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

Supreme Court briefNov 17, 2020

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No.

In the Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., PETITIONERS

SIERRA CLUB, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

JEFFREY BOSSERT CLARK

Acting Assistant Attorney

General

HASHIM M. MOOPPAN

Counselor to the Solicitor

General

SOPAN JOSHI

Senior Counsel to the

Assistant Attorney General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

H. THOMAS BYRON III

EDWARD HIMMELFARB

MICHAEL SHIH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

If the President declares “a national emergency in accordance with the National Emergencies Act (50 U.S.C.

1601 et seq.) that requires use of the armed forces,” the

Secretary of Defense has express statutory authority 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).

“Such projects may be undertaken only within the total

amount of funds that have been appropriated for military

construction, including funds appropriated for family

housing, that have not been obligated.” Ibid. In 2019,

following the President’s declaration of a national emergency requiring the use of the armed forces at the

southern border, the then-Secretary of Defense authorized 11 military construction projects involving border

barriers pursuant to Section 2808. The questions presented are as follows:

1. Whether respondents have a cognizable cause of

action to obtain review of the Secretary’s compliance

with Section 2808 in reprioritizing appropriated but unobligated funds for the military construction projects

being authorized.

2. Whether the Secretary exceeded his statutory authority under Section 2808 in reprioritizing appropriated funds for the military construction projects being

authorized.

(I)

PARTIES TO THE PROCEEDING

Petitioners are Donald J. Trump, in his official capacity as President of the United States; Steven T.

Mnuchin, in his official capacity as Secretary of the

Treasury; Christopher C. Miller, in his official capacity

as Acting Secretary of Defense; David Bernhardt, in his

official capacity as Secretary of the Interior; Chad F.

Wolf, in his official capacity as Acting Secretary of

Homeland Security; Ryan D. McCarthy, in his official

capacity as Secretary of the Army; Kenneth J.

Braithwaite, in his official capacity as Secretary of the

Navy; Barbara M. Barrett, in her official capacity as

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

the Department of the Interior; and the Department of

Homeland Security. *

Respondents are the Sierra Club; the Southern Border Communities Coalition; and the States of California, Colorado, Hawaii, Maryland, New Mexico, New

York, Oregon, Virginia, and Wisconsin.

Acting Secretary Miller and Secretaries Braithwaite and Barrett are substituted as parties for their predecessors in office pursuant to Rule 35.3 of the Rules of this Court.

(II)

RELATED PROCEEDINGS

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

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

(preliminary injunction in Section 8005 litigation)

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

(partial final judgment in Section 8005 litigation)

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

(same)

Sierra Club v. Trump, No. 19-cv-892 (Dec. 11, 2019)

(partial final judgment in Section 2808 litigation)

California v. Trump, No. 19-cv-872 (Dec. 11, 2019)

(same)

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

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

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

Section 8005 injunction)

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

(June 26, 2020) (affirming in Section 8005 appeal)

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

(June 26, 2020) (same)

Sierra Club v. Trump, Nos. 19-17501, 19-17502, and

20-15044 (Oct. 9, 2020) (affirming in consolidated

Section 2808 appeals)

Supreme Court of the United States:

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

(granting stay of Section 8005 injunction)

Trump v. Sierra Club, No. 20-138 (Oct. 19, 2020)

(granting certiorari in Section 8005 litigation)

(III)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

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

Statutory provisions involved ...................................................... 2

Statement ...................................................................................... 2

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

B. The challenged projects............................................ 4

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

1. The Section 8005 litigation................................. 8

2. The Section 2808 litigation............................... 11

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

I. The decision below is incorrect .................................... 17

A. Respondents lack any cause of action to obtain

judicial review of whether the Secretary

exceeded his authority under Section 2808 .......... 17

B. The Secretary fully complied with Section 2808 ... 28

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

Conclusion ................................................................................... 34

Appendix A — Court of appeals opinion (Oct. 9, 2020) ......... 1a

Appendix B — District court order granting in part and

denying in part plaintiffs’ motions for

partial summary judgment and denying

defendants’ motions for partial

summary judgment (Dec. 11, 2019) ....... 104a

Appendix C — Court of appeals order (Oct. 26, 2020) ...... 173a

Appendix D — Court of appeals order (Dec. 30, 2019) ..... 175a

Appendix E — Constitutional and statutory provisions .... 177a

TABLE OF AUTHORITIES

Cases:

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015).......................................18, 19, 26, 27, 32

Ayestas v. Davis, 138 S. Ct. 1080 (2018) ....................... 15, 31

(V)

Cases—Continued:

Page

Bennett v. Spear, 520 U.S. 154 (1997)................ 25, 26, 27, 28

Bond v. United States, 564 U.S. 211 (2011) ........................ 25

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

429 U.S. 318 (1977).............................................................. 26

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

(1987) .............................................................................. 19, 27

Commissioner v. Heininger, 320 U.S. 467 (1943) .............. 31

Dalton v. Specter, 511 U.S. 462 (1994)........................... 23, 24

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)......................... 27

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

Bond Fund, Inc., 527 U.S. 308 (1999) ............................... 26

Hernandez v. Mesa, 140 S. Ct. 735 (2020) .......................... 27

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

Inc., 572 U.S. 118 (2014) ......................................... 18, 25, 26

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

(1990) .................................................................................... 28

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

Indians v. Patchak, 567 U.S. 209 (2012) ........ 13, 18, 21, 22

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

(2011) .............................................................................. 18, 27

Trump v. Sierra Club, 140 S. Ct. 1 (2019),

mot. to lift stay denied, 140 S. Ct. 2620 (2020) ..... 3, 7, 9, 10

United States v. Apel, 571 U.S. 359 (2014) .......................... 30

Valley Forge Christian Coll. v. Americans United

for Separation of Church & State, Inc.,

454 U.S. 464 (1982).............................................................. 26

Winter v. Natural Res. Def. Council,

555 U.S. 7 (2008) ................................................................. 32

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952).............................................................. 24

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ........................ 20, 27

VII

Constitution, statutes, regulation, and rules:

Page

U.S. Const.:

Art. I:

§ 8, Cl. 3 (Dormant Commerce Clause) ................... 26

§ 9, Cl. 7 (Appropriations Clause) ................... passim

Art. III .............................................................................. 20

Art. VI, § 9 (Supremacy Clause) .................................... 26

Amend. I (Establishment Clause) ................................. 26

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

et seq. .................................................................................... 10

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

Department of Defense Appropriations Act, 2019,

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

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

National Emergencies Act, 50 U.S.C. 1601 et seq. ............... 4

50 U.S.C. 1631 .................................................................... 5

10 U.S.C. 284 .....................................................3, 6, 8, 17, 177a

10 U.S.C. 284(a) ..................................................................... 17

10 U.S.C. 284(b)(7) ................................................... 6, 17, 180a

10 U.S.C. 2801(a) ................................................4, 14, 29, 186a

10 U.S.C. 2801(c)(4) ......................................4, 14, 29, 30, 187a

10 U.S.C. 2808 ...................................................... passim, 182a

10 U.S.C. 2808(a) ................................................. passim, 188a

10 U.S.C. 2808(b) ..................................................... 4, 20, 188a

31 U.S.C. 9705(g)(4)(B) ........................................................... 6

25 C.F.R. 151.10(f ) ................................................................. 22

Fed. R. Civ. P. 54(b) ............................................................. 12

Fed. R. App. P. 41(d)(2)(B) ................................................... 16

Fed. R. App. P. 41(d)(2)(B)(ii) .............................................. 15

Sup. Ct. R. 10(c) .................................................................... 32

VIII

Miscellaneous:

Page

84 Fed. Reg. 4949 (Feb. 20, 2019) ...................................... 4, 5

Gov’t Accountability Office, Department of

Defense—Availability of Appropriations for

Border Fence Construction, B-330862, 2019 WL

4200949 (Comp. Gen. Sept. 15, 2019) .................................. 5

H.R. Rep. No. 200, 103d Cong., 1st Sess. (1993) .................. 6

Memorandum on Securing the Southern Border of

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

(Apr. 4, 2018) ......................................................................... 5

In the Supreme Court of the United States

No.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., PETITIONERS

SIERRA CLUB, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of Donald J.

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

Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a103a) is reported at 977 F.3d 853. The order of the district court (App., infra, 104a-172a) is reported at 407

F. Supp. 3d 869. Additional related opinions and orders

are described in the government’s petition for a writ of

certiorari in Trump v. Sierra Club, cert. granted,

No. 20-138 (Oct. 19, 2020) (20-138 Pet.), and reproduced

in the appendix to that petition.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

October 9, 2020. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 2808 of Title 10 of the United States Code

provides in pertinent part:

In the event of a declaration of war or the declaration by the President of a national emergency in

accordance with the National Emergencies Act

(50 U.S.C. 1601 et seq.) that requires use of the armed

forces, the Secretary of Defense, without regard to any

other provision of law, may undertake military construction projects, and may authorize the Secretaries

of the military departments to undertake military construction projects, not otherwise authorized by law

that are necessary to support such use of the armed

forces. Such projects may be undertaken only within

the total amount of funds that have been appropriated

for military construction, including funds appropriated

for family housing, that have not been obligated.

10 U.S.C. 2808(a). Other pertinent constitutional and

statutory provisions are reproduced in the appendix to

this petition. App., infra, 177a-191a.

STATEMENT

In February 2019, the President declared a national

emergency requiring the use of the armed forces at the

southern border. In the event of such a declaration,

Congress has expressly authorized the Secretary of Defense to use previously appropriated but unobligated

military construction funds to undertake military construction that is, in the Secretary’s judgment, necessary

to support the use of the armed forces in the emergency.

10 U.S.C. 2808(a). Here, the Secretary determined that

11 military construction projects—building barriers at

the border with respect to military installations—are

necessary to support the use of the armed forces in connection with the national emergency. The district court

held that respondents have a cause of action to challenge the Secretary’s Section 2808 determinations and

that the projects the Secretary authorized are unlawful.

The court permanently enjoined the government from

“using military construction funds appropriated for

other purposes” for the projects, but stayed the injunction pending appeal in deference to this Court’s order

staying the same district court’s injunction in earlier

related litigation. App., infra, 172a; see Trump v. Sierra Club, 140 S. Ct. 1 (2019), mot. to lift stay denied,

140 S. Ct. 2620 (2020). A divided panel of the court of

appeals affirmed. App., infra, 1a-103a.

The same panel of the court of appeals had also previously affirmed the same district court’s judgments in

litigation between the same parties but concerning different construction projects, undertaken pursuant to

10 U.S.C. 284 using funds transferred under Section

8005 of the Department of Defense Appropriations Act,

2019 (DoD Appropriations Act), Pub. L. No. 115-245,

Div. A, Tit. VIII, 132 Stat. 2999. On October 19, 2020,

this Court granted the government’s petition for a writ

of certiorari to review the judgments in those cases.

Trump v. Sierra Club, No. 20-138. This petition seeks

plenary review of the Ninth Circuit’s follow-on judgment concerning the Section 2808 projects; in the alternative, the government respectfully requests that this

petition be held pending the Court’s disposition of the

Section 8005 case and then disposed of as appropriate.

A. Statutory Background

Section 2808 authorizes the Secretary of Defense to

reprioritize appropriated military construction funds

that “have not been obligated,” in order to undertake

certain military construction projects that are “not otherwise authorized by law,” when the President declares

a “national emergency * * * that requires use of the

armed forces.” 10 U.S.C. 2808(a). Pursuant to such a

declaration, the Secretary, “without regard to any other

provision of law, may undertake military construction

projects * * * that are necessary to support such use

of the armed forces.” Ibid.

As used here, the term “military construction”

means “any construction, development, conversion, or

extension of any kind carried out with respect to a military installation,” as well as “any acquisition of land.”

10 U.S.C. 2801(a). The term “military installation”

means a “base, camp, post, station, yard, center, or

other activity under the jurisdiction of the Secretary of

a military department.” 10 U.S.C. 2801(c)(4).

When the Secretary decides to undertake military

construction under Section 2808, the statute requires

the Secretary to “notify * * * the appropriate committees of Congress of the decision,” and of “the estimated

cost of the construction projects.” 10 U.S.C. 2808(b).

B. The Challenged Projects

1. a. This case arises from actions taken by the Department of Homeland Security (DHS) and the Department of Defense (DoD) in the wake of the President’s

declaration of a national emergency on the southern

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

1601 et seq. See 84 Fed. Reg. 4949 (Feb. 20, 2019). In

that declaration, the President determined that “[t]he

current situation at the southern border presents a border security and humanitarian crisis that threatens core

national security interests” of the United States. Ibid.

The President explained that the border is “a major entry point for criminals, gang members, and illicit narcotics,” and that the federal government continues to be

unable to stem the tide of “large-scale unlawful migration” across the border. Ibid. The President had previously ordered DoD to support DHS in securing operational control of the southern border, including through

the deployment of the National Guard. See Memorandum on Securing the Southern Border of the United

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

his February 2019 declaration, the President determined that “it is necessary for the Armed Forces to provide additional support to address the crisis,” and he

specifically made 10 U.S.C. 2808 available to allow the

Secretary of Defense to undertake military construction as necessary to support the use of the armed forces

in connection with the emergency. 84 Fed. Reg. at 4949;

see 50 U.S.C. 1631.

The President’s determination that the crisis at the

southern border warranted using the armed forces and

authorizing the Secretary of Defense to undertake military construction projects was in keeping with a substantial history of DoD assistance at the border, including through the construction of physical barriers. Congress has “long vested [DoD] with authority to construct fences” along the border. Gov’t Accountability

Office, Department of Defense—Availability of Appropriations for Border Fence Construction, B-330862,

2019 WL 4200949, at *13 (Comp. Gen. Sept. 15, 2019).

For example, military personnel were integral to building the first modern border barrier near San Diego,

California, in the early 1990s. See H.R. Rep. No. 200,

103d Cong., 1st Sess. 330-331 (1993) (describing DoD’s

role).

Military personnel deployed to the southern border

during the current emergency have performed a broad

range of administrative, logistical, and operational

tasks in support of DHS. Gov’t C.A. E.R. 128-131.

These activities include installing vehicle and pedestrian barriers; placing concertina wire along the border

and at ports of entry; and operating aerial and mobile

surveillance equipment to detect activity along the border. Id. at 212-213, 216-218. As of August 2019, DoD

had approximately 5540 personnel supporting DHS’s

border-security mission. Id. at 125.

b. After the President’s declaration, the government

took a number of steps in sequence to address the emergency at the southern border through the construction

of physical barriers.

First, the Secretary of the Treasury authorized the

use of certain asset-forfeiture funds for border-barrier

construction, pursuant to his authority to obligate such

funds for “law enforcement activities.” 31 U.S.C.

9705(g)(4)(B). Those actions are not at issue here.

Second, DHS submitted a request to DoD for DoD’s

assistance pursuant to 10 U.S.C. 284, which authorizes

DoD to provide “support for the counterdrug activities”

of other departments or agencies upon request. See 20138 Pet. 6-7. Section 284 authorizes DoD to provide assistance in the form of “[c]onstruction of roads and

fences and installation of lighting to block drug smuggling corridors across international boundaries of the

United States.” 10 U.S.C. 284(b)(7). The then-Acting

Secretary of Defense approved DHS’s request with respect to several high-priority construction projects in

drug-smuggling corridors. 20-138 Pet. 7-8. To ensure

adequate funds to complete the projects, he also invoked his authority under Section 8005 of the DoD Appropriations Act to transfer funds between DoD appropriations. Ibid. The Section 8005 transfers are the subject of the injunction that this Court stayed in Sierra

Club, 140 S. Ct. at 1, and are at issue in the recently

granted case, Trump v. Sierra Club, supra (No. 20-138).

Third, the then-Secretary of Defense authorized certain military construction projects under 10 U.S.C.

2808—the provision at issue here. Specifically, on September 3, 2019, the Secretary determined that undertaking 11 barrier-construction projects along the southern border was necessary to support the use of the

armed forces in connection with the President’s declaration of a national emergency. Gov’t C.A. E.R. 89, 9293. Based on the advice of the Chairman of the Joint

Chiefs of Staff, see id. at 202-207—and after input from

DHS, the U.S. Army Corps of Engineers, and the Department of the Interior—the Secretary determined

that constructing barriers in the specified areas will

“deter illegal entry, increase the vanishing time of those

illegally crossing the border” (i.e., the time that passes

before a person who illegally crosses the border can no

longer be apprehended), and “channel migrants to ports

of entry,” id. at 92. The Secretary further determined

that the barriers will support the use of the armed

forces by reducing “demand for DoD personnel and assets at the locations where the barriers are constructed

and [will] allow the redeployment of DoD personnel and

assets to other high-traffic areas on the border without

barriers.” Ibid. The Secretary accordingly found that

the barriers will serve as “force multipliers” that will

enhance military capabilities and allow DoD to support

DHS more efficiently and effectively. Ibid.

To fund the Section 2808 projects, the Secretary approved the use of up to $3.6 billion in previously appropriated but unobligated military construction funds.

Gov’t C.A. E.R. 93. The 11 projects, which involve 175

miles of border-barrier construction, include (1) two

projects on the Barry M. Goldwater Range, a longstanding military installation in Arizona that is used for livefire and weapons exercises by U.S. military pilots;

(2) seven projects on federal land transferred to Army

jurisdiction; and (3) two projects on non-public land,

which has not yet been acquired. App., infra, 6a. The

projects are located in Arizona, California, New Mexico,

and Texas. Ibid.

C. Prior Proceedings

Respondents are two groups of plaintiffs that brought

suit in the Northern District of California to challenge

the government’s construction of physical barriers

along the southern border. The Sierra Club, a national

environmental group, and the Southern Border Communities Coalition, an organization focused on border

issues (collectively, Sierra Club), brought one of the

suits; California and several other States brought the

other. The district court addressed the plaintiffs’ allegations on a rolling basis.

1. The Section 8005 litigation

The district court first addressed the Section 284

projects that were funded through transfers under Section 8005. In June 2019, the court granted Sierra Club’s

request for a permanent injunction barring use of the

transferred funds for the Section 284 projects. See 20-

138 Pet. App. 174a-188a. The court reasoned that Sierra Club has an equitable cause of action to pursue its

challenge, and therefore (in the court’s view) need not

satisfy the zone-of-interests requirement, and that the

Acting Secretary exceeded his authority under Section

8005. See 20-138 Pet. 9-10. The court also entered a

declaratory judgment in favor of California and New

Mexico on essentially the same basis, while declining to

grant a duplicative injunction. Id. at 13.

A divided panel of the court of appeals declined to

stay the district court’s Section 8005 injunction. 20-138

Pet. App. 206a-299a. The majority characterized Sierra

Club’s claims as “alleging a constitutional violation,” id.

at 234a, on the theory that any use of funds improperly

transferred under Section 8005 would violate the Appropriations Clause, id. at 236a & n.16 (citing U.S.

Const. Art. I, § 9, Cl. 7). The majority reasoned that

“[t]o the extent” the zone-of-interests requirement applies to Sierra Club’s claims, “it requires [the court] to

ask whether [p]laintiffs fall within the zone of interests

of the Appropriations Clause, not of [S]ection 8005,” id.

at 264a. The court then found that Sierra Club’s

claimed aesthetic and recreational interests were within

the zone of interests protected by the Appropriations

Clause. Id. at 266a-267a. The majority also agreed with

the district court that Section 8005 likely did not permit

the disputed transfers. Id. at 236a-237a. Judge N.R.

Smith dissented. Id. at 274a-299a.

On July 26, 2019, this Court granted the government’s application for a stay of the injunction pending

appeal and, if necessary, certiorari. 140 S. Ct. at 1. The

Court stated that “[a]mong the reasons” for granting

the stay “is that the Government has made a sufficient

showing at this stage that [Sierra Club has] no cause of

action to obtain review of the Acting Secretary’s compliance with Section 8005.” Ibid. Justice Breyer concurred in part and dissented in part, and Justices Ginsburg, Sotomayor, and Kagan dissented. Id. at 1-2.

A divided (and different) panel of the court of appeals

later affirmed in the Section 8005 litigation, issuing two

substantially similar opinions addressing Sierra Club’s

challenge and the parallel challenge by California and

New Mexico. See 20-138 Pet. App. 1a-77a (Sierra Club);

id. at 78a-173a (California). The panel majority concluded that Sierra Club “has both a constitutional and

an ultra vires cause of action” to challenge the Section

8005 transfers, based on reasoning analogous to that in

the motions panel’s earlier opinion denying a stay. Id.

at 19a. The majority also concluded that California and

New Mexico have a cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq., after

determining that those States’ asserted environmental

and sovereign interests are within the zone of interests

protected by Section 8005. 20-138 Pet. App. 100a-106a.

In both cases, the majority concluded that the challenged transfers did not comply with a proviso in Section 8005. See id. at 17a, 109a-117a. Judge Collins dissented in both cases. Id. at 40a-77a, 119a-173a.

On October 19, 2020, this Court granted the government’s petition for a writ of certiorari to consider the

Ninth Circuit’s judgments in both of the parallel Section

8005 challenges. The questions presented are:

1. Whether [Sierra Club, California, and New

Mexico] have a cognizable cause of action to obtain

review of the Acting Secretary’s compliance with

Section 8005’s proviso in transferring funds internally between DoD appropriations accounts.

2. Whether the Acting Secretary exceeded his

statutory authority under Section 8005 in making the

transfers at issue.

20-138 Pet. I.

2. The Section 2808 litigation

a. On December 11, 2019, in a single opinion, the district court granted partial final judgment to Sierra Club

and to California, Colorado, Hawaii, Maryland, New

Mexico, New York, Oregon, Wisconsin, and Virginia

(collectively, the States) in their parallel challenges to

the Section 2808 projects. App., infra, 104a-172a; see

id. at 105a n.1.

The district court first determined that respondents

may “seek equitable relief through an implied cause of

action under the Constitution” to challenge the Section

2808 projects. App., infra, 118a-119a. The court based

that determination on the reasoning of the Ninth Circuit motions panel that had declined to stay the district

court’s earlier injunction—notwithstanding this Court’s

order granting a stay of the same injunction. See id. at

119a-123a. In particular, the district court reasoned

that respondents’ challenge “is ‘fundamentally a constitutional’ claim,” premised on the allegation that expending funds for military construction in violation of Section 2808 would in turn violate the Appropriations

Clause. Id. at 123a (citation omitted). And the court

found that respondents’ asserted “environmental, professional, aesthetic, and recreational interests” are

within the zone of interests protected by the Appropriations Clause. Id. at 124a (citation omitted).

The district court then determined that the challenged projects violate Section 2808 because, in the

court’s view, nine of the projects are not being carried

out with respect to a military installation, as Section

2808 requires. App., infra, 136a-144a. 1 The court also

held that, contrary to the judgment of the Secretary of

Defense, the projects are not “necessary” to support the

use of the armed forces, as Section 2808 also requires.

Id. at 145a-151a.

The district court granted Sierra Club’s request for

an injunction and permanently enjoined DoD and DHS

from “using military construction funds appropriated

for other purposes to build a border wall in the” specified project areas. App., infra, 172a. In deference to

this Court’s stay, however, the district court stayed its

Section 2808 injunction pending appeal. Ibid.; see id. at

169a. The court denied the States’ “duplicative request”

for an injunction as “moot,” id. at 157a, and entered partial final judgment under Federal Rule of Civil Procedure 54(b), see App., infra, 169a-171a.

b. The government appealed in both cases, and the

States cross-appealed the denial of their request for an

injunction. App., infra, 9a. The court of appeals consolidated the appeals for briefing and argument. 19-17501

C.A. Doc. 32, at 3 (Jan. 24, 2020). The court also denied

Sierra Club’s request to lift the stay of the Section 2808

injunction. App., infra, 175a-176a.

c. On October 9, 2020, a divided panel of the court of

appeals—the same panel that had decided the earlier

Section 8005 merits appeals—affirmed in the consolidated Section 2808 appeals. App., infra, 1a-64a. Judge

Collins again dissented. See id. at 65a-103a.

The panel majority held that the States have a cause

of action under the APA to challenge the Secretary’s actions. App., infra, 34a. The majority recognized that

Respondents do not dispute that the two Section 2808 projects

occurring on the Barry M. Goldwater Range are being carried out

with respect to a military installation. See App., infra, 51a n.10.

“Section 2808 constitutes the relevant statute for the

zone of interests test” for that APA claim. Id. at 35a. It

concluded that the zone of interests protected by Section 2808 includes the States’ asserted “economic interests” in the military construction projects from which

the Secretary redirected money to fund the Section 2808

projects. Id. at 37a. The majority also understood this

Court’s decision in Match-E-Be-Nash-She-Wish Band

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

to establish that “neighbors” are generally within the

zone of interests protected by a statute that “deals with

land use”—a principle it took to support finding that at

least California and New Mexico have a cause of action,

as States neighboring the “border wall construction

projects.” App., infra, 38a. The majority also held that

Sierra Club has a cause of action “under the Appropriations Clause,” ibid., and it reasoned that Sierra Club’s

asserted interests are within the zone of interests protected by the Appropriations Clause, “[t]o the extent”

the zone-of-interests test applies, id. at 40a, because

“Sierra Club is an organization within the United States

that is protected by the Constitution,” id. at 41a.

On the merits, the panel majority concluded that the

Section 2808 projects were not “necessary to support”

the “use of the armed forces,” as the statute requires,

because the projects were purportedly designed only to

make it more “efficient” for the military to assist

“DHS—a civilian law enforcement agency.” App., infra, 46a-47a. The majority declined to defer to the Secretary of Defense’s contrary judgment about military

necessity, stating that the projects were not “actually

necessary” even if they were “designed to improve effectiveness and efficiency.” Id. at 48a. The majority

also agreed with the district court’s conclusion that nine

of the projects did not qualify as “military construction”

under Section 2808 because they were not “carried out

with respect to a military installation,” as the statute

requires. Id. at 49a (citation omitted). The majority

recognized that the statute defines a “military installation” to include “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” Ibid. (quoting

10 U.S.C. 2801(a) and (c)(4)) (emphasis added). The

government maintained that “the land on which the projects would be built has been brought under military jurisdiction and assigned to a military installation—Fort

Bliss in El Paso, Texas.” Id. at 50a. But the majority

dismissed that assignment as merely an “administrative

convenience,” id. at 52a, insufficient to satisfy Section

2808. The majority further reasoned that the definition

of “military installation” in Section 2801(c)(4) indicates

that any “ ‘other activity’ ” must be “similar to bases,

camps, posts, stations, yards, or centers” in order to

qualify as a military installation, id. at 54a-55a—a limitation the majority found not satisfied here, see id. at

55a-58a.

Judge Collins dissented. App., infra, 65a-103a. Like

the majority, he would have held that respondents have

a cause of action, although he would have located the

cause of action for both Sierra Club and the States

solely in the APA. Id. at 77a-84a. Unlike the majority,

however, he would have held that respondents’ “claims

fail on the merits because DoD properly invoked § 2808

in undertaking these 11 projects.” Id. at 84a. He explained that the projects will be carried out with respect

to “ ‘military installation[s]’ ” because they “involve an

‘activity under the jurisdiction’ of a military Secretary,”

id. at 89a (citation omitted), having been placed under

the jurisdiction of the Secretary of the Army as part of

Fort Bliss. See id. at 89a-94a.

Judge Collins would have further held that “the Secretary properly determined that the construction projects here are ‘necessary to support such use of the

armed forces.’ ” App., infra, 97a (citation omitted). He

explained that “necessary” as used in Section 2808 does

not connote “absolutely needed” but rather “ ‘important

or strongly desired.’ ” Id. at 95a (quoting Ayestas v. Davis, 138 S. Ct. 1080, 1093 (2018)). And he found that

standard “easily satisfied” because the President had

declared a national emergency requiring the use of the

armed forces to support DHS at the border and the Section 2808 projects will “permit ‘DoD to provide support

to DHS more efficiently and effectively,’ ” as the Secretary had determined. Id. at 97a.

d. In its opinion, the court of appeals stated that the

district court’s stay of its own injunction pending appeal

“is terminated,” and the court of appeals dismissed a renewed motion to lift the stay, filed by Sierra Club, as

“moot.” App., infra, 62a. Sierra Club subsequently

moved to “clarify” that the court of appeals intended

those directives to take effect before the issuance of the

mandate. 19-17501 C.A. Doc. 112-1, at 1 (Oct. 15, 2020).

The government opposed that motion and filed a crossmotion to stay issuance of the mandate pending the filing and disposition of a petition for a writ of certiorari,

which the government committed to filing by November

18, 2020. 19-17501 C.A. Doc. 113-1, at 1 (Oct. 19, 2020).

The government noted in its cross-motion that, pursuant

to Federal Rule of Appellate Procedure 41(d)(2)(B)(ii),

“such a stay [of the mandate] would then remain in effect until the Supreme Court’s final disposition” of the

petition. 19-17501 C.A. Doc. 113-1, at 15; see Fed. R.

App. P. 41(d)(2)(B) (providing that a stay pending certiorari may be extended beyond 90 days by giving notice

to the circuit clerk of the filing of a petition, “in which

case the stay continues until the Supreme Court’s final

disposition”). On October 26, 2020, the court of appeals

denied Sierra Club’s motion and granted the government’s cross-motion to stay the mandate. App., infra,

173a-174a.

REASONS FOR GRANTING THE PETITION

Congress has empowered the Secretary of Defense,

during a national emergency requiring the use of the

armed forces, to authorize “military construction projects * * * not otherwise authorized by law,” funded

through reprioritization of amounts appropriated for

military construction, if the Secretary determines that

the projects “are necessary to support such use of the

armed forces.” 10 U.S.C. 2808(a). After the President

declared a national emergency at the southern border

requiring the use of the armed forces and made Section

2808 available, the Secretary determined that 11 military construction projects to build barriers at the border were necessary to support the use of the armed

forces during the emergency. The court of appeals

erred in holding that respondents have a cause of action

to obtain judicial review of those national-security

spending determinations and further erred in holding

that the Secretary’s determinations exceeded his authority under Section 2808.

The court of appeals’ reasoning with respect to

whether respondents have a cause of action paralleled

the reasoning that the same panel employed in the prior

proceedings involving Sierra Club, California, and New

Mexico. The court concluded there that the plaintiffs

have a cause of action to obtain judicial review of the

Secretary’s transfers of funds between DoD appropriations accounts, pursuant to Section 8005 of the DoD Appropriations Act, to fund border-barrier construction

projects undertaken in response to DHS’s request for

counterdrug assistance, see 10 U.S.C. 284(a) and (b)(7).

This Court recently granted the government’s petition

for a writ of certiorari to review the court of appeals’

judgments in those Section 8005 cases. Trump v. Sierra

Club, No. 20-138 (Oct. 19, 2020). The same course is

warranted here. At a minimum, the Court should hold

this petition pending its disposition of the Section 8005

dispute, which is likely to shed significant light on

whether respondents have a viable cause of action.

I. THE DECISION BELOW IS INCORRECT

A. Respondents Lack Any Cause Of Action To Obtain

Judicial Review Of Whether The Secretary Exceeded

His Authority Under Section 2808

Respondents are not proper parties to bring suit

claiming that the Secretary exceeded his authority under Section 2808 in reprioritizing appropriated military

construction funds for the military construction projects he authorized. Respondents cannot invoke any express or implied cause of action to do so because their

asserted interests are not even arguably within the zone

of interests protected by Section 2808. Section 2808 authorizes the Secretary of Defense, in the event of a presidential declaration of a national emergency requiring

the use of the armed forces, to use unobligated military

construction funds 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). The recreational, aesthetic, environmental, and sovereign interests that respondents assert

are entirely outside the contemplation of Section 2808.

Nor can respondents avoid that conclusion by invoking

the Appropriations Clause. Respondents have no constitutional claim distinct from their challenge to whether

the Secretary exceeded the statutory authority conferred in Section 2808. In any event, the zone-of-interests requirement would apply no differently to an implied equitable cause of action asserting a violation of the

Appropriations Clause premised on non-compliance with

Section 2808.

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

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

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

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

might technically be injured in an Article III sense but

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

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

presumed to ‘legislate against the background of ’ the

zone-of-interests limitation,” which excludes putative

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

interests protected by the law invoked.’ ” Lexmark, 572

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

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

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

only where the asserted interest is “marginally related

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

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

an implied cause of action in equity, see Armstrong v.

Exceptional Child Ctr., Inc., 575 U.S. 320, 327-328

(2015), this Court has suggested that a heightened zoneof-interests standard applies, requiring the plaintiff to

be the intended beneficiary of the provision to be enforced. See Clarke v. Securities Indus. Ass’n, 479 U.S.

388, 400 n.16 (1987).

Here, under either the APA or an implied cause of

action, respondents are not proper plaintiffs because

their asserted interests are entirely unrelated to their

claim that the Secretary’s determination under Section

2808 violated the statute. Sierra Club has asserted that

construction of fencing and roads on land under military

jurisdiction along the southern border, using military

construction funds made available under Section 2808,

will impair its members’ “environmental, aesthetic, and

recreational interests” in the project areas. App., infra,

41a. The States have asserted that construction of the

challenged military construction projects will harm the

environment in California and New Mexico and will impair the States’ “quasi-sovereign interests” in the enforcement of state law. Id. at 18a, 20a.

Nothing about Section 2808’s text or context suggests that Congress even arguably intended to permit

enforcement of the statute by parties who, like respondents here, assert that the challenged military construction projects would indirectly result in harm to their

recreational, aesthetic, environmental, scientific, or

quasi-sovereign interests. Section 2808 does not require the Secretary to consider those kinds of interests

before using military construction funds. Indeed, it expressly empowers the Secretary to use these funds for

specific types of military construction projects that are

“not otherwise authorized by law” and to do so “without

regard to any other provision of law.” 10 U.S.C. 2808(a).

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

uniquely within the Executive Branch’s expertise and

that courts and third parties are ill-suited to second

guess—e.g., that the projects “are necessary to support

such use of the armed forces.” Ibid.; see Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (cautioning that courts

should be “reluctant to intrude upon the authority of the

Executive in military and national security affairs”) (citation omitted).

Section 2808(b)’s congressional-notification requirement confirms that the statute is primarily, if not exclusively, intended to protect Congress’s interests in the

appropriations process. For example, if Congress disagrees with a particular use of funds under the statute

after receiving notice of it, Congress may enact legislation to prohibit such a use, restrict funding for such projects in future appropriations acts, or modify DoD’s authority under Section 2808.

Permitting any private party who meets the bare

minimum of Article III injury to bring suit to challenge

a project under Section 2808 could often be antithetical

to the interests of Congress. Opportunistic litigation by

private parties (or States) may frustrate the flexibility

that Congress intended to confer in granting Section

2808 authority to the Secretary. Private enforcement

of Section 2808 also runs the risk of excessive courtordered remedies even for minor or technical violations—

which Congress itself may well have viewed as inconsequential, or at least insufficient to warrant the wastefulness of bringing to a halt projects for which funds have

already been expended.

2. The court of appeals erred in holding that the

States satisfy the zone-of-interests requirement for

Section 2808. App., infra, 34a-38a. The States contend

that they are within the zone of interests because the

Secretary’s invocation of Section 2808 has led to a diversion of funding from other projects in those States, and

the panel majority concluded that the States are therefore “either the intended beneficiaries of [Section 2808],

or at the very least, their interests are unlikely to frustrate the purpose of the statute.” Id. at 37a. The panel

majority also held that because Section 2808 involves

land use, the States are “neighbors to the use,” id. at

38a (citation omitted), who are within the zone of interests under Patchak, 567 U.S. at 227-228.

Both conclusions are mistaken. Section 2808 allows

only the expenditure of unobligated funds—i.e., funds

for which no prior binding commitment existed. Moreover, even with respect to planned military construction

projects for which funds had not yet been obligated, the

States in which those projects would occur have no particular vested interest in the projects; the funds would

not have gone to the States themselves. And nothing in

the text or context of Section 2808 suggests that Congress intended to permit enforcement of the statute’s

limitations by States who assert that reprioritization of

military construction funds under Section 2808 during a

national emergency would, for example, indirectly diminish the States’ tax revenue. Section 2808 gives the

Secretary broad authority to authorize military construction projects when the Secretary determines that

the projects will meet the needs of the armed forces,

without regard to the effect on any third party’s aesthetic, recreational, or environmental interests. Indeed, Section 2808(a)’s “without regard to” clause expressly authorizes DoD to bypass all other legal

requirements—including federal and state environmental statutes—that might otherwise limit DoD’s exercise

of its military construction authority.

The court of appeals’ reliance on this Court’s decision in Patchak was also misplaced. In Patchak, this

Court was careful to identify the particular category of

plaintiffs whose interests were sufficiently related to

the context and purpose of the statute at issue to allow

litigation to enforce the statute’s provisions. The plaintiff there was “a nearby property owner” whose own

property would be damaged by the contemplated use of

nearby land acquired for an Indian tribe to operate a

casino. Patchak, 567 U.S. at 224. Because the “context

and purpose” of the relevant statute served “to foster

Indian tribes’ economic development,” this Court concluded that the statute required the Secretary of the Interior to “take[] title to properties” on behalf of Indian

tribes “with at least one eye directed toward how tribes

will use those lands.” Id. at 226. The Court also emphasized that the governing regulations “require[d] the

Secretary to consider * * * the ‘potential conflicts of

land use which may arise.’ ” Ibid. (quoting 25 C.F.R.

151.10(f )). Only because the government was obligated,

before acquiring land to benefit Indian tribes, to consider potential conflicts that could result from the range

of possible land uses, did the Court conclude that “a

neighboring landowner” was within the zone of interests “to bring suit to enforce the statute’s limits.” Id. at

227. Section 2808 imposes no similar constraints with

respect to neighboring land owners. 2

For similar reasons, Judge Collins erred in concluding, in his

dissenting opinion, that the interests asserted by respondents are

within the zone of interests protected by the limitations in Section

2808 that respondents allege were violated. Judge Collins observed

3. As for Sierra Club, neither the district court nor

the court of appeals actually determined that its asserted recreational and aesthetic interests in the project areas are within the zone of interests protected by

Section 2808. The lower courts instead reasoned that

Sierra Club has a cause of action under the Appropriations Clause and need only come within the zone of interests protected by that Clause. See App., infra, 38a41a, 123a-124a. That reasoning is fatally flawed.

a. Sierra Club does not and cannot allege any distinct constitutional violation in this case. The Appropriations Clause prohibits expenditures only if not “made

by Law,” U.S. Const. Art. I, § 9, Cl. 7, and thus the gravamen of its claim is necessarily that DoD exceeded the

limits of Section 2808 in using previously appropriated

but unobligated funds for the challenged military construction projects. That claim is nothing more than a

statutory claim recast as a constitutional claim.

The panel majority’s attempt to characterize Sierra

Club’s claim as sounding in the Constitution is contrary

to this Court’s decision in Dalton v. Specter, 511 U.S.

462 (1994). There, the plaintiffs “sought to enjoin the

Secretary of Defense * * * from carrying out a decision

by the President” to close a military facility pursuant to

a federal statute. Id. at 464. The court of appeals had

permitted the suit to proceed on the assumption that

the plaintiffs were effectively seeking “review [of ] a

that, “[o]n its face, § 2808 authorizes the Secretary to undertake

emergency military construction ‘without regard to any other provision of law,’ ” including environmental laws, which he understood

to mean that environmental interests are among the interests protected by Section 2808. App., infra, 82a. But the “without regard

to” clause demonstrates quite the opposite: Congress expressly authorized the Secretary to act without regard to any state or private

interest in the enforcement of environmental laws.

presidential decision.” Id. at 467 (citation omitted). After this Court held that the President is not an “agency”

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

adhered to its decision on constitutional grounds—

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

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

This Court unanimously rejected that theory. The

Court explained that not “every action by the President,

or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.” Dalton, 511 U.S. at 472. Instead, this Court has

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

excess of his statutory authority.” Ibid. (collecting

cases). The Constitution is implicated if an executive

official relies on it as an independent source of authority

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

statute that itself violates the Constitution. See id. at

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

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

The same reasoning fully applies here. This dispute

concerns whether the Secretary “exceeded his statutory authority” in reprioritizing appropriated funds for

the disputed construction projects authorized under

Section 2808, and “no ‘constitutional question whatever’

is raised,” “ ‘only issues of statutory interpretation.’ ”

Dalton, 511 U.S. at 473-474 & n.6 (citation omitted).

The Secretary did not invoke the Constitution as a basis

to transfer funds, and although Sierra Club has argued

that the government’s interpretation of Section 2808

would raise constitutional issues, it does not challenge

the constitutionality of Section 2808.

The court of appeals did not discuss Dalton in the

decision below. And the court erred in relying instead

on this Court’s decision in Bond v. United States, 564

U.S. 211 (2011), to support the notion that Sierra Club

may assert a claim directly under the Appropriations

Clause. See App., infra, 39a-40a. In Bond, the defendant in a criminal prosecution raised a separation-ofpowers challenge to the prosecution. 564 U.S. at 222224. The Court did not suggest that the defendant also

had an affirmative cause of action to initiate a suit to

challenge government action. Moreover, the Court emphasized that “[a]n individual who challenges federal

action on [federalism] grounds” is subject to “prudential rules[] applicable to all litigants and claims.” Id. at

225. At the time, the zone-of-interests was characterized

as a “prudential standing rule,” Bennett v. Spear,

520 U.S. 154, 161 (1997), and it remains a generally applicable limitation on the right to sue, Lexmark, 572 U.S.

at 125.

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

of the Appropriations Clause has occurred unless the

Secretary exceeded his authority under Section 2808.

See App., infra, 40a-41a (“Because the diversion of

funds was not authorized by the terms of Section 2808,

it is unconstitutional.”). As the panel majority noted,

“[a]lthough the terms of Section 2808 are different from

Section 8005, Section 2808’s role here is analogous to

the role of Section 8005 in the prior appeal.” Id. at 39a.

Thus, as in the Section 8005 litigation, Dalton is controlling on this issue. Sierra Club’s claim is a statutory

claim, not a constitutional claim.

b. In any event, the Appropriations Clause itself

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

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

provision at issue in Armstrong—the Appropriations

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

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

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

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

Id. at 327.

The panel majority was mistaken to suggest that the

zone-of-interests requirement does not “appl[y] at all”

to judicially implied causes of action. App., infra, 40a.

To the contrary, the zone-of-interests requirement is

“ ‘of general application,’ ” reflecting a limitation on appropriate plaintiffs that “Congress is presumed” to intend in authorizing suit in federal court. Lexmark, 572

U.S. at 129 (quoting Bennett, 520 U.S. at 163). This

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

encompasses judicially implied equitable causes of action, because the equitable powers of federal district

courts are themselves conferred by statute, see Grupo

Mexicano de Desarrollo, S. A. v. Alliance Bond Fund,

Inc., 527 U.S. 308, 318 (1999). Lexmark therefore did

not silently abrogate this Court’s precedents recognizing that the zone-of-interests requirement applies to equitable actions seeking to enjoin constitutional violations. See, e.g., Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454

U.S. 464, 469, 475 (1982) (Establishment Clause); Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320

n.3 (1977) (Dormant Commerce Clause).

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

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

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

injured in the Article III sense by a [statutory or constitutional] violation could sue,” even where the person’s interests are entirely unrelated to the provision

being enforced, Thompson, 562 U.S. at 176-177. Congress would be even less likely to accept such absurd

results under its statutory grant of equity jurisdiction

than under the APA. See Hernandez v. Mesa, 140

S. Ct. 735, 747 (2020) (“It would be ‘anomalous to impute

. . . a judicially implied cause of action beyond the

bounds Congress has delineated for a comparable express cause of action.’ ”) (brackets and citation omitted).

If anything, this Court has indicated that, in light of the

heightened separation-of-powers concerns with judicially implied causes of action, see Abbasi, 137 S. Ct. at

1855-1858, it would be appropriate to apply a more rigorous zone-of-interests standard requiring that the provision at issue be intended for the “especial benefit” of

the plaintiff seeking to enforce it, Clarke, 479 U.S. at

400 n.16 (citation omitted); see Gonzaga Univ. v. Doe,

536 U.S. 273, 283-285 (2002).

c. Finally, neither the Appropriations Clause nor an

equitable “ultra vires” theory alters the conclusion that

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

2808. The zone-of-interests requirement must be applied “by reference to the particular provision of law

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

175-176. The Appropriations Clause provides that appropriations must be “made by Law,” U.S. Const. Art.

I, § 9, Cl. 7, and respondents do not dispute that the obligation of funds properly used for military construction

under Section 2808 would satisfy that requirement. Because a violation of Section 2808 is thus a necessary element of their claim, that is the “provision whose violation forms the legal basis for [the] complaint.” Bennett,

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

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

In concluding otherwise, the panel majority ruled

that the constitutionality of the challenged executive action turns on whether the Secretary complied with Section 2808. App., infra, 40a-41a. But that is precisely the

point: whether the Secretary’s conduct was unlawful

turns entirely on his compliance with Section 2808, not

the Appropriations Clause. Sierra Club’s (and the

States’) asserted interests must fall within the zone of

interests protected by Section 2808 to maintain this

suit. They do not.

B. The Secretary Fully Complied With Section 2808

In any event, the court of appeals erred in holding

that the challenged construction violates Section 2808.

In light of the President’s declaration of a national

emergency requiring the use of the armed forces at the

southern border, Section 2808 authorizes the Secretary

to use appropriated but unobligated military construction funds for the 11 projects at issue. Each project will

take place with respect to a military installation, and the

Secretary of Defense has concluded—after consultation

with the Chairman of the Joint Chiefs of Staff—that

these projects are necessary to support the use of the

armed forces deployed in connection with the national

emergency. The court of appeals erred in secondguessing those determinations.

1. The panel majority erred in concluding that the

projects were not “military construction” under Section

2808 on the ground that they were not being “carried

out with respect to a military installation.” 10 U.S.C.

2801(a). That phrase “means a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or, in the

case of an activity in a foreign country, under the operational control of the Secretary of a military department or the Secretary of Defense, without regard to the

duration of operational control.” 10 U.S.C. 2801(c)(4).

Two of the projects at issue here will be built on the

Barry M. Goldwater Range, an Air Force and Marine

Corps bombing range, that is indisputably a military installation. Gov’t C.A. E.R. 94. The remaining projects

will be built on land under the jurisdiction of the Secretary of the Army, assigned to and made a part of Fort

Bliss, id. at 75, which is an existing military “base,”

10 U.S.C. 2801(c)(4). Although the project areas are not

contiguous to the existing lands that comprise Fort

Bliss, military installations often include non-contiguous

property. For example, the Special Forces site in Key

West, Florida, is assigned to and therefore part of Fort

Bragg, North Carolina, while the Green River Test

Complex in Utah is assigned to and part of the White

Sands Missile Range in New Mexico. Gov’t C.A. E.R.

69 (listing additional examples). DoD has long administered Fort Bragg and the White Sands Missile Range

as single “military installation[s].” Ibid.

The panel majority dismissed the military assignment of the project areas to Fort Bliss as a mere “administrative convenience” and stated that no “functional nexus” exists here to support the assignment.

App., infra, 52a. But Section 2808 does not require any

“functional nexus,” a term that appears nowhere in the

statute. Moreover, even if the lands assigned to Fort

Bliss were not part of a “base,” the term “military installation” includes any “other activity under the jurisdiction of the Secretary of a military department.”

10 U.S.C. 2801(c)(4). While the panel majority read the

phrase “or other activity” to mean something that had

to be akin to a base, camp, post, station, yard, or center,

App., infra, 54a-55a, Judge Collins correctly pointed

out that an “activity” simply refers to “places under military jurisdiction, because activities under military jurisdiction necessarily occur there,” id. at 90a (dissenting opinion). As this Court explained in United States

v. Apel, 571 U.S. 359 (2014), the statutory term “ ‘military installation’ ” is generally “synonymous with the

exercise of military jurisdiction,” id. at 368 (citation

omitted). The project areas are thus military installations as this Court has understood that term.

2. The panel majority also erred in concluding that

the projects were not “necessary” to support the use of

the armed forces for purposes of Section 2808. That

conclusion was based on two mistaken rationales.

First, the panel majority reasoned that the projects

are intended to support DHS, “a civilian agency,” rather than the military. App., infra, 42a. That reasoning

takes an unduly narrow view of the purpose of the projects. The military has long had a role in helping law

enforcement agencies to secure the border. As Judge

Collins observed in his dissenting opinion, “military

support for DHS’s mission is the relevant ‘use of the

armed forces’ that has been declared by the President,”

and “the fact that the construction furthers that mission

weighs decidedly in favor of finding that it is ‘necessary

to support such use of the armed forces.’ ” Id. at 98a

(quoting 10 U.S.C. 2808(a)). A federal court does not

“get[] to substitute its own view of when the armed

forces are needed in a national emergency for the view

of the President as stated in [an] emergency declaration.” Ibid.

Second, the panel majority reasoned that “necessary” means “ ‘absolutely needed.’ ” App., infra, 43a (citation omitted). That too was error. The Secretary

found that the projects are “force multipliers” that allow the armed forces to be used more efficiently, Gov’t

C.A. E.R. 92, and his finding satisfies the necessity requirement. As this Court explained in Ayestas v. Davis,

138 S. Ct. 1080 (2018), the term “ ‘necessary’ ” need not

mean “ ‘essential,’ ” and “in ordinary speech, the term is

often used more loosely to refer to something that is

merely important or strongly desired.” Id. at 1093; cf.

Commissioner v. Heininger, 320 U.S. 467, 468, 471 (1943)

(construing the statutory term “ ‘necessary’ ” business

expenses to include expenses that are “appropriate and

helpful” to a business). And imposing a judicially enforceable strict necessity requirement in this context

would be anomalous. The task of assessing how a particular military construction project will benefit military forces during an ongoing deployment is exactly the

kind of judgment that the Secretary is uniquely equipped

to make, and that courts have routinely refused to overrule. See App., infra, 98a (Collins, J., dissenting) (criticizing the panel majority’s interpretation as “rest[ing]

on the implicit view that this court gets to substitute its

own view” of military necessity, and stating that

“[n]othing in § 2808(a) assigns us that task”).

At a minimum, the Secretary’s assessment of military necessity is entitled to substantial deference. See

App., infra, 96a (Collins, J., dissenting) (citing Winter

v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008)). The

Secretary of Defense determined that the military construction projects at issue here are important to support the use of the armed forces in connection with the

national emergency, in which DoD is assisting DHS in

securing the southern border. That is all the term “necessary” requires.

II. THE QUESTIONS PRESENTED WARRANT REVIEW

This case warrants further review for the same reasons that supported the Court’s decision to grant review

in the Section 8005 litigation. The decision below conflicts with relevant decisions of this Court. See Sup. Ct.

R. 10(c). As in its earlier Section 8005 decisions, the

panel majority in this case transformed Sierra Club’s

statutory claim into a constitutional violation, contrary

to this Court’s decision in Dalton. As Judge Collins put

it in his dissent, “any such constitutional violations here

can be said to have occurred only if the construction efforts violated the limitations set forth in § 2808.” App.,

infra, 80a. Recognizing a cause of action under the Appropriations Clause itself would also be contrary to this

Court’s decision in Armstrong, which confirmed that

implied suits to enjoin alleged constitutional violations

by public officials are “the creation of courts of equity”

and are therefore subject to “express and implied statutory limitations.” 575 U.S. at 327. As to the States,

nothing in this Court’s precedents supports finding that

a party who objects to the Secretary’s reprioritizing of

appropriated but unobligated military construction

funds is within the zone of interests of the limits of the

statute invoked by the Secretary to authorize his action.

In addition, the decision below, if allowed to stand,

would frustrate the goals of both the President’s declaration of a national emergency that requires the use of

the armed forces and also the reprioritization of military construction funds, which the Secretary determined were “necessary to support such use of the armed

forces.” 10 U.S.C. 2808(a). The Secretary found that

these projects will act as “force multipliers” and will

permit more efficient use of the armed forces. Gov’t

C.A. E.R. 92. Whether the Secretary exceeded his authority under Section 2808 when he authorized the projects at issue is a question of significant practical importance to the Executive Branch’s authority to make

decisions concerning military priorities. Accordingly,

the petition for a writ of certiorari should be granted.

At a minimum, given the overlapping issues presented

here and in the Section 8005 litigation concerning

whether the plaintiffs have a cognizable cause of action

to challenge military spending, the Court should hold

this petition for its decision in the Section 8005 case and

then dispose of the petition as appropriate.

CONCLUSION

The petition for a writ of certiorari should be granted.

Alternatively, the petition should be held pending disposition of Trump v. Sierra Club, cert. granted, No. 20-138

(Oct. 19, 2020).

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

JEFFREY BOSSERT CLARK

Acting Assistant Attorney

General

HASHIM M. MOOPPAN

Counselor to the Solicitor

General

SOPAN JOSHI

Senior Counsel to the

Assistant Attorney General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

H. THOMAS BYRON III

EDWARD HIMMELFARB

MICHAEL SHIH

Attorneys

NOVEMBER 2020

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 19-17501

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

SIERRA CLUB; SOUTHERN BORDER COMMUNITIES

COALITION, PLAINTIFFS-APPELLEES

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS

PRESIDENT OF THE UNITED STATES; MARK T. ESPER,

IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF

DEFENSE; CHAD. F. WOLF, IN HIS OFFICIAL CAPACITY

AS ACTING SECRETARY OF HOMELAND SECURITY;

STEVEN TERNER MNUCHIN, IN HIS OFFICIAL CAPACITY

AS SECRETARY OF THE TREASURY,

DEFENDANTS-APPELLANTS

No. 19-17502

D.C. No. 4:19-cv-00872-HSG

STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF

HAWAII; STATE OF MARYLAND; STATE OF NEW

MEXICO; STATE OF NEW YORK; STATE OF OREGON;

STATE OF WISCONSIN; COMMONWEALTH OF VIRGINIA,

PLAINTIFFS-APPELLEES,

AND

STATE OF CONNECTICUT; STATE OF DELAWARE; STATE

OF MAINE; STATE OF MINNESOTA; STATE OF NEW

JERSEY; STATE OF NEVADA; STATE OF ILLINOIS; DANA

NESSEL, ATTORNEY GENERAL, ON BEHALF OF THE PEOPLE OF MICHIGAN; STATE OF MASSACHUSETTS; STATE

OF VERMONT; STATE OF RHODE ISLAND,

PLAINTIFFS

(1a)

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY

AS PRESIDENT OF THE UNITED STATES OF AMERICA;

UNITED STATES OF AMERICA; UNITED STATES

DEPARTMENT OF DEFENSE; MARK T. ESPER, IN HIS

OFFICIAL CAPACITY AS ACTING SECRETARY OF

DEFENSE; RYAN D. MCCARTHY, IN HIS OFFICIAL

CAPACITY AS THE SECRETARY OF THE ARMY; KENNETH

J. BRAITHWAITE, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE NAVY; BARBARA M. BARRETT,

IN HER OFFICIAL CAPACITY AS SECRETARY OF THE

AIR FORCE; UNITED STATES DEPARTMENT OF THE

TREASURY; STEVEN TERNER MNUCHIN, IN HIS

OFFICIAL CAPACITY AS SECRETARY OF THE

DEPARTMENT OF THE TREASURY; U.S. DEPARTMENT

OF THE INTERIOR; DAVID BERNHARDT, IN HIS OFFICIAL

CAPACITY AS SECRETARY OF THE INTERIOR; U.S.

DEPARTMENT OF HOMELAND SECURITY; CHAD

F. WOLF, IN HIS OFFICIAL CAPACITY AS ACTING

SECRETARY OF HOMELAND SECURITY,

DEFENDANTS-APPELLANTS

No. 20-15044

D.C. No. 4:19-cv-00872-HSG

STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF

HAWAII; STATE OF MARYLAND; STATE OF NEW YORK;

STATE OF NEW MEXICO; STATE OF OREGON; STATE OF

COMMONWEALTH OF VIRGINIA; WISCONSIN,

PLAINTIFFS-APPELLANTS,

AND

STATE OF CONNECTICUT; STATE OF DELAWARE; STATE

OF MAINE; STATE OF MINNESOTA; STATE OF NEW

JERSEY; STATE OF NEVADA; STATE OF ILLINOIS; DANA

NESSEL, ATTORNEY GENERAL, ON BEHALF OF THE

PEOPLE OF MICHIGAN; STATE OF MASSACHUSETTS;

STATE OF VERMONT; STATE OF RHODE ISLAND,

PLAINTIFFS

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY

AS PRESIDENT OF THE UNITED STATES OF AMERICA;

UNITED STATES OF AMERICA; UNITED STATES

DEPARTMENT OF DEFENSE; MARK T. ESPER, IN HIS

OFFICIAL CAPACITY AS ACTING SECRETARY OF

DEFENSE; RYAN D. MCCARTHY, SENIOR OFFICIAL

PERFORMING THE DUTIES OF THE SECRETARY OF THE

ARMY; KENNETH J. BRAITHWAITE, IN HIS OFFICIAL

CAPACITY AS SECRETARY OF THE NAVY; BARBARA M.

BARRETT, IN HER OFFICIAL CAPACITY AS SECRETARY

OF THE AIR FORCE; UNITED STATES DEPARTMENT

OF THE TREASURY; STEVEN TERNER MNUCHIN, IN

HIS OFFICIAL CAPACITY AS SECRETARY OF THE

DEPARTMENT OF THE TREASURY; U.S. DEPARTMENT

OF THE INTERIOR; DAVID BERNHARDT, IN HIS OFFICIAL

CAPACITY AS SECRETARY OF THE INTERIOR; U.S.

DEPARTMENT OF HOMELAND SECURITY; CHAD F.

WOLF, IN HIS OFFICIAL CAPACITY AS ACTING

SECRETARY OF HOMELAND SECURITY,

DEFENDANTS-APPELLEES

[Filed:

Oct. 9, 2020]

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Before: THOMAS, Chief Judge, and WARDLAW and COLLINS, Circuit Judges

Opinion by Chief Judge SIDNEY R. THOMAS; Dissent by

Judge COLLINS

THOMAS, Chief Judge:

This appeal presents the question of whether the

emergency military construction authority provided by

10 U.S.C. § 2808 (“Section 2808”) authorized eleven border wall construction projects on the southern border of

the United States. We conclude that it did not. We

also consider whether the district court properly granted

the Organizational Plaintiffs a permanent injunction and

whether the district court improperly denied the State

Plaintiffs’ request for a separate permanent injunction.

We affirm the decision of the district court on both

counts.

Following the longest partial government shutdown

in United States history, Congress passed the 2019 Consolidated Appropriations Act (“2019 CAA”) on February

14, 2019. Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019).

Although the President requested $5.7 billion for border

wall construction, the 2019 CAA made available only

$1.375 billion “for the construction of primary pedestrian fencing . . . in the Rio Grande Valley Sector [in

Texas].” On February 15, 2019 the President signed the

2019 CAA into law, but announced that he was “not

happy” with the amount of border wall funding he had

obtained. Remarks by President Trump on the National Security and Humanitarian Crisis on Our Southern Border, White House at 12 (Feb. 15, 2019), https://

perma.cc/5SE7-FS7F (“Rose Garden Remarks”).

On the same day, the President invoked his authority

under the National Emergencies Act, 50 U.S.C. § 1601

et seq. (the “NEA”) to declare that “a national emergency exists at the southern border of the United

States.” See Proclamation No. 9844, 84 Fed. Reg.

4,949 (Feb. 15, 2019). The national emergency proclamation also “declare[d] that this emergency requires

use of the Armed Forces,” and made available “the construction authority provided in [Section 2808].” Id.

The President explained that, even though he had obtained some border wall funding, he declared a national

emergency because although he “could do the wall over

a longer period of time” by going through Congress, he

would “rather do it much faster.” Rose Garden Remarks at 12.

Since February 2019, Congress has attempted to terminate the national emergency on two separate occasions. On March 14, 2019, Congress passed a joint resolution to terminate the emergency declaration, but it

was vetoed the next day by the President, and Congress

failed to override the Presidential veto. See H.R.J.

Res. 46, 116th Cong. (2019); 165 Cong. Rec. H2799,

H2814-15 (2019). On September 27, 2019, Congress

passed a second joint resolution to terminate the emergency declaration, but once again, the President vetoed

this resolution, and Congress failed to override the veto.

See S.J. Res. 54, 116th Cong. (2019); 165 Cong. Rec.

S5855, S5874-75 (2019).

Congress has an ongoing obligation to consider

whether to terminate the emergency every six months,

but the President renewed the declaration of a national

emergency on February 13, 2020. Message to Congress on the Continuation of the National Emergency

with Respect to the Southern Border of the United

States, White House (Feb. 13, 2020).

Although the President’s declaration of a national

emergency was issued in February 2019, the administration did not announce that it had made a decision to

divert the funds until September 3, 2019, when the Secretary of Defense announced that it was necessary to divert $3.6 billion from military construction projects to

border wall construction projects.

The Secretary of Defense announced that the funds

would be diverted to fund eleven specific border wall construction projects in California, Arizona, New Mexico,

and Texas. Altogether, the projects include 175 miles

of border wall. The projects fall into three basic categories: (1) two projects on the Barry M. Goldwater

Range military installation in Arizona, (2) seven projects

on federal public domain land that is under the jurisdiction of the Department of the Interior, and (3) two projects on non-public land that would need to be acquired

through either purchase or condemnation before construction could begin. The first two projects would be

built on the Goldwater Range, and “the remaining nine

will be built on land assigned to Fort Bliss, an Army

base,” with its headquarters in El Paso, Texas.

On September 5, 2019, the Secretary of Defense identified which military construction projects the Department of Defense (“DoD”) intended to defer in order to

fund border wall construction. The Secretary authorized the diversion of funding from 128 military construction projects, 64 of which are located within the United

States, and 17 of which are located within the territory

of the Plaintiff States—California, Colorado, Hawai’i,

Maryland, New Mexico, Oregon, Virginia, and Wisconsin

—totaling over $500 million in funds. 1 Pursuant to

Section 2808, the Secretary authorized the Federal Defendants to proceed with construction without complying with environmental laws.

The Organizational Plaintiffs in this case, Sierra Club

and the Southern Border Communities Coalition (“SBCC”)

(collectively, “Sierra Club”) and the State Plaintiffs 2

filed separate suits challenging the Federal Defendants’ 3 anticipated diversion of federal funds to fund border wall construction pursuant to various statutory authorities, including Section 2808. See Sierra Club v.

Trump, No. 19-cv-00892-HSG; California v. Trump, No.

19-cv-00872-HSG.

In both cases, the parties first litigated the claims

challenging the Federal Defendants’ transfer of funds

pursuant to Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019, Pub. L. No.

115-245, 132 Stat. 2981 (2018) (“Section 8005”)—the

Although there are 19 total defunded projects within the Plaintiff

States, the States only assert harms from 17 of these projects.

Specifically, the action was filed by the following states: California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine,

Maryland, Minnesota, Nevada, New Jersey, New Mexico, New York,

Oregon, the Commonwealth of Virginia, and Attorney General Dana

Nessel on behalf of the People of Michigan. The complaint was

later amended to add the following states: Rhode Island, Vermont,

Wisconsin, and the Commonwealth of Massachusetts.

Both lawsuits named as defendants Donald J. Trump, President

of the United States, Patrick M. Shanahan, Former Acting Secretary of Defense, Kirstjen M. Nielsen, former Secretary of Homeland

Security, and Steven Mnuchin, Acting Secretary of the Treasury in

their official capacities, along with numerous other Executive Branch

officials (collectively referenced as “the Federal Defendants”).

claims that were the subject of the prior appeals considered by this panel. The parties agreed that while litigating the Section 8005 claims, they would stay the summary judgment briefing schedule as to the Section 2808

funds until the Acting Secretary of Defense and U.S.

Customs and Border Protection (“CBP”) reached a final

decision to fund specific border wall projects using Section 2808. The Secretary of Defense reached this final

decision on September 3, 2019, and the Federal Defendants filed a Notice of Decision in both cases pending before the district court.

Nine states, including California, Colorado, Hawai’i,

Maryland, New Mexico, New York, Oregon, Wisconsin,

and the Commonwealth of Virginia (collectively, the

“States”), filed a motion for partial summary judgment

on their Section 2808 claims on October 11, 2019 in California v. Trump. On the same day, Sierra Club filed

a motion for partial summary judgment on its Section

2808 claims in Sierra Club v. Trump.

On December 11, 2019, in a single opinion addressing

the claims of both State and Sierra Club Plaintiffs, the

district court granted summary judgment and a declaratory judgment to the Plaintiffs on their Section 2808

claims with respect to the eleven border wall construction projects. It granted Sierra Club’s request for a

permanent injunction, enjoining “Defendants Mark T.

Esper, in his official capacity as Secretary of Defense;

and Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security” as well as “all persons acting under their direction” “from using military construction funds appropriated for other purposes to build a

border wall” in the areas identified as “Yuma Project 2;

Yuma Project 10/27; Yuma Project 3; Yuma Project 6;

San Diego Project 4; San Diego Project 11; El Paso Project 2; El Paso Project 8; Laredo Project 5; Laredo Project 7; El Centro Project 5; and El Centro Project 9.”

The district court denied the States’ “duplicative request for a permanent injunction as moot.” However,

the district court sua sponte stayed the Sierra Club permanent injunction pending appeal pursuant to Fed. R.

Civ. P. 62(c). It explained that “the Supreme Court’s

stay of this Court’s prior injunction order appears to reflect the conclusion of a majority of that Court that the

challenged construction should be permitted to proceed

pending resolution of the merits.” Therefore, the district court determined that “the lengthy history of this

action; the prior appellate record; and the pending appeal before the Ninth Circuit on the merits of Plaintiffs’

Section 8005 claim . . . warrant a stay.” The district court properly considered the relevant factors and

certified its order for immediate appeal pursuant to Fed.

R. Civ. P. 54(b).

The Federal Defendants timely appealed the district

court’s grant of summary judgment and declaratory relief to Sierra Club and the States and the grant of a permanent injunction to Sierra Club. The States timely

cross-appealed the district court’s denial of their request for a permanent injunction.

III

We first provide a brief background of the statutory

framework at issue: the National Emergencies Act.

The NEA empowers the President to declare national

emergencies. It states that “[w]ith respect to Acts of

Congress authorizing the exercise, during the period of

a national emergency, of any special or extraordinary

10a

power, the President is authorized to declare such a national emergency.” 50 U.S.C. § 1621(a). The statute

invoked by the Federal Defendants is one such Act of

Congress that authorizes military construction in the

event of a national emergency. 10 U.S.C. § 2808 provides that

In the event of a declaration of war or the declaration

by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C.

1601 et seq.) that requires use of the armed forces,

the Secretary of Defense, without regard to any

other provision of law, may undertake military construction projects, and may authorize the Secretaries

of the military departments to undertake military

construction projects, not otherwise authorized by law

that are necessary to support such use of the armed

forces.

Although the NEA empowers presidential action in

national emergencies, it also empowers Congress to check

that action. The NEA’s legislative history makes clear

that it was passed to “[e]nsure that the powers now in

the hands of the Executive will be utilized only in time

of genuine emergency and then only under safeguards

providing for Congressional review,” and that it “[was]

not intended to enlarge or add to Executive power.”

The National Emergencies Act (Public Law 94-412),

Source Book: Legislative History, Text, and Other

Documents 50, 292 (1976) (“NEA Source Book”). Instead it was “an effort by the Congress to establish clear

procedures and safeguards for the exercise by the President of emergency powers conferred upon him by other

statutes.” Id. at 292.

11a

As originally enacted, the NEA allowed Congress to

terminate any national emergency declared by the President by concurrent resolution. See Pub. L. 94-412, 90

Stat. 1255, §202(a)(1) (1976) (“Any national emergency

declared by the President in accordance with this title

shall terminate if . . .

Congress terminates the

emergency by concurrent resolution.”). However, the

landmark Supreme Court decision, INS v. Chadha, 462

U.S. 919, 959 (1983), held that concurrent resolutions are

unconstitutional, thus invalidating Congress’s strongest

check on the President’s emergency powers. In response, Congress amended the NEA to allow for the termination of an emergency declaration if “there is enacted into law a joint resolution terminating the emergency.” 10 U.S.C. § 1622(a)(1). Chadha, therefore,

made it more difficult for Congress to check the President’s use of emergency powers than originally intended.

Until now, Chadha had little impact because, prior to

the President’s declaration of a national emergency on

the southern border, Congress had never once voted to

terminate a declaration of a national emergency. Indeed, Section 2808 has only been invoked once to fund

construction on American soil, and it has never been

used to fund projects for which Congress withheld appropriations. Thus, this case operates against the background of the first serious clash between the political

branches over the emergency powers since the passage

of the NEA in 1976. 4

The U.S. House of Representatives is also involved in this litigation as an amicus curiae supporting the Plaintiffs.

12a

We first consider whether Plaintiffs are the proper

parties to challenge the Federal Defendants’ actions.

We conclude that Plaintiffs have Article III standing

and a cause of action to challenge the border wall construction projects.

Although the Federal Defendants do not challenge

either the States’ or Sierra Club’s Article III standing,

we have “an independent obligation to assure that

standing exists, regardless of whether it is challenged

by any of the parties.” Summers v. Earth Island Inst.,

555 U.S. 488, 499 (2009). In order to establish Article

III standing, a plaintiff must have (1) suffered an injury

in fact, (2) fairly traceable to the challenged conduct of

the defendant, and (3) likely to be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504

U.S. 555, 560-61 (1992). When there are multiple plaintiffs, “[a]t least one plaintiff must have standing to seek

each form of relief requested in the complaint.” Town

of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645,

1651 (2017). At summary judgment, a plaintiff cannot

rest on mere allegations, but “must set forth by affidavit

or other evidence specific facts.” Clapper v. Amnesty

Int’l. USA, 568 U.S. 398, 412 (2013) (internal quotations

and citations omitted). However, these specific facts

“for purposes of the summary judgment motion will be

taken to be true.” Lujan, 504 U.S. at 561.

The States put forth three different injuries in support of Article III standing. We conclude that border

13a

wall construction will inflict environmental and quasisovereign injuries in fact upon California and New Mexico and economic injuries in fact upon the remaining

states. We conclude that all nine states have standing.

California and New Mexico will suffer injuries similar to those asserted in the prior appeals. States are

“entitled to special solicitude in our standing analysis.”

Massachusetts v. EPA, 549 U.S. 497, 520 (2007). As a

quasi-sovereign, a state “has an interest independent of

and behind the titles of its citizens, in all the earth and

air within its domain.” Georgia v. Tenn. Copper Co.,

206 U.S. 230, 237 (1907). Thus, a state may sue to assert its “quasi-sovereign interest in the health and wellbeing—both physical and economic—of its residents in

general.” Alfred L. Snapp & Son, Inc. v. Puerto Rico,

ex rel., Barez, 458 U.S. 592, 607 (1982). In addition,

“[d]istinct from but related to the general well-being of

its residents, the State has an interest in securing observance of the terms under which it participates in the

federal system.” Id. at 607-08.

California will suffer an injury in fact based on its environmental injuries. California asserts that it “has an

interest in the natural resources of [its] State—such as

wildlife, fish, and water—that are held in trust by the

State for its residents and are protected by state and

federal laws.” If construction occurs, “dozens of sensitive plant and animal species that are listed as ‘endangered,’ ‘threatened,’ or ‘rare’ will be seriously at risk,”

and construction will “create environmental harm.”

For instance, the border wall construction projects will

undermine the recovery of several federally listed en-

14a

dangered species and California Species of Special Concern 5 and damage those species’ habitats. San Diego

Project 4 and 11 fall within the California Floristic Province, one of the world’s biodiversity hotspots, which contains plants not found elsewhere in the United States,

construction will likely have detrimental effects on the

Quino Checkerspot Butterfly, the Coastal California

Gnatcatcher, the Western Burrowing Owl, and vernal

pool habitat and species, among other species.

California has adequately set forth facts and other

evidence, which, taken as true, support these allegations

for the purpose of Article III standing. It has demonstrated that border wall construction will injure its environmental interests.

The proposed construction areas for San Diego Projects 4 and 11 “would cut through designated critical

habitat for the endangered Quino Checkerspot Butterfly,” which has “been documented immediately adjacent

to the border fence and on the surrounding slopes to the

north, well within the proposed project area.” The

A species of special concern is “a species, subspecies, or distinct

population of an animal native to California that currently satisfies

one or more of the following (but not necessarily mutually exclusive)

criteria: is extirpated from the State . . . ; is listed as Federally-,

but not State-, threatened or endangered; meets the State definition

of threatened or endangered but has not formally been listed; is experiencing, or formerly experienced, serious (noncyclical) population declines or range retractions (not reversed) that, if continued or

resumed, could qualify it for State threatened or endangered status;

has naturally small populations exhibiting high susceptibility to risk

from any factor(s), that if realized, could lead to declines that would

qualify it for State threatened or endangered species.” CAL. DEPT.

OF FISH AND WILDLIFE, SPECIES OF SPECIAL CONCERN, https://

wildlife.ca.gov/Conservation/SSC.

15a

“proposed work, including resurfacing of the roadways

where the butterfly and its host plants have been found,

will crush and bury diapausing larvae and host plant

seed bank in the area,” causing “irreparable harm to the

Quino Checkerspot Butterfly population and its critical

habitat on Otay Mesa.”

Gnatcatchers are found within the project area for

San Diego Project 4, and construction activities “will result in significant displacement of California gnatcatchers into already diminished and limited habitat areas.”

Because the species is “restricted to coastal southern

California in areas of open coastal sage scrub,” and gnatcatcher “territories average approximately 9 acres,”

gnatcatchers affected by construction “will either be required to move or challenge adjacent pairs for their occupied territories,” ultimately resulting in “a substantial

reduction of the population in the area, and irreparable

harm to the species and its habitat.”

San Diego Project 4 would also harm the Western

Burrowing Owl. The owl is “restricted to the western

U.S. and northern Mexico,” owls occur in the project

area, and eastern Otay Mesa, where San Diego Project

4 is expected to occur, “is the last stronghold for the species in the County.” The “loss of both occupied burrows

and foraging habitat [where construction takes place]

will only hasten [the owl’s] decline.” The owl will be

further impacted because it is “especially sensitive to

construction due to [its] unique behavior,” and it is “easily flushed [from its burrows] by adjacent human disturbance or activities.” “Repeated flushing during periods of incubation or while feeding chicks has extremely

16a

negative effects, including cooling of eggs, reduced feeding of chicks, or increased exposure to predators, reducing the percentage of chicks surviving to adulthood.”

San Diego Project 4 will also impact and harm delicate vernal-pool habitats, which are home to a number

of endangered species, like the San Diego Fairy Shrimp.

The landscape “leading to San Diego 4[] supports numerous vernal pools,” and “[s]everal of these pools occur

within and adjacent to dirt roads that will be utilized by

heavy equipment, and where additional grading, vegetation clearing and filling may occur,” which “would damage vernal pools and cause irreparable harm to the fairy

shrimp and other vernal pool species.”

New Mexico will also suffer an injury in fact based on

its environmental injuries. If the New Mexico Projects

are built, they will “impose environmental harm to the

State” and the damage “would include the blocking of

wildlife migration, flooding, and habitat loss.” The

New Mexico Projects will be built primarily in the “Bootheel” of New Mexico in the Animas and Playas Valleys,

an area in southwestern New Mexico that is a “pinch

point for ecological diversity, migration, and dispersal in

the western North American continent.” Border wall

construction “for the New Mexico Projects will create

fragmented habitat and block wildlife corridors for numerous protected species” such as the white-sided jackrabbit, a rare and threatened species under New Mexico

law, and the jaguar, a federally endangered species.

New Mexico has also adequately set forth facts and

other evidence, which, taken as true, support these allegations for the purpose of Article III standing. It has

demonstrated that border wall construction will injure

its environmental interests.

17a

“Currently, the only area that the white-sided jackrabbit . . . inhabits in the United States is in the

Animas and Playas Valleys, where the proposed El Paso

2 and 8 Projects are being constructed.” The “species

is already in distress and its numbers are falling due to

habitat loss and roadkill incidents from U.S. Border Patrol vehicles which increased dramatically after Customs and Border Protection completed road improvements in 2008.” The current population “is estimated

to be 61 hares.” The hares “cross back and forth”

across the US-Mexico border “to avoid predators, and

to access food, water and mates,” but construction

would block crossings because the border wall’s “steel

concrete-filled bollards [are] spaced four inches apart,”

and “jackrabbits cannot fit through the 4-inch gaps.”

El Paso Project 8 and the eastern portion of El Paso

Project 2 block important habitat corridors for the hare,

including “the sole route the hares can utilize to access

habitat on both sides of the border because they cannot

navigate the mountainous terrain that surrounds the

Animas and Playas Valleys.” Construction would therefore “cut off the last remaining population of the whitesided jackrabbit in the United States,” and “[t]he outlook for the jackrabbit’s survival in New Mexico and the

United States [would be] dismal if El Paso 2 and 8 are

built.”

Likewise, “[c]onstruction of El Paso 2 and 8 will also

harm the federally endangered jaguar . . . as both

projects are immediately adjacent to the jaguar’s critical habitat.” Jaguars have been documented in the region, including on “lands that directly adjoin the location

of El Paso 2 Project in the Animas Valley.” “Habitat

connectivity is critical to the jaguar’s survival,” because

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“[t]he jaguar’s survival depends on it being able to access habitat on both sides of the U.S.-Mexican border to

access prey, mate and suitable habitat,” but the “El Paso

Projects impede the jaguar’s recovery by blocking a key

wildlife corridor.”

In addition, California will suffer an injury in fact to

its quasi-sovereign interests. California has alleged that

it has “an interest in its exercise of sovereign power over

individuals and entities within the State, including enforcement of its legal code.” The Federal Defendants

ordinarily would have to comply with various California

laws designed to protect public health and the environment to proceed with construction, but Section 2808 authorizes construction “without regard to any other provision of law,” and the Secretary of Defense has explicitly directed that the projects be undertaken “without

regard to any other provision of law that could impede

. . . expeditious construction.” This impacts California’s ability to enforce its state laws, including, among

others, the Porter-Cologne Water Quality Control

Act, Cal. Water Code §§ 13000-16104, the California

Endangered Species Act, Cal. Fish and Game Code

§§ 2050-2089.26, and California’s state implementation

program under the Clean Air Act, see 42 U.S.C.

§ 7506(c)(1). Thus, California will suffer an injury to

its quasi-sovereign interest in enforcing its own laws, interfering with the terms under which it participates in

the federal system.

California has adequately set forth facts and other

evidence, which, taken as true, support these allegations

for the purpose of Article III standing.

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Under California law, the California State Water Resources Control Board and nine regional boards establish water quality objectives and standards, and, for the

California Projects, where the discharge of dredged or

fill material into waters of the United States is expected

to occur, a regional board must ordinarily certify compliance with water quality standards. The record indicates that El Centro Projects 5 and 9 and Yuma Project

6 are “to be constructed, at least in part, in areas under

the jurisdiction of the Colorado River Basin Water

Board.” Therefore, absent the use of Section 2808 authority, these projects “could normally not proceed

without a Section 404 dredge and fill permit issued by

the United States Army Corp of Engineers, which would

in turn compel a Section 401 water quality certification”

by the Colorado River Basin Water Board. The record

further indicates that, “[d]ue to their nature and location

of construction, El Centro Projects 5 and 9, and Yuma

Project 6 normally would also require enrollment in the

State Water Board’s statewide [National Pollutant Discharge Elimination System (NPDES) General Permit

for Storm Water Discharges Associated with Construction and Land Disturbance Activities.]”

Additionally, but for the use of Section 2808, the Federal Defendants would be required to comply with the

Endangered Species Act, which protects species threatened, endangered, or of special concern under California

law and allows California to continue implementing habitat conservation agreements with federal agencies that

impose limitations on habitat-severing projects like the

border wall construction projects. The use of Section

2808 therefore undermines California’s ability to enforce the California Endangered Species Act and the

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“policy of the state to conserve, protect, restore, and enhance any endangered species or any threatened species

and its habitat.” Cal. Fish & Game Code § 2052.

Likewise, the use of Section 2808 authority undermines California’s enforcement of its air quality standards. In particular, the Clean Air Act prohibits any

construction within California that does not conform to

California’s State Implementation Program (“SIP”).

40 C.F.R. § 93.150(a). Moreover, local air districts with

jurisdiction over the California Project areas enforce

rules to reduce the amount of fine particulate matter

generated from construction projects by requiring those

responsible to develop and implement a dust control

plan. Although the Federal Defendants assert they “will

implement control measures,” implementing control measures is not the same as implementing a complete dust

control plan, and there is no indication that the Federal

Defendants intend to comply fully with California’s air

quality laws.

New Mexico will also suffer an injury in fact to its

quasi-sovereign interests. The Federal Defendants

would ordinarily have to comply with various New Mexico laws designed to protect public health and the environment. Such laws include the dust control plan New

Mexico adopted under the Clean Air Act and its Wildlife

Corridors Act, N.M. Stat. Ann. §§ 17-9-1-17-9-4. Thus,

New Mexico too suffers an injury to its quasi-sovereign

interest in enforcing its own laws, interfering with the

terms under which it participates in the federal system.

New Mexico has adequately set forth facts and other

evidence, which, taken as true, support these allegations

for the purpose of Article III standing.

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Absent the use of Section 2808 authority, the Federal

Defendants would normally be required to comply with

New Mexico’s fugitive dust control rule and the High

Wind Fugitive Dust Mitigation Plan that New Mexico

adopted under the Clean Air Act in order to construct

El Paso Project 2. 40 C.F.R. § 51.930(b); see N.M. Admin. Code §§ 20.2.23.109-112 (mandating that “[n]o person . . . shall cause or allow visible emissions from

fugitive dust sources that: . . . pose a threat to public health . . . interfere with public welfare, including animal or plant injury or damage, visibility or the

reasonable use of property” and “[e]very person subject

to this part shall utilize one or more dust control measures . . . as necessary to meet the requirements of

[this section]”). Although the Federal Defendants assert that they plan to implement control measures, they

have not indicated that they intend to be bound in any

way by New Mexico’s law.

Likewise, the Federal Defendants’ use of Section 2808

authority impedes New Mexico’s ability to implement its

Wildlife Corridors Act, which aims to protect large

mammals’ habitat corridors from human-caused barriers such as roads and walls and requires New Mexico

agencies to create wildlife corridors action plans to protect species’ habitat. 2019 N.M. Laws Ch. 97. Several

important wildlife corridors run through, or adjacent to,

the New Mexico Projects in Hidalgo and Luna Counties.

“El Paso Projects 2 and 8 will . . . block habitat corridors,” in these counties for “wildlife species that currently cross back and forth over the border to access

habitat, vegetation, water and other resources.” “[P]articularly when viewed cumulatively with other recent

border-barrier projects such as El Paso Project 1,” the

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loss of wildlife corridors will impede species’ “access to

resources necessary for their survival.”

Moreover, the New Mexico Projects will harm species that New Mexico’s laws were enacted to protect,

such as the white-sided jackrabbit, as previously explained. The Projects will bisect important habitats,

impairing the access of the Mexican wolf to those habitats. In sum, California and New Mexico have adequately shown one or more injuries in fact supported by

facts and evidence.

Turning to the causation requirement, we conclude

that California and New Mexico will suffer both environmental and sovereign injuries that are fairly traceable

to the Federal Defendants’ conduct. The declarations

in support of the environmental harms clearly demonstrate how the proposed construction will harm species,

and Section 2808 itself provides the authority for the

Secretary of Defense to override state environmental

laws.

It is also clear that a favorable judicial decision would

redress California and New Mexico’s asserted injuries.

Without Section 2808 authorization, DoD has no authority to undertake border wall construction, and, if construction is prohibited, California and New Mexico will

not suffer the alleged harms. We therefore conclude

California and New Mexico have Article III standing to

challenge the construction projects on their borders.

The remaining states assert theories of economic loss

and the loss of tax revenues as the basis for standing.

Economic loss and the loss of tax revenues can be sufficient to establish Article III injury in fact. See, e.g.,

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Wyoming v. Oklahoma, 502 U.S. 437, 447 (1992) (holding that the loss of specific tax revenues conferred

standing); City of Oakland v. Lynch, 798 F.3d 1159,

1163-64 (9th Cir. 2015) (recognizing that an expected

loss of tax revenues constitutes a “constitutionally sufficient” injury for Article III standing); City of Sausalito

v. O’Neill, 386 F.3d 1186, 1194, 1198-99 (9th Cir. 2004)

(recognizing financial harm from decreased tax revenues as a cognizable injury). It may be appropriate to

deny standing where a state claims only that “actions

taken by United States Government agencies . . .

injured a State’s economy and thereby caused a decline

in general tax revenues.” Wyoming v. Oklahoma, 502

U.S. at 448 (citing Pennsylvania v. Kleppe, 533 F.2d 668

(D.C. Cir. 1976), cert. denied, 429 U.S. 977 (1976), as an

example). But where there is “some fairly direct link

between the state’s status as a collector and recipient of

revenues and the legislative or administrative action being challenged,” lost tax revenues can support Article

III standing. Kleppe, 533 F.2d at 672.

The States have each individually alleged that the

Section 2808 diversion of funds will result in economic

losses, including lost tax revenues. The loss of tax revenues here is analogous to those in Wyoming v. Oklahoma. There, Wyoming challenged an Oklahoma law

requiring Oklahoma utility companies using coal-fired

generating plants to blend ten percent Oklahoma coal

with their existing coal sources, which had been purchased almost entirely from Wyoming. Id. at 443, 445.

Wyoming did not sell coal directly, but it imposed a severance tax on any person or company extracting coal

from within its borders. Id. at 442. The Supreme

Court agreed that Wyoming had standing because there

was “a direct injury in the form of a loss of specific tax

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revenues.” Id. at 448, 451. Here, the States have alleged analogous, direct injuries in the form of lost tax

revenues resulting from the cancellation of specific military construction projects.

Colorado has standing based on its economic injury

and loss of tax revenues because it faces the defunding

of a Space Control Facility at the Peterson Air Force

Base resulting in an estimated loss of $1 million in state

and local tax revenues.

Hawai’i has standing based on its economic injury

and loss of tax revenues because it faces the defunding

of two projects—a consolidated training facility at the

Joint Base Pearl Harbor-Hickam and security improvements at the Marine Corps base at Kaneohe Bay—

resulting in an estimated loss of $2.5 million in state and

local tax revenues.

Maryland has standing based on its economic injury

and loss of tax revenues because it faces the defunding

of three projects—an expansion of cantonment area

roads at Fort Meade, construction of a hazardous cargo

loading and unloading pad and an explosive ordinance

disposal training range at Joint Base Andrews, and construction of a child development center at Joint Base

Andrews—resulting in an estimated loss of $5 million in

state and local tax revenues.

New Mexico also has standing based on its economic

injury and loss of tax revenues because it faces defunding of two projects—the construction of an air combat

training facility for unmanned vehicles at Holloman Air

Force Base and an Information Systems Facility at

White Sands Missile Range—resulting in an estimated

loss of $9 million in state and local tax revenues.

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New York has standing based on its economic injury

and loss of tax revenues because it faces the defunding

of two projects—an Engineering Center and Parking

Structure at the U.S. Military Academy at West Point—

resulting in an estimated loss of $13 million in state and

local tax revenues.

Oregon has standing based on its economic injury

and loss of tax revenues because it faces the defunding

of the construction of an indoor small arms training

range at the Klamath Falls International Airport resulting in an estimated loss of $600,000 in state and local tax

revenues.

Virginia has standing based on its economic injury

and loss of tax revenues because it faces the defunding

of four projects—the construction of a cyber operations

facility at Joint Base Langley-Eustis, the replacement

of two different Hazardous Materials Warehouses at

Norfolk Naval Station in Norfolk and the Norfolk Naval

Shipyard in Portsmouth, and the conversion and repair

of a major Ships Maintenance Facility at the Naval Support Station in Portsmouth—resulting in an estimated

loss of $5 million in state and local tax revenues.

Wisconsin has standing based on its economic injury

and loss of tax revenues because it faces the defunding

of the construction of an indoor small arms training

range at Truax Field resulting in an estimated loss of

$600,000 in state and local tax revenues.

The injuries are “fairly traceable” to the Federal Defendants’ conduct. The States have illustrated that

there is a “line of causation between the [Federal Defendants’] action and [their] harm” that is “more than

attenuated.” Wash. Envtl. Council v. Bellon, 732 F.3d

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1131, 1141 (9th Cir. 2013) (citation omitted). The States

have illustrated that the lost revenues stem from identifiable projects, directly linking the States’ statuses as

collectors and recipients of revenues to the challenged

actions. Moreover, the States’ expert calculated the

estimated loss of tax revenues with the widely-used

IMPLAN economic model that takes into account specific details about each defunded military construction

project from the Federal Defendants’ own information

regarding each project. The expert’s “analysis conservatively included only projects within the plaintiff states’

boundaries because the diversion of those projects would

have primary effects on the plaintiff states,” and the

analysis did not consider “the secondary effects of defendants’ diversion of military construction projects located in other states and counties,” thus ensuring that

the calculated losses accounted for here are not too attenuated for purposes of Article III.

A favorable judicial decision barring Section 2808

construction would prevent the military construction

funds at issue from being transferred from projects

within the States to border wall construction projects,

thereby preventing the alleged injuries. Therefore,

the States’ losses, as outlined here, satisfy the demands

of Article III standing. We conclude that all nine states

have standing to challenge the border wall construction

projects.

Sierra Club and SBCC also have standing. An organization has standing to sue when “its members would

otherwise have standing to sue in their own right,” and

when “the interests it seeks to protect are germane to

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the organization’s purpose.” United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc.,

517 U.S. 544, 553 (1996) (quoting Hunt v. Wash. State

Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). An

organization may also have standing to sue on its own

behalf when it suffers “both a diversion of its resources

and a frustration of its mission.” La Asociacion de

Trabajadores de Lake Forest v. City of Lake Forest, 624

F.3d 1083, 1088 (9th Cir. 2010) (quoting Fair Housing

of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)).

The organization “must . . . show that it would have

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

Sierra Club has standing to sue on behalf of its members. It has alleged that the Federal Defendants’ actions will cause particularized and concrete injuries to

its members. Sierra Club has more than 400,000 members in California, over 9,700 of whom belong to its San

Diego Chapter. Sierra Club’s Grand Canyon Chapter,

which covers the State of Arizona, has more than 16,000

members. Sierra Club’s Rio Grande Chapter includes

over 10,000 members in New Mexico and West Texas.

Sierra Club’s Lone Star Chapter, which covers the State

of Texas, has over 26,100 members, more than 440 of

whom live in the Lower Rio Grande Valley.

These members visit border areas such as: the Tijuana Estuary (California), the Otay Mountain Wilderness (California), the Jacumba Wilderness Area (California), the Sonoran Desert (Arizona), Cabeza Prieta

National Wildlife Refuge (Arizona), the Chihuahan Desert (New Mexico), Santa Ana National Wildlife Refuge

(Texas), the Lower Rio Grande Valley National Wildlife

Refuge (Texas), Bentsen-Rio Grande Valley State Park

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(Texas), La Lomita Historical Park (Texas), and the National Butterfly Center (Texas).

Sierra Club’s members obtain recreational, professional, scientific, educational, and aesthetic benefits from

their activities along the U.S.-Mexico border, and from

the wildlife dependent upon the habitat in these areas.

The construction of a border wall and related infrastructure will acutely injure these interests because the Department of Homeland Security (“DHS”) is proceeding

with border wall construction without ensuring compliance with any federal or state environmental regulations

designed to protect these interests.

Sierra Club has adequately set forth facts and other

evidence, which, taken as true, support these allegations

for the purpose of Article III standing.

For instance, Sierra Club member Bill Broyles has a

“substantial professional and personal connection to the

lands identified for construction as projects Yuma 2 and

10/27 (on the Goldwater Range) and Yuma 3 (on Cabeza

Prieta).” He has “written and edited several books and

articles on Cabeza Prieta and the Goldwater Range,”

and he “also co-wrote and co-published a visitor’s guide

to the historic trail, El Camino del Diablo, that the proposed wall parallels and crosses, and that would be

harmed by construction vehicle traffic.” He participated in many meetings sponsored by the Range and

Refuge concerning their management plans over the

years. He believes that the “proposed wall is antithetical to [the] successful cooperative efforts of the Range

and Refuge partners,” and it would “desecrate” the historic El Camino del Diablo. He asserts that harm to

wildlife species, “the incessant lighting associated with

the wall and its construction,” and the “attendant noise

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and dust” of construction will harm his enjoyment of

these areas.

Sierra Club member Orson Bevins lives near the

U.S.-Mexico border and states that Yuma Sector Project 6 would “fragment” the vista he usually enjoys.

He also states that the “tall and intrusive pedestrian

barrier would disrupt the desert views and inhibit [him]

from fully appreciating this area,” and that a border wall

“would greatly degrade [his] experience visiting and living in this area.”

Richard Guerrero is a Sierra Club member who resides in San Diego, California, and he hikes the trails in

and around the Otay Open Space Preserve “about once

a month,” and “often hike[s] in areas that are within the

sightline of where [he] understand[s] the government

plans to construct San Diego Project 4.” The “wall

would directly impact [his] ability to enjoy recreating in

this area” by adding “a destructive human-created element to this otherwise peaceful open desert landscape.”

Likewise, Sierra Club member Daniel Watman, who

leads “border tours” through the Otay Mountain Wilderness, will be harmed by San Diego Project 4 and San

Diego Project 11. If San Diego Project 4 is built, he will

“no longer be able to lead [his] border tours because the

purpose of the tours—to see nature continuing unimpeded across the border—would be lost.” Moreover,

he enjoys visiting the bi-national town of Tecate, and he

believes “San Diego 11 project would seriously reduce

the enjoyment [he] get[s] from the area, because seeing

this large, out-of-place wall would mar [his] views of the

beautiful mountain range on the American side” and

“cause extensive and possibly irreparable damage to the

native flora” in the area.

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Sierra Club member Robert Ardovino “currently recreate[s] in what [he] understand[s] to be the El Paso

Project 2 and 8 areas,” and has “done so for several decades.” He claims that construction will “drastically

change [his] ability to appreciate [the] views” of the

“sprawling vistas near Antelope Wells,” because the

lighting planned for the construction projects “would

completely change the landscape,” and the construction

would harm the species he appreciates while camping,

“permanently ruin[ing]” his “use and enjoyment of these

areas.”

Thomas Miller is a Sierra Club member who works at

Laredo College conducting environmental research with

students in the Rio Grande Valley, and he asserts that

Laredo Project 7 will injure him “professionally, recreationally, and aesthetically.” For the last 15 years, his

“research has largely focused on the now endangered

Texas Hornshell Mussel.” He is “concerned that [Laredo Project 7] and its construction will destroy essential habitat for freshwater mussels and other species of

plants and animals,” because the “construction process

and the existence of a wall would lead to river siltation

when parts of the desert soil and rocks are displaced”

and could potentially lead to “chemicals polluting the

water sources” in the area. Likewise, Jerry Thompson, a Sierra Club member and Professor of History at

Texas A&M International University, whose research

focuses on “Texas history, border history, and the history of the American Civil War” asserts that Laredo

Project 7 “would be extremely detrimental to [his] research and career as it would foreclose [his] ability to do

site visits and visualize the area before writing about it.”

He has written numerous books about the Texas-Mexico

border, has visited the Laredo 7 Project area around

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twenty times in the course of his research, intends to return within the next few years to view the section of the

Rio Grande where Laredo 7 project is slated for construction, and “plan[s] to continue to write about the

Texas-Mexico border.”

Carmina Ramirez is a Sierra Club member who “will

be harmed culturally and aesthetically” if construction

proceeds for El Centro Projects 5 and 9 because she has

spent her entire life in the area surrounding the U.S.Mexico Border, including the El Centro Sector, and she

believes that border wall construction would “obstruct

[the] view [of the Valley area],” “divide [her community],” “further militariz[e] the border,” and “drastically

impact [her] ability to enjoy the local natural environment.” Construction will make her “less likely to hike

Mount Signal and enjoy outdoor recreational activities;

and when [she does] undertake those activities, [her] enjoyment of them will be irreparably diminished.”

Lastly, the interests of Sierra Club’s members in this

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

to exploring, enjoying, and protecting the wild places of

the earth; to educating and enlisting humanity to protect

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

objectives.” Sierra Club’s organizational purpose is at

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

SBCC has also alleged facts that support its standing

to sue on behalf of itself and its member organizations.

SBCC alleged that, since the Federal Defendants proposed border wall construction, it has had to “mobilize[]

its staff and its affiliates to monitor and respond to the

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diversion of funds and the construction caused by and

accompanying the national emergency declaration.”

These “activities have consumed the majority of SBCC

staff’s time, thereby interfering with SBCC’s core advocacy regarding border militarization, Border Patrol lawenforcement activities, and immigration reform,” but it

has had no choice because it “must take these actions in

furtherance of its mission to protect and improve the

quality of life in border communities.”

SBCC has adequately set forth facts and other evidence, which, taken as true, support these allegations

for the purpose of Article III standing. SBCC Director Vicki Gaubeca has confirmed that the border wall

construction projects have “caused [SBCC] to reduce

the time that [it] devote[s] to [its] core projects,” and

“frustrated SBCC’s mission of advancing the dignity

and human rights of border communities.” SBCC has

“been forced to expend resources on countering the

emergency instead of on [its] other initiatives, including

Border Patrol accountability, community engagement

on local health and education issues, and public education about immigration policies more broadly.”

Moreover, Southwest Environmental Center (“SWEC”),

an organization that forms part of the SBCC, has also

been harmed by the proposed construction. SWEC

was founded “to reverse the accelerating loss of plants

and animals worldwide through protection and restoration of native wildlife and their habitats in the southwest,” and it “has been actively involved in restoring riparian and aquatic habitats along the Rio Grande in

southern New Mexico and west Texas. Border wall

construction projects, however, have “required SWEC

to shift its focus to more urgent, defensive campaigns,”

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and “[s]taff time and resources that would normally go

towards [its] longer-term restoration efforts to protect

landscapes and wildlife species . . . are instead being channeled to immediate border wall advocacy.”

Without such defensive efforts, however, the wall will

“cause[] irreversible damage to border lands that

SWEC’s members enjoy and cherish.”

The Texas Civil Rights Project (“TCRP”) is also a

member organization of the SBCC and is comprised of

separate programs, including a Racial and Economic

Justice Program, a Voting Rights Program, and a Criminal Justice Reform Program. The “announcement of

imminent land seizure and ‘military construction’ across

52 miles of borderlands in Laredo, Texas has caused and

will continue to cause TCRP to divert scarce resources

in protection of Texas landowners.” TCRP has had to

expand its operations into Laredo, Texas, even though

Laredo is “a substantial distance from the nearest

TCRP office” in Alamo, Texas, and it is “prohibitive to

directly represent anyone in a region where [TCRP]

do[es] not have a physical TCRP office.” TCRP has

had no choice but to take on this additional burden because declining to represent these landowners would undermine the organization’s goal to fight for a “Texas

where all communities thrive with dignity and justice

and without fear.”

These allegations are sufficient to establish that, if

funds are diverted to the border wall construction projects, Sierra Club members and SBCC will suffer injuries in fact.

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

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the [Federal Defendants], and not the result of the independent action of some third party not before the court.”

Mendia v. Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014)

(quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)).

Section 2808 is the statutory authorization for the construction, and it is therefore the direct cause of the alleged injury.

The injury to Sierra Club and SBCC is likely to be

redressed by a favorable judicial decision. The Federal Defendants have no authority to undertake the border wall projects if the Court holds that Section 2808

does not authorize construction. Thus, Sierra Club and

SBCC have established that they satisfy the demands of

Article III standing to challenge the Federal Defendants’ actions.

The Federal Defendants assert that the Plaintiffs do

not have a cause of action. We hold that the States

have a cause of action under the APA and Sierra Club

has a constitutional cause of action.

The APA provides for judicial review of “final agency

action for which there is no other adequate remedy in a

court.” 5 U.S.C. § 704. Where a statute imposes obligations on a federal agency but the obligations do not

“give rise to a ‘private’ right of action against the federal

government[,] [a]n aggrieved party may pursue its remedy under the APA.” San Carlos Apache Tribe v.

United States, 417 F.3d 1091, 1099 (9th Cir. 2005). The

States must, however, establish that they fall within the

zone of interests of the relevant statute to bring an APA

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

(“This Court has long held that a person suing under the

APA must satisfy not only Article III’s standing requirements, but an additional test: The interest he asserts must be ‘arguably within the zone of interests to

be protected or regulated by the statute’ that he says

was violated.” (quoting Ass’n of Data Processing Serv.

Org., Inc. v. Camp, 397 U.S. 150, 153 (1970))).

Section 2808 does not confer a private right of action.

Instead, like Section 8005, it delegates a narrow slice of

Congress’s power of the purse to DoD so that it can react quickly in the event of a declaration of war or a declaration of a national emergency. In doing so, the statute imposes certain obligations upon DoD—i.e., DoD

cannot invoke Section 2808 except for military construction that is necessary to support the use of the armed

forces in the event of a declaration of a national emergency that requires the use of the armed forces. The

States argue that DoD did not satisfy these obligations,

and therefore, as aggrieved parties, they may pursue a

remedy under the APA, so long as they fall within Section 2808’s zone of interests.

As a threshold matter, Section 2808 constitutes the

relevant statute for the zone of interests test.

“Whether a plaintiff’s interest is ‘arguably . . . protected . . . by the statute’ within the meaning of the

zone-of-interests test is to be determined not by reference to the overall purpose of the Act in question . . .

but by reference to the particular provision of law upon

which the plaintiff relies.” Bennett, 520 U.S. at 175-76

(emphasis added). Because the States invoke Section

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2808’s limitations in asserting their APA claim, this statute defines the relevant zone of interests.

The Supreme Court has clarified that, in the APA

context, the zone of interests test does “not require any

‘indication of congressional purpose to benefit the

would-be plaintiff.’ ” Patchak, 567 U.S. at 225 (quoting

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399-400

(1987)). Furthermore, the Court has repeatedly emphasized that the zone-of-interest test is “not ‘especially

demanding.’ ” Lexmark Int’l Inc. v. Static Control

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

Patchak, 567 U.S. at 225). Instead, for APA challenges, a plaintiff can satisfy the test in either one of two

ways: (1) “if it is among those [who] Congress expressly or directly indicated were the intended beneficiaries of a statute,” or (2) “if it is a suitable challenger

to enforce the statute—that is, if its interests are sufficiently congruent with those of the intended beneficiaries that the litigants are not more likely to frustrate than

to further . . . statutory objectives.” Scheduled

Airlines Traffic Offices, Inc. v. Dep’t of Def., 87 F.3d

1356, 1359 (D.C. Cir. 1996) (alterations in original) (citations omitted). “We apply the test in keeping with

Congress’s ‘evident intent’ . . . ‘to make agency action presumptively reviewable,’ ” and note that “the benefit of any doubt goes to the plaintiff.” Patchak, 567

U.S. at 225 (quoting Clarke, 479 U.S. at 399).

Section 2808’s restrictions constrain DoD’s ability to

fund emergency military construction projects while deferring other military construction projects. The Federal Defendants concede as much, noting that the “limitations in the statute at most reflect constraints on the

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decision to fund certain projects while deferring others.” 6

The States are suitable challengers to enforce Section 2808’s limitations because they have asserted such

economic interests here and thus they are either the intended beneficiaries of the statute, or at the very least,

their interests are unlikely to frustrate the purpose of

the statute. Absent the invocation of Section 2808, the

States stood to benefit significantly from federal military construction funding. The Federal Defendants diverted funding from 17 separate military construction

projects within the borders of the Plaintiff States, totaling over $493 million. According to the States’ expert,

the diversion of funds “would result in a total of $366

million in total lost business sales within the States for

the next three calendar years, 2020-2022,” even taking

“into consideration the offsetting benefits to the States

caused by the $1.0 billion of U.S. funds that would be

spent in California and New Mexico to build the proposed border barriers.” 7 Moreover, “the gross regional product (GRP) of the States would be reduced by

When considering the analogous role played by Section 8005,

Judge N.R. Smith, in dissent, acknowledged that a plaintiff who suffered an economic injury as a result of a statutory diversion of funds

would likely have a cause of action to challenge whether the diversion satisfied the terms of the statute. See Sierra Club v. Trump,

929 F.3d 670, 715 (9th Cir. 2019) (N.R. Smith, J., dissenting) (“This

statute [Section 8005] arguably protects Congress and those who

would have been entitled to the funds as originally appropriated; and

as a budgetary statute regarding the transfer of funds among DoD

accounts, it arguably protects economic interests.”).

Excluding California from this analysis, the expert estimates

that total would be much greater: the total lost business sales within the remaining states would be $789 million.

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$165 million as a result of this diversion of military

funds,” and the tax revenues for state and local governments would be reduced by over $36 million. Section

2808’s restrictions ensure that, ordinarily, its authority

cannot be used to divert funding for military construction projects unless the construction satisfies certain

criteria. Therefore, the States fall within the statute’s

zone of interests and can enforce its criteria.

Moreover, Patchak establishes that when a statute

deals with land use, the “neighbors to the use” may sue

and their “interests, whether economic, environmental,

or aesthetic, come within [the statute’s] regulatory ambit.” 567 U.S. at 227-28. Here, Section 2808 is a construction statute. It allows the Secretary of Defense to

“undertake military construction projects,” in “the event

of a declaration of war or the declaration by the President of a national emergency.” 10 U.S.C. § 2808. Construction of this sort naturally requires land use, and

California and New Mexico, as border states immediately adjacent to the border wall construction projects,

are quasi-sovereign neighbors to that use and plainly

fall within its zone of interests.

Therefore, the States fall within Section 2808’s zone

of interests and they have a cause of action to challenge

the construction.

The Supreme Court’s decision in Bond, and our decisions in McIntosh and the prior Sierra Club appeal, provide ample support that Sierra Club has a cause of action under the Appropriations Clause to challenge the

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Federal Defendants’ use of Section 2808 for border wall

construction. 8

“[I]ndividuals, too, are protected by the operations of

separation of powers and checks and balances; and they

are not disabled from relying on those principles in otherwise justiciable cases and controversies.” Bond v.

United States, 564 U.S. 211, 223 (2011). “[B]oth federalism and separation-of-powers constraints in the Constitution serve to protect individual liberty, and a litigant in a proper case can invoke such constraints ‘[w]hen

government acts in excess of its lawful powers.’ ”

United States v. McIntosh, 833 F.3d 1163, 1174 (9th Cir.

2016) (discussing and quoting Bond, 564 U.S. at 222).

“[The Appropriations Clause] constitutes a separationof-powers limitation that [litigants] can invoke to challenge” actions that cause justiciable injuries. Id. at

1175.

Although the terms of Section 2808 are different

from Section 8005, Section 2808’s role here is analogous

to the role of Section 8005 in the prior appeal: Section

2808 permits DoD to fund construction outside the normal appropriations process, if certain criteria are met,

but it operates against the backdrop of the Appropriations Clause. Because, as explained below, we conclude that the Federal Defendants have not satisfied

statute’s criteria, any construction undertaken purportedly using its authority violates the explicit prohibition

of the Appropriations Clause that “[n]o Money shall be

We address only whether Sierra Club has a constitutional cause

of action because Sierra Club did not argue in any detail that it has

a cause of action under the APA in its opening brief.

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drawn from the Treasury, but in Consequence of Appropriations made by Law. . . . ” U.S. Const. art.1, §

9, cl. 7. Sierra Club has invoked this prohibition.

If the zone of interests test applies at all here, the

Appropriations Clause of the Constitution defines the

zone of interests because it is the “particular provision

of law upon which [Sierra Club] relies” in seeking relief.

Bennett, 520 U.S. at 175-76. Section 2808 is relevant

only because, to the extent it applies, it authorizes executive action that otherwise would be unconstitutional or

ultra vires. That a statute is relevant does not transform a constitutional claim into a purely statutory one.

Sierra Club’s cause of action stems from the Federal Defendants’ violation of the Appropriations Clause because

Sierra Club seeks to enforce the Clause’s express prohibition.

To the extent the zone of interests test ever applies

to constitutional causes of action, it asks only whether a

plaintiff is “arguably within the zone of interests to be

protected . . . by the . . . constitutional guarantee in question.” Boston Stock Exch. v. State Tax

Comm’n, 429 U.S. 318, 320 n.3 (1977) (quoting Data Processing Serv., 397 U.S. at 153). This renders the test

nearly superfluous: so long as a litigant is asserting an

injury in fact to his or her constitutional rights, he has a

cause of action. See ERWIN CHEMERINSKY, FEDERAL

JURISDICTION 112 (7th ed. 2016) (citing LAURENCE

TRIBE, AMERICAN CONSTITUTIONAL LAW 446 (3d ed.

2000)).

Applying that generous formulation of the test here,

Sierra Club falls within the Appropriations Clause’s

zone of interests. Because the diversion of funds was

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not authorized by the terms of Section 2808, it is unconstitutional. See City and Cty. of San Francisco v.

Trump, 897 F.3d 1225, 1233-34 (9th Cir. 2018) (“[W]hen

it comes to spending, the President has none of ‘his own

constitutional powers’ to ‘rely’ upon.” (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637

(1952) (Jackson, J., concurring)). Sierra Club is an organization within the United States that is protected by

the Constitution. The unconstitutional transfer of funds

here infringed upon Sierra Club’s members’ liberty interests, harming their environmental, aesthetic, and

recreational interests. Thus, Sierra Club falls within

the Clause’s zone of interests and has a cause of action

to challenge the transfers.

Next, we consider whether the terms of Section 2808

authorize the challenged border wall construction projects. We conclude that the projects fail to satisfy two

of the statutory requirements: they are neither necessary to support the use of the armed forces, nor are they

military construction projects. Although the statute

supplies other limitations, we do not address them because we conclude that these two limitations are more

than sufficient to render the border wall construction

projects unlawful.

Section 2808 allows the Secretary of Defense to undertake military construction projects in the event of a

national emergency requiring the use of the armed forces,

but the statute specifies that such projects must be “necessary to support such use of the armed forces.” The

district court’s analysis is persuasive on this issue, and

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we hold that border wall construction is not necessary

to support the use of the armed forces with respect to

the national emergency on the southern border. The

Federal Defendants have not established that the projects are necessary to support the use of the armed

forces because: (1) the administrative record shows

that the border wall projects are intended to support

and benefit DHS—a civilian agency—rather than the

armed forces, and (2) the Federal Defendants have not

established, or even alleged, that the projects are, in

fact, necessary to support the use of the armed forces.

First, the record illustrates that the border wall projects are intended to benefit DHS and its subagencies,

CBP and U.S. Border Patrol (“USBP”), not the armed

forces. The record demonstrates that DoD primarily

considered the many benefits to these civilian agencies

in determining that physical barriers are necessary.

DoD determined that physical barriers would “[i]mprove CBP’s detection, identification, classification, and

response capabilities,” “[r]educe vulnerabilities in key

border areas and the time it takes Border Patrol agents

to apprehend illegal migrants,” “improv[e] CBP force

allocation,” “reduce the challenges to CBP,” “effectively

reduce the enforcement footprint and compress USBP

operations to the immediate border area,” “serve to

channel illegal immigrants towards locations that are

operationally advantageous to DHS,” “enable CBP agents

to focus less on the rugged terrain,” and “give a distinct

and enduring advantage to USBP as a force multiplier.”

To the extent DoD decision-makers believed that

construction would benefit DoD at all, the record demonstrates that the construction is merely expected to help

DoD help DHS. DoD determined that the barriers

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would serve as “force multipliers,” by allowing military

personnel to cover other high-traffic border areas without existing barriers, a benefit plainly intended to assist

DHS, which, by statute, is tasked with “[s]ecuring the

borders, territorial waters, ports, terminals, waterways,

and air, land, and sea transportation systems of the

United States.” 6 U.S.C. § 202. Moreover, border wall

construction would “enable more effective and efficient

use of DoD personnel, which could ultimately reduce the

demand for DoD support at the southern border over

time.” Thus, the record makes clear that the primary

objective of border wall construction is to benefit a civilian agency, DHS, and that the construction strives to ultimately eliminate the need for DoD support to DHS altogether.

Second, the Federal Defendants have not even alleged, let alone established as a matter of fact, that the

border wall construction projects are “necessary” under

any ordinary understanding of the word. See MERRIAMWEBSTER ONLINE DICTIONARY (defining “necessary”

as “absolutely needed: required”); OXFORD ENGLISH

DICTIONARY ONLINE (defining “necessary” as “[i]ndispensable, vital, essential”). In assessing the necessity

of the border wall construction projects, the Federal Defendants concluded: “In short, these barriers will allow DoD to provide support to DHS more efficiently and

effectively. In this respect the contemplated construction projects are force multipliers.” Efficiency and efficacy are not synonymous with necessity.

The Federal Defendants contend that “Section 2808’s

reference to necessity does not entail the stringent level

of indispensability,” assumed by the district court, and

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they request that the Court adopt a more relaxed definition of the term here. The Federal Defendants cite

United States v. Comstock, 560 U.S. 126, 133-34 (2010),

for the proposition that the word “necessary” “often

means merely” “convenient, or useful,” or “conducive.”

But Comstock provides little support for that proposition. The Court in Comstock considered what powers

were entrusted to Congress by the Necessary and Proper

Clause of the United States Constitution. Examining

the import of the entire clause, the Court observed that

“the Necessary and Proper Clause makes clear that the

Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws

that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’ ” Comstock, 560 U.S. at

133-34 (quoting M’Culloch v. Maryland, 17 U.S. 316,

413, 418 (1819)). The Court noted that in the specific

context of the Necessary and Proper Clause, “the word

‘necessary’ does not mean ‘absolutely necessary.’ ” Id.

at 134. Contrary to the Federal Defendants’ assertion,

however, the Court in Comstock did not set forth a universal definition of the word “necessary,” but instead,

one narrowly cabined to its constitutional context. The

Federal Defendants provide no reason why we must apply the logic of the Court’s approach in that specific context to the military construction authority at issue here.

The Federal Defendants also cite Commissioner v.

Heininger, 320 U.S. 467, 471 (1943). In Heininger, the

Court interpreted a Revenue Act provision allowing for

the deduction of “ordinary and necessary expenses paid

or incurred during the taxable year in carrying on any

trade or business.” Id. at 468 n.1. There, not only

was the word “necessary” coupled with “ordinary,” suggesting that a more relaxed definition of “necessary”

45a

may be appropriate, but the Court was interpreting the

language of a business expense tax deduction provision.

Within that context, dealing with a statutory provision

intended to foster business development and growth, it

makes sense to interpret the term in a more relaxed

fashion in furtherance of that purpose. Again, the Federal Defendants provide no explanation why Heininger’s

logic applies to the very different statutory context at

issue in this case.

“Necessary” as it appears in Section 2808 is best understood as retaining its plain meaning, which means, at

the very least, “required,” or “needed.” 9 The fact that

border wall construction might make DoD’s support

Ayestas v. Davis, 138 S. Ct. 1080, 1093 (2018) is not to the contrary. In Ayestas, the Supreme Court interpreted the use of the

term “necessary” within the context of 18 U.S.C. § 3599, a statute

that “authorizes federal courts to provide funding to a party who is

facing the prospect of a death sentence and is ‘financially unable to

obtain adequate representation or . . . other reasonably necessary services.’ ” Ayestas, 138 S. Ct. at 1092 (emphasis added). The

Court acknowledged that “necessary” may have one of two meanings: either “essential” or “something less than essential.” Id. at

1093. It concluded that “necessary” carried the latter meaning in

Section 3599 because it would “make[] little sense to refer to something as being ‘reasonably essential.’ ” Id. In other words, the

Court’s interpretation hinged on the fact Section 3599 did not merely

use the standalone term “necessary,” but used the phrase “reasonably necessary.” Thus, here, where “necessary” is a part of no such

statutory phrase, it makes little sense to follow the Court’s approach

in Ayestas. Moreover, Section 3599’s statutory context—the provision of funding to ensure the adequate defense of individuals facing

the prospect of a death penalty—additionally supports the sensibility of a more flexible definition to serve that statutory purpose.

That context is unrelated to emergency military construction authority, however, and so Ayestas does not alter our decision to adopt

the plain meaning of “necessary” here.

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more efficient and effective does not rise to the level of

“required” or “needed”—and the Federal Defendants

have failed to show that it does. That Congress declined to provide more substantial funding for border

wall construction and voted twice to terminate the President’s declaration of a national emergency underscores

that the border wall is not, in fact, required or needed.

Thus, the Federal Defendants fail to satisfy the statutory requirement that the construction projects be “necessary to support the use of such armed forces.”

The remainder of the Federal Defendants’ arguments do not compel an opposite conclusion. First, the

Federal Defendants assert that the determination of

whether military construction is necessary to support

the use of the armed forces is “committed to the discretion of the Secretary of Defense by law.” They argue

that questions of military necessity turn on “a complicated balancing of a number of factors which are peculiarly within [the Secretary’s] expertise” and that the

Court should defer to such expertise. Heckler v. Chaney,

470 U.S. 821, 831 (1985).

“[T]he claim of military necessity will not, without

more, shield governmental operations from judicial review.” Koohi v. United States, 976 F.2d 1328, 1331 (9th

Cir. 1992). A decision is generally committed to an

agency decision by law only when a court would have “no

meaningful standard against which to judge the agency’s

exercise of discretion.” Perez Perez v. Wolf, 943 F.3d

853, 860 (9th Cir. 2019) (quoting Pinnacle Armor, Inc.

v. United States, 648 F.3d 708, 719 (9th Cir. 2011)).

As we have explained, the Federal Defendants have

simply claimed “military necessity” without more, and

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this alone cannot shield their actions from judicial review. Further, as we have noted, the judgment at issue

here is not a military one. The border wall construction projects further the goals of DHS—a civilian law

enforcement agency—and the determination that the

projects are necessary, in any sense, is a law enforcement calculation, not a military one. Such determinations involve distinctly different calculations than those

present in the military deference cases cited by the Federal Defendants, like Gilligan v. Morgan, which involved

the ongoing judicial oversight of the Ohio National

Guard. See Gilligan v. Morgan, 413 U.S. 1, 6 (1973) (considering whether the district court should “assume and

exercise a continuing judicial surveillance over the Guard

to assure compliance with whatever training and operations procedures may be approved by [the] court.”).

The determinations at issue here, while important, are

lawmaking decisions that are “a job for the Nation’s lawmakers, not for its military authorities.” Youngstown,

343 U.S. at 587. Thus, the Federal Defendants cannot

evade judicial review of these determinations by simply

labeling them “military” ones.

What is more, nothing in the language of the statute

suggests that this determination is committed to the discretion of the Secretary of Defense. Here, the phrase

“that are necessary to support such use of the armed

forces,” provides standards against which to judge that

exercise of discretion; as demonstrated above, the statutory language is susceptible to basic statutory interpretation. If Congress had committed these issues to

the unfettered discretion of the Secretary, we would—

of course—defer. But it did not, so it is our task to determine whether the Secretary has complied with the

statutory requirements.

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Further, judicial review of statutes conferring specific emergency powers to the President is critical because, as explained by the Senate Committee on Government Operations in passing the NEA, the NEA left “the

definition of when a President is authorized to declare a

national emergency . . . to the various statutes which

give him extraordinary powers.” NEA Source Book at

292. Therefore, the President’s emergency authority

is conferred only by statute. Were we to conclude that

judicial review of such a statute was precluded, the President’s emergency authority would be effectively unbounded, contravening the purpose of the NEA. Thus,

the language of Section 2808 is not only susceptible to

judicial review, but its statutory context requires it.

Alternatively, the Federal Defendants assert that

“[e]ven if the Secretary’s military-necessity determinations were reviewable, this Court . . . should defer

to the Secretary’s conclusion that the challenged projects are necessary to improve the effectiveness and efficiency of DoD personnel deployed to the border.”

But, as we have discussed, it does not follow from the

idea that a project is designed to improve effectiveness

and efficiency that a project is necessary in any ordinary

sense. And absent from the record is any determination by the Secretary that the projects are actually necessary. Under these circumstances, deference, in the

classic administrative law sense, is not appropriate.

In sum, based on the record, we conclude that the construction of the challenged border wall projects does not

comply with the statutory requirements of Section 2808.

Therefore, because the Federal Defendants’ construction exceeds the authority provided by Section 2808 and

49a

is unlawful, and we affirm the declaratory judgment of

the district court.

Section 2808 permits the Secretary of Defense to “undertake military construction projects.” Section 2801

defines the term “military construction” “as used in this

chapter or any other provision of law” as “any construction, development, conversion, or extension of any kind

carried out with respect to a military installation,

whether to satisfy temporary or permanent requirements, or any acquisition of land or construction of a defense access road.” 10 U.S.C. § 2801(a). It further

defines “military installation” as “a base, camp, post,

station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” Id.

at § 2801(c)(4).

Because the border wall construction projects plainly

qualify as “construction,” the key inquiry here is whether

they are being “carried out with respect to a military installation.” “Interpretation of a statute must begin

with the statute’s language.” Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th

Cir. 1994) (citations omitted). “[S]tatutory language

must always be read in its proper context,” and courts

must look to the “design of the statute as a whole and to

its object and policy,” UMG Recordings, Inc. v. Shelter

Capital Partners LLC, 718 F.3d 1006, 1026 (9th Cir.

2013) (quotations omitted), for “the words of a statute

must be read in their context and with a view to their

place in the overall statutory scheme,” Home Depot

U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019).

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The Federal Defendants make two separate arguments that border wall construction satisfies the requirements of Section 2808 based on one key fact: the land

on which the projects would be built has been brought

under military jurisdiction and assigned to a military

installation—Fort Bliss in El Paso, Texas. First, the

Federal Defendants argue that the individual border

wall construction projects are actually one and the same

as Fort Bliss because according to the Assistant Secretary of the Army, Alex A. Beehler, when a “site is assigned to a military installation for real property accountability purposes,” it “is considered to be part of

that installation, even if remotely located from the Army

Garrison [of that installation].” Alternatively, they argue that because the projects have been brought under

military jurisdiction, the construction projects are “other

activity under the jurisdiction of the Secretary of a military department.” 10 U.S.C. § 2801.

We must, then, determine (1) whether administratively assigning the projects to Fort Bliss renders them

one and the same as Fort Bliss for purposes of the statute, and if not, (2) whether bringing land under military

jurisdiction for real property accountability purposes

renders the border wall “other activity under the jurisdiction of the Secretary of a military department.”

We hold that, for purposes of the emergency construction authority provided by Section 2808, the border

wall construction projects are distinct from Fort Bliss

itself, and that the border wall construction projects at

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issue here do not satisfy the meaning of “other activity.” 10

Although the border wall construction projects may

be considered part of Fort Bliss for purposes of real

property accounting, we find that a number of reasons

support that the projects should not be considered a

part of Fort Bliss for purposes of Section 2808.

First, we state the most obvious reason why the border wall construction projects need not be considered a

part of Fort Bliss in this context. To begin, the projects are not physically connected to Fort Bliss—on

their face, they are not “part” of that military installation. In fact, most projects are hundreds of miles away

from Fort Bliss.

Moreover, the projects are not functionally part of

Fort Bliss. The Federal Defendants cite no operational

ties between the projects and any of the military activities conducted at Fort Bliss. This is contrary to other

examples of sites which are geographically separate from

the military installation to which they have been assigned. For example, the Federal Defendants highlight that the Green River Test Complex site in Utah is

considered part of the White Sands Missile Range in

New Mexico, even though the two are in different states

and located hundreds of miles apart. But these sites

The Plaintiffs do not challenge that the projects on the Goldwater Range satisfy the definition of “military construction,” and we do

not consider this issue; therefore, our holding is limited only to the

remaining nine construction projects. Our determination that the

funding of the projects is not necessary to support the use of the

armed forces is sufficient to hold all eleven projects unlawful.

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share a close functional connection. Throughout the

1960s, the military tested Athena missiles by launching

them from the Green River Test Complex to detonate on

the White Sands Missile Range. No such functional

nexus exists, or has even been alleged, here. Although

a functional nexus may not be required for administrative assignment, it matters for purposes of Section 2808.

Additionally, the Federal Defendants cite no other

purpose underlying the administrative assignment, besides pure administrative convenience, that compels the

conclusion that the projects should be considered part

of Fort Bliss for purposes of Section 2808. The Federal Defendants state that the projects were assigned to

Fort Bliss “because it is the largest, most capable active

Army installation in the vicinity of the southern border”;

it “has a sizable existing installation management office”; it has “experience working with the U.S. Army

Corps of Engineers on military construction projects”;

“it is more efficient for command of all the real property

associated with the projects undertaken pursuant to

§ 2808 to be vested in one Army installation”; and it has

an “existing support relationship with the U.S. Border

Patrol.” While these are, of course, practical reasons

for administratively assigning the land to Fort Bliss,

they convey no underlying purpose more significant

than administrative convenience. They signify no reason why the border wall construction projects must be

considered part of Fort Bliss for any reason beyond administrative assignment.

Further, reading the words of Section 2808 “in their

context and with a view to their place in the overall statutory scheme,” it would make little sense to equate the

53a

requirements of Section 2808 with the administrative assignment process in order to conclude that the projects

are a part of Fort Bliss. Home Depot U.S.A., Inc., 139

S. Ct. at 1748. The text of Section 2808 supplies boundaries for the authority provided—such as, that construction be conducted with respect to a military installation,

meaning a base, camp, station, yard, center, or other activity under military jurisdiction. By contrast, there

appear to be no boundaries whatsoever restricting when

the government can administratively assign a geographically distant site to a military installation. The Federal Defendants even specify that “[t]here is no legal,

regulatory, or policy requirement [that] geographically

separate sites . . . be assigned to a ‘nearby’ military

installation,” nor a requirement that the “sites or lands

that comprise a given military installation . . . be located in the same State or within a certain distance of

other sites associated with the military installation.”

And a site may exist as “land only, where there are no

facilities present,” “facility or facilities only, where the

underlying land is neither owned nor controlled by the

government,” or “land and facilities thereon.” To construe the limited text of Section 2808 to incorporate a

wholly unlimited process would be contrary to its structure and context.

Moreover, to construe the statute so broadly would

also be contrary to the purpose of the statutory scheme

of which Section 2808 is a part—the NEA. See Brooks

v. Donovan, 699 F.2d 1010, 1011 (9th Cir. 1983) (rejecting a literal interpretation that “would thwart the purpose of the over-all statutory scheme or lead to an absurd result” (quotations and citations omitted)); see generally NEA Source Book at 50. Because “[t]he National Emergencies Act is not intended to enlarge or add

54a

to Executive power,” it would make little sense to interpret the constrained definition of “military installation”

supplied by Section 2808 to encompass a process with no

limitations whatsoever. NEA Source Book at 292.

This would undoubtedly have the effect of enlarging the

President’s emergency powers because it would allow a

less stringent Executive Branch administrative process

to circumvent the limits of the statutory authority.

This would allow the Executive Branch to undertake any

construction project it wants by merely assigning any

piece of land to a military installation, thus permitting

more construction than authorized by the statute and

granting the President more emergency authority.

The Federal Defendants’ second argument fails for

similar reasons. To hold that the border wall construction projects constitute “other activity” under military

jurisdiction would transform the definition of “military

installation” to include not just “other activity,” but “any

activity” under military jurisdiction, contradicting the

text of the statute. The terms “base, camp, post, station, yard, [or] center” supply meaning and provide

boundaries to the term “other activity,” and they are not

mere surplusage. See Yates v. United States, 135 S. Ct.

1074, 1087 (2015) (“Had Congress intended ‘tangible object’ in § 1519 to be interpreted so generically as to capture physical objects as dissimilar as documents and

fish, Congress would have had no reason to refer specifically to ‘record’ or ‘document.’ The Government’s unbounded reading of ‘tangible object’ would render those

words misleading surplusage.”). The Federal Defendants do not explain how the border wall construction

projects are similar to bases, camps, posts, stations,

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yards, or centers, and we find that they are not. The

failure to illustrate a connection between the border wall

projects and the other statutory examples is sufficient

to reject this argument because we avoid construing statutes to allow one general word to render specific words

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