Legal Authority to Repurpose Funds for Border Barrier Construction
Released: 2019-12-30T00:00:00

P resident Trump has long advocated for the construction of additional fencing, walls, and other barriers along the U.S.-Mexico border to deter unlawful border crossings. Less than a week after taking office, the President issued an executive order directing the Secretary of Homeland Security to "take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border." This policy has engendered a robust debate in the public sphere, and a conflict has also made its way to federal court, with various plaintiffs challenging the lawfulness of the Trump Administration's initiatives to pay for the construction of border barriers by reprogramming funds from existing appropriations. At their core, these lawsuits concern whether the Administration's funding initiatives exceed existing statutory authorization and conflict with Congress's constitutionally conferred power over federal funds.

Article I of the Constitution provides that "[n]o money shall be drawn from the Treasury but in Consequence of Appropriations made by Law." As Justice Joseph Story noted in his Commentaries on the Constitution , the appropriations power was given to Congress to guard against arbitrary and unchecked expenditures by the executive branch and to "secure regularity, punctuality, and fidelity, in the disbursement of the public money." "In arbitrary governments," he expounded, "the prince levies what money he pleases from his subjects, disposes of it, as he thinks proper, and is beyond responsibility or reproof." To avoid giving the President such "unbounded power over the public purse of the nation," the Framers designated Congress "the guardian of [the national] treasure"âgiving to it "the power to decide, how and when any money should be applied[.]" This "power to control, and direct the appropriations," Justice Story explained, serves as "a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public speculation." Justice Story's sentiments echoed those of James Madison, who in The Federalist No. 58 described the legislature's "power over the purse" as "the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure."

The Trump Administration's early efforts to secure funding for border barriers focused on negotiating with Congress to secure appropriations specifically designated for that task. In his FY2018 budget proposal, President Trump requested that Congress appropriate $1.57 billion for border barrier construction. Similarly, President Trump's FY2019 budget request sought $1.6 billion "to construct approximately 65 miles of border wall in south Texas."

Congress did not appropriate the amounts requested for either fiscal year. For FY2018, Congress appropriated $1.375 billion for new or repaired fencing and other forms of barriers along the U.S.-Mexico border, as well as $196 million for border monitoring technology. As FY2019 began, Congress and the President negotiated, inter alia , the amount of funding to provide the Department of Homeland Security (DHS) for border barrier construction for FY2019. Ultimately, Congress and the President did not agree on funding levels, leading to a 35-day lapse of appropriations for DHS and other portions of the federal government. During the partial government shutdown, President Trump increased his request for border barrier funding from $1.6 billion to $5.7 billion. Congress did not grant this request. Instead, in the Consolidated Appropriations Act, 2019 (CAA 2019), Congress appropriated $1.375 billionâ$4.325 billion less than was ultimately requestedâfor "the construction of primary pedestrian fencingÂ . . . in the Rio Grande Valley Sector."

President Trump signed the CAA 2019 on February 15, 2019, that same day announcing that his Administration would "take Executive action" to "secure additional resources" to construct barriers along the southern border. In particular, President Trump announced that his Administration had identified "up to $8.1 billion" from three additional funding sources "to build the border wall." It remains to be seen whether the Administration will identify further funding sources from the FY2020 budget cycle.

Several plaintiffs filed lawsuits in federal courts in California, the District of Columbia, and Texas to prevent the Trump Administration from taking this action. These plaintiffs assert that the Administration's funding initiatives are not authorized under existing law and thus violate the constitutional and statutory provisions requiring that federal money be spent only for the purposes, and in the amounts, specified by Congress. In May 2019, a federal district court in California concluded that one of the Administration's funding initiatives was unlawful and prohibited the Administration from using that authority to repurpose funds for border barrier construction. Though the U.S. Court of Appeals for the Ninth Circuit denied the Administration's request to stay the injunction, the Supreme Court granted that request, thus allowing the Administration to begin contracting for construction of border barriers while litigation in the case continues. A second federal district court in Texas has separately enjoined the use of military construction funds for border barrier construction. Meanwhile, the federal district court in the District of Columbia ruled that the plaintiff in that caseâthe U.S. House of Representativesâdid not have standing to sue and dismissed the suit. The U.S. House of Representatives has appealed the decision.

According to DHS's U.S. Customs and Border Protection (CBP), there had been roughly 654 miles of primary barriers deployed along the U.S.-Mexico border as of January 2017. In May 2019, CBP declared that "approximately 205 miles of new and updated border barriers" had been funded (though not necessarily constructed) "through the traditional appropriations process and via Treasury Forfeiture Funding" since January 2017. In addition to this mileage, CBP described DOD as funding in FY2019 "up to approximately 131 miles of new border barriers in place of dilapidated or outdated designs, in addition to road construction and lighting installation." In total, CBP stated that some 336 total miles of barriers (including both replacement barriers and barriers deployed in new locations) would be deployed using funds from FY2017 through FY2019.

This report addresses the litigation surrounding the Trump Administration's initiatives to repurpose existing appropriations for the construction of border barriers along the U.S.-Mexico border. It begins by providing an overview of the authorities cited by the Trump Administration to obtain border barrier funding and the steps the Administration has taken to utilize those authorities. It then discusses DHS's existing authority to construct border barriers and the various authorities on which the Trump Administration has relied to secure additional border barrier funding. Finally, this report discusses the ongoing litigation regarding the Administration's funding initiatives, with a focus on the parties' arguments and judicial decisions.

Legal Authorities Cited by the Trump Administration

The Trump Administration has cited several statutory authorities as giving it both the power and the necessary funds to construct additional border barriers. Some of these authorities belong to DHS, the agency with primary responsibility for securing the U.S. borders. Other authorities permit the Department of Defense (DOD) or the Department of the Treasury to transfer funds for specified military, law enforcement, or other emergency purposes. These authorities are described in more detail below.

First , Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) as amended generally authorizes DHS to construct barriers and roads along the international borders in order to deter illegal crossings at locations of high illegal entry, and further directs the agency to construct fencing along no less than 700 miles of the U.S.-Mexico border. This law also authorizes the Secretary of Homeland Security to waive "all legal requirementsÂ . . . necessary to ensure expeditious construction of . . . [the] barriers." Second , the Secretary of Defense is authorized by 10 U.S.C. Â§Â 2808 to "undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces." President Trump stated that he would invoke his authority under this provision to repurpose $3.6 billion allocated to "military construction projects" for border barrier construction. This authority becomes available upon a "declaration by the President of a national emergency" as authorized by the National Emergencies Act (NEA). Third , DOD has authority under 10 U.S.C. Â§Â 284 ("Section 284") to support other departments' or agencies' counterdrug activities, including through the construction of fencing to block drug smuggling corridors. President Trump proposed to direct the DOD to use its authority under Section 284 to support DHS's "counterdrug activities" through the construction of fencing across drug trafficking corridors at the southern border. These support activities would be funded by $2.5 billion in DOD's Drug Interdiction and Counter-Drug Activities Account (Drug Interdiction Account), which would be transferred to that account using the transfer authority in Sections 8005 and 9002 of the 2019 DOD Appropriations Act. These authorities authorize the transfer of up to $6 billion of DOD funds for "unforeseen military requirements" but only "where the item for which funds are requested has been denied by Congress." Fourth , the Treasury Forfeiture Fund contains funds that are confiscated by, or forfeited to, the federal government pursuant to laws enforced or administered by certain law enforcement agencies, and unobligated money in this fund may be used for obligation or expenditure in connection with "law enforcement activities of any Federal agency." The President proposed to withdraw $601 million in unobligated funds from the Treasury Forfeiture Fund ( TFF) to pay for border barrier construction.

The Trump Administration has taken steps to make these funds available to construct border barriers along the U.S.-Mexico border. On February 15, the President declared a national emergency under the NEA, and has subsequently vetoed two congressional resolutions disapproving that declaration (which Congress did not override). On September 3, 2019, the Secretary of Defense directed the Acting Secretary of the Army to "expeditiously undertake" 11 border barrier military construction projects pursuant to Section 2808.

In addition, on February 25, DHS requested that DOD use its authority under 10 U.S.C. Â§Â 284 to assist in constructing border barriers. DOD granted this request on March 25 and invoked the transfer authority in Section 8005 of the FY2019 DOD Appropriations Act to move $1 billion of Army personnel funds into DOD's Drug Interdiction Account for DOD to help DHS construct border barriers. A few months later, DOD again invoked Section 8005 (along with the related transfer authority in Section 9002 of the FY2019 DOD Appropriations Act) to transfer another $1.5 billion of personnel, procurement, and overseas contingency operation funds into the Drug Interdiction Account for use in constructing border barriers. The Trump Administration proposed to construct "approximately 131 miles of new border barriers . . . in addition to road construction and lighting installation" with these funds.

For each of the proposed projects, the Acting Secretary of Homeland Security utilized IIRIRA Â§Â 102's waiver authority to waive the application of several federal environmental, conservation, and historic preservation statutes, including the National Environmental Policy Act (NEPA), the Endangered Species Act, the Safe Drinking Water Act, and the Antiquities Act, to the "fence[s], roads, and lighting" that DOD will be "assist[ing]" in "constructing" under Section 284.

Department of Homeland Security Authority

DHS's authority to construct barriers along the southern border derives from IIRIRA Â§Â 102, as amended. This law provides that "[t]he Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads . . . in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States." IIRIRA Â§Â 102 directs that "the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border," while also "identify[ing] the 370 milesÂ . . . along the southwest border where fencing would be most practical and effective in deterring smugglers and aliens attempting to gain illegal entry into the United States." Finally, IIRIRA Â§Â 102 gives the Secretary of Homeland Security flexibility on where to construct barriers, allowing the Secretary to decline to build a border barrier in a particular location if "[the Secretary] determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border.Â .Â .Â ."

To expedite the construction of border barriers, IIRIRA Â§Â 102 authorizes the Secretary of Homeland Security to, "in [the] Secretary's sole discretion," "waive all legal requirements" that the Secretary "determines necessary to ensure expeditious construction of the barriers and roads under this section." And to limit potential legal challenges to this waiver authority, IIRIRA Â§Â 102 cabins the jurisdiction of federal district courts to claims "alleging a violation of the Constitution" and forecloses appellate review of district court decisions, except by seeking discretionary review in the U.S. Supreme Court.

IIRIRA Â§Â 102's waiver authority has been challenged on constitutional grounds in cases involving waivers of NEPA and other federal environmental statutes. Those challenging the waiver authority have contended that it violates the nondelegation doctrine, the Presentment Clause, and the Take Care Clause. Courts, however, have uniformly rejected these challenges and concluded that "a valid waiver of theÂ . . . laws under [IIRIRA Â§Â 102] is an affirmative defense" to all claims arising from the waived laws.

The National Emergencies Act and Military Construction Funds

The President invoked 10 U.S.C. Â§Â 2808 and announced that his Administration would seek to reallocate $3.6 billion from DOD's military construction budget for border barrier construction. The authority to take this action hinges on the President declaring a national emergency under the NEA, which President Trump did on February 15. On September 3, 2019, DOD identified 127 military construction projects that it would delay or suspend in order to reallocate $3.6 billion toward 11 barrier construction projects using this authority. The NEA provides general requirements governing the declaration of a national emergency, while Section 2808 contains additional requirements for its exercise.

The National Emergencies Act

The Supreme Court has explained that the President's authority "must stem either from an act of Congress or from the Constitution itself." Because Article II of the Constitution does not grant the Executive general emergency powers, the President generally must rely on Congress for such authority. Congress has historically given the President robust powers to act in times of crisis. By 1973, Congress had enacted more than 470 statutes granting the President special authorities upon the declaration of a "national emergency," but these statutes imposed no limitations on either the President's discretion to declare an emergency or the duration of such an emergency. The Senate Special Committee on National Emergencies and Delegated Emergency Powers (previously named the Senate Special Committee on the Termination of the National Emergency) ("Special Committee") was apparently concerned that four presidentially declared national emergencies remained extant in the mid-1970s, the earliest dating to 1933.

In 1973, the Special Committee concluded that the President's crisis powers "confer[red] enough authority to rule the country without reference to normal constitutional process," and so Congress enacted the NEA in 1976 to pare back the President's emergency authorities.

The NEA does not define "national emergency." Rather, the NEA established a framework to provide enhanced congressional oversight and prevent emergency declarations from continuing in perpetuity. To accomplish these goals, the NEA terminated all then-existing presidentially declared emergencies. The NEA also established procedures for future declarations of national emergencies, requiring the President to

specify which statutory emergency authorities he intends to invoke upon a declaration of a national emergency (unlike the pre-NEA regime, under which the declaration of an emergency operated as an invocation of all of the President's emergency authorities); publish the proclamation of a national emergency in the Federal Register and transmit it to Congress; maintain records and transmit to Congress all rules and regulations promulgated to carry out such authorities; and provide an accounting of expenditures directly attributable to the exercise of such authorities for every six-month period following the declaration.

The NEA further provides that a national emergency will end (1) automatically after one year unless the President publishes a notice of renewal in the Federal Register , (2) upon a presidential declaration ending the national emergency, or (3) if Congress enacts a joint resolution terminating the emergency (which would likely require the votes of two-thirds majorities in each house of Congress to override a presidential veto). While the NEA directs each house of Congress to meet every six months to consider whether to end a national emergency by joint resolution, Congress has never met to consider such a vote under that deadline prior to this year. The statute does not appear to prevent Congress from considering a resolution to terminate a national emergency at any time before or after a six-month interval.

Although a purpose of the NEA was to end perpetual states of emergency, the law does grant the President authority to renew an emergency declaration. As a result, there are currently 34 national emergency declarations in effect, some of which have been renewed for decades.

The declaration of a national emergency under the NEA enables the President to invoke a wide array of emergency authorities conferred by statute. The most often invoked is the International Emergency Economic Powers Act (IEEPA), which gives the President broad authority to impose sanctions on foreign countries and entities. Besides Section 2808, another authority that could provide for the reprogramming of funds for construction purposes is 33 U.S.C. Â§ 2293, which, in the event of a national emergency or declaration of war, authorizes the Secretary of the Army to end or defer Army Corps of Engineers civil works projects that are "not essential to the national defense." The Secretary of the Army can then use the funds otherwise allocated to those projects for "authorized civil works, military construction, and civil defense projects that are essential to the national defense." No President has ever invoked this authority, but it could potentially be used in connection with President Trump's declaration of a national emergency at the southern border.

Military Construction Funds

A declaration of a national emergency triggers Section 2808, which provides emergency authority for unauthorized military construction in the event of a declaration of war or national emergency. President Trump invoked this statutory authority to reallocate $3.6 billion from DOD military construction funds to border barrier construction, stating in his emergency declaration that "this emergency requires use of the Armed Forces and . . . that the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments." The President did not describe in his proclamation the tasks the Armed Forces would undertake with respect to the emergency at the southern border.

Originally enacted in 1982, Section 2808 provides that upon the President's declaration of a national emergency "that requires use of the armed forces," the Secretary of Defense may "without regard to any other provision of law . . . undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces." The term "military construction project" is defined to include "military construction work," and "military construction" is, in turn, defined to "include any construction, development, conversion, or extension of any kind carried out with respect to a military installation . . . or any acquisition of land or construction of a defense access road." The term "military installation" means a "base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department." Finally, Section 2808 limits the funds available for emergency military construction to "the total amount of funds that have been appropriated for military construction" but which have not been obligated.

Section 2808's legislative history provides limited guidance on the types of emergencies and military construction projects envisioned. A House Armed Services Committee report accompanying the original 1982 legislation indicated that while "[i]t is impossible to provide in advance for all conceivable emergency situations," Section 2808 was intended to address contingencies "ranging from relocation of forces to meet geographical threats to continuity of efforts after a direct attack on the United States during which the Congress may be unable to convene." With certain limited exceptions, prior Presidents have generally invoked this authority for construction at military bases in foreign countries.

Department of Defense Authorities

To obtain additional funds to construct border barriers, the Trump Administration has invoked DOD's authority under 10 U.S.C. Â§Â 284 to support DHS in constructing border fencing. This support would be funded by money transferred to DOD's Drug Interdiction Account pursuant to Sections 8005 and 9002 of the 2019 DOD Appropriations Act. These authorities are not contingent on the declaration of a national emergency.

Section 284

In general, U.S. military involvement in civilian law enforcement is permitted only when specifically authorized by Congress. For example, the Secretary of Defense can "make available any equipmentÂ . . . base facility, or research facility" to any "civilian law enforcement officialÂ . . . for law enforcement purposes." Section 284 is another of these authorities. It authorizes the Secretary of Defense to "provide support for the counterdrug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government or of any State, local, tribal, or foreign law enforcement agency."

DOD may provide support under Section 284 only after it has been "requested" by the appropriate official from the governmental agency or department, and then only for "the purposes set forth" in Section 284. Those purposes include "the maintenance and repair" of certain equipment, the "training of law enforcement personnel" related to "[c]ounterdrug or counter-transnational organized crime," and "[a]erial and ground reconnaissance." Section 284 also authorizes DOD to provide support for the "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." And to ensure that DOD can provide this support expeditiously, support under Section 284 is generally not subject to the requirements that govern DOD's other authority to support civil law enforcement agencies.

Section 284 also provides for congressional oversight of DOD's support activities. At least 15 days prior to providing support to another agency under Section 284, the Secretary of Defense must submit "a description of any small scale construction project for which support is provided" to the appropriate congressional committees. "Small scale construction project" is, in turn, defined to encompass projects that cost no more than $750,000. Section 284 does not include a reporting requirement for any projects exceeding $750,000.

Historically, DOD's activities under Section 284 have been funded by the "Drug Interdiction and Counter-Drug Activities" line item in its annual appropriations bill. For FY2019 Congress appropriated $1,034,625,000 to this line item, with $517,171,000 of that amount being allocated for "counter-narcotics support."

Sections 8005 and 9002 of the 2019 DOD Appropriations Act

On February 25, 2019, DHS submitted a request to DOD to provide assistance pursuant to Section 284 in constructing border barriers in three locations along the U.S.-Mexico border, and DOD then approved the use of funds from the Drug Interdiction Account for these projects. However, much of the FY2019 funds appropriated for "counter-narcotics support" had been obligated by the time DOD made its request. As a result, DOD sought to use its authority under Section 8005 of the 2019 DOD Appropriations Act to transfer other funds into the Drug Interdiction Account.

Section 8005 authorizes the Secretary of Defenseâ"[u]pon a determination by the Secretary of Defense that such action is necessary in the national interest" and with "approval of the Office of Management and Budget"âto "transfer not to exceed [$4 billion] of working capital funds of the [DOD] or funds made available in [the 2019 DOD Appropriations Act] for military functions (except military construction)." Section 8005 further provides that funds may be transferred only "for higher priority items, based on unforeseen military requirements, than those for which originally appropriated," and may not be transferred "where the item for which funds are requested has been denied by Congress." Finally, Section 8005 requires the Secretary of Defense to "notify the Congress promptly of all transfers made pursuant to this authority."

This transfer authority, in its current form, originated with the FY1974 DOD Appropriations Act. The 1974 act appears to be the first instance when Congress expressly prohibited the transfer of DOD funds for purposes for which Congress had denied funding. The House committee report for this legislation explained that this language was added "to tighten congressional control of the reprogramming process." Before that time, DOD had "onÂ .Â .Â . occasion[]" reprogrammed funds "which ha[d] been specifically deleted in the legislative process" after obtaining the consent of the authorizing and appropriations committees in the House and Senate. The House committee report explained that this practice "place[d] committees in the position of undoing the work of the Congress." Characterizing this practice as "untenable," the House report declared that "henceforth no such requests will be entertained."

Invoking Section 8005's transfer authority, DOD in February 2019 authorized the transfer of an initial $1 billion of Army personnel funds to the Drug Interdiction Account. And on May 9, DOD authorized the transfer of an additional $1.5 billion to that fund using Sections 8005 and 9002 of the 2019 DOD Appropriations Act. Section 9002 authorizes the Secretary of Defense to "transfer up to [$2 billion] between the appropriations or funds made available to [DOD] in this title." This authority is "in addition to any other transfer authority available to [DOD]"âincluding Section 8005âand is also "subject to the same terms and conditions as the authority provided in section 8005." The Acting Secretary of Defense informed Congress of these transfers.

Treasury Forfeiture Fund

In various federal statutes, Congress has authorized the confiscation, or forfeiture to the federal government, of any property used to facilitate a crime as well as the profits and proceeds of such crimes. None of these statutes is contingent on the declaration of a national emergency. Congress established the TFF to hold proceeds of property forfeited under most laws enforced or administered by a law enforcement organization within the Department of the Treasury or by the Coast Guard. Funds in the TFF may be used by the Secretary of the Treasury for a variety of law enforcement purposes. Some of these purposes are mandatory, such as making "equitable sharing payments" to other federal, state, and local law enforcement agencies that participate in the seizure or forfeiture of property. Others, such as awards for information leading to forfeited property covered by the TFF, are subject to the discretion of the Secretary of the Treasury.

At the end of each fiscal year, the Secretary of the Treasury must reserve a sufficient amount in the TFF to cover mandatory and discretionary expenditures. Unobligated balances in the fund over the reserved amount may be used "for obligation or expenditure in connection with the law enforcement activities of any Federal agency or of a Department of the Treasury law enforcement organization." This unobligated amount is known as "Strategic Support."

At the end of 2018, DHS requested $681 million of Strategic Support from the TFF for "border security." In response to that request, the Secretary of the Treasury transferred roughly $601 million to CBP for "border barrier construction."

The Border Barrier Litigation

Following the Trump Administration's announcement of its initiatives to fund border barrier construction, citizens groups, states, and the U.S. House of Representatives filed lawsuits in federal district courts in California, the District of Columbia, and Texas. The plaintiffs in these lawsuits have argued that the Trump Administration's funding initiatives are not authorized by (or are inconsistent with) the relevant statutory authorities. As a result, they have also contended that the Administration's funding initiatives violate constitutional separation of powers principles and the Appropriations Clause's directive that money may be withdrawn from the Treasury only "in Consequence of Appropriations made by Law." Finally, some plaintiffs have asserted that IIRIRA Â§Â 102 does not empower DHS to waive the requirements of NEPA for the border barrier projects being constructed with DOD's assistance because IIRIRA Â§Â 102's waiver authority extends only to projects undertaken by DHS.

After bringing suit, certain plaintiffs filed motions for a preliminary injunction, asking the courts to prohibit DOD from implementing its funding initiatives while the litigation was ongoing. On May 24, 2019, a judge on the U.S. District Court for the Northern District of California issued decisions in the two cases pending in that courtâ Sierra Club v. Trump and California v. Trump âresolving one of the issues presented by the plaintiffs' motion: whether Sections 8005 and 9002 of the 2019 DOD Appropriations Act authorized the transfer of funds for border barrier construction.

The district court determined that it did not for two reasons. It first concluded that this would violate Section 8005's prohibition on transferring funds where "the item for which funds [were] requested ha[d] been denied by Congress." The court also ruled that the Administration's proposed use of Section 8005 was unlawful because DOD's purported need for additional border barrier funding was not an "unforeseen military requirement," as required by Section 8005. Based on this ruling, the court in Sierra Club issued a preliminary injunction barring the Administration from using Section 8005 to transfer funds for border barrier construction while litigation proceeded. The court declined to also issue a preliminary injunction in the California case because (with the Sierra Club injunction in place) the plaintiffs in California could not establish that they would be irreparably harmed by the denial of an injunction.

Because the plaintiffs' lawsuit preceded DOD's May 9 decision to transfer $1.5 billion to the Drug Interdiction Account, the preliminary injunction applied only to the initial, February 25 transfer of $1 billion to fund projects in New Mexico and Arizona. But in a later decision, the district court applied the reasoning from its initial ruling to conclude that the $1.5 billion transfer, like the first, was not authorized by Section 8005 or Section 9002. The court then issued an order permanently prohibiting the Administration from using either of these provisions to transfer any of the $2.5 billion for border barrier construction.

The Trump Administration appealed the district court's permanent injunction to the U.S. Court of Appeals for the Ninth Circuit and asked that court to stay the injunction pending appeal. The Ninth Circuit denied that request, agreeing with the district court that Section 8005 does not authorize the transfer of funds for border barrier construction. However, the Supreme Court subsequently issued an order staying the injunction during the pendency of the litigation. As a result of the Supreme Court's order, the Trump Administration may use Section 8005 to transfer funds for border barrier construction. The district court subsequently issued a permanent injunction against the use of military construction funds as well, but stayed the injunction pending appeal.

The Texas lawsuit, El Paso County v. Trump , also resulted in a permanent injunction against the Trump Administration's funding scheme for border barrier construction using Section 2808. The district court determined that the use of those provisions to fund border barriers clashed with the Consolidated Appropriations Act, 2019 (CAA 2019), provision that prohibits the use of appropriated funds "to increase . . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year" unless it is made pursuant to the reprogramming or transfer provisions of an appropriations Act.

This section discusses the various arguments raised in these lawsuits regarding the lawfulness of the Trump Administration's initiatives for funding border barrier construction. It also discusses the judicial decisions that have resolved, or otherwise opined on, the lawfulness of the Administration's funding initiatives. The federal court in the District of Columbia presiding over the U.S. House of Representatives' case dismissed that suit for lack of standing, and that decision is currently being appealed.

Legal Arguments and Judicial Decisions Regarding the Trump Administration's Efforts to Fund Additional Barrier Deployments

Section 8005

The Northern District of California's Sierra Club Decision166

As discussed earlier, Section 8005 authorizes the transfer of funds for "military functions," but provides that funds may be transferred only "for higher priority items, based on unforeseen military requirements, than those for which originally appropriated." Further, funds may not be transferred "where the item for which funds are requested has been denied by Congress." The district court in Sierra Club v. Trump concluded that Section 8005 does not authorize the transfer of funds for the construction of border barriers because the transfer was for an "item" for which funds had been denied by Congress and, in any event, because the asserted need for the construction of border barriers was not "unforeseen."

The district court first addressed whether the proposed transfer was for an "item" for which Congress had denied funds. In its briefs, the Trump Administration had argued that the relevant "item for which funds [were] requested" was DOD's assistance to DHS under 10Â U.S.C. Â§Â 284 for "counterdrug activities," not (as the plaintiffs urged) the construction of border barriers generally. Thus, the Administration urged, because Congress had not "denied" a request for appropriations for DOD "counterdrug" assistance under Section 284, transferring funds for that purpose was not prohibited by Section 8005.

The district court rejected that argument, concluding instead that the historical context leading up to the transferâincluding the previous disagreement between the Administration and Congress on the appropriate funding for border barriers that led to an extended lapse in appropriationsâshowed that the "item for which funds [were] requested" was the construction of border barriers generally, regardless of which agency would undertake construction or the statutory authority on which it might rely. "[T]he reality is that Congress was presented withâand declined to grantâa $5.7 billion request for border barrier construction," the court explained. Thus, "[b]order barrier construction, expressly, is the item [the Administration] now seek[s] to fund via the Section 8005 transfer, and Congress denied the requested funds for that item."

The court also relied on portions of Section 8005's legislative history to support this conclusion. In particular, the court cited portions of a House report from 1973, which explained that Congress originally adopted the "denied by Congress" language to "'tighten congressional control of the reprogramming process''' and to "'prevent the funding for programs which have been considered by Congress and for which funding has been denied.'" In the court's view, an interpretation of Section 8005 that would allow the Administration to transfer money for border barrier construction, despite Congress's refusal to appropriate the amount of money requested for that purpose, would undermine Section 8005's objective.

The court also determined that Section 8005's transfer authority was unavailable because the Administration's proposed border barrier construction was not an " unforeseen military requirement[]." The Administration had argued that the proposed border barrier construction (i.e., the "military requirement") was "unforeseen" because the need for DOD to provide support to DHS through Section 284 was not known until DHS had requested that assistanceâwhich occurred after the President's budget request and after Congress had passed the DOD appropriations bill with less funding for barrier construction than the Administration had requested.

The district court rejected this interpretation of Section 8005. On this theory, the court explained, " every request for Section 284 support" would be unforeseen because the need to rely on that particular statutory authority would only ever arise when another agency requests DOD's assistance under that provision. The district court also asserted that "[the Administration's] argument that the need for the requested border barrier construction funding was 'unforeseen' cannot logically be squared with the Administration's multiple requests for funding" for a border wall.

Finally, the court invoked the canon of constitutional avoidance to support its reading of Section 8005. Under this rule of statutory interpretation, when there are two possible interpretations of a statute, one of which would raise serious constitutional concerns, courts should adopt the interpretation that avoids the constitutional difficulties. According to the district court, the Administration's interpretation of Section 8005 would "pose serious problems under the Constitution's separation of powers principles" because it would allow the executive branch to "render meaningless Congress's constitutionally-mandated power" to control federal expenditures by "ceding essentially boundless appropriations judgment" to the executive branch. Avoiding these potential pitfalls was, in the court's view, another reason to reject the Administration's broader interpretation of Section 8005.

On these grounds, the court decided that the plaintiffs would likely succeed on their claim that the Administration could not lawfully use Section 8005 to transfer funds for border barrier construction. Thus, after finding the remaining preliminary injunction requirements satisfied, the court entered an order temporarily prohibiting the Administration from using the $1 billion of funds transferred under Section 8005 to construct the specified border barriers in New Mexico and Arizona.

After issuing this decision, the parties submitted additional briefing on the lawfulness of the Administration's May 9 decision to use Sections 8005 and 9002 to transfer another $1.5 billion to the Drug Interdiction Account for the construction of border barriers in four additional locations in California and Arizona. On June 28, the district court issued a decision adopting the same reasoning as its earlier opinion. And having found both of the Administration's proposed uses of Section 8005's transfer authority unlawful, the court entered an injunction permanently prohibiting the Administration "from taking any action to construct a border barrier" using Section 8005.

The Ninth Circuit's Sierra Club Decision

The Trump Administration appealed the district court's permanent injunction to the U.S. Court of Appeals for the Ninth Circuit and asked that court to stay the injunction pending appeal.

On July 3, a divided panel of the Ninth Circuit denied the Administration's request for a stay, concluding that the Administration had not shown a likelihood of success on the merits. In reaching that conclusion, the Ninth Circuit first agreed with the district court that the construction of a border barrier was not an " unforeseen military requirement," as required by Section 8005. Like the district court, the Ninth Circuit declared that the relevant "requirement" was the construction of border barriersânot, as the Administration contended, the need for DHS to request support from DOD under Section 284. The Ninth Circuit also concluded that Congress had "denied" funds for construction of the border barrier. The Administration had argued to that court that the "item for which funds [were] requested" referred to "'a particular budget item' for section 8005 purposes"âwhich Congress had not deniedâand did not encompass other requests for DHS funding for border barriers. The court of appeals rejected this reading, concluding that the "item for which funds [were] requested" was "a wall along the southern border," and that Congress had denied the Administration's request to fund that "item." "In sum," the court reasoned, "Congress considered the 'item' at issue hereâa physical barrier along the entire southern border"âand it "decided in a transparent process subject to great public scrutiny to appropriate less than the total amount the President had sought for that item. To call that anything but a 'denial' is not credible."

However, as discussed in more detail below, the Supreme Court ultimately stayed the district court's injunction. The Court's stay order did not rule on the merits of Section 8005 or any of the other statutory authorities on which the Administration has relied to secure additional border barrier funding. Instead, the Court stayed the injunction because it concluded that "the Government had made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting [Secretary of Defense's] compliance with Section 8005."

Section 284

The plaintiffs in Sierra Club and California also argued that even if Section 8005 authorized the transfer of funds to the Drug Interdiction Account, Section 284 does not empower DOD to assist another agency in constructing border barriers. The plaintiffs in these cases raised several points to support this conclusion.

First , they observed that Section 284 requires DOD to provide to Congress "a description of the small scale construction project for which support is provided," and defines "small scale construction" to mean "construction at a cost not to exceed $75,000 for any project." That Section 284 requires DOD to report to Congress on "small scale construction projects" and not larger projects, the plaintiffs argued, suggests that Section 284 should not be read to authorize assistance with larger-scale projects. "Congress would not have required a description of 'any small scale construction' projects if it was, at the same time, authorizing massive, multibillion-dollar expenditures under this provision," the plaintiffs argued. But even if Section 284 could be read otherwise, the plaintiffs contended that it should not be read broadly here given "the more specific and recent judgment by Congress" to appropriate only $1.375 billion for DHS border barrier construction. If there is a "specific policy embodied in a later statute," they argued, that later statute "should control judicial construction of the earlier broad statute, even though [the latter statute] has not been expressly amended."

Second , the plaintiffs argued that Section 284 does not authorize DOD's proposed border barrier projects because the portion of Section 284 relied on by DOD applies solely to "block[ing] drug smuggling corridors." By contrast, the plaintiffs argued that DOD intended to use "Section 284Â .Â .Â . as a tool to create a contiguous border wall, not to address specific corridors."

Third , the plaintiffs pointed to a neighboring statutory provision requiring an agency receiving DOD support "to reimburse [DOD] for that support," though DOD may waive this requirement if its support (1) "is provided in the normal course of military training or operation," or (2) "results in a benefitÂ .Â .Â . that is substantially equivalent to that which would otherwise obtain from military operations or training." The plaintiffs argued that DOD has breached this requirementâthus rendering Section 284 unavailableâbecause DHS had "requested support on a 'non-reimbursable basis,'" but neither of the two exceptions to the reimbursement requirement was met.

Finally , the plaintiffs argued that DOD's reliance on Section 284 "violates the core principle that executive branch agencies may not mix and match funds from different accounts to exceed the funding limits Congress imposed." In particular, the plaintiffs noted the general rule of appropriations law that "specific appropriations preclude the use of general ones even when the two appropriations come from different accounts." Here, the plaintiffs contended, "Congress ha[d] allocated a specific amount of funding" for border barrier construction, precluding "the government [from] cobbl[ing] together other, more general sources of money to increase funding levels for that same goal."

The Administration responded that the plaintiffs in Sierra Club and California had misconstrued Section 284. The Administration first argued that Section 284 contemplates that DOD may assist with projects other than "small scale construction," as certain provisions in Section 284 "refer toâbut are not limited toâ'small scale' or 'minor' construction." As to the reimbursement requirement, the Administration asserted that Section 284 itself makes the reimbursement requirement inapplicable to DOD's counterdrug activities, providing that "[t]he authority provided in this [S]ection [284] for the support of counterdrug activitiesÂ .Â .Â . by [DOD] isÂ .Â .Â . not subject to the other requirements of this chapter." Next, the Administration contended that its proposed border barrier projects satisfied Section 284's "drug smuggling corridor" requirement, as the proposed project areas were "known to have high rates of drug smuggling between the ports of entry." Finally, the Administration rejected as "without merit" the plaintiffs' argument that its use of Section 284 violated the principle that agencies "must use the [most] specific appropriation to the exclusion of [a] general appropriation." This principle, the Administration contended, applies only when both sources of funding belong to a single agency, not where the appropriations at issue are to different agenciesâthat is, Section 8005 and Section 284 to DOD and $1.375 billion to DHS in its appropriations bill.

However, the district court in Sierra Club and California ultimately did not resolve this issue because it concluded that Section 8005 does not authorize the transfer of funds to be used by DOD under its Section 284 authority. And, with no district court ruling to review, the Ninth Circuit in Sierra Club also did not address this authority.

The district court in El Paso County agreed with the plaintiffs on the basis that Congress's appropriation of funds for border barrier construction is a specific statute that should be given precedence over more general statutes. The court stated that "[a]n appropriation for a specific purpose is exclusive of other appropriations in general terms which might be applicable in the absence of the specific appropriation." Moreover, the court held the use of Section 284 funds for border barrier construction was precluded by Section 739 of the CAA 2019, which prohibits the use of appropriated funds to increase funding for a program, project, or activity proposed in the President's budget request beyond what Congress had provided except through reprogramming or transfer actions pursuant to an appropriations act. Because the President had requested $5.7 billion for FY2019 "for construction of a steel barrier for the Southwest border" but Congress had appropriated $1.375 billion to be made on "construction . . . in the Rio Grande Valley Sector" alone, the court found that the use of Section 284 funds for the border project amounted to an unlawful increase in funding for that activity using appropriated funds. The court noted that Section 284 is not an appropriations statute and its use was thus not eligible for the exception in Section 739 of the CAA 2019 for reprogramming provisions. Nevertheless, because of the Supreme Court's stay of the injunction issued in the Sierra Club case, the court in El Paso declined to enjoin the use of Section 284.

Department of Homeland Security Waiver Authority

The plaintiffs in Sierra Club and California also argued that the Administration's proposed construction of a border barrier was subject to the environmental assessment requirements of NEPA, and that DHS's waiver authority under IIRIRA Â§Â 102 is ineffective to waive NEPA's application for projects funded and undertaken by any other department or agency. The plaintiffs noted that IIRIRA Â§Â 102's waiver authority may be used only for the "construction of the barriers and roads under this section ." Because the Administration was relying on DOD authority and appropriations (i.e., Section 284 and the Drug Interdiction Account) to construct the border barriers, the plaintiffs contended that those projects did not meet the statutory requirement and thus were not covered by an IIRIRA Â§Â 102 waiver. By contrast, the Administration argued that by requiring DHS to take "such actions as may be necessary" to construct additional border barriers, IIRIRA Â§Â 102 authorized DHS to request DOD's assistance, and thus the waiver authority applied.

Ruling for the Administration, the district court in Sierra Club and California held that IIRIRA Â§Â 102's waiver authority extends to border projects undertaken by another agency on behalf of DHS, and thus DHS's waivers rendered NEPA inapplicable to the challenged border barrier projects. "DOD's authority under Section 284 is derivative," the court explained, as it may invoke "its authority [under Section 284] only in response to a request from [another] agency." "Plaintiffs' argument would require the court to conclude that even though it is undisputed that DHS could waive NEPA's requirements if it were paying for the projects out of its own budget, that waiver is inoperative when DOD provides support in response to a request from DHS." The court rejected this approach because it found it "unlikely that Congress intended to impose different NEPA requirements on DOD when it acts in support of DHS's IIRIRA Â§Â 102 authority in response to a direct request under Section 284 than would apply to DHS itself." The court thus ruled that DHS's waivers applied to the challenged border projectsâand all parties agreed that "the waivers, if applicable, would be dispositive of the NEPA claims."

Treasury Forfeiture Fund

The state plaintiffs in California v. Trump also argued that the Administration's allocation of $601 million from the TFF was not authorized by 31 U.S.C. Â§Â 9705, specifically because the construction of border barriers is not an expenditure for "law enforcement activities." In response, the Administration argued that the allocation of payments from the TFF is not reviewable, citing Supreme Court and Ninth Circuit decisions establishing that an agency's determination of how to allocate funds from a lump-sum appropriation is committed to the agency's discretion.

The district court determined that, while the statute provided some discretion for the Secretary of the Treasury to decide what payments should be made from the TFF, the statute provided a "comprehensive list of payments for which TFF" payments must be made. There were therefore sufficient standards for determining whether the Administration had transferred funds in a "statutorily impermissible manner."

Despite finding that the use of the TFF was reviewable, the district court declined to address the merits of the state plaintiffs' arguments because the plaintiffs did not meet the other requirements for a preliminary injunction. Specifically, a preliminary injunction requires the court to find that the moving party will suffer irreparable injury if the injunction is not issued. But the TFF statute requires equitable sharing payments for the current and next fiscal years to be reserved before any unobligated balances were available for Strategic Support expenditures. Because the Secretary of the Treasury had reserved such amounts before the requested transfer to DHS, there was no justification for the "extraordinary" remedy of a preliminary injunction against the TFF transfer.

Subsequently, on August 2, the parties in California stipulated to the voluntary dismissal of the plaintiffs' TFF claim. According to the parties, this dismissal was based on representations by the Administration that (1) its proposed use of $601 million from the TFF would not cause state and local law enforcement agencies to lose any funds they would otherwise receive from the TFF, and (2) "funds from the TFF will not be used to fund or support the construction of border barriers in any areas other than within the Rio Grande Valley and/or Laredo Sectors"âthat is, areas within Texas. The plaintiffs in Sierra Club have not dismissed their TFF claim.

Reprogramming of Funds During National Emergency

Two types of challenges have arisen to the reprogramming of military construction funds for use in border barrier construction. The first challenges the declaration of the national emergency itself, while the second challenges the invocation of authority pursuant to Section 2808.

The El Paso County Challenge to the President's Declaration of a National Emergency

Though the plaintiffs in Sierra Club and California did not challenge the lawfulness of President Trump's declaration of a national emergency under the NEA, the plaintiffs in El Paso County v. Trump did. They have charged that the President's declaration of a national emergency to make use of military construction funds for border barrier construction is unlawful because the situation at the border does not constitute an emergency within the meaning of the NEA. They argue that "emergency" in the NEA must be construed in accordance with its ordinary meaningâ"an unforeseen combination of circumstances requiring immediate action"âor the NEA is an unconstitutional violation of the nondelegation doctrine. Under the nondelegation doctrine, they argue, Congress cannot delegate legislative authority to the executive branch without providing an intelligible principle to guide implementation of a law. Plaintiffs assert that an interpretation of the NEA that leaves unfettered discretion to the President to decide what constitutes a national emergency would be an unconstitutional delegation of congressional authority.

The government responded with its own interpretation of the NEA, one that views Congress's failure to provide a definition for "national emergency" as an indication that Congress intended to avoid constricting presidential power. The government also cites historical examples to demonstrate that national emergency declarations need not address circumstances that are unforeseen. Moreover, it argues that courts have uniformly concluded that presidential declarations of national emergencies present a nonjusticiable political question.

The Supreme Court set forth the factors courts must consider in determining whether a matter raises nonjusticiable political questions in Baker v. Carr . These factors are

a textually demonstrable constitutional commitment of the issue to a coordinate political department; a lack of judicially discoverable and manageable standards for resolving it; the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The Administration argues that the President's national emergency declaration fulfills "most, if not all of these factors." First, the executive branch claims that Congress intentionally chose to leave the determination of a national emergency to the President with oversight by Congress, without setting forth criteria from which a court could judge the President's action. Second, the Administration contends that how to combat illegal immigration is quintessentially "the sort of policy determination of a kind clearly for nonjudicial discretion." Third, it argues that the policy questions regarding the exclusion of aliens are entrusted to the political branches.

The district court did not address the constitutionality of the NEA or the proclamation, but entered summary judgment in favor of the plaintiffs on the basis that the Administration's funding plan for the border, in the court's view, violates the CAA 2019, in particular Section 739.

The Challenge to the Use of Section 2808 Considered in Sierra Club

The Sierra Club plaintiffs did not challenge the lawfulness of President Trump's declaration of a national emergency under the NEA, but they did argue that the Administration's plan to reallocate $3.6 billion in military construction funds was unlawful because 10 U.S.C. Â§Â 2808 does not authorize the construction of border barriers. Though the district court declined to grant a preliminary injunction because the plaintiffs had not demonstrated irreparable harm from the Administration's as-yet undetermined plans to divert the funds, the court did express doubt that the definition of "military construction" in Section 2808 encompassed border barriers.

As noted previously, Section 2808 permits reprogramming of funds for "military construction" necessary to support the use of the Armed Forces in a national emergency. Military construction is defined to "include any construction, development, conversion, or extension of any kind carried out with respect to a military installation," which means a "base, camp, post, station, yard, center, or other activity " under the jurisdiction of the Secretary of a military department. The Administration relied on the term "other activity" and the nonexhaustive word "includes" in the definitions related to "military construction" to argue that Congress had meant the term "military construction" in Section 2808 to be construed broadly. In other words, the government interpreted the definition of military construction to include any sort of construction related to a military installation. This would include any "other activity under the jurisdiction of the Secretary of a military department," which could conceivably include border barriers constructed by DOD.

The court in Sierra Club rejected that view, explaining that "the critical language of Section 2801(a) is not the word 'includes,' it is the condition 'with respect to a military installation.'" Further, the court rebuffed the Administration's reliance on the term "other activity." That language, the court explained, is not unbounded but should be interpreted in context of the words that immediately precede itâ"a base, camp, post, station, yard, [and] center." Applying the rule of statutory interpretation that "a word is known by the company it keeps," the court concluded that "other activity" refers to similar discrete and traditional military locations. The court did "not readily see how the U.S.-Mexico border could fit this bill."

The court likewise employed the rule of interpretation that "[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." The court explained that if Congress "hadÂ . . . intended for 'other activity' .Â .Â . to be so broad as to transform literally any activity conducted by a Secretary of a military department into a 'military installation,' there would have been no reason to include a list of specific, discrete military locations."

Thus, viewing the term "in context and with an eye toward the overall statutory scheme," the court could not conclude that "Congress ever contemplated that 'other activity' has such an unbounded reading that it would authorize Defendants to invoke Section 2808 to build a barrier on the southern border." However, because the issue was not yet ripe for decision, the district court did not enjoin the use of military construction funds for border barrier construction. And because the district court did not rule on this issue the Ninth Circuit did not address it either.

On December 11, 2019, however, the district court determined that the government's formulation of plans to allocate the military construction funds for 11 border barrier projects made the issue ripe for decision in both the California and Sierra Club cases. Although the court declined to take on the question of whether an emergency requiring the use of troops in fact exists, it found the question of whether the specific projects are "military construction projects" that are "necessary to support such use of the armed forces" to be suitable for adjudication.

With respect to the first issue, the court reaffirmed its earlier assessment based on the statutory definitions that such projects have insufficient connection with any military installation to be permissible military construction projects, notwithstanding the government's argument that its taking of administrative jurisdiction over the land for them and assigning it to Fort Bliss in Texas created such a connection. The court was

not persuaded that Congress intended "military construction" to have no stronger connection to a military installation than Defendants' own administrative convenience. If this were true, Defendants could redirect billions of dollars from projects to which Congress appropriated funds to projects of Defendants' own choosing, all without congressional approval (and in fact directly contrary to Congress' decision not to fund these projects). Elevating form over substance in this way risks "the Executive [] aggrandizing its power at the expense of [Congress]."

Addressing the government's contention that "installation" was meant to be read broadly in the emergency context, the court pointed out that the aim of the NEA was to narrow executive emergency power, and that "Section 2808 has rarely been used, and never to fund projects for which Congress withheld appropriations." The court therefore found that the border barrier construction projects, with the exception of two projects on the Barry M. Goldwater range, are not "'carried out with respect to a military installation' within the meaning of Section 2808."

The court next addressed whether the 11 barrier projects are "necessary to support the use of the armed forces," and found the government's arguments unconvincing. In the government's view, these projects will support the armed forces because they "allow DoD to provide support to DHS more efficiently and effectively," and could "ultimately reduce the demand for DoD support at the southern border over time." The court rejoined:

Defendants do not explain how the projects are necessary to support the use of the armed forces while simultaneously obviating the need for those forces. This appears to defy the purpose of Section 2808, which specifically refers to construction that is necessary to support the use of the armed forces, not to construction that the armed forces will not use once constructed. Again, Defendants' argument proves too much. Under their theory, any construction could be converted into military constructionâand funded through Section 2808âsimply by sending armed forces temporarily to provide logistical support to a civilian agency during construction.

The court concluded that there was "simply nothing in the record . . . indicating that the eleven border barrier projectsâhowever helpfulâare necessary to support the use of the armed forces." The court entered a permanent injunction against the 11 proposed border construction projects, but stayed the injunction pending appeal. The government has appealed.

The district court in El Paso County rejected the use of Section 2808 for border barrier construction not because of the definitions at issue, but because the court concluded the provision is not an appropriations measure and therefore cannot be used to circumvent Section 739 of the CAA 2019, for the same reasons that the judge rejected the use of Section 284.

Procedural Barriers to Lawsuits Challenging Border Barrier Funding

Aside from the merits of the Trump Administration's funding initiatives, the various legal challenges brought by states, private individuals, and the House of Representatives also involve two threshold requirements that must be satisfied by any party seeking to maintain a lawsuit in federal court. A plaintiff must first show that he has suffered a "concrete" and "particularized" injury that was caused by the challenged government actionâthe so-called "standing" requirement. A plaintiff must also have a legal right (i.e., a "cause of action") to enforce whatever provision of federal law is at issue, and he must also fall within the "zone of interests" meant to be protected by that law.

These procedural requirements have presented obstacles to those opposing the Trump Administration's funding initiatives. In U.S. House of Representatives v. Mnuchin , the U.S. District Court for the District of Columbia held that the House of Representatives lacked standing to challenge the Trump Administration's actions. And though the district court in Sierra Club and California (and the Ninth Circuit in Sierra Club ) concluded that the plaintiffs in those casesânonprofit organizations and state plaintiffsâsatisfied these procedural requirements, the Supreme Court ultimately stayed the district court's injunction because "the Government ha[d] made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting [Secretary of Defense's] compliance with Section 8005."

In staying the permanent injunction in the Sierra Club litigation, the Supreme Court cleared the way for the Trump Administration to use funds transferred under Section 8005 to construct border barriers while the Ninth Circuit considers the Administration's appeal of the permanent injunction. However, the Court's order did not address the merits of Section 8005 or any of the other statutory authorities at issue in that litigation.

Standing

Article III of the U.S. Constitution "limits federal courts' jurisdiction to certain 'Cases' and 'Controversies.'" This limitation has been interpreted to require that every person or entity bringing a claim in federal court must establish "standing" to sueâthat is, establish that he has suffered an injury that (1) is "concrete, particularized, and actual or imminent"; (2) "fairly traceable to the challenged action"; and (3) would be "redressable by a favorable ruling." The Supreme Court has explained that this standing requirement "is built on separation-of-powers principles" and "serves to prevent the judicial process from being used to usurp the powers of the political branches." Separation-of-powers concerns are heightened where a court is being asked to deem the actions of one of the other two branches of government unconstitutional, and especially so when a suit involves a dispute between the other two branches of the federal government.

The plaintiffs challenging the Trump Administration's funding initiatives argued that they satisfied Article III's standing requirement. In Sierra Club and California , the Trump Administration conceded that constructing border barriers would cause a sufficient injury for Article III purposes, but it argued that this injury did not confer standing to challenge the Administration's use of Section 8005 to transfer funds. Rejecting that argument, the district court in Sierra Club and California held that the plaintiffs had established an "actual or imminent" injury that was "fairly traceable" to the Trump Administration's proposed transfer of money. The court explained that the supposedly distinct actions of (1) transferring funds and (2) using those transferred funds to construct border barriers were both part of a single objectiveâthe construction of border barriers. And because a sufficiently concrete injury followed from the attainment of that objective, the plaintiffs had standing to challenge government action that was part of the chain of events leading to the injury. Similarly, in El Paso County , the court held that the plaintiffs' reputational and economic injuries resulting directly from the border barrier construction were sufficient for Article III purposes.

By contrast, the federal district court presiding over the U.S. House of Representatives' lawsuit held that the House of Representatives lacks standing because the House's asserted injuryâ"an institutional injury to [Congress's] Appropriations power" âwas not the kind of injury that supports Article III standing. The district court relied on the Supreme Court's decision in Raines v. Byrd , which held that Members of Congress lacked standing to challenge the constitutionality of the Line Item Veto Act. While Article III requires a "particularized" injuryâthat is, an injury that "affect[s] the plaintiff in a personal .Â .Â . way" âthe Court in Raines determined that the Members of Congress had asserted "a type of institutional injury (the diminution of legislative power)" that did not belong to the Members individually. As a result, those Members were unable to show "a sufficient[ly] 'personal stake' in th[e] dispute." Similarly, the district court in Mnuchin noted that the appropriations power is held by Congress as a whole , not by each chamber of Congress separately. Moreover, as had the Court in Raines , the Mnuchin court supported its conclusion by noting the absence of historical examples of federal courts being asked to adjudicate lawsuits "brought on the basis of claimed injury of official authority or power."

The U.S. House of Representatives appealed the district court's decision to the D.C. Circuit, but the court of appeals has not yet issued a decision.

Cause of Action and Zone of Interests

Even if a plaintiff establishes standing, the party must also be able to identify a source of law that authorizes the party to sueâalso known as a "cause of action." In some instances, Congress has included a cause of action within a federal law to enable those injured by a violation of that law to obtain judicial relief. Separately, the Administrative Procedure Act contains a more general cause of action, authorizing "person[s] suffering legal wrong because of agency action" to challenge that action in federal court. Finally, even absent a statutory cause of action, a plaintiff may still be authorized to sue based on "[t]he power of federal courts of equity to enjoin unlawful executive action." Moreover, in order to show that a particular cause of action applies to him, a plaintiff must (generally) show that "[t]he interest he asserts [is] 'arguably within the zone of interests to be protected or regulated by the statute' that he says was violated." This "zone of interests" requirement "applies to all statutorily created causes of action," and its purpose is to "foreclose[] suit .Â .Â . when a plaintiff's 'interests are so marginally related to or inconsistent with the purposes implicit within the statute that it cannot reasonably be assumed that Congress intended to permit the suit.'"

Before concluding that the Trump Administration cannot use Section 8005 to transfer funds for border barrier construction, the district court in Sierra Club and California (and the Ninth Circuit on appeal in Sierra Club ) concluded that the plaintiffs in these cases had satisfied these threshold procedural requirements. The court ruled that the plaintiffs' ability to bring their suits was based on the federal courts' equitable power to enjoin unlawful executive action. In so doing, the district court also determined that the "zone of interests" requirement does not apply to claims resting on an equitable (as opposed to a statutory) cause of action. Reviewing the district court's ruling in Sierra Club , the Ninth Circuit agreed that the plaintiffs had an equitable cause of action to challenge the lawfulness of executive action, and determined that they also had a cause of action under the Administrative Procedure Act. The Ninth Circuit expressed "doubt[s]" that the zone-of-interests test applied to equity-based claims, but determined that the plaintiffs satisfied any zone-of-interest requirement that might apply to either of these causes of action.

The Supreme Court's Order

Though the district court and the Ninth Circuit concluded that the plaintiffs in Sierra Club and California were proper parties to challenge the Trump Administration's intended use of Section 8005, the Supreme Court issued an order staying the district court's injunction.

After the Ninth Circuit declined to stay the district court's permanent injunction, the Trump Administration asked the Supreme Court to do so, and on July 26, 2019, the Supreme Court issued an order staying the permanent injunction. Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh voted to grant the stay in full, while Justice Breyer indicated that he would have granted the stay in part. The Court's order stated that "[a]mong the reasons" for staying the injunction, "the Government ha[d] made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting [Secretary of Defense's] compliance with Section 8005." The Court's order further stated that the stay would continue "pending disposition of the [Administration's] appeal in the [Ninth Circuit] and disposition of the Government's petition for a writ of certiorari," and will "terminate automatically" upon the Court's denial of a petition for certiorari submitted by the Administration.

Justices Ginsburg, Sotomayor, and Kagan voted to deny the request for a stay. Justice Breyer explained that he would have "grant[ed] the Government's application to stay the injunction only to the extent that the injunction prevents the Government from finalizing the contracts [for border barrier construction] or taking other preparatory administrative action," but would have left the injunction "in place insofar as it precludes the Government from disbursing funds or beginning construction." Justice Breyer explained that granting a stay of the injunction in full would irreparably harm the plaintiffs, while denying a stay of the injunction would irreparably harm the government because all funds not obligated by the end of the fiscal year would become unavailable. According to Justice Breyer, staying the injunction to allow the Trump Administration to "finaliz[e] contracts or tak[e] other preparatory administration action" for constructing border barriers would "avoid harm to both the Government and [the plaintiffs] while allowing the litigation to proceed."

By staying the district court's permanent injunction, the Supreme Court enabled the Trump Administration to use funds transferred under Section 8005 to construct border barriers, at least during the pendency of the litigation in the Sierra Club and California cases. However, the Court's order did not address the merits of Section 8005 or any of the other statutory authorities at issue in that litigation. Moreover, the Court's order makes clear that it applies only at "this stage" of the litigation and therefore is not binding on the Ninth Circuit as it considers the Administration's appeal of the permanent injunction. As a result, the Court's order does not prevent the Ninth Circuit in Sierra Club âwhich is currently considering the Trump Administration's appeal from the permanent injunctionâfrom concluding that the Sierra Club plaintiffs have a cause of action to enforce Section 8005. Nor does it prevent the district court in Sierra Club and California from ruling on the other funding authorities (including Section 284) and, perhaps, enjoining the Trump Administration from using those authorities to construct border barriers.

Considerations for Congress

Subsequent Legislation

The Supreme Court has said that the Appropriation Clause's "fundamental and comprehensive purpose .Â .Â . is to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents or the individual pleas of litigants." Consequently, Congress has the power, subject to presidential veto, to enact legislation either appropriating more funds for border barrier construction, to limit the extent that the Administration's proposed funding sources may be used for border barrier construction, or to prohibit the Administration from obtaining additional funding through existing mechanisms.

As part of the FY2020 appropriations process, the 116th Congress had considered provisions limiting the expenditure of annually appropriated funds for border barrier construction, though none have yet been enacted. For example, Section 8127 of Division C of H.R. 2740 , the DOD Appropriations Act for FY2020, as passed by the House on June 19, 2019, would generally have provided that "None of the funds appropriated or otherwise made available by this Act or any prior Department of Defense appropriations Acts may be used to construct a wall, fence, border barriers, or border security infrastructure along the southern land border of the United States." If this provision had been enacted it would likely have rendered the litigation over the Northern District of California's injunction moot, as the use of FY2019 funds for the purposes sought by the Administration would be expressly prohibited. Separately, the House-passed H.R. 2740 would also have limited the general transfer authority under either Sections 8005 or 9002 from being used to transfer funds into or out of the DOD Drug Interdiction Account, and the bill would reduce the overall amount of general transfer authority available under Section 8005 from $4 billion to $1 billion. The initial House-passed National Defense Authorization Act for FY2020 included similar limitations. None of these limitations were included as part of the enacted Consolidated Appropriations Act, 2020, or the enacted FY2020 National Defense Authorization Act.

In February 2019, the Administration requested $5 billion in border barrier funding for FY2020 to support the construction of approximately 206 miles of border barrier system. The House Appropriations Committee responded to this by recommending no funding for border barriers in H.R. 3931 âits FY2020 DHS Appropriations bill. In addition, the House Appropriations Committee-reported bill would have restricted the ability to transfer or reprogram funds for border barrier construction. That bill stated in Section 227 that, aside from appropriations provided for such purpose in the last three fiscal years, "no Federal funds may be used for the construction of physical barriers along the southern land border of the United States during fiscal year 2020." Furthermore, Section 536 of that bill proposed to rescind $601 million from funding appropriated for border barriers in FY2019 âthus reducing the FY2019 funding available by the amount pledged from the Treasury Forfeiture Fund. On September 26, 2019, the Senate Appropriations Committee reported its annual appropriations act for DHS for FY2020, which would have provided $5 billion for additional new miles of pedestrian fencing. As part of the Consolidated Appropriations Act, 2020, Congress provided $1.375 billion for "construction of barrier system along the southwest border."

Comptroller General Opinion

Committees and Members of Congress have also requested legal opinions from the Comptroller General of the United States, head of the Government Accountability Office (GAO), regarding questions of appropriations law and executive agencies' compliance with such laws. Though GAO's decisions are not binding on federal courts, those decisions are sometimes given consideration by reviewing courts because of GAO's expertise in appropriations law and its role as the "auditing agent of Congress."

On September 5, 2019, in response to such a request from Senate Appropriations Committee Vice Chairman Leahy, Subcommittee on Defense Vice Chairman Durbin, and Subcommittee on Military Construction, Veterans Affairs, and Related Agencies Ranking Member Schatz, the Comptroller General issued a legal opinion concluding that the Administration's use of Section 8005 of the 2019 DOD Appropriations Act and 10 U.S.C. Â§Â 284 to fund border barrier construction is lawful. Like the Northern District of California and the Ninth Circuit decisions, GAO's analysis of the transfer authority focused primarily on (1) whether the use of the funds for border barrier construction was an unforeseen military requirement, and (2) whether Congress had denied funds for the item to which funds were being transferred.

GAO agreed with the Administration's argument that the relevant "military requirement" for purposes of Section 8005 was the construction of border barriers by DOD pursuant to its Section 284 authority, not the construction of border barriers generally. According to GAO, this military requirement was "unforeseen" because it was not until DHS requested assistance from DOD to construct border barriersâwell after the President's budget requestsâthat the need for DOD assistance became known. Consequently, GAO concluded that DHS's request for assistance constituted an unforeseen military requirement that made available the transfer authority under Section 8005.

GAO next addressed whether the construction of border fencing had been "denied by the Congress." GAO began by noting that this language was not defined by Section 8005 or elsewhere in the FY2019 DOD Appropriations Act. Relying on the "ordinary meaning" of the term "deny" as well as previous decisions by the Comptroller General, GAO concluded that a denial of funds for purposes of Section 8005 required that Congress "actively refuse" funds for an item, rather than merely fail to appropriate the full amount requested for that item. Applying this standard, GAO asserted that it could not identify any statutory provision that prohibited DOD from using funds to build border barriers pursuant to its Section 284 authority. Accordingly, GAO agreed with the Administration that Congress had not denied funds for that purpose, within the meaning of Section 8005.