Amicus Curiae Brief — Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Sierra Club, et al.

No. 20-138

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

v.

SIERRA CLUB, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------MICHAEL J. O’NEILL

MATTHEW C. FORYS

LANDMARK LEGAL

FOUNDATION

19415 Deerfield Ave.

Suite 312

Leesburg, VA 20176

703-554-6100

703-554-6119 (Facsimile)

RICHARD P. HUTCHISON*

Counsel of Record

LANDMARK LEGAL FOUNDATION

3100 Broadway

Suite 1210

Kansas City, MO 64111

816-931-5559

pete.hutch@landmarklegal.org

Attorneys for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICUS

CURIAE ............................................................

1

INTRODUCTION AND SUMMARY OF

ARGUMENT.....................................................

2

ARGUMENT ........................................................

4

I.

The President has authority to undertake

emergency measures to secure the nation’s

borders .......................................................

4

A. The Constitution vests the President

with broad executive powers to conduct foreign affairs ..............................

5

B. The President’s transfer of funds for

border security enhancements pursuant to an emergency declaration is a

legitimate exercise of executive power ...

8

C. The President’s inherent authority

and congressional authorization entitles the transfer of funds to the

highest deference ................................. 10

II.

Respondents do not have a statutory cause

of action under § 8005 of the Appropriations Act or the Administrative Procedure Act ..................................................... 13

III.

Respondents do not have a constitutional

claim .......................................................... 16

CONCLUSION..................................................... 18

ii

TABLE OF AUTHORITIES

Page

CASES

Allen v. Wright, 468 U.S. 737 (1984) ...........................14

American Ins. Assn. v. Garamendi, 123 S. Ct.

2374 (2003) ..............................................................18

Aptheker v. Secretary of State, 378 U.S. 500

(1964) .........................................................................5

Bennett v. Spear, 520 U.S. 154 (1997).........................14

Burnet v. Brooks, 288 U.S. 378 (1933) ..........................7

Carter v. Carter Coal Co., 298 U.S. 238 (1936) ..... 6, 7, 8

Chicago & Southern Air Lines, Inc. v. Waterman

S.S. Corp., 333 U.S. 103 (1948)............................ 9, 10

Dalton v. Spencer, 511 U.S. 462 (1994)................. 16, 17

E. Bay Sanctuary Covenant v. Trump, 909 F.3d

1219 (9th Cir. 2018) .................................................14

Haig v. Agee, 453 U.S. 280 (1981) .................................5

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ................. 4, 5

Hines v. Davidowitz, 312 U.S. 52 (1941).....................18

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

Inc., 572 U.S. 118 (2014).................................... 13, 14

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

(1990).................................................................... 16

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) ............14

Mow Sun Wong v. Campbell, 626 F.2d 739 (9th

Cir. 1980) ...................................................................8

iii

TABLE OF AUTHORITIES – Continued

Page

Sierra Club v. Trump, 963 F.3d 874 (9th Cir.

2019) .............................................................. 1, 15, 16

Trump v. Hawaii, 138 S. Ct. 2392 (2018) ...................13

United States v. Curtiss-Wright Exp. Corp., 299

U.S. 304 (1936) .................................................... 6, 10

U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537

(1950) .......................................................................10

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952) ........................................................11

CONSTITUTION

U.S. Const. Art. II, § 1 ............................................... 4, 5

U.S. Const. Art. II, § 2 ...................................................4

STATUTES AND REGULATIONS

6 U.S.C. § 111(b)(1)(H) ..................................................8

10 U.S.C. § 284 ................................................ 11, 12, 13

10 U.S.C. § 284(b)(7) ...................................................12

Department of Defense Appropriation Act, 2019,

Pub. L. No. 115-245, Div. A: Tit. VIII, § 8005,

132 Stat. 2999 ................................................. passim

OTHER AUTHORITIES

10 Annals of Cong. 613 (1800) ......................................4

Brief for Amici Curiae Angel Families et al. (Case.

No. 19-16102, DktEntry 103 (9th Cir. 2019)) ...........2

iv

TABLE OF AUTHORITIES – Continued

Page

National Security Decision Directive 221, April

8, 1986 National Security Presidential Directive 225, 2003 ........................................................ 8, 9

Saikrishna Prakash, The Heritage Guide to the

Constitution (Regnery, 2005) ....................................6

Steven Aftergood, What’s the Difference Between

an Executive Order and a Directive? Federation of American Scientists, Feb. 14, 2014 ...............9

The Federalist No. 23 (J. Cooke ed. 1961) (A.

Hamilton) ..................................................................5

The Federalist No. 70 (J. Cooke ed. 1961) (A.

Hamilton) ..................................................................4

1

STATEMENT OF INTEREST

OF AMICUS CURIAE1

Amicus Curiae Landmark Legal Foundation

(“Landmark”) files this brief on behalf of families who

have suffered the loss of a loved-one caused by people

living illegally in the United States (“Angel Families”).

Landmark also files this brief on behalf of an

organization, Advocates for Victims of Illegal Alien

Crimes (“AVIAC”), that supports such families. The

very existence of these individuals provides a unique

perspective to several aspects of this case. They

highlight the comparative triviality of Respondent

Sierra Club’s interests in hiking, birdwatching, photography, and other professional, scientific, recreational,

and aesthetic activities. Sierra Club v. Trump, 963 F.3d

874, 884 (9th Cir. 2019). These families also show that

the challenged transfer of funds relates to national

security. A porous national border has led to the deaths

of many American citizens around the country. The

protection of American citizens and the nation is the

purpose of national security. The Executive Branch’s

transfer of funds in the interest of national security

1

The parties consented to the filing of this brief. Counsel for

Amicus Curiae provided notices to counsel for parties of its intent

to file this brief on August 21, 2020 and August 27, 2020.

Petitioner consented to the filing of this brief on August 21, 2020.

State Respondents consented on August 25, 2020. Respondent

Sierra Club consented on August 27, 2020. No counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than Amici Curiae,

its members, or its counsel made a monetary contribution to its

preparation or submission.

2

trumps individual Respondent States’ more parochial

interest in enforcing their respective state environmental laws.

When it comes to the District Court’s balancing of

the equities analysis, upheld by the panel’s majority,

the trivial harm to Plaintiffs’ hiking, camping, birdwatching, and aesthetic enjoyment and use of public

lands contrasts with the real, debilitating, and

permanent harm suffered by these Angel Families.

These families suffer from the knowledge that their

loved ones suffered tragic and violent deaths. See Brief

for Amici Curiae Angel Families et al. (Case. No. 1916102, DktEntry 103 (9th Cir. 2019)). The harms

alleged by the private and public parties pale in

comparison to the reality these families endure.

Landmark urges this Court to find the President’s

emergency declaration redirecting funds consistent

with applicable federal statutes. But even if not, the

President’s inherent authority to conduct foreign

policy and to exclude immigrants who enter the

country illegally authorizes the executive actions

taken.

---------------------------------♦---------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

Granting certiorari affords the Court to resolve

whether the aesthetic, hiking, fishing, and other

private activities of a group of individuals or a state’s

environmental regulatory provisions may supersede a

3

president’s action taken under an emergency

declaration issued in response to a national security

threat. The Court should reject the lower courts’

conclusions in the affirmative and hold that the

President acted in accord with his inherent and

constitutional authority to promote national security

and conduct our nation’s foreign affairs.

When the President acts in this capacity, his

authority is at its highest level and his actions entitled

to the highest deference. Securing the nation’s borders

enhances national security in that it limits both the

incursion of deadly narcotics and criminals who harm

our nation’s citizens. Enhancing security through

construction of border barriers in areas of elevated

threats falls within the President’s recognized power

to conduct foreign affairs.

Left to stand, the lower court’s decision vests the

judiciary with a new, undefined, and unconstitutional

veto power over the Executive Branch’s foreign

affairs and national security policies. The obvious and

dangerous result will be that private parties and

federal courts will cripple the ability of the Chief

Executive to execute his most solemn duty – to defend

the nation and its people.

---------------------------------♦---------------------------------

4

ARGUMENT

I.

The President has authority to undertake

emergency measures to secure the nation’s

borders.

The “Founders intended that the President have

primary responsibility – along with the necessary

power – to protect the national security and the

Nation’s foreign relations.” Hamdi v. Rumsfeld, 542

U.S. 507, 580 (2004) (Thomas, J., dissenting). The

“structural advantages” of “[d]ecision, activity, secrecy,

and dispatch” that characterize the office of the

presidency “are most important in the national

security and foreign-affairs contexts.” Id. at 581

(quoting The Federalist No. 70 at 472 (J. Cooke ed.

1961) (A. Hamilton)).

Justice Thomas looked to John Marshall, who

explained “[t]he President is the sole organ of the

nation in its external relations, and its sole representative with foreign nations.” Id. (quoting 10 Annals

of Cong. 613 (1800)). Thus, “the Constitution vests in

the President ‘the Executive Power,’ Art. II, § 1,

provides that he ‘shall be the Commander in Chief of

the’ Armed Forces, § 2, and places in him the power to

recognize foreign governments.” Id. Transferring funds

for construction of enhancements to border security

falls within this authority.

5

A. The Constitution vests the President

with broad executive powers to conduct foreign affairs.

“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security

of the nation.” Haig v. Agee, 453 U.S. 280, 307 (1981)

(quoting Aptheker v. Secretary of State, 378 U.S. 500,

509) (1964)). The power to protect the nation “ought to

exist without limitation . . . [b]ecause it is impossible

to foresee or define the extent and variety of national

exigencies, or the correspondent extent & variety of the

means which may be necessary to satisfy them.” See

Hamdi v. Rumsfeld, 542 U.S. at 580 (Thomas, J.,

dissenting) (quoting The Federalist No. 23, at 147 (J.

Cooke ed. 1961) (A. Hamilton)). Thus, the Court has

“held that the President has constitutional authority

to protect the national security and that this authority

carries with it broad discretion.” Id. at 581.

The nature of this power goes beyond the Constitution itself. The Constitution’s Executive Vesting

Clause provides that the “executive Power shall be

vested in a president of the United States of America.”

U.S. Const., Art. II, Sec. I. As Professor Prakash

explains, “executive Power” was not a throw-away line,

it meant something significant to the Framers:

The Executive Vesting Clause grants the president those authorities that were traditionally

wielded by executives. . . . The clause also

accords the President those foreign-affairs

authorities not otherwise granted to Congress

or shared by the Senate. . . . Because the

6

Constitution nowhere assigns or shares these

foreign affairs powers, they remain part of the

executive power granted to the President by

the Executive Vesting Clause. . . .

Saikrishna Prakash, The Heritage Guide to the

Constitution (Regnery, 2005), p. 179-181.

The authority to conduct our nation’s foreign

affairs grants the President broad powers distinguishable from the limited Article II powers involving

internal affairs. The source and scope of the President’s

authority to exercise his powers in these two classes

are distinct. As “[t]he two classes of powers are

different in both respect and of their origin and their

nature,” United States v. Curtiss-Wright Exp. Corp.,

299 U.S. 304, 315-316 (1936), the degree of the

President’s authority varies.

The principle that the executive can only exercise

powers enumerated in the Constitution (and those

powers necessary and proper to affect such powers)

thus applies to internal matters – not in matters

involving foreign affairs. Id. As for domestic matters,

the Constitution identifies powers originally held by

the individual states and vests those powers with the

federal government. Remaining powers reside with the

states and with the People. Id. at 316 (citing Carter v.

Carter Coal Co., 298 U.S. 238, 294 (1936)). The

Constitution therefore specifically limits the power of

the federal government. This limitation, however,

contrasts markedly with the power of the federal

government in foreign matters. As the states never

7

possessed international powers, these powers could

never be “carved from the mass of state powers.” Id.

These powers existed before the formation of the union

and during the colonial period were possessed by and

under the control of the Crown.

With separation from Great Britain, powers of

“external sovereignty” did not pass to the states in

their individual capacities, “but to colonies in their

collective and corporate capacity as the United States

of America.” Id. Even before the ratification of the

Constitution, the colonies acted as a unit in foreign

affairs – exercising powers of war and peace, raising

an army, establishing a navy, and adopting the

Declaration of Independence. Id. These powers of

external sovereignty of the Unites States encompasses

all powers “necessary to maintain an effective control

of international relations.” Id. at 318 (citing Burnet v.

Brooks, 288 U.S. 378, 396 (1933)).

Participation by other branches in the exercise of

the federal power over external affairs is “significantly

limited.” Id. at 319. As a result, the President “is the

constitutional representative of the United States with

regard to foreign nations.” Id. His authority derives not

through an exertion of legislative power but from the

“plenary and exclusive power” as the “sole organ of the

federal government in the field of international

relations.” Id. at 320. Thus, the President’s exercise of

power need not originate from an act of Congress – it

must only conform to the Constitution’s applicable

provisions. Id. Consequently, in these matters, the

President has “a degree of discretion and freedom from

8

statutory restriction which would not be admissible

were domestic affairs alone involved.” Id. Indeed, the

President’s authority over issues of foreign affairs

“arises from the Constitution, rather than from any

delegation. . . .” Mow Sun Wong v. Campbell, 626 F.2d

739, 744 n. 9 (9th Cir. 1980).

B. The President’s transfer of funds for

border security enhancements pursuant to an emergency declaration is a

legitimate exercise of executive power.

Ensuring national security entails protecting the

borders and preventing illegal narcotics trafficking.

Transferring funds to the Department of Homeland

Security (“DHS”) for construction of the border

wall to prevent drug trafficking tracks with DHS’s

primary mission to “monitor connections between

illegal drug trafficking and terrorism, coordinate

efforts to sever such connections, and otherwise

contribute to efforts to interdict drug trafficking.” 6

U.S.C. § 111(b)(1)(H).

Previous Presidents have recognized that drug

trafficking threatens national security. In 1986, President Reagan designated international drug trade as a

national security threat. National Security Decision

Directive 221, April 8, 1986.2 Income derived from drug

trafficking, the Reagan Administration concluded,

funded terrorism and destabilized foreign governments.

2

Available at https://fas.org/irp/offdocs/nsdd/nsdd-221.pdf

(last visited Aug. 28, 2020).

9

Id. Later, in a National Security Presidential Directive

(“NSPD”), the George W. Bush Administration ordered

U.S. government agencies to “attack the vulnerabilities

of drug trafficking organizations by disrupting key

business sectors and weakening the economic basis of

the drug trade.” The illegal drug market in the United

States, the Bush Administration noted, “is based on

illegal narcotics grown or manufactured in foreign

countries and smuggled across our nation’s borders.”

NSPD-25.3

Directives such as these are much like Executive

Orders except that publication is not required and they

may be classified. Steven Aftergood, What’s the Difference Between an Executive Order and a Directive?

Federation of American Scientists, Feb. 14, 2014.4

Access to secret information informs presidential

decision making within this context and underscores

the President’s unique authority. As noted by Justice

Jackson, “The President, both as Commander-in-Chief

and as the Nation’s organ for foreign affairs, has

available intelligence services whose reports are not

and ought not to be published to the world.” Chicago &

Southern Air Lines, Inc. v. Waterman S.S. Corp., 333

U.S. 103, 111 (1948). Courts therefore should be

3

NSPD-25 appears to be classified and unavailable. Quotations above appear on the U.S. Immigration and Customs website

available at https://www.ice.gov/narcotics (last visited Aug. 30,

2020).

4

Available at https://fas.org/blogs/secrecy/2013/02/eo_pd/

(last visited Aug. 30, 2020).

10

reluctant to “nullify actions of the Executive taken on

information properly held secret.” Id.

In short, neither the Court nor Respondents can

know all the facts that led to the President’s decision

to order construction of the wall. The President’s

unique position gives him access to secret information

that influences his actions. International drug trafficking has long been recognized as a national security

threat. Construction of enhanced border security

barriers to advance the purposes of an emergency

declaration to reduce this threat to public safety is well

within presidential authority.

C. The President’s inherent authority and

congressional authorization entitles

the transfer of funds to the highest

deference.

The President’s authority to exclude aliens derives

from his inherent executive power to control the

foreign affairs of the nation. U.S. ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 542 (1950) (citing CurtissWright Export Corp.). Thus, a “decision to admit or

exclude an alien may be lawfully placed on the

President.” Id. at 543.

Transferring funds from the Department of

Defense (“DOD”) to the Department of Homeland

Security for construction of a border wall falls within

the President’s power to exclude aliens from the

United States. The President, through the DOD, has

11

power to take this action without the statutory

authority of § 8005.

“When the President acts pursuant to an express

or implied authorization of Congress, his authority is

at its maximum, for it includes all that he possesses in

his own right plus all that Congress can delegate. In

these circumstances . . . [he may] be said . . . to

personify the federal sovereignty.” Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 635-636 (1950)

(Jackson, J., concurring).

Justice Jackson identified three tiers of presidential power in his concurrence in Youngstown Sheet

& Tube. While acting under an express or implied

authorization from Congress, his authority is at its

most powerful. Presidential actions, therefore, command deference and are rendered invalid only if “the

Federal Government as an undivided whole lacks

power.” Id. at 637. The President acts within the second

tier when he “acts in absence of either a congressional

grant or denial of authority.” In this tier, “any actual

test of power is likely to depend on the imperatives of

events and contemporary imponderables rather than

on abstract theories of law.” Id. Presidential power is

at its lowest when he “takes measures incompatible

with the expressed or implied will on Congress.” Id.

Here, the Acting Secretary’s (and, by extension,

the President’s) actions are permissible under both

his inherent authority and under a delegation of

authority from Congress. Under 10 U.S.C. § 284, the

DOD may provide support to other federal agencies for

12

“counterdrug activities” upon request. The statute also

states that DOD may provide funds for the “[c]onstruction of roads and fences . . . to block drug smuggling

corridors across international boundaries of the

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

wall will be built in regions of the border identified by

DHS as high priority. Brief for Pet. at 7. Section 8005

of the Appropriations Act authorizes the Acting

Secretary to transfer funds from other appropriation

accounts to an appropriation account DOD uses to

fund counternarcotic activity. Department of Defense

Appropriation Act, 2019, Pub. L. No. 115-245, Div. A,

Tit. VIII, § 8005, 132 Stat. 2999. Congress, therefore,

contemplated the possibility that such a transfer could

be necessary and established conditions for making

such a transfer. Those conditions have been met.

The power to exclude aliens is a core power that

derives from the inherent authority of the President.

Thus, the President can construct the border wall with

no delegation from Congress. The statutory sources in

10 U.S.C. § 284 and in § 8005 of the Appropriations Act

provide more authority.

The President is acting at his highest level of

power and transferring funding should receive the

strongest presumption of legitimacy.

13

II.

Respondents do not have a statutory cause

of action under § 8005 of the Appropriations Act or the Administrative Procedure

Act.5

The Department of Defense (“DOD”) is authorized

by 10 U.S.C. § 284 to support other agencies for

“counterdrug activities” upon request. Section 8005 of

the Appropriations Act authorizes the DOD to transfer

up to four billion dollars provided the Department

meets certain conditions. Department of Defense

Appropriation Act, 2019, Pub. L. No. 115-245, Div. A,

Tit. VIII, § 8005, 132 Stat. 2999. The transfer must be

used for “higher priority items, based on unforeseen

military requirements” and the purpose of the transfer

cannot be one denied by Congress. Id.

DOD met these conditions and Respondents’ interests do not fall within the zone of interests protected

by the Appropriations Act. Nor do Respondents have a

claim under the Administrative Procedure Act.

Statutory causes of actions “extend only to plaintiffs who[se] interests ‘fall within the zone of interests

protected by the law invoked.’ ” Lexmark Int’l, Inc. v.

Static Control Components, Inc., 572 U.S. 118, 129

5

This case presents troubling jurisdictional issues. To begin

with, Plaintiffs’ complaint is a classic example of forum-shopping.

In addition, the District Court’s preliminary and permanent

injunction orders show the growing problem of “legally and

historically dubious” nationwide injunctions entered by district

courts in cases over which they do not have proper jurisdiction.

See Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J.,

concurring).

14

(2014) (citing Allen v. Wright, 468 U.S. 737, 751 (1984)).

And this limitation applies to “all statutorily created

causes of action” and constitutes “a requirement of

general application” unless “it is expressly negated.”

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

Further, “The relevant zone of interests is not that of

the APA itself, but rather the zone of interests to be

protected or regulated by the statute that the plaintiff

says was violated.” E. Bay Sanctuary Covenant v.

Trump, 909 F.3d 1219, 1244 (9th Cir. 2018). While the

zone of interest test is “not especially demanding,”

necessary connections must be present to afford

private litigants a cause of action. Lexmark, 572 U.S.

at 130 (citing Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak, 567 U.S. 209, 225

(2012)). Suits are barred when a party’s “interests are

so marginally related to or inconsistent with the

purposes implicit in the statute that it cannot

reasonably be assumed that Congress authorized the

plaintiff to sue.” Id. Thus, the “breadth of the zone of

interests varies according to the provisions of law at

issue[ ], so that what comes within the zone of interests

of a statute for purposes of obtaining judicial review of

administrative action under the ‘generous review

provisions’ of the APA may not do so for other

purposes.” Id. (citing Bennett v. Spear, 520 U.S. 154,

163 (1997)).

As § 8005 constitutes the “gravamen of the

complaint,” the interests protected by this provision

should be analyzed to determine whether they have

been violated. As noted in Judge Collins’s dissent,

15

§ 8005 “is grant of general transfer authority that

allows the Secretary of Defense . . . to transfer from

one DOD ‘appropriation’ into another up to $4 billion

of the funds that have been appropriated under the

DOD Appropriations Act for ‘military functions.’ ”

Sierra Club v. Trump, 963 F.3d at 906 (Collins, J.,

dissenting). Judge Collins observes that the “particular provision of law upon which the plaintiff relies”

only focuses on § 8005’s “prohibition on using the

transfer authority to effectively reverse Congress’s

specific decision to deny funds to DOD for that item.”

Id. Further, § 8005’s restrictions preclude DOD “from

transferring funds appropriated by Congress for

‘military functions’ for purposes that do not reflect

‘military requirements.’ ” Judge Collins correctly concludes that relevant provisions of § 8005 “are focused

solely on limiting DOD’s ability to use the transfer

authority to reverse the congressional judgments

reflected in DOD’s appropriations.” Id. at 907.

Sierra Club claims and the lower court agreed that

construction of a border wall would adversely affect its

members’ aesthetic, recreational, and environmental

interests. Respondents, however, have never argued

that transferring funds adversely affects their interests. Neither Sierra Club, private parties nor the state

litigants can claim to be representing the interests of

Congress. Nor are they DOD contractors that lost

funding because of the transfer. Instead, they argue

(and the lower court agrees) that the secondary action

– construction of a border wall – would not be possible

without “invoking Section 8005’s transfer authority –

16

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.”

Id. at 886.

The lower court is incorrect. As specified in Lujan,

the zone of interest test requires plaintiffs “to make a

factual showing that the plaintiff itself, or someone

else whose interests the plaintiff may properly assert,

has a cognizable interest that falls within the relevant

zone of interests.” Id. at 908 (citing Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 885-899 (1990)). Respondents do not represent the interests of Congress nor do

they represent the interests of DOD contractors

affected by transferring funds. Thus, they do not have

a cause of action under either statute.

III. Respondents do not have a constitutional

claim.

The Court’s decision in Dalton v. Spencer

forecloses claims that transferring funds violates the

Appropriations Clause. Decisions by the Court do “not

support the proposition that every action by the

President, or by another executive official, in excess of

his statutory authority is ipso facto in violation of the

Constitution.” Dalton v. Spencer, 511 U.S. 462, 472

(1994). Instead, the Court has “often distinguished

between claims of constitutional violation and claims

that an official has acted in violation of his statutory

authority.” Id. Respondents fail the Dalton test.

17

Respondents rest their claims on whether the

DOD complied with § 8005 of the Appropriations Act.

DOD asserted authority to transfer the funds pursuant to § 8005. For that reason, courts must review any

claims challenging the transfer within the framework

of DOD’s statutory authority. Id.

Additionally, upholding a claim that DOD’s

actions violate the Appropriations Clause establishes

a dangerous precedent that should be addressed by the

Court. As noted in Dalton, “if every claim alleging that

the President exceeded his statutory authority were

considered a constitutional claim, [limited exceptions

that had previously been permitted] would be broadened beyond recognition.” Dalton, 511 U.S. at 473-474.

Thus, “[t]he distinction between claims that an official

exceeded his statutory authority, on the one hand, and

claims that he acted in violation of the Constitution, on

the other, is too well established to permit this sort of

evisceration.” Id. at 474.

The consequences of validating the claim that

when the President violates his statutory authority,

he also violates the Appropriations Clause, are severe.

Every action invites litigation and the President’s

authority to act will be rendered meaningless.

---------------------------------♦---------------------------------

18

CONCLUSION

“Our system of government is such that the

interest of the cities, counties, and states, no less

than the interest of the people of the whole nation,

imperatively requires that federal power in the field

affecting foreign relations be left entirely free from

local interference.” American Ins. Assn. v. Garamendi,

123 S. Ct. 2374, 2388 (2003) (quoting Hines v.

Davidowitz, 312 U.S. 52, 63 (1941)) (internal citation

omitted). If we are to sustain our system, the Court

should grant the Petition and reverse the lower

courts.

Respectfully submitted,

MICHAEL J. O’NEILL

MATTHEW C. FORYS

LANDMARK LEGAL

FOUNDATION

19415 Deerfield Ave.

Suite 312

Leesburg, VA 20176

703-554-6100

703-554-6119 (Facsimile)

RICHARD P. HUTCHISON*

Counsel of Record

LANDMARK LEGAL FOUNDATION

3100 Broadway

Suite 1210

Kansas City, MO 64111

816-931-5559

pete.hutch@landmarklegal.org

Attorneys for Amicus Curiae