Petition for Writ of Certiorari — Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Sierra Club, et al.

Supreme Court briefAug 7, 2020

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In the Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., PETITIONERS

SIERRA CLUB, ET AL.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., PETITIONERS

STATE OF CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

HASHIM M. MOOPPAN

Counselor to the Solicitor

General

SOPAN JOSHI

Senior Counsel to the

Assistant Attorney General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

H. THOMAS BYRON III

ANNE MURPHY

COURTNEY L. DIXON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

In Section 8005 of the Department of Defense Appropriations Act, 2019, Pub. L. No. 115-245, Div. A,

Tit. VIII, 132 Stat. 2999, Congress authorized the Secretary of Defense to transfer certain appropriated

funds between Department of Defense (DoD) appropriations accounts “[u]pon determination by the Secretary

* * * that such action is necessary in the national interest.” Section 8005 contains a proviso stating “[t]hat

such authority to transfer may not be used unless for

higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are

requested has been denied by the Congress.” Ibid. In

2019, the Acting Secretary of Defense transferred approximately $2.5 billion pursuant to Section 8005 and

another similar provision to make funds available for

DoD to respond to a request from the Department of

Homeland Security for counterdrug assistance under

10 U.S.C. 284, including in the form of construction of

fences along the southern border of the United States.

The questions presented are as follows:

1. Whether respondents have a cognizable cause of

action to obtain review of the Acting Secretary’s compliance with Section 8005’s proviso in transferring funds

internally between DoD appropriations accounts.

2. Whether the Acting Secretary exceeded his statutory authority under Section 8005 in making the transfers at issue.

(I)

PARTIES TO THE PROCEEDING

In Sierra Club, petitioners (defendants-appellants

below) are Donald J. Trump, in his official capacity as

President of the United States; Steven T. Mnuchin, in

his official capacity as Secretary of the Treasury; Mark

T. Esper, in his official capacity as Secretary of Defense; and Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security. Respondents

(plaintiffs-appellees below) are the Sierra Club and the

Southern Border Communities Coalition.

In California, petitioners (defendants-appellants

and cross-appellees below) are Donald J. Trump, in his

official capacity as President of the United States; Steven T. Mnuchin, in his official capacity as Secretary of

the Treasury; Mark T. Esper, in his official capacity as

Secretary of Defense; David Bernhardt, in his official

capacity as Secretary of the Interior; Chad F. Wolf, in

his official capacity as Acting Secretary of Homeland

Security; Ryan D. McCarthy, in his official capacity as

Secretary of the Army; Kenneth J. Braithwaite, in his

official capacity as Secretary of the Navy; Barbara M.

Barrett, in her official capacity as Secretary of the Air

Force; the United States; the Department of the Treasury; the Department of Defense; the Department of the

Interior; and the Department of Homeland Security. *

Respondents (plaintiffs-appellees and, with respect to

California and New Mexico, cross-appellants below) are

the State of California; the State of Colorado; the State

of Connecticut; the State of Delaware; the State of Hawaii; the State of Illinois; the State of Maine; the State

of Maryland; the State of Massachusetts; Dana Nessel,

Secretaries Braithwaite and Barrett are substituted as parties

for their predecessors in office pursuant to Rule 35.3 of the Rules of

this Court.

(II)

III

in her official capacity as Attorney General of Michigan;

the State of Minnesota; the State of New Jersey; the

State of New Mexico; the State of New York; the State

of Nevada; the State of Oregon; the State of Rhode Island; the State of Vermont; the Commonwealth of Virginia; and the State of Wisconsin.

RELATED PROCEEDINGS

United States District Court (N.D. Cal.):

Sierra Club v. Trump, No. 19-cv-892 (May 24, 2019)

(preliminary injunction)

Sierra Club v. Trump, No. 19-cv-892 (June 28, 2019)

(partial final judgment)

California v. Trump, No. 19-cv-872 (June 28, 2019)

(partial final judgment)

California v. Trump, Nos. 19-cv-872 and 19-cv-892

(Dec. 11, 2019) (related litigation)

United States Court of Appeals (9th Cir.):

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

(July 3, 2019) (denying stay pending appeal)

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

(June 26, 2020) (affirming on merits)

California v. Trump, Nos. 19-16299 and 19-16336

(June 26, 2020) (affirming on merits)

California v. Trump, Nos. 19-17501 and 20-15044

(argued Mar. 10, 2020) (related litigation)

Supreme Court of the United States:

Trump v. Sierra Club, No. 19A60 (July 26, 2019)

(granting stay pending appeal)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 2

Jurisdiction .................................................................................... 2

Constitutional and statutory provisions involved...................... 2

Statement:

A. Statutory background ............................................... 4

B. The challenged transfers .......................................... 7

C. Prior proceedings ...................................................... 8

1. Sierra Club v. Trump......................................... 9

2. California v. Trump ......................................... 13

Reasons for granting the petition ............................................. 16

I. The decisions below are incorrect ................................ 18

A. Respondents lack any cause of action to obtain

judicial review of whether the Acting

Secretary exceeded his transfer authority

under Section 8005 .................................................. 18

B. The Acting Secretary fully complied with

Section 8005 ............................................................. 29

II. The questions presented warrant review.................... 32

Conclusion ................................................................................... 35

Appendix A — Court of appeals opinion (June 26, 2020) ..... 1a

Appendix B — Court of appeals opinion (June 26, 2020) ... 78a

Appendix C — District court order (June 28, 2019) ......... 174a

Appendix D — District court order (June 28, 2019) ......... 189a

Appendix E — Court of appeals order (July 15, 2019) ..... 204a

Appendix F — Court of appeals order (July 3, 2019) ....... 206a

Appendix G — Court of appeals order (July 3, 2019) ....... 300a

Appendix H — District court order denying motion to

stay preliminary injunction

(May 30, 2019) ............................................ 302a

Appendix I — District court order granting in part and

denying in part plaintiffs’ motion for

preliminary injunction (May 24, 2019) ...... 305a

(V)

Table of Contents—Continued:

Page

Appendix J — District court order denying plaintiffs’

motion for preliminary injunction

(May 24, 2019) ............................................. 386a

Appendix K — Constitutional and statutory provisions .... 438a

TABLE OF AUTHORITIES

Cases:

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015).......................................16, 19, 27, 28, 33

Bennett v. Spear, 520 U.S. 154 (1997)............................ 27, 29

Boston Stock Exch. v. State Tax Comm’n,

429 U.S. 318 (1977).............................................................. 28

Bowsher v. Synar, 478 U.S. 714 (1986)................................ 17

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .......... 22

Clarke v. Securities Indus. Ass’n, 479 U.S. 388

(1987) .............................................................................. 19, 28

Dalton v. Specter, 511 U.S. 462 (1994)..................... 16, 25, 26

Department of the Navy v. Egan, 484 U.S. 518

(1988) .............................................................................. 17, 34

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)......................... 28

Grupo Mexicano de Desarrollo, S. A. v. Alliance

Bond Fund, Inc., 527 U.S. 308 (1999) ............................... 27

Hernandez v. Mesa, 140 S. Ct. 735 (2020) .................... 28, 34

Lexmark Int’l , Inc. v. Static Control Components,

Inc., 572 U.S. 118 (2014) ......................................... 18, 19, 27

Lujan v. National Wildlife Fed’n, 497 U.S. 871

(1990) .................................................................................... 29

Maryland v. King, 567 U.S. 1301 (2012) ....................... 17, 32

Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 567 U.S. 209 (2012) .......................... 19

VII

Cases—Continued:

Page

Thompson v. North Am. Stainless, LP, 562 U.S. 170

(2011) .............................................................................. 18, 28

United States v. Richardson, 418 U.S. 166 (1974) ............. 22

Valley Forge Christian Coll. v. Americans United

for Separation of Church & State, Inc., 454 U.S.

464 (1982) ............................................................................. 28

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952) ............................................................................. 25

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ........................ 21, 28

Constitution, statutes, and rules:

U.S. Const.:

Art. I:

§ 8, Cl. 3 (Commerce Clause) ................................... 28

Appropriations Clause ..................................... passim

§ 9, Cl. 7........................................3, 10, 25, 29, 438a

Art. II ......................................................................... 21, 23

Art. VI, Cl. 2 (Supremacy Clause) ................................. 27

Amend. I (Establishment Clause) ................................. 28

Administrative Procedure Act, 5 U.S.C. 701

et seq. ...................................................................................... 9

5 U.S.C. 702 ...................................................................... 19

Department of Defense Appropriations Act, 2019,

Pub. L. No. 115-245, Div. A:

Tit. I, 132 Stat. 2982 .......................................................... 5

Tit. VI, 132 Stat. 2997 ....................................................... 6

Tit. VIII, § 8005, 132 Stat. 2999 ................... passim, 447a

Tit. IX, § 9002, 132 Stat. 3042 ............................ 6, 8, 449a

Department of Homeland Security Appropriations

Act, 2019, Pub. L. No. 116-6, Div. A, Tit. II,

§ 230, 133 Stat. 28 ............................................................... 10

VIII

Statutes and rules—Continued:

Page

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C,

§ 102(c), 110 Stat. 3009-555 ................................................ 13

National Emergencies Act, 50 U.S.C. 1601 et seq. ............... 7

10 U.S.C. 284 ....................................... 4, 6, 10, 15, 31, 32, 438a

10 U.S.C. 284(a) ............................................................. 7, 438a

10 U.S.C. 284(a)(1)(A) ................................................... 7, 438a

10 U.S.C. 284(b)(7) ............................................... 4, 7, 14, 441a

10 U.S.C. 2214(a) ..................................................................... 5

Sup. Ct. R.:

Rule 10(c) ......................................................................... 33

Rule 12.4 ............................................................................. 1

Miscellaneous:

Michelle D. Christensen, Cong. Research Serv.,

R43098, Transfer and Reprogramming of

Appropriations (June 6, 2013) .......................................... 33

Department of Defense—Availability of

Appropriations for Border Fence Construction,

B-330862, 2019 WL 4200949 (Comp. Gen.

Sept. 5, 2019) ..................................................... 17, 30, 31, 32

84 Fed. Reg. 4949 (Feb. 20, 2019) .......................................... 7

Gov’t Accountability Office, Principles of Federal

Appropriations Law (4th ed. rev. 2016)................. 6, 22, 23

H.R. Conf. Rep. No. 952, 115th Cong., 2d Sess.

(2018) ...................................................................................... 5

H.R. Rep. No. 662, 93d Cong., 1st Sess. (1973) ............ 21, 31

Memorandum on Securing the Southern Border of

the United States, 2018 Daily Comp. Pres. Doc.

(Apr. 4, 2018) ......................................................................... 7

Miscellaneous—Continued:

Page

Office of Mgmt. & Budget, An American Budget:

FY2019: Appendix (2018), https://www.

whitehouse.gov/wp-content/uploads/2018/02/

appendix-fy2019.pdf ............................................................. 5

James V. Saturno et al., Cong. Research Serv.,

R42388, The Congressional Appropriations

Process: An Introduction (updated Nov. 30, 2016).......... 5

In the Supreme Court of the United States

No.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., PETITIONERS

SIERRA CLUB, ET AL.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., PETITIONERS

STATE OF CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of Donald J.

Trump, President of the United States, et al., respectfully petitions for a writ of certiorari to review the judgments of the United States Court of Appeals for the

Ninth Circuit in these related cases. The government

is filing a “single petition for a writ of certiorari” because the “judgments * * * sought to be reviewed” are

from “the same court and involve identical or closely related questions.” Sup. Ct. R. 12.4.

(1)

OPINIONS BELOW

In Sierra Club, the opinion of the court of appeals

(App., infra, 1a-77a) is reported at 963 F.3d 874. An

earlier order of the court of appeals (App., infra, 206a299a) is reported at 929 F.3d 670. The order of the district court (App., infra, 174a-188a) is unpublished but

available at 2019 WL 2715422. Earlier orders of the district court (App., infra, 302a-304a, 305a-385a) are available or reported at, respectively, 2019 WL 2305341 and

379 F. Supp. 3d 883.

In California, the opinion of the court of appeals

(App., infra, 78a-173a) is reported at 963 F.3d 926. The

order of the district court (App., infra, 189a-203a) is unpublished but available at 2019 WL 2715421. An earlier

order of the district court (App., infra, 386a-437a) is reported at 379 F. Supp. 3d 928.

JURISDICTION

The judgments of the court of appeals were entered

on June 26, 2020. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 8005 of the Department of Defense Appropriations Act, 2019 (DoD Appropriations Act), Pub. L.

No. 115-245, Div. A, Tit. VIII, 132 Stat. 2999, provides:

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 func-

tions (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 same time period, as the appropriation or fund to which transferred: 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:

Provided further, That the Secretary of Defense

shall notify the Congress promptly of all transfers

made pursuant to this authority or any other authority in this Act: Provided further, That no part of the

funds in this Act shall be available to prepare or present a request to the Committees on Appropriations

for reprogramming of funds, 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 reprogramming is requested has been denied by the Congress:

Provided further, That a request for multiple reprogrammings of funds using authority provided in this

section shall be made prior to June 30, 2019: Provided further, That transfers among military personnel appropriations shall not be taken into account for

purposes of the limitation on the amount of funds

that may be transferred under this section.

Ibid.

The Appropriations Clause of the U.S. Constitution

provides: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by

Law.” U.S. Const. Art. I, § 9, Cl. 7. Other pertinent

provisions are reproduced in the appendix to this petition. App., infra, 438a-449a.

STATEMENT

In 2019, the Acting Secretary of Defense transferred

certain already appropriated funds between Department of Defense (DoD) appropriations accounts in order to respond to a request from the Department of

Homeland Security (DHS) for counterdrug assistance

at the southern border of the United States pursuant to

10 U.S.C. 284. DoD used the transferred funds to undertake the construction of more than 100 miles of fencing, along with roads and lighting. See 10 U.S.C.

284(b)(7). The district court held that the Acting Secretary had exceeded the scope of his authority to transfer

funds, and that respondents in these two companion

cases—a group of States and two environmental

groups—are proper parties to enforce the limits on that

authority. In the environmental groups’ case, the court

enjoined DoD and DHS from using the transferred

funds to “construct a border barrier.” App., infra, 188a.

This Court stayed that injunction, holding that “the

Government has made a sufficient showing at this stage

that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with” the

transfer statute. 140 S. Ct. 1, 1. Yet a divided panel of

the Ninth Circuit concluded otherwise and affirmed in

both cases. App., infra, 1a-77a (Sierra Club); id. at 78a173a (California).

A. Statutory Background

In August 2018, Congress enacted the DoD Appropriations Act, Pub. L. No. 115-245, Div. A, Tit. VIII, 132

Stat. 2999, to fund DoD’s operations for the 2019 fiscal

year. Like most annual appropriations laws, the DoD

Appropriations Act directs funds to discrete, named accounts to be used for specified purposes. See James V.

Saturno et al., Cong. Research Serv., R42388, The Congressional Appropriations Process: An Introduction

12 (updated Nov. 30, 2016) (Appropriations Process).

Thus, for example, Congress appropriated approximately $42 billion to an account entitled “Military Personnel, Army” to be used “[f ]or pay * * * for members

of the Army.” 132 Stat. 2982 (capitalization altered).

During the annual budgeting process, DoD requests

appropriations for each such account by describing the

amounts it will need to execute the various programs,

projects, and activities funded by the account. See, e.g.,

Office of Mgmt. & Budget, An American Budget: FY

2019: Appendix 213-214 (2018) (DoD’s request for appropriations to “Military Personnel, Army” account for

fiscal year 2019). When it submits a budget, DoD identifies items of expenditure to be paid from each

account—for example, “Pay and Allowances of Officers”

as an item to be funded from the military personnel account. Id. at 214. Congress may require or prohibit the

use of funds for particular proposed items; legislators

also commonly use committee reports to memorialize

their expectations about how appropriated funds will be

used for particular items in DoD’s budget. See, e.g.,

H.R. Conf. Rep. No. 952, 115th Cong., 2d Sess. 161-164

(2018) (“Military Personnel, Army” example); cf. Appropriations Process 12.

DoD’s budget requests are based on estimates, and

its actual needs may change during the ensuing fiscal

year for a variety of reasons, from price fluctuations to

new national-security threats. To address that problem, Congress often authorizes DoD to “transfer

amounts provided in appropriation Acts,” 10 U.S.C.

2214(a)—i.e., from one account to another. See Gov’t

Accountability Office, Principles of Federal Appropriations Law 2-38 (4th ed. rev. 2016) (GAO Red Book) (explaining transfers and noting that “agencies have a legitimate need for a certain amount of flexibility”).

Section 8005 of the DoD Appropriations Act confers

transfer authority for the funds appropriated by that

Act. It authorizes the Secretary of Defense, “[u]pon determination * * * that such action is necessary in the

national interest,” to transfer up to $4 billion between

appropriations made by the DoD Appropriations Act.

132 Stat. 2999. Section 8005 contains a proviso, however, stating that funds may not be transferred under

that provision “unless for higher priority items, based

on unforeseen military requirements,” and “in no case

where the item for which funds are requested has been

denied by the Congress.” Ibid. Congress provided additional transfer authority in Section 9002, which permits the Secretary to “transfer up to $2,000,000,000 between the appropriations or funds made available” in

Title IX of the DoD Appropriations Act. 132 Stat. 3042.

That authority is “subject to the same terms and conditions as the authority provided in section 8005.” Ibid.

The DoD Appropriations Act also appropriated

funds to an account for “Drug Interdiction and CounterDrug Activities, Defense.” 132 Stat. 2997 (capitalization

altered). The funds appropriated to that account are

available “[f ]or drug interdiction and counter-drug activities of the Department of Defense,” ibid., including

activities undertaken pursuant to 10 U.S.C. 284. Under

that statute, the “Secretary of Defense may provide

support for the counterdrug activities * * * of any

other department or agency of the Federal Government,” if “such support is requested * * * by the official

who has responsibility for the counterdrug activities.”

10 U.S.C. 284(a)(1)(A). As relevant here, DoD may provide assistance in the form of “[c]onstruction of roads

and fences and installation of lighting to block drug

smuggling corridors across international boundaries of

the United States.” 10 U.S.C. 284(b)(7).

B. The Challenged Transfers

On February 15, 2019, the President declared a national emergency on the southern border of the United

States under the National Emergencies Act, 50 U.S.C.

1601 et seq., based in part on his determination that the

border remains “a major entry point” for “illicit narcotics.” 84 Fed. Reg. 4949, 4949 (Feb. 20, 2019); see Memorandum on Securing the Southern Border of the

United States, 2018 Daily Comp. Pres. Doc. 2 (Apr. 4,

2018) (directing DoD to “support [DHS] in securing the

southern border and taking other necessary actions to

stop the flow of deadly drugs”). On February 25, 2019,

DHS submitted a request for DoD’s assistance, under

10 U.S.C. 284(a), “with the construction of fences[,]

roads, and lighting” to block drug-smuggling corridors

on the southern border. C.A. E.R. 272.

The Acting Secretary of Defense approved DHS’s

request for assistance under Section 284 with respect to

seven projects in Arizona, California, and New Mexico.

App., infra, 83a; cf. C.A. E.R. 219. The projects are located in sectors of the border where, in the 2018 fiscal

year, DHS made hundreds of drug-related arrests and

seized thousands of pounds of illegal narcotics. See,

e.g., C.A. E.R. 274 (Yuma Sector). The projects consist

in part of replacing existing pedestrian fencing or vehicle barriers that had proven to be ineffective with 30foot-high steel bollard fencing. See ibid.; id. at 278-279,

294-298.

To ensure adequate funds to complete the first

tranche of approved projects, the Acting Secretary invoked his authority under Section 8005 of the DoD Appropriations Act to transfer $1 billion of funds from two

personnel accounts to the appropriations account for

“Drug Interdiction and Counter-Drug Activities, Defense.” C.A. E.R. 285. The Acting Secretary determined that the transfer satisfied Section 8005 because

it would be “in the national interest” and “[t]he items to

be funded * * * are a higher priority than the item for

which funds and authority are transferred (excess

Army military personnel funds).” Ibid. The Acting Secretary also explained that, for purposes of Section

8005’s proviso, there was an “unforeseen military requirement” because DoD’s need to provide support to

DHS was “not known at the time of ” DoD’s earlier

budget requests to Congress; he further explained that

Congress had not “denied” any request for DoD to provide this assistance to DHS. Id. at 285-286. To fund a

second tranche of projects, the Acting Secretary later

transferred an additional $1.5 billion, invoking both

Sections 8005 and 9002 of the DoD Appropriations Act.

Id. at 172-173.

C. Prior Proceedings

Respondents brought these suits to challenge the

Acting Secretary’s internal transfers of funds, as well

as other governmental actions to construct physical

barriers along the southern border. The challenges to

the Secretary’s transfers proceeded along similar

tracks before the same district court judge and were

consolidated for briefing and argument in the court of

appeals. See App., infra, 204a-205a.

1. Sierra Club v. Trump

a. The district court first addressed the challenges

brought by respondents the Sierra Club and the Southern Border Communities Coalition (collectively, Sierra

Club). Sierra Club contended that the construction of

fencing and roads in drug-smuggling corridors along

the southern border would impair its members’ interests in “hiking, birdwatching, photography, and other

professional, scientific, recreational, and aesthetic activities.” App., infra, 12a.

The district court issued a preliminary injunction

forbidding federal officials from “taking any action to

construct a border barrier * * * using funds reprogrammed by DoD under Section 8005,” App., infra,

385a; see id. at 305a-385a, and later incorporated the

same reasoning into an order granting a permanent injunction and entering partial final judgment, see id. at

174a-188a. The court held that it had “authority to review” challenges to the Acting Secretary’s transfers

pursuant to its equitable power to enjoin government

officials from violating federal law, rather than under a

specific grant of statutory authority, such as the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq.

App., infra, 345a. The court concluded, on that basis,

that Sierra Club need not demonstrate that its asserted

injuries “fall within the ‘zone of interests’ ” protected by

Section 8005’s proviso, because the court viewed that

requirement as applicable only “to statutorily-created

causes of action.” Id. at 347a.

The district court then determined that the Acting

Secretary exceeded his authority under Section 8005 in

transferring the funds at issue. The court stated that

Congress had “denied” funds for the projects within the

meaning of Section 8005’s proviso, see p. 6, supra, when

Congress appropriated only $1.375 billion to DHS in

February 2019 for DHS to construct fencing in the Rio

Grande Valley pursuant to DHS’s own separate authority to construct such fencing. App., infra, 350a-354a; see

Department of Homeland Security Appropriations Act,

2019, Pub. L. No. 116-6, Div. A, Tit. II, § 230, 133 Stat.

28. The court also reasoned that DoD’s need to provide

assistance to DHS was not “unforeseen” for purposes of

Section 8005’s proviso because, even though DHS had

not requested DoD’s support under Section 284 until

February 2019, the “government as a whole” had made

other funding requests for border-wall construction in

2018. App., infra, 356a-357a.

b. The district court declined to stay its permanent

injunction pending appeal. App., infra, 188a; see id. at

302a-304a. A divided panel of the court of appeals also

declined to stay the injunction, although for different

reasons. Id. at 206a-299a. The panel majority stated

that Sierra Club was not required to demonstrate that

its members’ putative recreational and aesthetic interests fall within the zone of interests protected by Section 8005’s proviso because, in the majority’s view, Sierra Club “allege[s] a constitutional violation.” Id. at

234a. In particular, Sierra Club alleged that any use of

funds transferred improperly under Section 8005

“would cause funds to be ‘drawn from the Treasury’ not

‘in Consequence of Appropriations made by Law,’ ” in

violation of the Appropriations Clause. Id. at 246a

(quoting U.S. Const. Art. I, § 9, Cl. 7). The majority

accepted that theory and reasoned that the relevant

question is whether Sierra Club’s asserted interests

“fall within the zone of interests of the Appropriations

Clause,” id. at 264a—a test it found satisfied, see id. at

265a-267a. Judge N.R. Smith dissented, explaining that

when Sierra Club’s “claim is properly viewed as alleging

a statutory violation” of Section 8005, Sierra Club has

“no mechanism to challenge [DoD’s] actions.” Id. at

276a; see id. at 274a-299a.

On July 26, 2019, this Court stayed the district

court’s injunction pending appeal and, if necessary, the

disposition of a petition for a writ of certiorari filed by

the government. 140 S. Ct. at 1. The Court stated that

“[a]mong the reasons is that the Government has made

a sufficient showing at this stage that the plaintiffs have

no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Ibid. Justice

Breyer concurred in part and dissented in part. Id. at

1-2. He would have stayed the injunction to the extent

it prohibited the government from finalizing the contracts at issue. Id. at 2. Justices Ginsburg, Sotomayor,

and Kagan would have denied a stay. Id. at 1.

c. On the merits, a different panel of the court of appeals affirmed by a divided vote. App., infra, 1a-77a.

The panel majority first concluded that Section 8005

did not authorize the transfers at issue, based on the

panel’s reasoning in a companion opinion issued in the

States’ case. App., infra, 17a; see p. 14, infra. The majority then turned to addressing “whether Sierra Club

is a proper party to challenge the Section 8005 transfers.” App., infra, 18a. Notwithstanding this Court’s

stay order, the majority held that Sierra Club “has both

a constitutional and an ultra vires cause of action” to

claim that the Acting Secretary exceeded his authority

in transferring the funds. Id. at 19a. On the former, the

majority elaborated that the Appropriations Clause itself confers an implied cause of action to challenge allegedly unlawful spending. Id. at 20a-25a. Finally, the

majority concluded that Sierra Club need not demonstrate that its asserted interests are within the zone of

interests protected by Section 8005’s proviso for the

same reasons the motions panel had given in denying a

stay—i.e., because the zone-of-interests requirement

either does not apply at all here or because the zone of

interests is determined based on the Appropriations

Clause rather than Section 8005. See id. at 31a-34a.

Judge Collins dissented. App., infra, 40a-77a. He

would have held that Sierra Club “lack[s] any cause of

action to challenge the transfers.” Id. at 41a. He explained that Sierra Club lacks a cause of action under

the APA because the APA “incorporates the familiar

zone-of-interests test,” id. at 53a, and the relevant zone

is set by Section 8005’s proviso, see id. at 56a (“All of

[Sierra Club’s] theories for challenging the transfers

* * * rise or fall based on whether DoD has transgressed the limitations on transfers set forth in

§ 8005.”). He further explained that Sierra Club’s “asserted recreational, aesthetic, and environmental interests clearly lie outside the zone of interests protected

by § 8005,” which “does not mention” such interests or

“require the Secretary to consider” them before transferring funds. Id. at 60a. And he would have rejected

Sierra Club’s effort to “evade” that limitation by invoking an implied constitutional or equitable cause of action

rather than the APA. Id. at 74a. In his view, Sierra

Club lacks any distinct constitutional claim because its

Appropriations Clause claim “is effectively the very

same § 8005-based claim dressed up in constitutional

garb.” Id. at 65a. And regardless, he would have held

that any implied constitutional or equitable cause of action “would still be governed by the same zone of interests defined by the relevant limitations in § 8005.” Ibid.;

see id. at 74a-76a. In all events, Judge Collins concluded that “the transfers were lawful,” as explained in

his parallel dissent in the States’ case. Id. at 41a; see

pp. 15-16, infra.

2. California v. Trump

a. In the companion case, a group of States challenged the same internal DoD transfers under the APA

and other theories. Two States—California and New

Mexico—asserted that construction of the projects

funded by the transfers within those States would harm

their environmental interests and their sovereign interests in the enforcement of state environmental laws.

App., infra, 90a, 94a. DHS had invoked Section 102(c)

of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,

Div. C, 110 Stat. 3009-555, as amended, to waive the application of any state environmental laws to these projects. See App., infra, 83a (noting DHS’s express authority under IIRIRA to “ ‘waive all legal requirements’

that would otherwise apply to the border wall construction projects”) (citation omitted). The district court entered a declaratory judgment in the States’ favor on

their challenge to the transfers based largely on the

reasoning of its prior order in Sierra Club, while declining to grant an injunction. Id. at 189a-203a.

b. The same panel of the court of appeals that had

affirmed on the merits in Sierra Club also affirmed in

the States’ case, with Judge Collins again dissenting.

App., infra, 78a-173a.

The panel majority held that the States have a cause

of action under the APA to challenge the Acting Secretary’s compliance with Section 8005 because their asserted interests in enforcing state environmental laws

are within the zone of interests protected by Section

8005. App., infra, 100a-106a. The majority recognized

that the proviso in Section 8005 limiting the Secretary’s

transfer authority is “primarily intended to benefit”

Congress. Id. at 102a. But it reasoned that “[t]he field

of suitable challengers must be construed broadly in

this context” in light of “restrictions on congressional

standing.” Id. at 103a. And it found that “California

and New Mexico are suitable challengers,” because it

viewed their interests as “congruent with those of Congress,” ibid., stressing the “unique” role of States in the

constitutional scheme and the fact that state environmental laws had been preempted for these projects, see

id. at 104a-105a. In light of that holding, the majority

declined to address the States’ alternative theory that

they have “an equitable ultra vires cause of action.” Id.

at 100a n.12.

The panel majority also held that Section 8005 did

not authorize the transfers at issue for the reasons

given by the district court—namely, that DoD’s need to

provide support to DHS was not “unforeseen” in light

of the “history of the President’s efforts to build a border wall,” App., infra, 109a-110a, and that Congress had

“denied” the relevant “item” when it declined to appropriate the full amount of funds the President had requested for the 2019 fiscal year for DHS to construct

border barriers, id. at 116a-117a. The majority also

concluded that providing counterdrug support to DHS

did not qualify as a “military requirement” within the

meaning of Section 8005’s proviso, see id. at 112a-116a,

notwithstanding that Congress authorized the military

to provide such support, see 10 U.S.C. 284(b)(7).

Judge Collins dissented. App., infra, 119a-173a. He

would have held that the States’ “asserted environmen-

tal interests clearly lie outside the zone of interests protected by § 8005,” which, again, “does not mention environmental interests.” Id. at 138a; see id. at 139a (observing that Section 8005 did not require the Acting

Secretary “to give even the slightest consideration to

whether [the challenged transfers] would result in the

death of more flat-tailed horned lizards”). As to the

States’ asserted interest in the enforcement of state environmental law, Judge Collins explained that “the ultimate preemption of state law occurred, not as a result

of § 8005, but rather as a result of DHS’s separate determination” to waive any application of those laws to

these projects under IIRIRA, “a completely separate

statute.” Id. at 140a; see p. 13, supra.

Judge Collins also would have held that the challenged transfers complied with Section 8005, when correctly interpreted in light of the backdrop of federal appropriations law. App., infra, 156a-173a (Collins, J.,

dissenting). He explained that, in Section 8005’s proviso forbidding a transfer to fund an “item” that has

“been denied by the Congress,” 132 Stat. 2999, the term

“item” refers to the “itemizations * * * as set forth in

the already existing budgetary documents exchanged

and generated during the appropriations process for

DoD.” App., infra, 161a. Under that reading, he observed that “this case is easy” because, during the budgeting process, DoD never proposed and Congress never

denied any item of expenditure for DoD to provide assistance to DHS under Section 284. Id. at 162a-163a.

He further explained that the transfers at issue were

“based on unforeseen military requirements.” DoD Appropriations Act § 8005, 132 Stat. 2999. He reasoned

that the requirements were “military” in nature be-

cause Congress assigned the task of providing counterdrug support to the armed forces, App., infra, 165a169a, and that the requirements were “unforeseen”

because “funding for the DoD assistance” was never

“requested, proposed, or considered during DoD’s appropriations process,” id. at 171a. *

REASONS FOR GRANTING THE PETITION

The court of appeals erred in concluding that respondents are proper parties to challenge whether the

Acting Secretary of Defense exceeded his authority in

making internal transfers of appropriated funds under

Section 8005 of the DoD Appropriations Act. As this

Court already preliminarily concluded with respect to

Sierra Club, respondents “have no cause of action to obtain review of the Acting Secretary’s compliance with

Section 8005.” 140 S. Ct. 1, 1. The APA does not permit

such a suit because respondents’ asserted recreational,

aesthetic, environmental, or sovereign interests are not

even arguably within the zone of interests protected by

Section 8005’s proviso, which concerns the intergovernmental budgetary process between DoD and Congress.

Nor can respondents evade the zone-of-interests limitation by “dress[ing] up” their statutory claims “in constitutional garb.” App., infra, 65a (Collins, J., dissenting).

That is the lesson of this Court’s decisions in Dalton v.

Specter, 511 U.S. 462 (1994), and Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015), which the

Ninth Circuit disregarded.

After the court of appeals’ decisions, Sierra Club moved for this

Court to lift its prior stay of the district court’s injunction. The Court

denied that motion. See Order, Trump v. Sierra Club, No. 19A60

(July 31, 2020). Justices Breyer, Ginsburg, Sotomayor, and Kagan

would have granted the motion. Ibid.

In any event, the court of appeals further erred in

finding any violation of Section 8005. The Acting Secretary determined that the challenged transfers were

“necessary in the national interest,” DoD Appropriations Act § 8005, 132 Stat. 2999, to respond to a request

from DHS for assistance with drug interdiction efforts

at the southern border. And the transfers were fully

consistent with Section 8005’s proviso regarding “unforeseen military requirements” and “item[s]” not previously “denied” by Congress. Ibid. Indeed, the nonpartisan Government Accountability Office (GAO)—

which is headed by the Comptroller General, “an agent

of the Congress,” Bowsher v. Synar, 478 U.S. 714, 731

(1986) (citation omitted)—reached that same conclusion

in response to an inquiry from lawmakers during the

pendency of this litigation. Department of Defense—

Availability of Appropriations for Border Fence Construction, B-330862, 2019 WL 4200949, at *1 (Comp.

Gen. Sept. 5, 2019) (GAO Opinion).

At a minimum, the decisions below concern a matter

of exceptional national importance. This Court regularly grants certiorari to address interference with Executive Branch conduct that is of “importance * * * to

national security.” Department of the Navy v. Egan,

484 U.S. 518, 520 (1988). That standard is plainly met

by this injunction against the transfer of military funds

to assist in the construction of fences on the southern

border to stanch the flow of illegal drugs. Indeed, the

Court’s earlier orders granting a stay and declining to

lift it reflect that the Court has already found “a reasonable probability” that certiorari is warranted. Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J.,

in chambers) (citation omitted).

I. THE DECISIONS BELOW ARE INCORRECT

A. Respondents Lack Any Cause Of Action To Obtain

Judicial Review Of Whether The Acting Secretary

Exceeded His Transfer Authority Under Section 8005

Respondents are not proper parties to bring suit

claiming that the Acting Secretary exceeded his transfer authority under Section 8005. Respondents cannot

invoke any express or implied cause of action to do so

because their asserted interests are not even arguably

within the zone of interests protected by Section 8005’s

proviso, which governs DoD’s internal transfers of

already appropriated funds as part of Congress’s regulation of DoD’s budget. The recreational, aesthetic, environmental, and sovereign interests that respondents

assert are entirely outside the contemplation of Section

8005. Nor can respondents avoid that conclusion by invoking the Appropriations Clause. Respondents have no

constitutional claim distinct from their challenge to

whether the Acting Secretary exceeded the statutory authority conferred in Section 8005. In any event, the zoneof-interests requirement applies no differently to an implied equitable cause of action asserting a violation of the

Appropriations Clause premised on non-compliance with

Section 8005’s proviso.

1. The “zone-of-interests” requirement limits the

plaintiffs who “may invoke [a] cause of action” authorized by Congress. Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 129-130 (2014). It reflects the common-sense intuition that Congress does

not intend to extend a cause of action to “plaintiffs who

might technically be injured in an Article III sense but

whose interests are unrelated to the statutory prohibitions” they seek to enforce. Thompson v. North Am.

Stainless, LP, 562 U.S. 170, 178 (2011). “Congress is

presumed to ‘legislate against the background of ’ the

zone-of-interests limitation,” which excludes putative

plaintiffs whose interests do not “ ‘fall within the zone of

interests protected by the law invoked.’ ” Lexmark,

572 U.S. at 129 (brackets and citations omitted).

Under this Court’s interpretation of the APA’s express cause of action, 5 U.S.C. 702, a plaintiff ’s asserted

interest need only be “arguably within the zone of interests” of the provision to be enforced; suit is foreclosed

only where the asserted interest is “marginally related

to or inconsistent with the purposes implicit in the [provision].” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224, 225

(2012) (citations omitted). But where a plaintiff asserts

an implied cause of action in equity, see Armstrong,

575 U.S. at 327-328, this Court has suggested that a

heightened zone-of-interests standard applies, requiring the plaintiff to be the intended beneficiary of the

provision to be enforced. See Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 400 n.16 (1987).

Here, under either the APA or an implied cause of

action, respondents are not proper plaintiffs because

their asserted interests are entirely unrelated to the

proviso in Section 8005 that they claim the Acting Secretary violated. Sierra Club has asserted that construction of fencing and roads in drug-smuggling corridors

along the southern border, using funds transferred pursuant to Section 8005, will impair its members’ “scientific, recreational, and aesthetic activities” in the project areas, such as birdwatching. App., infra, 12a. The

States have asserted that construction of the projects

funded by the challenged transfers will cause harm to

the environment in California and New Mexico and will

impair those States’ sovereign interests in the enforcement of state environmental law. Id. at 90a-98a. As

Judge Collins recognized in dissent, Section 8005 “does

not mention” any such interests, “nor does it require the

Secretary” to consider them before transferring funds.

Id. at 60a; see id. at 138a.

Instead, Section 8005 protects the interests of DoD

and Congress. The provision authorizes the Secretary

of Defense to transfer up to $4 billion of certain funds

between “appropriations or funds * * * to be merged

with and to be available for the same purposes, and for

the same time period, as the appropriation or fund to

which” the transfer is made, if the Secretary determines that the transfer “is necessary in the national interest.” 132 Stat. 2999. The proviso at issue here states

that the Secretary’s transfer authority “may not be

used unless for higher priority items, based on unforeseen military requirements, than those for which [the

transferred funds were] originally appropriated and in

no case where the item for which funds are requested

has been denied by the Congress.” Ibid. The statute

additionally requires the Secretary to “notify the Congress promptly of all transfers made pursuant to this

authority or any other authority” in the DoD Appropriations Act. Ibid.

Nothing about Section 8005’s text or context suggests that Congress intended to permit enforcement of

the proviso by parties who, like respondents here, assert that a transfer would indirectly result in harm to

their recreational, aesthetic, environmental, scientific,

or sovereign interests based on the otherwise authorized activity on which transferred funds are ultimately

spent. Section 8005 does not require the Secretary to

consider those kinds of interests before transferring

funds. To the contrary, it empowers the Secretary to

make transfers in order to fund any type of activities

that Congress has authorized DoD to perform. And

Congress conditioned the Secretary’s transfer authority on judgments about national security that are

uniquely within the Executive Branch’s expertise and

that courts and third parties are ill-suited to second

guess—e.g., that the transfer is “necessary” for the “national interest” and for a “higher priority” item of defense spending. DoD Appropriations Act § 8005, 132

Stat. 2999; see Ziglar v. Abbasi, 137 S. Ct. 1843, 1861

(2017) (cautioning that courts should be “reluctant to intrude upon the authority of the Executive in military

and national security affairs”) (citation omitted).

Section 8005’s congressional-notification requirement confirms that the proviso is primarily if not exclusively intended to protect Congress’s interests in the

appropriations process. For example, if Congress disagrees with a particular transfer after receiving notice of

it, Congress may enact legislation to override the transfer or to modify DoD’s transfer authority. The history

of Section 8005 further confirms that the proviso principally safeguards the interests of Congress. When

DoD was first given this transfer authority, a committee

report explained that legislators imposed conditions on

it in order to “tighten congressional control of the reprogramming process.” H.R. Rep. No. 662, 93d Cong.,

1st Sess. 16-17 (1973) (House Report) (emphasis added).

Permitting any private party who meets the bare

minimum of Article III injury to bring suit to challenge

a transfer under Section 8005 could often be antithetical

to the interests of Congress. Opportunistic litigation by

private parties (or States) may frustrate the desirable

“flexibility,” GAO Red Book 2-38, that Congress intended to confer in granting transfer authority—as illustrated by this case, where the GAO determined that

the challenged transfers were permissible. See p. 17,

supra. Private enforcement of Section 8005’s proviso

also runs the risk of excessive court-ordered remedies

even for minor or technical violations—which Congress

itself may well have viewed as inconsequential, or at

least insufficient to warrant the wastefulness of bringing to a halt statutorily authorized projects for which

funds have already been expended.

2. The court of appeals erred in holding that the

States satisfy the zone-of-interests requirement for

Section 8005. App., infra, 100a. The panel majority began by reasoning that the “field of suitable challengers

must be construed broadly in this context” in light of

“restrictions on congressional standing [that] make it

difficult for Congress to enforce these obligations itself.” Id. at 103a. But the majority should not have

taken it upon itself to relax the zone-of-interests requirement to achieve what it perceived to be the optimal

number of “suitable challengers.” Ibid.

The federal courts “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.” App., infra, 145a (Collins, J., dissenting).

As this Court has repeatedly admonished in the standing context, “the assumption that if respondents have

no standing to sue, no one would have standing, is not a

reason to find standing.” Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 420 (2013) (citation omitted); cf.

United States v. Richardson, 418 U.S. 166, 179 (1974)

(“[T]he absence of any particular individual or class to

litigate these claims gives support to the argument that

the subject matter is committed to the surveillance of

Congress, and ultimately to the political process.”).

The panel majority additionally held that the States’

asserted interests are “congruent” with the interests

protected by Section 8005. App., infra, 103a. But this

too was error.

First, the panel majority reasoned that “this challenge actively furthers Congress’s intent to ‘tighten

congressional control of the reprogramming process,’ ”

because two congressional committees “expressly disapproved of DoD’s use of the [Section 8005] authority”

after the Acting Secretary made the transfers challenged here. App., infra, 103a (citation omitted); see id.

at 86a. That reasoning—which has nothing to do with

the environmental or sovereign interests asserted by

the States—is effectively “tautological.” Id. at 144a

(Collins, J., dissenting). Any plaintiff with Article III

injury who asserts a violation of Section 8005 could be

said to have the same congruence of interests with Congress in avoiding Section 8005 violations. The majority

was also wrong to equate the actions of two committees

with the interests of Congress as a whole; as explained

above, Congress has the necessary legislative tools to

protect its own interests, without any need for proxy litigation by States or private parties, whose interests

may well diverge from Congress’s position. See pp. 2122, supra.

Second, the panel majority reasoned that the States

are proper parties to sue to enforce Section 8005’s proviso because of their “unique” interest in enforcing the

“structural separation of powers”—an interest the majority found to apply with “particular force” here because of the preemption of state environmental laws.

App., infra, 104a-105a. But the States do not have any

“unique” interest in enforcing the limits of Section 8005,

which does not mention States or otherwise require the

Secretary to take their interests into account before

transferring funds. The majority also erred in relying

on the preemption of state law as a basis for finding

the zone-of-interests requirement satisfied. The Section 8005 transfers did not themselves preempt any

state law, and Section 8005 does not reflect any interest

in protecting States from lawful federal preemption.

DHS—not DoD—invoked an entirely separate statute

to waive the application of any state environmental laws

to the construction of the projects funded by the challenged transfers. See id. at 140a (Collins, J., dissenting); p. 13, supra (discussing IIRIRA).

3. No court has found that Sierra Club’s asserted

recreational and aesthetic interests in the project areas

are within the zone of interests protected by Section

8005. The district court declined to apply any zone-ofinterests requirement at all. See App., infra, 347a. The

panel majority likewise excused Sierra Club from having to satisfy the zone-of-interests requirement with respect to Section 8005. The majority first reasoned that

Sierra Club has “a constitutional cause of action” under

the Appropriations Clause as well as “an equitable ultra

vires cause of action,” id. at 20a, 25a; it then further reasoned that, under either theory, the Appropriations

Clause prescribes the relevant zone of interests, “[i]f

the zone of interests test applies at all,” id. at 33a. The

earlier panel that denied a stay pending appeal had

adopted essentially the same reasoning, which this

Court already rejected. 140 S. Ct. at 1. For good reason, as it is flawed at every level.

a. To start, respondents do not allege any distinct

constitutional violation. The Appropriations Clause prohibits expenditures only if not “made by Law,” U.S.

Const. Art. I, § 9, Cl. 7, and thus the gravamen of respondents’ claim is necessarily that the transfers “amounted to

drawing funds from the Treasury without authorization

by statute” in light of Section 8005’s proviso. App., infra,

18a (emphasis added; citation and internal quotation

marks omitted). Any putative constitutional claim in

these circumstances is “effectively the very same

§ 8005-based claim dressed up in constitutional garb.”

Id. at 65a (Collins, J., dissenting).

Indeed, the panel majority’s attempt to recast Sierra

Club’s claim as sounding in the Constitution is contrary

to this Court’s decision in Dalton v. Specter, supra.

There, the plaintiffs “sought to enjoin the Secretary of

Defense * * * from carrying out a decision by the President” to close a military facility pursuant to a federal

statute. 511 U.S. at 464. The court of appeals had permitted the suit to proceed on the assumption that the

plaintiffs were effectively seeking “review [of ] a presidential decision.” Id. at 467 (citation omitted). After

this Court held that the President is not an “agency” for

APA purposes, see id. at 468-469, the court of appeals

adhered to its decision on constitutional grounds—

reasoning, based on Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579 (1952), “that whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-of-powers doctrine.” Dalton, 511 U.S. at 471.

This Court unanimously rejected that theory. The

Court explained that not “every action by the President,

or by another executive official, in excess of his statu-

tory authority is ipso facto in violation of the Constitution.” Dalton, 511 U.S. at 472. Instead, this Court has

carefully “distinguished between claims of constitutional violations and claims that an official has acted in

excess of his statutory authority.” Ibid. (collecting

cases). The Constitution is implicated if an executive

official relies on it as an independent source of authority

to act, as in Youngstown, or if the official relies on a

statute that itself violates the Constitution. See id. at

473 & n.5. But claims alleging simply that an official has

“exceeded his statutory authority are not ‘constitutional’ claims.” Id. at 473.

The same reasoning fully applies here. This dispute

concerns whether the Acting Secretary “exceeded his

statutory authority” in authorizing the disputed transfers under Section 8005, and “no ‘constitutional question whatever’ is raised,” “ ‘only issues of statutory interpretation.’ ” Dalton, 511 U.S. at 473-474 & n.6 (citation omitted). The Acting Secretary did not invoke the

Constitution as a basis to transfer funds, and Sierra

Club does not challenge the constitutionality of Section

8005. Sierra Club’s claim is therefore “properly classified as ‘a statutory one.’ ” App., infra, 67a (Collins, J.,

dissenting) (quoting Dalton, 511 U.S. at 474).

The panel majority’s effort to distinguish Dalton is

unavailing. The majority stated that “Dalton suggests

that a constitutional violation may occur when an officer

violates an express prohibition of the Constitution,” citing the Court’s discussion of Bivens claims. App., infra,

23a (citing Dalton, 511 U.S. at 472). But Sierra Club’s

claim does not remotely resemble a Bivens claim. On

Sierra Club’s own theory of the case, no violation of the

Appropriations Clause has occurred unless the Acting

Secretary exceeded his authority under Section 8005.

That claim is necessarily and unavoidably statutory, not

constitutional.

b. In any event, the Appropriations Clause itself

“certainly does not create a cause of action,” Armstrong,

575 U.S. at 325, much less one that lacks a zone-ofinterests requirement. Like the Supremacy Clause—the

provision at issue in Armstrong—the Appropriations

Clause “is silent regarding who may enforce [it] in court,

and in what circumstances they may do so.” Ibid. Rather than flowing from the Appropriations Clause itself,

“[t]he ability to sue to enjoin unconstitutional actions by

* * * federal officers is the creation of courts of equity.”

Id. at 327. Although the panel majority suggested that

this Court has held that “certain structural constitutional provisions” themselves “give rise to causes of action,” the cited cases all instead involved either the assertion of a constitutional defense to a government enforcement action or a statutory cause of action. See

App., infra, 20a; see also id. at 69a-71a (Collins, J., dissenting).

Nor was the panel majority correct to suggest that

the zone-of-interests requirement may not apply at all

to judicially implied causes of action. App., infra, 31a33a. The zone-of-interests requirement is “ ‘of general

application,’ ” reflecting a limitation on appropriate

plaintiffs that “Congress is presumed” to intend in authorizing suit in federal court. Lexmark, 572 U.S. at 129

(quoting Bennett v. Spear, 520 U.S. 154, 163 (1997)).

This Court’s statement in Lexmark that the requirement applies to all “statutorily created” causes of action, ibid., encompasses judicially implied equitable

causes of action, because the equitable powers of federal district courts are themselves conferred by statute,

see Grupo Mexicano de Desarrollo, S. A. v. Alliance

Bond Fund, Inc., 527 U.S. 308, 318 (1999). Lexmark

therefore did not silently abrogate this Court’s precedents recognizing that the zone-of-interests requirement applies to equitable actions seeking to enjoin constitutional violations. See, e.g., Valley Forge Christian

Coll. v. Americans United for Separation of Church &

State, Inc., 454 U.S. 464, 469, 475 (1982) (Establishment

Clause); Boston Stock Exch. v. State Tax Comm’n,

429 U.S. 318, 320 n.3 (1977) (Dormant Commerce

Clause).

Implied equitable suits are instead subject to “express and implied statutory limitations,” Armstrong,

575 U.S. at 327, and the zone-of-interests requirement

reflects Congress’s refusal to accept the “absurd consequences [that] would follow” “[i]f any person injured in

the Article III sense by a [statutory or constitutional]

violation could sue,” even where the person’s interests

are entirely unrelated to the provision being enforced,

Thompson, 562 U.S. at 176-177. Congress would no

more accept such absurd results under its statutory

grant of equity jurisdiction than under the APA. See

Hernandez v. Mesa, 140 S. Ct. 735, 747 (2020) (“It would

be ‘anomalous to impute . . . a judicially implied cause

of action beyond the bounds Congress has delineated

for a comparable express cause of action.’ ”) (brackets

and citation omitted). If anything, this Court has indicated that, in light of the heightened separation-of-powers

concerns with judicially implied causes of action, see

Abbasi, 137 S. Ct. at 1855-1858, it would be appropriate

to apply a more rigorous zone-of-interests standard requiring that the provision at issue be intended for the

“especial benefit” of the plaintiff seeking to enforce it,

Clarke, 479 U.S. at 400 n.16 (citation omitted); see Gonzaga Univ. v. Doe, 536 U.S. 273, 283-285 (2002).

c. Finally, neither the Appropriations Clause nor an

equitable “ultra vires” theory alters the conclusion that

the focus of the zone-of-interests requirement is Section

8005’s proviso. The zone-of-interests requirement must

be applied “by reference to the particular provision of

law upon which the plaintiff relies.” Bennett, 520 U.S.

at 175-176. The Appropriations Clause provides that

appropriations must be “made by Law,” U.S. Const.

Art. I, § 9, Cl. 7, and respondents do not dispute that the

obligation of funds properly transferred under Section

8005 would satisfy that requirement. Because a violation of Section 8005’s proviso is thus a necessary element of their claim, that is the “provision whose violation forms the legal basis for [the] complaint.” Bennett,

520 U.S. at 176 (quoting Lujan v. National Wildlife

Fed’n, 497 U.S. 871, 883 (1990)) (emphasis omitted).

In concluding otherwise, the panel majority dismissed Section 8005 as “relevant only because, to the

extent it applies, it authorizes executive action that otherwise would be unconstitutional or ultra vires.” App.,

infra, 33a. But that is precisely the point: whether the

Acting Secretary’s conduct was unlawful turns entirely

on the applicability of Section 8005’s proviso, not the

Appropriations Clause. Sierra Club’s (and the States’)

asserted interests must fall within the zone of interests

protected by Section 8005’s proviso to maintain this

suit. They do not.

B. The Acting Secretary Fully Complied With Section 8005

The court of appeals also erred in finding a violation

of Section 8005. That provision authorizes the Secretary to transfer, “[u]pon determination * * * that such

action is necessary in the national interest,” up to $4 billion from certain appropriations made available in the

DoD Appropriations Act. 132 Stat. 2999. The panel majority did not dispute that the Acting Secretary made

the requisite national-interest determination. The majority instead held that the transfers violated the proviso in Section 8005 stating “[t]hat such authority to

transfer may not be used unless for higher priority

items, based on unforeseen military requirements, than

those for which originally appropriated and in no case

where the item for which funds are requested has been

denied by the Congress.” Ibid.; see App., infra, 17a,

105a-118a. That conclusion—which the GAO rejected,

see p. 17, supra—is inconsistent with the statutory text,

history, and purpose of the proviso.

Item not denied by Congress. For purposes of the

proviso, Congress has not previously “denied” the

“item” for which funds are requested. DoD never requested appropriations for the item of providing this

counterdrug assistance to DHS, and Congress never

denied any request for that item of expenditure. GAO

Opinion, 2019 WL 4200949, at *8.

The panel majority reached a contrary conclusion

only by interpreting the term “item” to refer to additional funding for a “border wall” writ large, which the

majority understood Congress to have “denied” when it

appropriated only $1.375 billion to another agency—

DHS—for construction of fencing in other sectors of the

border pursuant to DHS’s own distinct statutory authorities. App., infra, 116a-117a. That interpretation is

inconsistent with the context of Section 8005. “[T]he

‘items’ at issue under § 8005 must be understood against

the backdrop of the sort of familiar item-level analysis”

that has long been part of the budgeting process. Id. at

162a (Collins, J., dissenting). During that process, DoD

identifies particular items for which it proposes to use

each appropriation; Congress appropriates funds in

light of those budget requests; and Congress may decline to fund specific items. See p. 5, supra. Congress

never did so with respect to these particular projects.

The history of the proviso confirms its roots in the

exchange of itemized budget documents. Congress first

imposed limitations on DoD’s transfer authority for

“denied” items in 1974, to ensure that DoD would not

transfer funds for items in its budget that “ha[d] been

specifically deleted in the legislative process.” House

Report 16 (emphasis added). The proviso thus functions

to protect the choices Congress makes in “delet[ing]”

(ibid.) items requested by DoD during the appropriations process. But Congress never considered, let alone

deleted, any request by DoD to use counterdrug appropriations to assist DHS in this manner.

Unforeseen. DoD’s need to provide counterdrug

support to DHS was an “unforeseen” military requirement within the meaning of the proviso because, when

DoD made its budget requests to Congress for the 2019

fiscal year, DoD did not know and could not have anticipated that DHS would later request its support under

Section 284 for these projects. GAO Opinion, 2019 WL

4200949, at *6. The panel majority asserted that “[n]either the problem” of illegal narcotics crossing the

southern border “nor the President’s purported solution[]” of physical barriers “was unanticipated or unexpected.” App., infra, 108a. But the specific requirement that prompted DoD to transfer these funds was a

request from DHS for assistance under Section 284

with a discrete set of identified projects—a request that

came only six months after the enactment of the DoD

Appropriations Act. See pp. 4, 7, supra. Whether the

“President’s efforts to build a border wall” (App., infra,

109a) were foreseeable is irrelevant. See id. at 170a172a (Collins, J., dissenting).

Military requirement. Responding to a request

from DHS for counterdrug assistance under Section 284

also qualified as a “military requirement” under the

proviso. In this context, “military requirement” is a

term of art referring generally to an “established need

justifying the timely allocation of resources to achieve a

capability to accomplish approved military objects, missions, or tasks.” GAO Opinion, 2019 WL 4200949, at *7

(citation omitted). When DoD “accepted DHS’s request, the provision of support constituted a military requirement.” Ibid. The panel majority asserted that the

projects at issue are not “military requirement[s]” because they were undertaken “to support a civilian

agency” and are not, in the majority’s view, “needed or

essential to the armed forces, soldiers, arms, or any sort

of war effort.” App., infra, 113a, 115a-116a. That judgment was not one for the majority to make. Providing

counterdrug assistance under Section 284 is a “military” undertaking because Congress expressly assigned the task to the military. See id. at 165a-169a

(Collins, J., dissenting). As the title of the relevant

chapter of the U.S. Code makes clear, Section 284 is one

of a number of provisions authorizing “Military Support

for Civilian Law Enforcement Agencies.” Id. at 115a.

II. THE QUESTIONS PRESENTED WARRANT REVIEW

In granting a stay, this Court necessarily determined

that, at that stage of the litigation, a reasonable probability of certiorari existed. See, e.g., King, 567 U.S. at

1301 (Roberts, C.J., in chambers). The same considerations counsel in favor of now granting review, as suggested by this Court’s decision not to lift the stay after

the decisions below were issued.

First, the decisions below conflict with relevant decisions of this Court. Sup. Ct. R. 10(c). Like the earlier

stay panel’s decision, the merits panel’s effort to transform Sierra Club’s statutory claim into a constitutional

violation is “flatly contradicted” by this Court’s decision

in Dalton, App., infra, 278a (N.R. Smith, J., dissenting),

which teaches that garden-variety claims that an official

acted in excess of his delegated statutory authority

should not be treated as constitutional in nature. Recognizing a cause of action under the Appropriations

Clause itself would also be contrary to this Court’s decision in Armstrong, which confirmed that implied suits

to enjoin alleged constitutional violations by public officials are “the creation of courts of equity” and are therefore subject to “express and implied statutory limitations.” 575 U.S. at 327. As to the States, the panel majority effectively held that they satisfy the zone-ofinterests requirement merely because they allege that

Section 8005 was violated. App., infra, 103a-104a. Nothing in this Court’s precedent supports such a “tautological” approach. Id. at 144a (Collins, J., dissenting).

Second, the questions presented are important for all

federal agencies with transfer authority. Transfer statutes like Section 8005 are commonplace. See Michelle D.

Christensen, Cong. Research Serv., R43098, Transfer

and Reprogramming of Appropriations 3-4 (June 6,

2013); GAO Red Book 2-39 to 2-40. They reflect Congress’s longstanding judgment that the Executive

Branch must have some flexibility to redirect appropriations during “the lengthy and overlapping cycles of the

budget process,” GAO Redbook 2-44 (citation omitted),

in light of unforeseen events or changed priorities. If a

private party could sue to enjoin the exercise of such a

transfer provision without demonstrating that the party

falls within the zone of interests protected by the provision’s limitations, the courthouse doors would be open

to a wide variety of challenges that Congress neither

contemplated nor authorized.

Third, if allowed to stand, the decisions below would

frustrate steps that the Acting Secretary determined to

be “necessary in the national interest,” DoD Appropriations Act § 8005, 132 Stat. 2999, to stanch the flow of

illegal drugs across the southern border. The challenged transfers have allowed DoD to undertake the

construction of more than 100 miles of fencing (and associated roads and lighting) in areas identified by DHS

as drug-smuggling corridors, where DHS has seized

thousands of pounds of heroin, cocaine, and methamphetamine between ports of entry in recent years. See

C.A. E.R. 237-280. Whether the Acting Secretary exceeded his authority under Section 8005 when he made

the transfers at issue is a question of significant practical importance to the Executive Branch’s nationalsecurity efforts at the southern border. Cf. Hernandez,

140 S. Ct. at 745-746; Egan, 484 U.S. at 520.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

HASHIM M. MOOPPAN

Counselor to the Solicitor

General

SOPAN JOSHI

Senior Counsel to the

Assistant Attorney General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

H. THOMAS BYRON III

ANNE MURPHY

COURTNEY L. DIXON

Attorneys

AUGUST 2020

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 19-16102, 19-16300

D.C. No. 4:19-cv-00892-HSG

SIERRA CLUB; SOUTHERN BORDER COMMUNITIES

COALITION, PLAINTIFFS-APPELLEES

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS

PRESIDENT OF THE UNITED STATES; MARK T. ESPER,

IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE

DEFENSE; CHAD F. WOLF, IN HIS OFFICIAL CAPACITY

AS ACTING SECRETARY OF HOMELAND SECURITY;

STEVEN TERNER MNUCHIN, IN HIS OFFICIAL

CAPACITY AS SECRETARY OF THE DEPARTMENT OF

THE TREASURY, DEFENDANTS-APPELLANTS

Argued and Submitted: Nov. 12, 2019

San Francisco, California

Filed: June 26, 2020

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge Presiding

OPINION

(1a)

Before: SIDNEY R. THOMAS, Chief Judge, and KIM

MCLANE WARDLAW and DANIEL P. COLLINS, Circuit

Judges.

Opinion by Chief Judge THOMAS; Dissent by Judge COLLINES

THOMAS, Chief Judge:

We consider in this appeal challenges by the Sierra

Club and the Southern Border Communities Coalition

(“SBCC”) 1 to the Department of Defense’s budgetary

transfers to fund construction of the wall on the southern border of the United States in California, New Mexico, and Arizona. Specifically, we consider whether

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”) 2 authorized the

budgetary transfers. In a companion appeal, State of

California, et al. v. Trump et al., Nos. 19-16299 and

19-16336, we considered similar challenges filed by a collective group of States. However, because Sierra Club

asserts different legal theories, and this case, when presented, was in a different procedural posture, we treat

this appeal separately. We conclude that the transfers

were not authorized, and that plaintiffs have a cause of

action. We affirm the judgment of the district court.

We refer throughout this opinion to Sierra Club and SBCC together as “Sierra Club,” unless otherwise noted.

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.

We recounted the essential underlying facts in the

companion case. However, we briefly outline them here

for convenience of reference.

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 234 miles of new physical barrier. 3

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

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.

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. §§ 16011651, “declar[ing] that a national emergency exists at

the southern border of the United States.” Proclamation No. 9,844, 84 Fed. Reg. 4949 (Feb. 15, 2019). 4 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 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”). 5

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.

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).

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. On March 25, Acting Secretary

of Defense Patrick Shanahan 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.

At the time Shanahan authorized Section 284 support

for these border wall construction projects, the counternarcotics 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.

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 “var-

DoD’s provision of support for other agencies pursuant to Section

284 does not require the declaration of a national emergency.

ious 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 invoked Section

8005, which 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 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

The other authority invoked by the Federal Defendants, 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.”

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 comity-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.

On February 19, 2019, Sierra Club filed a lawsuit

challenging the Executive Branch’s funding of the border wall. 7 Sierra Club pled theories of violation of the

California, New Mexico, and fourteen other states had filed a

lawsuit the previous day challenging the same border wall funding.

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

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

Defense, Kirstjen M. Nielsen, former Secretary of Homeland Security, and Steven Mnuchin, Acting Secretary of the Treasury in their

2019 CAA, violation of the constitutional separation of

powers, violation of the Appropriations Clause, violation

of the Presentment Clause, violation of the National Environmental Policy Act (“NEPA”), and ultra vires action.

Sierra Club subsequently filed a motion requesting a

preliminary injunction to enjoin the transfer of funds

pursuant to Section 8005 to construct a border wall in

Arizona’s Yuma Sector and New Mexico’s El Paso Sector. The district court held that Sierra Club had standing to assert its Section 8005 claims, and granted the

preliminary injunction motion. The Federal Defendants timely appealed the preliminary injunction order.

Sierra Club subsequently sought a supplemental preliminary injunction to block additional construction planned in

California’s El Centro Sector and Arizona’s Tucson Sector.

Sierra Club also filed a motion requesting partial

summary judgment, a declaratory judgment, and a permanent injunction to enjoin the transfer of funds pursuant to Section 8005 to construct a border wall in Arizona’s Yuma and Tucson Sectors, California’s El Centro

Sector, and New Mexico’s El Paso Sector. The Federal Defendants cross-moved for summary judgment

and opposed Sierra Club’s motion. The district court

granted Sierra Club’s motion for partial summary judgment and granted its request for a declaratory judgment

and a permanent injunction. The Federal Defendants

requested that the district court certify the judgment

for appeal under Fed. R. Civ. P. 54(b). The district court

official capacities, along with numerous other Executive Branch officials (collectively referenced as “the Federal Defendants”).

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, 574-75 (9th Cir. 2018) (explaining when

certification is appropriate under Rule 54). The Federal Defendants timely appealed the district court decision.

The Federal Defendants initially filed a motion to

stay the district court’s preliminary injunction, and in

their later briefing on summary judgment, they requested that the district court stay any permanent injunction granted pending appeal. The district court

denied both requests. The Federal Defendants filed an

emergency motion for stay of the preliminary injunction

pending appeal in this Court and subsequently sought a

stay of the permanent injunction, relying on the same

arguments. Sierra Club v. Trump, 929 F.3d 670, 685

(9th Cir. 2019). An emergency motions panel of this

Court considered whether to stay the injunction pending appeal, and held that a stay was not warranted. Id.

at 677. The Federal Defendants then filed an application for a stay pending appeal with the Supreme Court.

The Supreme Court granted the application, noting that

“[a]mong the reasons is that the Government has made

a sufficient showing at this stage that the plaintiffs have

no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Trump v. Sierra

Club, 140 S. Ct. 1 (2019) (mem.).

We now consider the merits of the Federal Defendants’ appeal of the district court’s grant of partial summary judgment, grant of a declaratory judgment, and

10a

grant of a permanent injunction to Sierra Club. 8 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

Sierra Club has Article III standing to pursue its

claims. 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). 9 An organization has standing to sue on

behalf of its members when “its members would otherwise have standing to sue in their own right,” and when

“the interests it seeks to protect are germane to the organization’s purpose.” United Food and Commercial

Workers Union Local 751 v. Brown Grp., Inc., 517 U.S.

We dismiss the Federal Defendants’ appeal of the district court’s

grant of the preliminary injunction as moot. See Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 963 (9th Cir. 2013) (“The district court’s entry of final judgment and a permanent injunction

moots Arizona’s appeal of the preliminary injunction.”); see also

Planned Parenthood of Cent. & N. Ariz. v. Arizona, 718 F.2d 938,

949-50 (9th Cir. 1983); SEC v. Mount Vernon Mem’l Park, 664 F.2d

1358, 1361-62 (9th Cir. 1982).

The Federal Defendants do not challenge Sierra Club’s Article

III standing in these appeals. However, “the court has an independent obligation to assure that standing exists, regardless of

whether it is challenged by any of the parties.” Summers v. Earth

Island Inst., 555 U.S. 488, 499 (2009).

11a

544, 553 (1996) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 434 U.S. 333, 343 (1977)). 10 An organization has standing to sue on its own behalf when it suffers

“both a diversion of its resources and a frustration of its

mission.” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir.

2010) (quoting Fair Housing of Marin v. Combs, 285

F.3d 899, 905 (9th Cir. 2002)). It must “show that it

would have suffered some other injury if it had not diverted resources to counteracting the problem.” Id.

At summary judgment, a plaintiff cannot rest on 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) (quotations and citation omitted). However, these specific facts “for purposes of the

summary judgment motion will be taken to be true.”

Lujan, 504 U.S. at 561.

Here, Sierra Club and SBCC have alleged facts that

support their standing to sue on behalf of their members. Sierra Club has alleged that the actions of the

Federal Defendants will cause particularized and concrete injuries to its members, and SBCC has shown that

it has suffered a concrete injury itself.

United Food and Commercial Workers held that those two requirements were based on constitutional demands, but held that the

third prong of Hunt’s test for organizational standing, whether the

claim or relief requested requires the participation of individual

members in the lawsuit, was prudential only. Id. at 555. In any

case, because the claim and relief requested here do not require the

participation of Sierra Club or SBCC members, even this prudential

consideration supports plaintiffs’ standing here.

12a

Sierra Club has more than 400,000 members in California, over 9,700 of whom belong to its San Diego Chapter. Sierra Club’s Grand Canyon Chapter, which covers the State of Arizona, has more than 16,000 members. Sierra Club’s Rio Grande Chapter includes over

10,000 members in New Mexico and West Texas.

These members visit border areas such as the Tijuana

Estuary (California), the Otay Mountain Wilderness

(California), the Jacumba Wilderness Area (California),

the Sonoran Desert (Arizona), Cabeza Prieta National

Wildlife Refuge (Arizona), and the Chihuahan Desert

(New Mexico).

Sierra Club’s thousands of members live near and

frequently visit these areas along the U.S.-Mexico border for hiking, birdwatching, photography, and other

professional, scientific, recreational, and aesthetic activities. They obtain recreational, professional, scientific,

educational, and aesthetic benefits from their activities

in these areas, and from the wildlife dependent upon the

habitat in these areas. The construction of a border

wall and related infrastructure will acutely injure these

interests because DHS is proceeding with border wall

construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests.

Sierra Club has adequately set forth facts and other

evidence by declaration, which taken as true, support

these allegations for the purpose of Article III standing.

Sierra Club members Orson Bevins and Albert Del

Val have alleged that they will be injured by construction of Yuma Project 1. Bevins avers that he visits the

area several times per year and is concerned that the

wall “would disrupt the desert views and inhibit [him]

13a

from fully appreciating [the] area,” and that the additional presence of U.S. Customs and Border Protection

agents “would further diminish[] [his] enjoyment of

these areas” and “deter[] [him] from further exploring

certain areas.” Del Val worries that “construction and

maintenance of the border wall will limit or entirely cut

off [his] access to [] fishing spots” along the border,

where he has fished for more than 50 years.

Sierra Club member Elizabeth Walsh has alleged

that construction of El Paso Sector Project 1 would injure her because “[a]s part of [her] professional and academic work [she] routinely visit[s] and stud[ies]” the

area where the project would be built to “supervise several ongoing and long-term biology studies in this area

with graduate students on the aquatic diversity of ephemeral wetlands known locally as playas.” Among other

things, she is worried that border wall construction

would “negatively impact the scientific playa studies

. . . because a wall could impede vital natural drainage patterns for the playas.”

Sierra Club member Carmina Ramirez has alleged

that she “will be harmed culturally and aesthetically” if

El Centro Sector Project 1 is built because she has spent

her entire life in the area surrounding the U.S.-Mexico

Border, including the El Centro Sector, and she believes

that border wall construction would “drastically impact

[her] ability to enjoy the local natural environment,” because she would “see a high border wall instead of [the]

beautiful landscape,” and “drastically impact [her] cultural identity by fragmenting [her] community.” Construction will make her “less likely to hike Mount Signal

and enjoy outdoor recreational activities; and when [she

14a

does] undertake those activities, [her] enjoyment of

them will be irreparably diminished.”

Sierra Club member Ralph Hudson “recreat[es] in

the wilderness areas along the U.S.-Mexico border” in

the area referred to as the Tucson Sector and has done

so for 20 years. He uses the land “to hike, take photos,

and explore the natural history.” He is “extremely

concerned that Tucson Projects 1 and 2 will greatly detract from [his] ability to enjoy hiking, camping, and

photographing these landscapes.”

Sierra Club member Margaret Case lives a few miles

from the border, and she asserts that she will be injured

by the construction of Tucson Sector Project 3. “With

each increase and escalation in enforcement along the

border, [her] and other border residents’ quality of life

decreases” and “[t]he proposed wall will . . . extend

an already unwanted eyesore in the middle of a landscape whose beauty [she] treasure[s], irrevocably harming [her] enjoyment of that landscape.”

Additionally, the interests of Sierra Club’s members

in this lawsuit are germane to the organization’s purpose. Sierra Club is a national organization “dedicated

to exploring, enjoying, and protecting the wild places of

the earth; to educating and enlisting humanity to protect

and restore the quality of the natural and human environment; and to using all lawful means to carry out these

objectives.” Sierra Club’s organizational purpose is at

the heart of this lawsuit, and it easily satisfies this secondary requirement.

SBCC has also alleged facts that support that it has

standing to sue on behalf of itself and its member organ-

15a

izations. SBCC alleged that since the Federal Defendants proposed border wall construction, it has had to

“mobilize[] its staff and its affiliates to monitor and respond to the diversion of funds and the construction

caused by and accompanying the national emergency

declaration.” These “activities have consumed the majority of SBCC staff ’s time, thereby interfering with

SBCC’s core advocacy regarding border militarization,

Border Patrol law-enforcement activities, and immigration reform,” but it has had no choice because it “must

take these actions in furtherance of its mission to protect and improve the quality of life in border communities.”

SBCC Director Vicki Gaubeca confirms these allegations. She has stated that a “border wall, as a physical

structure and symbol, is contrary to the goals of SBCC

and the needs of border communities.” She avers that

the “emergency declaration and the threat and reality

of construction have caused [SBCC] to reduce the time

[it] spend[s] on [its] core projects, including public education about border policies, community engagement on

local issues, and affirmative advocacy for Border Patrol

accountability and immigration reform.” SBCC and its

member organizations have instead “been forced to devote substantial time to analyze and respond to the declaration and the promise to build border walls across the

southern border” “at a substantial monetary and opportunity cost.”

These allegations are sufficient to establish that, if

funds are transferred to the border wall construction

projects, Sierra Club members and SBCC will each suffer injuries in fact.

16a

Sierra Club and SBCC have also shown that such injuries are “fairly traceable to the challenged action of

the [Federal Defendants], and [are] not the result of the

independent action of some third party not before the

court.” Mendia v. Garcia, 768 F.3d 1009, 1012 (9th

Cir. 2014) (quoting Bennett v. Spear, 520 U.S. 154, 167

(1997)). It makes no difference that the border wall

construction is the product of other statutory provisions,

such as Section 284, in addition to Section 8005. “Causation may be found even if there are multiple links in

the chain connecting the defendant’s unlawful conduct

to the plaintiff ’s injury, and there’s no requirement that

the defendant’s conduct comprise the last link in the

chain.” Id. The Federal Defendants could not build

the border wall projects challenged by Sierra Club without invoking Section 8005’s transfer authority—without

this authority, there was no money to build these portions of the border wall; therefore, construction is fairly

traceable to the Section 8005 transfers.

The injury to Sierra Club members and SBCC is likely

to be redressed by a favorable judicial decision. A judicial order prohibiting the Federal Defendants from

spending the money transferred pursuant to Section

8005 would stop construction, thereby preventing the

harm alleged by Plaintiffs. Thus, Sierra Club and

SBCC have established that their members satisfy the

demands of Article III standing to challenge the Federal Defendants’ actions.

First, we consider whether Section 8005 or any constitutional provision authorized DoD to transfer the funds

at issue. We hold they did not.

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Section 8005 provides DoD with limited authority to

transfer funds between different appropriations accounts,

but it provides no such authority “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.” In the opinion filed today in the companion case, State of California, et al. v.

Trump, et al., Nos. 19-16299 and 19-16336, slip op. at 37

(9th Cir. filed June 26, 2020), we hold that Section 8005

did not authorize the transfer of funds at issue here because “the border wall was not an unforeseen military

requirement,” and “funding for the wall had been denied

by Congress.” We reaffirm this holding here and conclude that Section 8005 did not authorize the transfer of

funds.

The “straightforward and explicit command” of the

Appropriations Clause 11 “means simply that no money

can be paid out of the Treasury unless it has been appropriated by an act of Congress.” Office of Pers.

Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (quotation

and citation omitted). The Clause is “a bulwark of the

Constitution’s separation of powers.” U.S. Dep’t. Of

Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347

(D.C. Cir. 2012); see also United States v. McIntosh, 833

F.3d 1163, 1174-75 (9th Cir. 2016). It “assure[s] that

public funds will be spent according to the letter of the

“No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . . ” U.S. Const. art.

I, § 9, cl. 7.

18a

difficult judgments reached by Congress as to the common good and not according to the individual favor of

Government agents.” Office of Pers. Mgmt., 496 U.S.

at 427-28. Without it, “the executive would possess an

unbounded power over the public purse of the nation;

and might apply all its moneyed resources at his pleasure.” Id. at 427 (quoting Joseph Story, 2 Commentaries

on the Constitution of the United States § 1348 (3d ed.

1858)).

Accordingly, “[t]he United States Constitution exclusively grants the power of the purse to Congress, not the

President.” City and Cty. of San Francisco v. Trump,

897 F.3d 1225, 1231 (9th Cir. 2018) (citing U.S. Const.

art. I, § 9, cl. 7). “[W]hen it comes to spending, the

President has none of ‘his own constitutional powers’ to

‘rely’ upon.” Id. at 1233-34 (quoting Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson,

J., concurring)).

Here, the Executive Branch lacked independent constitutional authority to authorize the transfer of funds.

These funds were appropriated for other purposes, and

the transfer amounted to “drawing funds from the

Treasury without authorization by statute and thus violating the Appropriations Clause.” McIntosh, 833 F.3d

at 1175.

Therefore, the transfer of funds here was unlawful.

All that is left for us to decide, then, is whether Sierra

Club is a proper party to challenge the Section 8005 transfers. Sierra Club asserts that it has a number of viable

19a

causes of action—including a constitutional cause of action and an ultra vires cause of action—while the Federal Defendants assert that Sierra Club has none.

The Supreme Court stay order suggests that Sierra

Club may not be a proper challenger here. See Sierra

Club, 140 S. Ct. at 1. We heed the words of the Court,

and carefully analyze Sierra Club’s arguments. Having done so, we conclude that Sierra Club has both a constitutional and an ultra vires cause of action.

In reaching this result, we realize that this is a rare

case in which the “judiciary may . . . have to intervene in determining where the authority lies as between

the democratic forces in our scheme of government.”

Youngstown, 343 U.S. at 597 (1952) (Frankfurter, J. concurring). In doing so, we remain “wary and humble,”

id., for “[i]t is not a pleasant judicial duty to find that the

President has exceeded his powers,” id. at 614. But

where, as here, “Congress could not more clearly and

emphatically have withheld [the] authority,” id. at 602,

exercised by DoD, “with full consciousness of what it

was doing and in the light of much recent history,” id.,

and Sierra Club satisfies the rigors of Article III standing, our “obligation to hear and decide [this] case is virtually unflagging,” Sprint Commc’ns, Inc. v. Jacobs, 571

U.S. 69, 77 (2013) (quotations and citation omitted).

“All we can do is, to exercise our best judgment, and conscientiously to perform our duty.” Cohens v. State of

Virginia, 19 U.S. 264, 404 (1821).

20a

First, we consider whether Sierra Club has a constitutional cause of action to challenge the Federal Defendants’ transfer. We hold that it does.

Certain provisions of the Constitution give rise to equitable causes of action. Such causes of action are most

plainly available with respect to provisions conferring

individual rights, such as the Establishment Clause or

the Free Exercise Clause. See Trump v. Hawaii, 138

S. Ct. 2392, 2416 (2018); Flast v. Cohen, 392 U.S. 83

(1968). But certain structural provisions give rise to

causes of action as well. See Nat. Labor Relations. Bd.

v. Noel Canning, 573 U.S. 513, 556-57 (2014) (cause of

action based on the Recess Appointments Clause); Bond

v. United States, 564 U.S. 211, 225-26 (2011) (cause of

action based on structural principles of federalism);

Clinton v. City of New York, 524 U.S. 417, 434-36 (1998)

(cause of action based on the Presentment Clause); INS

v. Chadha, 462 U.S. 919, 943-44 (1983) (cause of action

based on the constitutional requirement of bicameralism

and presentment); McIntosh, 833 F.3d at 1174-75 (cause

of action based on the Appropriations Clause).

In Bond, the Supreme Court articulated why certain

structural constitutional provisions give rise to causes of

action. The Court considered “whether a person indicted for violating a federal statute has standing to

challenge its validity on the grounds that, by enacting it,

Congress exceeded its powers under the Constitution,

thus intruding upon the sovereignty and authority of the

States.” 564 U.S. at 214. The Court held that “[j]ust

as it is appropriate for an individual, in a proper case, to

invoke separation-of-powers or checks-and-balances constraints, so too may a litigant, in a proper case, challenge

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a law as enacted in contravention of constitutional principles of federalism.” Id. at 223-24. It reasoned that

the challenge was permissible because “structural principles secured by the separation of powers protect the

individual as well,” and “[a]n individual has a direct interest in objecting to laws that upset the constitutional

balance . . . when the enforcement of those laws

causes injury that is concrete, particular, and redressable.” Id. at 222. In other words, an individual who

otherwise meets the requirements of Article III standing may challenge government action that violates structural constitutional provisions intended to protect individual liberties.

We have held that the Appropriations Clause contains such a cause of action. See McIntosh, 833 F.3d at

1173-74. In McIntosh, defendants moved to enjoin

their prosecutions for federal marijuana offenses on the

grounds that a congressional appropriations rider prohibited the Department of Justice from spending federal

funds on such prosecutions. Id. at 1168. We held that

“[the Appropriations Clause] constitutes a separationof-powers limitation that Appellants can invoke to challenge their prosecutions.” Id. at 1175. The opinion

reasoned that so long as a litigant satisfies the Article

III standing requirements, he or she can challenge Appropriations Clause violations because “[o]nce Congress, exercising its delegated powers, has decided the

order of priorities in a given area, it is for . . . the

courts to enforce them when enforcement is sought.”

Id. at 1172 (quoting Tenn. Valley Auth. v. Hill, 437 U.S.

153, 194 (1978)). In McIntosh, we also reaffirmed the

Supreme Court’s statement in Bond that “both federalism and separation-of-powers constraints in the Constitution serve to protect individual liberty, and a litigant

22a

in a proper case can invoke such constraints ‘[w]hen government acts in excess of its lawful powers.’ ” Id. at

1174 (quoting Bond, 564 U.S. at 222). 12

The cause of action available to the plaintiffs in McIntosh is available to Sierra Club here. Congress decided

the order of priorities for border security. In doing

so, it chose to allocate $1.375 billion to fund the construction of pedestrian fencing in Texas. See 2019 CAA

§ 230(a)(1). It declined to provide additional funding

for projects in other areas, and it declined to provide the

full $5.7 billion sought by the President: it is for the

courts to enforce Congress’s priorities, and we do so

here. Where plaintiffs, like Sierra Club, establish that

they satisfy the requirements of Article III standing,

they may invoke separation-of-powers constraints, like

the Appropriations Clause, to challenge agency spending in excess of its delegated authority.

The Federal Defendants argue that Dalton v. Specter, 511 U.S. 462 (1994) forecloses this result. They assert that Dalton’s proposition that not “every action by

the President, or by another executive official, in excess

of his statutory authority is ipso facto in violation of the

Constitution,” means that when there is a claim that an

The Federal Defendants incorrectly characterize McIntosh’s

constitutional holding as dicta. The McIntosh Court discussed the

availability of a constitutional cause of action, analogizing to Bond

and Canning, and stating that “Appellants have standing to invoke

separation-of-powers provisions of the Constitution to challenge

their criminal convictions.” 833 F.3d at 1174. Because the Court

“confront[ed] an issue germane to the eventual resolution of the

case,” and “resolve[d] it after reasoned consideration in a published

opinion,” McIntosh’s constitutional holding is “the law of the circuit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)

(quotations and citation omitted).

23a

Executive Branch official acted in excess of his statutory

authority, there is no constitutional violation. Id. at

472. But Dalton does not hold that every action in excess of statutory authority is not a constitutional violation. 13 Rather, Dalton suggests that some actions in

excess of statutory authority may be constitutional violations, while others may not. Specifically, Dalton suggests that a constitutional violation may occur when an

officer violates an express prohibition of the Constitution. Id. (citing Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388, 396-97 (1971)

for the distinction between “actions contrary to [a] constitutional prohibition,” and those “merely said to be in

excess of the authority delegated . . . by the Congress”). The Appropriations Clause contains such a

constitutional prohibition, declaring that “[n]o Money

shall be drawn from the Treasury, but in Consequence

of Appropriations made by Law. . . . ” U.S. Const.

art. 1, § 9, cl. 7. Under Dalton, then, violations of the

Notably, the plaintiffs in Dalton never alleged that the President violated the Constitution and sought review “exclusively under the [Administrative Procedure Act (“APA”)].” Id. at 471.

Only the Court of Appeals “sought to determine whether non-APA

review, based on either common law or constitutional principles,

was available.” Id. The Supreme Court did not consider whether

the President had violated a specific constitutional prohibition; instead, it took issue only with the Court of Appeals’ contention that

“whenever the President acts in excess of his statutory authority,

he also violates the constitutional separation-of-powers doctrine.”

Id. The Supreme Court’s objection to this conclusion is unsurprising in the context of the Defense Base Closure and Realignment Act of 1990 at issue in Dalton. The Constitution divides authority with respect to the military between Congress and the President. Here, in contrast, the Constitution delegates exclusively to

Congress the power of the purse.

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Appropriations Clause may give rise to viable causes of

action.

Dalton’s discussion of Youngstown only underscores

this point. The Court determined that Youngstown could

not stand for the proposition “that an action taken by

the President in excess of his statutory authority necessarily violates the Constitution” because in Youngstown

“no statutory authority was claimed.” Dalton, 511 U.S.

at 473 (emphasis added). The Court concluded only

that “claims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’

claims, subject to judicial review.” Id. Thus, Dalton

and its discussion of Youngstown do not address situations in which the President exceeds his or her statutory

authority, and in doing so, also violates a specific constitutional prohibition, as is the case here.

Neither does Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015), require an opposite result

here. In Armstrong, the Supreme Court rejected the

argument that the Supremacy Clause created a private

right of action. Id. at 325-27. But the Supremacy

Clause is not the Appropriations Clause: while the Supremacy Clause “only declares a truth, which flows immediately and necessarily from the institution of a Federal Government,” id. at 325 (citing The Federalist No.

33, p. 207 (J. Cooke ed. 1961)), the Appropriations Clause

contains an explicit prohibition, which protects individual liberty, because “[a]ny exercise of a power granted

by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury,” McIntosh,

833 F.3d at 1175. “The individual loses liberty in a real

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sense if [the appropriations power] is not subject to traditional constitutional constraints.” Clinton v. City of

New York, 524 U.S. at 451 (Kennedy, J., concurring).

Thus, while it might be “strange” “to give a clause that

makes federal law supreme a reading that limits Congress’s power to enforce that law,” Armstrong, 575 U.S.

at 326, it is entirely sensible to give a clause that restricts the power of the federal government as a whole a

reading that safeguards individual liberty.

Therefore, because the Federal Defendants not only

exceeded their delegated authority, but also violated an

express constitutional prohibition designed to protect

individual liberties, we hold that Sierra Club has a constitutional cause of action here.

Second, we consider whether Sierra Club has an equitable ultra vires cause of action to challenge the Federal Defendants’ transfer. We hold that it does.

Whether Sierra Club can assert an equitable ultra

vires cause of action turns on “whether the relief [it] request[s] . . . was traditionally accorded by courts of

equity.” Grupo Mexicano de Desarrollo S.A. v. All.

Bond Fund, Inc., 527 U.S. 308, 319 (1999). Equitable

actions to enjoin ultra vires official conduct do not depend upon the availability of a statutory cause of action;

instead, they seek a “judge-made remedy” for injuries

stemming from unauthorized government conduct, and

they rest on the historic availability of equitable review.

Armstrong, 575 U.S. at 327. “The substantive prerequisites for obtaining an equitable remedy . . . depend on traditional principles of equity jurisdiction.”

26a

Grupo Mexicano, 527 U.S. at 318-19 (quotations and citation omitted).

The relief Sierra Club requests has been traditionally

available. “The 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.” Armstrong, 575 U.S. at 327 (citing Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956)); see also Harmon

v. Brucker, 355 U.S. 579, 581-82 (1958) (“Generally, judicial relief is available to one who has been injured by

an act of a government official which is in excess of his

express or implied powers.”). Such causes of action

have been traditionally available in American courts:

“[w]hen Congress limits its delegation of power, courts

infer (unless the statute clearly directs otherwise) that

Congress expects this limitation to be judicially enforced.” Dart v. United States, 848 F.2d 217, 223 (D.C.

Cir. 1988).

The passage of the APA has not altered this presumption. “Prior to the APA’s enactment . . . courts had

recognized the right of judicial review of agency actions

that exceeded authority,” and “[n]othing in the subsequent enactment of the APA altered [that] doctrine of

review,” to “repeal the review of ultra vires actions.”

Id. at 224. “When an executive acts ultra vires, courts

are normally available to reestablish the limits on his authority.” Id.

That Sierra Club has a cause of action to enjoin the

unconstitutional actions at issue here is best illustrated

by Youngstown. There, Congress passed numerous

statutes authorizing the President to take personal and

27a

real property under specific conditions. 343 U.S. at

585-86. During the Korean War, however, President

Truman signed an executive order seizing most of the

nation’s steel mills, even though the conditions of the

statutes had not been satisfied as a matter of fact. Id.

at 582, 586. It fell to the Supreme Court to determine

whether the President had constitutional authority to

seize the steel mills—it held he did not and affirmed the

district court injunction. Id. at 588-589. The Court

never questioned that it had the authority to provide the

requested relief.

Such is the case here. Section 8005 authorizes DoD

to transfer funds under certain conditions; however, as

explained previously, DoD failed to satisfy those conditions. Likewise, as explained previously, the Executive Branch lacks independent constitutional authority

to fund border wall construction. If an equitable ultra

vires action was available to the plaintiffs in Youngstown, it surely must be available to Sierra Club here.

A number of D.C. Circuit cases reaffirm that review

is ordinarily available when an agency exceeds its delegation of authority. In Chamber of Commerce of the

United States v. Reich, the D.C. Circuit considered

whether the Chamber of Commerce had a cause of action to challenge an executive order barring the federal

government from contracting with employers who hire

permanent replacements during a lawful strike. 74

F.3d 1322, 1325-26 (D.C. Cir. 1996). The government

argued that the Chamber of Commerce lacked a statutory cause of action and that APA review was not available because the challenge was directed at the President’s statutory authority to issue the executive order,

and the President is not an agency within the meaning

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of the APA. See id. The court agreed that APA review was not available, but it held that non-statutory review remained available. See id. at 1327. The court

held that “[i]f a plaintiff is unable to bring his case predicated on either a specific or a general statutory review

provision, he may still be able to institute a non-statutory

review action.” Id. The court reasoned in part that

“[t]he responsibility of determining the limits of statutory

grants of authority . . . is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.” Id.

(quoting Stark v. Wickard, 321 U.S. 288, 310 (1944)).

Likewise, in Dart v. United States, the D.C. Circuit

considered whether the plaintiff could challenge the

Secretary of Commerce’s decision to impose civil sanctions for a violation of the Export Administration Act

(“EAA”). See 848 F.2d at 219. The court held that

even though the EAA expressly limited judicial review,

the court retained the ability to review whether the Secretary exceeded the authority delegated by the statute.

See id. at 223-34. It explained that “the presumption

of judicial review is particularly strong where an agency

is alleged to have acted beyond its authority.” Id. at

223. It ultimately concluded that the Secretary had

done just that and invalidated the sanctions he imposed.

These cases support our holding here that Sierra

Club has an equitable ultra vires cause of action to challenge DoD’s transfer of funds. Where it is alleged that

DoD has exceeded the statutory authority delegated by

Section 8005, plaintiffs like Sierra Club can challenge

this agency action.

29a

The Federal Defendants contend that an equitable

cause of action is not available to Sierra Club here because equitable remedies are available only when they

have been “traditionally available in the specific circumstances presented,” and that the remedies sought here

have not been traditionally available in the specific circumstances presented by this case.

The Federal Defendants cite Grupo Mexicano in

support of this argument, but that case provides little

support for their position. In Grupo Mexicano, the

Court considered whether a district court had the power

to issue a preliminary injunction to prevent the transfer

of assets in which no lien or equitable interest was

claimed. See 527 U.S. at 318. The Court concluded it

did not. See id. at 333. It held that a district court

cannot grant relief that “has never been available before

—and especially (as here) a type of relief that has been

specifically disclaimed by longstanding judicial precedent,” particularly when “there is absolutely nothing

new about debtors’ trying to avoid paying their debts, or

seeking to favor some creditors over others.” Id. at

322; see id. at 333.

Here, however, the plaintiffs request a type of relief

that is consistent with our longstanding precedent. Indeed, as explained above, the Supreme Court has actually granted injunctive relief in circumstances very similar to these. See, e.g., Youngstown, 343 U.S. at 589.

Further, unlike attempts to avoid paying debts, instances of Executive Branch ultra vires action are, fortunately, relatively rare, and unlikely to occur in contexts likely to repeat themselves precisely. Thus, the

30a

justifications for limiting equitable relief in Grupo Mexicano are not present here, and courts are able to grant

the relief sought by Sierra Club.

We therefore hold that Sierra Club may assert an equitable ultra vires cause of action to challenge DoD’s

transfer of funds.

The Federal Defendants raise a number of additional

arguments. We address them here.

First, the Federal Defendants assert that Sierra

Club’s challenge must be construed as an APA claim, rather than as a constitutional or ultra vires cause of action. But neither of the two cases cited by the Federal

Defendants compel this conclusion. The Federal Defendants cite Hoef ler v. Babbitt, 139 F.3d 726, 728 (9th

Cir. 1998) for the proposition that “[t]he APA is the sole

means for challenging the legality of federal agency action,” but there, we did not consider whether plaintiffs

had a constitutional or ultra vires cause of action; rather, we considered whether the action was properly

considered under the APA or the Quiet Title Act. See

id. at 728-29. We ultimately held that the former was

appropriate. See id. at 729. To extrapolate from a general statement made in this context, as the Federal Defendants do here, goes too far.

Likewise, in Bennett v. Spear, 520 U.S. 154, 175 (1997),

the Court did not consider whether plaintiffs had a constitutional cause of action; rather, the Court considered

whether the citizen-suit provision of the Endangered

Species Act (“ESA”) provided an exclusive statutory

remedy, or whether a cause of action was also available

under the APA. The Court ultimately determined that

31a

“[n]othing in the ESA’s citizen-suit provision expressly

precludes review under the APA, nor do we detect anything in the statutory scheme suggesting a purpose to

do so.” Id. If anything, this case underscores that the

APA is not to be construed as an exclusive remedy.

Thus, the APA does not displace all constitutional and

equitable causes of action.

Second, the Federal Defendants assert that the zone

of interests test must apply to any challenge brought by

Sierra Club, and that Section 8005 prescribes the relevant zone of interests. We reject this argument.

The zone of interests test limits which plaintiffs can

invoke statutorily created causes of action. Although

earlier cases, such as Association of Data Processing

Services Organizations, Inc. v. Camp, 397 U.S. 150

(1970), suggested that the test applied to constitutional

causes of action, the Supreme Court’s most recent zone

of interests case, Lexmark International, Inc. v. Static

Control Components, Inc., 572 U.S. 118 (2014), clarifies

that the test applies only to statutory causes of action

and causes of action under the APA. See id. at 129

(“[T]he modern ‘zone of interests’ formulation originated . . . as a limitation on the cause of action for

judicial review conferred by the [APA],” but “[w]e have

since made clear, however, that it applies to all statutorily created causes of action.” (emphasis added)).

Common sense supports this approach. As Judge

Bork explained in Haitian Refugee Center v. Gracey,

Appellants need not, however, show that their interests fall within the zones of interests of the constitutional and statutory powers invoked by the President

in order to establish their standing to challenge the

32a

interdiction program as ultra vires. Otherwise, a

meritorious litigant, injured by ultra vires action,

would seldom have standing to sue since the litigant’s

interest normally will not fall within the zone of interests of the very statutory or constitutional provision that he claims does not authorize action concerning that interest. For example, were a case like

Youngstown, to arise today, the steel mill owners

would not be required to show that their interests fell

within the zone of interests of the President’s war

powers in order to establish their standing to challenge the seizure of their mills as beyond the scope of

those powers.

809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (emphasis added).

We agree with Judge Bork. 14 It would make little sense

to require Sierra Club to demonstrate that it falls within

the zone of interests of Section 8005. Congress may not

have contemplated the environmental advocacy group

when it included Section 8005 in the defense budget, but

nevertheless, Sierra Club has asserted a legally cognizable injury. The fact Congress did not have Sierra Club

While the dissent asserts that we rely on the wrong portion of

Judge Bork’s opinion, we disagree. Section 8005 cannot merely

be read as a statutory provision limiting the authority conferred

when it is simultaneously a statutory power invoked by the President. In any case, as explained below, the relevant limitation here

is not the inapplicable statutory power invoked by the Executive—

Section 8005—but instead the restriction on unlawful action—the

Appropriations Clause. See also Ctr. for Biodiversity v. Trump,

No. 1:19-cv-00408, 2020 WL 1643657 at *25 (D.D.C. Apr. 2, 2020)

(quoting the same language from Haitian Refugee Center and

holding that plaintiffs “thus need not satisfy the zone of interests

test for their ultra vires claims.”).

33a

as a particular plaintiff in mind when it authorized Section 8005’s transfer authority does not make its injury

less real, nor DoD’s action more lawful.

If the zone of interests test applies at all, the Appropriations Clause of the Constitution defines the zone of

interests because it is the “particular provision of law

upon which [Sierra Club] relies” in seeking relief. Bennett, 520 U.S. at 175-76. Section 8005 is relevant only

because, to the extent it applies, it authorizes executive

action that otherwise would be unconstitutional or ultra

vires. That a statute is relevant does not transform a

constitutional claim into a statutory one. Sierra Club’s

cause of action stems from the Federal Defendants’ violation of the Appropriations Clause because it seeks to

enforce the limits mandated by the clause.

To the extent the zone of interests test ever applies

to constitutional causes of action, it asks only whether a

plaintiff is “arguably within the zone of interests to be

protected . . . by the . . . constitutional guarantee

in question.” Boston Stock Exch. v. State Tax Comm’n,

429 U.S. 318, 320 n.3 (1977) (quoting Data Processing,

397 U.S. at 153). This renders the test nearly superfluous: so long as a litigant is asserting an injury in fact

to his or her constitutional rights, he has a cause of action. See ERWIN CHEMERINKSY, FEDERAL JURISDICTION 112 (7th ed. 2016) (citing LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 446 (3d ed. 2000)).

Applying that generous formulation of the test here,

Sierra Club falls within the Appropriations Clause’s zone

of interests. Here, Sierra Club is an organization within the United States that is protected by the Constitution. The Appropriations Clause is a “bulwark of the

Constitution’s separation of powers,” U.S. Dep’t. of Navy

34a

v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C.

Cir. 2012), and the “separation of powers can serve to

safeguard individual liberty,” McIntosh, 833 F.3d at

1174 (quoting Noel Canning, 573 U.S. at 525). The unconstitutional transfer of funds here infringed upon Sierra Club’s members’ liberty interests, harming their

environmental, aesthetic, and recreational interests.

Thus, Sierra Club falls within the Clause’s zone of interests, and Sierra Club has a cause of action to challenge

the transfers.

Finally, we consider whether the district court abused

its discretion in granting Sierra Club a permanent injunction enjoining the Federal Defendants from spending the funds at issue. We hold it did not, and we affirm

the district court injunction.

A permanent injunction is appropriate when: (1) a

plaintiff will suffer an irreparable injury absent injunction, (2) remedies available at law are inadequate, 15 (3)

the balance of hardships between the parties supports

an equitable remedy, and (4) the public interest would

not be disserved. eBay Inc. v. MercExchange, LLC,

547 U.S. 388, 391 (2006). When the government is a party

to the case, the court should consider the balance of hardships and public interests factors together. See Drakes

Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.

2014). Although injunctive relief “does not follow from

success on the merits as a matter of course,” Winter v.

NRDC, Inc., 555 U.S. 7, 32 (2008), we review a district

it.

The parties do not contest this factor and so we do not address

35a

court’s decision to grant a permanent injunction for

abuse of discretion, see eBay, 547 U.S. at 391.

The district court did not abuse its discretion in

weighing these factors and determining that injunctive

relief was warranted. First, we agree with the district

court that Sierra Club would suffer irreparable harm to

its recreational and aesthetic interests absent injunction. An organization can demonstrate irreparable

harm by showing that the challenged action will injure

its members’ enjoyment of public lands. See All. for

the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th

Cir. 2011) (finding irreparable harm when the Forest

Service’s proposed project would harm the Alliance’s

members’ ability to “view, experience, and utilize” national forest areas in an undisturbed state). We conclude that Sierra Club sufficiently demonstrated that

the Federal Defendants’ proposed use of funds would

harm its members ability to recreate and enjoy public

lands along the border such that it will suffer irreparable harm absent injunction.

The Federal Defendants’ arguments to the contrary

are unpersuasive. The Federal Defendants submit

that Sierra Club will not be irreparably harmed because

its members have plenty of other space to enjoy. We

have already rejected the essence of the Federal Defendants’ argument. See All. for the Wild Rockies, 632

F.3d at 1135 (concluding that the Forest Service’s argument that plaintiffs can “view, experience, and utilize

other areas of the forest” “proves too much,” because its

logical extension is that a “plaintiff can never suffer irreparable injury resulting from environmental harm in

a forest as long as there are other areas of the forest

that are not harmed” (internal citations omitted)).

36a

Moreover, we agree with the district court that the

balance of equities and the public interest favor injunctive relief here. The public has an important interest

in “ensuring that statutes enacted by their representatives are not imperiled by executive fiat.” E. Bay

Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th

Cir. 2018) (quotations and citation omitted). By passing the CAA, Congress made a calculated choice to fund

only one segment of border barrier. The public interest favors enforcing this decision. In contrast, the

Federal Defendants cannot suffer harm “from an injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)

(citing Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983)

(“[T]he INS cannot reasonably assert that it is harmed

in any legally cognizable sense by being enjoined from

constitutional violations.”)). We agree with the district

court that the Federal Defendants’ position essentially

“boils down to an argument that the Court should not

enjoin conduct found to be unlawful because the ends

justify the means.” No matter how great the collateral

benefits of building a border wall may be, the transfer

of funds for construction remains unlawful. The equitable maxim “he who comes in equity must come with

clean hands” would be turned on its head if unlawful conduct by one party precluded a court from granting equitable relief to the opposing party. The district court

properly concluded that the balance of equities and the

public interest favor injunctive relief.

The Federal Defendants’ additional arguments do

not compel a different result. First, the Supreme Court’s

decision in Winter does not require us to vacate the injunction. In Winter, the Supreme Court reversed a

preliminary injunction enjoining the Navy from using a

37a

particular type of sonar that was essential to its training

exercises because it violated NEPA and a number of federal environmental laws. 555 U.S. at 16-17. Key distinctions between this case and Winter render it inapposite. There, plaintiffs’ “ultimate legal claim [was] that

the Navy must prepare an [environmental impact statement], not that it must cease sonar training” because the

use of the sonar had otherwise been sanctioned by law.

Id. at 32. Having determined that the “continuation of

the exercises . . . was ‘essential to national security,’ ” id. at 18, the President had used his statutory authority to “exempt from compliance those elements of

the Federal agency activity that [were] found by the

Federal court to be inconsistent with an approved State

program,” 16 U.S.C. § 1456(c)(1)(B). In addition, the

Council on Environmental Quality (“CEQ”) had authorized the Navy to implement alternative arrangements to

NEPA compliance that would allow the Navy to conduct

its training exercises under mitigation procedures, but it

imposed additional notice, research, and reporting requirements. Winter, 555 U.S. at 18-19.

By contrast, here, Sierra Club’s ultimate legal claim

is that DoD cannot legally use Section 8005 to fund construction of the border wall, and moreover, that no such

exemption applies. If anything, Section 8005 itself is a

defense against the Executive Branch’s unconstitutional

transfer of funds; however, as discussed previously, it

offers no such legal cover here. Therefore, while the

use of the sonar was not unlawful at the time the Supreme Court vacated the injunction in Winter, DoD’s

transfer of funds here is. While the injunction here

“merely ends an unlawful practice,” Rodriguez, 715 F.3d

at 1145, the injunction in Winter enjoined conduct that

had been sanctioned by law, see Winter, 555 U.S. at 32.

38a

Moreover, the public interest at issue in Winter more

clearly favored vacating the injunction. “Antisubmarine warfare [was] [] the Pacific Fleet’s top war-fighting

priority.” Winter, 555 U.S. at 12. Accordingly, the

use of MFA sonar during training missions was deemed

“mission-critical,” id. at 14, because it is not only the

“most effective technology,” id. at 13, but “the only

proven method of identifying submerged diesel-electric

submarines operating on battery power,” id. at 14. On

the other side of the equation, “the most serious possible

injury [to plaintiffs] would be harm to an unknown number of marine mammals.” Id. at 26. The Court reasonably concluded that the “balance of equities and consideration of the overall public interest . . . tip

strongly in favor of the Navy.” Id.

The balance of interests does not so starkly favor the

Federal Defendants here. Although they allege that

the injunction “frustrates the government’s ability to

stop the flow of drugs across the border,” unlike the government in Winter, the Federal Defendants have failed

to demonstrate that construction of the border wall would

serve this purpose, or alternatively, that an injunction

would inhibit this purpose. The Federal Defendants

cite drug trafficking statistics, but fail to address how

the construction of additional physical barriers would

further the interdiction of drugs. The Executive Branch’s

failure to show, in concrete terms, that the public interest favors a border wall is particularly significant given

that Congress determined fencing to be a lower budgetary priority and the Department of Justice’s own data

39a

points to a contrary conclusion. 16 The district court

properly accorded this interest little weight. 17 Therefore, we hold that the district court did not abuse its discretion, and we affirm the grant of the permanent injunction.

According to the U.S. Department of Justice’s Drug Enforcement Administration’s 2018 National Drug Threat Assessment Report, the “most common method employed by [Mexican Transnational

Criminal Organizations] involves transporting illicit drugs through

U.S. [ports of entry] in passenger vehicles with concealed compartments or commingled with legitimate goods on tractor trailers.”

2018 National Drug Threat Assessment, U.S. Dep’t of Just. Drug

Enforcement Admin. at 99 (2018). Opioids like heroin and fentanyl

are most commonly smuggled across the southwest border into the

U.S. through legal ports of entry. Id. at 19-20, 33; see also Joe

Ward & Anjali Singhvi, Trump Claims There is a Crisis at the Border. What’s the Reality?, NEW YORK TIMES (Jan. 11, 2019) (analyzing U.S. Customs and Border Patrol data and finding that “[m]ost

drugs are seized at ports of entry, not along the open border”).

We are likewise unconvinced by Defendants argument, citing

Maryland v. King, 567 U.S. 1301 (2012), that “there is ‘irreparable

harm’ whenever a government cannot enforce its own laws.” The

Ninth Circuit has recognized that there is “some authority” for the

idea that “a state may suffer an abstract form of harm whenever one

of its acts is enjoined,” but, “to the extent that is true . . . it is

not dispositive of the balance of harms analysis.” Latta v. Otter,

771 F.3d 496, 500 (9th Cir. 2014) (quoting Indep. Living Ctr. of So.

Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009), vacated

and remanded on other grounds, 132 S. Ct. 1204 (2012) (alterations

adopted)); see also id. at 500 n.1 (noting that “[i]ndividual justices, in

orders issued from chambers, have expressed the view that a state

suffers irreparable injury when one of its laws is enjoined, [but] [n]o

opinion for the Court adopts this view” (citations omitted)).

40a

VII

In sum, we affirm the district court. We conclude

that Sierra Club and SBCC have Article III standing to

file their claims, that the Federal Defendants violated

Section 8005 in transferring DoD appropriations to fund

the El Paso, Yuma, El Centro, and Tucson Sectors of the

proposed border wall, and that Sierra Club and SBCC

have a constitutional cause of action under the Appropriations Clause and an ultra vires cause of action to

challenge the Section 8005 transfers. We also decline

to reverse the district court’s decision to impose a permanent injunction. 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 Sierra Club, nor reach any other issues presented by the parties.

AFFIRMED.

COLLINS, Circuit Judge, dissenting:

This case involves similar claims to those presented

in California v. Trump, Nos. 19-16299 & 19-16336, __

F.3d

(9th Cir. 2020). In each case, a distinct group

of plaintiffs brought suit 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

41a

lighting. In California v. Trump, the relevant plaintiffs are the States of California and New Mexico, who

challenged two such construction projects, and here the

plaintiffs are the Sierra Club and the Southern Border

Communities Coalition (“SBCC”) (collectively, the “Organizations”), who challenge six projects. The district

court granted declaratory relief to both sets of plaintiffs

invalidating the transfers, but it granted permanent injunctive relief only to the Organizations. The majority

concludes that the Organizations have Article III standing; that they have a cause of action to challenge the

transfers under the Appropriations Clause of the Constitution as well as a cause of action under an equitable

ultra vires theory; that the transfers were unlawful; and

that the district court properly determined that the Organizations are entitled to declaratory and injunctive relief. I agree that at least the Sierra Club has established Article III standing, but in my view the Organizations lack any cause of action to challenge the transfers. 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 Organizations and remand for entry of partial summary judgment in favor of the Defendants. I

respectfully dissent. 1

There is considerable overlap between the substantive issues

presented in this case and in California v. Trump, and my disagreements with the majority in this case largely parallel my disagreements in the other case. But rather than simply cross-reference all

of the discussion in my dissent in California v. Trump, I will follow

the majority and will rely on cross-reference only when it does.

The result is a fair amount of verbatim repetition between this dissent and my dissent in California v. Trump, but proceeding in this

way avoids the awkwardness of directing the reader to a separate

42a

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.

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,

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 drug-smuggling 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

published opinion when that reader wants to see what my response

is to a particular point made by the majority in its opinion in this

case.

43a

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), as well

as for, inter alia, DHS’s “Yuma Sector Project 1” (which

would involve DoD construction of similar border infrastructure in Yuma County, Arizona). 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 relevant portions of the El Paso Sector and the Yuma 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); 84 Fed. Reg. 17187, 17188 (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 DHS’s “El Centro Sector Project 1” in Imperial

County, California, and DHS’s “Tucson Sector Projects

1, 2, and 3” in Pima and Cochise Counties in Arizona.

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

sections of the El Centro Sector and the Tucson Sector.

See 84 Fed. Reg. 21800, 21801 (May 15, 2019); 84 Fed.

Reg. 21798, 21799 (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 Year 2019, Congress had appropriated

for “Drug Interdiction and Counter-Drug Activities,

44a

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 and

Yuma 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 and Tucson Sector Projects 1, 2, and 3, 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” appropri-

45a

ation and $77,535,000 from the “Operation and Maintenance, Defense-Wide” appropriation into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation.

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.

The Organizations 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 18, 2019 First Amended Complaint, they sought

to challenge, inter alia, any transfer of funds by the Acting Secretary under § 8005 or § 9002. California and

New Mexico, joined by several other States, filed a similar action, and their March 13, 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 Organizations’ motion was likewise directed at El Paso Sector Project 1, but it also

challenged Yuma Sector Projects 1 and one other project (“Yuma Sector Project 2”).

After concluding that the Organizations were likely

to prevail on their claims that the transfers under § 8005

were unlawful and that these organizational plaintiffs

46a

had demonstrated a “likelihood of irreparable harm to

their members’ aesthetic and recreational interests,”

the district court on May 24, 2019 granted a preliminary

injunction enjoining Defendants from using transferred

funds for “Yuma Sector Project 1 and El Paso Sector

Project 1.”2 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 Organizations, 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 Organizations, 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.

While the Defendants’ emergency stay request was

being briefed and considered in this court, the Organizations 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 all six projects (El Paso Sector Project 1, El

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.

47a

Centro Sector Project 1, Yuma Sector Project 1, and

Tucson Sector Projects 1, 2, and 3). California and

New Mexico (but not the other States) filed a comparable summary judgment motion that same day, directed

only at El Paso Sector Project 1 and El Centro Sector

Project 1. 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 Organizations 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 Organizations. 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.

48a

On June 29, 2019, Defendants timely appealed in both

cases and asked this court to stay the permanent injunction based on the same briefing and argument that had

been presented in the preliminary injunction appeal.

California and New Mexico timely cross-appealed nine

days later. On July 3, 2019, this court consolidated Defendants’ appeal of the judgment and permanent injunction with Defendants’ pending appeal of the preliminary

injunction.3 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.

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

States’ case with the already-consolidated appeals in this case.

49a

Defendants have not contested the Article III standing of the Sierra Club and SBCC 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 17 n.9 (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 summaryjudgment 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).

In reviewing standing sua sponte in the context of

cross-motions for summary judgment, it is appropriate

to apply the 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’ cross-motions, the

Sierra Club and SBCC each asserted that Defendants’

50a

allegedly unlawful conduct caused harm to their members’ recreational, aesthetic, and environmental interests. Accepting the Organizations’ evidence as true,

and drawing all reasonable inferences in their favor, a

reasonable trier of fact could conclude that at least the

Sierra Club has associational standing under Hunt v.

Washington State Apple Advert. Comm’n, 432 U.S. 333

(1977).4 Under the Hunt test, an association has standing if “(a) its members would otherwise have standing to

sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c)

neither the claim asserted nor the relief requested requires the participation of individual members in the

lawsuit.” Id. at 343. The Sierra Club has presented sufficient evidence as to each of these three requirements.

To establish that its members would suffer irreparable harm absent a permanent injunction, the Sierra Club

presented declarations from members who regularly

visit the respective project areas. These members described how the construction and the resulting border

barriers would interfere with their enjoyment of the

surrounding landscape and would impede their ability to

fish, to hunt, to monitor and document wildlife and vegetation for educational purposes, and to participate in

other activities near the project sites. These injuries

to the members’ recreational, aesthetic, and environmental interests are sufficient to constitute an injuryThe district court explicitly addressed Article III standing only

in connection with the preliminary injunction motion. Although

Article III standing was not revisited when the Organizations subsequently moved for summary judgment and a permanent injunction, the Organizations’ showing of injury in support of a permanent injunction provides a sufficient basis for evaluating their Article III standing.

51a

in-fact for Article III purposes. See Lujan v. Defenders, 504 U.S. at 562-63 (“Of course, the desire to use or

observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of

standing.”). Moreover, these injuries are fairly traceable to the construction, and an injunction blocking the

transfers would redress those injuries by effectively

stopping that construction. See id. at 560-61. This

evidence is therefore sufficient to establish that these

members would have Article III standing to sue in their

own right.

The other Hunt requirements are also satisfied.

These members’ interests are clearly germane to the Sierra Club’s mission to protect the natural environment

and local wildlife and plant life. And in seeking declaratory and injunctive relief, the lawsuit does not require

the participation of individual members. See Hunt, 432

U.S. at 343.

Because the Sierra Club satisfies the applicable

standing requirements as to all of the challenged projects, we may proceed to the merits without having to

address SBCC’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 Organizations’ legal challenges

fail, I perceive no obstacle to entering judgment against

both the Sierra Club and SBCC without determining

whether the latter has standing. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 98 (1998).

52a

III

After examining the Article III standing of the Organizations, the majority then proceeds straight to the

merits of whether the transfers were unlawful. See

Maj. Opin. at 23. But we ought not address that issue

unless we have first determined that the Organizations

have asserted a viable cause of action that properly

brings that issue before us. See Air Courier Conf. v.

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

517, 530-31 (1991). The majority belatedly gets to that

question in Section V of its opinion, holding that the Organizations have two viable causes of action: an equitable cause of action under the Constitution and an ultra

vires cause of action. See Maj. Opin. at 25. I disagree

with that conclusion, and I also disagree with the Organizations’ alternative argument that they have a valid

cause of action under the Administrative Procedure Act

(“APA”). See Trump v. Sierra Club, 140 S. Ct. at 1

(“[T]he Government has made a sufficient showing at

this stage that the plaintiffs have no cause of action to

obtain review of the Acting Secretary’s compliance with

Section 8005.”).5

In its merits analysis, the majority scarcely cites the motions

panel’s published decision, which addressed the Organizations’ likelihood of success on the merits of many of the same issues before us.

I agree with the majority’s implicit rejection of the Organizations’

contention that the motions panel’s opinion bars this merits panel

from examining these issues afresh. Although the motions panel

decision is a precedent, it remains 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)

53a

Although the Organizations invoke the APA only as

a fallback to their prefe

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