The Volokh Conspiracy
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Earlier today, federal district judge Judge David Briones issued a decision holding that it is illegal for President Trump to use his declaration of a "national emergency" to divert funds to build his border wall. This is the first judicial ruling directly addressing the issue of whether it is legal to use the emergency declaration for that purpose. Previous wall decisions dealt with the administration's attempts to divert other funds to build the wall, from sources that did not depend on the use of the emergency declaration. Judge Briones' ruling comes in a case filed by El Paso County and the Border Network for Human Rights.
In February, the president issued a declaration announcing that the situation at the border qualifies as a "national emergency." That, in turn, allowed him to make use of a wide range of powers triggered by an emergency declaration. Among them was authority to use 10 U.S.C. Section 2808, which states that, during a "national emergency" that "requires the use of the armed forces," the president can reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." The administration contends that Section 2808 gives it the authority to transfer some $3.6 billion in defense funds towards the border wall. The decision also addresses efforts to rely on 10 USC Section 284, which allows the use of Department of Defense "counternarcotics" funds to provide support for "counterdrug activities" by other agencies.
Judge Briones' ruling concludes that such a diversion is illegal. He reaches that conclusion for two reasons. First, it violates the Consolidated Appropriations Act of 2019, which ended the government shutdown caused by Trump's fight with Congress over border-wall funding:
To resolve this case, the Court turns to one of the three golden rules of statutory
construction "established from time immemorial" that "a more specific statute will be given precedence over a more general one." Nevada v. Dep 't of Energy, 400 F.3d 9, 16 (D.C. Cir. 2005) (quoting 1 Comp. Dec. 126, 127 (1894) and Busic v. United States, 446 U.S. 398, 406(1980)). This rule "appli[es] to appropriations bills." See id. Thus, "[a]n appropriation for a specific purpose is exclusive of other appropriations in general terms which might be applicable in the absence of the specific appropriation." Id…..
[T]he CAA specifically appropriates $1.3 75 billion for border-wall expenditures and requires those expenditures to be made on "construction. . . in the Rio Grande Valley Sector" alone. CAA § § 230, 231. Defendants' funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes of military construction, under § 2808, and counterdrug activities, under § 284. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA….
The court also ruled that the funding diversion violates Section 739 of the CAA, which mandates that "None of the funds made available in this or any other appropriations Act may be used to increase. . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act":
§ 739 creates a general rule and an exception. The general rule is that "[n]one of
the funds made available" in an "appropriations Act" (including the CAA) "may be used to increase funding for a program, project, or activity" that was "proposed in the President's budget request for a fiscal year." CAA § 739. The exception is that appropriations may be used to increase such funding if that use is authorized by "the reprogramming or transfer provisions" of an "appropriations Act." § 739 prohibits Defendants' plan to fund the border wall because the plan is barred by that provision's general rule and the plan does not fall within its exception.
Defendants' plan is barred by § 739's general rule, because it (1) seeks to use funds "made available in" an "appropriations Act"; (2) "to increase funding for a program, project, or activity"; (3) that was "proposed in the President's budget request for a fiscal year." First, Defendants' plan seeks to use funds "made available in" an "appropriations Act." CAA § 739. It taps appropriated military construction funds under § 2808 and counterdrug support funds under § 284. As the White House has acknowledged, all funds have been "appropriated by Congress….."
Second, Defendants' plan also seeks to use these appropriations to "increase funding for a program, project, or activity." CAA § 739. Construction of a wall along the southern border is a singular "project" under that word's ordinary meaning. See Merriam Webster's Dictionary 932 (11th ed. 2003) (defining "project" as "a specific plan or design") Indeed, the Executive Branch has consistently referred to the wall in this manner….
Defendants' funding plan is not saved by § 739's exception: the funding increases it proposes are not "change[s] . . . made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act." Under federal law, an "appropriations Act" is an Act whose title begins: "An Act making appropriations." 2 U.S.C. § 622(5); 1 U.S.C. § 105. Neither § 2808 nor § 284 begins with this language. § 2808 is a provision of the Military Construction Codification Act, Pub. L. No. 97-124, 96 Stat. 153 (1982), which says nothing about appropriations in its title, nor makes any appropriations in its body. And § 284 is a provision of the National Defense Authorization Act, Pub. L. No. 114-328, 130 Stat. 2000, 2381, 2497 (2016), which by title and substance is not an "appropriations Act." Cf Pub. L. No. 115- 31, 131 Stat. 135, 229 (2017) (separate statute appropriating DOD funds). The Proclamation violates § 739 of the CAA.
I am not sure what to think about the court's "specific trumps general" argument. It raises some difficult statutory interpretation questions that I will leave to those with greater relevant expertise. But the Section 739 point strikes me as compelling, for exactly the reasons explained by Judge Briones.
Resolving the national emergency question in this way allows the court to avoid virtually all of the big picture issues surrounding the emergency declaration, such as whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976, whether the relevant provision of the National Emergencies Act (if interpreted in the broad way the administration advocates) is unconstitutional, and even whether the text of Section 2808 actually allows the use of funds for border wall construction (in my view, the answer is an emphatic "no"). It also does not consider whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress.
The narrowness of the ruling might prove attractive to appellate judges (including perhaps some Supreme Court justices) who want to find a relatively simple way to dispose of the national emergency issue, without having to set any broad precedent. But the broader questions could, nonetheless, come back into play when the administration appeals the decision.
The ruling is also notable for the fact that it comes in a case where the plaintiffs have clear "economic" interests at stake. El Paso County controls land near the area where the wall would be built, and its construction is likely to damage its tourist industry and reduce its revenues. In addition, some $20 million of the money diverted would come from a military construction project in the County, in which the local government has an obvious economic interest, as well.
Some previous rulings in border wall cases have been decided on procedural grounds, because the plaintiffs in question lacked sufficient strong interests to qualify for standing. In a recent Ninth Circuit decision holding that Trump lacked authority to divert other military funds for border wall construction, a dissenting judge argued that the plaintiffs were not legally entitled to bring the suit, because their lack of an "economic" interest placed them outside of the "zone of interests" protected by the relevant federal statutes. The Supreme Court eventually stayed the Ninth Circuit decision, possibly based on such procedural concerns.
In the El Paso case, the plaintiffs' economic interests are difficult to deny. It is hard to have a much clearer economic interest than having the government build a wall near your land, using funds that might otherwise benefit you. Thus, it will be difficult for the administration to get this case dismissed on procedural grounds. Courts will likely have to continue to address it on the merits.
Given the virtual inevitability of an appeal, this case is far from over. And there are many other wall-building cases still making their way through the system, whose outcomes remain to be seen.
It is also worth noting that Judge Briones is a Democratic appointee. So far, all of the Democratic-appointed judges who have issued decisions in wall cases have ruled for the plaintiffs, while all but one Republican appointee (Judge Clifton of the Ninth Circuit) have voted against them. It is, possible, therefore, that the wall litigation will continue to split judges largely along partisan lines. On the other hand, all the Republican judges who have voted against the plaintiffs, so far, have done so on procedural grounds. Judge Clifton is the only one who has reached the merits, and he voted for the plaintiffs. At least some other GOP-appointed judges might take similar positions when and if they get the chance to rule on the merits, as well.
Today's ruling is a notable victory for opponents of the wall. But the outcome of both this case and that of the broader legal struggle over the wall remain uncertain. Stay tuned!
UPDATE: The original version of this post overstated the directness of El Paso's economic interests that will be affected by the construction of the border wall. I apologize for the mistake, which has been corrected.