Sierra Club v. Trump

379 F.Supp.3d 883

SIERRA CLUB, et al., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants.

Case No. 19-cv-00892-HSG

United States District Court, N.D. California.

Signed May 24, 2019

Dror Ladin, Pro Hac Vice, American Civil Liberties Union Foundation, Omar C. Jadwat, Pro Hac Vice, ACLU Foundation Immigrants' Rights Project, Hina Shamsi, Jonathan L. Hafetz, Pro Hac Vice, American Civil Liberties Union Foundation, Mollie M. Lee, American Civil Liberties Union of Northern California, San Francisco, CA, Noor Zafar, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Andre Ivan Segura, ACLU Foundation of Northern California, Inc., David A.Donatti, Pro Hac Vice, ACLU of Texas, Houston, TX, Christine Patricia Sun, ACLU Foundation of Northern California, Cecillia Derphine Wang, American Civil Liberties Union Foundation, San Francisco, CA, Gloria Diantha Smith, Sanjay Narayan, Sierra Club, Oakland, CA, for Plaintiffs.

Andrew Irwin Warden, Rachael Westmoreland, Eric Grant, James Mahoney Burnham, U.S. Department of Justice, Civil Division, Elizabeth B. Wydra, Constitutional Accountability Center, Washington, DC, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Re: Dkt. No. 29

HAYWOOD S. GILLIAM, JR., United States District Judge

On February 19, 2019, Sierra Club and Southern Border Communities Coalition ("SBCC") (collectively, "Citizen Group Plaintiffs" or "Citizen Groups") filed suit against Defendants Donald J. Trump, in his official capacity as President of the United States; Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense; Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security¹ ; and Steven T. Mnuchin, in his official capacity as Secretary of the Department of the Treasury (collectively, "Federal Defendants"). Dkt. No. 1. This action followed a related suit brought by a coalition of states (collectively, "Plaintiff States" or "States") against the same—and more—Federal Defendants. See Complaint, California v. Trump , No. 3:19-cv-00872-HSG, 2019 WL 669456 (N.D. Cal. Feb. 18, 2019), ECF No. 1. Plaintiffs here filed an amended complaint on March 18, 2019. Dkt. No. 26 ("FAC").

Now pending before the Court is Plaintiffs' motion for a preliminary injunction, briefing for which is complete. See Dkt. Nos. 29 ("Mot."), 64 ("Opp."), 91 ("Reply"). The Court held a hearing on this motion on May 17, 2019. See Dkt. No. 138. In short, Plaintiffs seek to prevent executive officers from using redirected federal funds for the construction of a barrier on the U.S.-Mexico border.

It is important at the outset for the Court to make clear what this case is, and is not, about. The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States. These policy questions are the subject of extensive, and often intense, differences of opinion, and this Court cannot and does not express any view as to them. See Trump v. Hawaii , ––– U.S. ––––, 138 S.Ct. 2392, 2423, 201 L.Ed.2d 775 (2018) (indicating that the Supreme Court "express[ed] no view on the soundness of the policy" at issue there); In re Border Infrastructure Envtl. Litig. , 284 F.Supp.3d 1092, 1102 (S.D. Cal. 2018) (noting that the court "cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent"). Instead, this case presents strictly legal questions regarding whether the proposed plan for funding border barrier construction exceeds the Executive Branch's lawful authority under the Constitution and a number of statutes duly enacted by Congress. See In re Aiken Cty. , 725 F.3d 255, 257 (D.C. Cir. 2013) ("The underlying policy debate is not our concern.... Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress.").

Assessing whether Defendants' actions not only conform to the Framers' contemplated division of powers among co-equal branches of government but also comply with the mandates of Congress set forth in previously unconstrued statutes presents a Gordian knot of sorts. But the federal courts' duty is to decide cases and controversies, and "[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule." See Marbury v. Madison , 1 Cranch 137, 177, 2 L.Ed. 60 (1803). Rather than cut the proverbial knot, however, the Court aims to untie it—no small task given the number of overlapping legal issues. And at this stage, the Court then must further decide whether Plaintiffs have met the standard for obtaining the extraordinary remedy of a preliminary injunction pending resolution of the case on the merits.

After carefully considering the parties' arguments, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion.

I. FACTUAL BACKGROUND

The President has long voiced support for a physical barrier between the United States and Mexico. See, e.g. , Request for Judicial Notice, California v. Trump , No. 4:19-cv-00872-HSG (N.D. Cal. Apr. 8, 2019), ECF No. 59-4 ("States RJN") Ex. 3 (June 16, 2016 Presidential Announcement Speech) ("I would build a great wall, and nobody builds walls better than me, believe me, and I'll build them very inexpensively, I will build a great, great wall on our southern border. And I will have Mexico pay for that wall.").² Upon taking office in 2017, the President's administration repeatedly sought appropriations from Congress for border barrier construction. See, e.g. , Budget of the U.S. Government: A New Foundation for American Greatness: Fiscal Year 2018 , Office of Mgmt. & Budget 18 (2017), https://www.whitehouse.gov/wp-content/uploads/2017/11/budget.pdf (requesting "$ 2.6 billion in high-priority tactical infrastructure and border security technology, including funding to plan, design, and construct a physical wall along the southern border"). Congress provided some funding, including $ 1.571 billion for fiscal year 2018. See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a) 132 Stat. 348 (2018). And Congress considered several bills that, if passed, would have authorized or otherwise appropriated billions of dollars more for border barrier construction. See States RJN Exs. 14–20. None passed.

In December 2018—as Congress and the President were negotiating an appropriations bill to fund various federal departments for what remained of the fiscal year—the President announced that he would not sign any funding legislation that lacked substantial funds for border barrier construction. Farm Bill Signing , C-SPAN (Dec. 20, 2018), https://www.c-span.org/video/?456189-1/president-government-funding-bill-include-money-border-wall ("I've made my position very clear. Any measure that funds the government must include border security.... Walls work whether we like it or not. They work better than anything."). Congress did not pass a bill with the President's desired border barrier funding and, due to this impasse, the United States entered into the nation's longest partial government shutdown.

The President and those in his administration stated on several occasions before, during, and after the shutdown that, although Congress should make the requisite funds available for border barrier construction, the President was willing to use a national emergency declaration and other reprogramming mechanisms as funding backstops. For example, during a December 11, 2018 meeting with congressional representatives, the President stated that "if we don't get what we want [for border barrier construction funding], one way or the other – whether it's through [Congress], through a military, through anything you want to call [sic] – I will shut down the government. Absolutely." States RJN Ex. 21. The White House initially requested only $ 1.6 billion for border barrier construction for the fiscal year 2019 budget, for sixty-five miles of border barrier construction "in south Texas." See Supplemental Request for Judicial Notice, California v. Trump , No. 4:19-cv-00872-HSG (N.D. Cal. Apr. 8, 2019), ECF No. 112-1, Ex. 51, at 58. However, the White House increased its request on January 6, 2019, when the Acting Director of the Office of Management and Budget transmitted a letter to the U.S. Senate Committee on Appropriations, "request[ing] $ 5.7 billion for construction of a steel barrier for the Southwest border," and explaining that the request "would fund construction of a total of approximately 234 miles of new physical barrier." See Dkt. No. 36 ("Citizen Groups RJN") Ex. A, at 1.³ The increased request specified that "[a]ppropriations bills for fiscal year (FY) 2019 that have already been considered by the current and previous Congresses are inadequate to fully address these critical issues," including the need for border barrier construction funds. Id. Days later, the President explained: "If we declare a national emergency, we have a tremendous amount of funds – tremendous – if we want to do that, if we want to go that route. Again, there is no reason why we can't come to a deal.... [Congress] could stop this problem in 15 minutes if they wanted to." States RJN Ex. 13.

After the government shutdown ended, the President and others in his administration reaffirmed their intent to fund a border barrier, with or without Congress's blessing. On February 9, 2019, the President explained that even if Congress provided less than the requested funding for a border barrier, the barrier "[would] get built one way or the other!" Citizen Groups RJN Ex. C. The next day, the Acting White House Chief of Staff explained that the Administration intended to accept whatever funding Congress would offer and then use other measures to reach the President's desired funding level for border barrier construction:

The

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