to provide increased border wall funding in the

amount requested by the President. On February 14, 2019,

Congress passed the Consolidated Appropriations Act of

2019 (“CAA”), which included the Department of Homeland

Security Appropriations Act for Fiscal Year 2019, Pub. L.

No. 116-6, div. A, 133 Stat. 13 (2019). The CAA

appropriated only $1.375 billion for border wall construction,

specifying that the funding was for “the construction of

primary pedestrian fencing . . . in the Rio Grande Valley

Sector.” Id. § 230(a)(1). The President signed the CAA into

law the following day.

The President concurrently issued a proclamation under

the National Emergencies Act, 50 U.S.C. §§ 1601–1651,

“declar[ing] that a national emergency exists at the southern

border of the United States.” Proclamation No. 9844, 84 Fed.

Reg. 4949 (Feb. 15, 2019).3 An accompanying White House

Fact Sheet explained that the President was “using his legal

authority to take Executive action to secure additional

resources” to build a border wall, and it specified that “the

2 Some form of a physical barrier already exists at the site of some of

the construction projects. In those places, construction would reinforce or

rebuild the existing portions.

3 Subsequently, Congress adopted two joint resolutions terminating

the President’s emergency declaration pursuant to its authority under

50 U.S.C. § 1622(a)(1). The President vetoed each resolution, and

Congress failed to override these vetoes.
STATE OF CALIFORNIA V. TRUMP 13

Administration [had] so far identified up to $8.1 billion that

[would] be available to build the border wall once a national

emergency [was] declared and additional funds [were]

reprogrammed.” The Fact Sheet identified several funding

sources, including $2.5 billion of Department of Defense

(“DoD”) funds that could be transferred to provide support

for counterdrug activities of other federal government

agencies under 10 U.S.C. § 284 (“Section 284”).4 Executive

Branch agencies began using the funds identified by the Fact

Sheet to fund border wall construction. On February 25, the

Department of Homeland Security (“DHS”) submitted to

DoD a request for Section 284 assistance to block drug

smuggling corridors. In particular, it requested that DoD

fund “approximately 218 miles” of wall using this authority,

comprised of numerous projects, including the El Centro

Sector Project 1 in California and the El Paso Sector Project

1 in New Mexico, as relevant to this case. On March 25,

Acting Secretary of Defense PatrickShanahan approved three

border wall construction projects: Yuma Sector Projects 1 and

2 in Arizona and El Paso Sector Project 1 in New Mexico. 

On May 9, Shanahan approved four more border wall

construction projects: El Centro Sector Project 1 in California

and Tucson Sector Projects 1–3 in Arizona.

4 Section 284 authorizes the Secretary of Defense to “provide support

for the counterdrug activities . . . of any other department or agency of the

Federal Government” if it receives a request from “the official who has

responsibility for the counterdrug activities.” 10 U.S.C. §§ 284(a),

284(a)(1)(A). The statute permits, among other things, support for

“[c]onstruction of roads and fences and installation of lighting to block

drug smuggling corridors across international boundaries of the United

States.” Id. § 284(b)(7). DoD’s provision of support for other agencies

pursuant to Section 284 does not require the declaration of a national

emergency.
14 STATE OF CALIFORNIA V. TRUMP

Because these projects were undertaken to construct

barriers and roads in furtherance of border security, Acting

Secretary of Homeland Security Kevin McAleenan invoked

the authority granted to him by Section 102(c) of the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, § 102(c),

110 Stat. 3009-546, 3009-554 (1996) (codified as amended as

a note to 8 U.S.C. § 1103), to “waive all legal requirements”

that would otherwise apply to the border wall construction

projects “to ensure . . . expeditious construction.” 84 Fed.

Reg. 17185-01 (April 24, 2019). On April 24, with respect to

the El Paso Sector, he “waive[d] in their entirety, with respect

to the construction of physical barriers and roads” a long list

of statutes, “including all federal, state, or other laws,

regulations, and legal requirements of, deriving from, or

related to the subject of” “[t]he National Environmental

Policy Act” “(42 U.S.C. 4321 et seq.),” “the Endangered

Species Act” “(16 U.S.C. 1531 et seq.),” “the Federal Water

Pollution Control Act (commonly referred to as the Clean

Water Act (33 U.S.C. 1251 et seq.)),” and “the Clean Air Act

(42 U.S.C. 7401 et seq.).” Id. He executed a similar Section

102(c) waiver with respect to the El Centro Sector on

May 15. 84 Fed. Reg. 21800-01 (May 15, 2019).

At the time Shanahan authorized these border wall

construction projects, the counter-narcotics support account

contained only $238,306,000 in unobligated funds, or less

than one tenth of the $2.5 billion needed to complete those

projects. To provide the support requested, Shanahan

invoked the budgetary transfer authority found 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 Activities-Defense

appropriations account. 
STATE OF CALIFORNIA V. TRUMP 15

For the first set of projects, Shanahan transferred

$1 billion from Army personnel funds. For the second set of

projects, Shanahan transferred $1.5 billion from “various

excess appropriations,” which contained funds originally

appropriated for purposes such as modification of in-service

missiles and support for U.S. allies in Afghanistan.

As authority for the transfers, DoD specifically relied on

Section 8005 and Section 9002 of the Department of Defense

Appropriations Act of 2019, Pub. L. No. 115-245, 132 Stat.

2981 (2018) (“Section 8005”).5

Section 8005 provides, in relevant part, that:

Upon determination by the Secretary of

Defense that such action is necessary in the

national interest, he may, with the approval of

the Office of Management and Budget,

transfer not to exceed $4,000,000,000 of

working capital funds of the Department of

Defense or funds made available in this Act to

the Department of Defense for military

functions (except military construction)

between such appropriations or funds or any

subdivision thereof, to be merged with and to

be available for the same purposes, and for the

5 For simplicity, because the transfer authorities are both subject to

Section 8005’s substantive requirements, this opinion refers to these

authorities collectively as Section 8005, as did the district court and the

motions panel. Our holding in this case therefore extends to both the

transfer of funds pursuant to Section 8005 and Section 9002.
16 STATE OF CALIFORNIA V. TRUMP

same time period, as the appropriation or fund

to which transferred.6

Section 8005 also explicitly limits when its authority can

be invoked: “Provided, That such authority to transfer may

not be used unless for higher priority items, based on

unforeseen military requirements, than those for which

originally appropriated and in no case where the item for

which funds are requested has been denied by the Congress.”

Although Section 8005 does not require formal

congressional approval of transfers, historically DoD had

adhered to a “gentleman’s agreement,” by which it sought

approval from the relevant congressional committees before

transferring the funds. DoD deviated from this practice

here—it did not request congressional approval before

authorizing the transfer. Further, the House Committee on

Armed Services and the House Committee on Appropriations

both wrote letters to DoD formally disapproving of the

reprogramming action after the fact. Moreover, with respect

to the second transfer, Shanahan expressly directed that the

transfer of funds was to occur “without regard to comity6 Section 9002 provides that: “Upon the determination of the

Secretary of Defense that such action is necessary in the national interest,

the Secretary may, with the approval of the Office of Management and

Budget, transfer up to $2,000,000,000 between the appropriations or funds

made available to the Department of Defense in this title: Provided, That

the Secretary shall notify the Congress promptly of each transfer made

pursuant to the authority in this section: Provided further, That the

authority provided in this section is in addition to any other transfer

authority available to the Department of Defense and is subject to the

same terms and conditions as the authority provided in section 8005 of

this Act.”
STATE OF CALIFORNIA V. TRUMP 17

based policies that require prior approval from congressional

committees.”

In the end, Section 8005 was invoked to transfer

$2.5 billion of DoD funds appropriated for other purposes to

fund border wall construction.

II

On February 18, 2019, sixteen states,7including

California and New Mexico, filed a lawsuit challenging the

Executive Branch’s funding of the border wall. The States

pled theories of violation of the constitutional separation of

powers, violation of the Appropriations Clause, ultra vires

action, violations of the Administrative Procedure Act

(“APA”), and violations of the National Environmental

Policy Act (“NEPA”). The next day, Sierra Club and the

Southern Border Communities Coalition filed a separate

action challenging the same border wall funding.8

7 Specifically, 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, Oregon, the

Commonwealth of Virginia, and Attorney General Dana Nessel on behalf

of the People of Michigan. The complaint was later amended to add the

following states: Rhode Island, Vermont, Wisconsin, and the

Commonwealth of Massachusetts. State parties are collectively

referenced as “the States.”

8 Both lawsuits named as defendants Donald J. Trump, President of

the United States, Patrick M. Shanahan, former Acting Secretary of

Defense, KirstjenM. Nielsen, former Secretary of Homeland Security, and

Steven Mnuchin, Secretary of the Treasury in their official capacities,

along with numerous other Executive Branch officials (collectively

referenced as “the Federal Defendants”).
18 STATE OF CALIFORNIA V. TRUMP

The States subsequently filed a motion requesting a

preliminary injunction to enjoin the transfer of funds to

construct a border wall in New Mexico’s El Paso Sector. The

district court held that New Mexico had standing, but it

denied without prejudice the preliminary injunction motion. 

The court based part of its reasoning on the fact that it had

already imposed a preliminary injunction in the Sierra Club

action such that the grant of a preliminary injunction in favor

of the States would be duplicative. California subsequently

filed another motion requesting a preliminary injunction to

enjoin the transfer of funds to construct a border wall in

California’s El Centro Sector.

California and New Mexico then moved for partial

summary judgment on their declaratory judgment action as to

the El Centro and El Paso Sectors, and additionally moved for

a permanent injunction to enjoin funding the construction of

these sectors. The Federal Defendants filed a cross-motion

for summary judgment on all claims. The district court

granted California and New Mexico’s motion for partial

summary judgment, and issued declaratory relief, holding the

Section 8005 transfer of funds as to the El Centro and El Paso

sectors unlawful. The district court denied the Federal

Defendants’ motion for summary judgment.

The court also denied California and New Mexico’s

motion for a permanent injunction, this time basing its

reasoning, in part, on the permanent injunction ordered by the

district court in the companion Sierra Club case.9

9 The Supreme Court subsequently granted a stay of the district

court’s permanent injunction in the separate companion case, Trump v.

Sierra Club, 140 S. Ct. 1 (2019) (mem.).
STATE OF CALIFORNIA V. TRUMP 19

The Federal Defendants requested that the district court

certify its order as a final judgment for immediate appeal

pursuant to Fed. R. Civ. P. 54(b). In response, the district

court considered the appropriate factors, made appropriate

findings, and certified the order as final pursuant to Rule

54(b). See Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d

565, 574 (9th Cir. 2018) (listing factors). The Federal

Defendants timely appealed the district court’s judgment, and

the States timely cross-appealed the district court’s denial of

injunctive relief. The district court’s Rule 54(b) certification

was proper; therefore, we have jurisdiction under 28 U.S.C.

§ 1291. See Durfey v. E.I. DuPont De Nemours & Co.,

59 F.3d 121, 124 (9th Cir. 1995) (appeal is proper upon

certification as a final judgment pursuant to Rule 54(b)).

We review the existence of Article III standing de novo. 

See California v. U.S. Dep’t of Health & Human Servs.,

941 F.3d 410, 420 (9th Cir. 2019). We review questions of

statutory interpretation de novo. See United States v. Kelly,

874 F.3d 1037, 1046 (9th Cir. 2017).

III

California and New Mexico have Article III standing to

pursue their claims. In order to establish Article III standing,

a plaintiff must have (1) suffered an injury in fact, (2) that is

fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial

decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61

(1992).10 At summary judgment, a plaintiff cannot rest on

10 The Federal Defendants do not challenge California’s and New

Mexico’s Article III standing in these appeals. However, “the court has

an independent obligation to assure that standing exists, regardless of
20 STATE OF CALIFORNIA V. TRUMP

mere allegations, but “must set forth by affidavit or other

evidence specific facts.” Clapper v. Amnesty Int’l USA,

568 U.S. 398, 412 (2013) (internal quotations and citations

omitted). These specific facts, set forth “for purposes of the

summary judgment motion[,] will be taken to be true.” 

Lujan, 504 U.S. at 561.

States are “entitled to special solicitude in our standing

analysis.” Massachusetts v. EPA, 549 U.S. 497, 520 (2007). 

As a quasi-sovereign, a state “has an interest independent of

and behind the titles of its citizens, in all the earth and air

within its domain.” Georgia v. Tenn. Copper Co., 206 U.S.

230, 237 (1907). Thus, a state may sue to assert its “quasisovereign interests in the health and well-being—both

physical and economic—of its residents in general.” Alfred

L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607

(1982). In addition, “[d]istinct from but related to the general

well-being of its residents, the State has an interest in

securing observance of the terms under which it participates

in the federal system.” Id. at 607–08.

A

Here, California and New Mexico have alleged that the

actions of the Federal Defendants will cause particularized

and concrete injuries in fact to the environment and wildlife

whether it is challenged by 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 the APA “zone of

interest” requirement, which we will discuss later. The district court held

that New Mexico had established Article III standing.
STATE OF CALIFORNIA V. TRUMP 21

of their respective states as well as to their sovereign interests

in enforcing their environmental laws.

1

The El Centro Sector Project 1 involves the Jacumba

Wilderness area. California contends that this area is home

to a large number of sensitive plant and animal 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 California Endangered Species Act, Cal. Fish &

Game Code § 2050 et seq. California alleges that “[t]he

construction of border barriers within or near the Jacumba

Wilderness Area . . . will have significant adverse effects on

environmental resources, including direct and indirect

impacts to endangered or threatened wildlife.” One such

species is the federally and state-endangered peninsular desert

bighorn sheep. Another is the flat-tailed horned lizard, a

California species of special concern.11

11 A species of special concern is “a species, subspecies, or distinct

population of an animal native to California that currently satisfies one or

more of the following (but not necessarily mutually exclusive) criteria: is

extirpated from the State . . .; is listed as Federally-, but not State-,

threatened or endangered; meets the State definition of threatened or

endangered but has not formally been listed; is experiencing, or formerly

experienced, serious (noncyclical) population declines orrange retractions

(not reversed) that, if continued or resumed, could qualify it for State

threatened or endangered status; has naturally small populations exhibiting

high susceptibility of to risk from any factor(s), that if realized, could lead

to declines that would qualify it for State threatened or endangered status.” 

CAL. DEPT. OF FISH AND WILDLIFE, SPECIES OF SPECIES CONCERN,

https://wildlife.ca.gov/Conservation/SSC#394871324-what-is-therelationship-between-sscs-and-the-california-wildlife-action-plan.
22 STATE OF CALIFORNIA V. TRUMP

California has adequately set forth facts and other

evidence, which taken as true, support these allegations for

the purpose of Article III standing. According to the

California Department of Fish and Wildlife 2018 annual

report addressing sheep monitoring in the Jacumba

Wilderness area, “[t]he Jacumba ewe group is dependent on

resources both within the US and Mexico. A fence along the

US-Mexico border would prohibit movement to, and use of,

prelambing and lamb-rearing habitat and summer water

sources,” and the development of energy projects adjacent to

the Jacumba Mountains “combined with disturbance by

border security activities” “will have significant adverse

impacts on this ewe group.” California contends that road

construction; grading and construction of equipment storage

and parking areas; and off road movement of vehicle and

equipment involved in construction will alter the normal

behavior of peninsular bighorn sheep, with the most

significant effect on the endangered peninsular bighorn sheep

being the permanent reduction of its north-south movement

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

unimpeded movement of the peninsular bighorn sheep

between the United States and Mexico is important for

increasing and maintaining their genetic diversity. It

contends that as the number of animals that move between

these two countries declines or ceases, the species will begin

to suffer the deleterious effects of 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 extensive trenching, construction of roads, and

staging of materials proposed in the area will harm or kill
STATE OF CALIFORNIA V. TRUMP 23

lizards that are either active or in underground burrows within

the project footprint. It claims that the construction of the

border wall will also greatly increase the predation rate of

lizards adjacent to the wall by providing a perch for birds of

prey and will effectively sever the linkage that currently

exists between populations on both sides of the border.

New Mexico alleges that “[t]he construction of a border

wall in the El Paso Sector along New Mexico’s southern

border will have adverse effects on the State’s environmental

resources, including direct and indirect impacts to endangered

or threatened wildlife.” Such harm “would include the

blocking of wildlife migration, flooding, and habitat loss.” It

notes that the Chihuahuan desert is bisected by the New

Mexico-Mexico border, and this “bootheel” region is the

most biologically diverse desert in the Western Hemisphere,

containing numerous endangered or threatened species. Such

species include the Mexican gray wolf and the jaguar, both of

which coexist in this region along the U.S.-Mexico border.

New Mexico has adequately set forth facts and other

evidence, which taken as true, support these allegations for

the purpose of Article III standing. It contends that the

construction of El Paso Sector Project 1 may have a number

of adverse effects on the Mexican wolf, including injury,

death, harm, and harassment due to construction and related

activities, as well as abandonment of the area for essential

behaviors such as feeding, resting, and mating due to night

lighting and the elimination of food sources and habitat in the

area. Moreover, New Mexico avers that the construction of

El Paso Sector Project 1 would interrupt the movement of the

Mexican wolf across the U.S.-Mexico border, putting

additional pressure on the species’ survival and recovery in

the wild because the unimpeded movement of Mexican
24 STATE OF CALIFORNIA V. TRUMP

wolves between the United States and Mexico is important

for increasing and maintaining their genetic diversity. New

Mexico notes that the documented movement of a radiocollared Mexican wolf across the border in the areas where

border wall construction is planned demonstrates that

construction will indeed cause such an interruption.

Additionally, the jaguar is considered endangered by the

U.S. Fish and Wildlife Service (“USFWS”). New Mexico

avers that jaguars were formerly widespread in the southwest

United States, but were extirpated by hunting. It claims that,

in recent decades, small numbers of individuals have

dispersed north from breeding populations in northern

Mexico, with some reaching the mountains in southwestern

New Mexico west of Luna County. New Mexico contends

that, if further long-term recolonization of jaguars continues,

areas in Doña Ana and Luna counties include suitable habitat,

but construction of El Paso Sector Project 1 would stop jaguar

movement through the region, potentially limiting

recolonization.

For these reasons, we conclude that California and New

Mexico have each provided sufficient evidence which, if

taken as true, would allow a reasonable fact-finder to

conclude that both states will suffer injuries in fact to their

environmental interests, and in particular, to protected species

within their borders.

2

In addition, California and New Mexico have alleged that

the Federal Defendants’ actions have interfered with their

respective abilities to enforce their environmental laws, thus

interfering with the terms under which they participate in the
STATE OF CALIFORNIA V. TRUMP 25

federal system. They alleged that they have suffered, and will

continue to suffer, injuries to their concrete, quasi-sovereign

interests relating to the preservation of wildlife resources

within their boundaries, including but not limited to wildlife

on state properties.

California and New Mexico have adequately set forth

facts and other evidence, which taken as true, support these

allegations for the purpose of Article III standing. They have

demonstrated that border wall construction injures their

quasi-sovereign interests by preventing them from enforcing

their environmental laws.

Under California law, the California Water Resources

Control Board and nine regional boards establish water

quality objectives and standards, and for construction projects

like El Centro Sector Project 1, where dredge and fill

activities are expected to occur, a regional board must

ordinarily certify compliance with water quality standards. 

The record indicates that, absent the Secretary of Homeland

Security’s Section 102(c) IIRIRA waiver of the Clean Water

Act requirements for the project, El Centro Project 1 could

not proceed without completing certification issued by a

regional water board because the El Centro Project 1 will

occur within or near the Pinto Wash and will traverse at least

six ephemeral washes that have been identified as waters of

the United States. The record further indicates that, due to

the nature and location of construction, El Centro Project 1

would also require enrollment in the State Water Board’s

statewide National Pollutant Discharge Elimination General

Permit for Storm Water Discharges Associated with

Construction and Land Disturbance Activities.
26 STATE OF CALIFORNIA V. TRUMP

Likewise, the Section 102(c) waiver of the Clean Air

Act’s requirements undermines California’s enforcement of

its air quality standards for complying with the Clean Air Act

as set forth in California’s State Implementation Plan (“SIP”). 

In particular, but for the waiver, in order to move forward

with El Centro Project 1, the Federal Defendants “would be

obligated to comply with Rule 801 [of the SIP], which

requires the development and implementation of a dustcontrol plan for construction projects to prevent, reduce, and

mitigate [fine particulate matter] emissions.”

Moreover, the Section 102(c) waiver exempts the Federal

Defendants from complying with laws designed to protect

endangered or threatened species. For instance, it exempts

the Federal Defendants from consulting with the USFWS to

ensure that El Centro Sector Project 1 “is not likely to

jeopardize the continued existence of any endangered species

or threatened species or result in the destruction or adverse

modification of habitat of such species” that are identified as

endangered under California and federal law. 16 U.S.C.

§ 1536(a)(2). As we have noted, California contends that the

El Centro Sector Project 1 is likely to harm federal and

California endangered species such as the peninsular bighorn

sheep and the flat-tailed horned lizard. The presence of these

species led the USFWS, Bureau of Land Management

(“BLM”), California Department of Fish and Wildlife, and

California State Parks to develop and implement the “FlatTailed Horned Lizard Rangewide Management Strategy,”

which imposes restrictions on projects resulting in large-scale

soil disturbances in the project area and prohibits activities

that restrict the lizards’ interchange with lizard populations

across the border. Without the Section 102(c) waiver, this

management strategy would impose certain restrictions and

mitigation measures on the border wall construction projects.
STATE OF CALIFORNIA V. TRUMP 27

Under New Mexico law, the Federal Defendants, absent

the Section 102(c) waiver of the Clean Air Act’s

requirements, would normally be required to comply with

New Mexico’s fugitive dust control rule and High Wind

Fugitive Dust Mitigation Plan that New Mexico adopted

under the Clean Air Act. See N.M. Admin. Code

§§ 20.2.23.109–.112 (mandating that “[n]o person . . . shall

cause or allow visible emissions from fugitive dust sources

that: pose a threat to public health; interfere with public

welfare, including animal or plant injury or damage, visibility

or the reasonable use of property” and “[e]very person subject

to this part shall utilize one or more control measures . . . as

necessary to meet the requirements of [this section]”). The

waiver, however, prevents New Mexico from enforcing these

air quality rules.

New Mexico further contends that, absent the Section

102(c) waiver, the Federal Defendants would also normally

be required to consult with the USFWS to protect species

such as the Mexican wolf that are endangered under both

federal and New Mexico Law. Moreover, the USFWS’s

management plan for the species—the “Mexican Wolf

Recovery Plan-First Revision”—which is designed to

“facilitate the wolf’s revival,” “calls for a minimum of

320 wolves in the United States and 200 in Mexico to meet

recovery goals.” The “binational recovery strategy” of this

plan was developed by the USFWS “in coordination with

federal agencies in Mexico and state, federal, and Tribal

agencies in the United States,” and “[e]ffective recovery

requires participation by multiple parties within Federal,

state, and local governments.” USFWS, MEXICAN WOLF

RECOVERY PLAN-FIRST REVISION at 10, 16 (2017). 

Construction undermines this plan because it inhibits the
28 STATE OF CALIFORNIA V. TRUMP

“utilization of habitat” and does not promote “metapopulation connectivity.”

The Section 102(c) waiver likewise prevents NewMexico

from enforcing its Wildlife Corridors Act. Portions of El

Paso Project 1 cross New Mexico State Trust Lands, and New

Mexico contends that the planned pedestrian fencing disrupts

habitat corridors in New Mexico—contravening to the

Wildlife Corridors Act. The Act “requires New Mexico state

agencies to create a ‘wildlife corridors action plan’ to protect

species’ habitat.” New Mexico further avers that New

Mexico’s State Trust Lands in and around the El Paso Project

1 site form an important wildlife corridor for numerous

species such as mule deer, javelina, pronghorn, bighorn

sheep, mountain lion, bobcat, coyote, bats, quail, and other

small game like rabbits.

In sum, we conclude that California and New Mexico

have each provided sufficient evidence which, if taken as

true, would allow a reasonable fact-finder to conclude that

they have both suffered injuries in fact to their sovereign

interests.

B

Turning to the causation requirement, we conclude that

California has alleged environmental and sovereign injuries

“fairly traceable” to the Federal Defendants’ conduct. To

satisfy this requirement, California and New Mexico “need

not show that [Section 8005 is] ‘the very last step in the chain

of causation.’” Ass’n of Pub. Agency Customers v.

Bonneville Power Admin., 733 F.3d 939, 953 (9th Cir. 2013)

(quoting Bennett v. Spear, 520 U.S. 154, 169 (1997)). “A

causal chain does not fail simply because it has several
STATE OF CALIFORNIA V. TRUMP 29

‘links,’ provided those links are ‘not hypothetical or tenuous’

and remain ‘plausib[le].’” Maya v. Centex Corp., 658 F.3d

1060, 1070 (9th Cir. 2011) (quoting Nat’l Audubon Soc., Inc.

v. Davis, 307 F.3d 835, 849 (9th Cir. 2002)).

With respect to most of the environmental injuries,

causation is apparent—for instance, as explained above, the

construction and presence of the border wall will separate the

peninsular bighorn sheep and Mexican wolf populations,

decreasing biodiversity, and harming these species.

Although slightly more attenuated, we also conclude that

the causation requirement is likewise satisfied for the injuries

to California’s and New Mexico’s quasi-sovereign interests. 

It makes no difference that the Section 102(c) waiver is most

directly responsible for these injuries because without Section

8005, there is no waiver. That is, without the Section 8005

funding to construct El Centro Sector Project 1 and El Paso

Sector Project 1, there would be no basis to invoke Section

102(c), and therefore, no resulting harm to California’s and

New Mexico’s sovereign interests. Thus, we conclude that

these injuries too are fairly traceable to the Section 8005

transfers of funds.

C

A ruling in California and New Mexico’s favor would

redress their harms. Without the Section 8005 funds, DoD

had inadequate funding to finance construction of these

projects; presumably, without this funding, construction of El

Centro Sector Project 1 and El Paso Sector Project 1 would

cease. This would prevent both the environmental injuries

and the sovereign injuries alleged.
30 STATE OF CALIFORNIA V. TRUMP

Thus, these facts would allow a reasonable fact-finder to

conclude that, if funds are diverted to construct border wall

projects in the El Centro and El Paso Sectors, California and

New Mexico will each suffer environmental and quasisovereign injuries in fact that are fairly traceable to the

challenged conduct of the Federal Defendants and likely to be

redressed by a favorable judicial decision. California and

New Mexico have established the requisite Article III

standing to challenge the Federal Defendants’ actions.

IV

The Federal Defendants argue that California and New

Mexico lack the right to challenge the transfer of funds under

the APA. We disagree.12

The APA provides for judicial review of “final agency

action for which there is no other adequate remedy in a

court.” 5 U.S.C. § 704. Where a statute imposes obligations

on a federal agency but the obligations do not “give rise to a

‘private’ right of action against the federal government[,] [a]n

aggrieved party may pursue its remedy under the APA.” San

Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099

(9th Cir. 2005). California and New Mexico must, however,

establish that they fall within the zone of interests of the

relevant statute to bring an APA claim. See Match-E-BeNash-She-Wish Band of Pottawatomi Indians v. Patchak,

12 The States argue that they have both an equitable ultra vires cause

of action and a cause of action under the APA. Although each of the

claims 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 claims here. The States seek the same scope of relief under both

causes of action and they prevail under the APA.
STATE OF CALIFORNIA V. TRUMP 31

567 U.S. 209, 224 (2012) (“This Court has long held that a

person suing under the APA must satisfy not only Article

III’s standing requirements, but an additional test: The

interest he asserts must be ‘arguably within the zone of

interests to be protected or regulated by the statute’ that he

says was violated.” (quoting Ass’n of Data Processing Serv.

Org., Inc. v. Camp, 397 U.S. 150, 153 (1970))).

Section 8005 does not confer a private right of action. 

Instead, it delegates a narrow slice of Congress’s

appropriation power to DoD to allow the agency to respond

flexibly to unforeseen circumstances implicating the national

interest. In doing so, the statute imposes certain obligations

upon DoD—i.e., DoD cannot invoke Section 8005 unless

there is an unforeseen military requirement and unless

Congress did not previously deny the item requested. 

California and New Mexico argue that DoD did not satisfy

these obligations. We agree. Therefore, as aggrieved parties,

California and New Mexico may pursue a remedy under the

APA, so long as they fall within Section 8005’s zone of

interests.

As a threshold matter, Section 8005 is the relevant statute

for the zone of interests test. “Whether a plaintiff’s interest

is ‘arguably . . . protected . . . by the statute’ within the

meaning of the zone-of-interests test is to be determined not

by reference to the overall purpose of the Act in question . . .

but by reference to the particular provision of law upon

which the plaintiff relies.” Bennett, 520 U.S. at 175–76

(emphasis added). Here, for purposes of their APA claim,

California and New Mexico rely on Section 8005’s

limitations. Thus, Section 8005 is the relevant statute for the

zone of interests test.
32 STATE OF CALIFORNIA V. TRUMP

The Supreme Court has clarified that, in the APA context,

the zone of interests test does “not require any ‘indication of

congressional purpose to benefit the would-be plaintiff.’” 

Patchak, 567 U.S. at 225 (quoting Clarke v. Sec. Indus. Ass’n,

479 U.S. 388, 399–400 (1987)). It has repeatedly emphasized

that the zone of interests test is “not ‘especially demanding’”

in the APA context. Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 130 (2014) (quoting

Patchak, 567 U.S. at 225). Instead, for APA challenges, a

plaintiff can satisfy the test in either one of two ways: (1) “if

it is among those [who] Congress expressly or directly

indicated were the intended beneficiaries of a statute,” or

(2) “if it is a suitable challenger to enforce the statute—that

is, if its interests are sufficiently congruent with those of the

intended beneficiaries that the litigants are not more likely to

frustrate than to further . . . statutory objectives.” Scheduled

Airlines Traffic Offices, Inc. v. Dep’t of Def., 87 F.3d 1356,

1359 (D.C. Cir. 1996) (alterations in original) (quotations and

citations omitted). “The test forecloses suit only when a

plaintiff’s ‘interests are so marginally related to or

inconsistent with the purposes implicit in the statute that it

cannot reasonably be assumed that Congress intended to

permit the suit.’” Patchak, 567 U.S. at 225 (quoting Clarke,

479 U.S. at 399). “We apply the test in keeping with

Congress’s ‘evident intent’ . . . ‘to make agency action

presumptively reviewable[,]’” and note that “the benefit of

any doubt goes to the plaintiff.” Id. (quoting Clarke,

479 U.S. at 399).

In enacting Section 8005, Congress primarily intended to

benefit itself and its constitutional power to manage

appropriations. The obligations imposed by the section limit

the scope of the authority delegated to DoD, reserving to

Congress in most instances the power to appropriate funds to
STATE OF CALIFORNIA V. TRUMP 33

particular DoD accounts for specific purposes. This

conclusion is reinforced by the legislative history. Congress

first imposed limits on DoD’s transfer authority in order to

“tighten congressional control of the reprogramming

process.” H.R. Rep. No. 93-662, at 16 (1973).

The field of suitable challengers must be construed

broadly in this context because, although Section 8005’s

obligations were intended to protect Congress, restrictions on

congressional standing make it difficult for Congress to

enforce these obligations itself. See Goldwater v. Carter,

617 F.2d 697, 702 (D.C. Cir. 1979), vacated and remanded

on other grounds, 44 U.S. 996 (1979) (explaining that a

member of Congress has standing only if “the alleged

diminution in congressional influence . . . amount[s] to a

disenfranchisement, a complete nullification orwithdrawal of

a voting opportunity”). Indeed, the House of Representatives

filed its own lawsuit in the U.S. District Court for the District

of Columbia challenging this same transfer of funds, but the

court held that the House lacked standing to sue. See U.S.

House of Reps. v. Mnuchin, 379 F. Supp. 3d 8, 11 (D.D.C.

2019) (“And while the Constitution bestows upon Members

of the House many powers, it does not grant them standing to

hale the Executive Branch into court claiming a dilution of

Congress’s legislative authority.”).

California and New Mexico are suitable challengers

because their interests are congruent with those of Congress

and are not “inconsistent with the purposes implicit in the

statute.” Patchak, 567 U.S. at 225. First, this challenge

actively furthers Congress’s intent to “tighten congressional

control of the reprogramming process.” H.R. Rep. No. 93-

662, at 16 (1973). In particular, this challenge furthers this

intent because, even though Section 8005 does not require
34 STATE OF CALIFORNIA V. TRUMP

formal congressional approval to reprogram funds, the

congressional committees expressly disapproved of DoD’s

use of the authority here.

Second, California and New Mexico’s challenge strives

to reinforce the same structural constitutional principle

Congress sought to protect through Section 8005:

congressional power over appropriations. See U.S. Const. art.

I, § 9, cl. 7 (“No Money shall be drawn from the Treasury,

but in Consequence of Appropriations made by Law . . . .”);

see also Office of Pers. Mgmt. v. Richmond, 496 U.S. 414,

424 (1990) (explaining that this “straightforward and explicit

command” “‘means simply that no money can be paid out of

the Treasury unless it has been appropriated by an act of

Congress’” (quoting Cincinnati Soap Co. v. United States,

301 U.S. 308, 321 (1937))). California and New Mexico’s

interest in reinforcing these structural separation of powers

principles is unique but aligned with that of Congress because

just as those principles are intended “to protect each branch

of [the federal] government from incursion by the others,” the

“allocation of powers in our federal system [also] preserves

the integrity, dignity, and residual sovereignty of the States,”

because “[f]ederalism has more than one dynamic.” Bond v.

United States, 564 U.S. 211, 221–22 (2011). This interest

applies with particular force here because the use of Section

8005 here impacts California’s and New Mexico’s ability to

enforce their state environmental laws. See Massachusetts v.

EPA, 549 U.S. at 518–19 (“‘[T]he State has an interest

independent of and behind the titles of its citizens, in all the

earth and air within its domain. It has the last word as to

whether its mountains shall be stripped of their forests and its

inhabitants shall breathe pure air.’” (quoting Tenn. Copper

Co., 206 U.S. at 237)); see also Maine v. Taylor, 477 U.S.

131, 151 (1986) (“[A state] retains broad regulatory authority
STATE OF CALIFORNIA V. TRUMP 35

to protect the health and safety of its citizens and the integrity

of its natural resources.”). Here, the use of Section 8005

allows the government to invoke Section 102(c) of IIRIRA to

waive state environmental law requirements for purposes of

building the border wall.13 Thus, Section 8005’s limitations

protect California’s and New Mexico’s sovereign interests,

just as they protect Congress’s constitutional interests,

because they ensure that, ordinarily, Executive action cannot

override these interests without congressional approval and

funding. Therefore, just as Section 8005’s limitations serve

Congress to preserve the “equilibriumthe Constitution sought

to establish—so that ‘a gradual concentration of the several

powers in the same department,’ can effectively be resisted,”

they likewise serve California and New Mexico as well. 

Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J.,

dissenting) (quoting Federalist No. 51, p. 321 (J. Madison)).

Moreover, that the states regularly benefit from DoD’s

use of Section 8005 reinforces that California and New

Mexico’s interests are not “so marginally related” that “it

can[] reasonably be assumed that Congress intended to permit

suit.” Patchak, 567 U.S. at 225. For instance, in 2004 DoD

invoked Section 8005 to transfer funds to pay for storm

damages incurred by airforce bases across Florida during

Hurricane Charley. Office of the Under Sec’y of Def.

(Comptroller), FY 04-37 PA, Reprogramming Action (2004). 

Likewise, in 2008 DoD invoked Section 8005 to finance costs

incurred by the National Guard in responding to Hurricane

13 As we explained with respect to Article III standing, California and

New Mexico have provided sufficient evidence by declaration to establish

that they have suffered cognizable injuries to their sovereign interests and

that this injury is fairly traceable to the Federal Defendants’ use of Section

8005.
36 STATE OF CALIFORNIA V. TRUMP

Gustav in Louisiana, Texas, Mississippi, and Alabama, as

well as operations related to Hurricane Ike in Texas and

Louisiana. Office of the Under Sec’y of Def. (Comptroller),

FY 08-43 PA, Reprogramming Action (2008). The historical

use of Section 8005 supports that states are “reasonable” and

“predictable” challengers to its use, and this instance is no

anomaly. 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. We therefore affirm

the grant of summary judgment to the States. To conclude

otherwise would effectively hold that 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 DoD’s budgetary transfer to fund construction of

the El Paso and El Centro Sectors.

In construing a statute, we begin, as always, with the

language of the statute. UMG Recordings, Inc. v. Shelter

Capital Partners LLC, 718 F.3d 1006, 1026 (9th Cir. 2013). 

“When terms are not defined within a statute, they are

accorded their plain and ordinary meaning, which can be

deduced through reference sources such as general usage

dictionaries.” Id. Of course, “[s]tatutory language must

always be read in its proper context,” id. (quotations and

citation omitted), as courts must look to the “design of the

statute as a whole and to its object and policy,” id. (quotations
STATE OF CALIFORNIA V. TRUMP 37

and citation omitted), and “the words of a statute must be read

in their context and with a view to their place in the overall

statutory scheme,” Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743, 1748 (2019) (quotations and citation

omitted).

Section 8005’s transfer authority cannot be invoked

“unless for higher priority items, based on unforeseen

military requirements, than those for which originally

appropriated and in no case where the item for which funds

are requested has been denied by the Congress.” Two

limitations are important to our analysis: (1) that the transfer

must be “based on unforeseen military requirements,” and

(2) that the transfer authority cannot be invoked if the “item

for which funds are requested ha[d] been denied by the

Congress.” We conclude that the district court correctly

determined that the border wall was not an unforeseen

military requirement, that funding for the wall had been

denied by Congress, and therefore, that the transfer authority

granted by Section 8005 was not permissibly invoked.

A

Section 8005 authorizes the transfer of funds only in

response to an “unforeseen military requirement.” The

district court properly concluded that the need for a border

wall was not unforeseen. We also conclude that the need was

unrelated to a military requirement.

1

Section 8005 does not define “unforeseen.” Therefore,

we start by considering the ordinary meaning of the word. 

Something is unforeseen when it is “not anticipated or
38 STATE OF CALIFORNIA V. TRUMP

expected.” Unforeseen, MERRIAM-WEBSTER ONLINE

DICTIONARY (2020). By contrast, to foresee is “to see

(something, such as a development) beforehand.” Foresee,

MERRIAM-WEBSTERONLINE DICTIONARY (2020) (emphasis

added). Prior use of this authority confirms this meaning. 

Previously, DoD has invoked its Section 8005 authority to

transfer funds to repair hurricane and typhoon damage to

military bases—natural disasters that inflict damage that may

not be anticipated or expected ahead of time. We conclude

that an unforeseen requirement is one that DoD did not

anticipate or expect.

Neither the problem, nor the President’s purported

solution, was unanticipated or unexpected here. The

smuggling of drugs into the United States at the southern

border is a longstanding problem. U.S. CUSTOMS AND

BORDER PATROL, BORDER PATROL HISTORY,

https://www.cbp.gov/border-security/along-us-borders/history

(last visited June 16, 2020) (“By [the early 1960’s]

the business of alien smuggling began to involve drug

smuggling also. The Border Patrol assisted other agencies in

intercepting illegal drugs from Mexico.”); United States v.

Flores-Montano, 541 U.S. 149, 153 (2004) (“That interest in

protecting the borders is illustrated in this case by the

evidence that smugglers frequently attempt to penetrate our

borders with contraband secreted in their automobiles’ fuel

tank. Over the past 5 1/2 fiscal years, there have been

18,788 vehicle drug seizures at the southern California

ports of entry.”). Indeed, the federal Drug Enforcement

Administration was created over four decades ago in 1974 in

large part to address the smuggling of illegal drugs into the

United States. See Reorganization Plan No. 2 of 1973, 87

Stat. 1091, as amended Pub. L. 93-253, §1, 88 Stat. 50

(1974).
STATE OF CALIFORNIA V. TRUMP 39

Congress’s joint resolution terminating the President’s

declaration of a national emergency only reinforces this

point: there was no unanticipated crisis at the border. 

Nothing prevented Congress from funding solutions to this

problem through the ordinary appropriations process—

Congress simply chose not to fund this particular solution.

The long, well-documented history of the President’s

efforts to build a border wall demonstrates that he considered

the wall to be a priority from the earliest days of his

campaign in 2015. See, e.g., Here’s Donald Trump’s

Presidential Announcement Speech, TIME (June 16, 2015) (“I

would build a great wall . . . I will build a great, great wall on

our southern border.”); Transcript of Donald Trump’s

Immigration Speech, NEW YORK TIMES (Sept. 1, 2016) (“On

day one, we will begin working on an impenetrable, physical,

tall, power, beautiful southern border wall.”). Moreover, his

repeated pronouncements on the subject made clear that

federal agencies like DoD might be tasked with the wall’s

funding and construction. Congress’s repeated denials of

funding only drew national attention to the issue and put

agencies on notice that they might be asked to finance

construction. See Securing America’s Future Act of 2018,

H.R. 4760, 115th Cong. § 1111 (2018); Border Security and

Immigration Reform Act of 2018, H.R. 6136, 115th Cong.

§ 5101 (2018); American Border Act, H.R. 6415, 115th

Cong. § 4101 (2018); Fund and Complete the Border Wall

Act, H.R. 6657, 115th Cong. § 2 (2018); Build the Wall,

Enforce the Law Act of 2018, H.R. 7059, 115th Cong. § 9

(2018); 50 Votes for the Wall Act, H.R. 7073, 115th Cong.

§ 2 (2018); WALL Act of 2018, S. 3713, 115th Cong. § 2

(2018). In short, neither the conditions at the border nor the

President’s position that a wall was needed to address those

conditions was unanticipated or unexpected by DoD.
40 STATE OF CALIFORNIA V. TRUMP

The Federal Defendants’ arguments to the contrary are

unpersuasive. They assert that “an agency’s request” “will be

foreseen” only “when it is received by DoD in time to include

in the submission to Congress [for the yearly budget],” and

that therefore, the transfer at issue here complied with the text

of the statute. (emphasis added). There are two problems

with the Federal Defendants’ position.

First, Section 8005 permits transfers based only on

unforeseenmilitary requirements—not unforeseen budgetary

requests. A requirement that gives rise to a funding request

is distinct from the request itself. Here, the requirement that

gave rise to the Section 284 requests is a border wall. Thus,

to invoke the statute, the need for a border wall must have

been unforeseen. To hold otherwise—i.e., to conclude that

transfers are permitted under Section 8005 if they are based

on unforeseen budgetary requests—would undermine the

narrowness of the statute and potentially encourage DoD and

other agencies to submit budgetary requests after DoD has

submitted its final budget to Congress in order to skirt the

congressional appropriations process. This result is

inconsistent with the purpose of Section 8005: to “tighten

congressional control of the reprogramming process.” H.R.

Rep. No. 93-662, at 16 (1973). If this interpretation

prevailed, the exception would swallow the rule and

undermine Congress’s constitutional appropriations power.

Second, even if we were to accept the government’s

definition of “requirement” as equivalent to “request,” DHS’s

specific Section 284 requests were both anticipated and

expected, even within the confines of the appropriations

context. Nearly six months before the enactment of the 2019

DoD Appropriations Act, the President wrote the following

in a memorandum to the Secretary of Defense, the Attorney
STATE OF CALIFORNIA V. TRUMP 41

General, and the Secretary of Homeland Security: “The

Secretary of Defense shall support the Department of

Homeland Security in securing the southern border and taking

other necessary actions to stop the flow of deadly drugs and

other contraband . . . into this country.” Further, in a

response to a request for information from the House Armed

Services Committee, DoD wrote that the “DoD Comptroller

with[held] over 84% ($947 million) of [counter-drug]

appropriated funds for distribution until the 4th Quarter for

possible use in supporting Southwest Border construction last

fiscal year.” As explained by the Staff Director of the House

Armed Services Committee, this “suggests that DoD was

considering using its counter-drug authority under 10 U.S.C.

§ 284 for southern border construction in early 2018.” 

Further still, because Section 284 only allows DoD to provide

support that is requested by other agencies, DoD’s retention

of funds suggests it likely anticipated such a request. See

10 U.S.C. § 284(a)(1) (“The Secretary of Defense may

provide support . . . if . . . such support is requested.”).

The Federal Defendants also unpersuasively equate

“foreseen” with “known.” “[T]o know” means “to perceive

directly: have direct cognition of.” Know, MERRIAMWEBSTER ONLINE DICTIONARY (2020). This interpretation

effectively eliminates any element of anticipation or

expectation. “‘Congress’ choice of words is presumed to be

deliberate’ and deserving of judicial respect.” SAS Inst., Inc.

v. Iancu, 138 S. Ct. 1348, 1355 (2018) (quoting Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013)). Thus,

we must presume that Congress’s use of the word

“unforeseen” is deliberate. Congress could have easily

specified that a transfer is permitted only when based on

“unknown” requirements, but it did not. Instead, Congress

specified that Section 8005 permits a transfer only where a
42 STATE OF CALIFORNIA V. TRUMP

requirement was unforeseen—i.e., unanticipated or

unexpected. We decline to read into the text a lower standard

based on actual knowledge.14

In sum, both the requirement to build a wall on the

southern border as well as the DHS request to DoD to build

that wall were anticipated and expected. Thus, neither was

“unforeseen” within the meaning of Section 8005.

2

Section 8005 not only mandates that the requirement be

unforeseen, but also that it be a military requirement. Under

relevant definitions, the construction of El Centro and El Paso

projects does not satisfy any definition of a “military

requirement.”

The 2019 Appropriations Act does not define “military.” 

Therefore, we start by considering its ordinary meaning: “of

or relating to soldiers, arms, or war.” Military, MERRIAMWEBSTER ONLINE DICTIONARY (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 use of

soldiers or arms, nor that there is a war on the southern

border.

14 Indeed, in DoD parlance, the possibility that border funding from

the DoD budget might be requested was a “known unknown,” as opposed

to “unforeseeable,” which would be an “unknown unknown,” a category

which former Secretary of Defense Rumsfeld described as including a

“genuine surprise.” DONALD RUMSFELD, KNOWN AND UNKNOWN: A

MEMOIR, p. xiv. (2011).
STATE OF CALIFORNIA V. TRUMP 43

The administrative record underscores this point, and

supports that the border wall construction projects are not

military ones. The record demonstrates that the diverted

funding is primarily intended to support DHS—a civilian

agency entirely separate from any branch of the armed forces. 

The Assistant Secretary of Defense stated that the funds were

transferred “to provide assistance toDHS to construct fencing

to block drug-smuggling corridors 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 border.” By contrast, the transfer of

funds for border wall construction does little to assist DoD

with any of its operations. Even to the extent it might, it does

so only insofar as it helps DoD assist DHS: as summarized by

the Chairman of the Joint Chiefs of Staff and DHS, border

wall projects “allow DoD to provide support to DHS more

efficiently and effectively.” (emphasis added). In short, the

fact that construction is intended to support a civilian agency,

as opposed to DoD itself or any branch of the armed forces,

emphasizes that the transfer fails to meet the plain meaning

of “military.”

The border wall construction projects do not even satisfy

a statutory definition specifically invoked by the Federal

Defendants. See also WILLIAM N. ESKRIDGE ET AL.,

LEGISLATION AND STATUTORY INTERPRETATION 273 (2d ed.

2006) (“A word or clause that is ambiguous at first glance

might be clarified if ‘the same terminology is used elsewhere

in a context that makes its meaning clear’” and such

coherence arguments may be invoked “across as well as

within statutes” (quoting United Savings Ass’n of Tex. v.

Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371

(1988))).
44 STATE OF CALIFORNIA V. TRUMP

The Federal Defendants have also invoked 10 U.S.C.

§ 2808 (“Section 2808”) to fund other border wall

construction projects on the southern border. Section 2808

incorporates the definition of “military construction”

provided by 10 U.S.C. § 2801(a): it defines “military

construction” as construction associated with a “military

installation” or “defense access road.” Section 2801(c)(4)

further defines “military installation” as “a base, camp, post,

station, yard, center, or other activity under the jurisdiction of

the Secretary of a military department.”15

The border wall construction projects at issue in this

appeal are not carried out with respect to a “military

installation.” The projects themselves are not a base, camp,

station, yard, or center, and unlike the projects considered by

the Federal Defendants’ related Section 2808 appeal, the

15 To be sure, Section 8005 states that it applies only to transfers

between appropriations for “military functions,” as opposed to the phrase

“military construction” used in Section 2808. However, the statutes

address similar subject matter, and it is of some significance that the

Federal Defendants have invoked Section 2808 for functionally identical

projects, claiming that such projects constitute “military construction”

within the meaning of that statute, while also asserting that such projects

satisfy the term “military” within the meaning of Section 8005. And, as

we know, “‘statutes addressing the same subject matter’ should be

construed in pari materia.” Fed. Trade Comm’n v. AMG Capital Mgmt.,

LLC, 910 F.3d 417, 433 n.2 (9th Cir. 2018) (O’Scannlain, J., concurring)

(quoting Wachovia Bank v. Schmidt, 546 U.S. 303, 315 (2006)). Under

that doctrine, related statutes should “be construed as if they were one

law.” Erlenbaugh v. United States, 409 U.S. 239, 243 (1972) (quotations

and citation omitted). Further, even apart from in pari materia

considerations, the Supreme Court “has previously compared

nonanalogous statutes to aid its interpretation of them.” Nat’l Fed’n of

Fed. Emps., Local 1309 v. Dep’t of Interior, 526 U.S. 86, 105 (1999)

(O’Connor, J., dissenting) (citing Overstreet v. North Shore Corp.,

318 U.S. 125, 131–32 (1943)).
STATE OF CALIFORNIA V. TRUMP 45

projects at issue in this appeal have not been brought under

military jurisdiction. Moreover, there are no military

installations in the El Centro or El Paso project areas, nor any

claim of a requirement for a defense access road; instead, as

we have noted, the projects affect open wilderness areas—the

El Centro Sector project involves the Jacumba Wilderness

areas, and the El Paso Sector project involves the Chihuahuan

desert. The fact that the construction projects fail to meet

Section 2808’s definition of military construction supports

that these projects fail to satisfy any meaningful definition of

“military.”

Even if we were to afford some consideration to the

subchapter title for Section 284 authorizing “Military Support

for Civilian Law Enforcement Agencies,” there is a

distinction to be drawn between “military support,” and what

the statute requires: a “military requirement.” Requirement

ordinarily means “something wanted or needed,” or

“something essential to the existence or occurrence of

something else.” Requirement, MERRIAM-WEBSTERONLINE

DICTIONARY (2020). The border wall construction projects

are not something needed or essential to the armed forces,

soldiers, arms, or any sort of war effort. Rather, as explained

above, they are designed to “provide assistance” and

“support” to DHS, a civilian agency. While providing such

support may be appropriate under Section 284, a request for

this support without connection to any military function fails

to rise to the level of a military requirement for purposes of

Section 8005. Simply because a civilian agency requests

support in furtherance of a particular objective, even when

such support is authorized by statute, does not mean that the

military itself requires that objective.
46 STATE OF CALIFORNIA V. TRUMP

To conclude that supporting projects unconnected to any

military purpose or installation satisfies the meaning of

“military requirement” would effectively write the term out

of Section 8005. Therefore, we conclude that the transfers at

issue here do not satisfy Section 8005’s military purpose

requirement.

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 here is whether

by declining to provide sufficient funding for the border wall,

Congress denied the item for which funds were requested

within the meaning of the statute.

As we have explained, Congress declined to fund the

border wall numerous times in a variety of ways. Congress

failed to pass seven different bills, see supra at 37–38, that

were proposed specifically 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 of the funds requested, for

“the construction of primary pedestrian fencing . . . in the Rio

Grande Valley Sector.” CAA at § 230(a)(1).

The Federal Defendants assert that the Section 8005

transfer would be invalid only if Congress had denied a

Section 284 budgetary line item request to fund the border

wall. But “[i]n common usage, a general denial of something

requested can, and in this case does, encompass more specific

or narrower forms of that request.” Sierra Club v. Trump,

929 F.3d 670, 691 (9th Cir. 2019). Here, Congress refused to

provide the funding requested by the President for border
STATE OF CALIFORNIA V. TRUMP 47

wall construction: a general denial. This general denial

necessarily encompasses narrower forms of denial—such as

the denial of a Section 284 budgetary line item request. We

decline to impose upon Congress an obligation to deny every

possible source of funding when it refuses to fund 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” means no.

To hold that Congress did not previously deny the

Executive Branch’s request for funding to construct a border

wall would be to “find secreted in the interstices of legislation

the very grant of power which Congress consciously

withheld.” Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 609 (1952) (Frankfurter, J., concurring). 

Regardless of how specific a denial may be in some

circumstances, Congress’s broad and resounding denial

resulting in a 35-day partial government shutdown must

constitute a previous denial for purposes of Section 8005. 

This history precludes the use of Section 8005’s transfer

authority.

C

In sum, Section 8005 did not authorize the transfer of

funds challenged by California and New Mexico. Absent

such statutory authority, the Executive Branch lacked

independent constitutional authority to transfer the funds at

issue here. See City and Cty. of San Francisco v. Trump,

897 F.3d 1225, 1233–34 (9th Cir. 2018) (“[W]hen it comes to

spending, the President has none of ‘his own constitutional

powers’ to ‘rely’ upon.” (quoting Youngstown, 343 U.S.

at 637 (Jackson, J., concurring))). Therefore, the transfer of
48 STATE OF CALIFORNIA V. TRUMP

funds at issue here was unlawful. We affirm the district

court’s declaratory judgment to California and New Mexico.

VI

Finally, we consider the district court’s denial of

California and New Mexico’s request for injunctive relief, a

decision we review for an abuse of discretion. See Midgett v.

Tri-Cty. Metro. Transp. Dist. of Or., 254 F.3d 846, 849 (9th

Cir. 2001). The district court denied the States’ request for a

permanent injunction primarily because the relief sought was

duplicative of the relief the district court had already granted

in the Sierra Club matter. That decision, which is the only

one before us in this appeal, was certainly not an abuse of

discretion. As we have noted, however, subsequent to the

district court’s decision, the Supreme Court stayed the Sierra

Club permanent injunction. See Sierra Club, 140 S. Ct. at 1.

Nevertheless, given 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 moment, the

injunction in Sierra Club no longer affords the States

protection. We emphasize, however, that depending on

further developments in these cases, the States are free to

seek further remedies in the district court or this Court.

VII

In sum, we affirm the district court. We conclude that

California and New Mexico have Article III standing to file

their claims, that California and New Mexico are sufficiently

within Section 8005’s zone of interests to assert an APA

claim, and that the Federal Defendants violated Section 8005

in transferring DoD appropriations to fund the El Centro and
STATE OF CALIFORNIA V. TRUMP 49

El Paso Sectors of the proposed border wall. We also decline

to reverse the district court’s decision against imposing a

permanent injunction, without prejudice to renewal. Given

our resolution of this case founded upon the violations of

Section 8005, we need not—and do not—reach the merits of

any other theory asserted by the States, nor reach any other

issues presented by the parties.

AFFIRMED.

COLLINS, Circuit Judge, dissenting:

In the judgment under review, the district court granted

summary judgment and declaratory relief to California and

New Mexico on their claims challenging the Acting Secretary

of Defense’s invocation of § 8005 and § 9002 of the

Department of Defense Appropriations Act, 2019 (“DoD

Appropriations Act”), Pub. L. No. 115-245, Div. A, 132 Stat.

2981, 2999, 3042 (2018), to transfer $2.5 billion in funds that

Congress had appropriated for other purposes into a different

Department of Defense (“DoD”) appropriation that could

then be used by DoD for construction of border fencing and

accompanying roads and lighting. The States allege that the

transfers were not authorized under § 8005 and § 9002 and

that, as a result of the construction activities made possible by

the unlawful transfers, the States have suffered injuries to

their sovereign and environmental interests. The majority

concludes that the States have Article III standing; that they

have a cause of action to challenge the transfers under the

Administrative Procedure Act (“APA”); that the transfers

were unlawful; and that the district court properly determined

that the States are not entitled to any relief beyond a
50 STATE OF CALIFORNIA V. TRUMP

declaratory judgment. I agree that at least California has

established 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 assuming that they had a cause

of action, I conclude that the transfers were lawful. 

Accordingly, I would reverse the district court’s partial

judgment for the States and remand for entry of partial

summary judgment in favor of the Defendants. I respectfully

dissent.

I

The parties’ dispute over DoD’s funding transfers comes

to us against the backdrop of a complex statutory framework

and an equally complicated procedural history. Before

turning to the merits, I will briefly review both that

framework and that history.

A

Upon request from another federal department, the

Secretary of Defense is authorized to “provide support for the

counterdrug activities” of that department by undertaking the

“[c]onstruction of roads and fences and installation of

lighting to block drug smuggling corridors across

international boundaries of the United States.” 10 U.S.C.

§ 284(a), (b)(7). On February 25, 2019, the Department of

Homeland Security (“DHS”) made a formal request to DoD

for such assistance. Noting that its counterdrug activities

included the construction of border infrastructure, see Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, § 102(a),

110 Stat. 3009-546, 3009-554 (1996) (codified as amended as

a note to 8 U.S.C. § 1103), DHS requested that “DoD,
STATE OF CALIFORNIA V. TRUMP 51

pursuant to its authority under 10 U.S.C. § 284(b)(7), assist

with the construction of fences[,] roads, and lighting” in

several specified “Project Areas” in order “to block drugsmuggling corridors across the international boundary

between the United States and Mexico.”

On March 25, 2019, the Acting Defense Secretary

invoked § 284 and approved the provision of support for,

inter alia, DHS’s “El Paso Sector Project 1,” which would

involve DoD construction of border fencing, roads, and

lighting in Luna and Doña Ana Counties in New Mexico. 

Thereafter, the Secretary of Homeland Security invoked his

authority under § 102(c) of IIRIRA to waive a variety of

federal environmental statutes with respect to the planned

construction of border infrastructure in the El Paso Sector, as

well as “all . . . state . . . laws, regulations, and legal

requirements of, deriving from, or related to the subject of,”

those federal laws. See 84 Fed. Reg. 17185, 17187 (Apr. 24,

2019).

Subsequently, on May 9, 2019, the Acting Defense

Secretary again invoked § 284, this time to approve DoD’s

construction of similar border infrastructure to support, inter

alia, DHS’s “El Centro Sector Project 1” in Imperial County,

California. Less than a week later, the Secretary of

Homeland Security again invoked his authority under IIRIRA

§ 102(c) to waive federal and state environmental laws, this

time with respect to the construction in the relevant section of

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 were insufficient funds in the

relevant DoD appropriation to do so. Specifically, for Fiscal
52 STATE OF CALIFORNIA V. TRUMP

Year 2019, Congress had appropriated for “Drug Interdiction

and Counter-Drug Activities, Defense” a total of only

$670,271,000 that could be used for counter-drug support. 

See DoD Appropriations Act, Title VI, 132 Stat. at 2997

(appropriating, under Title governing “Other Department of

Defense Programs,” a total of “$881,525,000, of which

$517,171,000 shall be for counter-narcotics support”); id.,

Title IX, 132 Stat. at 3042 (appropriating $153,100,000 under

the Title governing “Overseas Contingency Operations”). 

Accordingly, to support the El Paso Sector Project 1, the

Acting Secretary on March 25, 2019 invoked his authority to

transfer appropriations under § 8005 of the DoD

Appropriations Act and ordered the transfer of $1 billion

from “excess Army military personnel funds” into the “Drug

Interdiction and Counter-Drug Activities, Defense”

appropriation. That transfer was accomplished by moving

$993,627,000 from the “Military Personnel, Army”

appropriation and $6,373,000 from the “Reserve Personnel,

Army” appropriation.

To support the El Centro Sector Project 1, the Acting

Secretary on May 9, 2019 again invoked his transfer authority

to move an additional $1.5 billion into the “Drug Interdiction

and Counter-Drug Activities, Defense” appropriation. 

Pursuant to § 8005 of the DoD Appropriations Act, DoD

transferred a total of $818,465,000 from 12 different DoD

appropriations into the “Drug Interdiction and Counter-Drug

Activities, Defense” appropriation. Invoking the Secretary’s

distinct but comparable authority under § 9002 to transfer

funds appropriated under the separate Title governing

“Overseas Contingency Operations,” DoD transferred

$604,000,000 from the “Afghanistan Security Forces Fund”

appropriation and $77,535,000 from the “Operation and

Maintenance, Defense-Wide” appropriation into the “Drug
STATE OF CALIFORNIA V. TRUMP 53

Interdiction and Counter-Drug Activities, Defense”

appropriation.

B

The complex procedural context of this case involves two

parallel lawsuits and four appeals to this court, and it has

already produced one published Ninth Circuit opinion that

was promptly displaced by the Supreme Court.

1

California and New Mexico, joined by several other

States, filed this action in the district court against the Acting

Defense Secretary, DoD, and a variety of other federal

officers and agencies. In their March 13, 2019 First

Amended Complaint, they sought to challenge, inter alia, any

transfer of funds by the Acting Secretary under § 8005 or

§ 9002. The Sierra Club and the Southern Border

Communities Coalition (“SBCC”) filed a similar action, and

their March 18, 2019 First Amended Complaint also sought

to challenge any such transfers. Both sets of plaintiffs moved

for preliminary injunctions in early April 2019. The portion

of the States’ motion that was directed at the § 8005 transfers

was asserted only on behalf of New Mexico and only with

respect to the construction on New Mexico’s border (i.e., El

Paso Sector Project 1). The Sierra Club motion was likewise

directed at El Paso Sector Project 1, but it also challenged two

other projects in Arizona (“Yuma Sector Projects 1 and 2”).

After concluding that the Sierra Club and SBCC were

likely to prevail on their claims that the transfers under

§ 8005 were unlawful and that these organizational plaintiffs

had demonstrated a “likelihood of irreparable harm to their
54 STATE OF CALIFORNIA V. TRUMP

members’ aesthetic and recreational interests,” the district

court on May 24, 2019 granted a preliminary injunction

enjoining Defendants fromusing transferred funds for “Yuma

Sector Project 1 and El Paso Sector Project 1.”

1

In a

companion order, however, the district court denied

preliminary injunctive relief to the States. Although the court

held that New Mexico was likely to succeed on its claim that

the transfers under § 8005 were unlawful, the court concluded

that, in light of the grant of a preliminary injunction against

El Paso Sector Project 1 to the Sierra Club and SBCC, New

Mexico would not suffer irreparable harm from the denial of

its duplicative request for such relief. On May 29, 2019,

Defendants appealed the preliminary injunction in favor of

the Sierra Club and SBCC, and after the district court refused

to stay that injunction, Defendants moved in this court for an

emergency stay on June 3, 2019. New Mexico did not appeal

the district court’s denial of its duplicative request for a

preliminary injunction.

2

While the Defendants’ emergency stay request was being

briefed and considered in this court, California and New

Mexico (but not the other States) moved for partial summary

judgment on June 12, 2019. The motion was limited to the

issue of whether the transfers under § 8005 and § 9002 were

lawful, and it requested corresponding declaratory relief, as

well as a permanent injunction against the use of transferred

funds for El Paso Sector Project 1 and El Centro Sector

1 By the time the district court ruled, DoD had decided not to use

funds transferred under § 8005 for any construction in Yuma Sector

Project 2, and so the request for a preliminary injunction as to that project

was moot.
STATE OF CALIFORNIA V. TRUMP 55

Project 1. The Sierra Club and SBCC filed a comparable

summary judgment motion that same day, directed at those

two projects, as well as at Yuma Sector Project 1 and three

other Arizona projects (“Tucson Projects 1, 2, and 3”). 

Defendants filed cross-motions for summary judgment on the

legality of the transfers under § 8005 and § 9002 with respect

to the corresponding projects at issue in each case.

On June 28, 2019, the district court granted partial

summary judgment and declaratory relief to both sets of

plaintiffs, concluding that the transfers under § 8005 and

§ 9002 were unlawful. The court granted permanent

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 Mexico had failed to prove a threat of future

demonstrable environmental harm. The court expressed

doubts about the States’ alternative theory that they had

demonstrated injury to their sovereign interests, but the court

ultimately concluded that it did not 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 granted to the Sierra Club and SBCC. 

The district court denied Defendants’ cross-motions for

summary judgment in both cases. Invoking its authority

under Federal Rule of Civil Procedure 54(b), the district court

entered partial judgments in favor of, respectively, the Sierra

Club and SBCC, and California and New Mexico. The

district court denied Defendants’ request to stay the

permanent injunction pending appeal.
56 STATE OF CALIFORNIA V. TRUMP

3

On June 29, 2019, Defendants timely appealed in both

cases and asked this court to stay the permanent injunction in

the Sierra Club case based on the same briefing and argument

that had been presented in the preliminary injunction appeal

in that case. California and New Mexico timely crossappealed nine days later. On July 3, 2019, this court

consolidated Defendants’ appeal of the judgment and

permanent injunction in the Sierra Club case with

Defendants’ pending appeal of the preliminary injunction.2

That same day, a motions panel of this court issued a 2–1

published decision denying Defendants’ motion for a stay of

the permanent injunction (which had overtaken the

preliminary injunction). See Sierra Club v. Trump, 929 F.3d

670 (9th Cir. 2019).

Defendants then applied to the Supreme Court for a stay

of the permanent injunction pending appeal, which the Court

granted on July 26, 2019. See Trump v. Sierra Club, 140 S.

Ct. 1 (2019). That stay remains in effect “pending disposition

of the Government’s appeal in the United States Court of

Appeals for the Ninth Circuit and disposition of the

Government’s petition for a writ of certiorari, if such writ is

timely sought.” Id. at 1. In granting the stay, the Court

concluded that “the Government has made a sufficient

showing at this stage that [the Sierra Club and SBCC] have

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

compliance with Section 8005.” Id.

2 This court later consolidated the appeal and cross-appeal in the

States’ case with the already-consolidated appeals in the Sierra Club case.
STATE OF CALIFORNIA V. TRUMP 57

II

The Government has not contested the Article III standing

of California and New Mexico on appeal, but as the majority

notes, “‘the court has an independent obligation 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 Island Inst., 555 U.S. 488, 499 (2009)). As “an

indispensable part of the plaintiff’s case, each element” of

Article III standing “must be supported in the same way as

any other matter on which the plaintiff bears the burden of

proof, i.e., with the manner and degree of evidence required

at the successive stages of the litigation.” Lujan v. Defenders

of Wildlife (Lujan v. Defenders), 504 U.S. 555, 561 (1992). 

Thus, although well-pleaded allegations are enough at the

motion-to-dismiss stage, they are insufficient to establish

standing at the summary-judgment stage. Id. “In response to

a summary judgment motion, . . . the plaintiff can no longer

rest on such mere allegations, but must set forth by affidavit

or other evidence specific facts, which for purposes of the

summary judgment motion will be taken to be true.” Id.

(simplified).3

In reviewing standing sua sponte in the context of crossmotions for summary judgment, it is appropriate to apply the

3

I favor the general practice of reciting the language of the quoted

source as if that source were stating those exact words for the first time,

thereby disregarding any indicia of quotations within quotations (such as

brackets, ellipses, and multiple layers of quotation marks). Going

forward, I will use the word “simplified” rather than “cleaned up,”

because it seems less colloquial and it avoids suggesting that the more

precise quotation format needed “cleaning.” Of course, if I make any

changes to the simplified quotation, then those would be shown with

brackets or ellipses.
58 STATE OF CALIFORNIA V. TRUMP

more lenient standard that takes the plaintiffs’ evidence as

true and then asks whether a reasonable trier of fact could

find Article III standing. Lujan v. Defenders, 504 U.S. at 563

(applying this standard in evaluating whether Government’s

cross-motion for summary judgment should have been

granted). In their briefs below concerning the parties’ crossmotions, California and New Mexico asserted that

Defendants’ allegedly unlawful conduct caused both harm to

the States’ sovereign interests in enforcing their

environmental laws as well as actual environmental harm to

animals and plants within the States. I agree that at least the

second of these two asserted injuries—the threatened

occurrence of actual environmental harm—is sufficient to

establish Article III standing in this case, at least as to

California.4 Although the district court correctly recognized

that the States’ evidence of injury was very thin, see infra

note 6, California’s evidence is sufficient to establish

standing at the summary-judgment stage.

Even assuming arguendo that the States must show a

threat of injury to a protected species within their borders,

rather than merely injury to individual animals or plants

4 As the majority notes, see Maj. Opin. at 19 n.10, the district court

explicitly addressed Article III standing to challenge the transfers only in

the context of New Mexico’s request for a preliminary injunction. 

Although Article III standing was not revisited when both California and

New Mexico subsequentlymoved forsummary judgment and a permanent

injunction, the States’ showing of injury in support of a permanent

injunction provides a sufficient basis for evaluating their Article III

standing.
STATE OF CALIFORNIA V. TRUMP 59

belonging to such a species,5I think that California has made

a sufficient showing. Accepting the States’ evidence as true,

and drawing all reasonable inferences in their favor, a

reasonable trier of fact could conclude that the construction

activities associated with El Centro Sector Project 1 in

California could materially adversely affect the local

population of flat-tailed horned lizards, which California has

classified as a “Species of Special Concern.” Specifically,

California presented declarations from two biologists

explaining how DoD’s construction activities, and the

resulting border barrier, would materially harm the lizard

population by increasing opportunities for natural predators

to catch lizards, by creating a “genetic break” between the

populations within the species’ small range area on either side

of the barrier, and by accidentally killing a potentially

significant number of lizards during the construction itself. 

This evidence is sufficient to establish an injury-in-fact to

California’s environmental interests. Cf. Massachusetts v.

EPA, 549 U.S. 497, 521 (2007) (significant harm to

ecosystem is an injury to the State for Article III standing

purposes).6

5 There are aspects to the States’ arguments below—and of the

majority opinion here—that seem implicitly to rest on the expansive view

that the States would suffer cognizable injury-in-fact if there is harm to a

single protected animal or to any of the plants in the construction area. 

Such theories push the outermost limits of plausible injury-in-fact, cf.

Lujan v. Defenders, 504 U.S. at 566–67, but it is unnecessary to rely on

them here.

6 At the permanent-injunction stage, the district court found

unpersuasive California’s evidence of potential harmto this lizard species,

especially when weighed against the Government’s countervailing

evidence of mitigation efforts. I do not necessarily disagree with that

weighing of the competing evidence, but it addresses the injury issue in a

different posture under different standards. The district court’s denial of
60 STATE OF CALIFORNIA V. TRUMP

California’s showing of a material risk to a “Species of

Special Concern” is fairly traceable to the challenged funding

transfers and would be redressed by a favorable decision. 

Lujan v. Defenders, 504 U.S. at 560–61. It therefore suffices

to give us Article III jurisdiction to address the merits of the

States’ causes of action. We thus may proceed 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 the State of California clearly does have

standing, we need not address the standing of the other

[plaintiffs], whose position here is identical to the State’s.”). 

And given my view that the States’ legal challenges fail, I

perceive no obstacle to entering judgment against both

California and New Mexico without determining whether the

latter has standing. See Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 98 (1998).7

permanent injunctive relief reflected an exercise of remedial discretion

after the court had found the transfers invalid as a matter 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 most favorable to

them (as we must do as to the standing issue here). See Continental

Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1102 (9th Cir. 1994)

(where district court granted summary judgment and permanent

injunction, power to issue injunction was reviewed de novo, but “the

district court’s exercise of that power” was reviewed “for abuse of

discretion”).

7 By contrast, New Mexico’s standing is relevant to the scope of relief

that can be afforded if, as the majority concludes, the § 8005 and § 9002

transfers are invalid. California suffers no injury from the construction

activities concerning the El Paso Sector Project 1, and so California lacks

standing to request or obtain relief that extends to that separate project. 

Lewis v. Casey, 518 U.S. 343, 357 (1996) (“The remedy must of course

be limited to the inadequacy that produced the injury in fact that the

plaintiff has established.”). Accordingly, before affirming the district
STATE OF CALIFORNIA V. TRUMP 61

III

Our first task is to determine whether the States have

asserted a viable cause of action that properly brings the

lawfulness of the transfers before us. See Air Courier Conf.

v. American Postal Workers Union AFL-CIO, 498 U.S. 517,

530–31 (1991). The majority holds that California and New

Mexico have a valid cause of action under the APA. See Maj.

Opin. at 30. I disagree with that conclusion, and I also

disagree with the States’ alternative arguments that they may

assert either an equitable cause of action under the

Constitution or an “ultra vires” cause of action.8

court’s declaratory judgment that the use of funds transferred under

§ 8005 and § 9002 “for El Paso Sector Project 1 . . . is unlawful,” the

majority properly examines New Mexico’s standing. I express no view

as to whether the majority is correct in concluding that New Mexico’s

evidence of environmental harm was sufficient, notwithstanding the

district court’s conclusion that this evidence rested largely on unsupported

speculation. See Maj. Opin. at 23–24; cf. California v. Trump, 2019 WL

2715421, at *4 (N.D. Cal. June 28, 2019) (“New Mexico’s speculation

that a border barrier might prevent interbreeding, which might hamper

genetic diversity, which might render Mexican wolves more susceptible

to diseases falls far short of the necessary demonstrable evidence of harm

to a protected species”). However, for the reasons expressed below, I

disagree with the majority’s conclusion that New Mexico and California

have standing based on their inability to enforce their environmental laws. 

Maj. Opin. at 24–28. Given that this asserted injury is due to the Secretary

of Homeland Security’s waiver under § 102 of IIRIRA, and not to the

funding transfers, it would not be redressed by an injunction aimed only

at the transfers. See infra at 68–70.

8

In its merits analysis, the majority scarcely cites the motions panel’s

published decision, which addressed the Sierra Club’s and SBCC’s

likelihood of success on the merits of many of the same issues before us. 

I agree with the majority’s implicit conclusion that the motions panel’s

opinion does not prevent this merits panel from examining these issues

afresh. Although the motions panel decision is a precedent, it remains
62 STATE OF CALIFORNIA V. TRUMP

A

In authorizing suit by any person “adversely affected or

aggrieved by agency action within the meaning of a relevant

statute,” 5 U.S.C. § 702, the APA incorporates the familiar

zone-of-interests test, which reflects a background principle

of law that always “applies unless it is expressly negated,”

Bennett v. Spear, 520 U.S. 154, 163 (1997); see also Lexmark

Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

129 (2014).9 That test requires a plaintiff to “establish that

the injury he complains of (his aggrievement, or the adverse

effect upon him) falls within the ‘zone of interests’ sought to

be protected by the statutory provision whose violation forms

the legal basis for his complaint.” Lujan v. NWF, 497 U.S.

at 883 (quoting Clarke v. Securities Indus. Ass’n, 479 U.S.

subject to reconsideration by this court until we issue our mandate. See

United States v. Houser, 804 F.2d 565, 567–68 (9th Cir. 1986)

(distinguishing, on this point, between reconsideration of a prior panel’s

decision “during the course of a single appeal” and a decision “on a prior

appeal”); cf. Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012)

(en banc) (three-judge panel lacks authority to overrule a decision in a

prior appeal in the same 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 in Houser. See East Bay Sanctuary

Covenant v. Trump, 950 F.3d 1242, 1261–65 (9th Cir. 2020). In all

events, the precedential force of the motions panel’s opinion was largely,

if not entirely, vitiated by the Supreme Court’s subsequent decision to

grant the very stay that the motions panel’s opinion denied.

9 The Supreme Court has not squarely addressed whether the zone-ofinterests test applies to a plaintiff who claims to have “suffer[ed] legal

wrong because of agency 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. (Lujan 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.
STATE OF CALIFORNIA V. TRUMP 63

388, 396–97 (1987)). This test “is not meant to be especially

demanding.” Clarke, 479 U.S. at 399. Because the APA was

intended to confer “generous review” of agency action, the

zone-of-interests test is more flexibly applied under that

statute than elsewhere, and it requires only a showing that the

plaintiff is “arguably within the zone of interests to be

protected or regulated by the statute or constitutional

guarantee in question.” Association of Data Processing Serv.

Orgs., Inc. v. Camp (Data Processing), 397 U.S. 150, 153,

156 (1970) (emphasis added); see also Bennett, 520 U.S.

at 163 (“what comes within the zone of interests of a statute

for purposes of obtaining judicial review of administrative

action under the generous review provisions of the APA may

not do so for other purposes”) (simplified). Because an APA

plaintiff need only show that its interests are “arguably”

within the relevant zone of interests, “the benefit of any doubt

goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians 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 must first

identify the “statutory provision whose violation forms the

legal basis for [the] complaint” or the “gravamen of the

complaint.” Lujan v. NWF, 497 U.S. at 883, 886; see also Air

Courier Conf., 498 U.S. at 529. That question is easy here. 

The States’ complaint alleges that the transfers made by DoD

“do not satisfy the criteria under section 8005”; that

Defendants therefore “have acted ultra vires in seeking to

transfer funding pursuant to section 8005”; that DoD

consequently “acted unconstitutionally and in excess of [its]

statutory authority in diverting federal funds” pursuant to
64 STATE OF CALIFORNIA V. TRUMP

§ 8005; and that therefore “these actions are unlawful and

should be set aside under 5 U.S.C. section 706.”10 Section

8005 is plainly the “gravamen of the complaint,” and it

therefore defines the applicable zone of interests. Lujan v.

NWF, 497 U.S. at 886.

Although the States invoke theAppropriations Clause and

the constitutional separation of powers in contending that

Defendants’ actions are “unlawful” within the meaning of the

APA, any such constitutional violations here can be said to

have occurred only if the transfers violated the limitations set

forth in § 8005: if Congress authorized DoD to transfer the

appropriated funds from one account to another, and to spend

them accordingly, then the money has been spent “in

Consequence of Appropriations made by Law,” U.S.CONST.

art. I, § 9, cl. 7, and the Executive has not otherwise

transgressed the separation of powers.11 All of California’s

theories for challenging the transfers under the APA—

whether styled as constitutional claims or as statutory

claims—thus rise or fall based on whether DoD has

transgressed the limitations on transfers set forth in § 8005. 

As a result, § 8005 is obviously the “statute whose violation

is the gravamen of the complaint.” Lujan v. NWF, 497 U.S.

at 886. To maintain a claim under the APA, therefore,

California must establish that it is within the zone of interests

10 Because the limitations 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 The only possible exception is the States’ argument that § 8005

itself violates the Appropriations Clause and the constitutional separation

of powers. As explained below, that contention is frivolous. See infra

at 76–77.
STATE OF CALIFORNIA V. TRUMP 65

of § 8005. On this point, the majority and I are in apparent

agreement. See Maj. Opin. at 30–31.12

2

Having identified the relevant statute, our next task is to

“discern the interests arguably to be protected by the statutory

provision at issue” and then to “inquire whether the plaintiff’s

interests affected by the agency action in question are among

them.” National Credit Union Admin. v. First Nat’l Bank &

Trust Co. (NCUA), 522 U.S. 479, 492 (1998) (simplified). 

Identifying the interests protected by § 8005 is not difficult,

and here the States’ asserted interests are not among them.

Section 8005 is a grant of general transfer authority that

allows the Secretary of Defense, if he determines “that such

action is necessary in the national interest” and if the Office

of Management and Budget approves, to transfer from one

DoD “appropriation” into another up to $4 billion of the

funds that have been appropriated under the DoD

Appropriations Act “for military functions (except military

construction).” See 132 Stat. at 2999. Section 8005 contains

12 The States briefly contend that DoD has exceeded its authority

under § 284, but even assuming arguendo that the States have a cause of

action to raise such a challenge, it is patently without merit. The States

note that § 284 contains a special reporting requirement for “small scale

construction” projects, which are defined as projects costing $750,000 or

less, 10 U.S.C. § 284(h)(1)(B), (i)(3), and they argue that this shows that

Congress did not authorize projects on the scale at issue here. The

inference is a non sequitur: the fact that Congress requires special

reporting of these smaller projects does not mean that they are the only

projects authorized. Congress may have imposed such a unique reporting

requirement in order to capture the sort of smaller-scale activities that

might otherwise have escaped its notice.
66 STATE OF CALIFORNIA V. TRUMP

five provisos that further regulate this transfer authority, and

the only limitations on the Secretary’s authority that the

States claim were violated here are all contained in the first

such proviso. That proviso states that “such authority to

transfer may not be used unless for higher priority items,

based on unforeseen military requirements, than those for

which originally appropriated and in no case where the item

for which funds are requested has been denied by the

Congress.” Id.

13 The remaining provisos require prompt

notice to Congress “of all transfers made pursuant to this

authority or any other authority in this Act”; proscribe the use

of funds to make requests to the Committees on

Appropriations for reprogrammings that are inconsistent

with the restrictions described in the first proviso; set a time

limit for making requests for multiple reprogrammings; and

exempt “transfers among military personnel appropriations”

from counting towards the $4 billion limit. Id.

Focusing on “the particular provision of law upon which

the plaintiff relies,” Bennett, 520 U.S. at 175–76, makes clear

that § 8005 as a whole, and its first proviso in particular, are

aimed at tightening congressional control over the

appropriations process. The first proviso’s general

prohibition on transferring funds for any item that “has been

denied by the Congress” is, on its face, a prohibition on using

the transfer authority to effectively reverse Congress’s

specific decision to deny funds to DoD for that item. 

132 Stat. at 2999. The second major limitation imposed by

the first proviso states that the transfer authority is not to be

used unless, considering the items “for which [the funds

13 Similar language has been codified into permanent law. See

10 U.S.C. § 2214(b). No party contends that § 2214(b) alters the relevant

analysis under the comparably worded provision in § 8005.
STATE OF CALIFORNIA V. TRUMP 67

were] originally appropriated,” there are “higher priority

items” for which the funds should now be used in light of

“military requirements” that were “unforeseen” in DoD’s

request for Fiscal Year 2019 appropriations. Id. The obvious

focus of this restriction is likewise to protect congressional

judgments about appropriations by (1) restricting DoD’s

ability to reprioritize the use of funds differently from how

Congress decided to do so and (2) precluding DoD from

transferring funds appropriated by Congress for “military

functions” for purposes that do not reflect “military

requirements.” The remaining provisos, including the

congressional reporting requirement, all similarly aim to

maintain congressional control over appropriations. And all

of the operative restrictions in § 8005 that the States invoke

here are focused solely on limiting DoD’s ability to use the

transfer authority to reverse the congressional judgments

reflected in DoD’s appropriations.

In addition to preserving congressional control over

DoD’s appropriations, § 8005 also aims to give DoD some

measure of flexibility to make necessary changes. Notably,

in authorizing the Secretary to make transfers among

appropriations, § 8005’s first proviso specifies only one

criterion that he must consider in exercising that discretion:

he must determine whether the item for which the funds will

be used is a “higher priority item[]” in light of “unforeseen

military requirements.” 132 Stat. at 2999 (emphasis added). 

Under the statute, he need not consider any other factor

concerning either the original use for which the funds 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 are “affected by the agency action in question”

are not “among” the “interests arguably to be protected” by
68 STATE OF CALIFORNIA V. TRUMP

§ 8005. NCUA, 522 U.S. at 492 (simplified). In particular,

the States’ asserted environmental interests clearly lie outside

the zone of interests protected by § 8005. The statute does

not mention environmental interests, nor does it require the

Secretary to consider such interests. On the contrary, the

statute requires him only to consider whether an item is a

“higher priority” in light of “military requirements,” and it is

otherwise entirely neutral as to the uses to which the funds

will be put. Indeed, that neutrality is reflected on the face of

the statute, which says that, once the transfer is made, the

funds are “merged with and . . . available for the same

purposes, and for the same time period, as the appropriation

or fund to which transferred.” 132 Stat. at 2999 (emphasis

added). Because the alleged environmental harms that the

States assert here play no role in the analysis that § 8005

requires the Secretary to conduct, and are not among the

harms that § 8005’s limitations seek to address or protect, the

States’ interests in avoiding these harms are not within

§ 8005’s zone of interests.

Moreover, focusing on the specific interests for which the

States have presented sufficient evidentiary support at the

summary-judgment stage, see Lujan v. NWF, 497 U.S.

at 884–85, further confirms that, in deciding whether to

redirect excess military personnel funds under § 8005 to

assist DHS by building fencing to stop international drug

smuggling, the Acting Secretary of Defense did not have to

give even the slightest consideration to whether that

reprogramming of funds would result in the death of more

flat-tailed horned lizards.14 Put simply, the States’

14 It is unnecessary to exhaustively review whether California or New

Mexico has provided the requisite factual support with respect to their

claims of potential harms to other species of animals or plants, see supra
STATE OF CALIFORNIA V. TRUMP 69

environmental interests are “‘so marginally related to . . . the

purposes implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the suit.’” 

Patchak, 567 U.S. at 225 (quoting Clarke, 479 U.S. at 399).

For similar reasons, the States’ invocation of their

sovereign interests is also insufficient. The majority finds

that these interests “app[ly] with particular force” because the

Secretary’s transfer of funds ultimately had an effect on

“California’s and New Mexico’s ability to enforce their state

environmental laws,” see Maj. Opin. at 34, but that

consideration plays no role—not even indirectly—in the

analysis that § 8005 requires. Section 8005 authorizes the

Secretary to move funds from one appropriation to another if

(1) that transfer is consistent with the appropriations-processbased constraints discussed earlier; and (2) the transfer is for

items that the Secretary deems to be “higher priority” in light

of “military requirements.” 132 Stat. at 2999. The statute

does not itself mention or contemplate the displacement of

state laws as a result of the transfer, nor does it require that

any such derogation from state sovereignty be considered in

evaluating the proposed transfer. Moreover, here the ultimate

preemption of state law occurred, not as a result of § 8005,

but rather as a result of DHS’s separate determination, under

a completely separate statute (viz., IIRIRA § 102(c)), that

state (and federal) environmental laws would be waived. The

States might perhaps be within the zone 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 has already brought (and lost) a challenge to an

earlier § 102(c) waiver with respect to a similar border

note 7, because there is no basis in law or logic for concluding that it

would make any difference to the zone-of-interests analysis under § 8005.
70 STATE OF CALIFORNIA V. TRUMP

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 their

sovereignty, are only occurring because the § 8005 transfer

was approved. This argument fails. Once a valid § 102(c)

waiver has been issued, the States’ laws have been

definitively set aside as a de jure matter under the Supremacy

Clause, and halting construction will not bring those laws

back into force or redress that injury to the States’

sovereignty. The residual interest on which the States rely,

therefore, is not an injury to their sovereignty, but merely the

interest in ensuring that activities that the States consider

undesirable do not occur. But the Supreme Court has

consistently held that “assertion of a right to a particular kind

of Government conduct, which the Government has violated

by acting differently, cannot alone satisfy the requirements of

Art. III without draining those requirements of meaning,”

Lujan v. Defenders, 504 U.S. at 576 (simplified), and an

interest that is not cognizable for Article III purposes is

irrelevant for zone-of-interests purposes as well, Sierra Club

v. Morton, 405 U.S. 727, 733 (1972). Similarly, to the extent

that the States rely on an interest in “hav[ing] the Government

act in accordance 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.
STATE OF CALIFORNIA V. TRUMP 71

3

The majority makes two main arguments as to why the

States nonetheless fall within § 8005’s zone of interests, but

neither has merit.

First, the majority contends that “the states regularly

benefit from DoD’s use of Section 8005,” and it cites several

past examples in which the statute was used to transfer funds

that allowed the military to assist in addressing storm damage

from hurricanes that occurred in various States. See Maj.

Opin. at 35–36. This argument is foreclosed by the Supreme

Court’s decision in Lujan v. NWF. The Court in that case

held that, because satisfaction of the zone-of-interests test is

an element of the cause of action that the plaintiff seeks to

invoke, the plaintiff at the summary-judgment stage has the

burden “to set forth specific facts (even though they may be

controverted by the Government) showing that he has

satisfied its terms,” i.e., that “the injury he complains of (his

aggrievement, or the adverse effect upon him)” falls within

the relevant statute’s zone of interests. 497 U.S. at 883–84. 

Here, in opposing summary judgment, California and New

Mexico made no showing whatsoever that, in the absence of

these transfers to the “Drug Interdiction and Counter-Drug

Activities, Defense” appropriation, the funds in question

would otherwise have been transferred for the direct benefit

of either State. Absent such an evidentiary showing, the

States have failed to show that they satisfy the zone-ofinterests test under such a theory. Id. at 882–99 (exhaustively

analyzing the evidence presented at summary judgment and

concluding that the plaintiffs had failed to carry their burden

under the zone-of-interests test).
72 STATE OF CALIFORNIA V. TRUMP

Second, the majority asserts that California and New

Mexico fall within § 8005’s zone of interests because § 8005

was “primarily intended to benefit [Congress] and its

constitutional power to manage appropriations,” and the

States’ “interests are congruent with those of Congress.” See

Maj. Opin. at 32–33 (emphasis added). This theory also fails. 

As the Supreme Court made clear in Lujan v. NWF, the zoneof-interests test requires the plaintiff to make a factual

showing that the plaintiff itself, or someone else whose

interests the plaintiff may properly assert, has a cognizable

interest that falls within the relevant statute’s zone of

interests. 497 U.S. at 885–99 (addressing whether the

interests of NWF—or of any of its members, whose interests

NWF could validly assert under the associational standing

doctrine of Hunt v. Washington State Apple Advert. Comm’n,

432 U.S. 333 (1977)—had been shown to be within the

relevant zone of interests). I am aware of no precedent that

would support the view that California and New Mexico can

represent the interests of Congress (akin to NWF’s

representation of the interests of its members), much less that

the States can do so merely because they are sympathetic to

Congress’s perceived policy objectives.15 But I do not read

the majority opinion as actually relying on such a novel

theory. Instead, the majority suggests that, merely because

the States’ overall litigation objectives here are sufficiently

15 Even if the States could assert Congress’s interests in some

representational capacity, they could do so only if the injury to Congress’s

interests satisfied the requirements of Article III standing. See Air Courier

Conf., 498 U.S. at 523–24 (zone-of-interests test is applied to those

injuries-in-fact that meet Article III requirements). I express no view on

that question. 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, 2020 WL

1228477 (D.C. Cir. 2020).
STATE OF CALIFORNIA V. TRUMP 73

congruent with those of Congress, the States 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 majority’s analysis is that it rests,

not on the interests asserted by the States (preservation of the

flat-tailed horned lizard, etc.), but on the legal theory that the

States invoke to protect those interests here. But the zone-ofinterests test focuses on the former and not the latter. See

Lujan v. NWF, 497 U.S. at 885–89. Indeed, if the majority

were correct, that would effectively eliminate 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 persons or

entities who are within that statute’s zone-of-interests. Such

a tautological congruence between the States’ legal theory

and Congress’s institutional interests is not sufficient to

satisfy the zone-of-interests test here.

The majority suggests that its approach is supported by

the D.C. Circuit’s decision 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 makes clear, the D.C. Circuit was relying

on the same traditional zone-of-interests test, under which a

plaintiff’s interests are “outside the statute’s ‘zone of

interests’ only ‘if the plaintiff’s interests are so marginally

related to or inconsistent with the purposes implicit in the

statute that it cannot reasonably be assumed that Congress

intended to permit the suit.’” 87 F.3d at 1360 (quoting

Clarke, 479 U.S. at 399). The court mentioned “congruence”

in the course of explaining why the plaintiff’s interests in that

case were “not more likely to frustrate than to further

statutory objectives,” i.e., why those interests were not
74 STATE OF CALIFORNIA V. TRUMP

inconsistent with the purposes implicit in the statute. Id.

(simplified). It did not thereby suggest—and could not

properly have suggested—that the mere lack of any such

inconsistency is alone sufficient under the zone-of-interests

test. Here, the problem is not that the States’ interests are

inconsistent with the purposes of § 8005, but rather that they

are too “marginally related” to those purposes. See supra

at 68–69.

Lastly, the majority suggests that we must apply the zoneof-interests test “broadly in this context,” because—given the

difficulties that congressional plaintiffs have in establishing

Article III standing—otherwise “no agency action taken

pursuant to Section 8005 could ever be challenged under the

APA.” See Maj. Opin. at 33, 36. The assumption that no one

will ever be able to sue for any violation of § 8005 seems

doubtful, cf. Sierra Club v. Trump, 929 F.3d at 715 (N.R.

Smith, J., dissenting) (suggesting that “those who would have

been entitled to the funds as originally appropriated” may be

within the zone of interests of § 8005), but in any event, we

are not entitled to bend the otherwise applicable—and already

lenient—standards to ensure that someone will be able to sue

in this case or others like it.

B

In addition to asserting claims under the APA, California

and New Mexico also purport to assert claims under the

Constitution, as well as an equitable cause of action to enjoin

“ultra vires” conduct. The States do not have a cause of

action under either of these theories.
STATE OF CALIFORNIA V. TRUMP 75

1

The States contend that they are not required to satisfy

any zone-of-interests test to the extent that they assert nonAPA causes of action to enjoin Executive officials from

taking unconstitutional action.16 Even assuming that an

equitable cause of action to enjoin unconstitutional conduct

exists alongside the APA’s cause of 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 Sierra Club v. Trump, 929 F.3d

at 715–17 (N.R. Smith, J., dissenting), it avails the States

nothing here. The States have failed to allege the sort of

constitutional claim that might give rise to such an equitable

action, because their “constitutional” claim is effectively the

very same § 8005-based claim dressed up in constitutional

garb. And even if this claim counted as a “constitutional”

one, it would still be governed by the same zone of interests

defined by the relevant limitations in § 8005.

a

The States assert two constitutional claims in their

operative complaint: (1) that Defendants have violated the

16 It is not entirely clear that the States are contending that their APA

claims to enjoin unconstitutional conduct, see 5 U.S.C. § 706(2)(B), are

exempt from the zone-of-interests test. To the extent that they are so

contending, the point seems doubtful. See Data Processing, 397 U.S.

at 153 (zone-of-interests test requires APA claimant to show that its

interest “is arguably within the zone of interests to be protected or

regulated by the statute or constitutional guarantee in question”). But in

all events, any such APA-based claim to enjoin unconstitutional conduct

would fail for the same reasons as the States’ purported free-standing

equitable claim to enjoin such conduct.
76 STATE OF CALIFORNIA V. TRUMP

Presentment Clause, and the constitutional separation of

powers more generally, by “unilaterallydiverting funding that

Congress already appropriated for other purposes to fund a

border wall for which Congress has provided no

appropriations”; and (2) that Defendants have violated the

Appropriations Clause “by funding construction 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 “strong” form of these constitutional

arguments and a more “limited” form. In its strong form, the

States’ argument is that, even if § 8005 authorized the

transfers in question here, those transfers nonetheless

violated the separation of powers, the Presentment Clause,

and the Appropriations Clause. In its more limited form, the

States’ argument is that the transfers violated the separation

of powers, the Presentment Clause, and the Appropriations

Clause because the transfers were not authorized by § 8005.

I need not address whether the States have an equitable

cause of action to assert the strong form of their constitutional

argument, because in my view that argument on the merits is

so “wholly insubstantial and frivolous” that it would not even

give rise to federal jurisdiction. Bell v. Hood, 327 U.S. 678,

682–83 (1946); see also Steel Co., 523 U.S. at 89. If § 8005

allowed the transfers here, then that necessarily means that

the Executive has properly spent funds that Congress, by

statute, has appropriated and allowed to be spent for that

purpose. The States cite no authority for the extraordinary

proposition that the Appropriations Clause itself constrains

Congress’s ability to give agencies latitude 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 of

funds from a lump-sum appropriation is another

administrative decision traditionally regarded as committed
STATE OF CALIFORNIA V. TRUMP 77

to agency discretion”). And by transferring funds after

finding that the statutory conditions for doing so are met, an

agency thereby “execut[es] the policy that Congress had

embodied in the statute” and does not unilaterally alter or

repeal any law in violation of the Presentment Clause or the

separation of powers. See Clinton v. City of New York,

524 U.S. 417, 444 (1998). If anything, it is the States’

theory—that the federal courts must give effect to an alleged

broader congressional judgment against border funding

regardless of whether that judgment is embodied in binding

statutory language—that would offend separation-of-powers

principles.

That leaves only the more limited form of the States’

argument, which is that, if § 8005 did not authorize the

transfers, then the expenditures violated the Appropriations

Clause, the Presentment Clause, and the separation of powers. 

Under Dalton v. Specter, 511 U.S. 462 (1994), this

theory—despite its constitutional garb—is properly classified

as “a statutory one,” id. at 474. It therefore does not fall

within the scope of the asserted non-APA equitable cause of

action to enjoin unconstitutional conduct.17

In Dalton, the Court addressed a non-APA claimto enjoin

Executive officials from implementing an allegedly

unconstitutional Presidential decision to close certainmilitary

bases under the Defense Base Closure and Realignment Act

17 There remains the States’ claim that statutory violations may be

enjoined under a non-APA ultra vires cause of action for equitable relief,

but that also fails for the reasons discussed below. See infra at 84–85.
78 STATE OF CALIFORNIA V. TRUMP

of 1990. 511 U.S. at 471.18 But the claim in Dalton was not

that the President had directly transgressed an applicable

constitutional limitation; rather, the claim was that, because

Executive officials “violated the procedural requirements” of

the statute on which the President’s decision ultimately

rested, the President thereby “act[ed] in excess of his

statutory authority” and therefore “violate[d] the

constitutional separation-of-powers doctrine.” Id. at 471–72. 

The Supreme Court rejected this effort to “eviscerat[e]” the

well-established “distinction between claims that an official

exceeded his statutory authority, on the one hand, and claims

that he acted in violation of the Constitution, on the other.” 

Id. at 474 (emphasis added). As the Court explained, its

“cases do not support the proposition that every action by the

President, or by another executive official, in excess of his

statutory authority is ipso facto in violation of the

Constitution.” Id. at 472. The Court distinguished

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952), on the ground that there “the Government disclaimed

any statutory authority for the President’s seizure of steel

mills,” and as a result the Constitution itself supplied the rule

of decision for determining the legality of the President’s

actions. Dalton, 511 U.S. at 473. Because the “only basis of

authority asserted was the President’s inherent constitutional

power as the Executive and the Commander in Chief of the

Armed Forces,” Youngstown thus “necessarily turned on

whether the Constitution authorized the President’s actions.” 

Id. (emphasis added). By contrast, given that the claim in

Dalton was that the President 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 final action

was taken by the President personally, and the President is not an

“agency” for purposes of the APA. See 511 U.S. at 469.
STATE OF CALIFORNIA V. TRUMP 79

because Executive officials had “violated the terms of the

1990 Act,” the terms of that statute provided the applicable

rule of decision and the claim was therefore “a statutory one.” 

Id. at 474. And because those claims sought to enjoin

conduct on the grounds that it violated statutory

requirements, it was subject to the “longstanding” limitation

that non-APA “review is not available when the statute in

question commits the decision to the discretion of the

President.” Id.

Under Dalton, the States’ purported “constitutional”

claims—at least in their more limited version—are properly

classified as statutory claims that do not fall within any nonAPA cause of action to enjoin unconstitutional conduct. 

511 U.S. at 474. Here, as in Dalton, Defendants have

“claimed” the “statutory authority” of § 8005, and any

asserted violation of the Constitution would occur only if, and

only because, Defendants’ conduct is assertedly not

authorized by § 8005. Id. at 473. The rule of decision for

this dispute is thus not supplied, as in Youngstown, by the

Constitution; rather, it is supplied only by § 8005. Id.

at 473–74. Because these claims by the States are thus

“statutory” under Dalton, they may only proceed, if at all,

under an equitable cause of action to enjoin ultra vires

conduct, and they would be subject to any limitations

applicable to such claims. 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’ claims may properly be classified

as constitutional ones for purposes of the particular equitable

cause of action they invoke here, those claims would still fail.
80 STATE OF CALIFORNIA V. TRUMP

To the extent that the States argue that the Constitution

itself grants a cause of action allowing any plaintiff with an

Article III injury to sue to enjoin an alleged violation of the

Appropriations Clause, the Presentment Clause, or the

separation of powers, there is no support for such a theory. 

None of the cases cited by the States involved putative

plaintiffs, such as the States here, who are near the outer

perimeter of Article III standing. On the contrary, these cases

involved either allegedly unconstitutional agency actions

directly targeting the claimants, see Bond v. United States,

564 U.S. 211, 225–26 (2011) (criminal defendant challenged

statute under which she was convicted on federalism and

separation-of-powers grounds); United States v. McIntosh,

833 F.3d 1163, 1174–75 (9th Cir. 2016) (criminal defendants

sought to enjoin, based on an appropriations rider and the

Appropriations Clause, the Justice Department’s expenditure

of funds to prosecute them), or they involved a suit based on

an express statutory cause of action, see Clinton v. City of

New York, 524 U.S. at 428 (noting that right of 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 limits of Article III seems difficult to

square with the Supreme Court’s decision in Armstrong v.

Exceptional Child Ctr., Inc., 575 U.S. 320 (2015). There, the

Court rejected the view that the Supremacy Clause itself

created a private right of action for equitable relief against

preempted statutes, and instead held that any such equitable

claim rested on “judge-made” remedies that are subject to

“express and implied statutory limitations.” Id. at 325–27. 

The Supremacy Clause provides a particularly apt analogy

here, because (like the Appropriations Clause) the asserted

“unconstitutionality” of the challenged action generally
STATE OF CALIFORNIA V. TRUMP 81

depends upon whether it falls within or outside the terms of

a federal statute: a state statute is “unconstitutional under the

Supremacy Clause” only if it is “contrary to federal law,”

Burbank-Glendale-Pasadena 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 limitations in § 8005. And just as the

SupremacyClause protects Congress’s “broad discretion with

regard to the enactment of laws,” Armstrong, 575 U.S.

at 325–26, so too the Appropriations Clause protects

“congressional control over funds in the Treasury,” McIntosh,

833 F.3d at 1175. It is “unlikely that the Constitution gave

Congress such broad discretion” to enact appropriations laws

only to simultaneously “require[] Congress to permit the

enforcement of its laws” by any “private actor[]” with even

minimal Article III standing, thereby “limit[ing] Congress’s

power” to decide how “to enforce” the spending limitations

it enacts. Armstrong, 575 U.S. at 325–26.

The Appropriations Clause thus does not itself create a

constitutionally required cause of action that extends to the

limits of Article III. On the contrary, any equitable cause of

action to enforce that clause would rest on a “judge-made”

remedy: as Armstrong observed, “[t]he ability to sue to enjoin

unconstitutional actions by state and federal officers is the

creation of courts of equity, and reflects a long history of

judicial review of illegal executive action, tracing back to

England.” 575 U.S. at 327. At least where, as here, the

contours of the applicable constitutional line (under the

Appropriations Clause) are defined by and parallel a statutory

line (under § 8005), any such judge-made equitable cause of

action would be subject to “express and implied statutory

limitations,” as well as traditional limitations governing such

equitable claims. Id.
82 STATE OF CALIFORNIA V. TRUMP

One long-established “‘judicially self-imposed limit[] on

the exercise of federal jurisdiction’”—including federal

equitable jurisdiction—is the requirement “that a plaintiff’s

grievance must arguably fall within the zone of interests

protected or regulated by the statutory provision or

constitutional guarantee invoked in the suit.” Bennett,

520 U.S. at 162 (quoting Allen v. Wright, 468 U.S. 737, 751

(1984)). This limitation is not confined to the APA, but

rather reflects a “prudential standing requirement[] of general

application” that always “applies unless it is expressly

negated” by Congress. Id. at 163.19 Because Congress has

not expressly negated that test in any relevant respect, the

States’ equitable cause of action to enforce the

Appropriations Clause here remains subject to the zone-ofinterests test. Cf. Thompson v. North American Stainless, LP,

562 U.S. 170, 176–77 (2011) (construing a cause of action as

extending to “any person injured in the Article III sense”

would often produce “absurd consequences” and is for that

reason rarely done). And given the unique nature of an

Appropriations Clause claim, as just discussed, the line

between constitutional and unconstitutional conduct here is

defined entirely by the limitations in § 8005, and therefore the

19 The States wrongly contend that, by quoting this language from

Bennett, and stating that the zone-of-interests test therefore “applies to all

statutorily created causes of action,” Lexmark, 572 U.S. at 129 (emphasis

added), the Court in Lexmark thereby intended to signal that the test only

applies to statutory claims and not to non-statutory equitable claims. 

Nothing in Lexmark actually suggests any such negative pregnant; instead,

the Court’s reference to “statutorily created causes of action” reflects

nothing more than the fact that only statutory claims were before the Court

in that case. See id. at 129. Moreover, Lexmark notes that the zone-ofinterests test’s roots lie in the common law, id. at 130 n.5, and Bennett

(upon which Lexmark relied) states that the test reflects a “prudential

standing requirement[] of general application” that applies to any

“exercise of federal jurisdiction,” 520 U.S. at 162–63.
STATE OF CALIFORNIA V. TRUMP 83

relevant zone of interests for the States’ AppropriationsClause-based equitable claim remains defined by those

limitations. The States are 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 there we granted

non-APA injunctive relief based on the Appropriations

Clause without inquiring whether the claimants were within

the zone of interests of the underlying appropriations statute. 

McIntosh cannot bear the considerable weight that the States

place on it.

In McIntosh, we asserted interlocutory jurisdiction over

the district courts’ refusal to enjoin the expenditure of funds

to prosecute the defendants—an expenditure that allegedly

violated an appropriations rider barring the Justice

Department from spending funds to prevent certain States

from “‘implementing their own laws that authorize the use,

distribution, possession, or cultivation of medical

marijuana.’” 833 F.3d at 1175; see also id. at 1172–73. We

held that the defendants had Article III standing and that, if

the Department was in fact “spending money in violation” of

that rider in prosecuting the defendants, that would produce

a violation of the Appropriations Clause that could be raised

by the defendants in challenging their prosecutions. Id.

at 1175. After construing the meaning of the rider, we then

remanded the matter for a determination 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 discussed in

McIntosh. See Cooper Indus., Inc. v. Aviall Servs, Inc.,

543 U.S. 157, 170 (2004) (“‘Questions which merely lurk in

the record, neither brought to the attention of the court nor
84 STATE OF CALIFORNIA V. TRUMP

ruled upon, 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

seems more likely to have been due to the fact that it was so

overwhelmingly obvious that the defendants were within the

rider’s zone of interests that the point was incontestable and

uncontested. An asserted interest in not going to prison for

complying with state medical-marijuana laws seems well

within the zone of interests of a statute prohibiting

interference with the implementation of such state laws.

2

The only remaining question is whether the States may

evade the APA’s zone-of-interests test by asserting a nonAPA claim for ultra vires conduct in excess of statutory

authority. Even assuming that such a cause of action exists

alongside the APA, cf. Trudeau v. Federal Trade Comm’n,

456 F.3d 178, 189–90 (D.C. Cir. 2006), I conclude that it

would be subject to the same zone-of-interests limitations as

the States’ APA claims and therefore likewise fails.

For the same reasons discussed above, any such equitable

cause of action rests on a judge-made remedy that is subject

to the zone-of-interests test. See supra at 79–84. The States

identify no case from this court affirmatively holding that the

zone-of-interests test does not apply to a non-APA equitable

cause of action to enjoin conduct allegedly in excess of

statutory authority, and I am aware of none. Indeed, it makes

little sense, when evaluating a claim that Executive officials

exceeded the limitations in a federal statute, not to ask

whether the plaintiff is within the zone of interests protected

by those statutory limitations. Cf. Haitian Refugee Ctr. v.

Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (although
STATE OF CALIFORNIA V. TRUMP 85

plaintiff asserting ultra vires claim may not need to show that

its interests “fall within the zones of interests of the

constitutional and statutory powers invoked” by Executive

officials, when “a particular constitutional or statutory

provision was intended to protect persons like the litigant by

limiting the authority conferred,” then “the litigant’s interest

may be said to fall within the zone protected by the

limitation”) (emphasis added).20

* * *

Given that each of the States’ asserted theories fail, the

States lack 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 claims would fail on the merits, because the challenged

transfers did not violate § 8005 or § 9002. The States argue

that the transfers violated the first proviso of § 8005, which

states that the transfer authority granted by that section “may

not be used unless for higher priority items, based on

unforeseen military requirements, than those for which

originally appropriated and in no case where the item for

which funds are requested has been denied by the Congress.” 

20 Even if the States were correct that the zone-of-interests test does

not apply to a non-APA equitable cause of action, that would not

necessarily mean that such equitable jurisdiction extends, as the States

suggest, to the outer limits of Article III. Declining to apply the APA’s

generous zone-of-interests test might arguably render applicable the sort

of narrower review of agency action that preceded the APA standards

articulated in Data Processing, 397 U.S. at 153. See also Clarke,

479 U.S. at 400 n.16.
86 STATE OF CALIFORNIA V. TRUMP

132 Stat. at 2999. The requirements of this proviso likewise

limit the 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 same terms and

conditions as the authority provided in section 8005 of this

Act”). The States argue, and the majority agrees, that two of

the requirements in this proviso are not met, because (1) the

transfers were for an item for which Congress has denied

funding; and (2) they were not for “unforeseen military

requirements.” See Maj. Opin. at 37–47. I disagree.

A

The proviso states that the Secretary may not transfer

funds for an admittedly “higher priority item[] . . . than those

for which originally appropriated” if “the item for which

funds are requested has been denied by the Congress.” 

132 Stat. at 2999. In my view, the Secretary’s transfers did

not violate this condition.

Determining whether Congress “denied” the relevant

“item” at issue here turns on the meaning of the phrase “the

item for which funds are requested.” According to the States,

the relevant “item” should be broadly defined to include any

“border barrier construction,” and Congress should be held to

have “denied” that item except to the extent that it

appropriated funds for “primary pedestrian fencing” in

§ 230(a)(1) of the Department of Homeland Security

Appropriations Act, 2019, see Pub. L. No. 116-6, Div. A,

§ 230(a)(1), 133 Stat. 13, 28 (2019). The States’ reading is

implausible, because it ignores the context of the

appropriations process that § 8005 addresses.
STATE OF CALIFORNIA V. TRUMP 87

As a provision designed to preserve 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 reprogrammings in it. 

Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748

(2019) (“It is a fundamental canon of statutory construction

that the words of a statute must be read in their context and

with a view to their place in the overall statutory scheme.”)

(simplified). That process is usefully set forth in Chapter 2 of

theGAO’s authoritative Principles of Federal Appropriations

Law, otherwise known as the “Red Book,” and I borrow

heavily fromthat treatise in setting forth that relevant context. 

See Lincoln, 508 U.S. at 192 (citing Red Book in addressing

suit challenging reallocation of funds).

While Congress ordinarily appropriates funds annually for

agencies to use in specified amounts for enumerated

purposes, Congress has also recognized that “a certain

amount of flexibility” is sometimes warranted. See 2 U.S.

GOV’T ACCOUNTABILITY OFF. (“GAO”), PRINCIPLES OF

FEDERAL APPROPRIATIONS LAW (4th ed. 2016 rev.) (“RED

BOOK”), pt. B, § 7, 2016 WL 1275442, at *1. Two ways in

which such flexibility may be achieved are through “transfer

and reprogramming.” Id. A “transfer”—which is the specific

subject of § 8005—refers to “the shifting of funds between

appropriations,” and it is generally prohibited in the absence

of specific statutory authority. Id.; see also 31 U.S.C. § 1532. 

By contrast, a “reprogramming shifts funds within a single

appropriation,” and in the absence of specific statutory

limitations on reprogramming, agencies have broad discretion

to do so “as long as the resulting obligations and expenditures

are consistent with the purpose restrictions applicable to the

appropriation.” See RED BOOK, 2016 WL 1275442, at *6

(emphasis added) (citing Lincoln, 508 U.S. at 192). In
88 STATE OF CALIFORNIA V. TRUMP

contrast to a transfer—which is easy to identify, because it

shifts funds between separate appropriations that are “welldefined and delineated with specific language in an

appropriations act”—it is more difficult to identify what

counts as a reprogramming within an appropriation, because

the appropriations act itself “does not set forth the

subdivisions that are relevant to determine whether an agency

has reprogrammed funds.” See id. at *6. There is only a need

to identify a “reprogramming” when Congress has sought to

place limits on an agency’s ability to do so. See, e.g., Pub. L.

No. 111-80, § 712, 123 Stat. 2090, 2120–21 (2009) (requiring

15-days advance notice to Congress before certain

“reprogramming[s] of funds” may be made by various

agriculture-related agencies). In such cases, whether a shift

of funds within an appropriation counts as a reprogramming

is ordinarily determined by considering how the reallocation

of funds compares to the allocation of funds that was

contemplated during the appropriations process: “Typically,

the itemizations and categorizations in the agency’s budget

documents as well as statements in committee reports and the

President’s budget submission, contain the subdivisions

within an agency’s appropriation that are relevant to

determine whether an agency has reprogrammed funds.” RED

BOOK, 2016 WL 1275442, at *7 (emphasis added). GAO’s

Red Book illustrates the point with an example, drawn from

a prior opinion letter:

For instance, for FY 2012, the Commodity

Futures Trading Commission (CFTC)

received a single lump-sumappropriation. Id.

CFTC’s FY 2012 budget request included an

item within that lump sum to fund an Office

of Proceedings. A reprogramming would

occur if CFTC shifted amounts that it had
STATE OF CALIFORNIA V. TRUMP 89

previously designated to carry out the

functions of the Office of Proceedings to carry

out different functions.

Id. (citing GAO, B-323792, Commodity Futures Trading

Commission—Reprogramming Notification (Jan. 23, 2013))

(emphasis added).

Against this backdrop, the import of § 8005’s first proviso

is clear. In evaluating a transfer from one appropriation to

another, the Secretary must justify the transfer, not at the

broad level of each overall appropriation itself (i.e., not by

comparing the statutory appropriation category for “Drug

Interdiction and Counter-Drug Activities, Defense” versus

that for “Military Personnel, Army”), but rather at the same

“item” level at which the Secretary would have to justify a

reprogramming within an appropriation. See Pub. L. No.

115-245, Div. A, § 8005, 132 Stat. at 2999 (requiring

Secretary to compare whether the item to which the

transferred funds will be directed is a “higher priority” than

the items “for which originally appropriated”). The point of

reference for determining whether the destination “item”

justifies the transfer is therefore, as with a reprogramming,

“the itemizations and categorizations in the agency’s budget

documents as well as statements in committee reports and the

President’s budget submission.” RED BOOK, 2016 WL

1275442, at *7.

Several features of the language of § 8005 confirm this

reading. The statutory reference to “those [items] for which

originally appropriated,” 132 Stat. at 2999 (emphasis added),

is unmistakably a reference to the familiar concept of the

itemizations contained within the current appropriation, as set

forth in the already existing budgetary documents exchanged
90 STATE OF CALIFORNIA V. TRUMP

and generated during the appropriations process for DoD. Air

Wisconsin Airlines Corp. v. Hoeper, 571 U.S. 237, 248

(2014) (“It is a cardinal rule of statutory construction that,

when Congress employs a term of art, it presumably knows

and adopts the cluster of ideas that were attached to each

borrowed word in the body of learning from which it is

taken.”) (simplified). And because those “original[]” items

are to be compared with the new “items” for which the

transfer authority is to “be used,” 132 Stat. at 2999, these

latter “items” must likewise be understood as a reference to

the destination items within the transferee DoD appropriation. 

Law v. Siegel, 571 U.S. 415, 422 (2014) (“[W]ords repeated

in different parts of the same statute generally have the same

meaning”).

The destination item is also 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 (emphasis added). But the use of that term

makes perfect sense when the language is again construed

against the background ofthe appropriations process, because

it is a common practice for agencies—despite the decision in

INS v. Chadha, 462 U.S. 919 (1983)—to “request” the

appropriations committees’ approval for transfers and

reprogrammings as a matter of comity. See Lincoln, 508 U.S.

at 193 (“[W]e hardly need to note that an agency’s decision

to ignore congressional expectations [concerning the use of

appropriations] may expose it to grave political

consequences”). That reading is confirmed by § 8005’s third

proviso, which enforces the exclusivity of the first proviso by

barring DoD from using any appropriated funds to “prepare

or present a request to the Committees on Appropriations for

reprogramming of funds,” unless it meets the requirements of

the first proviso. 132 Stat. at 2999 (emphasis added). This
STATE OF CALIFORNIA V. TRUMP 91

language also confirms what is already otherwise apparent,

which is that any transfer under § 8005 is to be analyzed, and

papered, as a request for “reprogramming of funds.” Id.

(emphasis added). Indeed, although DoD made a conscious

decision to depart from the comity-based practice of making

a request in this case, the House Committee on

Appropriations nonetheless proceeded to construe DoD’s

notification of the transfer as a “requested reprogramming

action” and “denie[d] the request.” See House Comm. on

Appropriations, Press Release: Visclosky Denies Request to

Use Defense Funds for Unauthorized Border Wall (Mar. 27,

2019), https://appropriations.house.gov/news/pressreleases/visclosky-denies-request-to-use-defense-funds-forunauthorized-border-wall.

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

must be understood against the backdrop of the sort of

familiar item-level analysis required in a budgetary

reprogramming, and the benchmark for evaluating the

proposed destination item is therefore, as with any

reprogramming, the original allocation among items that is

reflected in the records of the DoD appropriations process. 

Accordingly, when § 8005 requires a consideration of

whether “the item for which funds are requested has been

denied by the Congress,” it is referring to whether Congress,

during DoD’s appropriations process, denied an “item” that

corresponds to the “item for which funds are requested.” 

Under that standard, this case is easy. The States do not

contend (and could not contend) that Congress ever “denied”

such an item to DoD during DoD’s appropriations process.

Instead, the States argue that a grant of funds to another

agency (DHS) in its appropriations, in an amount less than

that agency requested, should be construed as a denial of an
92 STATE OF CALIFORNIA V. TRUMP

analogous item to DoD under its entirely separate authorities

and appropriations. This disregards the appropriations-law

context against which § 8005 must be construed, which

makes clear that the relevant clause refers only to denials that

are applicable to DoD within the context of its appropriations

process. Taking into account the broader context of the

political struggle between the President and the Congress

over DHS’s requests for border-barrier funding, the majority

concludes that Congress thereby issued a “general denial” of

“border wall” funding, which should be construed as

“necessarily encompass[ing] narrower forms of denial—such

as the denial of a Section 284 budgetary line item request.” 

See Maj. Opin. at 46–47. But § 8005’s proviso only applies

if, during the DoD appropriations process, such an item “has

been denied by the Congress,” 132 Stat. at 2999, and that

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

was presented and denied during that process; and (2) indeed,

that process ended several months before the ultimate

“denial” that the majority claims we should now retroactively

apply to DoD’s transfer authority.

More fundamentally, the majority is quite wrong in

positing that § 8005 assigns to us the task of discerning the

contours of the larger political struggle between the President

and the Congress over border-barrier funding (including by

reviewing campaign speeches and the like), see Maj. Opin.

at 39, and then giving legal effect to what we think, based on

that review, is “Congress’s broad and resounding denial

resulting in a 35-day partial government shutdown,” id. at 47. 

Our job under § 8005 is the more modest one of determining

whether a proposed item of DoD spending was presented to

Congress, and “denied” by it, during DoD’s appropriations

process, and all agree that that did not occur here. Any action

that Congress took in the separate appropriations process
STATE OF CALIFORNIA V. TRUMP 93

concerning DHS would create a “denial” as to DoD only if

there is some language in the DHS Appropriations Act that

somehow extends that Act’s denial vis-à-vis DHS to other

agencies.21 But the only relevant limitation in that Act that

even arguably extends beyond DHS is a prohibition on the

construction of “pedestrian fencing” in five designated parks

and refuge areas, see Pub. L. No. 116-6, Div. A, § 231, 133

Stat. at 28 (“None of the funds made available by this Act or

prior Acts are available” for such construction) (emphasis

added), but no one contends that this limitation is being

violated here. Beyond that, it is not our role under § 8005 to

give effect to a perceived big-picture “denial” that we think

is implicit in the “real-world events in the months and years

leading up to the 2019 appropriations bills.” Sierra Club v.

Trump, 929 F.3d at 691.

B

The majority alternatively holds that, even if Congress did

not deny the “item” in question, the transfers were still

unlawful because the requirements invoked by the Secretary

here to justify the transfers were neither “military” in nature

nor “unforeseen.” See Maj. Opin. at 37–46. The majority is

wrong on both counts.

21 Nor is this a situation in which DoD is invoking the transfer

authority to move funds into DHS’s appropriations. The destination item

here involves the authority under § 284 for DoD to undertake

“[c]onstruction of roads and fences” along the border. 10 U.S.C.

§ 284(b)(7). Indeed, § 8045(a) of the DoD Appropriations Act

specifically forbids DoD from “transferr[ing] to any other department”

any funds available to it for “counter-drug activities,” except “as

specifically provided in an appropriations law.” 132 Stat. at 3012.
94 STATE OF CALIFORNIA V. TRUMP

1

The DoD’s provision of support for counterdrug activities

under § 284 is plainly a “military” requirement within the

meaning of § 8005. As the majority notes, § 8005 does not

define the term “military,” see Maj. Opin. at 42, and so the

word should be given its ordinary meaning. Asgrow Seed Co.

v. Winterboer, 513 U.S. 179, 187 (1995). In common

parlance, the word “military” simply means “[o]f, relating to,

or involving the armed forces.” Military, BLACK’S LAW

DICTIONARY (11th ed. 2019); see also Military, AMERICAN

HERITAGE DICTIONARY (5th ed. 2018) (“Of, relating to, or

characteristic of members of the armed forces”; “Performed

or supported by the armed forces”); Military, WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY (1961)

(“WEBSTER’S THIRD”) (“of or relating to soldiers, arms, or

war”; “performed or made by armed forces”). Because

Congress, by statute, has formally assigned to DoD the task

of providing “support for the counterdrug activities” of other

departments through the “[c]onstruction of roads and fences

and installation of lighting to block drug smuggling corridors

across international boundaries of the United States,”

10 U.S.C. § 284(a), (b)(7), that task “relat[es] to” and

“involv[es] the armed forces,” and is “[p]erformed or

supported by the armed forces.” As such, it is a “military”

task.22

22 The majority is wrong in suggesting that the Government has never

argued that the construction projects “are related to the use of soldiers.” 

See Maj. Opin. at 42. The Government affirmatively argues in its brief

that “the military may be, and here is, required to assist in combatting”

drug trafficking under § 284 (emphasis added). Moreover, the evidence

submitted to the district court showed that the construction was to be

carried out by the U.S. Army Corps of Engineers. Even granting that most

of that agency’s employees are civilians, the agency remains within the
STATE OF CALIFORNIA V. TRUMP 95

Two other textual clues support this conclusion. First, the

chapter heading for the chapter of Title 10 that includes § 284

is entitled, “Military Support for Civilian Law Enforcement

Agencies,” thereby further confirming that the support

authorized to be provided under § 284 counts as military

support. See Henderson v. Shinseki, 562 U.S. 428, 439

(2011) (title of subchapter aided in resolving ambiguity

concerning provision in that subchapter). Second, the DoD

Appropriations Act itself classifies the activities carried out

under § 284 as “military” activities. The Act recognizes, on

its face, that funds appropriated for “Drug Interdiction and

Counter-Drug Activities, Defense,” may be transferred out of

that appropriation under § 8005. See DoD Appropriations

Act, § 8007(b)(6), 132 Stat. at 3000 (exempting transfers of

funds out of this appropriation from an otherwise applicable

prohibition on transferring funds under § 8005). Given that

the transfer authority granted by § 8005 applies only to “funds

made available in this Act to the Department of Defense for

military functions (except military construction),” 132 Stat.

at 2999 (emphasis added), the Act necessarily deems funds in

the “Drug Interdiction andCounter-Drug Activities,Defense”

appropriation to be for “military functions.” The majority’s

insistence that such counter-drug functions are not “military”

activities thus flatly contradicts the statute itself.

The majority is also wrong in relying on the distinctive

definition given in 10 U.S.C. § 2801 for the phrase “military

construction.” See Maj. Opin. at 44–45. At the outset, this

makes little sense, because § 8005 states on its face that it

applies only to transfers between appropriations for “military

functions” and not for “military construction.” 132 Stat.

Department of the Army and is led by a military officer. See 10 U.S.C.

§§ 7011, 7036, 7063.
96 STATE OF CALIFORNIA V. TRUMP

at 2999 (emphasis added). Indeed, Congress has long

handled appropriations for “military construction” separately

from those for military functions, and it did so again for

Fiscal Year 2019: appropriations for “military construction”

were made in a separate appropriations statute enacted one

week before the DoD Appropriations Act. See Pub. L. No.

115-244, Div. C, Title I, 132 Stat. 2897, 2946 (2018). Of all

the terms to consider in construing “military” for purposes of

the DoD Appropriations Act, “military construction” may be

the least appropriate.

Moreover, the majority fails to recognize that “military

construction” is a term of art, with its own unique definition,

and it therefore provides an inapt guide for trying to discern

the meaning of “military” in a different phrase in a different

context. Absent a special definition, one would have thought

that the phrase “military construction” embraces any

“construction” that is performed by or for the “military.” See

supra at 94 (quoting definitions of “military”). But § 2801

more narrowly defines “military construction” as generally

referring only to “construction . . . carried out with respect to

a military installation . . . or any acquisition of land or

construction of a defense access road,” and it defines a

“military installation” as a “base, camp, post, station, yard,

center, or other activity under the jurisdiction of the Secretary

of a military department.” 10 U.S.C. § 2801(a), (c)(4). 

Nothing about this distinctive definition of “military

construction” creates or reflects a general gloss on the word

“military,” much less does it suggest that the ordinary

meaning of “military” in other contexts carries all of this

baggage with it. The majority’s effort to import the specific

features of this term of art (“military construction”) into one

of the component words of that phrase makes neither

linguistic nor logical sense, and it is therefore irrelevant
STATE OF CALIFORNIA V. TRUMP 97

whether or not the § 284 activities at issue here meet that

definition.23

The majority also contends that, even if the activities

involved here are “military” ones, they still did not involve

“military requirements.” See Maj. Opin. at 45–45 (emphasis

added). That is wrong. The term “requirement” is not

limited to those tasks that DoD is compelled to undertake, nor

is it limited to those actions that DoD undertakes for itself. 

The term also includes “something that is wanted or needed”

or “something called for or demanded,” see Requirement,

WEBSTER’S THIRD; see also Requirement, BLACK’S LAW

DICTIONARY (11th ed. 2019) (listing, as an alternative

definition, “[s]omething that someone needs or asks for”),

and that readily applies to the request for assistance that was

made to DoD in this case under § 284. We should be

23 The majority notes that the phrase “military construction” is used

in 10 U.S.C. § 2808, which “[t]he Federal Defendants have also invoked

. . . to fund other border wall construction projects on the southern

border.” Maj. Opin. at 44. But that statute was invoked only with respect

to a different set of funds to be used for activities that Defendants contend

do qualify as “military construction” for purposes of DoD’s additional

construction authority after a declaration of a national emergency. See

10 U.S.C. § 2808(a). The States also challenged the use of that separate

set of funds in their suit below, but these challenges form no part of the

Rule 54(b) partial judgment now before us, and any issue concerning them

has no bearing on the distinct questions presented here. Relatedly, the

President’s proclamation declaring such an emergency is relevant only to

that other set of funds and has no legal bearing on the Secretary’s transfers

here. Cf. Maj. Opin. at 12–13, 39 (discussing the declaration). And

Congress’s joint resolutions attempting to terminate the emergency

declaration, see id. at 39, are irrelevant for the further reason that they

were vetoed and never became law. See id. at 12 n.3; see also 50 U.S.C.

§ 1622(a)(1) (congressional termination requires “enact[ing] into law a

joint resolution terminating the emergency”); Chadha, 462 U.S. at

946–48.
98 STATE OF CALIFORNIA V. TRUMP

cautious before adopting an unduly crabbed reading of what

constitutes a military “requirement,” especially when

Congress has explicitly assigned a task to the military, as it

did in § 284. Cf. Winter v. Natural Res. Def. Council,

555 U.S. 7, 24 (2008) (“great deference” is generally given to

the military’s judgment of the importance of a military

interest).

Accordingly, DoD’s provision of support to DHS under

§ 284 involves a “military requirement[]” within the meaning

of § 8005. The majority errs in concluding otherwise.

2

The majority is likewise wrong in contending that DoD’s

need to provide assistance to DHS for these projects under

§ 284 was not “unforeseen” within the meaning of § 8005. 

See Maj. Opin. at 37–42.

Once again, the majority fails to construe § 8005 against

the backdrop of the appropriations process. In ordinary

usage, “foresee” means “to see (as a future occurrence or

development) as certain or unavoidable: look forward to with

assurance.” Foresee, WEBSTER’S THIRD (emphasis added). 

In the context of the appropriations process, an “item” has

been seen as certain or unavoidable only if it is reflected in

DoD’s budgetary submissions or in Congress’s review and

revision of those submissions. Conversely, it is “unforeseen”

if it is not reflected as an item in any of those materials. The

Red Book confirms this understanding. In explaining the

need for reprogramming, it quotes the Deputy Defense

Secretary’s statement that reprogramming allows agencies to

respond to “unforeseen changes” that are not reflected in the
STATE OF CALIFORNIA V. TRUMP 99

“budget estimates” on which the final appropriations are

based:

“The defense budget does not exist in a

vacuum. There are forces at work to play

havoc with even the best of budget estimates. 

The economy may vary in terms of inflation;

political realities may bring external forces to

bear; fact-of-life or programmatic changes

may occur. The very nature of the lengthy

and overlapping cycles of the budget process

poses continual threats to the integrity of

budget estimates. Reprogramming procedures

permit us to respond to these unforeseen

changes and still meet our defense

requirements.”

RED BOOK, 2016 WL 1275442, at *5 (citation omitted). As

the GAO has explained, the question is not whether a

particular item “was unforeseen in general”; “[r]ather, the

question under section 8005 is whether it was unforeseen at

the time of the budget request and enactment of

appropriations.” U.S. GAO, B-330862, Department of

Defense—Availability of Appropriations for Border Fence

Construction at 7–8 (Sept. 5, 2019) (emphasis added),

https://www.gao.gov/assets/710/701176.pdf. Under this

standard, the items at issue here 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 majoritymakes two

legal errors. First, it makes precisely the mistake the GAO

identified, namely, it examines whether the “problem” (drug
100 STATE OF CALIFORNIA V. TRUMP

smuggling) and the “solution” (a border barrier) were

foreseen in general, rather than whether they were foreseen

within the appropriations process. See Maj. Opin. at 40–41. 

Thus, in concluding that DoD’s need to provide assistance

under § 284 was not “unforeseen,” the majority relies on the

general premises that “the conditions at the border” have been

known to be a problem since at least the 1960s and that “the

President’s position that a wall was needed to address those

conditions” was publicly known well before he 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 majority effectively rewrites the statute as if

it said “foreseeable” rather than “foreseen.” Contrary to the

majority’s view that requiring foreknowledge would

“effectively eliminate[] any element of anticipation or

expectation,” see id. at 39, “foreseen” is commonly

understood to be interchangeable with “foreknown.” See,

e.g., Foresee, WEBSTER’S THIRD (listing “foreknow” as a

synonym). By wrongly shifting the focus away from whether

a current need matches up with the assumptions on which the

budget and appropriations were based, the majority’s errors

would preclude DoD from making transfers based on any

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 were thus based on “military”

“requirements” that were “unforeseen” within the meaning of

§ 8005. The States do not otherwise contest the Secretary’s

determination that the items in question were “higher

priority” items than “those for which originally
STATE OF CALIFORNIA V. TRUMP 101

appropriated.” This element of § 8005’s first proviso was

therefore also satisfied here.

C

The States contend that, even if the transfers complied

with the conditions in § 8005, the particular transfer that was

made under § 9002, see supra at 52–53, did not satisfy that

section’s additional requirement that transfers under that

section be made only “between the appropriations or funds

made available to the Department of Defense in this title.” 

132 Stat. at 3042 (emphasis added). According to the States,

the appropriations under that title are only for “Overseas

Contingency Operations,” and the transferee appropriation

does not count. This argument is plainly incorrect. The

separate title in the DoD Appropriations Act that is entitled

“Overseas Contingency Operations” contains within it a

specific appropriation for “Drug Interdiction and CounterDrug Activities, Defense,” 132 Stat. at 3042, which is the

appropriation to which the funds were transferred. The fact

that the amounts in that fund are designated as funds for

“Overseas Contingency Operations/Global War on

Terrorism” for purposes of calculating budgetary caps under

§ 251(b)(2)(A)(ii) of the Balanced Budget and Emergency

Deficit Control Act of 1985, 2 U.S.C. § 901(b)(2)(A)(ii), does

not thereby impose an additional limitation on the purposes

for which such funds may be expended.

V

Based on the foregoing, I conclude that at least California

has Article III standing, but that the States lack any cause of

action to challenge these § 8005 and § 9002 transfers. 

Alternatively, if the States did have a cause of action, their
102 STATE OF CALIFORNIA V. TRUMP

claims fail on the merits as a matter of law because the

transfers complied with the limitations in § 8005 and § 9002. 

I therefore would reverse the district court’s partial grant of

summary judgment to the States and would remand the matter

with instructions to grant the Government’s motion for

summary judgment on this set of claims. Because the

majority concludes otherwise, I respectfully dissent.