Supreme Court Allows Wall Construction to Proceed

The lower courts likely just got it wrong, and the Supreme Court almost definitely wants them out of politics

By Andrew R. Arthur on August 2, 2019

In my last post, I talked about a curious set of circumstances that allowed one district court judge to overrule another on an administrative immigration issue. The coda to that post was criticism of what I (and Justice Clarence Thomas, not necessarily in that order) saw as abuses of the injunctive relief system as it relates to this politically charged issue. Fortuitously, on July 26, 2019, the Supreme Court granted the government's request for a stay of an injunction in Trump v. Sierra Club, a case involving the use of funds by the Department of Defense (DOD) to erect border barriers to staunch the flow of drugs into the United States. The Court's reasoning is not clear, but I read it as a warning to lower courts to avoid twisting the law to intervene in political questions.

The Court's order is terse, but pointed:

The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary [of Defense]'s compliance with Section 8005 [of the DOD Appropriations Act].

(All emphases are added.)

I explain the court's likely reasoning in-depth below, but here's the short and pithy summary: The private organizations who brought the case likely had no ability to do so, and the acting secretary of defense did not violate the law when he authorized the transfer funding for that wall. This is (educated) conjecture and somewhat over-simplistic, but is still probably right. If you want the quick and dirty answer, there it is.

Here's my more in-depth take:

Elucidation for this decision is likely found in the application for a stay pending appeal (application) filed by the Department of Justice (DOJ) of the underlying injunction issued by the U.S. District Court for the Northern District of California in that case (examined below).

That injunction prevented DOD from moving $2.5 billion in funds appropriated from other DOD appropriations accounts into the account the department uses to fund its counternarcotic efforts, in order to undertake construction of border barriers in certain areas in California, Arizona, and Texas. A stay requested by DOJ of that injunction was subsequently denied in an order by a divided panel of the Court of Appeals for the Ninth Circuit.

First, about the wall at issue. As DOJ noted in that application to the Supreme Court, the construction in question is intended to shore up existing infrastructure:

DHS reports that the projects consist of replacing existing barriers in areas that "function primarily as * * * law enforcement zone[s]," and that the projects will not make "any change to the existing land uses in the areas." [Ellipsis in original.]

Second is the authority (and as importantly, the money) to build that wall. The section of the DOD Appropriations Act cited in the excerpt above from the Supreme Court's order, section 8005, provides the Secretary of Defense authority to transfer not more than $4 billion of funding (other than military construction) 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," after notifying Congress of such transfer. That appropriations bill was signed on September 28, 2018.

Note that this provision (and the restrictions therein) applies to DOD funding, not to funding for any other department, including the Department of Homeland Security (DHS).

Critical to the transfer of that funding in this case is 10 U.S.C. § 284, which allows DOD to "provide support for the counterdrug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government or of any State, local, tribal, or foreign law enforcement agency," at the request of those entities, for specified purposes. Among the specified purposes is: "Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." Pretty specific.

Five months after the DOD Appropriations Act, on February 15, 2019, the president signed H.J.Res.31, the Consolidated Appropriations Act, 2019. That act provided $1.375 billion in funding for the funding of pedestrian fencing only in the Rio Grande Valley Sector of the U.S. Border Patrol, in southern Texas, and only subject to significant restrictions.

On that same date, the president issued Proclamation 9844, "Declaring National Emergency Concerning the Southern Border of the United States." Citing to sections of the National Emergencies Act, the president "declare[d] that a national emergency exists at the southern border of the United States." Specifically, the president noted: "The southern border is a major entry point for criminals, gang members, and illicit narcotics." As the president stated therein: "Because of the gravity of the current emergency situation, it is necessary for the Armed Forces to provide additional support to address the crisis."

 DOJ's application to the Supreme Court picks it up from there:

On February 25, 2019, DHS submitted a request to DoD for DoD's assistance, pursuant to 10 U.S.C. 284, "with the construction of fences[,] roads, and lighting" within 11 specified project areas, "to block drug-smuggling corridors across the international boundary between the United States and Mexico."

* * * *

On March 25, 2019, the Acting Secretary of Defense approved DHS's request with respect to three projects, including two at issue here: "Yuma Sector Project 1" in Arizona and "El Paso Sector Project 1" in New Mexico. . . . DHS had identified those projects as among its highest priorities, based on the volume of drug smuggling that occurs between ports of entry in those parts of the border.

* * * *

The Acting Secretary ultimately approved up to $1 billion of DoD assistance, including assistance to replace ineffective existing barriers in the Yuma and El Paso Sectors with 30-foot-high fencing, as DHS had requested.

The Acting Secretary of Defense initially approved the transfer of up to $1 billion in funds from Army personnel appropriations accounts to DoD's drug-interdiction and counterdrug support activities. That funding was deemed excess "because of lower than anticipated personnel spending levels." With respect to the transfer being for "higher priority items, based on unforeseen military requirements":

The Acting Secretary of Defense determined that those limitations were satisfied here, explaining that DoD's need to provide this counterdrug assistance to DHS pursuant to DHS's February 2019 request was "unforeseen" at the time of DoD's earlier budget request and that Congress had never denied any request for funding for DoD to provide this assistance.


On May 9, 2019, the Acting Secretary of Defense approved DHS's request for support under Section 284 with respect to four additional projects: "El Centro Project 1" in California and "Tucson Sector Project[s]" 1, 2, and 3 in Arizona. . . . As with the prior projects, DHS had identified those areas as significant drug-smuggling corridors, and the Acting Secretary authorized DoD to provide up to $1.5 billion in support to DHS for 30-foot-high fencing as well as roads and lighting. . . . To fund this support, the Acting Secretary transferred an additional $1.5 billion from various excess appropriations . . . .

Two private organizations, the Sierra Club and the Southern Border Communities Coalition, filed suit in the U.S. District Court for the Northern District of California "seeking declaratory and injunctive relief from actions the United States has taken to construct physical barriers along the southern border," including the projects approved by DOD above.

On June 28, 2019, the District Court issued a permanent injunction, following a preliminary injunction that it granted on May 24, 2019. Those orders enjoined each of those projects. As the DOJ application notes: "The sole basis for both injunctions was the court's conclusion that Section 8005 did not authorize the internal transfers made by the Acting Secretary of Defense to fund the disputed projects." That is, the statute did not permit the transfers. It continues:

The district court determined that it "ha[d] authority to review each of [respondents'] challenges" pursuant to the court's equitable power to enjoin public officials from violating federal law, rather than under a specific grant of statutory authority, such as the Administrative Procedure Act (APA). . . . The court concluded, on that basis, that respondents need not demonstrate that their claims "fall within the 'zone of interests'" protected by Section 8005, because the court viewed that threshold requirement as applicable only "to statutorily-created causes of action."

The district court also found that respondents were likely to show that Section 8005 did not permit DoD to transfer the funds at issue. The court reasoned that Congress had "denied" funds for the projects within the meaning of Section 8005's proviso . . . when Congress appropriated only $1.375 billion to DHS in February 2019 for the construction of fencing in the Rio Grande Valley. . . . The court also reasoned that DoD's need to provide assistance to DHS was not "'unforeseen'" (as required for a Section 8005 transfer) because, even though DHS had not requested DoD's support under Section 284 until February 2019, the "government as a whole" had made other funding requests for border-wall construction since early 2018.

Finally, the district court concluded that respondents had demonstrated irreparable injury "to their members' aesthetic and recreational interests" in the areas where construction would occur. . . . The court viewed those putative harms as outweighing the government's interests, which the court characterized as "border security and immigration-law enforcement," . . . rather than drug interdiction.

The district court enjoined DoD, DHS, and the Department of the Treasury from "taking any action to construct a border barrier * * * using funds reprogrammed by DoD under Section 8005 . . . ."

"Zone of interests" in this context is a critical point, as I lay out below.

DOJ appealed the district court's injunction to the Ninth Circuit. On July 3, 2019, the circuit court denied DOJ's motion for a stay of that injunction, with one judge of the three-judge panel dissenting.

The Ninth Circuit noted that to rule on DOJ's motion, it had to consider, among other factors, whether the government had shown a likelihood of success on the merits of their appeal, the hardship to each of the parties resulting from a stay of the district court's injunction or the motion's denial, and the public interest in either granting or denying the stay.

The Ninth Circuit first held that the government was not likely to succeed on the merits of its appeal. That court found:

The Appropriations Clause of the Constitution provides that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const. art I., § 9, cl. 7. [The government] assert[s] that, through section 8005, Congress authorized DoD to reprogram the funds at issue. We agree with Plaintiffs, however, that the requirements of section 8005 have not been met.

Specifically, the need for which the funds were reprogrammed was not "unforeseen," and it was an item for which funds were previously "denied by the Congress."

* * * *

Because section 8005 did not authorize DoD to reprogram the funds—and Defendants do not and cannot argue that any other statutory or constitutional provision authorized the reprogramming—the use of those funds violates the constitutional requirement that the Executive Branch not spend money absent an appropriation from Congress.

Defendants contend that these Plaintiffs are unlikely to prevail because they lack a cause of action through which to challenge the reprogramming. We disagree. Plaintiffs either have an equitable cause of action to enjoin a constitutional violation, or they can proceed on their constitutional claims under the Administrative Procedure Act, or both. To the extent any zone of interests test were to apply to Plaintiffs' constitutional claims, we hold that it would be satisfied here.

Considering the remaining factors relevant to Defendants' request for a stay—the degree of hardship that may result from a stay or its denial, and the public interest at stake—we are not persuaded that a stay should be entered. There is a strong likelihood that Plaintiffs will prevail in this litigation, and Defendants have a correspondingly low likelihood of success on appeal. As for the public interest, we conclude that it is best served by respecting the Constitution's assignment of the power of the purse to Congress, and by deferring to Congress's understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction. We therefore hold that a stay of the district court's order granting Plaintiffs an injunction is not warranted.

Notably, the circuit court did not consider the government's interest in controlling the flow of drugs over the border in its assessment.

DOJ thereafter on July 12, 2019 filed the application with the Supreme Court. That application went to the Circuit Justice for the Ninth Circuit, Justice Kagan. The application explains the factors the circuit justice must follow thereafter:

"In considering stay applications on matters pending before the Court of Appeals, a Circuit Justice" considers three questions: first, the Justice must "try to predict whether four Justices would vote to grant certiorari" if the court below ultimately rules against the applicant; second, the Justice must "try to predict whether the Court would then set the order aside"; and third, the Justice must "balance the so-called stay equities," . . . by determining "whether the injury asserted by the applicant outweighs the harm to other parties or to the public,"

DOJ first argued that the Supreme Court was likely to grant review of any decision by the Ninth Circuit affirming the injunction, because it would be contradicted by Court precedent, and because review would be warranted by the significance of the issues presented and imperative for drug-interdiction efforts.

The violation of precedent question goes to the ability of the private organizations to sue to block DOD wall efforts. Specifically, DOJ asserted that the district and circuit courts' decisions below had erroneously found that those organizations had presented a constitutional claim in opposing the reprogramming of funds, a finding that was inconsistent with the Court's 1994 decision in Dalton v. Specter (where the Court held that it could not review an executive order to close a Pennsylvania military base):

The [Ninth Circuit] panel majority concluded that respondents may pursue a constitutional claim for a violation of the Appropriations Clause, premised entirely on the allegation that the Acting Secretary of Defense violated Section 8005 of the DoD Appropriations Act by transferring excess funds to the appropriation used to fund DoD's provision of counterdrug support activities under 10 U.S.C. 284. . . . But Dalton teaches that "claims that an official exceeded his statutory authority" are not constitutional claims.

It explained that under the Supreme Court's own precedents, "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.'" As DOJ argued:

The Constitution is implicated if executive officers rely on it as an independent source of authority to act, as in Youngstown [Sheet and Tube v. Sawyer, where the Supreme Court held that the president, absent statutory authority, lacked the constitutional authority to seize and run steel mills in the middle of a war] . . . or if the officers rely on a statute that itself violates the Constitution. . . . But claims alleging simply that an official has "exceeded his statutory authority are not 'constitutional' claims."

Critically, as DOJ explained in countering the circuit court's reasoning:

The majority . . . asserted that respondents' claims do not allege merely a statutory violation because executive officials "lack any background constitutional authority to appropriate funds" in the absence of statutory authority. . . . But that is precisely backwards. It is because the challenged agency action here depends on a statutory grant of authority [8005], rather than a constitutional one, that respondents' claims must be construed as statutory under Dalton.

DOJ further argued that the Court would grant review, in essence, because the district and circuit court decisions created a slippery slope, legally. In particular, it contended that transfer statutes (like 8005) were "commonplace," reflecting "Congress's longstanding judgment that the Executive Branch must have some flexibility to redirect appropriations during 'the lengthy and overlapping cycles of the budget process' . . . . in light of unforeseen events or changed priorities." It continued:

If a private party could sue to enjoin the exercise of such a transfer provision without demonstrating that the party falls within the zone of interests protected by the statute, the courthouse doors would be open to a wide variety of challenges that Congress never contemplated and that the [Administrative Procedures Act (APA)] does not permit. More broadly, the decision below threatens to "turn our current system of administrative review on its head" by transforming garden-variety statutory challenges into constitutional claims.

That "zone of interest" argument is likely the reason why the Supreme Court will ultimately find the organizations lack standing, and why this case has import for Trump-administration efforts going forward. Simply put, DOJ argued:

Nothing in the text of Section 8005 suggests that Congress intended to permit enforcement of the statute's limitations by plaintiffs, like respondents, who assert that a transfer would indirectly result in harm to their recreational or aesthetic interests in public lands. The statute does not even "arguably" protect those interests. . . . It does not require the Secretary to consider aesthetic or recreational interests before transferring funds, nor does it regulate or limit DoD's use of public lands or DoD's authority to undertake any construction. Instead, it empowers the Secretary of Defense to transfer funds from one appropriation enacted by Congress to another such appropriation, to be used for the purposes Congress authorized in that appropriation – including, as here, providing counterdrug support to DHS.

DOJ explained that the courts below had erred in finding the organizations' challenge was a constitutional, not statutory, challenge "at its core" (as explained above), such that the private organizations' "asserted interests need only 'fall within the zone of interests of the [Constitution's] Appropriations Clause.'" And, as noted above, under Dalton there is no constitutional challenge presented by the private organizations for the courts to consider.

Finally, DOJ argued, the injunction had significant ramifications for U.S. drug-interdiction efforts:

The decision prevents DoD from taking steps to support DHS that the Acting Secretary of Defense determined to be "necessary in the national interest," . . . to stanch the flow of illegal drugs across the southern border. The support DoD seeks to provide, pursuant to its express authority in 10 U.S.C. 284(b)(7), would permit the construction of more than 100 miles of pedestrian fencing in areas identified by DHS as drug-smuggling corridors, where DHS has seized thousands of pounds of heroin, cocaine, and methamphetamine between ports of entry in recent years.

As you can imagine, these points were reiterated in DOJ's contention that there was a "fair argument" the Supreme Court would set aside any injunction of DOD's ability to construct the infrastructure requested by DHS for its drug-interdiction efforts.

Specifically, the organizations had no cognizable constitutional claim and were not within the "zone of interests" protected by 8005. They had premised their claims that a transfer under that section would "indirectly result in harm to their recreational or aesthetic interests in public lands," but nothing in that section suggests that they can seek to enforce the limits on such transfer of funding on that basis.

And, in any event, 8005 expressly permitted (and did not restrict, as border wall funding had been in H.J. Res. 31) the transfers pursuant to that section:

DHS's request to DoD for support under 10 U.S.C. 284 was "unforeseen" at the time of DoD's budget requests, and Congress never previously "denied" funding for that particular "item" of expenditure. . . . The panel majority erred in reading those terms in the DoD transfer statute to encompass "border barrier funding" generally, rather than to refer to specific items in DoD's budget.

DOJ argued that DOD did not know at the time that it submitted its FY 2019 budget (in February 2018) that DHS would ask in February 2019 for counterdrug support under 10 U.S.C. 284. And, DOD can only use the authority under section 284 when asked for its help by a different department. Finally, DOD did not know when it received the appropriations Congress had approved for FY 2019 that the money it got would be in excess of DOD's needs.

Finally, as DOJ explained: "The balance of the equities tips decidedly in favor of a stay pending appeal."

With respect to the government, the injunction in question seriously impedes the government in its efforts to block known drug-smuggling corridors along the border, facts that both the courts below failed to consider. More concretely, the injunction, had it stayed in place, would have cost the government the funding this fiscal year to impede the flow of narcotics in those areas, and would have effectively therefore operated as a final judgment on the matter. Use it or lose it, and DOD would have been prevented from using it by the courts.

That harm more than outweighed the injuries asserted by the private organizations, which were "aesthetic and recreational," and as a practical matter were not borne out by the facts, as DOJ made clear:

Respondents allege that the construction at the border will harm their "'ability to fish,'" "hik[e]," and "camp[]." According to DHS, however, "the vast majority of the construction activity and the project footprints themselves will occur within a 60-foot strip of land that parallels the international border," in areas that are already "heavily disturbed" and that "include existing barriers and roads." DHS reports that the projects consist of replacing existing barriers in areas that "function primarily as * * * law enforcement zone[s]," and that the projects will not make "any change to the existing land uses in the areas." . . . Respondents' asserted interest in undisturbed fishing and birdwatching in the law-enforcement zone adjacent to the border does not justify bringing the entire contracting process to a halt, let alone immediately while an appeal is pending.

In summary, the Supreme Court's full reasoning for issuing a stay will inevitably have to wait until it issues its final order with respect to all of these issues. It is reasonable to believe, however, that to some degree it was fed up with the lower-court rulings. Read objectively, those lower courts believed that President Trump was attempting to do an "end-run" around the restrictions on appropriations for wall funding imposed by Democrats in H.J. Res. 31, and they were bound and determined to prevent that from happening, whatever the reasoning they needed to use.

Chief Justice John Roberts has long shown an inclination to prevent lower courts from "putting their thumb on the scale" in the political squabbles that have occurred between the White House and Capitol Hill, regardless of which party controlled those institutions. Its order in Trump v. Sierra Club likely is the just latest effort to achieve that goal. Expect to see more: there are at least 39 current injunctions against the president's executive actions.