The Volokh Conspiracy
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On Wednesday, the US Court of Appeals for the Ninth Circuit issued a decision upholding a trial court ruling blocking President Donald Trump from diverting military funds to build his border wall. The ruling closely follows the reasoning of the district court decision it upheld. I analyzed that earlier decision here. Both decisions address the president's attempt to use Section 8005 of the 2019 Department of Defense Appropriations Act to use some $2.5 billion in military construction funds to build parts of the wall, even though Congress refused to allocate as much money for border barriers as Trump wanted.
As the majority opinion by judges Clifton and Friedland explains, if Section 8005 does not authorize Trump's attempted diversion of funds, then the president would be in violation of the Appropriations Clause of the Constitution, which gives Congress exclusive control over the public purse. The Founders considered it essential to deny the executive the power to control the federal budget, thus preventing any one politician from being able to combine the powers of "the sword" and "the purse," as James Madison put it.
The majority's analysis of Section 8005 strikes me as compelling. The statute allows diversion of funds only for "higher priority items, based on unforeseen military requirements, than those for which originally appropriated…" And "in no case" may the the executive transfer funds "where the item for which reprogramming is requested has been denied by the Congress."
Far from being an "unforeseen" need, funding for wall-building was repeatedly demanded by the president over the last two years:
Defendants mistakenly focus on the assertion that [the Department of Defense] "could not have anticipated that [the Department of Homeland Security] would request specific support for roads, fences, and lighting." Even assuming that is true, the fact remains that DHS came to DoD for funds because Congress refused to grant DHS itself those funds. And when properly viewed as applying to the broader "requirement" of a border wall, not to DHS's specific need to turn to an entity other than Congress for funds, it is not credible that DoD did not foresee this requirement. The long history of the President's efforts to build a border barrier and of Congress's refusing to appropriate the funds he requested makes it implausible that this need was unforeseen…
The same history also makes clear that the funding in question was denied by Congress, which is an additional reason why Section 8005 does not authorize it:
Even if there could be doubt about how to interpret "unforeseen," it is clear that Congress denied this request…
Construing section 8005 with an eye towards the ordinary and common-sense meaning of "denied," real-world events in the months and years leading up to the 2019 appropriations bills leave no doubt that Congress considered and denied appropriations for the border barrier construction projects that DoD now seeks to finance using its section 8005 authority….
In sum, Congress considered the "item" at issue here—a physical barrier along the entire southern border, including in the Yuma, El Paso, Tucson, and El Centro sectors [at issue in this case]—and decided in a transparent process subject to great public scrutiny to appropriate less than the total amount the President had sought for that item. To call that anything but a "denial" is not credible.
As I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use terms like "unforeseen… requirement" to allocate funds for the wall, it—and future administrations—can use similar tactics to spend money on all sorts of purposes that Congress never authorized. This would go a long way towards concentrating the power of the "purse" and "sword" in the hands of one person—exactly the result the Founding Fathers hoped to forestall by giving Congress exclusive authority over appropriations. Conservatives who might be happy to see Trump do this to build the Border Wall will not be so thrilled if the next Democratic President uses similar tactics to build projects he or she believes are needed for the "Green New Deal" or other liberal policy goals.
The Ninth Circuit ruling was a 2-1 decision, with a dissent by Judge N. Randy Smith. It is potentially significant that Judge Smith is a Republican appointed by President George W. Bush. By contrast, two of the three judges who have ruled against the Trump administration in this case are Democratic appointees (the district court judge and Judge Friedland). Judge Richard Clifton, a George W. Bush appointee who coauthored the majority opinion in the Ninth Circuit, is the exception.
However, it is also notable that Judge Smith did not argue that Section 8005 gives the president the authority the administration claims. Rather, he merely contends that the plaintiffs in the case – the Sierra Club and the Southern Border Community Coalition (an alliance of various liberal/progressive groups in the border area)—do not have the right to bring a claim against the wall-building project.
Smith contends that "[t]he majority has created a constitutional issue where
none previously existed" and that its analysis risks "turning every question of whether an executive officer exceeded a statutory grant of power into a constitutional issue." It is indeed true that the plaintiffs' claim turns on the correct interpretation of Section 8005. There is no violation of the Appropriations Clause of the Constitution if 8005 authorizes the president to divert the funds in question. But it is not true that the majority's analysis turns every dispute over statutory delegation into a constitutional question. That happens only in cases where exceeding statutory authority enables the president to spend money for purposes not authorized by Congress, thereby transferring a congressional power to himself. In many other situations where a president acts beyond the scope of statutory authority, there is no such intrusion on congressional authority, and therefore no violation of the constitutional separation of powers.
Because (in his view) there is no constitutional issue here and because he argues that Congress mandates that this sort of case be brought under the Administrative Procedure Act, Judge Smith concludes that there can be no "equitable" cause of action against the wall transfer. He concedes that it is possible to bring a case under the APA. But the plaintiffs in the case are, in his view, not the right parties to bring it, because the "zone of interests" protected by the APA, with respect to Section 8005, only covers "economic interests." The Sierra Club and other plaintiffs in this case assert only "aesthetic, recreational, and generalized environmental interests."
I am not an expert on either equitable causes of action or the APA. So I will defer most of the heavy lifting on these questions to others with greater knowledge. It seems to me, however, that the majority's analysis of these issues is more persuasive than Judge Smith. I would add, also, that his distinction between "economic" and "recreational" interests seems flawed. The two are not mutually exclusive categories. To the contrary, recreation is a major industry and the ability to engage in recreational activities in a given area is surely an asset with economic value. The fact that the groups in question do not lead recreational tours in the border area for profit does not alter the fact that the ability to do so qualifies as an "economic interest." If the construction of the wall undermines a local landowner's ability to raise crops on his land, that would surely qualify as an "economic interest," even if the owner in question did not grow the crops for profit, and had no plans to do so. The same goes for disruption of recreational activity.
Judge Smith's reasoning would not preclude all possible lawsuits against the wall, however. Even if the Sierra Club and other similar plaintiffs are not within the appropriate "zone of interests," there are many plaintiffs who surely do have such interests, such as local governments and private property owners who own land in the area whose use might be disrupted by the wall, and who use that property for purposes that go beyond nonprofit recreation.
The current ruling is only a decision to uphold a preliminary injunction blocking the funding diversion until the court of appeals can reach a final decision on the merits. However, the trial court judge in the case has recently issued a final decision on the merits, and that ruling is expected to be reviewed by the Ninth Circuit soon. The decision on the preliminary injunction makes it highly likely that the court will decide the same way on the merits, since "likelihood of success on the merits" is one of the criteria for issuing a preliminary injunction (and the majority makes clear they believe the plaintiffs deserve to prevail).
For reasons discussed in my earlier post on the trial court decision, the rulings in this case do not address several issues that are likely to come up in other wall-related cases. These include whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976 (whose invocation was necessary to trigger the use of some of the funds Trumps wants to access, but not those at stake in this case), and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. These issues may well be litigated at least some of the many other wall-related cases pending before various federal courts.
The rulings in this case are the first to address the substantive issues at stake in the wall litigation. In June, a different federal trial court dismissed a wall lawsuit filed by the Democratic-controlled House of Representatives because the judge concluded the House lacked standing to file the claim. I analyzed that ruling here. Even if the standing decision stands up on appeal, it is unlikely to prevent judicial review of Trump's wall-building plan, because there are many other lawsuits against it brought by parties who clearly do have standing, even if the House does not. The real significance of the standing decision is its potential impact on other separation-of-powers disputes between the president and Congress.
The Ninth Circuit ruling is another notable success for opponents of the wall. However, we are still in the early stages of what is likely to be a lengthy legal battle. It is not a good sign for the plaintiffs that the judges who have ruled on wall-related cases so far, seem to have split on ideological/partisan lines, with the notable exception of Judge Clifton. If the issue gets to the Supreme Court, that court, of course, has a 5-4 conservative Republican majority. If the justices also split along ideological lines, the plaintiffs will lose.
On the other hand, neither of the Republican judges who have ruled against plaintiffs in the decisions litigated so far (Judge Smith and the district court judge in the standing case), have done so on the merits. Both rejected the claims in question on narrow procedural grounds (standing and "zone of interests" analysis) that would only bar a subset of wall plaintiffs, while clearly allowing lawsuits by others to go forward. Judge Clifton is the only GOP appointee who has so far ruled on the merits in any of the wall cases. And he ruled in favor of the plaintiffs.
UPDATE: In the original version of this post, I said that the judges in the majority in the Ninth Circuit ruling were both Democratic appointees. However, Judge Richard Clifton, who coauthored the majority opinion, was in fact appointed by George W. Bush. I apologize for the mistake (which I found myself, and quickly corrected) and have amended the post accordingly.