Amicus Curiae 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 Anited States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., PETITIONERS,

V.

SIERRA CLUB, ET AL., RESPONDENTS

On Writ of Certiorari to the

United States Court of Appeals for Ninth Circuit

BRIEF OF RIO GRANDE LANDOWNERS COALITION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

KIRSTEN M. CASTANEDA DOUGLAS W. ALEXANDER

ALEXANDER DUBOSE & Counsel of Record

JEFFERSON LLP COLLEEN GARCIA

8144 Walnut Hill Lane ALEXANDER DUBOSE &

Suite 1000 JEFFERSON LLP

515 Congress Avenue

Suite 2350

Austin, Texas 78701-3562

(512) 482-9300

dalexander@adjtlaw.com

Dallas, Texas 75231-4388

[Additional counsel listed at end of brief]

TABLE OF CONTENTS

Interest of the AM1cus CUPide ..........ccccceccccccececccecececcece

TntroductiOn..............cccecccceccecccceccccececceccecsccececcecesecceuenees

ALSUMENS... oe cec cee c sec eeceeceeceecceccecceccucescescescesceseeseeeeeees

I. Youngstown underscores why both

Plaintiffs and Laredo landowners have a

CAUSE Of ACTION. ......cccccccccccccccccccccceccecccccceccecceucecces

II. Dalton does not change the Youngstown

ANALYSIS. ......c cece eeceececceceecccecceccscesceceucesceseusesseees

CONCIUSION ........cccccccccccccccccccccceccceccccccecceecceecceusecuceccceccecs

.8

11

ill

TABLE OF AUTHORITIES

Cases

2,958.15 Acres of Land v. U.S.,

350 F.2d 356 (Sth Cir. 1965)....ccccccccscseceseseees

Abbott v. Beth Israel Cemetery Assn of

Woodbridge,

100 A.2d 532 (NJ. 1953) ccccccccccccccsssescscseseees

Batalla Vidal v. Wolf,

16CV4756NGGVMS, 2020 WL 6695076

(E.D.N.Y. Nov. 14, 2020) voccccccccccecececsesessseeees

Bivens v. Six Unknown Fed. Narcotics

Agents,

403 U.S. 388 (1971) ccccccccccsscscssscscssescscseseeeeee

Casa de Md., Inc. v. Wolf,

8:20-CV-02118-PX, 2020 WL 5500165

(D. Md. Sept. 11, 2020) ..ccccccccccscecesesseseeeseees

Catlin v. U.S.,

324 U.S. 229 (1945) ..ccccccccccecsssssscscsesesseeescseees

Corr. Servs. Corp. v. Malesko,

534 US. 61 (20D) cececcccceccccsssessescecsesessesescseees

Dalton v. Specter,

B11 U.S. 462 (1994) ...cccccccccsccsssescecsesesseseecseees

Franklin v. Mass.,

BOB U.S. 788 (1992) ...ccccccccccssssssscscsesesseseecseees

Haitian Refugee Ctr. v. Gracey,

809 F.2d 794 (D.C. Cir. 1987) ..ccccccccscscseseeee

1V

Immigrant Legal Res. Ctr. v. Wolf,

20-CV-05883-JSW, 2020 WL 5798269

(N.D. Cal. Sept. 29, 2020) ..cccccccccccesssssssescecsesesssseeeseees 15

Nw. Immigrant Rts. Project v. United

States Citizenship & Immigr. Servs.,

CV 19-3283, 2020 WL 5995206 (D.D.C.

Oct. 8, 2020) oo. e eee eecceccseceecceeeeeccsceessescesseeesesees 15

Off. of Pers. Mgmt. v. Richmond,

A496 U.S. 414 (1990)... eee cceecceeceeesesseeeseeeeees 16

Pangea Legal Servs. v. U.S. Dept of

Homeland Sec.,

No. 20-CV-09253-JD, 2021 WL 75756

(N.D. Cal. Jan. 8, 2021) ooo. ec ccc ceccecesceeenseeees 15

U.S. Dep't of Interior v. 16.03 Acres of

Land,

26 F.3d 349 (2d Cir. 1994) ooo. eec ees eecee es 17, 18

United States v. 162.20 Acres of Land,

639 F.2d 299 (Sth Cir. 1981)... ec eeec esse eens 4

United States v. 36.96 Acres of Land,

754 F.2d 855 (7th Cir.1985), cert.

denied, 476 U.S. 1108 (1986)... cece 9,11

W. Union Tel. Co. v. Penn. R.R. Co..,

195 U.S. 540 (1904)... ccc cecceeceecceeeeecesceeseseesees 8

Youngstown Sheet & Tube v. Sawyer,

3843 U.S. 579 (1952)... cece cece ececeeceseeseeeees passim

Statutes

5 U.S.C. § 106 ceccceccccscscscsssescscsesessevacsessssevacsessseevavsesesees 15

AO U.S.C. § 3114(a)(5) ccccececcscceccecscsesesscecscsesesscavseseseecacseees 3

AO U.S.C. § B14 (b)(1) cecccceccceccccecscsesessessscsesesecevscseseeeavseees 3

AO U.S.C. § BU V4(A)(L) ceccccececececcecscsesseseecscsesesevevsesessecavseees 4

CAA, 2020, Pub. L. No. 116-93, div. D, tit.

II, 133 Stat. 2317 § 209 (2019) .o.ccecccccccscssscscecseseeeeeee 13

Public Law 104-208, Div. C, 110 Stat. 3009-

546 (Sept. 30, 1996) (8 U.S.C 11038 note),

as amended by the REAL ID Act of

2005, Public Law 109-18, Div. B, 119

Stat. 231 (May 11, 2005) (8 U.S.C. 1103

note), as amended by the Secure Fence

Act of 2006, Public Law 109-367, section

3, 120 Stat. 2638 (Oct. 26, 2006) (8

U.S.C. 1103 note), as amended by the

Department of Homeland Security

Appropriations Act, 2008, Public Law

110-161, Div. E, Title V, section 564,

121 Stat. 2090 (Dec. 26, 2007)... cece cece cece eeeee 15

Constitutional Provisions

U.S. Const. amend. V ........ cece ccc cccceccccccececcccececccececcececsucecs 3

U.S. Const., art. I, 8.9, ch. Too ec ecceeceeceeeeeeee 2, 7

Other Authorities

A Rush to Expand the Border Wall That

Many Fear Is Here to Stay, N.Y. Times

(Nov. 28, 2020) .0.. 0. cece ccc cecceccecceccsceececeseeseeseeeeeeees 3, 6

Blackstone’s Commentaries (Browne’s

2X6 Mal Roto 9

vl

DHS OIG Report, CBP Has Not

Demonstrated Acquisition Capabilities

Needed to Secure the Southern Border,

DHS OIG Highlights (7/14/2020)

https://www.oig.dhs.gov/sites/default/file

s/assets/2020-07/OIG-20-52-Jul20. pdf... eee

Jahr, Eminent Domain (1958)... cece ccc ceceeceeceeeeeees

John Burnett, Between President Trump’s

Border Wall and the Rio Grande Lies a

‘No Man’s Land,’ NPR, Morning Edition

(2/14/2020)

https://www.npr.org/2020/02/14/8052399

27/between-president-trumps-borderwall-and-the-rio-grande-lies-a-no-man-

1

BRIEF OF RIO GRANDE LANDOWNERS COALITION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

The Rio Grande Landowners Coalition (RGLC) is

comprised of diverse individuals and entities—ranchers,

developers, small-business owners, small landowners,

single-family homeowners, a bank, a college, a lowincome housing project, and an orphanage—who own

riverfront properties on the Rio Grande in the U.S.

Border Patrol’s Laredo Sector.! RGLC’s members, and

their respective counsel, are listed in the appendix.

Two Executive Branch agencies are pursuing plans to

take substantial portions of RGLC properties for the

purpose of constructing a border wall. Each agency has

targeted a different area. North of the Laredo-Colombia

Bridge in the Laredo Sector, 52 miles of riverfront

properties lie in the path of border-wall construction

planned by the Department of Defense (DoD). South of

the bridge, 71 miles of riverfront properties lie in the path

of border-wall construction planned by the Department of

Homeland Security (DHS).

Wall construction both north and south of the bridge

cannot proceed unless and until the Executive acquires

RGLC properties through permanent condemnation.

Although RGLC’s members support border security

generally, they oppose the agencies compulsory

acquisition of their lands to build a border wall. More

specifically, they challenge the agencies’ selection of a 30-

foot-high wall across their properties as the one-size-fitsall solution to border security in the Laredo Sector,

1 Pursuant to Rule 37.6, amicus affirms that no counsel for a party

authored this brief in whole or in part and that no person other than

amicus, its members, and its counsel made a monetary contribution

to its preparation or submission. All parties have either filed blanket

consents to the filing of amicus briefs or provided their individual

consents to the filing of this brief.

2

without considering alternatives that are _ less

destructive, more efficient, and more effective.

This particular decision-making shortfall has been

faulted by DHS’s own Inspector General. His July 2020

Report criticized DHS’s failure “to assess and select the

most effective, appropriate, and affordable solutions to

obtain operational control of the southern border as

directed,” and failure to “use sound, well-documented

methodology to identify and prioritize investments in

areas along the border that would best benefit from

physical barriers.” DHS OIG Report, CBP Has Not

Demonstrated Acquisition Capabilities Needed to Secure

the Southern Border, DHS OIG Highlights (7/14/2020)

https://www.oig.dhs.gov/sites/default/files/assets/2020-

07/OIG-20-52-Jul20.pdf. The Inspector General further

observed that DHS “instead relied on prior outdated

border solutions to identify materiel alternatives for

meeting its mission requirement.” Id.

RGLC’s primary objection to federal seizure of their

properties is that the appropriations statutes upon which

DHS and DoD rely do not authorize border-wall

construction in the Laredo Sector—the only public

purpose that would support permanent condemnation of

properties there. RGLC thus agrees with Plaintiffs-

Respondents (Plaintiffs) that the Executive may not flout

Congress's command and divert taxpayer dollars for wall

construction that were appropriated for military

purposes, and that Plaintiffs may obtain judicial redress

to enjoin it.

RGLC has two independent bases to seek redress, one

of which is shared with Plaintiffs. Like Plaintiffs, redress

is available to RGLC’s members due to the protections

afforded them by the Constitution’s Appropriations

Clause. See U.S. Const., art. I, § 9, cl.7. And like

Plaintiffs, RGLC’s members challenge federal agencies

=)

which contend that their congressionally unauthorized

actions are shielded from judicial review.

RGLC has another, independent basis upon which to

obtain redress—the Fifth Amendment. See U.S. Const.

amend. V. In the Laredo landowners’ situation, the

Executive's actions go one step further than in Plaintiffs’

situation. The Laredo landowners face the Executive’s

permanently taking title to vast portions of their lands.

The unique aspects of eminent domain further illuminate

the untenability of Petitioners-Defendants’ (Defendants)

sweeping arguments here. And all these circumstances

show why RGLC is so vitally interested in the outcome of

this case.

Under the Declaration of Taking Act (DTA), upon the

filing of suit for permanent condemnation and deposit of

what the Executive unilaterally “estimate[s]” to be “just

compensation,” “title to the estate or interest specified in

the declaration vests in the Government.” 40 U.S.C. §§

3114(a)(5), (b)(1). But under the DTA, the interest the

Executive acquires is “only a defeasible title.” Catlin v.

U.S., 324 U.S. 229, 241 (1945) (emphasis added). In

defense, a landowner, rather than accept compensation,

may request the court to revest title. This Court has

found “no necessary inconsistency between the provisions

for transfer of title upon filing of the declaration and

making of the deposit and at the same time preserving

the owner’s preexisting right to question the validity of

the taking as not being for a purpose authorized by the

statute under which the main proceeding is brought.” Id.

at 241.

But what happens in the interim, while the parties

engage in litigation over “the validity ‘of the taking”? Id.

This is a pressing question, given that DoD and DHS plan

to immediately move forward with wall construction on

the lands they take.? Interim relief is critically important,

2 See, e.g., A Rush to Expand the Border Wall That Many Fear Is Here

to Stay, N.Y. Times (Nov. 28, 2020), https://nyti.ms/308EUZz5.

4

especially because the destructive impact that a border

wall would have on Laredo landowners’ properties is

difficult to overstate. The Executive plans to construct a

150-foot wide enforcement zone adjacent to its 30-foot

high wall, thereby splitting each property in two.? From

the landward side of the wall, the landowner’s vistas over

the river would be obliterated. And the remaining portion

of each property that lies south of the planned wall and

north of the river would become a “no man’s land.”4 This

would have a dramatic effect not only on the utility of

each parcel that suffers condemnation, but also on all

aspects of local economic, social, and civil life.

To prevent this catastrophic, and congressionally

unauthorized, destruction of their lands, Laredo

landowners must be able to seek and obtain injunctive

relief against border-wall construction during the

pendency of litigation over the validity of the takings. The

law furnishes them the means to do so. Landowners can

request an order under the DTA to withhold the

Government's taking possession of the property. See 40

U.S.C. § 3114(d)(1). And they can request the court to

“take appropriate injunctive action to enforce its order.”

See United States v. 162.20 Acres of Land, 639 F.2d 299,

305 (5th Cir. 1981).

However, it is foreseeable, and RGLC reasonably

anticipates, that the Executive will oppose its members’

requests for injunctive relief by making the same sort of

baseless arguments presented in opposition to the

injunctive relief Plaintiffs seek here. Like Plaintiffs,

RGLC’s members will argue that the appropriations

statutes that the Executive invokes do not authorize the

3 See https://www.expressnews.com/news/local/article/Border-Patrolreveals-where-border-wall-funding-12794957.php.

4 John Burnett, Between President Trump’s Border Wall and the Rio

Grande Lies a ‘No Man’s Land,’ NPR, Morning Edition (2/14/2020)

https://www.npr.org/2020/02/14/805239927/between-presidenttrumps-border-wall-and-the-rio-grande-lies-a-no-man-s-land.

»)

border-wall construction it plans to pursue, and that

constitutional prohibitions prevent such actions as well.

In response, one can foresee that the Executive will

advance the same arguments as presented in this case,

1e., Gv) the statutes in question do not themselves

authorize landowners to obtain judicial review, (11) review

is unavailable to them under the APA, and (iu)

constitutional review is unavailable based on the

Executive’s assertion that the landowners’ claims are

statutory, not constitutional.

Thus, the correct resolution of the threshold legal

issue before the Court in this case will guide (if not

outright determine) any future constitutional battles in

the Laredo Sector. As the Court decides how broadly to

read Dalton v. Specter, 511 U.S. 462 (1994), upon which

the Executive heavily relies, the Court should consider

not only the Appropriations Clause prohibition addressed

by Plaintiffs, but also the Fifth Amendment prohibition

implicated by the Executive’s planned permanent taking

of RGLC’s members’ properties.

Given the direct impact of a physical wall on their

property rights and the welfare of the local community,

RGLC and its members have a distinct and compelling

interest in the proper resolution of this case.

INTRODUCTION

Despite admonitions by both landowners and local

authorities to first allow the judicial system the

opportunity to determine whether DHS possesses the

requisite authority, that agency has already awarded

over a billion-dollars’ worth of contracts to construct 71

miles of 30-foot-tall border wall in the Laredo Sector,

without having yet acquired a single parcel of property

upon which to build it.5 The contractors to whom DHS

5 See https://www.cbp.gov/newsroom/national-media-release/cbpannounces-contract-award-new-border-wall-system-texas (CBP’s

6

awarded these cart-before-the-horse contracts are

chomping at the bit for the Executive Branch to

permanently condemn the massive stretches of properties

along the Rio Grande so that they can begin to bill their

contracts. See p. 3, n.2, supra.

Laredo landowners who comprise the Rio Grande

Landowners Coalition argue that the Executive’s planned

construction of a border wall in the Laredo Sector, and

condemnation of properties on which to build it, would

not “merely” constitute official action “in excess of the

authority delegated ... by the Congress,” but would also

be “contrary to... constitutional prohibition[s].” Dalton,

511 U.S. at 472 (quoting Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388, 3896-97 (1971)).

Specifically, permanent condemnation of RGLC’s

members properties for the purpose of constructing a

congressionally unauthorized border wall would deprive

landowners of rights secured to them by both the

Appropriations Clause and the Fifth Amendment. Thus,

in their defense of condemnation suits planned by the

Executive, regardless of whether RGLC’s members may

challenge wall construction and condemnations under the

APA, the Executive’s “actions may still be reviewed for

May 8, 2020 announcement of $275.5-million contract award to

construct 14 miles of contiguous “30-foot tall steel bollard wall” in

Laredo Sector)

https://www.dropbox.com/s/t7xljaupzhsgu70/Laredo%20Contract%2

OAward%202-

%20Press%20Release%2008032020%20FINAL%20v2.pdf?dl=0

(CBP’s August 3, 2020 announcement of $289.5-million contract

award to construct 17 miles of contiguous border wall in Laredo

Sector)

https://www.cbp.gov/newsroom/national-media-release/contractawards-additional-border-wall-system-laredo-texas-1 (CBP’s

September 30, 2020 announcement of $283,150,000 contract award

to construct 27 mile of contiguous border wall in the Laredo Sector,

and of $201,250,000 contract award to construct 13 miles of

contiguous border wall in Laredo Sector)

7

constitutionality.” Dalton, 511 U.S. at 469 (quoting

Franklin v. Mass., 505 U.S. 788, 801 (1992), citing, inter

alia, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579

(1952)).

This is comparable to Plaintiffs’ argument here.

Plaintiffs may judicially challenge the Executive's

unlawful diversion of billions of dollars from various

military accounts to fund border-wall construction

beyond Congress's authorization. This was not “merely”

official action in “excess of [statutory] authority,” it was

also “contrary to [a] constitutional prohibition.” Dalton,

511 U.S. at 472. Defendants’ actions violate the

Appropriations Clause’s prohibition that, “No Money

shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law.” U.S. Const., art. I, § 9, cl.7.

And because Plaintiffs seek to enjoin a constitutional

violation, they are not required to satisfy a statutory

“zone of interests’ requirement. See Resp. Br. 30-384.

As previously noted, Laredo landowners face

permanent condemnation of their properties by two

different Executive Branch agencies—DoD and DHS. To

simplify the discussion, this amicus brief will focus

exclusively on the condemnation actions planned by DHS.

Those planned condemnations provide a_ concrete

example of the hypothetical concern Plaintiffs have

already expressed: “Under Defendants’ view . . . had

President Truman invoked some statute in support of the

seizures that did not itself afford the mill owners a cause

of action, they would have been precluded from

challenging the seizure [as unconstitutional].” Sierra

Club Br. Opp. 20. The Laredo landowners’ present-day

plight brings this hypothetical concern to life. Under

Defendants’ view, because DHS has invoked a statute in

support of its claimed authority to permanently condemn

the Laredo landowners’ properties that does not itself

afford the landowners a cause of action, the landowners

are precluded from challenging those takings as

8

unconstitutional under the Fifth Amendment and the

Appropriations Clause.

As Plaintiffs have explained, Defendants’ view cannot

be the law. When matters progress to the point that DHS

files suits to permanently condemn RGLC’s members’

properties, the Court’s decision in this case will guide

lower courts’ resolution of the Laredo landowners’ Fifth

Amendment and Appropriation Clause challenges. Thus,

the controversy before the Court here presents

constitutionally critical questions that impact an

identifiable group of litigants beyond the named parties.

The Laredo landowners’ scenario provides an apples-toapples comparison with another private-property-rights

scenario: Youngstown. Thus, RGLC submits this amicus

brief to permit the Court to view the threshold issue in

this case through another constitutional lens beyond the

Appropriations Clause: that of the Fifth Amendment.

ARGUMENT

I. Youngstown underscores why both Plaintiffs

and Laredo landowners have a cause of action.

This Court has recognized the fundamental right to

own property, and the threat that eminent domain poses

to that right. “The exercise of the power of eminent

domain is against common right. It subverts the usual

attributes of the ownership of property.” W. Union Tel.

Co. v. Penn. R.R. Co., 195 U.S. 540, 569 (1904). Due to the

“serious nature of the right of eminent domain... it is

accompanied and restrained by inexorable limitations.”

Id. at 567. The core limitation is that the Executive

Branch cannot exercise the power of eminent domain

without a delegation of authority “given in express terms

or by necessary implication.” Id. at 569.

To protect property rights from unauthorized

condemnation by the Executive Branch, nations following

the common law tradition have vested the sovereign

power of eminent domain in the Legislative Branch alone.

9

“The power of eminent domain is a high sovereign power

that has been allotted to the legislative branch of the

sovernment since the Magna Carta.” Abbott v. Beth Israel

Cemetery Assn of Woodbridge, 100 A.2d 532, 540 (N.J.

1953) (citing Blackstone's Commentaries (Browne's

ed.1897), at 39, 44; Jahr, Law of Eminent Domain (1953),

§1, at 1-5).

Our Constitution is consistent with this centuries’ old

common-law tradition: “The exercise of the power of

eminent domain is vested in the legislative branch of the

Government.” 2,953.15 Acres of Land v. U.S., 350 F.2d

356, 359 (5th Cir. 1965). “No entity, public or private,

other than the legislature, can claim the sovereign

authority to condemn property—a ‘direct, significant

legally protectable interest—unless Congress has

delegated that authority to the party.” United States v.

36.96 Acres of Land, 754 F.2d 855, 858 (7th Cir.1985),

cert. denied, 476 U.S. 1108 (1986) (quoting Youngstown,

343 U.S. at 585).

The Executive Branch’s attempt to exercise eminent

domain for border-wall construction in the Laredo Sector

harks back to a situation previously addressed by this

Court. President Trump’s proclamation of a national

emergency requiring federal officials to seize landowners’

property for a border wall is analogous to President

Truman’s proclamation of a national emergency and

issuance of an executive order directing the Secretary of

Commerce to take possession of the Nation’s steel mills

during the height of the Korean war. See Youngstown,

343 U.S. at 579.

In Youngstown, the Court held that the constitutional

allocation of eminent-domain authority to Congress is not

altered by presidential decree of a national emergency—

not even in wartime. The Court did not refute that, due

to “[t]he indispensability of steel as a component of

substantially all weapons and other war materials,” a

nationwide steelworkers’ union strike in the midst of the

Korean War justified the President’s proclamation of a

10

national emergency. /d. at 583. However, even the

indisputable existence of that national emergency did not

alter the fundamental tenet that “[t]he President’s power,

if any, to issue the [seizure] order must stem either from

an act of Congress or from the Constitution itself.” Id. at

585.

The Court found no such power in the Constitution.

It held, first, that the President’s order to seize property

“cannot properly be sustained as an exercise of the

President’s military power as Commander in Chief of the

Armed Forces.” /d. at 587. The Court held, second, that

“the seizure order [cannot] be sustained because of the

several constitutional provisions that grant executive

power to the President.” Id.

Having found no authority in the Constitution itself

for the President to seize steel mills, the Court searched

for an act of Congress that would support his exercise of

eminent domain, and again found none:

There is no statute that expressly authorizes the

President to take possession of property as he did

here. Nor is there any act of Congress to which

our attention has been directed from which such

a power can fairly be implied.

Id. at 585.

Applying Youngstown, courts addressing the Laredo

landowners challenges to DHS’s_~ authority to

permanently condemn their properties must analyze

whether that authority can be found either in the

Constitution or in an Act of Congress. This Court’s

Youngstown holding already has established that not

even President Trump’s declaration of a _ national

emergency suffices to confer constitutional authority on

DHS to seize the Laredo landowners’ property. See id. at

587. The only remaining question under Youngstown 1s

whether an Act of Congress confers such authority, either

expressly or by fair implication. Simply put, DHS may not

11

exercise the power of eminent domain “unless Congress

has delegated that authority to [DHS].” 36.96 Acres of

Land, 754 F.2d at 858.

As demonstrated below, Congress did not delegate

authority to DHS to condemn landowners’ properties in

the Laredo Sector for the purpose of constructing a border

wall. Thus, like Plaintiffs here, Laredo landowners are

entitled to pursue injunctive relief to enjoin such

unconstitutional construction, and no decision by this

Court suggests otherwise.

II. Dalton does not change the Youngstown

analysis.

Defendants rely heavily on Dalton, but that case does

not change the Youngstown analysis. In Dalton, this

Court held the mere fact that an Executive Branch official

takes action that exceeds his statutorily delegated

authority does not, without more, support a

constitutional challenge. Dalton, 511 U.S. at 471-72. The

Laredo landowners understand that not “every action by

the President, or by another executive official, in excess

of his statutory authority is ipso facto in violation of the

Constitution.” Jd. at 472. But neither is the converse

invariably true, 1.e., that every action by the President, or

by another Executive Branch official, in excess of his

statutory authority is ipso facto not in violation of the

Constitution.

Youngstown provides the correct constitutional

analysis: If netther the Constitution nor an Act of

Congress affirmatively confers on DHS the authority to

seize private property to build a border wall, G) DHS may

not do so, and (11) the landowners may challenge the

action in court. The Youngstown analysis yields this

result regardless of whether DHS lacks congressional

authority because (1) there is no statute at all authorizing

the action (as in Youngstown) or (11) the action is not

authorized by an existing statute (as in Laredo). Nor is

the “zone of interests” requirement implicated in such a

12

case. As Judge Bork explained, “[w]lere a case lke

[Youngstown] to arise today, the steel mill owners would

not be required to show that their interests fell within the

zone of interests of the President's war powers in order to

establish their standing to challenge the seizure of their

mills as beyond the scope of those powers.” Haitian

Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir.

1987).

Dalton does not dictate a different result. The Court

there recognized that under certain circumstances—even

when the Executive Branch actor is the President, not

merely a federal agency—‘“the ‘President’s actions may

still be reviewed for constitutionality.” 511 U.S. at 469.

The central question, then, boils down to this: when is

review truly constitutional and not merely statutory?

Dalton’s quotation of this Court’s decision in Bivens cuts

to the heart of the matter, drawing a bright line

distinction between (i) “actions contrary to _ [fal

constitutional prohibition,” and (11) “those ‘merely said to

be in excess of the authority delegated ... by the

Congress.” Dalton, 511 U.S. at 472 (quoting Bivens, 403

U.S. at 396-97).

The Laredo landowners’ scenario brings into relief

both sides of the Bivens line. Like the Dalton

complainants, the Laredo landowners are prepared to

argue that any DHS action to permanently condemn their

properties for the purpose of building a border wall would

“Texceed] the authority delegated ... by the Congress.”

Bivens, 403 U.S. at 397. However, unlike the

complainants in Dalton, absent judicial redress the

Laredo landowners face the permanent loss of rights

protected by the Constitution—specifically, by the Fifth

Amendment and the Appropriations Clause. Thus, under

Bivens, DHS’s planned condemnation of properties in the

Laredo Sector, without having received the requisite

delegation of authority from Congress for doing so, would

13

be “contrary to... constitutional prohibition[s].” Jd. at

396-97.

That DHS lacks congressional authority to

permanently condemn properties in the Laredo Sector for

the purpose of building a border wall is beyond legitimate

dispute. As authority for its planned construction of 71

miles of border wall in the Laredo Sector, DHS has

invoked the Fiscal Year 2020 Consolidated

Appropriations Act (FY2020 CAA). See p. 5 n. 5, supra

(CBP announcing with each award of a construction

contract: “This project 1s funded by CBP’s Fiscal Year

(FY) 2020 appropriations.”). That Act appropriates

$1.375 billion for border barrier construction. See CAA,

2020, Pub. L. No. 116-98, div. D, tit. I], 1383 Stat. 2317,

2511-12 § 209 (2019). For two, independent reasons, the

FY2020 CAA authorizes neither construction of a border

wall in the Laredo Sector, nor the condemnation of

properties upon which to build it.

First, DHS flatly disobeyed Congress and never

submitted the “expenditure plan” that Congress

demanded as an absolute condition for DHS to

“obligate[]” any FY2020 CAA funds. Id. § 208 (mandating

that “no such amounts may be obligated prior to the

submission of such a plan” to Congress). With no

appropriated funds available for obligation or

expenditure in the Laredo Sector, DHS has no authority

under the FY2020 CAA to permanently condemn

properties there for the purpose of border-wall

construction.

Second, DHS never submitted the updated “Border

Security Improvement Plan” mandated by Congress in

the FY2020 CAA. Id. § 209(b)(2), (e). Thus, DHS has no

updated Plan it can point to as authority for construction,

much less an updated Plan that identifies the Laredo

Sector as one of “the highest priority locations” for barrier

construction—the only locations where such construction

may occur using FY2020 funds. Jd. §§ 209(b)(2) (“The

amount designated in subsection (a)(1) [$1.375 billion]

14

shall only be available for barrier systems that are

constructed in the highest priority locations as identified

in the Border Security Improvement Plan.”) (emphasis

added)). Moreover, in DHS’s February 2019 request to

DoD for assistance to construct 218 miles of border

barriers—to be funded by the $2.5 billion in DoD Section

284 funds at issue in this case, see Resp. Br. 7-8—DHS

has already identified its highest priority locations for

construction of barrier systems. None of those locations is

in the Laredo Sector. See J.A. 80, 94-95 (DHS designating

“in order of priority” its 11 highest priority barrier

construction projects—all in California, Arizona, and

New Mexico).

Even though the Laredo Sector condemnations would

involve actions by an Executive Branch agency—DHS—

rather than directly by the President, the right to

challenge this constitutional violation is as important in

the Laredo landowners’ scenario as in the present case.

In Dalton, “the President’s actions were not reviewable

under the APA, because the President is not an ‘agency’

within the meaning of the APA.” 511 U.S. at 469. In the

Laredo Sector, DHS sought to achieve similar nonreviewability of its actions under the APA. In May 2020,

DHS’s Acting Secretary, Chad Wolf, listed in the Federal

Register as waived the APA and 26 other statutes in

Webb County and Zapata County, Texas, where all of

RGLC’s members’ properties are located.6 Thus, by

administrative fiat, Acting Secretary Wolf undertook to

insulate from judicial review under the APA all of DHS’s

and its contractors actions in the Laredo Sector.

Assume, for purposes of argument, that the Acting

Secretary's waiver of the APA was lawful.’ In that event,

6 https://www.federalregister.gov/documents/2020/05/15/2020-

10383/determination-pursuant-to-section-102-of-the-illegalimmigration-reform-and-immigrant-responsibility.

7 Although it was not: Every court to consider the issue has

determined that Wolf “did not possess statutory authority” under the

15

DHS’s actions in the Laredo Sector, like the President’s

actions in Dalton, would “not [be] reviewable under the

APA[.]”’ 511 U.S. at 469. That situation tees up this core

Homeland Security Act “when he assumed the role of Acting

Secretary in November 2019.” Batalla Vidal ov. Wolf,

16CV4756NGGVMS, 2020 WL 6695076, at *8 (E.D.N.Y. Nov. 14,

2020); see also Pangea Legal Servs. v. U.S. Dept of Homeland Sec.,

No. 20-CV-09253-JD, 2021 WL 75756, at *4 (N.D. Cal. Jan. 8, 2021);

Nw. Immigrant Rts. Project v. United States Citizenship & Immigr.

Servus., CV 19-3283 (RDM), 2020 WL 5995206, at *24 (D.D.C. Oct. 8,

2020); Immigrant Legal Res. Ctr. v. Wolf, 20-CV-05883-JSW, 2020

WL 5798269, at *9 (N.D. Cal. Sept. 29, 2020); Casa de Md., Inc. v.

Wolf, 8:20-CV-02118-PX, 2020 WL 5500165, at *23 (D. Md. Sept. 11,

2020).

Recently, Wolf issued a memorandum purporting to ratify his

“delegable prior actions as Acting Secretary[.]” See

https://www.dhs.gov/sites/default/files/publications/20_0113_unders

ecretary-wolf-ratification-delegable-prior-actions.pdf. However, the

waivers Wolf issued under the REAL ID Act were not “delegable.”

They were committed to the “sole discretion” of the Secretary of

Homeland Security. Public Law 104-208, Div. C, 110 Stat. 3009-546,

3009-554 (Sept. 30, 1996) (8 U.S.C 11038 note), as amended by the

REAL ID Act of 2005, Public Law 109-13, Div. B, 119 Stat. 231, 302,

306 (May 11, 2005) (8 U.S.C. 1103 note), as amended by the Secure

Fence Act of 2006, Public Law 109-367, section 3, 120 Stat. 2638 (Oct.

26, 2006) (8 U.S.C. 1103 note), as amended by the Department of

Homeland Security Appropriations Act, 2008, Public Law 110-161,

Div. E, Title V, section 564, 121 Stat. 2090 (Dec. 26, 2007). Moreover,

at least one court has rejected attempts by Wolf to ratify his own

actions. See Immigrant Legal Res. Ctr., 2020 WL 5798269, at *9 (“The

effectiveness of the Ratification depends upon a valid appointment.”).

Thus, Wolf was acting without authority when he waived the APA

and 26 other statutes in Webb County and Zapata County. Therefore,

those waivers must be set aside under the APA. See 5 U.S.C. § 706 (a

“reviewing court shall... hold unlawful and set aside agency action”

that is “in excess of statutory ... authority” or “not in accordance

with law’).

16

question: May DHS’s permanent condemnation of Laredo

landowners properties “still be reviewed for

constitutionality”’? Dalton, 511 U.S. at 469.

This brings us full circle to Youngstown.

Constitutional review and injunctive relief were available

to the mill owners there because seizing the mills would

have been “contrary to [a] constitutional prohibition,”

Bivens, 403 U.S. at 3896-97, 1.e., “amounting to

lawmaking, a function that ‘the Constitution has

expressly confided to the Congress and not to the

President.” Pet. App. 247a (quoting Youngstown, 348

U.S. at 582). “To find authority so explicitly withheld is

not merely to disregard in a particular instance the clear

will of Congress. It is to disrespect the whole legislative

process and the constitutional division of authority

between President and Congress.” Id. at 609

(Frankfurter, J., concurring). Moreover, injunctive relief

was appropriate to enjoin seizure of the mills because

such relief “has long been recognized as the proper means

for preventing entities from acting unconstitutionally.”

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001).

The same is true as to DHS’s planned permanent

taking of RGLC’s members’ properties. And, under the

same reasoning, Plaintiffs are entitled to judicial review

because Defendants’ actions are contrary to the

constitutional prohibition embodied in the

Appropriations Clause. See Off. of Pers. Mgmt. v.

Richmond, 496 U.S. 414, 424 (1990) (holding that the

Appropriations Clause “means simply that no money can

be paid out of the Treasury unless it has been

appropriated by an act of Congress.”) (quotation marks

and citation omitted).

Whether an Executive Branch official acts in the

complete absence of statutory authority (as in

Youngstown) or in excess of statutory authority (as in

Laredo), the official’s action is not authorized by

Congress. And when the unauthorized act consists of the

official’s taking of private property protected by the Fifth

17

Amendment, that act is unconstitutional not “merely”

because it is “in excess of [statutory] authority,” but also

because it 1s “contrary to [a] constitutional prohibition.”

Bivens, 403 U.S. at 396-97 (emphasis added). Along the

same lines, when the unauthorized act itself violates the

Appropriations Clause by spending funds that Congress

has not appropriated for that purpose, that act is

unconstitutional not “merely” because it is “in excess of

[statutory] authority,” but also because it is “contrary to

[a] constitutional prohibition.” Jd. (emphasis added).

Because neither the Constitution nor an Act of Congress

authorizes such action, Youngstown instructs that the

action 1s subject to judicial redress. See 343 U.S. at 585.

By purporting to waive application of the APA in the

Laredo Sector, Acting DHS Secretary Wolf may have

hoped to insulate from judicial review DHS’s planned

permanent condemnation of landowners’ properties

there. But the effort fails because these condemnations

would constitute “actions contrary to . . . constitutional

prohibition[s].”".. Bivens, 403 U.S. at 396-97.

Consequently, even if judicial review is unavailable to

Laredo landowners under the APA, DHS’s actions “may

still be reviewed for constitutionality.” Dalton, 511 U.S.

at 469. In sharp contrast, the Dalton complainants did

not, and could not, argue that the President’s exercise of

discretion to close a military base was “contrary to [a]

constitutional prohibition.” Bivens, 403 U.S. at 396-97.

Consistent with these precepts, the Second Circuit

squarely held in a case involving the Secretary of the

Interior's condemnation of a parcel of property for the

Appalachian Trail that “condemnation decisions by

sovernmental entities to which Congress has delegated

eminent domain authority are subject to judicial review.”

U.S. Dep't of Interior v. 16.03 Acres of Land, 26 F.3d 349,

355 (2d Cir. 1994). When a condemnation action is

challenged as ultra vires, the governing standard

“requires the reviewing court to examine the challenged

action for the purpose of determining whether the

officials effecting the taking acted outside the scope of

18

their taking authority.” Id. (citing Catlin, 324 U.S. at

240). “[T]he ‘ultra vires’ standard requires the reviewing

court to ascertain the scope of the acting officials’

statutory authority and determine whether the officials’

action conformed with their authority.” Id.

This is precisely the challenge that will be available

to RGLC’s members against DHS’s ultra vires reliance on

the FY2020 CAA, which is a legally insupportable basis

for taking their properties. This Court should decline to

undermine Laredo landowners constitutionally protected

property rights by issuing a decision the effect of which

would be to peremptorily deny them judicial challenge of

DHS suits for permanent condemnation.

The claims in Dalton were not subject to judicial

review because they lacked the constitutional allegation

that is present here (Appropriations Clause violation), in

the Laredo landowners’ scenario (Fifth Amendment and

Appropriations Clause violations), and in Bivens (Fourth

Amendment violation). In each of these instances, the

Executive Branch official’s actions were contrary to

constitutional prohibition. But not in Dalton.

CONCLUSION

To preserve the constitutional force of Youngstown,

which Dalton does not diminish, amicus curtae RGLC

respectfully urges this Court to affirm the decisions

below.

January 19, 2021

19

Respectfully submitted,

DOUGLAS W. ALEXANDER

Counsel of Record

COLLEEN GARCIA

ALEXANDER DUBOSE &

JEFFERSON LLP

515 Congress Avenue

Suite 2350

Austin, Texas 78701-3562

(512) 482-9300

dalexander@adjtlaw.com

KIRSTEN M. CASTANEDA

ALEXANDER DUBOSE &

JEFFERSON LLP

8144 Walnut Hill Lane

Suite 1000

Dallas, Texas 75231-4388

Counsel for RGLC members:

ALBERTO P. CARDENAS,

JR.

Counsel for Sacred Heart

Children’s Home

VINSON & ELKINS LLP

1001 Fannin Street

Suite 2500

Houston, Texas 77002

bcardenas@velaw.com

(713) 758-3264

GEORGE RUSSELL MEURER

Counsel for Laredo

College

KAZEN, MEURER & PEREZ,

LLP

211 Calle Del Norte

Suite 100

Laredo, Texas 78041

ermeurer@kmp-law.com

(956) 712-1600

ANNIE LAMANTIA CULLEN

Counsel for Needmore

Dolores, LLC

NEEDMORE DOLORES, LLC

P.O. Box 2938

Victoria, Texas 77902

annie.cullen@Infdist.com

(861) 573-6318

DOUGLAS W. ALEXANDER

KIRSTEN CASTANEDA

COLLEEN GARCIA

Counsel for Fasken Oil &

Ranch, Ltd.

ALEXANDER DUBOSE

JEFFERSON &

TOWNSEND LLP

515 Congress Avenue

Suite 2350

Austin, Texas 78701-

3562

dalexander@adjtlaw.com

(512) 482-9300

RICHARD G. MORALES, JR.

Counsel for International

Bank of Commerce

PERSON MOHRER

MORALES BODDY

GARCIA GUTIERREZ

PLLC

602 E. Calton Rd.

Suite 202

Laredo, Texas 78041

rgmorales@pmbglaw.com

(956) 727-4411

CARLOS EVARISTO FLORES

JOSE “CHITO” VELA ITI

Counsel for Melissa

Cigarroa

WHITWORTH CIGARROA,

PLLC

602 E. Calton Rd.

Suite 201

Laredo, Texas 78041

cflores@wctexlaw.com

chito.v@walkergatesvela.

com

(956) 727-4441

PETER MCGRAW

KRISTEN ADAMS

ISRAEL REYNA

Counsel for Oscar

Martinez

TEXAS RIOGRANDE LEGAL

AID

pmceraw@trla.org

kadams@trla.org

ireyna@trla.org

1702 Convent Ave.

Laredo, Texas 78046

(956) 718-4600

KENNETH A. VALLS

Counsel for Emerald

River View

Development, Ltd.

VALLS & MARROQUIN,

LLP

6557 Metro Court

Suite 2

Laredo, Texas 78041

kvalls@vallslaw.com

(956) 602-0699

RICARDO DE ANDA

Counsel for Azteca

Economic Development

and Preservation, Inc.,

Guillermo Caldera,

Ernesto Uribe, Hector

Farias, Richard Haynes

DE ANDA LAW FIRM, PC

212 Flores Avenue

Laredo, Texas 78040

deandalaw@gmail.com

(956) 726-0038

APPENDIX

la

APPENDIX - LIST OF RIO GRANDE

LANDOWNER COALITION MEMBERS

Fasken Oil & Ranch, Ltd.

Laredo, Texas

Sacred Heart Children’s Home

Laredo, Texas

International Bank of Commerce

Laredo, Texas

Laredo College

Laredo, Texas

Emerald River View Development, Ltd.

Laredo, Texas

Azteca Economic Development and Preservation, Inc.

Laredo, Texas

Needmore Dolores, LLC

Laredo, Texas

Melissa Cigarroa

Laredo, Texas

Guillermo Caldera

Laredo, Texas

Ernesto Uribe

Laredo, Texas

Hector Farias

Laredo, Texas

Roque Haynes

Laredo, Texas

Paul Uribe

Laredo, Texas

Richard Haynes

Laredo, Texas

Oscar Martinez

Laredo, Texas

2a