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State v. Trump

United States District Court, N.D. California

December 11, 2019

STATE OF CALIFORNIA, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants. SIERRA CLUB, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT Re: Dkt. Nos. 220, 236, 210, 236

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         Pending before the Court are cross-motions for partial summary judgment in two related cases, State of California v. Trump, No. 19-cv-00872-HSG, and Sierra Club v. Trump, No. 19-cv-00892-HSG.[1] Plaintiffs in both cases challenge Defendants' proposed reallocation of $3.6 billion in military construction funds under 10 U.S.C. § 2808 (“Section 2808”) to build a wall along the southern border of the United States. Section 2808 is just one of several alternative sources of funding that Defendants identified for border construction after Congress appropriated only $1.375 billion for that purpose in the Consolidated Appropriations Act of 2019 (“CAA”), far less than the $5.7 billion the President ultimately requested. Compare California, 19-cv-00872-HSG, Dkt. No. 59-4, Ex. 25, with CAA, Pub. L. No. 116-6, 133 Stat. 13 (2019). Plaintiffs assert that Defendants' reliance on Section 2808-like Defendants' other alternative funding plans- improperly circumvents the CAA and Congress' appropriations power under the Constitution.[2]Plaintiffs therefore seek declaratory and injunctive relief, prohibiting Defendants from using funds under Section 2808 to build border barriers.

         As the Court has previously explained, these two cases are not about-and the Court offers no opinion regarding-whether the challenged border barrier construction plan is sound policy. See City and County of San Francisco v. United States Citizenship and Immigration Services, No. 19-17213, (9th Cir. Dec. 5, 2019), Dkt. No. 27 at 2-3 (Bybee, J., concurring) (explaining that “even as we are embroiled in these controversies, no one should mistake our judgments for our policy preferences, ” and that “our thoughts on the efficacy of the one approach versus the other are beside the point, since our business is not to judge the wisdom of the National Government's policy” (quotation omitted)); Trump v. Hawaii, 138 S.Ct. 2392, 2423 (2018) (indicating that the Supreme Court “express[ed] no view on the soundness of the policy” at issue there); In re Border Infrastructure Envtl. Litig., 284 F.Supp.3d 1092, 1102 (S.D. Cal. 2018) (noting that the court “cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent”).[3] Neither does the Court here address any of the other sources of funding that Defendants have identified to pay for the border barrier construction. Rather, the issues currently before the Court are narrow: whether Defendants' proposed plan for funding border barrier construction under Section 2808 (1) exceeds the Executive Branch's statutory and constitutional authority; (2) is arbitrary and capricious under the Administrative Procedures Act, 5 U.S.C. §§ 551 et seq., (“APA”); and (3) violates the National Environmental Policy Act (“NEPA”).

         Nevertheless, the Court assesses these issues against a complicated and unprecedented backdrop. As an initial matter, presidents have only invoked Section 2808 twice since it was enacted in 1982. See Michael J. Vassalotti & Brendan W. McGarry, Military Construction Funding in the Event of a National Emergency, Cong. Research Serv., IN11017 (Jan. 11, 2019) at 2-3; Jennifer K. Elsea, Edward C. Lieu, & Jay B. Sykes, Can the Department of Defense Build the Border Wall, Cong. Research Serv., LSB10242 (Feb. 18, 2019) at 3-4. Of the military construction projects funded through Section 2808, only one was located in the United States, and that project related to securing facilities holding weapons of mass destruction shortly after the 9/11 attacks. See, e.g., Vassalotti, at 1-3; see also Sierra Club, 19-cv-00892-HSG, Dkt. No. 236-5, Ex. 5. And critically, a president has never before invoked Section 2808 to secure funding for projects that Congress specifically declined to fund in its appropriations judgment. Id. Yet here the President has been explicit in his intention to obtain funds for border barrier construction, with or without Congress. See, e.g., California, 19-cv-00872-HSG, Dkt. No. 59-4, Exs. 13, 21; Sierra Club, 19-cv-00892-HSG, Dkt. No. 36-3, Ex. C. Accordingly, the President invoked Section 2808 the day after Congress passed the CAA, which provided limited funding for, and contained restrictions regarding funding for, border barrier construction. See CAA, § 230(a)(1), 133 Stat. at 28.

         The Court heard argument on these motions on November 20, 2019. See California, 19-cv-00872-HSG, Dkt. No. 250; Sierra Club, 19-cv-00892-HSG, Dkt. No. 248. After carefully considering the parties' arguments, the Court GRANTS IN PART Sierra Club Plaintiffs' partial motion for summary judgment; GRANTS IN PART State Plaintiffs' partial motion for summary judgment; and DENIES Defendants' motions. // //

         I. BACKGROUND

         A. Factual Background

         The Court has detailed the lengthy history of these cases in its prior orders, and incorporates the factual background in full. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 144. The Court also briefly summarizes and notes subsequent factual developments as relevant to this order.

         i. Emergency Declaration

         Following the longest partial government shutdown in the nation's history, Congress passed the CAA on February 14, 2019, making available $1.375 billion “for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector.” See CAA, § 230(a)(1), 133 Stat. at 28. On February 15, 2019, the President signed the CAA into law. See generally Id. That same day, the President invoked his authority under the National Emergencies Act (“NEA”), Pub. L. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50 U.S.C. §§ 1601-51), and declared that “a national emergency exists at the southern border of the United States.” See Proclamation No. 9844, 84 Fed. Reg. 4, 949 (Feb. 15, 2019) (“Proclamation No. 9844”). The proclamation further “declar[ed] that this emergency requires use of the Armed Forces, ” and made available “the construction authority provided in [S]ection 2808.” Id. When announcing the proclamation, the President explained that he initially “went through Congress” for the $1.375 billion in funding, but was “not happy with it.” See California, No. 19-cv-00872-HSG, Dkt. No. 59-4, Ex. 50.

         Since that time, Congress has sought to terminate the national emergency on two separate occasions. On March 14, 2019, Congress passed a joint resolution to terminate the emergency declaration. See H.R.J. Res. 46, 116th Cong. (2019). On March 15, 2019, the President vetoed the joint resolution. See Veto Message to the House of Representatives for H.J. Res. 46, The White House (Mar. 15, 2019), https://www.whitehouse.gov/briefings-statements/veto-message-house-representatives-h-j-res-46/. Congress failed to override the President's veto. See 165 Cong. Rec. H2799, H2814-15 (2019). On September 27, 2019, Congress passed a second joint resolution to terminate the emergency declaration. See S.J. Res. 54, 116th Cong. (2019). And on October 15, 2019, the President vetoed the second joint resolution. See S.J. Res. 54 Veto Message, The White House (Oct. 15, 2019), https://www.whitehouse.gov/presidential-actions/s-j-res-54-veto-message/ (“S.J. Res. 54 Veto Message”). Again, Congress failed to override the veto. See S.J. Res. 54, 116 Cong. (2019). Congress has an ongoing obligation to consider whether to terminate the emergency every six months, but the President's declaration of a national emergency remains in effect.[4] See 50 U.S.C. § 1622(a)-(b).

         ii. Military Construction Funds and Diverted Projects

         On February 11, 2019, prior to the President's proclamation and invocation of Section 2808, the Chairman of the Joint Chiefs of Staff submitted a preliminary assessment to the Acting Secretary of Defense regarding whether and how military construction projects could support the use of the armed forces in addressing a national emergency at the southern border. See California, No. 19-cv-00872-HSG, Dkt. No. 212 (“Administrative Record” or “AR”)[5] at 119-124. The memorandum explained that the Department of Homeland Security (“DHS”) identified specific geographic areas in which border barriers could allow Department of Defense (“DoD”) personnel and resources “to be employed more efficiently” and “reduce DHS requirements for DoD support.” Id. However, although the President authorized use of military construction funds under Section 2808 in his February 15 proclamation, Defendants did not exercise this authority for several months.

         Instead, in the intervening months, the Chairman of the Joint Chiefs of Staff submitted a supplemental assessment on May 6, 2019, regarding military construction projects at the southern border. See AR at 59-70. In the updated memorandum, the Chairman again concluded that such construction “can reasonably be expected to support the use of the armed forces by enabling more efficient use of DoD personnel, and may ultimately reduce the demand for military support over time.” See Id. at 60. The Chairman explained that although “any border barrier construction supports the use of the armed forces on the border to some extent, ” the Joint Chiefs prioritized fifteen projects, totaling $3.6 billion. See Id. at 63. On May 15, 2019, Defendants informed the Court that the Under Secretary of Defense had identified existing military construction project funding to divert for border barrier construction pursuant to Section 2808, but that the Acting Secretary of Defense had “not yet decided to undertake or authorize any barrier construction projects under § 2808.” See California, 19-cv-00872-HSG, Dkt. No. 151 at 3.

         Then on September 3, 2019, the Secretary of Defense announced that he had decided to authorize eleven specific border barrier construction projects in California, Arizona, New Mexico, and Texas, pursuant to Section 2808. See California, 19-cv-00872-HSG, Dkt. Nos. 206, 206-1, Ex. 1. In doing so, he reiterated that these projects “will reduce the demand for DoD personnel and assets to other high-traffic areas on the border without barriers.” See id., Dkt. No. 206-1, Ex. 1. He concluded that “[i]n short, these barriers will allow DoD to provide support to DHS more efficiently and effectively.” Id.

         Collectively, the eleven projects total $3.6 billion and include 175 miles of border barrier construction across four states. Id. These projects fall into three categories:

• Two projects on the Barry M. Goldwater Range military installation in Arizona;
• Seven projects on federal public domain land that is under the jurisdiction of the Department of the Interior; and
• Two projects on non-public land that would need to be acquired through either purchase or condemnation before construction could begin.

See id., Dkt. Nos. 206 at 2-4, 206-1, Ex. 1. The Secretary of Defense authorized the Secretary of the Army “to expeditiously undertake the eleven border barrier military construction projects, ” including taking the necessary steps to acquire the public domain and non-public land as part of “the Army's real property inventory, either as a new military installation or as part of an existing military installation.” See id., Dkt. No. 206-1, Ex. 1 at 1; see also AR at 3-6, 9-10, 30-31. That same day, in a briefing on the use of Section 2808, DoD representatives explained that the $3.6 billion would “all go to adding significantly new capabilities to DHS's ability to prevent illegal entry.” See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 210-2, Ex. 17 at 5.

         Two days later, on September 5, 2019, the Secretary of Defense identified which military construction projects DoD intended to defer in order to fund the border barrier construction projects. See California, 19-cv-00872-HSG, Dkt. Nos. 207, 207-1, Ex. 1. In total, the Secretary of Defense authorized diverting funding from 128 military construction projects, domestically and abroad. See id., Dkt. No. 207-1, Ex. 1. Sixty-four of the defunded military construction projects are located within the United States; and nineteen projects, totaling over $500 million, are within Plaintiff States California, Colorado, Hawaii, Maryland, New Mexico, Oregon, Virginia, and Wisconsin. See id.; see also id., No. 19-cv-00872-HSG, Dkt. No. 220-5, Exs. 2-19.

         The Secretary of Defense explained that he sought to identify projects for defunding and deferral based on the projects' timing, and thus the 128 projects “are not scheduled for award until fiscal year 2020 or later.” See AR at 13. Doing so, he stated, would “provide [DoD] time to work with [Congress] to determine opportunities to restore funds for these important military construction projects . . . .” California, 19-cv-00872-HSG, Dkt. No. 206-2, Ex. 2 at 2; cf. S. 1790, 116th Cong. § 2906 (“Replenishment of Certain Military Construction[] Funds”). The deferred projects include rebuilding hazardous materials warehouses at Norfolk and the Pentagon; replacing a daycare facility for servicemembers' children at Joint Base Andrews, which reportedly suffers from “sewage backups, flooding, mold and pests”; and improving security to comply with anti-terrorism and force protection standards at Kaneohe Bay. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 202-1, Ex. 1; id., Dkt. No. 210-2, Ex. 18; see also California, No. 19-cv-00872-HSG, Dkt. No. 232 (Brief of Amici Curiae Iraq and Afghanistan Veterans of America) (“IAVA Brief”).

         In accordance with the Secretary of Defense's directive, the Secretary of the Army has taken steps over the past few months to obtain administrative jurisdiction over some of the land for the border barrier construction projects. On October 7, 2019, the Secretary of the Interior announced the transfer of approximately 560 acres of federal lands to the Department of the Army for a period of three years for border barrier construction in Arizona, California, and New Mexico. See California, No. 19-cv-00872-HSG, Dkt. No. 220-5, Ex. 1. Additionally, on October 8, 2019, the Secretary of the Army issued General Order No. 2019-36, which automatically assigns all land transferred to the Army for Section 2808 border barrier construction projects to the U.S. Army Garrison Fort Bliss, Texas, irrespective of the location of the land. See id., Dkt. No. 236-7, Ex. 7.

         During the hearing on the motions for partial summary judgment, Defendants' counsel also represented to the Court that there have been two contracts awarded related to the border barrier construction projects. See California, No. 19-cv-00872-HSG, Dkt. No. 254 at 81:2-24. The first contract relates to the projects on the Barry M. Goldwater Range, in Arizona: that contract was awarded on November 6, 2019, and ground disturbing activity was anticipated to start no earlier than November 27, 2019. Id. The second contract relates to a project in San Diego County, California: that contract was awarded on November 19, 2019, and ground disturbing activity was anticipated to start no earlier than December 9, 2019. Id.

         B. Procedural History

         Following the passage of the CAA and the President's national emergency declaration in February 2019, the State and Sierra Club Plaintiffs filed suit challenging Defendants' anticipated diversion of federal funds for border barrier construction pursuant to several statutory provisions. These include reallocating funds from the Treasury Forfeiture Fund; DoD's Appropriations Act of 2019 under Section 8005 and 10 U.S.C. § 284; and DoD appropriations for military construction projects under Section 2808. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 36-7, Ex. G at 2- 4; see also id., Dkt. No. 64-8, ¶¶ 5-6.

         The Court first preliminarily enjoined Defendants' use of funds for two border barrier construction projects in New Mexico and Arizona under Section 8005. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 144. The Court reasoned that Plaintiffs were likely to show that (1) the language and purpose of Section 8005 precluded Defendants' transfer and use of funds for construction of border barriers because Congress had already explicitly denied those requested funds; (2) the need for such funds was not unforeseen as the Administration had requested such funding as early as 2018; and (3) Defendants' proposal likely would violate the Constitution's separation of powers principles to the extent it bypassed Congress' appropriations authority. Id. At the time, Sierra Club Plaintiffs also sought a preliminary injunction to preclude Defendants' proposed use of Section 2808. See id., Dkt. No. 29 at 13-15, 23-25. However, the Court found that Plaintiffs could not show irreparable harm as needed to warrant an injunction because as of May 2019, Defendants had not yet made a final decision as to whether to use Section 2808 funds. Id., Dkt. No. 144 at 51-53.

         The Court subsequently affirmed its ruling on Defendants' use of Section 8005, granting in part the motions for partial summary judgment filed by California, New Mexico, and the Sierra Club Plaintiffs, and denying Defendants' motions for partial summary judgment. See California, No. 19-cv-00872-HSG, Dkt. No. 185; Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 185. The Court entered a permanent injunction, prohibiting Defendants from taking any action to construct a border barrier in the six sectors that Defendants identified in New Mexico, Arizona, and California, using funds reprogrammed by DoD under Section 8005. Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 185 at 10.

         Following the Court's summary judgment orders, Defendants filed an emergency application with the Ninth Circuit for a stay of the injunction. On July 3, 2019, the Ninth Circuit motions panel denied the stay application, finding that Defendants' border barrier construction was not authorized by any statutory appropriation, such that the proposed reprogramming and use of these funds violated the Appropriations Clause. See Sierra Club v. Trump, 929 F.3d 670, 676- 77 (9th Cir. 2019). The motions panel further held-over Defendants' objection-that Plaintiffs have an equitable cause of action to challenge Defendants' funding proposal as unconstitutional, and that Plaintiffs satisfied any “zone of interests” test that may apply to their claim. See Id. at 694-704; see also Section III.A below.

         On July 26, 2019, the Supreme Court stayed the permanent injunction pending resolution of the government's appeal before the Ninth Circuit and any subsequent writ of certiorari. See Trump v. Sierra Club, 140 S.Ct. 1 (2019). In the one-paragraph decision, the Supreme Court stated that “the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005.” Id. The Supreme Court, however, provided no further explication of its reasoning, and the appeal before the Ninth Circuit regarding Section 8005 remains pending.

         In the interim, the parties agreed to stay the summary judgment briefing schedule as to Section 2808 and the Treasury Forfeiture Fund until the Acting Secretary of Defense and U.S. Customs and Border Protection (“CBP”), respectively, reached a final decision to fund specific barrier construction projects under these provisions. See California, No. 19-cv-00872-HSG, Dkt. Nos. 199, 200; Sierra Club, No. 19-cv-00892-HSG, Dkt. Nos. 191, 197. Because the Secretary of Defense has since announced his authorization for border barrier construction projects pursuant to Section 2808, as detailed in Section I.A.ii above, the parties now move for partial summary judgment as to this proposal.

         II.LEGAL STANDARD

         Summary judgment is proper when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986), and “may not weigh the evidence or make credibility determinations, ” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). If a court finds that there is no genuine dispute of material fact as to only a single claim or defense or as to part of a claim or defense, it may enter partial summary judgment. Fed.R.Civ.P. 56(a).

         III. DISCUSSION

         A. Plaintiffs' Cause of Action

         As a threshold matter, Defendants contend that Plaintiffs lack a cause of action through which they may challenge the proposed use of military construction funds under Section 2808. They argue that Plaintiffs may not seek equitable relief through an implied cause of action under the Constitution, and that Plaintiffs fall outside the zone of interests protected by Section 2808 and the CAA. As Defendants acknowledge, they raised the same arguments before this Court and the Ninth Circuit motions panel in the context of Plaintiffs' challenge to funding a border wall using Section 8005. In response, the Ninth Circuit engaged in a detailed discussion-and rejection-of each point, concluding that “Plaintiffs have an avenue for seeking relief.” See Sierra Club, 929 F.3d at 694-704; see also Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 245 (Brief of Amici Curiae Federal Courts Scholars).

         First, the Ninth Circuit held that Plaintiffs could challenge the reprogramming of funds under Section 8005 “through an equitable action to enjoin unconstitutional official conduct.” Sierra Club, 929 F.3d at 694. Plaintiffs' argument there, as here, is that Defendants' attempt to reprogram funds for border barrier construction violates the Appropriations Clause, and thus separation of powers principles, because “Defendants lack any background constitutional authority to appropriate funds.” See Id. at 696. The Ninth Circuit confirmed that such a claim is “fundamentally a constitutional one, ” and “Plaintiffs may seek equitable relief to remedy an alleged constitutional violation.” Id. at 695-97. That Defendants rely on Section 8005 (or here, Section 2808) as the basis for their efforts to reallocate funds for border barrier construction does not convert a constitutional claim into a statutory one. See Id. at 697 (“It cannot be that simply by pointing to any statute, governmental defendants can foreclose a constitutional claim.”).

         Second, the Ninth Circuit expressed “doubt[] that any zone of interests test applies to Plaintiffs' equitable cause of action to enjoin a violation of the Appropriations Clause.” Id. at 700. A zone of interests test is used “to ‘determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim.'” Id. (quoting Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014)). The test “ask[s] whether the plaintiff's ‘interests fall within the zone of interests protected by the law invoked.'” Id. (quoting Lexmark, 572 U.S. at 129). The Ninth Circuit highlighted the problems with applying a zone of interests test to Plaintiffs' constitutional claim: “[W]here the very claim is that no statutory or constitutional provision authorized a particular governmental action, it makes little sense to ask whether any statutory or constitutional provision was written for the benefit of any particular plaintiffs.” Id. at 701 (emphasis omitted). Moreover, “[b]ecause the Constitution was not created by any act of Congress, it is hard to see how the zone of interests test would even apply.” Id. at 702. Thus, the Court concluded that “it is likely sufficient here that Plaintiffs would be concretely injured by the alleged Appropriations Clause violation, and that no zone of interests test applies to their claim.” Id. at 701.

         Third, even if a zone of interests test did apply to such a constitutional claim, the Ninth Circuit explained that the proper inquiry is whether Plaintiffs fall within the zone of interests of the constitutional provision, and not the statute Defendants raise in defense. Id. at 703-04. The Court explained that “individuals, too, are protected by the operations of separation of powers and checks and balances, ” and thus, Plaintiffs' contention “that their rights or liberties were infringed by a violation of the Appropriations Clause . . . falls within any zone of interests required to enforce that clause's provisions.” Id. at 704 (quotation omitted).

         i. Miller v. Gammie

         Defendants urge the Court to disregard the Ninth Circuit's reasoning in light of the Supreme Court's opinion staying the permanent injunction as to Section 8005. See Trump, 140 S.Ct. at 1. Defendants argue that the “Supreme Court decision sends a strong signal” that they ultimately will prevail on the claim that their exercise of authority under Section 8005 may not be challenged by these Plaintiffs. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 236 at 11. This claimed “strong signal” is based on a sentence in the Supreme Court's stay order stating that “the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005.” See Trump, 140 S.Ct. at 1.[6] However, notwithstanding Defendants' characterization of this “signal, ” the Court may not so readily disregard the Ninth Circuit's opinion. The Ninth Circuit has cautioned that only in cases of “clear irreconcilability” can district courts “consider themselves bound by the intervening higher authority and reject the prior opinion of [the Ninth Circuit] as having been effectively overruled.” Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). “This is a high standard, ” which “requires [the district court] to look at more than the surface conclusions of the competing authority.” Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013) (quotation omitted).

         At this stage, the Court can only speculate regarding the reasoning underlying the stay, including what it means for how the Supreme Court may ultimately assess the merits of these two cases.[7] As Justice Breyer explained, “[t]his case raises novel and important questions about the ability of private parties to enforce Congress' appropriations power.” Trump, 140 S.Ct. 1 (Breyer, J., concurring in part and dissenting in part). Because the Supreme Court opinion does not address these questions directly, the Court cannot find that it is “clearly irreconcilable with the reasoning or theory” in the Ninth Circuit panel opinion. See Miller, 335 F.3d at 899; accord Close v. Sotheby's, Inc., 894 F.3d 1061, 1074 (9th Cir. 2018) (holding that even where a prior panel opinion's “reasoning would be suspect today, [] it is not clearly irreconcilable with intervening higher authority”); Doe v. Trump, 284 F.Supp.3d 1182, 1184-85 (W.D. Wash. 2018) (“[T]his court is not at liberty to simply ignore binding Ninth Circuit precedent based on Defendants' divination of what the Supreme Court was thinking when it issued the stay orders . . . .”). The Ninth Circuit's opinion in Sierra Club v. Trump therefore controls this Court's analysis.

         ii. Zone of Interests

         Following the Ninth Circuit's reasoning, as it must, the Court finds that Plaintiffs may challenge Defendants' funding for border barrier construction under Section 2808. As with their challenge to Defendants' use of funds under Section 8005, Plaintiffs' claim that Defendants' use of military construction authority under Section 2808 violates the Appropriations Clause is “fundamentally a constitutional” claim. See Sierra Club, 929 F.3d at 696-97. And to the extent Plaintiffs must fall within the zone of interests of the Appropriations Clause to assert this claim, see Id. at 703-04, the Court finds this “low bar” easily satisfied here. See Cook v. Billington, 737 F.3d 767, 771 (D.C. Cir. 2013) (Kavanaugh, J.) (“A plaintiff with Article III standing satisfies the requirement unless his 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.” (quotation omitted)).

         The Court first looks to the fundamental interests protected by the Appropriations Clause, and observes that the importance of those interests cannot be overstated. The Appropriations Clause “is particularly important as a restraint on Executive Branch officers: If not for the Appropriations Clause, the Executive would possess an unbounded power over the public purse of the nation; and might apply all its monied resources at his pleasure.” U.S. Dep't of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012) (Kavanaugh, J.) (quotation omitted). As such, members of the public, and not just Congress, have an interest in ensuring that the Constitution's checks on executive power are upheld. As the Ninth Circuit noted, “[t]he Appropriations Clause is a vital instrument of separation of powers, which has as its aim the protection of individual rights and liberties-not merely separation for separation's sake.” Sierra Club, 929 F.3d at 704. Both State and Sierra Club Plaintiffs assert that if Defendants proceed with their proposed spending plan in contravention of Congress' appropriations judgment, they will suffer injury to their “environmental, professional, aesthetic, and recreational interests.” Id. In short, the Court finds that Plaintiffs have a cause of action to challenge Defendants' invocation of Section 2808 as unconstitutional, and proceeds to analyze this claim below.

         B. Section 2808

         The Ninth Circuit's opinion in Sierra Club v. Trump further guides the Court's analysis of Plaintiffs' constitutional claim. See Sierra Club, 929 F.3d at 689-92. Plaintiffs' claim-and the legal theory undergirding both cases-is that Defendants seek to circumvent Congress' appropriations power, and its judgment to provide the Administration with limited funds for specified and limited border barrier construction, by seeking funding through alternative channels. Defendants' counsel characterized the Administration's approach as “a full-court press, ” meaning they are using any means that they contend are available to them to fund a border wall. See California, No. 19-cv-00872-HSG, Dkt. No. 254 at 73:5-19. Although Plaintiffs appear to challenge all funding for border barrier construction outside of the CAA, for purposes of this order, Defendants contend that in Section 2808, Congress allowed Defendants to make this reallocation from existing military construction projects to the border barrier construction. Because Congress only exercises its appropriations power through statutes, the Ninth Circuit accordingly focused its analysis on the text and purpose of Defendants' asserted defense. Sierra Club, 929 F.3d at 689-92. The critical inquiry, therefore, is whether Section 2808 authorizes this reallocation. If it does not, “then Defendants are acting outside of any statutory appropriation and are therefore spending funds contrary to Congress's appropriations decisions.” Id. at 689. The Court therefore analyzes whether Defendants' conduct falls within the statutory authority provided by Section 2808.

         Under Section 2808, the Secretary of Defense may use funds previously appropriated for other projects in limited circumstances where three factors are satisfied: (1) there is a national emergency that requires use of the armed forces, and (2) “military construction projects” are (3) “necessary to support such use of the armed forces.” See 10 U.S.C. § 2808(a). Plaintiffs challenge all three conditions, arguing that Defendants fail to satisfy any of them.

         i. ...


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