State v. Trump

963 F.3d 926

State of CALIFORNIA; State of Colorado; State of Connecticut; State of Delaware; State of Hawaii; State of Maine; State of Minnesota; State of New Jersey; State of New Mexico; State of Nevada; State of New York; State of Oregon; Commonwealth of Virginia; State of Illinois; State of Maryland; Dana Nessel, Attorney General, on Behalf of the People of Michigan; State of Wisconsin; State of Massachusetts; State of Vermont; State of Rhode Island, Plaintiffs-Appellees,

v.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; Richard V. Spencer, in his official capacity as Secretary of the Navy; Heather Wilson, 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.

State of California; State of New Mexico, Plaintiffs-Appellants,

v.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; Richard V. Spencer, in his official capacity as Secretary of the Navy; Heather Wilson, 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.

No. 19-16299

No. 19-16336

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 12, 2019 San Francisco, California

Filed June 26, 2020

OPINION

THOMAS, Chief Judge:

This appeal presents the question of whether the Department of Defense Appropriations Act of 2019 authorized the Department of Defense ("DoD") to make budgetary transfers from funds appropriated by Congress to it for other purposes in order to fund the construction of a wall on the southern border of the United States in California and New Mexico. We conclude that the transfers were not authorized by the terms of the Act, and we affirm the judgment of the district court.¹

I

The President has long supported the construction of a border wall on the southern border between the United States and Mexico. Since the President took office in 2017, however, Congress has repeatedly declined to provide the amount of funding requested by the President.

The debate over border wall funding came to a head in December of 2018. During negotiations to pass an appropriations bill for the remainder of the fiscal year, the President announced that he would not sign any legislation that did not allocate substantial funds to border wall construction. On January 6, 2019, the White House requested $5.7 billion to fund the construction of approximately 234 miles of new physical barrier.² Budget negotiations concerning border wall funding reached an impasse, triggering the longest partial government shutdown in United States history.

After 35 days, the government shutdown ended without an agreement to provide increased border wall funding in the amount requested by the President. On February 14, 2019, Congress passed the Consolidated Appropriations Act of 2019 ("CAA"), which included the Department of Homeland Security Appropriations Act for Fiscal Year 2019, Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019). The CAA appropriated only $1.375 billion for border wall construction, specifying that the funding was for "the construction of primary pedestrian fencing ... in the Rio Grande Valley Sector." Id. § 230(a)(1). The President signed the CAA into law the following day.

The President concurrently issued a proclamation under the National Emergencies Act, 50 U.S.C. §§ 1601 – 1651, "declar[ing] that a national emergency exists at the southern border of the United States." Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019).³ An accompanying White House Fact Sheet explained that the President was "using his legal authority to take Executive action to secure additional resources" to build a border wall, and it specified that "the Administration [had] so far identified up to $8.1 billion that [would] be available to build the border wall once a national emergency [was] declared and additional funds [were] reprogrammed." The Fact Sheet identified several funding sources, including $2.5 billion of Department of Defense ("DoD") funds that could be transferred to provide support for counterdrug activities of other federal government agencies under 10 U.S.C. § 284 (" Section 284").⁴ Executive Branch agencies began using the funds identified by the Fact Sheet to fund border wall construction. On February 25, the Department of Homeland Security ("DHS") submitted to DoD a request for Section 284 assistance to block drug smuggling corridors. In particular, it requested that DoD fund "approximately 218 miles" of wall using this authority, comprised of numerous projects, including the El Centro Sector Project 1 in California and the El Paso Sector Project 1 in New Mexico, as relevant to this case. On March 25, Acting Secretary of Defense Patrick Shanahan approved three border wall construction projects: Yuma Sector Projects 1 and 2 in Arizona and El Paso Sector Project 1 in New Mexico. On May 9, Shanahan approved four more border wall construction projects: El Centro Sector Project 1 in California and Tucson Sector Projects 1–3 in Arizona.

Because these projects were undertaken to construct barriers and roads in furtherance of border security, Acting Secretary of Homeland Security Kevin McAleenan invoked the authority granted to him by Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, Div. C, § 102(c), 110 Stat. 3009-546, 3009-554 (1996) (codified as amended as a note to 8 U.S.C. § 1103 ), to "waive all legal requirements" that would otherwise apply to the border wall construction projects "to ensure ... expeditious construction." 84 Fed. Reg. 17185-01 (April 24, 2019). On April 24, with respect to the El Paso Sector, he "waive[d] in their entirety, with respect to the construction of physical barriers and roads" a long list of statutes, "including all federal, state, or other laws, regulations, and legal requirements of, deriving from, or related to the subject of" "[t]he National Environmental Policy Act" "( 42 U.S.C. 4321 et seq. )," "the Endangered Species Act" "( 16 U.S.C. 1531 et seq. )," "the Federal Water Pollution Control Act (commonly referred to as the Clean Water Act ( 33 U.S.C. 1251 et seq. ))," and "the Clean Air Act ( 42 U.S.C. 7401 et seq. )." Id. He executed a similar Section 102(c) waiver with respect to the El Centro Sector on May 15. 84 Fed. Reg. 21800-01 (May 15, 2019).

At the time Shanahan authorized these border wall construction projects, the counter-narcotics support account contained only $238,306,000 in unobligated funds, or less than one tenth of the $2.5 billion needed to complete those projects. To provide the support requested, Shanahan invoked the budgetary transfer authority found in Section 8005 of the 2019 DoD Appropriations Act to transfer funds from other DoD appropriations accounts into the Section 284 Drug Interdiction and Counter-Drug Activities-Defense appropriations account.

For the first set of projects, Shanahan transferred $1 billion from Army personnel funds. For the second set of projects, Shanahan transferred $1.5 billion from "various excess appropriations," which contained funds originally appropriated for purposes such as modification of in-service missiles and support for U.S. allies in Afghanistan.

As authority for the transfers, DoD specifically relied on 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").⁵

Section 8005 provides, in relevant part, that:

Upon determination by the Secretary of Defense that such action is necessary in the national interest, he may, with the approval of the Office of Management and Budget, transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction) between such appropriations or funds or any subdivision thereof, to be merged with and to be available for the same purposes, and for the same time period, as the appropriation or fund to which transferred.⁶

Section 8005 also explicitly limits when its authority can be invoked: "Provided , That such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress."

Although Section 8005 does not require formal congressional approval of transfers, historically DoD had adhered to a "gentleman's agreement," by which it sought approval from the relevant congressional committees before transferring the funds. DoD deviated from this practice here—it did not request congressional approval before authorizing the transfer. Further, the House Committee on Armed Services and the ...