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

No. 20-138

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.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

et. al., Petitioners,

v.

STATES OF CALIFORNIA AND NEW MEXICO, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION FOR THE STATE RESPONDENTS

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

JOSHUA A. KLEIN*

Deputy Solicitor General

HEATHER C. LESLIE

LEE I. SHERMAN

Deputy Attorneys General

JANELLE M. SMITH

JAMES F. ZAHRADKA II

Deputy Attorneys General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

1515 Clay Street, 20th Floor

P.O. Box 70550

Oakland, CA 94612-0550

(510) 879-0756

Joshua.Klein@doj.ca.gov

*Counsel of Record

(Additional counsel listed on inside cover)

September 16, 2020

ROBERT W. BYRNE

MICHAEL L. NEWMAN

EDWARD H. OCHOA

Senior Assistant

Attorneys General

MICHAEL P. CAYABAN

CHRISTINE CHUANG

Supervising Deputy

Attorneys General

BRIAN J. BILFORD

NOAH M. GOLDEN-KRASNER

SPARSH S. KHANDESHI

Deputy Attorneys General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

1515 Clay Street, 20th Floor

P.O. Box 70550

Oakland, CA 94612-0550

Additional Counsel for the State

of California

HECTOR BALDERAS

Attorney General of New Mexico

TANIA MAESTAS

Chief Deputy Attorney General

NICHOLAS M. SYDOW

Civil Appellate Chief

JENNIE LUSK

Civil Rights Bureau Chief

STATE OF NEW MEXICO

DEPARTMENT OF JUSTICE

P.O. Drawer 1508

Santa Fe, NM 87504-1508

Counsel for the State

of New Mexico

i

QUESTIONS PRESENTED

Congress and the President engaged in extended

negotiations concerning the President’s request for

$5.7 billion to fund border-wall projects along the Nation’s border with Mexico. After an impasse that resulted in the longest partial government shut-down in

history, Congress passed and the President signed a

bill providing funding to the Department of Homeland

Security for border-wall construction only at a designated location in Texas, and in an amount ($1.375 billion) far less than what the President had requested.

The same day that the President signed that legislation, however, he announced that he would spend far

more than that amount to build barriers on other parts

of the southern border, by transferring money from

funds Congress appropriated for different purposes.

In one such transfer, the Acting Secretary of Defense

invoked 10 U.S.C. § 284 and transferred approximately $2.5 billion—which Congress had appropriated

for Army personnel and other military purposes—to

fund border-wall construction projects, including projects in California and New Mexico. The questions

presented are:

1. Whether the States of California and New Mexico have a cognizable cause of action to challenge the

transfer of funds for border-wall construction in their

territory.

2. Whether the challenged transfers are unlawful.

ii

PARTIES TO THE PROCEEDING

As petitioners informed the Court in their September 1, 2020 letter, the petition’s description of the parties to the proceeding (Pet. II) is incorrect: the only

respondents in the California case are the State of

California and the State of New Mexico.

iii

TABLE OF CONTENTS

Page

Introduction ................................................................. 1

Statement .................................................................... 3

A. Background ..................................................... 3

B. Proceedings below ......................................... 10

Argument ................................................................... 15

I. The Court should deny review in this case ........ 15

II. The decision below is correct .............................. 17

A. The States have a cognizable cause of

action ............................................................. 18

B. The transfers were unlawful ........................ 24

Conclusion .................................................................. 31

iv

TABLE OF AUTHORITIES

Page

CASES

Bengzon v. Sec’y of Justice of the

Philippine Islands

299 U.S. 410 (1937) ........................................ 27, 28

Clarke v. Sec. Indus. Ass’n

479 U.S. 388 (1987) ............................ 19, 20, 21, 22

Lexmark Int’l, Inc. v. Static Control

Components, Inc.

572 U.S. 118 (2014) .............................................. 12

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

Pottawatomi Indians v. Patchak

567 U.S. 209 (2012) ...................................... passim

Michigan v. EPA

576 U.S. 743 (2015) .............................................. 20

Miles v. Apex Marine Corp.

498 U.S. 19 (1990) ................................................ 22

Nevada v. Dep’t of Energy

400 F.3d 9 (D.C. Cir. 2005) .................................. 29

Office of Personnel Mgmt. v. Richmond

496 U.S. 414 (1990) .......................................... 1, 21

White Stallion Energy Ctr., LLC v. EPA

748 F.3d 1222 (D.C. Cir. 2014) ...................... 20, 23

v

TABLE OF AUTHORITIES

(continued)

Page

CONSTITUTIONAL PROVISIONS

United States Constitution

Article I, § 9 ........................................................ 1, 5

STATUTES

5 U.S.C. § 702 ............................................................ 18

10 U.S.C.

§ 284 .............................................................. passim

§ 2808 .......................................................... 7, 10, 11

33 U.S.C. § 1323(a) .................................................... 10

42 U.S.C. § 7506(c)(1) ................................................ 10

Consolidated Appropriations Act, 2017,

Pub. L. No. 115-31:

Div. F., Title VI, 131 Stat. 434............................... 3

Consolidated Appropriations Act of

2019, Pub. L. No. 116-6:

Div. A, Title II, § 230, 133 Stat. 28 ..................... 6

Div. A, Title II, § 231, 133 Stat. 28 ............... 6, 22

Div. A, Title II, § 232, 133 Stat. 28 ............... 6, 22

vi

TABLE OF AUTHORITIES

(continued)

Page

Department of Defense Appropriations

Act of 2019, Pub. L. No. 115-245:

Div. A, 132 Stat. 2982 ..................................... 4, 6

Div. A, Title VIII, § 8005,

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

Div. A, Title VIII, § 9002,

132 Stat. 3042.................................................... 9

Div. C, § 105(3), 132 Stat. 3124 .......................... 6

Illegal Immigration Reform and

Immigrant Responsibility Act of

1996, Pub. L. No. 104-208:

Div. C, § 102(c), 110 Stat. 3009-555 ....... 9, 12, 23

Pub. L. No. 116-5, 133 Stat. 10 ............................... 5, 6

COURT RULES

Fed. R. Civ. P. 54(b) ................................................... 11

OTHER AUTHORITIES

82 Fed. Reg. 35,984 (Aug. 2, 2017) ........................... 23

82 Fed. Reg. 42,829 (Sept. 12, 2017) ......................... 23

83 Fed. Reg. 3,012 (Jan. 22, 2018) ............................ 23

83 Fed. Reg. 50,949 (Oct. 10, 2018) .......................... 23

83 Fed. Reg. 51,472 (Oct. 11, 2018) .......................... 22

84 Fed. Reg. 17,184 (Apr. 24, 2019) ............................ 9

vii

TABLE OF AUTHORITIES

(continued)

Page

84 Fed. Reg. 21,798 (May 15, 2019) ............................ 9

Department of Defense—Availability of

Appropriations for Border Fence

Construction, B-330862, 2019 WL

4200949 (Comp. Gen. Sept. 5, 2019) ............. 25, 29

Department of Homeland Security,

Implementing the President’s Border

Security and Immigration

Enforcement Improvements Policies

(Feb. 20, 2017), https://bit.ly/2YtXeIg ................. 25

Department of Homeland Security,

Walls Work (Dec. 12, 2018),

https://bit.ly/2ZgdixF .............................................. 5

Donald J. Trump, Letter to Speaker of

House of Representatives, Mar. 16,

2017, https://bit.ly/31VpBBl .................................. 3

Donald J. Trump, Twitter (Mar. 25,

2018), https://bit.ly/2ENbJRa .............................. 27

Donald J. Trump, Twitter (Dec. 21,

2018), https://bit.ly/3gmkYo6 ................................. 5

Executive Order No. 13767, 82 Fed. Reg.

8,793 (Jan. 25, 2017) ............................................ 27

H.R. Rep. No. 662, 93d Cong., 1st Sess.

(1973) ....................................................... 26, 29, 30

viii

TABLE OF AUTHORITIES

(continued)

Page

House Amendment to H.R. 695, 115th

Cong. (Dec. 20, 2018).............................................. 4

McClanahan & Murray, Congressional

Research Service, Congressional

Action on FY 2019 Appropriations

Measures: 115th and 116th

Congresses (2019),

https://bit.ly/2FkFV5H ........................................... 5

Office of Management & Budget, Fiscal

Year 2019: An American Budget

(Feb. 12, 2018) ........................................................ 4

Proclamation No. 9844, 84 Fed. Reg.

4,949 (Feb. 15, 2019) ....................................... 7, 25

Story, Commentaries on the

Constitution of the United States

(1st ed. 1833) .......................................................... 1

1

INTRODUCTION

The “straightforward and explicit command” of the

Appropriations Clause is “that no money can be paid

out of the Treasury unless it has been appropriated by

an act of Congress.” Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (internal quotation

marks and citation omitted); see U.S. Const. art. I, § 9,

cl. 7. The founders vested the appropriations power in

the legislative branch because, “[i]f it were otherwise,

the executive would possess an unbounded power over

the public purse of the nation; and might apply all its

moneyed resources at his pleasure.” 3 Story, Commentaries on the Constitution of the United States

§ 1342 (1st ed. 1833).

In this case, the Executive disagreed with Congress’s decisions about how much money to spend on

the construction of barriers on the Nation’s southern

border. That disagreement was so severe that the

elected branches shut down much of the federal government for more than a month in late 2018 and early

2019 while they debated the matter. They finally

agreed to an appropriation—$1.375 billion for barrier

construction in Texas—that was far more limited than

what the President had requested. The same day that

the President signed that appropriation into law, however, he unilaterally announced plans to finance up to

$6.7 billion dollars of additional construction on other

parts of the border by transferring funds that Congress had appropriated for different purposes.

Petitioners principally urge the Court to grant review on the basis of their underlying merits arguments. See Pet. 18-32. But the courts below correctly

held that respondents are proper plaintiffs to challenge the $2.5 billion in transfers at issue in this case

and that those transfers are unlawful. As relevant

2

here, the state respondents’ claim under the Administrative Procedure Act satisfies the zone-of-interests

test, which allows a suit to proceed except where there

is a discernible congressional intent to preclude suit

by the plaintiff class. There is no such intent here; to

the contrary, the relevant statutes protect the interests of the States by requiring the Executive to adhere

to Congress’s decision not to appropriate funds for projects with harmful impacts in their territory. And the

transfers exceeded the narrow transfer authority that

Congress granted the Department of Defense in Section 8005 of the Department of Defense Appropriations Act of 2019, Pub. L. No. 115-245, Div. A, Tit. VIII,

132 Stat. 2981, 2999 (2018). First, the projects funded

by the transfers were not “unforeseen military requirements,” id., because the purported need for border-barrier construction (and the Department of

Homeland Security’s desire for the military to financially support that construction) long predated passage of that Act. Second, the projects were items for

which funds were “denied by the Congress,” id., when

it repeatedly rejected the President’s request for

broader and more geographically dispersed funding of

border barriers.

In any event, petitioners have not offered a persuasive reason for the Court to review those issues in this

case. Petitioners do not identify any relevant conflict

in the lower courts. Instead, they ground their request

for review in terms of the practical significance of the

case. See Pet. 17, 33-34. But while petitioners voice

concern that the injunction entered by the district

court below “interfere[s] with . . . the construction of

fences on the southern border” (id. at 17), the injunction has been stayed for the last 13 months, petitioners have apparently been spending the funds at issue

3

during that period (see id. at 34), and they do not explain to what extent their concern remains a live one.

And while petitioners assert that these issues will be

of recurring significance because “[t]ransfer statutes

like Section 8005 are commonplace,” id. at 33, there is

no indication that the Executive commonly violates

other such statutes. To the extent that future litigation over prospective violations of similar transfer

statutes leads to an actual conflict of authority, the

Court can address that conflict after it arises.

Should the Court wish to review this case now, the

state respondents are of course prepared to continue

litigating it. The better course, however, would be for

the Court to deny the petition and leave the court of

appeals’ judgments in place.

STATEMENT

A. Background

1. President Trump has long supported the construction of a wall on the Nation’s southern border

with Mexico. Pet. App. 3a. But “Congress has repeatedly declined to provide the amount of funding requested by the President” for that purpose. Id. at 81a.

For fiscal year 2017, the President asked for almost $1

billion for border-wall construction. 1 Congress instead appropriated $341.2 million to replace 40 miles

of existing fencing. Consolidated Appropriations Act,

2017, Pub. L. No. 115-31, Div. F, Tit. VI, 131 Stat. 135,

1 See Donald J. Trump, Letter to Speaker of House of Representatives (Mar. 16, 2017), https://bit.ly/31VpBBl, at 1 (attaching appropriations requests, including request to “fund efforts to plan,

design, and construct a physical wall along the southern border”);

id., Attachment, at 3 (memorandum regarding appropriations requests, including “$999 million for planning, design and construction of the first installment of the border wall”).

4

434 (2017). For fiscal year 2018, the President “requested $2.6 billion for border security, including

‘funding to plan, design, and construct a physical wall

along the southern border.’” Pet. App. 210a. Congress

provided just $1.571 billion. Id.

Later in 2018, Congress considered several bills to

appropriate billions of additional dollars for border

barriers. Pet. App. 309a. Those bills did not pass. Id.

And the additional spending proposed in those bills

was not incorporated into any legislation that did pass,

including the Department of Defense Appropriations

Act of 2019, Pub. L. No. 115-245, Div. A, 132 Stat. 2981,

2982 (2018), which the President signed on September

28, 2018.

In December 2018, the President and Congress attempted to negotiate an appropriations bill to fund

various other departments (including the Department

of Homeland Security) for what remained of the fiscal

year. Pet. App. 309a. The President initially requested $1.6 billion for 65 miles of border-barrier construction in Texas. Id. at 310a.2 Congress did not pass

any legislation funding that request. The President

and his allies next requested funding in an even

higher amount—$5.7 billion—to fund barrier projects

in California and New Mexico, as well as Texas and

Arizona.3 Congress did not approve that request either, and the President announced he would not sign

2 See

Office of Management & Budget, Fiscal Year 2019: An

American Budget (Feb. 12, 2018), at 58, reproduced in D. Ct. Dkt.

112-1, Ex. 51; see also id. at 2. (Citations to “D. Ct. Dkt.” are to

the docket in California v. Trump, No. 19-cv-872 (N.D. Cal.).)

3 See House Amendment to H.R. 695, 115th Cong., Div. A, § 141

(Dec. 20, 2018) (proposal to appropriate $5.7 billion for “U.S. Customs and Border Protection—Procurement, Construction, and

5

any bill that lacked such funding.4 As a result of that

impasse, and because the Constitution provides that

“[n]o money shall be drawn from the Treasury, but in

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

Const. art. I, § 9, cl. 7, the government partially shut

down.

During the shut-down, the Office of Management

and Budget wrote to Congress, again requesting “‘$5.7

billion for construction of a steel barrier for the Southwest border.’” Pet. App. 310a (quoting Jan. 6, 2019

letter from Acting Director of Office of Management

and Budget). The request explained that this appropriation would “‘fund construction of a total of approximately 234 miles of new physical barrier.’” Id. It also

stated that the “‘[a]ppropriations bills for fiscal year

(FY) 2019 that have already been considered by the

current and previous Congresses are inadequate to

fully address these critical issues.’” Id. After the shutdown had lasted 35 days, Congress passed a stop-gap

funding bill to reinstate existing levels of funding for

three weeks. Pet. App. 213a. The President signed

that bill on January 25. Pub. L. No. 116-5, 133 Stat.

10 (2019). The stop-gap bill continued funding

Improvements”), reproduced in D. Ct. Dkt. 57-7, Ex. 24; Dep’t of

Homeland

Security,

Walls

Work

(Dec.

12,

2018),

https://bit.ly/2ZgdixF (stating that “if funded at $5B in FY 2019,”

the Department would construct “border wall[s]” in its “highest

priority” areas, including “El Centro Sector in California,” “El

Paso Sector in New Mexico,” “Rio Grande Valley Sector in Texas,”

and three other sites in California, Texas, and Arizona), reproduced in D. Ct. Dkt. 57-7, Ex. 40.

4 McClanahan & Murray, Congressional Research Service, Con-

gressional Action on FY 2019 Appropriations Measures: 115th

and 116th Congresses 7-8 (2019), https://bit.ly/2FkFV5H; Donald

J. Trump, Twitter (Dec. 21, 2018), https://bit.ly/3gmkYo6 (“Shutdown today if Democrats do not vote for Border Security!”).

6

through February 15 at the levels set in the previous

Continuing Appropriations Act that had expired on

December 7, 2018. See id. § 101(1), 133 Stat. at 10;

Pub. L. No. 115-245, Div. C, § 105(3), 132 Stat. 2981,

3124 (2018).

2. On February 14, 2019, when the stop-gap funding was about to expire, Congress passed the Consolidated Appropriations Act of 2019 (CAA). Pub. L. No.

116-6, 133 Stat. 13 (2019). The CAA consolidated separate appropriations acts related to different federal

agencies into one bill. Pet. App. 312a. One of those

acts was the Department of Homeland Security Appropriations Act for Fiscal Year 2019. CAA, Div. A,

133 Stat. at 15.

In Section 230(a)(1) of Title II of that enactment,

Congress addressed the issue that had led to the shutdown: funding for the construction of border barriers.

It provided $1.375 billion “for the construction of primary pedestrian fencing, including levee pedestrian

fencing, in the Rio Grande Valley Sector” in Texas

alone. CAA, Div. A, Tit. II, § 230(a)(1), 133 Stat. at 28.

In the same section, Congress imposed certain procedural and substantive requirements related to the environmental impact of barrier construction and

potential infringements on state and local government

interests within the sector where the funded construction would take place. See id. §§ 230(b), 231, 133 Stat.

at 28 (prohibiting construction within certain wildlife

refuges and state and federal parks); id. § 232, 133

Stat. at 28-29 (requiring notice-and-comment procedures prior to the use of any funds for construction

within certain city limits in the sector). The President

signed the CAA into law the next day. Pet. App. 313a.

7

3. The same day that the President signed the

CAA, he issued a proclamation “‘declar[ing] that a national emergency exists at the southern border of the

United States.’” Pet. App. 313a (quoting Proclamation

No. 9844, 84 Fed. Reg. 4,949 (Feb. 15, 2019)). The

proclamation stated that “‘[t]he current situation at

the southern border presents a border security and humanitarian crisis’”; the border was “‘a major entry

point for criminals, gang members, and illicit narcotics’”; and there was a “‘longstanding’” problem of

“‘large-scale unlawful migration’” that had worsened

“‘in recent years.’” Id. at 313a-314a. “‘Because of the

gravity of the current emergency situation,’” the proclamation stated, “‘it is necessary for the Armed Forces

to provide additional support to address the crisis.’”

Id. The President authorized the Department of Defense to use “‘the construction authority provided in’”

10 U.S.C. § 2808 to provide such support. Id. at 314a.

Section 2808 authorizes the Secretary of Defense, “[i]n

the event of a declaration of war or [a Presidential declaration] of a national emergency . . . that requires use

of the armed forces,” to “undertake military construction projects . . . not otherwise authorized by law that

are necessary to support such use of the armed forces.”

10 U.S.C. § 2808(a).

A White House publication issued the same day as

the presidential proclamation identified “‘up to $8.1

billion that will be available to build the border wall.’”

Pet. App. 315a. In addition to the $1.375 billion appropriated in the CAA, this figure included “‘[u]p to

$3.6 billion reallocated from Department of Defense

military construction projects’” under 10 U.S.C.

§ 2808, and about $601 million from the Treasury Forfeiture Fund. Id. It also included “‘[u]p to $2.5 billion

[of] Department of Defense funds transferred’” for use

under 10 U.S.C. § 284, which permits the Secretary of

8

Defense to provide support for the counter-drug activities of other federal departments and agencies. Id.

Ten days after the proclamation, the Department

of Homeland Security invoked Section 284 and submitted a request to the Department of Defense for assistance “with the construction of fences[,] roads, and

lighting” to block purported drug-smuggling corridors

on the southern border. C.A. E.R. 272; see Pet. App.

317a. The Acting Secretary of Defense ultimately approved the request for assistance as to seven projects,

including the El Paso Sector 1 project in New Mexico

and the El Centro Sector 1 project in California that

are at issue here. Pet. App. 83a. At the time, however,

the Department of Defense had already spent or obligated most of the appropriation for Section 284 activities in the 2019 Defense Appropriations Act, for

projects unrelated to border-barrier construction. The

counter-narcotics support account contained less than

10 percent of the $2.5 billion that the seven borderbarrier projects would cost. Pet. App. 5a.

To fill that gap, the Acting Secretary of Defense announced that he would transfer funds from other accounts into the Section 284 account, claiming

authority to do so under Section 8005 of the 2019 Defense Appropriations Act. That provision allows the

Secretary of Defense to transfer up to $4 billion

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 . . . . Provided, That such authority to transfer may not be used unless for

higher priority items, based on unforeseen

military requirements, than those for which

9

originally appropriated and in no case where

the item for which funds are requested has

been denied by the Congress[.]

Pub. L. No. 115-245, Div. A, Tit. VIII, § 8005, 132 Stat.

at 2999. A further provision, also referenced by the

Acting Secretary, allows transfers of up to an additional $2 billion “between the appropriations or funds

made available to the Department of Defense in this

title . . . subject to the same terms and conditions as

the authority provided in section 8005.” Id. § 9002,

132 Stat. at 3042. Invoking these provisions, the Acting Secretary transferred $1 billion from Army personnel funds and “$1.5 billion from ‘various excess

appropriations,’ which contained funds originally appropriated for purposes such as modification of inservice missiles and support for U.S. allies in Afghanistan.” Pet. App. 5a-6a.

Thereafter, the Acting Secretary of Homeland Security invoked authority under the Illegal Immigration Reform and Immigrant Responsibility Act of

1996, as amended (IIRIRA), Pub. L. No. 104-208, Div.

C, § 102(c), 110 Stat. 3009, 3009-555, to waive legal

requirements that ordinarily would apply to the construction projects. See 84 Fed. Reg. 17,184 (Apr. 24,

2019); 84 Fed. Reg. 21,798 (May 15, 2019). As relevant

here, with respect to the El Paso Sector project in New

Mexico and the El Centro Sector project in California,

he waived all “federal, state, or other laws, regulations, and legal requirements of, deriving from, or related to the subject of ” various statutes including the

Clean Water Act, Clean Air Act, and Endangered Species Act. 84 Fed. Reg. at 17,185; 84 Fed. Reg. at

21,799. The Clean Air Act and Clean Water Act are

cooperative federalism programs that typically require federal agencies to adhere to state regulatory

10

standards and processes. See 33 U.S.C. § 1323(a); 42

U.S.C. § 7506(c)(1). As a result of the waiver, however, the construction projects financed by the transfers would not feature such a state role.

B. Proceedings Below

1. California, New Mexico, and other States sued

to challenge the transfers. 5 The complaint alleges,

among other things, that the diversions of funds violated the Administrative Procedure Act and were ultra

vires. C.A. E.R. 445-448. The case was assigned to the

same district court judge as another lawsuit that was

filed the next day by the Sierra Club and the Southern

Border Communities Coalition, which is also the subject of this petition.

The state plaintiffs moved for a preliminary injunction to bar the transfer of funds for construction in

New Mexico’s El Paso Sector. See Pet. App. 87a. The

district court held that the state plaintiffs had established standing, that they had stated a cause of action,

and that their claims were likely to succeed. Id. at

391a-424a. But the court denied the state plaintiffs’

request for provisional relief because the court was issuing an injunction in favor of the Sierra Club plaintiffs that, in its view, made any further injunction in

the California case duplicative. Pet. App. 431a.

5 The first amended complaint includes 20 state plaintiffs.

C.A.

E.R. 374. As to all the challenged transfers, California and New

Mexico based their claims on injuries they would suffer from border-wall construction in their territory. As to the challenges to

the Section 2808 transfers, which are not at issue here, California

and certain other state plaintiffs also based their claims on injuries they would suffer as a result of the diversion of money away

from projects that Congress had intended to fund in their territory and for their benefit. See infra n.6.

11

The States of California and New Mexico (the

States) then moved for partial summary judgment regarding the use, for the El Centro Sector and El Paso

Sector projects, of money that petitioners had transferred under the purported authority of Sections 8005

and 9002. Pet. App. 192a. The court granted the motion in part and issued a declaration that petitioners’

transfers of funds were unlawful. Id. at 195a. But the

court again denied the States’ request for injunctive

relief, noting that it was issuing a permanent injunction against the same transfers in the parallel Sierra

Club case. Id. at 200a. The court entered partial final

judgments in both cases under Rule 54(b), allowing for

an immediate appeal while other claims continued to

be litigated. See id. at 8a-9a, 88a; supra n.5.6

2. While those appeals were pending, petitioners

sought a stay of the permanent injunction in the Sierra Club case. That stay proceeding did not pertain

to the California case. A motions panel of the Ninth

Circuit denied the stay. Pet. App. 206a-273a; see id.

at 274a-299a (dissent). Petitioners then applied for a

stay from this Court. This Court granted the stay in

July 2019, observing that petitioners had “made a sufficient showing at [that] stage” that the Sierra Club

plaintiffs had “no cause of action to obtain review of

the Acting Secretary’s compliance with Section 8005.”

6 As previously noted, other claims in the California and Sierra

Club cases concerned petitioners’ transfers under Section 2808.

The district court eventually entered a separate judgment resolving those claims. It held that those transfers violated Section

2808, but again enjoined them only in the Sierra Club case.

D. Ct. Dkt. 257, at 37, 46-47 (order in both cases). That judgment

resolved all remaining claims in each case, and is the subject of

separate appeals that have been briefed and argued, but not yet

decided by the Ninth Circuit. See Ninth Cir. Nos. 19-17501, 1917502, 20-15044.

12

140 S. Ct. 1 (2019). In July 2020, the Sierra Club

plaintiffs filed a motion to lift that stay, which the

Court denied.

3. The court of appeals affirmed the district court’s

partial final judgments. Pet. App. 1a-40a, 78a-119a.

a. In its California decision, the court of appeals

first determined that California and New Mexico had

Article III standing. Pet. App. 88a-99a. The States

established that the challenged transfers caused them

two types of injury. First, the construction projects financed by the transfers would injure them by harming

specific endangered species in California and New

Mexico. Id. at 90a-94a. Second, the States had

“demonstrated that border wall construction injures

their quasi-sovereign interests by preventing them

from enforcing their environmental laws.” Id. at 94a.

Under federal law, activities on federal land within

the States’ boundaries are normally subject to state

regulations that protect air quality, water quality, and

endangered species. Id. at 94a-98a. By enabling the

Department of Homeland Security to construct border

barriers, however, the funding transfers allowed federal activity to occur without such state oversight and

in violation of applicable state law, pursuant to the

IIRIRA waivers that can apply to such construction.

Id.; see supra pp. 9-10.

The court next considered whether the States could

challenge the transfers under the APA. Pet. App.

100a-106a. It noted that APA plaintiffs must “establish that they fall within the zone of interests of the

relevant statute.” Id. at 100a. But this Court has “repeatedly emphasized that the zone of interests test is

‘not “especially demanding”’ in the APA context.” Id.

at 101a-102a (quoting Lexmark Int’l, Inc. v. Static

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

13

The interests asserted by a plaintiff need only be “‘arguably within the zone of interests to be protected or

regulated by the statute,’” and “‘the benefit of any

doubt goes to the plaintiff.’” Id. at 100a, 102a (quoting

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224, 225 (2012)). Here,

the States’ interest in preserving congressional control

over the relevant appropriations was congruent with

Congress’s purpose in enacting Section 8005. Id. at

103a. Moreover, the States’ status as regular beneficiaries of proper Section 8005 transfers (for purposes

such as disaster relief) made them “‘reasonable’ and

‘predictable’” plaintiffs to challenge a violation of the

statute. Id. at 106a (quoting Patchak, 567 U.S. at

227).7

On the merits, the court of appeals agreed with the

district court that “Section 8005 did not authorize

DoD’s budgetary transfer to fund construction of the

El Paso and El Centro Sectors.” Pet. App. 106a. The

court concluded that the $2.5 billion transfer at issue

here violated Section 8005 in three respects. First,

“the need for a border wall was not unforeseen.” Id. at

107a. “[U]nforeseen” means “‘not anticipated or expected.’” Id. at 108a. The problem of cross-border

drug-smuggling that the transfers addressed, in contrast, was longstanding. Id. So was the current administration’s position that the problem required

substantial funding for border barrier construction,

including possibly from the Department of Defense.

Id. at 109a-110a. Second, the El Centro and El Paso

construction projects were not “military requirement[s].” Id. at 112a. Instead of “‘relating to soldiers,

7 Because the States could advance an APA claim and because

that claim was meritorious, the court of appeals did not address

the States’ alternative claims. Pet. App. 100a n.12.

14

arms, or war,’” both projects were to support a civilian

agency in its civilian mission. Id. at 113a. And third,

the transfer would fund something that had been “denied by the Congress.” Id. at 116a. Congress “refused

to appropriate the $5.7 billion requested by the White

House in the CAA; instead Congress appropriated

$1.375 billion, less than a quarter of the funds requested, for ‘the construction of primary pedestrian

fencing . . . in the Rio Grande Valley Sector.’” Id. at

116a-117a.

The court of appeals thus affirmed the district

court’s partial judgment declaring that the transfer to

fund construction of the New Mexico and California

projects was unlawful. Pet. App. 118a. In the same

decision, the court concluded that the district court did

not abuse its discretion by denying the States a permanent injunction in light of the injunctive relief it

had granted in the Sierra Club case. Id. at 118a-119a.

But see id. at 119a (“depending on further developments in these cases, the States are free to seek further remedies in the district court”).

b. Judge Collins dissented. He agreed that the

States had established Article III standing, Pet. App.

127a-131a, but concluded that they had not asserted a

viable cause of action either under the APA, id. at

132a-145a, or with respect to their alternative claims,

id. at 145a-156a. He also concluded that the States’

claims would fail on the merits. Id. at 156a-173a.

c. In a separate opinion issued by the same panel

on the same day, the court of appeals concluded that

the Sierra Club plaintiffs had established standing

and ruled in their favor on their ultra vires claims.

Pet. App. 1a-34a. The court also affirmed the district

court’s grant of a permanent injunction in favor of the

15

Sierra Club plaintiffs. Id. at 34a-40a. Judge Collins

again dissented. Id. at 40a-77a.

ARGUMENT

I. THE COURT SHOULD DENY REVIEW IN THIS CASE

Petitioners principally contend that review should

be granted because “[t]he court of appeals erred in concluding that respondents are proper parties to challenge” the transfers (Pet. 16; see id. at 18-29) and

“further erred in finding any violation of Section 8005”

(id. at 17; see id. at 29-32). As explained in the next

section, however, the decision below is correct in both

respects. See infra pp. 17-30. In any event, under the

particular circumstances here, the questions raised by

petitioners do not warrant review in this case.

Petitioners have not identified any lower-court conflict on either question. Instead, petitioners ground

their request for review in terms of the practical significance of the case. They contend that the injunction

in Sierra Club will “interfer[e] with Executive Branch

conduct that is of ‘importance . . . to national security,’”

by blocking “the transfer of military funds to assist in

the construction of fences on the southern border to

stanch the flow of illegal drugs.” Pet. 17. But it is

unclear to what extent that remains a live concern

with respect to the funds that are subject to that injunction. The funds in question were appropriated in

the 2019 Defense Appropriations Act, for the fiscal

year that ended in September 2019. Id. at 4, 8. The

injunction has been stayed since July 2019. Id. at 11.

Petitioners do not say how much of the money has

been spent in the intervening 13 months, but they

acknowledge they have already used transferred

funds to “undertake the construction of more than 100

miles of fencing (and associated roads and lighting).”

16

Id. at 34. And the best way for petitioners to address

their practical concerns about the availability of funds

going forward would be through the regular appropriations process—not through protracted litigation of a

case concerning a diminishing tranche of funds.

Petitioners do not discuss how depletion of the

transferred funds would affect the continuing importance of the particular judgments below or the

Court’s jurisdiction over this case. Nor do they address the possibility of changes in the spending priorities of the Executive Branch. But the realistic

prospect of significant developments in one or more of

those areas in the coming months, which could complicate review of the legal questions raised by the petition,

counsels against further review of those questions in

this case.

Petitioners also contend that the Court should

grant this petition because “[t]ransfer statutes like

Section 8005 are commonplace.” Pet. 33. While this

type of statute might be common, Executive violations

of statutory transfer restrictions are rare—outside of

petitioners’ recent efforts to transfer funds for borderbarrier construction. 8 And to the extent that viola-

8 The petition does not mention that the Department of Defense

also transferred funds appropriated for fiscal year 2020 to support border-barrier construction, by again invoking Section 284

in conjunction with Section 8005 (of the 2020 Defense Appropriations Act). A separate challenge to those transfers is currently

being litigated in district court, and motions for summary judgment remain pending. See California v. Trump, No. 20-cv-1563

(N.D. Cal.). While some issues in that case overlap with issues

in this one, the two cases are distinct in several respects. See,

e.g., id., Dkt. 62 at 9 n.4 (federal defendants’ concession that cer-

17

tions of other, similar transfer statutes occur in the future, they can be expected to generate litigation. If

such litigation ever results in a conflict with the decision below, the Court can resolve the conflict at that

time, with the benefit of further perspectives from additional lower courts addressing additional factual circumstances.

The States are, of course, prepared to continue litigating the questions raised by the petition if this

Court prefers to address them now. But the better

course would be for the Court to deny the petition,

leave in place lower court judgments that are correct

on the merits, and avoid embarking on plenary review

of questions that could diminish in practical significance over the course of this Term. Allowing the Sierra Club injunction to go into effect may prevent some

remaining construction from proceeding, cf. Pet. 17, 34,

unless and until petitioners obtain legislation from

Congress funding it. But any injury from that practical effect would be limited in nature and does not, by

itself, warrant a grant of review in a case that does not

implicate any conflict and is otherwise a problematic

vehicle.

II. THE DECISION BELOW IS CORRECT

Petitioners argue that none of the respondents has

a cause of action to obtain judicial review of the legality of the challenged transfers. Pet. 18-29. That argument is incorrect. As both courts below recognized,

tain state plaintiffs fall within zone of interests in certain respects); id., Dkt. 62 at 12 (federal defendants’ argument that Congress “acquiesce[d]” in the Department’s use of § 8005 by

reauthorizing that section in the 2020 Defense Appropriations

Act).

18

there are multiple viable claims here. And independent of whether particular private parties may pursue

a cause of action, cf. 140 S. Ct. 1, at the very least California and New Mexico are entitled to a judicial determination of their claim under the Administrative

Procedure Act that the transfers violated Section 8005.

Petitioners’ brief defense of the legality of the transfers (Pet. 29-32) is unpersuasive and fails to establish

any compelling reason for review in this particular

case.9

A. The States Have a Cognizable Cause of Action

The court of appeals correctly held that the States

are proper parties to challenge the transfers under the

Administrative Procedure Act. Pet. App. 100a-106a.

The APA directs that “[a] person suffering legal wrong

because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5

U.S.C. § 702. To sue under that provision, the interests asserted by the plaintiff “must be ‘arguably within

the zone of interests to be protected or regulated by

the statute’ that he says was violated.” Match-E-BeNash-She-Wish Band of Pottawatomi Indians v.

Patchak, 567 U.S. 209, 224 (2012).

The zone-of-interests test is “‘not meant to be especially demanding.’”

Patchak, 567 U.S. at 225.

9 The States also advanced claims under the Constitution as well

as an equitable cause of action to enjoin petitioners’ ultra vires

conduct. Pet. App. 86a. Those claims provide an independent

basis for affirming the judgment below. Although the court of

appeals did not address them in its California decision, in light

of its holding that the States “prevail under the APA,” id. at 100a

n.12, it did address similar claims in its Sierra Club decision, and

correctly held that they were meritorious. Id. at 40a.

19

“‘[A]gency action [is] presumptively reviewable,’” and

courts “have always conspicuously included the word

‘arguably’ in the test to indicate that the benefit of any

doubt goes to the plaintiff.” Id. The test “forecloses

suit only when a plaintiff ’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the suit.’”

Id. Here, the States’ interests are directly related to—

and entirely consistent with—the interests protected

by the statutory provisions in question.

1. Section 8005 provides a measure of flexibility to

the Department of Defense, allowing the Secretary to

redirect emergency funds to unanticipated requirements in certain limited circumstances. That transfer

authority is subject to strict limitations, including the

requirements that the need for which the money is redirected must have been “unforeseen” and that transfers may not be directed to an item for which funds

have already “been denied by the Congress.” Pub. L.

No. 115-245, Div. A, Tit. VIII, § 8005, 132 Stat. at

2999. Congress imposed those restrictions to ensure

that the Department would not abuse the transfer authority by circumventing substantive appropriations

decisions that Congress had already made, or by sidestepping the process of asking Congress for appropriations in the first place. See generally Pet. App. 102a103a. In the context of the 2019 Defense Appropriations Act and other appropriations legislation enacted

during the same period, the restrictions help ensure

compliance with Congress’s decisions about funding

and implementing border-wall construction projects—

including its decision to deny funding for such projects

in California and New Mexico. See supra pp. 4-6 & n.3;

see generally Clarke v. Sec. Indus. Ass’n, 479 U.S. 388,

401 (1987) (the Court is “not limited to considering the

20

statute under which [the plaintiffs] sued, but may consider any provision that helps us to understand Congress’ overall purposes”).

The States’ interests are thus closely aligned with

the interests protected by the relevant statutes. Congress’s decision to reject appropriations for borderwall construction projects in California and New Mexico protected those States from the environmental

harms and loss of regulatory authority they would suffer if those projects moved forward. Section 8005 protects the same interests by preventing the

Department from unilaterally circumventing Congress’s funding decision. In challenging petitioners’

transfer of billions of dollars for border-wall construction in California and New Mexico as invalid under

Section 8005, the States are asserting interests that

fall well within the relevant zone of interests. Indeed,

under these circumstances, California and New Mexico are “predictable” challengers. Patchak, 567 U.S. at

227.

Moreover, this Court’s zone-of-interests precedents

do not require any “evidence of an intent to benefit the

plaintiff class.” White Stallion Energy Ctr., LLC v.

EPA, 748 F.3d 1222, 1270 (D.C. Cir. 2014) (Kavanaugh, J., concurring in part and dissenting in

part), rev’d on other grounds sub nom. Michigan v.

EPA, 576 U.S. 743 (2015). They teach “that suit

should be allowed unless there was a discernible congressional intent to preclude suit by the plaintiff

class.” Id.; see, e.g., Clarke, 479 U.S. at 399 (“presumption in favor of judicial review of agency action” is

“‘overcome whenever the congressional intent to preclude judicial review is “fairly discernible in the statutory scheme”’”). Here, Congress did nothing to signal

any intent to preclude the States from seeking judicial

21

review of executive actions that circumvented Congress’s funding decisions in this manner, causing foreseeable harm to the States’ air, water, and vulnerable

species. See Pet. App. 90a-98a. At the very least, it is

“‘arguabl[e]’” that the States fall within the relevant

zone of interest, which is all the test requires. Patchak,

567 U.S. at 224-225.

2. Petitioners assert that the States fail the zoneof-interests test because “Section 8005 protects the interests of DoD and Congress.” Pet. 20. That misunderstands the nature of the test. True, Section 8005

grants the Department of Defense limited transfer authority while safeguarding Congress’s institutional

role as the ultimate authority on spending decisions.

That does not mean, however, that the States’ interests are unrelated to or inconsistent with that provision. See Clarke, 479 U.S. at 399. To the contrary:

Section 8005 helps protect Congress’s substantive

spending choices.10 And the substantive choice at issue here—Congress’s denial of funding for border projects in California and New Mexico—protected the

States from harms that would predictably be caused

by barrier construction in their territory.

Like the dissenting judge below, petitioners also

argue that the States’ interests are insufficiently related to the purposes of Section 8005 because that provision does not require the Secretary of Defense to

consider state environmental or sovereignty interests.

See Pet. 19-20; Pet. App. 139a-140a (Collins, J., dissenting). But the zone-of-interests test does “not require any ‘indication of congressional purpose to

10 Cf. Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 428

(1990) (Appropriations Clause “assure[s] that public funds will be

spent according to the letter of the difficult judgments reached by

Congress as to the common good”).

22

benefit the would-be plaintiff.’” Patchak, 567 U.S. at

225. And the relevant zone of interests for any statute

must be understood in the light of other “provision[s]

that help[] us to understand Congress’ overall purposes.” Clarke, 479 U.S. at 401; see id. (considering

“the overall context” of “the statute under which respondents sued”).

Here, Section 8005 protects congressional funding

decisions, as reflected in the CAA and other statutes,

which in turn were often informed by consideration of

environmental interests and federal-state comity concerns.11 The overall context here also included Congress’s awareness that the Department of Homeland

Security had general authority to waive otherwise applicable federal and state environmental regulations

for border-wall construction projects. See supra pp. 910; Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990)

(presumption “that Congress is aware of existing law

when it passes legislation”). The Department had invoked that authority repeatedly in 2017 and 2018,

with respect to environmental laws of California, New

Mexico, and Texas.12 When Congress appropriated

11 For example, the CAA directly addressed the environmental

and comity concerns certain to arise from any border-barrier construction project. See CAA, Div. A, Tit. II, § 231, 133 Stat. at 28

(directing that “[n]one of the funds made available by this Act or

prior Acts are available for the construction of pedestrian fencing”

in certain environmentally sensitive locations); id. § 232, 133

Stat. at 28-29 (requiring Department of Homeland Security to

“confer” with local governments “and seek to reach mutual agreement” regarding design and alignment of barriers on lands

within the purview of those governments).

12 See Dep’t of Homeland Security, Determination Pursuant to

Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 83 Fed. Reg. 51,472 (Oct.

23

limited funds to the Department for a Texas barrier

project in the CAA, it imposed specific requirements to

protect certain environmental and comity interests

implicated by that construction. See supra p. 6. But

it never had a similar opportunity to impose comparable requirements with respect to the additional projects in other States—for which it repeatedly denied

funds—that were undertaken by the Department using funds transferred under the purported authority

of Section 8005. The interests of the States in seeking

to hold petitioners to the requirements of Section 8005

thus align with Congress’s overall purposes in this

area.

Finally, petitioners suggest that Congress could

not have intended judicial enforcement of the limitations in Section 8005 because those limitations involve

“judgments about national security that are uniquely

within the Executive Branch’s expertise.” Pet. 21.

Perhaps some of the prerequisites to a transfer under

Section 8005 may be ill-suited to judicial determination, such as the decision to declare a national emergency or the relative “priority” of particular military

requirements. Pub. L. No. 115-245, Div. A, Tit. VIII,

§ 8005, 132 Stat. at 2999. But that does not establish

any “discernible congressional intent to preclude review” altogether. White Stallion, 748 F.3d at 1269

(Kavanaugh, J., concurring in part and dissenting in

part). Petitioners do not suggest that the particular

11, 2018) (IIRIRA waiver of federal, state, and other environmental laws for construction of barriers and roads at border in Hidalgo County, Texas); see also 83 Fed. Reg. 50,949 (Oct. 10, 2018)

(same, in Cameron County, Texas); 83 Fed. Reg. 3,012 (Jan. 22,

2018) (same, near Santa Teresa Land Port, New Mexico); 82 Fed.

Reg. 42,829 (Sept. 12, 2017) (same, near Calexico, California); 82

Fed. Reg. 35,984 (Aug. 2, 2017) (same, near San Diego, California).

24

requirements that the States seek to enforce here present questions unsuitable for judicial determination.

See Pet. 21. And petitioners’ disagreement with the

decision below focuses on matters of statutory interpretation that the judiciary is well suited to resolve.

See id. at 30-32; infra pp. 24-30.

B. The Transfers Were Unlawful

The court of appeals correctly held that the challenged transfers were unlawful. Pet. App. 106a-118a.

Petitioners argue (Pet. 29-32) that Congress authorized the transfers in Section 8005. But Congress expressly forbade use of that transfer authority unless it

was “based on unforeseen military requirements,” and

also prohibited such transfers “where the item for

which funds are requested has been denied by the

Congress.” Pub. L. No. 115-245, Div. A, Tit. VIII,

§ 8005, 132 Stat. at 2999. As the lower courts recognized, the transfers here violated both requirements.

1. To begin with, the Department of Defense did

not initiate these transfers to serve “unforeseen military requirement[s].” Pet. App. 107a. Indeed, the

transfers did not support a “military requirement” at

all. Id. at 112a. The stated purpose of the transfers

was to support a civilian mission of the Department of

Homeland Security: building a wall to block drug

smuggling across the southern border. See id.

Even if that could be characterized as a “military

requirement,” it was hardly “unforeseen.” A need “is

unforeseen when it is ‘not anticipated or expected.’”

Pet. App. 108a. Here, nothing about the purported

need to fund border-barrier construction was unanticipated or unexpected at the time Congress enacted

Section 8005 in 2018. The President told Congress in

his State of the Union Address in 2017 of his plan for

25

a “great wall along our southern border.” C.A. S.E.R.

1276. Around the same time, the Secretary of Homeland Security stated that “[a] wall along the southern

border is . . . a critical component of the President’s

overall border security strategy.” Dep’t of Homeland

Sec., Implementing the President’s Border Security

and Immigration Enforcement Improvements Policies

(Feb. 20, 2017), https://bit.ly/2YtXeIg. And the presidential proclamation ordering the Department of Defense to carry out the challenged transfers referenced

conditions that long predated the enactment of Section

8005. See Pet. App. 313a-314a (referring to the “‘longstanding’” problem of “‘large-scale unlawful migration’” that had worsened “‘in recent years’”) (quoting

Proclamation No. 9844, 84 Fed. Reg. 4,949 (Feb. 15,

2019)).

Petitioners nonetheless argue that the need to

transfer funds for border-wall construction was “unforeseen” because the specific “request from DHS for

assistance” had not yet been made at the time “DoD

made its budget requests to Congress for the 2019 fiscal year.” Pet. 31; cf. Pet. App. 171a (Collins, J., dissenting). 13 That interpretation ignores the text of

Section 8005. The word “unforeseen” modifies “military requirements,” not “budget requests.” See Pet.

App. 110a. The purported “military requirement”

13 Petitioners rely (Pet. 31-32) on a GAO letter concluding that

the transfers did not violate Section 8005. See Department of

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

5, 2019). But that letter sheds little light on the meaning of Section 8005. In applying key statutory terms, it simply relies on

the Department of Defense’s internal policies. See, e.g., id. at *7

(“Once DOD accepted DHS’s request, the provision of support

constituted a military requirement as defined in DOD’s internal

guidance.”).

26

here—the “provision of support” for border-barrier

construction on the southern border, Pet. 32—was

well known by the time Congress enacted the 2019 Defense Appropriations Act.

Petitioners’ contrary interpretation would open a

multi-billion-dollar loophole in Section 8005. Section

284(a) authorizes the Department of Defense to “provide support for the counterdrug activities . . . of any

other department or agency of the Federal Government[.]” 10 U.S.C. § 284(a). Petitioners’ interpretation would allow the Department to transfer billions

of dollars into its counter-narcotics account and use

those funds to support any federal agency that requests counterdrug support. Cf. 10 U.S.C. § 284(a) (allowing Section 284(a) funds to be used to support “any

State, local, tribal, or foreign law enforcement

agency”). So long as the Executive Branch coordinates

to make sure that the other agency’s request comes to

the Department after it sends “its budget requests to

Congress” for the relevant fiscal year, Pet. 31, petitioners’ interpretation would allow the Department to

treat the request as “unforeseen.” Petitioners identify

no plausible reason why Congress would have granted

the Executive free rein, over such an enormous

amount of federal funding, with respect to matters

that Congress routinely considers in its annual appropriations process. Congress “imposed [the] conditions”

in Section 8005 “in order to ‘tighten congressional control of the re-programming process,’” Pet. 21 (quoting

H.R. Rep. No. 662, 93d Cong., 1st Sess. 16-17 (1973))

(emphasis omitted)—not to loosen it.

And even accepting that the relevant “requirement” was the “request from DHS for assistance,” Pet.

31, the transfers here would still violate Section 8005

because the budget requests made by the Department

27

of Homeland Security were also “anticipated and expected,” Pet. App. 111a. In January 2017, more than

two years before the transfer at issue, the President

instructed the Secretary of Homeland Security to

“[i]dentify and, to the extent permitted by law, allocate

all sources of Federal funds for the planning, designing, and constructing of a physical wall along the

southern border.” Exec. Order No. 13,767, § 4(b), 82

Fed. Reg. 8,793, 8,794 (Jan. 25, 2017) (emphasis

added). Just over a year later, the President stated

that “our Military is again rich” and the Nation should

“[b]uild [the] WALL through [the] M[ilitary].” Donald

J.

Trump,

Twitter

(Mar.

25,

2018),

https://bit.ly/2ENbJRa. A month after that, in April

2018, the President instructed the Secretary of Defense to “‘support the Department of Homeland Security in securing the southern border.’” Pet. App.

111a.14 And for most of fiscal year 2018, which ran

through September 2018, the Department of Defense

held back 84 percent of its Section 284 funds—totaling

$947 million—precisely to save them “‘for possible use

in supporting Southwest Border construction.’” Pet.

App. 111a; see C.A. S.E.R. 1206-1207. The specific

February 2019 budget request that petitioners invoked to support these transfers may have occurred

after passage of the 2019 Defense Appropriations Act,

but the surrounding circumstances made that request

entirely foreseeable—if not inevitable.

2. The challenged transfers also funded an “item”

that had been “denied” by Congress. Pet. App. 116a.

“An item of an appropriation bill” is “a specific appropriation of money.” Bengzon v. Sec’y of Justice of the

14 See also C.A. E.R. 172 (Acting Secretary of Defense’s 2019

memorandum relying on that instruction to justify the transfers

challenged here).

28

Philippine Islands, 299 U.S. 410, 414 (1937). Here,

the Executive Branch asked Congress to specifically

appropriate $5.7 billion for border-wall construction

projects in California and New Mexico as well as Texas

and Arizona. See supra pp. 4-5 & n.3. But the legislation that Congress enacted and the President signed

appropriated just a fraction of that amount, limited to

border-wall projects in Texas. Supra p. 6. Indeed,

Congress has never appropriated funds for the California and New Mexico projects at issue here—before

or since—despite numerous opportunities to do so.

Congress’s repeated denial of “a specific appropriation

of money,” Bengzon, 299 U.S. at 414, for these projects

“precludes the use of Section 8005’s transfer authority,”

Pet. App. 117a.15

Petitioners argue that Congress has not previously

“denied” this item because “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.” Pet. 30. That

again relies on an unduly narrow reading of the statutory text. Section 8005 of the 2019 Defense Appropriations Act refers to an “item . . . denied by the

Congress”—not an item “requested by the Department

of Defense and denied by the Congress,” or an item

“denied by the Congress in this Act.” The President

requested that Congress appropriate money for border-barrier construction on 234 miles of barriers along

15 This conclusion does not amount to recognizing a “repeal[] by

implication” of Section 8005. Amicus Br. of Rep. Barr 24. The

CAA left Section 8005 intact; Congress’s decisions in the CAA,

however, foreclose petitioners from satisfying Section 8005’s “denied” proviso with respect to the transfers at issue here.

29

the southwest border in four States, and Congress denied that request except as to specific projects in one

State—Texas. Section 8005 thus bars the transfer.16

Invoking the legislative history of a predecessor

statute, petitioners argue that Congress aimed “to ensure that DoD would not transfer funds for items in its

budget that ‘ha[d] been specifically deleted in the legislative process.’” Pet. 31. Petitioners misunderstand

the House report they quote. The report referenced

such behavior as a particularly egregious example of

Executive Branch officials undermining the integrity

of the appropriations process. See H.R. Rep. No. 662,

93d Cong., 1st Sess. 15-16 (1973) (House Report). But

the transfer statute Congress enacted—which was “intended to tighten congressional control of the reprogramming process,” id. at 16—also applies to other

circumstances. Congress made sure of that by using

the broad word “denied” rather than the narrower

word “deleted.” As the report explains, “[t]he provisions state that no reprogramming or transfer request

may be made for an item which has been denied by

16 Petitioners again rely (Pet. 30) on the GAO letter, which reasoned that the “denied” proviso was not implicated because Congress had not denied appropriations to the Department of

Defense specifically “for its counter-drug activities . . . under section 284 to support” the Department of Homeland Security’s border-construction activities. 2019 WL 4200949, at *8. That

reasoning reverses the inferences that should be drawn from

Congress’s funding decision. A basic principle of appropriations

law is that “ ‘[a]n appropriation for a specific purpose is exclusive

of other appropriations in general terms which might be applicable in the absence of the specific appropriation.’ ” Nevada v. Dep’t

of Energy, 400 F.3d 9, 16 (D.C. Cir. 2005). Here, Congress’s appropriation of specific funds for the particular border-barrier construction in Texas prohibits the agencies from using other,

general funds for similar projects in California and New Mexico.

30

Congress in the budgetary process.”

added).

Id. (emphasis

Relatedly, petitioners contend that the term “item”

refers only to specific requests in the Department of

Defense’s budget proposal to Congress. Pet. 30; see

also Pet. App. 157a-163a (Collins, J., dissenting). But

the term does not inherently carry the limited meaning that petitioners would give it. And the same legislative history that petitioners invoke indicates that

Congress used the term “item”—in this very context—

interchangeably with broader terms such as “projects”

and “programs.” See House Report at 16 (discussing

the “limitation on the requesting of reprogramming

funds for projects or items which are of a lower priority

from programs of higher priority”). There can be no

doubt that Congress denied funding for the projects at

issue here.

31

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

HECTOR BALDERAS

Attorney General

of New Mexico

TANIA MAESTAS

Chief Deputy

Attorney General

NICHOLAS M. SYDOW

Civil Appellate Chief

JENNIE LUSK

Civil Rights

Bureau Chief

Counsel for the State

of New Mexico

XAVIER BECERRA

Attorney General

of California

MICHAEL J. MONGAN

Solicitor General

ROBERT W. BYRNE

MICHAEL L. NEWMAN

EDWARD H. OCHOA

Senior Assistant

Attorneys General

JOSHUA A. KLEIN

Deputy Solicitor General

MICHAEL P. CAYABAN

CHRISTINE CHUANG

Supervising Deputy

Attorneys General

BRIAN J. BILFORD

HEATHER C. LESLIE

NOAH M. GOLDEN-KRASNER

SPARSH S. KHANDESHI

LEE I. SHERMAN

JANELLE M. SMITH

JAMES F. ZAHRADKA II

Deputy Attorneys General

Counsel for the State

of California

September 16, 2020