State of California v. Donald Trump ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF CALIFORNIA; STATE OF No. 19-16299
COLORADO; STATE OF
CONNECTICUT; STATE OF D.C. No.
DELAWARE; STATE OF HAWAII; 4:19-cv-00872-
STATE OF MAINE; STATE OF HSG
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
2 STATE OF CALIFORNIA V. TRUMP
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 V. TRUMP 3
STATE OF CALIFORNIA; STATE OF No. 19-16336
NEW MEXICO,
Plaintiffs-Appellants, D.C. No.
4:19-cv-00872-
v. HSG
DONALD J. TRUMP, in his official
capacity as President of the United OPINION
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.
4 STATE OF CALIFORNIA V. TRUMP
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted November 12, 2019
San Francisco, California
Filed June 26, 2020
Before: Sidney R. Thomas, Chief Judge, and Kim McLane
Wardlaw and Daniel P. Collins, Circuit Judges.
Opinion by Chief Judge Sidney R. Thomas;
Dissent by Judge Collins
STATE OF CALIFORNIA V. TRUMP 5
SUMMARY*
Appropriations
The panel affirmed the district court’s judgment holding
that budgetary transfers of funds for the construction of a wall
on the southern border of the United States in California and
New Mexico were not authorized under the Department of
Defense Appropriations Act of 2019.
Section 8005 and Section 9002 of the Act (collectively
“Section 8005”) was invoked to transfer $2.5 billion of
Department of Defense funds appropriated for other purposes
to fund border wall construction. Sixteen states, including
California and New Mexico, filed suit challenging the
Executive Branch’s funding of the border wall. The district
court granted California and New Mexico’s motion for partial
summary judgment, and issued declaratory relief, holding the
Section 8005 transfer of funds as to the El Centro and El Paso
sectors unlawful.
The panel held that California and New Mexico
established the requisite Article III standing to challenge the
federal defendants’ actions.
Concerning the injury in fact element of standing, the
panel held that California and New Mexico alleged that the
actions of the federal defendants will cause particularized and
concrete injuries in fact to the environment and wildlife of
their respective states as well as to their sovereign interests in
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
6 STATE OF CALIFORNIA V. TRUMP
enforcing their environmental laws. First, the panel held that
California and New Mexico each provided sufficient
evidence, if taken as true, that would allow a reasonable fact-
finder to conclude that both states would suffer injuries in
fact to their environmental interests, and in particular, to
protect endangered species within their borders. Second, the
panel also held that California and New Mexico demonstrated
that border wall construction injured their quasi-sovereign
interests by preventing them from enforcing their
environmental laws.
Concerning the causation element for standing, the panel
held that California alleged environmental and sovereign
injuries that were fairly traceable to the federal defendants’
conduct. The panel held that with respect to most of the
environmental injuries, causation was apparent. The panel
also concluded that the causation requirement was likewise
satisfied for the injuries to California’s and New Mexico’s
quasi-sovereign interests.
Concerning the redressability element of standing, the
panel held that a ruling in California and New Mexico’s favor
would redress their harms. Without the Section 8005 funds,
the Department of Defense would have inadequate funding to
finance construction of the projects, and this would prevent
both the alleged and environmental and sovereign injuries.
The panel held that California and New Mexico had the
right to challenge the transfer of funds under the
Administrative Procedure Act (“APA”). Specifically, the
panel held that Section 8005 imposed certain obligations
upon the Department of Defense, which it did not satisfy.
The panel further held that California and New Mexico, as
aggrieved parties, could pursue a remedy under the APA, as
STATE OF CALIFORNIA V. TRUMP 7
long as they fell within Section 8005’s zone of interests. The
panel held that California and New Mexico were suitable
challengers because their interests were congruent with those
of Congress and were not inconsistent with the purposes
implicit in the statute. The panel concluded that California
and New Mexico easily fell within the zone of interests of
Section 8005.
The panel held that Section 8005 did not authorize the
Department of Defense’s budgetary transfer to fund
construction of the El Paso and El Centro Sectors.
Specifically, the panel concluded that the district court
correctly determined that the border wall was not an
unforeseen military requirement, and that funding for the wall
had been denied by Congress. Absent such statutory
authority, the Executive Branch lacked independent
constitutional authority to transfer the funds at issue here.
The panel concluded that the transfer of funds was unlawful,
and affirmed the district court’s declaratory judgment to
California and New Mexico.
Finally, the panel declined to reverse the district court’s
denial of California and New Mexico’s request for permanent
injunctive relief, without prejudice to renewal.
Judge Collins dissented. He agreed that at least California
established Article III standing, but would hold that the States
lacked any cause of action to challenge the transfer of funds
under the APA or otherwise. Even assuming that they had a
cause of action, Judge Collins would conclude that the
transfers were lawful and reverse the district court’s partial
judgment for the States and remand for entry of partial
summary judgment in favor of the defendants.
8 STATE OF CALIFORNIA V. TRUMP
COUNSEL
H. Thomas Byron III (argued), Anne Murphy, and Courtney
L. Dixon, Appellate Staff; Hashim M. Mooppan and James
M. Burnham, Deputy Assistant Attorneys General; Joseph H.
Hunt, Assistant Attorney General; Civil Division, United
States Department of Justice, Washington, D.C.; for
Defendants-Appellants/Cross-Appellees.
Dror Ladin (argued), Noor Zafar, Jonathan Hafetz, Hina
Shamsi, and Omar C. Jadwat, American Civil Liberties Union
Foundation, New York, New York; Cecillia D. Wang,
American Civil Liberties Union Foundation, San Francisco,
California; Mollie M. Lee and Christine P. Sun, American
Civil Liberties Union Foundation of Northern California Inc.,
San Francisco, California; David Donatti and Andre I.
Segura, American Civil Liberties Union Foundation of Texas,
Houston, Texas; Sanjay Narayan and Gloria D. Smith, Sierra
Club Environmental Law Program, Oakland, California; for
Plaintiffs-Appellees.
Douglas N. Letter (argued), Todd B. Tatelman, Megan
Barbero, Josephine Morse, and Kristin A. Shapiro, United
States House of Representatives, Washington, D.C.; Carter G.
Phillips, Virginia A. Seitz, Joseph R. Guerra, and Christopher
A. Eiswerth, Sidley Austin LLP, Washington, D.C.; for
Amicus Curiae United States House of Representatives.
James F. Zahradka II (argued), Brian J. Bilford, Sparsh S.
Khandeshi, Heather C. Leslie, Lee I. Sherman, and Janelle M.
Smith, Deputy Attorneys General; Michael P. Cayaban,
Christine Chuang, and Edward H. Ochoa, Supervising Deputy
Attorneys General; Robert W. Byrne, Sally Magnani, and
Michael L. Newman, Senior Assistant Attorneys General;
STATE OF CALIFORNIA V. TRUMP 9
Xavier Becerra, Attorney General; Attorney General’s Office,
Oakland, California; Jennie Lusk, Civil Rights Bureau Chief;
Nicholas M. Sydow, Civil Appellate Chief; Tania Maestas,
Chief Deputy Attorney General; Hector Balderas, Attorney
General; Office of the Attorney General, Santa Fe, New
Mexico; for Amici Curiae States of California and New
Mexico.
Christopher J. Hajec, Immigration Reform Law Institute,
Washington, D.C.; Lawrence J. Joseph, Washington, D.C.;
for Amicus Curiae United States Representative Andy Barr.
John W. Howard, George R. Wentz Jr., Richard Seamon, and
D. Colton Boyles, Davillier Law Group LLC, Sandpoint,
Idaho, for Amicus Curiae State of Arizona House of
Representatives Federal Relations Committee.
Richard P. Hutchison, Landmark Legal Foundation, Kansas
City, Missouri; Michael J. O’Neill and Matthew C. Forys,
Landmark Legal Foundation, Leesburg, Virginia; for Amici
Curiae Angel Families, Sabine Durden, Don Rosenberg,
Brian McAnn, Judy Zeito, Maureen Mulroney, Maureen
Laquerre, Dennis Bixby, and Advocates for Victims of Illegal
Alien Crimes.
Douglas A. Winthrop, Arnold & Porter Kaye Scholer LLP,
San Francisco, California; Irvin B. Nathan, Robert N. Weiner,
Andrew T. Tutt, Kaitlin Konkel, and Samuel F. Callahan,
Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for
Amici Curiae Former Members of Congress.
Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and
Ashwin P. Phatak, Constitutional Accountability Center,
Washington, D.C., for Amici Curiae Federal Courts Scholars.
10 STATE OF CALIFORNIA V. TRUMP
Steven A. Zalesin, Adeel A. Mangi, and Amir Badat,
Patterson Belknap Webb & Tyler LLP, New York, New
York, for Amici Curiae 75 Religious Organizations.
Harold Hongju Koh, Peter Gruber Rule of Law Clinic, Yale
Law School, New Haven, Connecticut; Kathleen R. Hartnett,
Boies Schiller Flexner LLP, San Francisco, California; Phillip
Spector, Messing & Spector LLP, Baltimore, Maryland; for
Amici Curiae Former United States Government Officials.
Samuel F. Daughety and Suzanne R. Schaeffer, Dentons US
LLP, Washington, D.C.; Joshua O. Rees, Acting Attorney
General, Tohono O’Odham Nation, Sells, Arizona; for
Amicus Brief Tohono O’Odham Nation.
STATE OF CALIFORNIA V. TRUMP 11
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
1
There are companion appeals concerning some of the same issues
in Sierra Club, et. al. v. Trump et. al., Nos. 19-16102 and 19-16300.
Those appeals will be the subject of a separate opinion.
12 STATE OF CALIFORNIA V. TRUMP
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
2
Some form of a physical barrier already exists at the site of some of
the construction projects. In those places, construction would reinforce or
rebuild the existing portions.
3
Subsequently, Congress adopted two joint resolutions terminating
the President’s emergency declaration pursuant to its authority under
50 U.S.C. § 1622(a)(1). The President vetoed each resolution, and
Congress failed to override these vetoes.
STATE OF CALIFORNIA V. TRUMP 13
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.
4
Section 284 authorizes the Secretary of Defense to “provide support
for the counterdrug activities . . . of any other department or agency of the
Federal Government” if it receives a request from “the official who has
responsibility for the counterdrug activities.” 10 U.S.C. §§ 284(a),
284(a)(1)(A). The statute permits, among other things, support for
“[c]onstruction of roads and fences and installation of lighting to block
drug smuggling corridors across international boundaries of the United
States.” Id. § 284(b)(7). DoD’s provision of support for other agencies
pursuant to Section 284 does not require the declaration of a national
emergency.
14 STATE OF CALIFORNIA V. TRUMP
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.
STATE OF CALIFORNIA V. TRUMP 15
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
5
For simplicity, because the transfer authorities are both subject to
Section 8005’s substantive requirements, this opinion refers to these
authorities collectively as Section 8005, as did the district court and the
motions panel. Our holding in this case therefore extends to both the
transfer of funds pursuant to Section 8005 and Section 9002.
16 STATE OF CALIFORNIA V. TRUMP
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 House Committee on Appropriations
both wrote letters to DoD formally disapproving of the
reprogramming action after the fact. Moreover, with respect
to the second transfer, Shanahan expressly directed that the
transfer of funds was to occur “without regard to comity-
6
Section 9002 provides that: “Upon the determination of the
Secretary of Defense that such action is necessary in the national interest,
the Secretary may, with the approval of the Office of Management and
Budget, transfer up to $2,000,000,000 between the appropriations or funds
made available to the Department of Defense in this title: Provided, That
the Secretary shall notify the Congress promptly of each transfer made
pursuant to the authority in this section: Provided further, That the
authority provided in this section is in addition to any other transfer
authority available to the Department of Defense and is subject to the
same terms and conditions as the authority provided in section 8005 of
this Act.”
STATE OF CALIFORNIA V. TRUMP 17
based policies that require prior approval from congressional
committees.”
In the end, Section 8005 was invoked to transfer
$2.5 billion of DoD funds appropriated for other purposes to
fund border wall construction.
II
On February 18, 2019, sixteen states,7 including
California and New Mexico, filed a lawsuit challenging the
Executive Branch’s funding of the border wall. The States
pled theories of violation of the constitutional separation of
powers, violation of the Appropriations Clause, ultra vires
action, violations of the Administrative Procedure Act
(“APA”), and violations of the National Environmental
Policy Act (“NEPA”). The next day, Sierra Club and the
Southern Border Communities Coalition filed a separate
action challenging the same border wall funding.8
7
Specifically, the action was filed by the following states: California,
Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland,
Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, the
Commonwealth of Virginia, and Attorney General Dana Nessel on behalf
of the People of Michigan. The complaint was later amended to add the
following states: Rhode Island, Vermont, Wisconsin, and the
Commonwealth of Massachusetts. State parties are collectively
referenced as “the States.”
8
Both lawsuits named as defendants Donald J. Trump, President of
the United States, Patrick M. Shanahan, former Acting Secretary of
Defense, Kirstjen M. Nielsen, former Secretary of Homeland Security, and
Steven Mnuchin, Secretary of the Treasury in their official capacities,
along with numerous other Executive Branch officials (collectively
referenced as “the Federal Defendants”).
18 STATE OF CALIFORNIA V. TRUMP
The States subsequently filed a motion requesting a
preliminary injunction to enjoin the transfer of funds to
construct a border wall in New Mexico’s El Paso Sector. The
district court held that New Mexico had standing, but it
denied without prejudice the preliminary injunction motion.
The court based part of its reasoning on the fact that it had
already imposed a preliminary injunction in the Sierra Club
action such that the grant of a preliminary injunction in favor
of the States would be duplicative. California subsequently
filed another motion requesting a preliminary injunction to
enjoin the transfer of funds to construct a border wall in
California’s El Centro Sector.
California and New Mexico then moved for partial
summary judgment on their declaratory judgment action as to
the El Centro and El Paso Sectors, and additionally moved for
a permanent injunction to enjoin funding the construction of
these sectors. The Federal Defendants filed a cross-motion
for summary judgment on all claims. The district court
granted California and New Mexico’s motion for partial
summary judgment, and issued declaratory relief, holding the
Section 8005 transfer of funds as to the El Centro and El Paso
sectors unlawful. The district court denied the Federal
Defendants’ motion for summary judgment.
The court also denied California and New Mexico’s
motion for a permanent injunction, this time basing its
reasoning, in part, on the permanent injunction ordered by the
district court in the companion Sierra Club case.9
9
The Supreme Court subsequently granted a stay of the district
court’s permanent injunction in the separate companion case, Trump v.
Sierra Club, 140 S. Ct. 1 (2019) (mem.).
STATE OF CALIFORNIA V. TRUMP 19
The Federal Defendants requested that the district court
certify its order as a final judgment for immediate appeal
pursuant to Fed. R. Civ. P. 54(b). In response, the district
court considered the appropriate factors, made appropriate
findings, and certified the order as final pursuant to Rule
54(b). See Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d
565, 574 (9th Cir. 2018) (listing factors). The Federal
Defendants timely appealed the district court’s judgment, and
the States timely cross-appealed the district court’s denial of
injunctive relief. The district court’s Rule 54(b) certification
was proper; therefore, we have jurisdiction under 28 U.S.C.
§ 1291. See Durfey v. E.I. DuPont De Nemours & Co.,
59 F.3d 121, 124 (9th Cir. 1995) (appeal is proper upon
certification as a final judgment pursuant to Rule 54(b)).
We review the existence of Article III standing de novo.
See California v. U.S. Dep’t of Health & Human Servs.,
941 F.3d 410, 420 (9th Cir. 2019). We review questions of
statutory interpretation de novo. See United States v. Kelly,
874 F.3d 1037, 1046 (9th Cir. 2017).
III
California and New Mexico have Article III standing to
pursue their claims. In order to establish Article III standing,
a plaintiff must have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial
decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992).10 At summary judgment, a plaintiff cannot rest on
10
The Federal Defendants do not challenge California’s and New
Mexico’s Article III standing in these appeals. However, “the court has
an independent obligation to assure that standing exists, regardless of
20 STATE OF CALIFORNIA V. TRUMP
mere allegations, but “must set forth by affidavit or other
evidence specific facts.” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 412 (2013) (internal quotations and citations
omitted). These specific facts, set forth “for purposes of the
summary judgment motion[,] will be taken to be true.”
Lujan, 504 U.S. at 561.
States are “entitled to special solicitude in our standing
analysis.” Massachusetts v. EPA, 549 U.S. 497, 520 (2007).
As a quasi-sovereign, a state “has an interest independent of
and behind the titles of its citizens, in all the earth and air
within its domain.” Georgia v. Tenn. Copper Co., 206 U.S.
230, 237 (1907). Thus, a state may sue to assert its “quasi-
sovereign interests in the health and well-being—both
physical and economic—of its residents in general.” Alfred
L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607
(1982). In addition, “[d]istinct from but related to the general
well-being of its residents, the State has an interest in
securing observance of the terms under which it participates
in the federal system.” Id. at 607–08.
A
Here, California and New Mexico have alleged that the
actions of the Federal Defendants will cause particularized
and concrete injuries in fact to the environment and wildlife
whether it is challenged by any of the parties.” Summers v. Earth Island
Inst., 555 U.S. 488, 499 (2009).
The Federal Defendants challenged New Mexico’s standing before
the district court, but conflated its challenge with the APA “zone of
interest” requirement, which we will discuss later. The district court held
that New Mexico had established Article III standing.
STATE OF CALIFORNIA V. TRUMP 21
of their respective states as well as to their sovereign interests
in enforcing their environmental laws.
1
The El Centro Sector Project 1 involves the Jacumba
Wilderness area. California contends that this area is home
to a large number of sensitive plant and animal species that
are listed as “endangered,” “threatened,” or “rare” under the
federal Endangered Species Act of 1973, 16 U.S.C. § 1531 et
seq., or the California Endangered Species Act, Cal. Fish &
Game Code § 2050 et seq. California alleges that “[t]he
construction of border barriers within or near the Jacumba
Wilderness Area . . . will have significant adverse effects on
environmental resources, including direct and indirect
impacts to endangered or threatened wildlife.” One such
species is the federally and state-endangered peninsular desert
bighorn sheep. Another is the flat-tailed horned lizard, a
California species of special concern.11
11
A species of special concern is “a species, subspecies, or distinct
population of an animal native to California that currently satisfies one or
more of the following (but not necessarily mutually exclusive) criteria: is
extirpated from the State . . .; is listed as Federally-, but not State-,
threatened or endangered; meets the State definition of threatened or
endangered but has not formally been listed; is experiencing, or formerly
experienced, serious (noncyclical) population declines or range retractions
(not reversed) that, if continued or resumed, could qualify it for State
threatened or endangered status; has naturally small populations exhibiting
high susceptibility of to risk from any factor(s), that if realized, could lead
to declines that would qualify it for State threatened or endangered status.”
CAL. DEPT. OF FISH AND WILDLIFE, SPECIES OF SPECIES CONCERN,
https://wildlife.ca.gov/Conservation/SSC#394871324-what-is-the-
relationship-between-sscs-and-the-california-wildlife-action-plan.
22 STATE OF CALIFORNIA V. TRUMP
California has adequately set forth facts and other
evidence, which taken as true, support these allegations for
the purpose of Article III standing. According to the
California Department of Fish and Wildlife 2018 annual
report addressing sheep monitoring in the Jacumba
Wilderness area, “[t]he Jacumba ewe group is dependent on
resources both within the US and Mexico. A fence along the
US-Mexico border would prohibit movement to, and use of,
prelambing and lamb-rearing habitat and summer water
sources,” and the development of energy projects adjacent to
the Jacumba Mountains “combined with disturbance by
border security activities” “will have significant adverse
impacts on this ewe group.” California contends that road
construction; grading and construction of equipment storage
and parking areas; and off road movement of vehicle and
equipment involved in construction will alter the normal
behavior of peninsular bighorn sheep, with the most
significant effect on the endangered peninsular bighorn sheep
being the permanent reduction of its north-south movement
across the U.S.-Mexico border. California further avers that
the effects of a border wall will place additional pressure on
the survival and recovery of the bighorn sheep because the
unimpeded movement of the peninsular bighorn sheep
between the United States and Mexico is important for
increasing and maintaining their genetic diversity. It
contends that as the number of animals that move between
these two countries declines or ceases, the species will begin
to suffer the deleterious effects of inbreeding and reduced
genetic diversity.
Likewise, California asserts that the flat-tailed horned
lizard lives within the project footprint and surrounding area,
and that the extensive trenching, construction of roads, and
staging of materials proposed in the area will harm or kill
STATE OF CALIFORNIA V. TRUMP 23
lizards that are either active or in underground burrows within
the project footprint. It claims that the construction of the
border wall will also greatly increase the predation rate of
lizards adjacent to the wall by providing a perch for birds of
prey and will effectively sever the linkage that currently
exists between populations on both sides of the border.
New Mexico alleges that “[t]he construction of a border
wall in the El Paso Sector along New Mexico’s southern
border will have adverse effects on the State’s environmental
resources, including direct and indirect impacts to endangered
or threatened wildlife.” Such harm “would include the
blocking of wildlife migration, flooding, and habitat loss.” It
notes that the Chihuahuan desert is bisected by the New
Mexico-Mexico border, and this “bootheel” region is the
most biologically diverse desert in the Western Hemisphere,
containing numerous endangered or threatened species. Such
species include the Mexican gray wolf and the jaguar, both of
which coexist in this region along the U.S.-Mexico border.
New Mexico has adequately set forth facts and other
evidence, which taken as true, support these allegations for
the purpose of Article III standing. It contends that the
construction of El Paso Sector Project 1 may have a number
of adverse effects on the Mexican wolf, including injury,
death, harm, and harassment due to construction and related
activities, as well as abandonment of the area for essential
behaviors such as feeding, resting, and mating due to night
lighting and the elimination of food sources and habitat in the
area. Moreover, New Mexico avers that the construction of
El Paso Sector Project 1 would interrupt the movement of the
Mexican wolf across the U.S.-Mexico border, putting
additional pressure on the species’ survival and recovery in
the wild because the unimpeded movement of Mexican
24 STATE OF CALIFORNIA V. TRUMP
wolves between the United States and Mexico is important
for increasing and maintaining their genetic diversity. New
Mexico notes that the documented movement of a radio-
collared Mexican wolf across the border in the areas where
border wall construction is planned demonstrates that
construction will indeed cause such an interruption.
Additionally, the jaguar is considered endangered by the
U.S. Fish and Wildlife Service (“USFWS”). New Mexico
avers that jaguars were formerly widespread in the southwest
United States, but were extirpated by hunting. It claims that,
in recent decades, small numbers of individuals have
dispersed north from breeding populations in northern
Mexico, with some reaching the mountains in southwestern
New Mexico west of Luna County. New Mexico contends
that, if further long-term recolonization of jaguars continues,
areas in Doña Ana and Luna counties include suitable habitat,
but construction of El Paso Sector Project 1 would stop jaguar
movement through the region, potentially limiting
recolonization.
For these reasons, we conclude that California and New
Mexico have each provided sufficient evidence which, if
taken as true, would allow a reasonable fact-finder to
conclude that both states will suffer injuries in fact to their
environmental interests, and in particular, to protected species
within their borders.
2
In addition, California and New Mexico have alleged that
the Federal Defendants’ actions have interfered with their
respective abilities to enforce their environmental laws, thus
interfering with the terms under which they participate in the
STATE OF CALIFORNIA V. TRUMP 25
federal system. They alleged that they have suffered, and will
continue to suffer, injuries to their concrete, quasi-sovereign
interests relating to the preservation of wildlife resources
within their boundaries, including but not limited to wildlife
on state properties.
California and New Mexico have adequately set forth
facts and other evidence, which taken as true, support these
allegations for the purpose of Article III standing. They have
demonstrated that border wall construction injures their
quasi-sovereign interests by preventing them from enforcing
their environmental laws.
Under California law, the California Water Resources
Control Board and nine regional boards establish water
quality objectives and standards, and for construction projects
like El Centro Sector Project 1, where dredge and fill
activities are expected to occur, a regional board must
ordinarily certify compliance with water quality standards.
The record indicates that, absent the Secretary of Homeland
Security’s Section 102(c) IIRIRA waiver of the Clean Water
Act requirements for the project, El Centro Project 1 could
not proceed without completing certification issued by a
regional water board because the El Centro Project 1 will
occur within or near the Pinto Wash and will traverse at least
six ephemeral washes that have been identified as waters of
the United States. The record further indicates that, due to
the nature and location of construction, El Centro Project 1
would also require enrollment in the State Water Board’s
statewide National Pollutant Discharge Elimination General
Permit for Storm Water Discharges Associated with
Construction and Land Disturbance Activities.
26 STATE OF CALIFORNIA V. TRUMP
Likewise, the Section 102(c) waiver of the Clean Air
Act’s requirements undermines California’s enforcement of
its air quality standards for complying with the Clean Air Act
as set forth in California’s State Implementation Plan (“SIP”).
In particular, but for the waiver, in order to move forward
with El Centro Project 1, the Federal Defendants “would be
obligated to comply with Rule 801 [of the SIP], which
requires the development and implementation of a dust-
control plan for construction projects to prevent, reduce, and
mitigate [fine particulate matter] emissions.”
Moreover, the Section 102(c) waiver exempts the Federal
Defendants from complying with laws designed to protect
endangered or threatened species. For instance, it exempts
the Federal Defendants from consulting with the USFWS to
ensure that El Centro Sector Project 1 “is not likely to
jeopardize the continued existence of any endangered species
or threatened species or result in the destruction or adverse
modification of habitat of such species” that are identified as
endangered under California and federal law. 16 U.S.C.
§ 1536(a)(2). As we have noted, California contends that the
El Centro Sector Project 1 is likely to harm federal and
California endangered species such as the peninsular bighorn
sheep and the flat-tailed horned lizard. The presence of these
species led the USFWS, Bureau of Land Management
(“BLM”), California Department of Fish and Wildlife, and
California State Parks to develop and implement the “Flat-
Tailed Horned Lizard Rangewide Management Strategy,”
which imposes restrictions on projects resulting in large-scale
soil disturbances in the project area and prohibits activities
that restrict the lizards’ interchange with lizard populations
across the border. Without the Section 102(c) waiver, this
management strategy would impose certain restrictions and
mitigation measures on the border wall construction projects.
STATE OF CALIFORNIA V. TRUMP 27
Under New Mexico law, the Federal Defendants, absent
the Section 102(c) waiver of the Clean Air Act’s
requirements, would normally be required to comply with
New Mexico’s fugitive dust control rule and High Wind
Fugitive Dust Mitigation Plan that New Mexico adopted
under the Clean Air Act. See N.M. Admin. Code
§§ 20.2.23.109–.112 (mandating that “[n]o person . . . shall
cause or allow visible emissions from fugitive dust sources
that: pose a threat to public health; interfere with public
welfare, including animal or plant injury or damage, visibility
or the reasonable use of property” and “[e]very person subject
to this part shall utilize one or more control measures . . . as
necessary to meet the requirements of [this section]”). The
waiver, however, prevents New Mexico from enforcing these
air quality rules.
New Mexico further contends that, absent the Section
102(c) waiver, the Federal Defendants would also normally
be required to consult with the USFWS to protect species
such as the Mexican wolf that are endangered under both
federal and New Mexico Law. Moreover, the USFWS’s
management plan for the species—the “Mexican Wolf
Recovery Plan-First Revision”—which is designed to
“facilitate the wolf’s revival,” “calls for a minimum of
320 wolves in the United States and 200 in Mexico to meet
recovery goals.” The “binational recovery strategy” of this
plan was developed by the USFWS “in coordination with
federal agencies in Mexico and state, federal, and Tribal
agencies in the United States,” and “[e]ffective recovery
requires participation by multiple parties within Federal,
state, and local governments.” USFWS, MEXICAN WOLF
RECOVERY PLAN-FIRST REVISION at 10, 16 (2017).
Construction undermines this plan because it inhibits the
28 STATE OF CALIFORNIA V. TRUMP
“utilization of habitat” and does not promote “meta-
population connectivity.”
The Section 102(c) waiver likewise prevents New Mexico
from enforcing its Wildlife Corridors Act. Portions of El
Paso Project 1 cross New Mexico State Trust Lands, and New
Mexico contends that the planned pedestrian fencing disrupts
habitat corridors in New Mexico—contravening to the
Wildlife Corridors Act. The Act “requires New Mexico state
agencies to create a ‘wildlife corridors action plan’ to protect
species’ habitat.” New Mexico further avers that New
Mexico’s State Trust Lands in and around the El Paso Project
1 site form an important wildlife corridor for numerous
species such as mule deer, javelina, pronghorn, bighorn
sheep, mountain lion, bobcat, coyote, bats, quail, and other
small game like rabbits.
In sum, we conclude that California and New Mexico
have each provided sufficient evidence which, if taken as
true, would allow a reasonable fact-finder to conclude that
they have both suffered injuries in fact to their sovereign
interests.
B
Turning to the causation requirement, we conclude that
California has alleged environmental and sovereign injuries
“fairly traceable” to the Federal Defendants’ conduct. To
satisfy this requirement, California and New Mexico “need
not show that [Section 8005 is] ‘the very last step in the chain
of causation.’” Ass’n of Pub. Agency Customers v.
Bonneville Power Admin., 733 F.3d 939, 953 (9th Cir. 2013)
(quoting Bennett v. Spear, 520 U.S. 154, 169 (1997)). “A
causal chain does not fail simply because it has several
STATE OF CALIFORNIA V. TRUMP 29
‘links,’ provided those links are ‘not hypothetical or tenuous’
and remain ‘plausib[le].’” Maya v. Centex Corp., 658 F.3d
1060, 1070 (9th Cir. 2011) (quoting Nat’l Audubon Soc., Inc.
v. Davis, 307 F.3d 835, 849 (9th Cir. 2002)).
With respect to most of the environmental injuries,
causation is apparent—for instance, as explained above, the
construction and presence of the border wall will separate the
peninsular bighorn sheep and Mexican wolf populations,
decreasing biodiversity, and harming these species.
Although slightly more attenuated, we also conclude that
the causation requirement is likewise satisfied for the injuries
to California’s and New Mexico’s quasi-sovereign interests.
It makes no difference that the Section 102(c) waiver is most
directly responsible for these injuries because without Section
8005, there is no waiver. That is, without the Section 8005
funding to construct El Centro Sector Project 1 and El Paso
Sector Project 1, there would be no basis to invoke Section
102(c), and therefore, no resulting harm to California’s and
New Mexico’s sovereign interests. Thus, we conclude that
these injuries too are fairly traceable to the Section 8005
transfers of funds.
C
A ruling in California and New Mexico’s favor would
redress their harms. Without the Section 8005 funds, DoD
had inadequate funding to finance construction of these
projects; presumably, without this funding, construction of El
Centro Sector Project 1 and El Paso Sector Project 1 would
cease. This would prevent both the environmental injuries
and the sovereign injuries alleged.
30 STATE OF CALIFORNIA V. TRUMP
Thus, these facts would allow a reasonable fact-finder to
conclude that, if funds are diverted to construct border wall
projects in the El Centro and El Paso Sectors, California and
New Mexico will each suffer environmental and quasi-
sovereign injuries in fact that are fairly traceable to the
challenged conduct of the Federal Defendants and likely to be
redressed by a favorable judicial decision. California and
New Mexico have established the requisite Article III
standing to challenge the Federal Defendants’ actions.
IV
The Federal Defendants argue that California and New
Mexico lack the right to challenge the transfer of funds under
the APA. We disagree.12
The APA provides for judicial review of “final agency
action for which there is no other adequate remedy in a
court.” 5 U.S.C. § 704. Where a statute imposes obligations
on a federal agency but the obligations do not “give rise to a
‘private’ right of action against the federal government[,] [a]n
aggrieved party may pursue its remedy under the APA.” San
Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099
(9th Cir. 2005). California and New Mexico must, however,
establish that they fall within the zone of interests of the
relevant statute to bring an APA claim. See Match-E-Be-
Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
12
The States argue that they have both an equitable ultra vires cause
of action and a cause of action under the APA. Although each of the
claims can proceed separately, see Navajo Nation v. Dep’t of the Interior,
876 F.3d 1144, 1170 (9th Cir. 2017), we do not need to address the ultra
vires claims here. The States seek the same scope of relief under both
causes of action and they prevail under the APA.
STATE OF CALIFORNIA V. TRUMP 31
567 U.S. 209, 224 (2012) (“This Court has long held that a
person suing under the APA must satisfy not only Article
III’s standing requirements, but an additional test: The
interest he asserts must be ‘arguably within the zone of
interests to be protected or regulated by the statute’ that he
says was violated.” (quoting Ass’n of Data Processing Serv.
Org., Inc. v. Camp, 397 U.S. 150, 153 (1970))).
Section 8005 does not confer a private right of action.
Instead, it delegates a narrow slice of Congress’s
appropriation power to DoD to allow the agency to respond
flexibly to unforeseen circumstances implicating the national
interest. In doing so, the statute imposes certain obligations
upon DoD—i.e., DoD cannot invoke Section 8005 unless
there is an unforeseen military requirement and unless
Congress did not previously deny the item requested.
California and New Mexico argue that DoD did not satisfy
these obligations. We agree. Therefore, as aggrieved parties,
California and New Mexico may pursue a remedy under the
APA, so long as they fall within Section 8005’s zone of
interests.
As a threshold matter, Section 8005 is the relevant statute
for the zone of interests test. “Whether a plaintiff’s interest
is ‘arguably . . . protected . . . by the statute’ within the
meaning of the zone-of-interests test is to be determined not
by reference to the overall purpose of the Act in question . . .
but by reference to the particular provision of law upon
which the plaintiff relies.” Bennett, 520 U.S. at 175–76
(emphasis added). Here, for purposes of their APA claim,
California and New Mexico rely on Section 8005’s
limitations. Thus, Section 8005 is the relevant statute for the
zone of interests test.
32 STATE OF CALIFORNIA V. TRUMP
The Supreme Court has clarified that, in the APA context,
the zone of interests test does “not require any ‘indication of
congressional purpose to benefit the would-be plaintiff.’”
Patchak, 567 U.S. at 225 (quoting Clarke v. Sec. Indus. Ass’n,
479 U.S. 388, 399–400 (1987)). It has repeatedly emphasized
that the zone of interests test is “not ‘especially demanding’”
in the APA context. Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 130 (2014) (quoting
Patchak, 567 U.S. at 225). Instead, for APA challenges, a
plaintiff can satisfy the test in either one of two ways: (1) “if
it is among those [who] Congress expressly or directly
indicated were the intended beneficiaries of a statute,” or
(2) “if it is a suitable challenger to enforce the statute—that
is, if its interests are sufficiently congruent with those of the
intended beneficiaries that the litigants are not more likely to
frustrate than to further . . . statutory objectives.” Scheduled
Airlines Traffic Offices, Inc. v. Dep’t of Def., 87 F.3d 1356,
1359 (D.C. Cir. 1996) (alterations in original) (quotations and
citations omitted). “The test forecloses suit only when a
plaintiff’s ‘interests are so marginally related to or
inconsistent with the purposes implicit in the statute that it
cannot reasonably be assumed that Congress intended to
permit the suit.’” Patchak, 567 U.S. at 225 (quoting Clarke,
479 U.S. at 399). “We apply the test in keeping with
Congress’s ‘evident intent’ . . . ‘to make agency action
presumptively reviewable[,]’” and note that “the benefit of
any doubt goes to the plaintiff.” Id. (quoting Clarke,
479 U.S. at 399).
In enacting Section 8005, Congress primarily intended to
benefit itself and its constitutional power to manage
appropriations. The obligations imposed by the section limit
the scope of the authority delegated to DoD, reserving to
Congress in most instances the power to appropriate funds to
STATE OF CALIFORNIA V. TRUMP 33
particular DoD accounts for specific purposes. This
conclusion is reinforced by the legislative history. Congress
first imposed limits on DoD’s transfer authority in order to
“tighten congressional control of the reprogramming
process.” H.R. Rep. No. 93-662, at 16 (1973).
The field of suitable challengers must be construed
broadly in this context because, although Section 8005’s
obligations were intended to protect Congress, restrictions on
congressional standing make it difficult for Congress to
enforce these obligations itself. See Goldwater v. Carter,
617 F.2d 697, 702 (D.C. Cir. 1979), vacated and remanded
on other grounds, 44 U.S. 996 (1979) (explaining that a
member of Congress has standing only if “the alleged
diminution in congressional influence . . . amount[s] to a
disenfranchisement, a complete nullification or withdrawal of
a voting opportunity”). Indeed, the House of Representatives
filed its own lawsuit in the U.S. District Court for the District
of Columbia challenging this same transfer of funds, but the
court held that the House lacked standing to sue. See U.S.
House of Reps. v. Mnuchin, 379 F. Supp. 3d 8, 11 (D.D.C.
2019) (“And while the Constitution bestows upon Members
of the House many powers, it does not grant them standing to
hale the Executive Branch into court claiming a dilution of
Congress’s legislative authority.”).
California and New Mexico are suitable challengers
because their interests are congruent with those of Congress
and are not “inconsistent with the purposes implicit in the
statute.” Patchak, 567 U.S. at 225. First, this challenge
actively furthers Congress’s intent to “tighten congressional
control of the reprogramming process.” H.R. Rep. No. 93-
662, at 16 (1973). In particular, this challenge furthers this
intent because, even though Section 8005 does not require
34 STATE OF CALIFORNIA V. TRUMP
formal congressional approval to reprogram funds, the
congressional committees expressly disapproved of DoD’s
use of the authority here.
Second, California and New Mexico’s challenge strives
to reinforce the same structural constitutional principle
Congress sought to protect through Section 8005:
congressional power over appropriations. See U.S. Const. art.
I, § 9, cl. 7 (“No Money shall be drawn from the Treasury,
but in Consequence of Appropriations made by Law . . . .”);
see also Office of Pers. Mgmt. v. Richmond, 496 U.S. 414,
424 (1990) (explaining that this “straightforward and explicit
command” “‘means simply that no money can be paid out of
the Treasury unless it has been appropriated by an act of
Congress’” (quoting Cincinnati Soap Co. v. United States,
301 U.S. 308, 321 (1937))). California and New Mexico’s
interest in reinforcing these structural separation of powers
principles is unique but aligned with that of Congress because
just as those principles are intended “to protect each branch
of [the federal] government from incursion by the others,” the
“allocation of powers in our federal system [also] preserves
the integrity, dignity, and residual sovereignty of the States,”
because “[f]ederalism has more than one dynamic.” Bond v.
United States, 564 U.S. 211, 221–22 (2011). This interest
applies with particular force here because the use of Section
8005 here impacts California’s and New Mexico’s ability to
enforce their state environmental laws. See Massachusetts v.
EPA, 549 U.S. at 518–19 (“‘[T]he State has an interest
independent of and behind the titles of its citizens, in all the
earth and air within its domain. It has the last word as to
whether its mountains shall be stripped of their forests and its
inhabitants shall breathe pure air.’” (quoting Tenn. Copper
Co., 206 U.S. at 237)); see also Maine v. Taylor, 477 U.S.
131, 151 (1986) (“[A state] retains broad regulatory authority
STATE OF CALIFORNIA V. TRUMP 35
to protect the health and safety of its citizens and the integrity
of its natural resources.”). Here, the use of Section 8005
allows the government to invoke Section 102(c) of IIRIRA to
waive state environmental law requirements for purposes of
building the border wall.13 Thus, Section 8005’s limitations
protect California’s and New Mexico’s sovereign interests,
just as they protect Congress’s constitutional interests,
because they ensure that, ordinarily, Executive action cannot
override these interests without congressional approval and
funding. Therefore, just as Section 8005’s limitations serve
Congress to preserve the “equilibrium the Constitution sought
to establish—so that ‘a gradual concentration of the several
powers in the same department,’ can effectively be resisted,”
they likewise serve California and New Mexico as well.
Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J.,
dissenting) (quoting Federalist No. 51, p. 321 (J. Madison)).
Moreover, that the states regularly benefit from DoD’s
use of Section 8005 reinforces that California and New
Mexico’s interests are not “so marginally related” that “it
can[] reasonably be assumed that Congress intended to permit
suit.” Patchak, 567 U.S. at 225. For instance, in 2004 DoD
invoked Section 8005 to transfer funds to pay for storm
damages incurred by airforce bases across Florida during
Hurricane Charley. Office of the Under Sec’y of Def.
(Comptroller), FY 04-37 PA, Reprogramming Action (2004).
Likewise, in 2008 DoD invoked Section 8005 to finance costs
incurred by the National Guard in responding to Hurricane
13
As we explained with respect to Article III standing, California and
New Mexico have provided sufficient evidence by declaration to establish
that they have suffered cognizable injuries to their sovereign interests and
that this injury is fairly traceable to the Federal Defendants’ use of Section
8005.
36 STATE OF CALIFORNIA V. TRUMP
Gustav in Louisiana, Texas, Mississippi, and Alabama, as
well as operations related to Hurricane Ike in Texas and
Louisiana. Office of the Under Sec’y of Def. (Comptroller),
FY 08-43 PA, Reprogramming Action (2008). The historical
use of Section 8005 supports that states are “reasonable” and
“predictable” challengers to its use, and this instance is no
anomaly. Patchak, 567 U.S. at 227.
For these reasons, California and New Mexico easily fall
within the zone of interests of Section 8005 and are suitable
challengers to enforce its obligations. We therefore affirm
the grant of summary judgment to the States. To conclude
otherwise would effectively hold that no entity could fall
within Section 8005’s zone of interests, and that no agency
action taken pursuant to Section 8005 could ever be
challenged under the APA. Such a conclusion is not tenable,
and a result Congress surely did not intend.
V
The district court correctly held that Section 8005 did not
authorize DoD’s budgetary transfer to fund construction of
the El Paso and El Centro Sectors.
In construing a statute, we begin, as always, with the
language of the statute. UMG Recordings, Inc. v. Shelter
Capital Partners LLC, 718 F.3d 1006, 1026 (9th Cir. 2013).
“When terms are not defined within a statute, they are
accorded their plain and ordinary meaning, which can be
deduced through reference sources such as general usage
dictionaries.” Id. Of course, “[s]tatutory language must
always be read in its proper context,” id. (quotations and
citation omitted), as courts must look to the “design of the
statute as a whole and to its object and policy,” id. (quotations
STATE OF CALIFORNIA V. TRUMP 37
and citation omitted), and “the words of a statute must be read
in their context and with a view to their place in the overall
statutory scheme,” Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743, 1748 (2019) (quotations and citation
omitted).
Section 8005’s transfer authority cannot be invoked
“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.” Two
limitations are important to our analysis: (1) that the transfer
must be “based on unforeseen military requirements,” and
(2) that the transfer authority cannot be invoked if the “item
for which funds are requested ha[d] been denied by the
Congress.” We conclude that the district court correctly
determined that the border wall was not an unforeseen
military requirement, that funding for the wall had been
denied by Congress, and therefore, that the transfer authority
granted by Section 8005 was not permissibly invoked.
A
Section 8005 authorizes the transfer of funds only in
response to an “unforeseen military requirement.” The
district court properly concluded that the need for a border
wall was not unforeseen. We also conclude that the need was
unrelated to a military requirement.
1
Section 8005 does not define “unforeseen.” Therefore,
we start by considering the ordinary meaning of the word.
Something is unforeseen when it is “not anticipated or
38 STATE OF CALIFORNIA V. TRUMP
expected.” Unforeseen, MERRIAM-WEBSTER ONLINE
DICTIONARY (2020). By contrast, to foresee is “to see
(something, such as a development) beforehand.” Foresee,
MERRIAM-WEBSTER ONLINE DICTIONARY (2020) (emphasis
added). Prior use of this authority confirms this meaning.
Previously, DoD has invoked its Section 8005 authority to
transfer funds to repair hurricane and typhoon damage to
military bases—natural disasters that inflict damage that may
not be anticipated or expected ahead of time. We conclude
that an unforeseen requirement is one that DoD did not
anticipate or expect.
Neither the problem, nor the President’s purported
solution, was unanticipated or unexpected here. The
smuggling of drugs into the United States at the southern
border is a longstanding problem. U.S. CUSTOMS AND
B ORDER P ATROL , B ORDER P ATROL H I STORY ,
https://www.cbp.gov/border-security/along-us-borders/history
(last visited June 16, 2020) (“By [the early 1960’s]
the business of alien smuggling began to involve drug
smuggling also. The Border Patrol assisted other agencies in
intercepting illegal drugs from Mexico.”); United States v.
Flores-Montano, 541 U.S. 149, 153 (2004) (“That interest in
protecting the borders is illustrated in this case by the
evidence that smugglers frequently attempt to penetrate our
borders with contraband secreted in their automobiles’ fuel
tank. Over the past 5 1/2 fiscal years, there have been
18,788 vehicle drug seizures at the southern California
ports of entry.”). Indeed, the federal Drug Enforcement
Administration was created over four decades ago in 1974 in
large part to address the smuggling of illegal drugs into the
United States. See Reorganization Plan No. 2 of 1973, 87
Stat. 1091, as amended Pub. L. 93-253, §1, 88 Stat. 50
(1974).
STATE OF CALIFORNIA V. TRUMP 39
Congress’s joint resolution terminating the President’s
declaration of a national emergency only reinforces this
point: there was no unanticipated crisis at the border.
Nothing prevented Congress from funding solutions to this
problem through the ordinary appropriations process—
Congress simply chose not to fund this particular solution.
The long, well-documented history of the President’s
efforts to build a border wall demonstrates that he considered
the wall to be a priority from the earliest days of his
campaign in 2015. See, e.g., Here’s Donald Trump’s
Presidential Announcement Speech, TIME (June 16, 2015) (“I
would build a great wall . . . I will build a great, great wall on
our southern border.”); Transcript of Donald Trump’s
Immigration Speech, NEW YORK TIMES (Sept. 1, 2016) (“On
day one, we will begin working on an impenetrable, physical,
tall, power, beautiful southern border wall.”). Moreover, his
repeated pronouncements on the subject made clear that
federal agencies like DoD might be tasked with the wall’s
funding and construction. Congress’s repeated denials of
funding only drew national attention to the issue and put
agencies on notice that they might be asked to finance
construction. See Securing America’s Future Act of 2018,
H.R. 4760, 115th Cong. § 1111 (2018); Border Security and
Immigration Reform Act of 2018, H.R. 6136, 115th Cong.
§ 5101 (2018); American Border Act, H.R. 6415, 115th
Cong. § 4101 (2018); Fund and Complete the Border Wall
Act, H.R. 6657, 115th Cong. § 2 (2018); Build the Wall,
Enforce the Law Act of 2018, H.R. 7059, 115th Cong. § 9
(2018); 50 Votes for the Wall Act, H.R. 7073, 115th Cong.
§ 2 (2018); WALL Act of 2018, S. 3713, 115th Cong. § 2
(2018). In short, neither the conditions at the border nor the
President’s position that a wall was needed to address those
conditions was unanticipated or unexpected by DoD.
40 STATE OF CALIFORNIA V. TRUMP
The Federal Defendants’ arguments to the contrary are
unpersuasive. They assert that “an agency’s request” “will be
foreseen” only “when it is received by DoD in time to include
in the submission to Congress [for the yearly budget],” and
that therefore, the transfer at issue here complied with the text
of the statute. (emphasis added). There are two problems
with the Federal Defendants’ position.
First, Section 8005 permits transfers based only on
unforeseen military requirements—not unforeseen budgetary
requests. A requirement that gives rise to a funding request
is distinct from the request itself. Here, the requirement that
gave rise to the Section 284 requests is a border wall. Thus,
to invoke the statute, the need for a border wall must have
been unforeseen. To hold otherwise—i.e., to conclude that
transfers are permitted under Section 8005 if they are based
on unforeseen budgetary requests—would undermine the
narrowness of the statute and potentially encourage DoD and
other agencies to submit budgetary requests after DoD has
submitted its final budget to Congress in order to skirt the
congressional appropriations process. This result is
inconsistent with the purpose of Section 8005: to “tighten
congressional control of the reprogramming process.” H.R.
Rep. No. 93-662, at 16 (1973). If this interpretation
prevailed, the exception would swallow the rule and
undermine Congress’s constitutional appropriations power.
Second, even if we were to accept the government’s
definition of “requirement” as equivalent to “request,” DHS’s
specific Section 284 requests were both anticipated and
expected, even within the confines of the appropriations
context. Nearly six months before the enactment of the 2019
DoD Appropriations Act, the President wrote the following
in a memorandum to the Secretary of Defense, the Attorney
STATE OF CALIFORNIA V. TRUMP 41
General, and the Secretary of Homeland Security: “The
Secretary of Defense shall support the Department of
Homeland Security in securing the southern border and taking
other necessary actions to stop the flow of deadly drugs and
other contraband . . . into this country.” Further, in a
response to a request for information from the House Armed
Services Committee, DoD wrote that the “DoD Comptroller
with[held] over 84% ($947 million) of [counter-drug]
appropriated funds for distribution until the 4th Quarter for
possible use in supporting Southwest Border construction last
fiscal year.” As explained by the Staff Director of the House
Armed Services Committee, this “suggests that DoD was
considering using its counter-drug authority under 10 U.S.C.
§ 284 for southern border construction in early 2018.”
Further still, because Section 284 only allows DoD to provide
support that is requested by other agencies, DoD’s retention
of funds suggests it likely anticipated such a request. See
10 U.S.C. § 284(a)(1) (“The Secretary of Defense may
provide support . . . if . . . such support is requested.”).
The Federal Defendants also unpersuasively equate
“foreseen” with “known.” “[T]o know” means “to perceive
directly: have direct cognition of.” Know, MERRIAM-
WEBSTER ONLINE DICTIONARY (2020). This interpretation
effectively eliminates any element of anticipation or
expectation. “‘Congress’ choice of words is presumed to be
deliberate’ and deserving of judicial respect.” SAS Inst., Inc.
v. Iancu, 138 S. Ct. 1348, 1355 (2018) (quoting Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013)). Thus,
we must presume that Congress’s use of the word
“unforeseen” is deliberate. Congress could have easily
specified that a transfer is permitted only when based on
“unknown” requirements, but it did not. Instead, Congress
specified that Section 8005 permits a transfer only where a
42 STATE OF CALIFORNIA V. TRUMP
requirement was unforeseen—i.e., unanticipated or
unexpected. We decline to read into the text a lower standard
based on actual knowledge.14
In sum, both the requirement to build a wall on the
southern border as well as the DHS request to DoD to build
that wall were anticipated and expected. Thus, neither was
“unforeseen” within the meaning of Section 8005.
2
Section 8005 not only mandates that the requirement be
unforeseen, but also that it be a military requirement. Under
relevant definitions, the construction of El Centro and El Paso
projects does not satisfy any definition of a “military
requirement.”
The 2019 Appropriations Act does not define “military.”
Therefore, we start by considering its ordinary meaning: “of
or relating to soldiers, arms, or war.” Military, MERRIAM-
WEBSTER ONLINE DICTIONARY (2020). The border wall
construction projects here plainly fail to satisfy this definition
because the Federal Defendants have argued neither that the
border wall construction projects are related to the use of
soldiers or arms, nor that there is a war on the southern
border.
14
Indeed, in DoD parlance, the possibility that border funding from
the DoD budget might be requested was a “known unknown,” as opposed
to “unforeseeable,” which would be an “unknown unknown,” a category
which former Secretary of Defense Rumsfeld described as including a
“genuine surprise.” DONALD RUMSFELD, KNOWN AND UNKNOWN: A
MEMOIR, p. xiv. (2011).
STATE OF CALIFORNIA V. TRUMP 43
The administrative record underscores this point, and
supports that the border wall construction projects are not
military ones. The record demonstrates that the diverted
funding is primarily intended to support DHS—a civilian
agency entirely separate from any branch of the armed forces.
The Assistant Secretary of Defense stated that the funds were
transferred “to provide assistance to DHS to construct fencing
to block drug-smuggling corridors in three project areas along
the southern border of the United States.” He also explained
that the purpose of the transfer was to “support DHS’s efforts
to secure the southern border.” By contrast, the transfer of
funds for border wall construction does little to assist DoD
with any of its operations. Even to the extent it might, it does
so only insofar as it helps DoD assist DHS: as summarized by
the Chairman of the Joint Chiefs of Staff and DHS, border
wall projects “allow DoD to provide support to DHS more
efficiently and effectively.” (emphasis added). In short, the
fact that construction is intended to support a civilian agency,
as opposed to DoD itself or any branch of the armed forces,
emphasizes that the transfer fails to meet the plain meaning
of “military.”
The border wall construction projects do not even satisfy
a statutory definition specifically invoked by the Federal
Defendants. See also WILLIAM N. ESKRIDGE ET AL.,
LEGISLATION AND STATUTORY INTERPRETATION 273 (2d ed.
2006) (“A word or clause that is ambiguous at first glance
might be clarified if ‘the same terminology is used elsewhere
in a context that makes its meaning clear’” and such
coherence arguments may be invoked “across as well as
within statutes” (quoting United Savings Ass’n of Tex. v.
Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371
(1988))).
44 STATE OF CALIFORNIA V. TRUMP
The Federal Defendants have also invoked 10 U.S.C.
§ 2808 (“Section 2808”) to fund other border wall
construction projects on the southern border. Section 2808
incorporates the definition of “military construction”
provided by 10 U.S.C. § 2801(a): it defines “military
construction” as construction associated with a “military
installation” or “defense access road.” Section 2801(c)(4)
further defines “military installation” as “a base, camp, post,
station, yard, center, or other activity under the jurisdiction of
the Secretary of a military department.”15
The border wall construction projects at issue in this
appeal are not carried out with respect to a “military
installation.” The projects themselves are not a base, camp,
station, yard, or center, and unlike the projects considered by
the Federal Defendants’ related Section 2808 appeal, the
15
To be sure, Section 8005 states that it applies only to transfers
between appropriations for “military functions,” as opposed to the phrase
“military construction” used in Section 2808. However, the statutes
address similar subject matter, and it is of some significance that the
Federal Defendants have invoked Section 2808 for functionally identical
projects, claiming that such projects constitute “military construction”
within the meaning of that statute, while also asserting that such projects
satisfy the term “military” within the meaning of Section 8005. And, as
we know, “‘statutes addressing the same subject matter’ should be
construed in pari materia.” Fed. Trade Comm’n v. AMG Capital Mgmt.,
LLC, 910 F.3d 417, 433 n.2 (9th Cir. 2018) (O’Scannlain, J., concurring)
(quoting Wachovia Bank v. Schmidt, 546 U.S. 303, 315 (2006)). Under
that doctrine, related statutes should “be construed as if they were one
law.” Erlenbaugh v. United States, 409 U.S. 239, 243 (1972) (quotations
and citation omitted). Further, even apart from in pari materia
considerations, the Supreme Court “has previously compared
nonanalogous statutes to aid its interpretation of them.” Nat’l Fed’n of
Fed. Emps., Local 1309 v. Dep’t of Interior, 526 U.S. 86, 105 (1999)
(O’Connor, J., dissenting) (citing Overstreet v. North Shore Corp.,
318 U.S. 125, 131–32 (1943)).
STATE OF CALIFORNIA V. TRUMP 45
projects at issue in this appeal have not been brought under
military jurisdiction. Moreover, there are no military
installations in the El Centro or El Paso project areas, nor any
claim of a requirement for a defense access road; instead, as
we have noted, the projects affect open wilderness areas—the
El Centro Sector project involves the Jacumba Wilderness
areas, and the El Paso Sector project involves the Chihuahuan
desert. The fact that the construction projects fail to meet
Section 2808’s definition of military construction supports
that these projects fail to satisfy any meaningful definition of
“military.”
Even if we were to afford some consideration to the
subchapter title for Section 284 authorizing “Military Support
for Civilian Law Enforcement Agencies,” there is a
distinction to be drawn between “military support,” and what
the statute requires: a “military requirement.” Requirement
ordinarily means “something wanted or needed,” or
“something essential to the existence or occurrence of
something else.” Requirement, MERRIAM-WEBSTER ONLINE
DICTIONARY (2020). The border wall construction projects
are not something needed or essential to the armed forces,
soldiers, arms, or any sort of war effort. Rather, as explained
above, they are designed to “provide assistance” and
“support” to DHS, a civilian agency. While providing such
support may be appropriate under Section 284, a request for
this support without connection to any military function fails
to rise to the level of a military requirement for purposes of
Section 8005. Simply because a civilian agency requests
support in furtherance of a particular objective, even when
such support is authorized by statute, does not mean that the
military itself requires that objective.
46 STATE OF CALIFORNIA V. TRUMP
To conclude that supporting projects unconnected to any
military purpose or installation satisfies the meaning of
“military requirement” would effectively write the term out
of Section 8005. Therefore, we conclude that the transfers at
issue here do not satisfy Section 8005’s military purpose
requirement.
B
In addition, Section 8005 authorizes the transfer of funds
only when “the item for which funds are requested has [not]
been denied by the Congress.” The question here is whether
by declining to provide sufficient funding for the border wall,
Congress denied the item for which funds were requested
within the meaning of the statute.
As we have explained, Congress declined to fund the
border wall numerous times in a variety of ways. Congress
failed to pass seven different bills, see supra at 37–38, that
were proposed specifically to fund the wall. Congress also
refused to appropriate the $5.7 billion requested by the White
House in the CAA; instead, Congress appropriated
$1.375 billion, less than a quarter of the funds requested, for
“the construction of primary pedestrian fencing . . . in the Rio
Grande Valley Sector.” CAA at § 230(a)(1).
The Federal Defendants assert that the Section 8005
transfer would be invalid only if Congress had denied a
Section 284 budgetary line item request to fund the border
wall. But “[i]n common usage, a general denial of something
requested can, and in this case does, encompass more specific
or narrower forms of that request.” Sierra Club v. Trump,
929 F.3d 670, 691 (9th Cir. 2019). Here, Congress refused to
provide the funding requested by the President for border
STATE OF CALIFORNIA V. TRUMP 47
wall construction: a general denial. This general denial
necessarily encompasses narrower forms of denial—such as
the denial of a Section 284 budgetary line item request. We
decline to impose upon Congress an obligation to deny every
possible source of funding when it refuses to fund a particular
project—surely when Congress withheld additional funding
for the border wall, it intended to withhold additional funding
for the wall, regardless of its source. “No” means no.
To hold that Congress did not previously deny the
Executive Branch’s request for funding to construct a border
wall would be to “find secreted in the interstices of legislation
the very grant of power which Congress consciously
withheld.” Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
Regardless of how specific a denial may be in some
circumstances, Congress’s broad and resounding denial
resulting in a 35-day partial government shutdown must
constitute a previous denial for purposes of Section 8005.
This history precludes the use of Section 8005’s transfer
authority.
C
In sum, Section 8005 did not authorize the transfer of
funds challenged by California and New Mexico. Absent
such statutory authority, the Executive Branch lacked
independent constitutional authority to transfer the funds at
issue here. See City and Cty. of San Francisco v. Trump,
897 F.3d 1225, 1233–34 (9th Cir. 2018) (“[W]hen it comes to
spending, the President has none of ‘his own constitutional
powers’ to ‘rely’ upon.” (quoting Youngstown, 343 U.S.
at 637 (Jackson, J., concurring))). Therefore, the transfer of
48 STATE OF CALIFORNIA V. TRUMP
funds at issue here was unlawful. We affirm the district
court’s declaratory judgment to California and New Mexico.
VI
Finally, we consider the district court’s denial of
California and New Mexico’s request for injunctive relief, a
decision we review for an abuse of discretion. See Midgett v.
Tri-Cty. Metro. Transp. Dist. of Or., 254 F.3d 846, 849 (9th
Cir. 2001). The district court denied the States’ request for a
permanent injunction primarily because the relief sought was
duplicative of the relief the district court had already granted
in the Sierra Club matter. That decision, which is the only
one before us in this appeal, was certainly not an abuse of
discretion. As we have noted, however, subsequent to the
district court’s decision, the Supreme Court stayed the Sierra
Club permanent injunction. See Sierra Club, 140 S. Ct. at 1.
Nevertheless, given the totality of the considerations at
issue in this case, we continue to see no abuse of discretion in
the district court’s order, even though at this moment, the
injunction in Sierra Club no longer affords the States
protection. We emphasize, however, that depending on
further developments in these cases, the States are free to
seek further remedies in the district court or this Court.
VII
In sum, we affirm the district court. We conclude that
California and New Mexico have Article III standing to file
their claims, that California and New Mexico are sufficiently
within Section 8005’s zone of interests to assert an APA
claim, and that the Federal Defendants violated Section 8005
in transferring DoD appropriations to fund the El Centro and
STATE OF CALIFORNIA V. TRUMP 49
El Paso Sectors of the proposed border wall. We also decline
to reverse the district court’s decision against imposing a
permanent injunction, without prejudice to renewal. Given
our resolution of this case founded upon the violations of
Section 8005, we need not—and do not—reach the merits of
any other theory asserted by the States, nor reach any other
issues presented by the parties.
AFFIRMED.
COLLINS, Circuit Judge, dissenting:
In the judgment under review, the district court granted
summary judgment and declaratory relief to California and
New Mexico on their claims challenging the Acting Secretary
of Defense’s invocation of § 8005 and § 9002 of the
Department of Defense Appropriations Act, 2019 (“DoD
Appropriations Act”), Pub. L. No. 115-245, Div. A, 132 Stat.
2981, 2999, 3042 (2018), to transfer $2.5 billion in funds that
Congress had appropriated for other purposes into a different
Department of Defense (“DoD”) appropriation that could
then be used by DoD for construction of border fencing and
accompanying roads and lighting. The States allege that the
transfers were not authorized under § 8005 and § 9002 and
that, as a result of the construction activities made possible by
the unlawful transfers, the States have suffered injuries to
their sovereign and environmental interests. The majority
concludes that the States have Article III standing; that they
have a cause of action to challenge the transfers under the
Administrative Procedure Act (“APA”); that the transfers
were unlawful; and that the district court properly determined
that the States are not entitled to any relief beyond a
50 STATE OF CALIFORNIA V. TRUMP
declaratory judgment. I agree that at least California has
established Article III standing, but in my view the States
lack any cause of action to challenge the transfers, under the
APA or otherwise. And even assuming that they had a cause
of action, I conclude that the transfers were lawful.
Accordingly, I would reverse the district court’s partial
judgment for the States and remand for entry of partial
summary judgment in favor of the Defendants. I respectfully
dissent.
I
The parties’ dispute over DoD’s funding transfers comes
to us against the backdrop of a complex statutory framework
and an equally complicated procedural history. Before
turning to the merits, I will briefly review both that
framework and that history.
A
Upon request from another federal department, the
Secretary of Defense is authorized to “provide support for the
counterdrug activities” of that department by undertaking the
“[c]onstruction of roads and fences and installation of
lighting to block drug smuggling corridors across
international boundaries of the United States.” 10 U.S.C.
§ 284(a), (b)(7). On February 25, 2019, the Department of
Homeland Security (“DHS”) made a formal request to DoD
for such assistance. Noting that its counterdrug activities
included the construction of border infrastructure, see Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, § 102(a),
110 Stat. 3009-546, 3009-554 (1996) (codified as amended as
a note to 8 U.S.C. § 1103), DHS requested that “DoD,
STATE OF CALIFORNIA V. TRUMP 51
pursuant to its authority under 10 U.S.C. § 284(b)(7), assist
with the construction of fences[,] roads, and lighting” in
several specified “Project Areas” in order “to block drug-
smuggling corridors across the international boundary
between the United States and Mexico.”
On March 25, 2019, the Acting Defense Secretary
invoked § 284 and approved the provision of support for,
inter alia, DHS’s “El Paso Sector Project 1,” which would
involve DoD construction of border fencing, roads, and
lighting in Luna and Doña Ana Counties in New Mexico.
Thereafter, the Secretary of Homeland Security invoked his
authority under § 102(c) of IIRIRA to waive a variety of
federal environmental statutes with respect to the planned
construction of border infrastructure in the El Paso Sector, as
well as “all . . . state . . . laws, regulations, and legal
requirements of, deriving from, or related to the subject of,”
those federal laws. See 84 Fed. Reg. 17185, 17187 (Apr. 24,
2019).
Subsequently, on May 9, 2019, the Acting Defense
Secretary again invoked § 284, this time to approve DoD’s
construction of similar border infrastructure to support, inter
alia, DHS’s “El Centro Sector Project 1” in Imperial County,
California. Less than a week later, the Secretary of
Homeland Security again invoked his authority under IIRIRA
§ 102(c) to waive federal and state environmental laws, this
time with respect to the construction in the relevant section of
the El Centro Sector. See 84 Fed. Reg. 21800, 21801 (May
15, 2019).
Although § 284 authorized the Acting Defense Secretary
to provide this support, there were insufficient funds in the
relevant DoD appropriation to do so. Specifically, for Fiscal
52 STATE OF CALIFORNIA V. TRUMP
Year 2019, Congress had appropriated for “Drug Interdiction
and Counter-Drug Activities, Defense” a total of only
$670,271,000 that could be used for counter-drug support.
See DoD Appropriations Act, Title VI, 132 Stat. at 2997
(appropriating, under Title governing “Other Department of
Defense Programs,” a total of “$881,525,000, of which
$517,171,000 shall be for counter-narcotics support”); id.,
Title IX, 132 Stat. at 3042 (appropriating $153,100,000 under
the Title governing “Overseas Contingency Operations”).
Accordingly, to support the El Paso Sector Project 1, the
Acting Secretary on March 25, 2019 invoked his authority to
transfer appropriations under § 8005 of the DoD
Appropriations Act and ordered the transfer of $1 billion
from “excess Army military personnel funds” into the “Drug
Interdiction and Counter-Drug Activities, Defense”
appropriation. That transfer was accomplished by moving
$993,627,000 from the “Military Personnel, Army”
appropriation and $6,373,000 from the “Reserve Personnel,
Army” appropriation.
To support the El Centro Sector Project 1, the Acting
Secretary on May 9, 2019 again invoked his transfer authority
to move an additional $1.5 billion into the “Drug Interdiction
and Counter-Drug Activities, Defense” appropriation.
Pursuant to § 8005 of the DoD Appropriations Act, DoD
transferred a total of $818,465,000 from 12 different DoD
appropriations into the “Drug Interdiction and Counter-Drug
Activities, Defense” appropriation. Invoking the Secretary’s
distinct but comparable authority under § 9002 to transfer
funds appropriated under the separate Title governing
“Overseas Contingency Operations,” DoD transferred
$604,000,000 from the “Afghanistan Security Forces Fund”
appropriation and $77,535,000 from the “Operation and
Maintenance, Defense-Wide” appropriation into the “Drug
STATE OF CALIFORNIA V. TRUMP 53
Interdiction and Counter-Drug Activities, Defense”
appropriation.
B
The complex procedural context of this case involves two
parallel lawsuits and four appeals to this court, and it has
already produced one published Ninth Circuit opinion that
was promptly displaced by the Supreme Court.
1
California and New Mexico, joined by several other
States, filed this action in the district court against the Acting
Defense Secretary, DoD, and a variety of other federal
officers and agencies. In their March 13, 2019 First
Amended Complaint, they sought to challenge, inter alia, any
transfer of funds by the Acting Secretary under § 8005 or
§ 9002. The Sierra Club and the Southern Border
Communities Coalition (“SBCC”) filed a similar action, and
their March 18, 2019 First Amended Complaint also sought
to challenge any such transfers. Both sets of plaintiffs moved
for preliminary injunctions in early April 2019. The portion
of the States’ motion that was directed at the § 8005 transfers
was asserted only on behalf of New Mexico and only with
respect to the construction on New Mexico’s border (i.e., El
Paso Sector Project 1). The Sierra Club motion was likewise
directed at El Paso Sector Project 1, but it also challenged two
other projects in Arizona (“Yuma Sector Projects 1 and 2”).
After concluding that the Sierra Club and SBCC were
likely to prevail on their claims that the transfers under
§ 8005 were unlawful and that these organizational plaintiffs
had demonstrated a “likelihood of irreparable harm to their
54 STATE OF CALIFORNIA V. TRUMP
members’ aesthetic and recreational interests,” the district
court on May 24, 2019 granted a preliminary injunction
enjoining Defendants from using transferred funds for “Yuma
Sector Project 1 and El Paso Sector Project 1.”1 In a
companion order, however, the district court denied
preliminary injunctive relief to the States. Although the court
held that New Mexico was likely to succeed on its claim that
the transfers under § 8005 were unlawful, the court concluded
that, in light of the grant of a preliminary injunction against
El Paso Sector Project 1 to the Sierra Club and SBCC, New
Mexico would not suffer irreparable harm from the denial of
its duplicative request for such relief. On May 29, 2019,
Defendants appealed the preliminary injunction in favor of
the Sierra Club and SBCC, and after the district court refused
to stay that injunction, Defendants moved in this court for an
emergency stay on June 3, 2019. New Mexico did not appeal
the district court’s denial of its duplicative request for a
preliminary injunction.
2
While the Defendants’ emergency stay request was being
briefed and considered in this court, California and New
Mexico (but not the other States) moved for partial summary
judgment on June 12, 2019. The motion was limited to the
issue of whether the transfers under § 8005 and § 9002 were
lawful, and it requested corresponding declaratory relief, as
well as a permanent injunction against the use of transferred
funds for El Paso Sector Project 1 and El Centro Sector
1
By the time the district court ruled, DoD had decided not to use
funds transferred under § 8005 for any construction in Yuma Sector
Project 2, and so the request for a preliminary injunction as to that project
was moot.
STATE OF CALIFORNIA V. TRUMP 55
Project 1. The Sierra Club and SBCC filed a comparable
summary judgment motion that same day, directed at those
two projects, as well as at Yuma Sector Project 1 and three
other Arizona projects (“Tucson Projects 1, 2, and 3”).
Defendants filed cross-motions for summary judgment on the
legality of the transfers under § 8005 and § 9002 with respect
to the corresponding projects at issue in each case.
On June 28, 2019, the district court granted partial
summary judgment and declaratory relief to both sets of
plaintiffs, concluding that the transfers under § 8005 and
§ 9002 were unlawful. The court granted permanent
injunctive relief to the Sierra Club and SBCC against all six
projects, but it denied any such relief to California and New
Mexico. The district court concluded that California and
New Mexico had failed to prove a threat of future
demonstrable environmental harm. The court expressed
doubts about the States’ alternative theory that they had
demonstrated injury to their sovereign interests, but the court
ultimately concluded that it did not need to resolve that issue.
As before, the district court instead held that California and
New Mexico would not suffer any irreparable harm in light
of the duplicative relief granted to the Sierra Club and SBCC.
The district court denied Defendants’ cross-motions for
summary judgment in both cases. Invoking its authority
under Federal Rule of Civil Procedure 54(b), the district court
entered partial judgments in favor of, respectively, the Sierra
Club and SBCC, and California and New Mexico. The
district court denied Defendants’ request to stay the
permanent injunction pending appeal.
56 STATE OF CALIFORNIA V. TRUMP
3
On June 29, 2019, Defendants timely appealed in both
cases and asked this court to stay the permanent injunction in
the Sierra Club case based on the same briefing and argument
that had been presented in the preliminary injunction appeal
in that case. California and New Mexico timely cross-
appealed nine days later. On July 3, 2019, this court
consolidated Defendants’ appeal of the judgment and
permanent injunction in the Sierra Club case with
Defendants’ pending appeal of the preliminary injunction.2
That same day, a motions panel of this court issued a 2–1
published decision denying Defendants’ motion for a stay of
the permanent injunction (which had overtaken the
preliminary injunction). See Sierra Club v. Trump, 929 F.3d
670 (9th Cir. 2019).
Defendants then applied to the Supreme Court for a stay
of the permanent injunction pending appeal, which the Court
granted on July 26, 2019. See Trump v. Sierra Club, 140 S.
Ct. 1 (2019). That stay remains in effect “pending disposition
of the Government’s appeal in the United States Court of
Appeals for the Ninth Circuit and disposition of the
Government’s petition for a writ of certiorari, if such writ is
timely sought.” Id. at 1. In granting the stay, the Court
concluded that “the Government has made a sufficient
showing at this stage that [the Sierra Club and SBCC] have
no cause of action to obtain review of the Acting Secretary’s
compliance with Section 8005.” Id.
2
This court later consolidated the appeal and cross-appeal in the
States’ case with the already-consolidated appeals in the Sierra Club case.
STATE OF CALIFORNIA V. TRUMP 57
II
The Government has not contested the Article III standing
of California and New Mexico on appeal, but as the majority
notes, “‘the court has an independent obligation to assure that
standing exists, regardless of whether it is challenged by any
of the parties.’” See Maj. Opin. at 19 n.10 (quoting Summers
v. Earth Island Inst., 555 U.S. 488, 499 (2009)). As “an
indispensable part of the plaintiff’s case, each element” of
Article III standing “must be supported in the same way as
any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation.” Lujan v. Defenders
of Wildlife (Lujan v. Defenders), 504 U.S. 555, 561 (1992).
Thus, although well-pleaded allegations are enough at the
motion-to-dismiss stage, they are insufficient to establish
standing at the summary-judgment stage. Id. “In response to
a summary judgment motion, . . . the plaintiff can no longer
rest on such mere allegations, but must set forth by affidavit
or other evidence specific facts, which for purposes of the
summary judgment motion will be taken to be true.” Id.
(simplified).3
In reviewing standing sua sponte in the context of cross-
motions for summary judgment, it is appropriate to apply the
3
I favor the general practice of reciting the language of the quoted
source as if that source were stating those exact words for the first time,
thereby disregarding any indicia of quotations within quotations (such as
brackets, ellipses, and multiple layers of quotation marks). Going
forward, I will use the word “simplified” rather than “cleaned up,”
because it seems less colloquial and it avoids suggesting that the more
precise quotation format needed “cleaning.” Of course, if I make any
changes to the simplified quotation, then those would be shown with
brackets or ellipses.
58 STATE OF CALIFORNIA V. TRUMP
more lenient standard that takes the plaintiffs’ evidence as
true and then asks whether a reasonable trier of fact could
find Article III standing. Lujan v. Defenders, 504 U.S. at 563
(applying this standard in evaluating whether Government’s
cross-motion for summary judgment should have been
granted). In their briefs below concerning the parties’ cross-
motions, California and New Mexico asserted that
Defendants’ allegedly unlawful conduct caused both harm to
the States’ sovereign interests in enforcing their
environmental laws as well as actual environmental harm to
animals and plants within the States. I agree that at least the
second of these two asserted injuries—the threatened
occurrence of actual environmental harm—is sufficient to
establish Article III standing in this case, at least as to
California.4 Although the district court correctly recognized
that the States’ evidence of injury was very thin, see infra
note 6, California’s evidence is sufficient to establish
standing at the summary-judgment stage.
Even assuming arguendo that the States must show a
threat of injury to a protected species within their borders,
rather than merely injury to individual animals or plants
4
As the majority notes, see Maj. Opin. at 19 n.10, the district court
explicitly addressed Article III standing to challenge the transfers only in
the context of New Mexico’s request for a preliminary injunction.
Although Article III standing was not revisited when both California and
New Mexico subsequently moved for summary judgment and a permanent
injunction, the States’ showing of injury in support of a permanent
injunction provides a sufficient basis for evaluating their Article III
standing.
STATE OF CALIFORNIA V. TRUMP 59
belonging to such a species,5 I think that California has made
a sufficient showing. Accepting the States’ evidence as true,
and drawing all reasonable inferences in their favor, a
reasonable trier of fact could conclude that the construction
activities associated with El Centro Sector Project 1 in
California could materially adversely affect the local
population of flat-tailed horned lizards, which California has
classified as a “Species of Special Concern.” Specifically,
California presented declarations from two biologists
explaining how DoD’s construction activities, and the
resulting border barrier, would materially harm the lizard
population by increasing opportunities for natural predators
to catch lizards, by creating a “genetic break” between the
populations within the species’ small range area on either side
of the barrier, and by accidentally killing a potentially
significant number of lizards during the construction itself.
This evidence is sufficient to establish an injury-in-fact to
California’s environmental interests. Cf. Massachusetts v.
EPA, 549 U.S. 497, 521 (2007) (significant harm to
ecosystem is an injury to the State for Article III standing
purposes).6
5
There are aspects to the States’ arguments below—and of the
majority opinion here—that seem implicitly to rest on the expansive view
that the States would suffer cognizable injury-in-fact if there is harm to a
single protected animal or to any of the plants in the construction area.
Such theories push the outermost limits of plausible injury-in-fact, cf.
Lujan v. Defenders, 504 U.S. at 566–67, but it is unnecessary to rely on
them here.
6
At the permanent-injunction stage, the district court found
unpersuasive California’s evidence of potential harm to this lizard species,
especially when weighed against the Government’s countervailing
evidence of mitigation efforts. I do not necessarily disagree with that
weighing of the competing evidence, but it addresses the injury issue in a
different posture under different standards. The district court’s denial of
60 STATE OF CALIFORNIA V. TRUMP
California’s showing of a material risk to a “Species of
Special Concern” is fairly traceable to the challenged funding
transfers and would be redressed by a favorable decision.
Lujan v. Defenders, 504 U.S. at 560–61. It therefore suffices
to give us Article III jurisdiction to address the merits of the
States’ causes of action. We thus may proceed to do so
without having to address New Mexico’s standing. See
Secretary of the Interior v. California, 464 U.S. 312, 319 n.3
(1984) (“Since the State of California clearly does have
standing, we need not address the standing of the other
[plaintiffs], whose position here is identical to the State’s.”).
And given my view that the States’ legal challenges fail, I
perceive no obstacle to entering judgment against both
California and New Mexico without determining whether the
latter has standing. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 98 (1998).7
permanent injunctive relief reflected an exercise of remedial discretion
after the court had found the transfers invalid as a matter of law.
Accordingly, in weighing the States’ evidence of injury in deciding how
to exercise that discretion, the district court was not required to, and did
not, evaluate the States’ evidence of injury in the light most favorable to
them (as we must do as to the standing issue here). See Continental
Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1102 (9th Cir. 1994)
(where district court granted summary judgment and permanent
injunction, power to issue injunction was reviewed de novo, but “the
district court’s exercise of that power” was reviewed “for abuse of
discretion”).
7
By contrast, New Mexico’s standing is relevant to the scope of relief
that can be afforded if, as the majority concludes, the § 8005 and § 9002
transfers are invalid. California suffers no injury from the construction
activities concerning the El Paso Sector Project 1, and so California lacks
standing to request or obtain relief that extends to that separate project.
Lewis v. Casey, 518 U.S. 343, 357 (1996) (“The remedy must of course
be limited to the inadequacy that produced the injury in fact that the
plaintiff has established.”). Accordingly, before affirming the district
STATE OF CALIFORNIA V. TRUMP 61
III
Our first task is to determine whether the States have
asserted a viable cause of action that properly brings the
lawfulness of the transfers before us. See Air Courier Conf.
v. American Postal Workers Union AFL-CIO, 498 U.S. 517,
530–31 (1991). The majority holds that California and New
Mexico have a valid cause of action under the APA. See Maj.
Opin. at 30. I disagree with that conclusion, and I also
disagree with the States’ alternative arguments that they may
assert either an equitable cause of action under the
Constitution or an “ultra vires” cause of action. 8
court’s declaratory judgment that the use of funds transferred under
§ 8005 and § 9002 “for El Paso Sector Project 1 . . . is unlawful,” the
majority properly examines New Mexico’s standing. I express no view
as to whether the majority is correct in concluding that New Mexico’s
evidence of environmental harm was sufficient, notwithstanding the
district court’s conclusion that this evidence rested largely on unsupported
speculation. See Maj. Opin. at 23–24; cf. California v. Trump, 2019 WL
2715421, at *4 (N.D. Cal. June 28, 2019) (“New Mexico’s speculation
that a border barrier might prevent interbreeding, which might hamper
genetic diversity, which might render Mexican wolves more susceptible
to diseases falls far short of the necessary demonstrable evidence of harm
to a protected species”). However, for the reasons expressed below, I
disagree with the majority’s conclusion that New Mexico and California
have standing based on their inability to enforce their environmental laws.
Maj. Opin. at 24–28. Given that this asserted injury is due to the Secretary
of Homeland Security’s waiver under § 102 of IIRIRA, and not to the
funding transfers, it would not be redressed by an injunction aimed only
at the transfers. See infra at 68–70.
8
In its merits analysis, the majority scarcely cites the motions panel’s
published decision, which addressed the Sierra Club’s and SBCC’s
likelihood of success on the merits of many of the same issues before us.
I agree with the majority’s implicit conclusion that the motions panel’s
opinion does not prevent this merits panel from examining these issues
afresh. Although the motions panel decision is a precedent, it remains
62 STATE OF CALIFORNIA V. TRUMP
A
In authorizing suit by any person “adversely affected or
aggrieved by agency action within the meaning of a relevant
statute,” 5 U.S.C. § 702, the APA incorporates the familiar
zone-of-interests test, which reflects a background principle
of law that always “applies unless it is expressly negated,”
Bennett v. Spear, 520 U.S. 154, 163 (1997); see also Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
129 (2014).9 That test requires a plaintiff to “establish that
the injury he complains of (his aggrievement, or the adverse
effect upon him) falls within the ‘zone of interests’ sought to
be protected by the statutory provision whose violation forms
the legal basis for his complaint.” Lujan v. NWF, 497 U.S.
at 883 (quoting Clarke v. Securities Indus. Ass’n, 479 U.S.
subject to reconsideration by this court until we issue our mandate. See
United States v. Houser, 804 F.2d 565, 567–68 (9th Cir. 1986)
(distinguishing, on this point, between reconsideration of a prior panel’s
decision “during the course of a single appeal” and a decision “on a prior
appeal”); cf. Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012)
(en banc) (three-judge panel lacks authority to overrule a decision in a
prior appeal in the same case). To the extent that Lair v. Bullock, 798 F.3d
736, 747 (9th Cir. 2015), suggests otherwise, that suggestion is dicta and
directly contrary to our decision in Houser. See East Bay Sanctuary
Covenant v. Trump, 950 F.3d 1242, 1261–65 (9th Cir. 2020). In all
events, the precedential force of the motions panel’s opinion was largely,
if not entirely, vitiated by the Supreme Court’s subsequent decision to
grant the very stay that the motions panel’s opinion denied.
9
The Supreme Court has not squarely addressed whether the zone-of-
interests test applies to a plaintiff who claims to have “suffer[ed] legal
wrong because of agency action,” which is the other class of persons
authorized to sue under the APA, 5 U.S.C. § 702. See Lujan v. National
Wildlife Fed. (Lujan v. NWF), 497 U.S. 871, 882–83 (1990). The States
have not invoked any such theory here, so I have no occasion to address
it.
STATE OF CALIFORNIA V. TRUMP 63
388, 396–97 (1987)). This test “is not meant to be especially
demanding.” Clarke, 479 U.S. at 399. Because the APA was
intended to confer “generous review” of agency action, the
zone-of-interests test is more flexibly applied under that
statute than elsewhere, and it requires only a showing that the
plaintiff is “arguably within the zone of interests to be
protected or regulated by the statute or constitutional
guarantee in question.” Association of Data Processing Serv.
Orgs., Inc. v. Camp (Data Processing), 397 U.S. 150, 153,
156 (1970) (emphasis added); see also Bennett, 520 U.S.
at 163 (“what comes within the zone of interests of a statute
for purposes of obtaining judicial review of administrative
action under the generous review provisions of the APA may
not do so for other purposes”) (simplified). Because an APA
plaintiff need only show that its interests are “arguably”
within the relevant zone of interests, “the benefit of any doubt
goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012).
Although these standards are generous, the States have failed
to satisfy them.
1
In applying the zone-of-interests test, we must first
identify the “statutory provision whose violation forms the
legal basis for [the] complaint” or the “gravamen of the
complaint.” Lujan v. NWF, 497 U.S. at 883, 886; see also Air
Courier Conf., 498 U.S. at 529. That question is easy here.
The States’ complaint alleges that the transfers made by DoD
“do not satisfy the criteria under section 8005”; that
Defendants therefore “have acted ultra vires in seeking to
transfer funding pursuant to section 8005”; that DoD
consequently “acted unconstitutionally and in excess of [its]
statutory authority in diverting federal funds” pursuant to
64 STATE OF CALIFORNIA V. TRUMP
§ 8005; and that therefore “these actions are unlawful and
should be set aside under 5 U.S.C. section 706.”10 Section
8005 is plainly the “gravamen of the complaint,” and it
therefore defines the applicable zone of interests. Lujan v.
NWF, 497 U.S. at 886.
Although the States invoke the Appropriations Clause and
the constitutional separation of powers in contending that
Defendants’ actions are “unlawful” within the meaning of the
APA, any such constitutional violations here can be said to
have occurred only if the transfers violated the limitations set
forth in § 8005: if Congress authorized DoD to transfer the
appropriated funds from one account to another, and to spend
them accordingly, then the money has been spent “in
Consequence of Appropriations made by Law,” U.S. CONST.
art. I, § 9, cl. 7, and the Executive has not otherwise
transgressed the separation of powers.11 All of California’s
theories for challenging the transfers under the APA—
whether styled as constitutional claims or as statutory
claims—thus rise or fall based on whether DoD has
transgressed the limitations on transfers set forth in § 8005.
As a result, § 8005 is obviously the “statute whose violation
is the gravamen of the complaint.” Lujan v. NWF, 497 U.S.
at 886. To maintain a claim under the APA, therefore,
California must establish that it is within the zone of interests
10
Because the limitations on transfers set forth in § 8005 also apply
to transfers under § 9002, see 132 Stat. at 3042, the parties use “§ 8005”
to refer to both provisions, and I will generally do so as well.
11
The only possible exception is the States’ argument that § 8005
itself violates the Appropriations Clause and the constitutional separation
of powers. As explained below, that contention is frivolous. See infra
at 76–77.
STATE OF CALIFORNIA V. TRUMP 65
of § 8005. On this point, the majority and I are in apparent
agreement. See Maj. Opin. at 30–31.12
2
Having identified the relevant statute, our next task is to
“discern the interests arguably to be protected by the statutory
provision at issue” and then to “inquire whether the plaintiff’s
interests affected by the agency action in question are among
them.” National Credit Union Admin. v. First Nat’l Bank &
Trust Co. (NCUA), 522 U.S. 479, 492 (1998) (simplified).
Identifying the interests protected by § 8005 is not difficult,
and here the States’ asserted interests are not among them.
Section 8005 is a grant of general transfer authority that
allows the Secretary of Defense, if he determines “that such
action is necessary in the national interest” and if the Office
of Management and Budget approves, to transfer from one
DoD “appropriation” into another up to $4 billion of the
funds that have been appropriated under the DoD
Appropriations Act “for military functions (except military
construction).” See 132 Stat. at 2999. Section 8005 contains
12
The States briefly contend that DoD has exceeded its authority
under § 284, but even assuming arguendo that the States have a cause of
action to raise such a challenge, it is patently without merit. The States
note that § 284 contains a special reporting requirement for “small scale
construction” projects, which are defined as projects costing $750,000 or
less, 10 U.S.C. § 284(h)(1)(B), (i)(3), and they argue that this shows that
Congress did not authorize projects on the scale at issue here. The
inference is a non sequitur: the fact that Congress requires special
reporting of these smaller projects does not mean that they are the only
projects authorized. Congress may have imposed such a unique reporting
requirement in order to capture the sort of smaller-scale activities that
might otherwise have escaped its notice.
66 STATE OF CALIFORNIA V. TRUMP
five provisos that further regulate this transfer authority, and
the only limitations on the Secretary’s authority that the
States claim were violated here are all contained in the first
such proviso. That proviso states 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.” Id.13 The remaining provisos require prompt
notice to Congress “of all transfers made pursuant to this
authority or any other authority in this Act”; proscribe the use
of funds to make requests to the Committees on
Appropriations for reprogrammings that are inconsistent
with the restrictions described in the first proviso; set a time
limit for making requests for multiple reprogrammings; and
exempt “transfers among military personnel appropriations”
from counting towards the $4 billion limit. Id.
Focusing on “the particular provision of law upon which
the plaintiff relies,” Bennett, 520 U.S. at 175–76, makes clear
that § 8005 as a whole, and its first proviso in particular, are
aimed at tightening congressional control over the
appropriations process. The first proviso’s general
prohibition on transferring funds for any item that “has been
denied by the Congress” is, on its face, a prohibition on using
the transfer authority to effectively reverse Congress’s
specific decision to deny funds to DoD for that item.
132 Stat. at 2999. The second major limitation imposed by
the first proviso states that the transfer authority is not to be
used unless, considering the items “for which [the funds
13
Similar language has been codified into permanent law. See
10 U.S.C. § 2214(b). No party contends that § 2214(b) alters the relevant
analysis under the comparably worded provision in § 8005.
STATE OF CALIFORNIA V. TRUMP 67
were] originally appropriated,” there are “higher priority
items” for which the funds should now be used in light of
“military requirements” that were “unforeseen” in DoD’s
request for Fiscal Year 2019 appropriations. Id. The obvious
focus of this restriction is likewise to protect congressional
judgments about appropriations by (1) restricting DoD’s
ability to reprioritize the use of funds differently from how
Congress decided to do so and (2) precluding DoD from
transferring funds appropriated by Congress for “military
functions” for purposes that do not reflect “military
requirements.” The remaining provisos, including the
congressional reporting requirement, all similarly aim to
maintain congressional control over appropriations. And all
of the operative restrictions in § 8005 that the States invoke
here are focused solely on limiting DoD’s ability to use the
transfer authority to reverse the congressional judgments
reflected in DoD’s appropriations.
In addition to preserving congressional control over
DoD’s appropriations, § 8005 also aims to give DoD some
measure of flexibility to make necessary changes. Notably,
in authorizing the Secretary to make transfers among
appropriations, § 8005’s first proviso specifies only one
criterion that he must consider in exercising that discretion:
he must determine whether the item for which the funds will
be used is a “higher priority item[]” in light of “unforeseen
military requirements.” 132 Stat. at 2999 (emphasis added).
Under the statute, he need not consider any other factor
concerning either the original use for which the funds were
appropriated or the new use to which they will now be put.
In light of these features of § 8005, the “interests” that the
States claim are “affected by the agency action in question”
are not “among” the “interests arguably to be protected” by
68 STATE OF CALIFORNIA V. TRUMP
§ 8005. NCUA, 522 U.S. at 492 (simplified). In particular,
the States’ asserted environmental interests clearly lie outside
the zone of interests protected by § 8005. The statute does
not mention environmental interests, nor does it require the
Secretary to consider such interests. On the contrary, the
statute requires him only to consider whether an item is a
“higher priority” in light of “military requirements,” and it is
otherwise entirely neutral as to the uses to which the funds
will be put. Indeed, that neutrality is reflected on the face of
the statute, which says that, once the transfer is made, the
funds are “merged with and . . . available for the same
purposes, and for the same time period, as the appropriation
or fund to which transferred.” 132 Stat. at 2999 (emphasis
added). Because the alleged environmental harms that the
States assert here play no role in the analysis that § 8005
requires the Secretary to conduct, and are not among the
harms that § 8005’s limitations seek to address or protect, the
States’ interests in avoiding these harms are not within
§ 8005’s zone of interests.
Moreover, focusing on the specific interests for which the
States have presented sufficient evidentiary support at the
summary-judgment stage, see Lujan v. NWF, 497 U.S.
at 884–85, further confirms that, in deciding whether to
redirect excess military personnel funds under § 8005 to
assist DHS by building fencing to stop international drug
smuggling, the Acting Secretary of Defense did not have to
give even the slightest consideration to whether that
reprogramming of funds would result in the death of more
flat-tailed horned lizards.14 Put simply, the States’
14
It is unnecessary to exhaustively review whether California or New
Mexico has provided the requisite factual support with respect to their
claims of potential harms to other species of animals or plants, see supra
 STATE OF CALIFORNIA V. TRUMP 69
environmental interests are “‘so marginally related to . . . the
purposes implicit in the statute that it cannot reasonably be
assumed that Congress intended to permit the suit.’”
Patchak, 567 U.S. at 225 (quoting Clarke, 479 U.S. at 399).
For similar reasons, the States’ invocation of their
sovereign interests is also insufficient. The majority finds
that these interests “app[ly] with particular force” because the
Secretary’s transfer of funds ultimately had an effect on
“California’s and New Mexico’s ability to enforce their state
environmental laws,” see Maj. Opin. at 34, but that
consideration plays no role—not even indirectly—in the
analysis that § 8005 requires. Section 8005 authorizes the
Secretary to move funds from one appropriation to another if
(1) that transfer is consistent with the appropriations-process-
based constraints discussed earlier; and (2) the transfer is for
items that the Secretary deems to be “higher priority” in light
of “military requirements.” 132 Stat. at 2999. The statute
does not itself mention or contemplate the displacement of
state laws as a result of the transfer, nor does it require that
any such derogation from state sovereignty be considered in
evaluating the proposed transfer. Moreover, here the ultimate
preemption of state law occurred, not as a result of § 8005,
but rather as a result of DHS’s separate determination, under
a completely separate statute (viz., IIRIRA § 102(c)), that
state (and federal) environmental laws would be waived. The
States might perhaps be within the zone of interests with
respect to that statute, but they do not challenge the validity
of that waiver under § 102(c) in this case, and in any event,
California has already brought (and lost) a challenge to an
earlier § 102(c) waiver with respect to a similar border
note 7, because there is no basis in law or logic for concluding that it
would make any difference to the zone-of-interests analysis under § 8005.
70 STATE OF CALIFORNIA V. TRUMP
fencing project. See In re Border Infrastructure Envtl. Litig.,
915 F.3d 1213 (9th Cir. 2019).
The States nonetheless insist that they are within § 8005’s
zone of interests because the actual activities that are taking
place under the valid waiver, in derogation of their
sovereignty, are only occurring because the § 8005 transfer
was approved. This argument fails. Once a valid § 102(c)
waiver has been issued, the States’ laws have been
definitively set aside as a de jure matter under the Supremacy
Clause, and halting construction will not bring those laws
back into force or redress that injury to the States’
sovereignty. The residual interest on which the States rely,
therefore, is not an injury to their sovereignty, but merely the
interest in ensuring that activities that the States consider
undesirable do not occur. But the Supreme Court has
consistently held that “assertion of a right to a particular kind
of Government conduct, which the Government has violated
by acting differently, cannot alone satisfy the requirements of
Art. III without draining those requirements of meaning,”
Lujan v. Defenders, 504 U.S. at 576 (simplified), and an
interest that is not cognizable for Article III purposes is
irrelevant for zone-of-interests purposes as well, Sierra Club
v. Morton, 405 U.S. 727, 733 (1972). Similarly, to the extent
that the States rely on an interest in “hav[ing] the Government
act in accordance with law” such as § 8005, see Lujan v.
Defenders, 504 U.S. at 575, such an interest is not cognizable
under Article III and cannot satisfy the zone-of-interests test
here.
STATE OF CALIFORNIA V. TRUMP 71
3
The majority makes two main arguments as to why the
States nonetheless fall within § 8005’s zone of interests, but
neither has merit.
First, the majority contends that “the states regularly
benefit from DoD’s use of Section 8005,” and it cites several
past examples in which the statute was used to transfer funds
that allowed the military to assist in addressing storm damage
from hurricanes that occurred in various States. See Maj.
Opin. at 35–36. This argument is foreclosed by the Supreme
Court’s decision in Lujan v. NWF. The Court in that case
held that, because satisfaction of the zone-of-interests test is
an element of the cause of action that the plaintiff seeks to
invoke, the plaintiff at the summary-judgment stage has the
burden “to set forth specific facts (even though they may be
controverted by the Government) showing that he has
satisfied its terms,” i.e., that “the injury he complains of (his
aggrievement, or the adverse effect upon him)” falls within
the relevant statute’s zone of interests. 497 U.S. at 883–84.
Here, in opposing summary judgment, California and New
Mexico made no showing whatsoever that, in the absence of
these transfers to the “Drug Interdiction and Counter-Drug
Activities, Defense” appropriation, the funds in question
would otherwise have been transferred for the direct benefit
of either State. Absent such an evidentiary showing, the
States have failed to show that they satisfy the zone-of-
interests test under such a theory. Id. at 882–99 (exhaustively
analyzing the evidence presented at summary judgment and
concluding that the plaintiffs had failed to carry their burden
under the zone-of-interests test).
72 STATE OF CALIFORNIA V. TRUMP
Second, the majority asserts that California and New
Mexico fall within § 8005’s zone of interests because § 8005
was “primarily intended to benefit [Congress] and its
constitutional power to manage appropriations,” and the
States’ “interests are congruent with those of Congress.” See
Maj. Opin. at 32–33 (emphasis added). This theory also fails.
As the Supreme Court made clear in Lujan v. NWF, the zone-
of-interests test requires the plaintiff to make a factual
showing that the plaintiff itself, or someone else whose
interests the plaintiff may properly assert, has a cognizable
interest that falls within the relevant statute’s zone of
interests. 497 U.S. at 885–99 (addressing whether the
interests of NWF—or of any of its members, whose interests
NWF could validly assert under the associational standing
doctrine of Hunt v. Washington State Apple Advert. Comm’n,
432 U.S. 333 (1977)—had been shown to be within the
relevant zone of interests). I am aware of no precedent that
would support the view that California and New Mexico can
represent the interests of Congress (akin to NWF’s
representation of the interests of its members), much less that
the States can do so merely because they are sympathetic to
Congress’s perceived policy objectives.15 But I do not read
the majority opinion as actually relying on such a novel
theory. Instead, the majority suggests that, merely because
the States’ overall litigation objectives here are sufficiently
15
Even if the States could assert Congress’s interests in some
representational capacity, they could do so only if the injury to Congress’s
interests satisfied the requirements of Article III standing. See Air Courier
Conf., 498 U.S. at 523–24 (zone-of-interests test is applied to those
injuries-in-fact that meet Article III requirements). I express no view on
that question. Cf. U.S. House of Reps. v. Mnuchin, 379 F. Supp. 3d 8
(D.D.C. 2019) (holding that House lacks Article III standing to challenge
the transfers at issue here), appeal ordered heard en banc, 2020 WL
1228477 (D.C. Cir. 2020).
STATE OF CALIFORNIA V. TRUMP 73
congruent with those of Congress, the States have thereby
satisfied the zone-of-interests test with respect to the States’
own interests. This contention is clearly wrong.
The critical flaw in the majority’s analysis is that it rests,
not on the interests asserted by the States (preservation of the
flat-tailed horned lizard, etc.), but on the legal theory that the
States invoke to protect those interests here. But the zone-of-
interests test focuses on the former and not the latter. See
Lujan v. NWF, 497 U.S. at 885–89. Indeed, if the majority
were correct, that would effectively eliminate the zone-of-
interests test. By definition, anyone who alleges a violation
of a particular statute has thereby invoked a legal theory that
is “congruent” with the interests of those other persons or
entities who are within that statute’s zone-of-interests. Such
a tautological congruence between the States’ legal theory
and Congress’s institutional interests is not sufficient to
satisfy the zone-of-interests test here.
The majority suggests that its approach is supported by
the D.C. Circuit’s decision in Scheduled Airlines Traffic
Offices, Inc. v. Department of Defense, 87 F.3d 1356 (D.C.
Cir. 1996), see Maj. Opin. at 32, but that is wrong. As the
opinion in that case makes clear, the D.C. Circuit was relying
on the same traditional zone-of-interests test, under which a
plaintiff’s interests are “outside the statute’s ‘zone of
interests’ only ‘if the plaintiff’s interests are so marginally
related to or inconsistent with the purposes implicit in the
statute that it cannot reasonably be assumed that Congress
intended to permit the suit.’” 87 F.3d at 1360 (quoting
Clarke, 479 U.S. at 399). The court mentioned “congruence”
in the course of explaining why the plaintiff’s interests in that
case were “not more likely to frustrate than to further
statutory objectives,” i.e., why those interests were not
74 STATE OF CALIFORNIA V. TRUMP
inconsistent with the purposes implicit in the statute. Id.
(simplified). It did not thereby suggest—and could not
properly have suggested—that the mere lack of any such
inconsistency is alone sufficient under the zone-of-interests
test. Here, the problem is not that the States’ interests are
inconsistent with the purposes of § 8005, but rather that they
are too “marginally related” to those purposes. See supra
at 68–69.
Lastly, the majority suggests that we must apply the zone-
of-interests test “broadly in this context,” because—given the
difficulties that congressional plaintiffs have in establishing
Article III standing—otherwise “no agency action taken
pursuant to Section 8005 could ever be challenged under the
APA.” See Maj. Opin. at 33, 36. The assumption that no one
will ever be able to sue for any violation of § 8005 seems
doubtful, cf. Sierra Club v. Trump, 929 F.3d at 715 (N.R.
Smith, J., dissenting) (suggesting that “those who would have
been entitled to the funds as originally appropriated” may be
within the zone of interests of § 8005), but in any event, we
are not entitled to bend the otherwise applicable—and already
lenient—standards to ensure that someone will be able to sue
in this case or others like it.
B
In addition to asserting claims under the APA, California
and New Mexico also purport to assert claims under the
Constitution, as well as an equitable cause of action to enjoin
“ultra vires” conduct. The States do not have a cause of
action under either of these theories.
STATE OF CALIFORNIA V. TRUMP 75
1
The States contend that they are not required to satisfy
any zone-of-interests test to the extent that they assert non-
APA causes of action to enjoin Executive officials from
taking unconstitutional action.16 Even assuming that an
equitable cause of action to enjoin unconstitutional conduct
exists alongside the APA’s cause of action, see Juliana v.
United States, 947 F.3d 1159, 1167–68 (9th Cir. 2020);
Navajo Nation v. Department of the Interior, 876 F.3d 1144,
1172 (9th Cir. 2017); but see Sierra Club v. Trump, 929 F.3d
at 715–17 (N.R. Smith, J., dissenting), it avails the States
nothing here. The States have failed to allege the sort of
constitutional claim that might give rise to such an equitable
action, because their “constitutional” claim is effectively the
very same § 8005-based claim dressed up in constitutional
garb. And even if this claim counted as a “constitutional”
one, it would still be governed by the same zone of interests
defined by the relevant limitations in § 8005.
a
The States assert two constitutional claims in their
operative complaint: (1) that Defendants have violated the
16
It is not entirely clear that the States are contending that their APA
claims to enjoin unconstitutional conduct, see 5 U.S.C. § 706(2)(B), are
exempt from the zone-of-interests test. To the extent that they are so
contending, the point seems doubtful. See Data Processing, 397 U.S.
at 153 (zone-of-interests test requires APA claimant to show that its
interest “is arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in question”). But in
all events, any such APA-based claim to enjoin unconstitutional conduct
would fail for the same reasons as the States’ purported free-standing
equitable claim to enjoin such conduct.
76 STATE OF CALIFORNIA V. TRUMP
Presentment Clause, and the constitutional separation of
powers more generally, by “unilaterally diverting funding that
Congress already appropriated for other purposes to fund a
border wall for which Congress has provided no
appropriations”; and (2) that Defendants have violated the
Appropriations Clause “by funding construction of the border
wall with funds that were not appropriated for that purpose.”
As clarified in their subsequent briefing, the States assert both
what I will call a “strong” form of these constitutional
arguments and a more “limited” form. In its strong form, the
States’ argument is that, even if § 8005 authorized the
transfers in question here, those transfers nonetheless
violated the separation of powers, the Presentment Clause,
and the Appropriations Clause. In its more limited form, the
States’ argument is that the transfers violated the separation
of powers, the Presentment Clause, and the Appropriations
Clause because the transfers were not authorized by § 8005.
I need not address whether the States have an equitable
cause of action to assert the strong form of their constitutional
argument, because in my view that argument on the merits is
so “wholly insubstantial and frivolous” that it would not even
give rise to federal jurisdiction. Bell v. Hood, 327 U.S. 678,
682–83 (1946); see also Steel Co., 523 U.S. at 89. If § 8005
allowed the transfers here, then that necessarily means that
the Executive has properly spent funds that Congress, by
statute, has appropriated and allowed to be spent for that
purpose. The States cite no authority for the extraordinary
proposition that the Appropriations Clause itself constrains
Congress’s ability to give agencies latitude in how to spend
appropriated funds, and I am aware of no such authority. Cf.
Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (“allocation of
funds from a lump-sum appropriation is another
administrative decision traditionally regarded as committed
STATE OF CALIFORNIA V. TRUMP 77
to agency discretion”). And by transferring funds after
finding that the statutory conditions for doing so are met, an
agency thereby “execut[es] the policy that Congress had
embodied in the statute” and does not unilaterally alter or
repeal any law in violation of the Presentment Clause or the
separation of powers. See Clinton v. City of New York,
524 U.S. 417, 444 (1998). If anything, it is the States’
theory—that the federal courts must give effect to an alleged
broader congressional judgment against border funding
regardless of whether that judgment is embodied in binding
statutory language—that would offend separation-of-powers
principles.
That leaves only the more limited form of the States’
argument, which is that, if § 8005 did not authorize the
transfers, then the expenditures violated the Appropriations
Clause, the Presentment Clause, and the separation of powers.
Under Dalton v. Specter, 511 U.S. 462 (1994), this
theory—despite its constitutional garb—is properly classified
as “a statutory one,” id. at 474. It therefore does not fall
within the scope of the asserted non-APA equitable cause of
action to enjoin unconstitutional conduct.17
In Dalton, the Court addressed a non-APA claim to enjoin
Executive officials from implementing an allegedly
unconstitutional Presidential decision to close certain military
bases under the Defense Base Closure and Realignment Act
17
There remains the States’ claim that statutory violations may be
enjoined under a non-APA ultra vires cause of action for equitable relief,
but that also fails for the reasons discussed below. See infra at 84–85.
78 STATE OF CALIFORNIA V. TRUMP
of 1990. 511 U.S. at 471.18 But the claim in Dalton was not
that the President had directly transgressed an applicable
constitutional limitation; rather, the claim was that, because
Executive officials “violated the procedural requirements” of
the statute on which the President’s decision ultimately
rested, the President thereby “act[ed] in excess of his
statutory authority” and therefore “violate[d] the
constitutional separation-of-powers doctrine.” Id. at 471–72.
The Supreme Court rejected this effort to “eviscerat[e]” the
well-established “distinction between claims that an official
exceeded his statutory authority, on the one hand, and claims
that he acted in violation of the Constitution, on the other.”
Id. at 474 (emphasis added). As the Court explained, its
“cases do not support the proposition that every action by the
President, or by another executive official, in excess of his
statutory authority is ipso facto in violation of the
Constitution.” Id. at 472. The Court distinguished
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952), on the ground that there “the Government disclaimed
any statutory authority for the President’s seizure of steel
mills,” and as a result the Constitution itself supplied the rule
of decision for determining the legality of the President’s
actions. Dalton, 511 U.S. at 473. Because the “only basis of
authority asserted was the President’s inherent constitutional
power as the Executive and the Commander in Chief of the
Armed Forces,” Youngstown thus “necessarily turned on
whether the Constitution authorized the President’s actions.”
Id. (emphasis added). By contrast, given that the claim in
Dalton was that the President had violated the Constitution
18
The plaintiffs in Dalton also asserted a claim under the APA itself,
but that claim failed for the separate reason that the challenged final action
was taken by the President personally, and the President is not an
“agency” for purposes of the APA. See 511 U.S. at 469.
STATE OF CALIFORNIA V. TRUMP 79
because Executive officials had “violated the terms of the
1990 Act,” the terms of that statute provided the applicable
rule of decision and the claim was therefore “a statutory one.”
Id. at 474. And because those claims sought to enjoin
conduct on the grounds that it violated statutory
requirements, it was subject to the “longstanding” limitation
that non-APA “review is not available when the statute in
question commits the decision to the discretion of the
President.” Id.
Under Dalton, the States’ purported “constitutional”
claims—at least in their more limited version—are properly
classified as statutory claims that do not fall within any non-
APA cause of action to enjoin unconstitutional conduct.
511 U.S. at 474. Here, as in Dalton, Defendants have
“claimed” the “statutory authority” of § 8005, and any
asserted violation of the Constitution would occur only if, and
only because, Defendants’ conduct is assertedly not
authorized by § 8005. Id. at 473. The rule of decision for
this dispute is thus not supplied, as in Youngstown, by the
Constitution; rather, it is supplied only by § 8005. Id.
at 473–74. Because these claims by the States are thus
“statutory” under Dalton, they may only proceed, if at all,
under an equitable cause of action to enjoin ultra vires
conduct, and they would be subject to any limitations
applicable to such claims. Id. at 474. The States do assert
such a fallback claim here, but it fails for the reasons I
explain below. See infra at 84–85.
b
But even if the States’ claims may properly be classified
as constitutional ones for purposes of the particular equitable
cause of action they invoke here, those claims would still fail.
80 STATE OF CALIFORNIA V. TRUMP
To the extent that the States argue that the Constitution
itself grants a cause of action allowing any plaintiff with an
Article III injury to sue to enjoin an alleged violation of the
Appropriations Clause, the Presentment Clause, or the
separation of powers, there is no support for such a theory.
None of the cases cited by the States involved putative
plaintiffs, such as the States here, who are near the outer
perimeter of Article III standing. On the contrary, these cases
involved either allegedly unconstitutional agency actions
directly targeting the claimants, see Bond v. United States,
564 U.S. 211, 225–26 (2011) (criminal defendant challenged
statute under which she was convicted on federalism and
separation-of-powers grounds); United States v. McIntosh,
833 F.3d 1163, 1174–75 (9th Cir. 2016) (criminal defendants
sought to enjoin, based on an appropriations rider and the
Appropriations Clause, the Justice Department’s expenditure
of funds to prosecute them), or they involved a suit based on
an express statutory cause of action, see Clinton v. City of
New York, 524 U.S. at 428 (noting that right of action was
expressly conferred by 2 U.S.C. § 692(a)(1) (1996 ed.)).
Moreover, any claim that the Constitution requires
recognizing, in this context, an equitable cause of action that
extends to the outer limits of Article III seems difficult to
square with the Supreme Court’s decision in Armstrong v.
Exceptional Child Ctr., Inc., 575 U.S. 320 (2015). There, the
Court rejected the view that the Supremacy Clause itself
created a private right of action for equitable relief against
preempted statutes, and instead held that any such equitable
claim rested on “judge-made” remedies that are subject to
“express and implied statutory limitations.” Id. at 325–27.
The Supremacy Clause provides a particularly apt analogy
here, because (like the Appropriations Clause) the asserted
“unconstitutionality” of the challenged action generally
STATE OF CALIFORNIA V. TRUMP 81
depends upon whether it falls within or outside the terms of
a federal statute: a state statute is “unconstitutional under the
Supremacy Clause” only if it is “contrary to federal law,”
Burbank-Glendale-Pasadena Airport Auth. v. City of
Burbank, 136 F.3d 1360, 1361–62 (9th Cir. 1998), and here,
the transfers violated the Appropriations Clause only if they
were barred by the limitations in § 8005. And just as the
Supremacy Clause protects Congress’s “broad discretion with
regard to the enactment of laws,” Armstrong, 575 U.S.
at 325–26, so too the Appropriations Clause protects
“congressional control over funds in the Treasury,” McIntosh,
833 F.3d at 1175. It is “unlikely that the Constitution gave
Congress such broad discretion” to enact appropriations laws
only to simultaneously “require[] Congress to permit the
enforcement of its laws” by any “private actor[]” with even
minimal Article III standing, thereby “limit[ing] Congress’s
power” to decide how “to enforce” the spending limitations
it enacts. Armstrong, 575 U.S. at 325–26.
The Appropriations Clause thus does not itself create a
constitutionally required cause of action that extends to the
limits of Article III. On the contrary, any equitable cause of
action to enforce that clause would rest on a “judge-made”
remedy: as Armstrong observed, “[t]he ability to sue to enjoin
unconstitutional actions by state and federal officers is the
creation of courts of equity, and reflects a long history of
judicial review of illegal executive action, tracing back to
England.” 575 U.S. at 327. At least where, as here, the
contours of the applicable constitutional line (under the
Appropriations Clause) are defined by and parallel a statutory
line (under § 8005), any such judge-made equitable cause of
action would be subject to “express and implied statutory
limitations,” as well as traditional limitations governing such
equitable claims. Id.
82 STATE OF CALIFORNIA V. TRUMP
One long-established “‘judicially self-imposed limit[] on
the exercise of federal jurisdiction’”—including federal
equitable jurisdiction—is the requirement “that a plaintiff’s
grievance must arguably fall within the zone of interests
protected or regulated by the statutory provision or
constitutional guarantee invoked in the suit.” Bennett,
520 U.S. at 162 (quoting Allen v. Wright, 468 U.S. 737, 751
(1984)). This limitation is not confined to the APA, but
rather reflects a “prudential standing requirement[] of general
application” that always “applies unless it is expressly
negated” by Congress. Id. at 163.19 Because Congress has
not expressly negated that test in any relevant respect, the
States’ equitable cause of action to enforce the
Appropriations Clause here remains subject to the zone-of-
interests test. Cf. Thompson v. North American Stainless, LP,
562 U.S. 170, 176–77 (2011) (construing a cause of action as
extending to “any person injured in the Article III sense”
would often produce “absurd consequences” and is for that
reason rarely done). And given the unique nature of an
Appropriations Clause claim, as just discussed, the line
between constitutional and unconstitutional conduct here is
defined entirely by the limitations in § 8005, and therefore the
19
The States wrongly contend that, by quoting this language from
Bennett, and stating that the zone-of-interests test therefore “applies to all
statutorily created causes of action,” Lexmark, 572 U.S. at 129 (emphasis
added), the Court in Lexmark thereby intended to signal that the test only
applies to statutory claims and not to non-statutory equitable claims.
Nothing in Lexmark actually suggests any such negative pregnant; instead,
the Court’s reference to “statutorily created causes of action” reflects
nothing more than the fact that only statutory claims were before the Court
in that case. See id. at 129. Moreover, Lexmark notes that the zone-of-
interests test’s roots lie in the common law, id. at 130 n.5, and Bennett
(upon which Lexmark relied) states that the test reflects a “prudential
standing requirement[] of general application” that applies to any
“exercise of federal jurisdiction,” 520 U.S. at 162–63.
STATE OF CALIFORNIA V. TRUMP 83
relevant zone of interests for the States’ Appropriations-
Clause-based equitable claim remains defined by those
limitations. The States are thus outside the applicable zone
of interests for this claim as well.
In arguing for a contrary view, the States rely heavily on
United States v. McIntosh, asserting that there we granted
non-APA injunctive relief based on the Appropriations
Clause without inquiring whether the claimants were within
the zone of interests of the underlying appropriations statute.
McIntosh cannot bear the considerable weight that the States
place on it.
In McIntosh, we asserted interlocutory jurisdiction over
the district courts’ refusal to enjoin the expenditure of funds
to prosecute the defendants—an expenditure that allegedly
violated an appropriations rider barring the Justice
Department from spending funds to prevent certain States
from “‘implementing their own laws that authorize the use,
distribution, possession, or cultivation of medical
marijuana.’” 833 F.3d at 1175; see also id. at 1172–73. We
held that the defendants had Article III standing and that, if
the Department was in fact “spending money in violation” of
that rider in prosecuting the defendants, that would produce
a violation of the Appropriations Clause that could be raised
by the defendants in challenging their prosecutions. Id.
at 1175. After construing the meaning of the rider, we then
remanded the matter for a determination whether the rider
was being violated. Id. at 1179. Contrary to the States’ dog-
that-didn’t-bark theory, nothing can be gleaned from the fact
that the zone-of-interests test was never discussed in
McIntosh. See Cooper Indus., Inc. v. Aviall Servs, Inc.,
543 U.S. 157, 170 (2004) (“‘Questions which merely lurk in
the record, neither brought to the attention of the court nor
84 STATE OF CALIFORNIA V. TRUMP
ruled upon, are not to be considered as having been so
decided as to constitute precedents.’”) (quoting Webster v.
Fall, 266 U.S. 507, 511 (1925)). Moreover, any such silence
seems more likely to have been due to the fact that it was so
overwhelmingly obvious that the defendants were within the
rider’s zone of interests that the point was incontestable and
uncontested. An asserted interest in not going to prison for
complying with state medical-marijuana laws seems well
within the zone of interests of a statute prohibiting
interference with the implementation of such state laws.
2
The only remaining question is whether the States may
evade the APA’s zone-of-interests test by asserting a non-
APA claim for ultra vires conduct in excess of statutory
authority. Even assuming that such a cause of action exists
alongside the APA, cf. Trudeau v. Federal Trade Comm’n,
456 F.3d 178, 189–90 (D.C. Cir. 2006), I conclude that it
would be subject to the same zone-of-interests limitations as
the States’ APA claims and therefore likewise fails.
For the same reasons discussed above, any such equitable
cause of action rests on a judge-made remedy that is subject
to the zone-of-interests test. See supra at 79–84. The States
identify no case from this court affirmatively holding that the
zone-of-interests test does not apply to a non-APA equitable
cause of action to enjoin conduct allegedly in excess of
statutory authority, and I am aware of none. Indeed, it makes
little sense, when evaluating a claim that Executive officials
exceeded the limitations in a federal statute, not to ask
whether the plaintiff is within the zone of interests protected
by those statutory limitations. Cf. Haitian Refugee Ctr. v.
Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (although
STATE OF CALIFORNIA V. TRUMP 85
plaintiff asserting ultra vires claim may not need to show that
its interests “fall within the zones of interests of the
constitutional and statutory powers invoked” by Executive
officials, when “a particular constitutional or statutory
provision was intended to protect persons like the litigant by
limiting the authority conferred,” then “the litigant’s interest
may be said to fall within the zone protected by the
limitation”) (emphasis added).20
* * *
Given that each of the States’ asserted theories fail, the
States lack any cause of action to challenge the DoD’s
transfer of funds under § 8005.
IV
Alternatively, even if the States had a cause of action,
their claims would fail on the merits, because the challenged
transfers did not violate § 8005 or § 9002. The States argue
that the transfers violated the first proviso of § 8005, which
states that the transfer authority granted by that section “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.”
20
Even if the States were correct that the zone-of-interests test does
not apply to a non-APA equitable cause of action, that would not
necessarily mean that such equitable jurisdiction extends, as the States
suggest, to the outer limits of Article III. Declining to apply the APA’s
generous zone-of-interests test might arguably render applicable the sort
of narrower review of agency action that preceded the APA standards
articulated in Data Processing, 397 U.S. at 153. See also Clarke,
479 U.S. at 400 n.16.
86 STATE OF CALIFORNIA V. TRUMP
132 Stat. at 2999. The requirements of this proviso likewise
limit the transfer authority under § 9002. See id. at 3042
(stating that the transfer authority in § 9002 is in addition to
that specified in § 8005, but “is subject to the same terms and
conditions as the authority provided in section 8005 of this
Act”). The States argue, and the majority agrees, that two of
the requirements in this proviso are not met, because (1) the
transfers were for an item for which Congress has denied
funding; and (2) they were not for “unforeseen military
requirements.” See Maj. Opin. at 37–47. I disagree.
A
The proviso states that the Secretary may not transfer
funds for an admittedly “higher priority item[] . . . than those
for which originally appropriated” if “the item for which
funds are requested has been denied by the Congress.”
132 Stat. at 2999. In my view, the Secretary’s transfers did
not violate this condition.
Determining whether Congress “denied” the relevant
“item” at issue here turns on the meaning of the phrase “the
item for which funds are requested.” According to the States,
the relevant “item” should be broadly defined to include any
“border barrier construction,” and Congress should be held to
have “denied” that item except to the extent that it
appropriated funds for “primary pedestrian fencing” in
§ 230(a)(1) of the Department of Homeland Security
Appropriations Act, 2019, see Pub. L. No. 116-6, Div. A,
§ 230(a)(1), 133 Stat. 13, 28 (2019). The States’ reading is
implausible, because it ignores the context of the
appropriations process that § 8005 addresses.
STATE OF CALIFORNIA V. TRUMP 87
As a provision designed to preserve Congress’s authority
over the appropriations process, § 8005’s restriction on
transfers can only be understood against the backdrop of that
process and of the role of transfers and reprogrammings in it.
Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748
(2019) (“It is a fundamental canon of statutory construction
that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”)
(simplified). That process is usefully set forth in Chapter 2 of
the GAO’s authoritative Principles of Federal Appropriations
Law, otherwise known as the “Red Book,” and I borrow
heavily from that treatise in setting forth that relevant context.
See Lincoln, 508 U.S. at 192 (citing Red Book in addressing
suit challenging reallocation of funds).
While Congress ordinarily appropriates funds annually for
agencies to use in specified amounts for enumerated
purposes, Congress has also recognized that “a certain
amount of flexibility” is sometimes warranted. See 2 U.S.
GOV’T ACCOUNTABILITY OFF. (“GAO”), PRINCIPLES OF
FEDERAL APPROPRIATIONS LAW (4th ed. 2016 rev.) (“RED
BOOK”), pt. B, § 7, 2016 WL 1275442, at *1. Two ways in
which such flexibility may be achieved are through “transfer
and reprogramming.” Id. A “transfer”—which is the specific
subject of § 8005—refers to “the shifting of funds between
appropriations,” and it is generally prohibited in the absence
of specific statutory authority. Id.; see also 31 U.S.C. § 1532.
By contrast, a “reprogramming shifts funds within a single
appropriation,” and in the absence of specific statutory
limitations on reprogramming, agencies have broad discretion
to do so “as long as the resulting obligations and expenditures
are consistent with the purpose restrictions applicable to the
appropriation.” See RED BOOK, 2016 WL 1275442, at *6
(emphasis added) (citing Lincoln, 508 U.S. at 192). In
88 STATE OF CALIFORNIA V. TRUMP
contrast to a transfer—which is easy to identify, because it
shifts funds between separate appropriations that are “well-
defined and delineated with specific language in an
appropriations act”—it is more difficult to identify what
counts as a reprogramming within an appropriation, because
the appropriations act itself “does not set forth the
subdivisions that are relevant to determine whether an agency
has reprogrammed funds.” See id. at *6. There is only a need
to identify a “reprogramming” when Congress has sought to
place limits on an agency’s ability to do so. See, e.g., Pub. L.
No. 111-80, § 712, 123 Stat. 2090, 2120–21 (2009) (requiring
15-days advance notice to Congress before certain
“reprogramming[s] of funds” may be made by various
agriculture-related agencies). In such cases, whether a shift
of funds within an appropriation counts as a reprogramming
is ordinarily determined by considering how the reallocation
of funds compares to the allocation of funds that was
contemplated during the appropriations process: “Typically,
the itemizations and categorizations in the agency’s budget
documents as well as statements in committee reports and the
President’s budget submission, contain the subdivisions
within an agency’s appropriation that are relevant to
determine whether an agency has reprogrammed funds.” RED
BOOK, 2016 WL 1275442, at *7 (emphasis added). GAO’s
Red Book illustrates the point with an example, drawn from
a prior opinion letter:
For instance, for FY 2012, the Commodity
Futures Trading Commission (CFTC)
received a single lump-sum appropriation. Id.
CFTC’s FY 2012 budget request included an
item within that lump sum to fund an Office
of Proceedings. A reprogramming would
occur if CFTC shifted amounts that it had
STATE OF CALIFORNIA V. TRUMP 89
previously designated to carry out the
functions of the Office of Proceedings to carry
out different functions.
Id. (citing GAO, B-323792, Commodity Futures Trading
Commission—Reprogramming Notification (Jan. 23, 2013))
(emphasis added).
Against this backdrop, the import of § 8005’s first proviso
is clear. In evaluating a transfer from one appropriation to
another, the Secretary must justify the transfer, not at the
broad level of each overall appropriation itself (i.e., not by
comparing the statutory appropriation category for “Drug
Interdiction and Counter-Drug Activities, Defense” versus
that for “Military Personnel, Army”), but rather at the same
“item” level at which the Secretary would have to justify a
reprogramming within an appropriation. See Pub. L. No.
115-245, Div. A, § 8005, 132 Stat. at 2999 (requiring
Secretary to compare whether the item to which the
transferred funds will be directed is a “higher priority” than
the items “for which originally appropriated”). The point of
reference for determining whether the destination “item”
justifies the transfer is therefore, as with a reprogramming,
“the itemizations and categorizations in the agency’s budget
documents as well as statements in committee reports and the
President’s budget submission.” RED BOOK, 2016 WL
1275442, at *7.
Several features of the language of § 8005 confirm this
reading. The statutory reference to “those [items] for which
originally appropriated,” 132 Stat. at 2999 (emphasis added),
is unmistakably a reference to the familiar concept of the
itemizations contained within the current appropriation, as set
forth in the already existing budgetary documents exchanged
90 STATE OF CALIFORNIA V. TRUMP
and generated during the appropriations process for DoD. Air
Wisconsin Airlines Corp. v. Hoeper, 571 U.S. 237, 248
(2014) (“It is a cardinal rule of statutory construction that,
when Congress employs a term of art, it presumably knows
and adopts the cluster of ideas that were attached to each
borrowed word in the body of learning from which it is
taken.”) (simplified). And because those “original[]” items
are to be compared with the new “items” for which the
transfer authority is to “be used,” 132 Stat. at 2999, these
latter “items” must likewise be understood as a reference to
the destination items within the transferee DoD appropriation.
Law v. Siegel, 571 U.S. 415, 422 (2014) (“[W]ords repeated
in different parts of the same statute generally have the same
meaning”).
The destination item is also referred to in the statute as
“the item for which funds are requested,” which is an unusual
way to refer to a transfer that an agency approves on its own.
132 Stat. at 2999 (emphasis added). But the use of that term
makes perfect sense when the language is again construed
against the background of the appropriations process, because
it is a common practice for agencies—despite the decision in
INS v. Chadha, 462 U.S. 919 (1983)—to “request” the
appropriations committees’ approval for transfers and
reprogrammings as a matter of comity. See Lincoln, 508 U.S.
at 193 (“[W]e hardly need to note that an agency’s decision
to ignore congressional expectations [concerning the use of
appropriations] may expose it to grave political
consequences”). That reading is confirmed by § 8005’s third
proviso, which enforces the exclusivity of the first proviso by
barring DoD from using any appropriated funds to “prepare
or present a request to the Committees on Appropriations for
reprogramming of funds,” unless it meets the requirements of
the first proviso. 132 Stat. at 2999 (emphasis added). This
STATE OF CALIFORNIA V. TRUMP 91
language also confirms what is already otherwise apparent,
which is that any transfer under § 8005 is to be analyzed, and
papered, as a request for “reprogramming of funds.” Id.
(emphasis added). Indeed, although DoD made a conscious
decision to depart from the comity-based practice of making
a request in this case, the House Committee on
Appropriations nonetheless proceeded to construe DoD’s
notification of the transfer as a “requested reprogramming
action” and “denie[d] the request.” See House Comm. on
Appropriations, Press Release: Visclosky Denies Request to
Use Defense Funds for Unauthorized Border Wall (Mar. 27,
2019), https://appropriations.house.gov/news/press-
releases/visclosky-denies-request-to-use-defense-funds-for-
unauthorized-border-wall.
For all of these reasons, the “items” at issue under § 8005
must be understood against the backdrop of the sort of
familiar item-level analysis required in a budgetary
reprogramming, and the benchmark for evaluating the
proposed destination item is therefore, as with any
reprogramming, the original allocation among items that is
reflected in the records of the DoD appropriations process.
Accordingly, when § 8005 requires a consideration of
whether “the item for which funds are requested has been
denied by the Congress,” it is referring to whether Congress,
during DoD’s appropriations process, denied an “item” that
corresponds to the “item for which funds are requested.”
Under that standard, this case is easy. The States do not
contend (and could not contend) that Congress ever “denied”
such an item to DoD during DoD’s appropriations process.
Instead, the States argue that a grant of funds to another
agency (DHS) in its appropriations, in an amount less than
that agency requested, should be construed as a denial of an
92 STATE OF CALIFORNIA V. TRUMP
analogous item to DoD under its entirely separate authorities
and appropriations. This disregards the appropriations-law
context against which § 8005 must be construed, which
makes clear that the relevant clause refers only to denials that
are applicable to DoD within the context of its appropriations
process. Taking into account the broader context of the
political struggle between the President and the Congress
over DHS’s requests for border-barrier funding, the majority
concludes that Congress thereby issued a “general denial” of
“border wall” funding, which should be construed as
“necessarily encompass[ing] narrower forms of denial—such
as the denial of a Section 284 budgetary line item request.”
See Maj. Opin. at 46–47. But § 8005’s proviso only applies
if, during the DoD appropriations process, such an item “has
been denied by the Congress,” 132 Stat. at 2999, and that
manifestly did not occur here, given that (1) no such request
was presented and denied during that process; and (2) indeed,
that process ended several months before the ultimate
“denial” that the majority claims we should now retroactively
apply to DoD’s transfer authority.
More fundamentally, the majority is quite wrong in
positing that § 8005 assigns to us the task of discerning the
contours of the larger political struggle between the President
and the Congress over border-barrier funding (including by
reviewing campaign speeches and the like), see Maj. Opin.
at 39, and then giving legal effect to what we think, based on
that review, is “Congress’s broad and resounding denial
resulting in a 35-day partial government shutdown,” id. at 47.
Our job under § 8005 is the more modest one of determining
whether a proposed item of DoD spending was presented to
Congress, and “denied” by it, during DoD’s appropriations
process, and all agree that that did not occur here. Any action
that Congress took in the separate appropriations process
STATE OF CALIFORNIA V. TRUMP 93
concerning DHS would create a “denial” as to DoD only if
there is some language in the DHS Appropriations Act that
somehow extends that Act’s denial vis-à-vis DHS to other
agencies.21 But the only relevant limitation in that Act that
even arguably extends beyond DHS is a prohibition on the
construction of “pedestrian fencing” in five designated parks
and refuge areas, see Pub. L. No. 116-6, Div. A, § 231, 133
Stat. at 28 (“None of the funds made available by this Act or
prior Acts are available” for such construction) (emphasis
added), but no one contends that this limitation is being
violated here. Beyond that, it is not our role under § 8005 to
give effect to a perceived big-picture “denial” that we think
is implicit in the “real-world events in the months and years
leading up to the 2019 appropriations bills.” Sierra Club v.
Trump, 929 F.3d at 691.
B
The majority alternatively holds that, even if Congress did
not deny the “item” in question, the transfers were still
unlawful because the requirements invoked by the Secretary
here to justify the transfers were neither “military” in nature
nor “unforeseen.” See Maj. Opin. at 37–46. The majority is
wrong on both counts.
21
Nor is this a situation in which DoD is invoking the transfer
authority to move funds into DHS’s appropriations. The destination item
here involves the authority under § 284 for DoD to undertake
“[c]onstruction of roads and fences” along the border. 10 U.S.C.
§ 284(b)(7). Indeed, § 8045(a) of the DoD Appropriations Act
specifically forbids DoD from “transferr[ing] to any other department”
any funds available to it for “counter-drug activities,” except “as
specifically provided in an appropriations law.” 132 Stat. at 3012.
94 STATE OF CALIFORNIA V. TRUMP
1
The DoD’s provision of support for counterdrug activities
under § 284 is plainly a “military” requirement within the
meaning of § 8005. As the majority notes, § 8005 does not
define the term “military,” see Maj. Opin. at 42, and so the
word should be given its ordinary meaning. Asgrow Seed Co.
v. Winterboer, 513 U.S. 179, 187 (1995). In common
parlance, the word “military” simply means “[o]f, relating to,
or involving the armed forces.” Military, BLACK’S LAW
DICTIONARY (11th ed. 2019); see also Military, AMERICAN
HERITAGE DICTIONARY (5th ed. 2018) (“Of, relating to, or
characteristic of members of the armed forces”; “Performed
or supported by the armed forces”); Military, WEBSTER’S
T HIRD N EW I NTERNATIONAL D ICTIONARY (1961)
(“WEBSTER’S THIRD”) (“of or relating to soldiers, arms, or
war”; “performed or made by armed forces”). Because
Congress, by statute, has formally assigned to DoD the task
of providing “support for the counterdrug activities” of other
departments through the “[c]onstruction of roads and fences
and installation of lighting to block drug smuggling corridors
across international boundaries of the United States,”
10 U.S.C. § 284(a), (b)(7), that task “relat[es] to” and
“involv[es] the armed forces,” and is “[p]erformed or
supported by the armed forces.” As such, it is a “military”
task.22
22
The majority is wrong in suggesting that the Government has never
argued that the construction projects “are related to the use of soldiers.”
See Maj. Opin. at 42. The Government affirmatively argues in its brief
that “the military may be, and here is, required to assist in combatting”
drug trafficking under § 284 (emphasis added). Moreover, the evidence
submitted to the district court showed that the construction was to be
carried out by the U.S. Army Corps of Engineers. Even granting that most
of that agency’s employees are civilians, the agency remains within the
STATE OF CALIFORNIA V. TRUMP 95
Two other textual clues support this conclusion. First, the
chapter heading for the chapter of Title 10 that includes § 284
is entitled, “Military Support for Civilian Law Enforcement
Agencies,” thereby further confirming that the support
authorized to be provided under § 284 counts as military
support. See Henderson v. Shinseki, 562 U.S. 428, 439
(2011) (title of subchapter aided in resolving ambiguity
concerning provision in that subchapter). Second, the DoD
Appropriations Act itself classifies the activities carried out
under § 284 as “military” activities. The Act recognizes, on
its face, that funds appropriated for “Drug Interdiction and
Counter-Drug Activities, Defense,” may be transferred out of
that appropriation under § 8005. See DoD Appropriations
Act, § 8007(b)(6), 132 Stat. at 3000 (exempting transfers of
funds out of this appropriation from an otherwise applicable
prohibition on transferring funds under § 8005). Given that
the transfer authority granted by § 8005 applies only to “funds
made available in this Act to the Department of Defense for
military functions (except military construction),” 132 Stat.
at 2999 (emphasis added), the Act necessarily deems funds in
the “Drug Interdiction and Counter-Drug Activities, Defense”
appropriation to be for “military functions.” The majority’s
insistence that such counter-drug functions are not “military”
activities thus flatly contradicts the statute itself.
The majority is also wrong in relying on the distinctive
definition given in 10 U.S.C. § 2801 for the phrase “military
construction.” See Maj. Opin. at 44–45. At the outset, this
makes little sense, because § 8005 states on its face that it
applies only to transfers between appropriations for “military
functions” and not for “military construction.” 132 Stat.
Department of the Army and is led by a military officer. See 10 U.S.C.
§§ 7011, 7036, 7063.
96 STATE OF CALIFORNIA V. TRUMP
at 2999 (emphasis added). Indeed, Congress has long
handled appropriations for “military construction” separately
from those for military functions, and it did so again for
Fiscal Year 2019: appropriations for “military construction”
were made in a separate appropriations statute enacted one
week before the DoD Appropriations Act. See Pub. L. No.
115-244, Div. C, Title I, 132 Stat. 2897, 2946 (2018). Of all
the terms to consider in construing “military” for purposes of
the DoD Appropriations Act, “military construction” may be
the least appropriate.
Moreover, the majority fails to recognize that “military
construction” is a term of art, with its own unique definition,
and it therefore provides an inapt guide for trying to discern
the meaning of “military” in a different phrase in a different
context. Absent a special definition, one would have thought
that the phrase “military construction” embraces any
“construction” that is performed by or for the “military.” See
supra at 94 (quoting definitions of “military”). But § 2801
more narrowly defines “military construction” as generally
referring only to “construction . . . carried out with respect to
a military installation . . . or any acquisition of land or
construction of a defense access road,” and it defines a
“military installation” as a “base, camp, post, station, yard,
center, or other activity under the jurisdiction of the Secretary
of a military department.” 10 U.S.C. § 2801(a), (c)(4).
Nothing about this distinctive definition of “military
construction” creates or reflects a general gloss on the word
“military,” much less does it suggest that the ordinary
meaning of “military” in other contexts carries all of this
baggage with it. The majority’s effort to import the specific
features of this term of art (“military construction”) into one
of the component words of that phrase makes neither
linguistic nor logical sense, and it is therefore irrelevant
STATE OF CALIFORNIA V. TRUMP 97
whether or not the § 284 activities at issue here meet that
definition.23
The majority also contends that, even if the activities
involved here are “military” ones, they still did not involve
“military requirements.” See Maj. Opin. at 45–45 (emphasis
added). That is wrong. The term “requirement” is not
limited to those tasks that DoD is compelled to undertake, nor
is it limited to those actions that DoD undertakes for itself.
The term also includes “something that is wanted or needed”
or “something called for or demanded,” see Requirement,
WEBSTER’S THIRD; see also Requirement, BLACK’S LAW
DICTIONARY (11th ed. 2019) (listing, as an alternative
definition, “[s]omething that someone needs or asks for”),
and that readily applies to the request for assistance that was
made to DoD in this case under § 284. We should be
23
The majority notes that the phrase “military construction” is used
in 10 U.S.C. § 2808, which “[t]he Federal Defendants have also invoked
. . . to fund other border wall construction projects on the southern
border.” Maj. Opin. at 44. But that statute was invoked only with respect
to a different set of funds to be used for activities that Defendants contend
do qualify as “military construction” for purposes of DoD’s additional
construction authority after a declaration of a national emergency. See
10 U.S.C. § 2808(a). The States also challenged the use of that separate
set of funds in their suit below, but these challenges form no part of the
Rule 54(b) partial judgment now before us, and any issue concerning them
has no bearing on the distinct questions presented here. Relatedly, the
President’s proclamation declaring such an emergency is relevant only to
that other set of funds and has no legal bearing on the Secretary’s transfers
here. Cf. Maj. Opin. at 12–13, 39 (discussing the declaration). And
Congress’s joint resolutions attempting to terminate the emergency
declaration, see id. at 39, are irrelevant for the further reason that they
were vetoed and never became law. See id. at 12 n.3; see also 50 U.S.C.
§ 1622(a)(1) (congressional termination requires “enact[ing] into law a
joint resolution terminating the emergency”); Chadha, 462 U.S. at
946–48.
98 STATE OF CALIFORNIA V. TRUMP
cautious before adopting an unduly crabbed reading of what
constitutes a military “requirement,” especially when
Congress has explicitly assigned a task to the military, as it
did in § 284. Cf. Winter v. Natural Res. Def. Council,
555 U.S. 7, 24 (2008) (“great deference” is generally given to
the military’s judgment of the importance of a military
interest).
Accordingly, DoD’s provision of support to DHS under
§ 284 involves a “military requirement[]” within the meaning
of § 8005. The majority errs in concluding otherwise.
2
The majority is likewise wrong in contending that DoD’s
need to provide assistance to DHS for these projects under
§ 284 was not “unforeseen” within the meaning of § 8005.
See Maj. Opin. at 37–42.
Once again, the majority fails to construe § 8005 against
the backdrop of the appropriations process. In ordinary
usage, “foresee” means “to see (as a future occurrence or
development) as certain or unavoidable: look forward to with
assurance.” Foresee, WEBSTER’S THIRD (emphasis added).
In the context of the appropriations process, an “item” has
been seen as certain or unavoidable only if it is reflected in
DoD’s budgetary submissions or in Congress’s review and
revision of those submissions. Conversely, it is “unforeseen”
if it is not reflected as an item in any of those materials. The
Red Book confirms this understanding. In explaining the
need for reprogramming, it quotes the Deputy Defense
Secretary’s statement that reprogramming allows agencies to
respond to “unforeseen changes” that are not reflected in the
STATE OF CALIFORNIA V. TRUMP 99
“budget estimates” on which the final appropriations are
based:
“The defense budget does not exist in a
vacuum. There are forces at work to play
havoc with even the best of budget estimates.
The economy may vary in terms of inflation;
political realities may bring external forces to
bear; fact-of-life or programmatic changes
may occur. The very nature of the lengthy
and overlapping cycles of the budget process
poses continual threats to the integrity of
budget estimates. Reprogramming procedures
permit us to respond to these unforeseen
changes and still meet our defense
requirements.”
RED BOOK, 2016 WL 1275442, at *5 (citation omitted). As
the GAO has explained, the question is not whether a
particular item “was unforeseen in general”; “[r]ather, the
question under section 8005 is whether it was unforeseen at
the time of the budget request and enactment of
appropriations.” U.S. GAO, B-330862, Department of
Defense—Availability of Appropriations for Border Fence
Construction at 7–8 (Sept. 5, 2019) (emphasis added),
https://www.gao.gov/assets/710/701176.pdf. Under this
standard, the items at issue here were “unforeseen”; indeed,
the States do not contend that funding for the DoD assistance
at issue here was ever requested, proposed, or considered
during DoD’s appropriations process.
In reaching a contrary conclusion, the majority makes two
legal errors. First, it makes precisely the mistake the GAO
identified, namely, it examines whether the “problem” (drug
100 STATE OF CALIFORNIA V. TRUMP
smuggling) and the “solution” (a border barrier) were
foreseen in general, rather than whether they were foreseen
within the appropriations process. See Maj. Opin. at 40–41.
Thus, in concluding that DoD’s need to provide assistance
under § 284 was not “unforeseen,” the majority relies on the
general premises that “the conditions at the border” have been
known to be a problem since at least the 1960s and that “the
President’s position that a wall was needed to address those
conditions” was publicly known well before he took office.
Id. at 35, 37. Second, by rejecting the view that “foreseen” is
equivalent to “known” or that it requires “actual knowledge,”
id. at 39–40, the majority effectively rewrites the statute as if
it said “foreseeable” rather than “foreseen.” Contrary to the
majority’s view that requiring foreknowledge would
“effectively eliminate[] any element of anticipation or
expectation,” see id. at 39, “foreseen” is commonly
understood to be interchangeable with “foreknown.” See,
e.g., Foresee, WEBSTER’S THIRD (listing “foreknow” as a
synonym). By wrongly shifting the focus away from whether
a current need matches up with the assumptions on which the
budget and appropriations were based, the majority’s errors
would preclude DoD from making transfers based on any
factors that were anticipated within the larger society and, as
a result, would essentially reduce the transfer power in § 8005
to a nullity.
3
DoD’s transfers here were thus based on “military”
“requirements” that were “unforeseen” within the meaning of
§ 8005. The States do not otherwise contest the Secretary’s
determination that the items in question were “higher
priority” items than “those for which originally
STATE OF CALIFORNIA V. TRUMP 101
appropriated.” This element of § 8005’s first proviso was
therefore also satisfied here.
C
The States contend that, even if the transfers complied
with the conditions in § 8005, the particular transfer that was
made under § 9002, see supra at 52–53, did not satisfy that
section’s additional requirement that transfers under that
section be made only “between the appropriations or funds
made available to the Department of Defense in this title.”
132 Stat. at 3042 (emphasis added). According to the States,
the appropriations under that title are only for “Overseas
Contingency Operations,” and the transferee appropriation
does not count. This argument is plainly incorrect. The
separate title in the DoD Appropriations Act that is entitled
“Overseas Contingency Operations” contains within it a
specific appropriation for “Drug Interdiction and Counter-
Drug Activities, Defense,” 132 Stat. at 3042, which is the
appropriation to which the funds were transferred. The fact
that the amounts in that fund are designated as funds for
“Overseas Contingency Operations/Global War on
Terrorism” for purposes of calculating budgetary caps under
§ 251(b)(2)(A)(ii) of the Balanced Budget and Emergency
Deficit Control Act of 1985, 2 U.S.C. § 901(b)(2)(A)(ii), does
not thereby impose an additional limitation on the purposes
for which such funds may be expended.
V
Based on the foregoing, I conclude that at least California
has Article III standing, but that the States lack any cause of
action to challenge these § 8005 and § 9002 transfers.
Alternatively, if the States did have a cause of action, their
102 STATE OF CALIFORNIA V. TRUMP
claims fail on the merits as a matter of law because the
transfers complied with the limitations in § 8005 and § 9002.
I therefore would reverse the district court’s partial grant of
summary judgment to the States and would remand the matter
with instructions to grant the Government’s motion for
summary judgment on this set of claims. Because the
majority concludes otherwise, I respectfully dissent.