Bench Memos

Law & the Courts

Ninth Circuit’s Oh-So-‘Humble’ Bar on Border-Wall Funding

In two separate rulings today in Sierra Club v. Trump and California v. Trump, a divided panel of the Ninth Circuit ruled that the plaintiffs have causes of action (legal claims) to challenge the Trump administration’s transfer of appropriated funds to build a border wall with Mexico and, further, that such transfer is unlawful. In the Sierra Club case, the panel majority—Ninth Circuit chief judge Sidney Thomas, joined by Judge Kim McLane Wardlaw—affirmed the district court’s grant of a permanent injunction enjoining expenditure of the transferred funds. In California v. Trump, it affirmed the district court’s declaratory judgment that such expenditure would be unlawful. Judge Daniel P. Collins dissented in both cases.

If this dispute sounds familiar, that might be because a year ago in this same Sierra Club case another divided panel of the Ninth Circuit left in place, pending consideration of the government’s appeal, the district court’s permanent injunction against the use of transferred funds. Three weeks later, the Supreme Court, by a 5-to-4 vote, overrode the Ninth Circuit’s ruling and block the district court’s injunction from taking effect. In so doing, the Court stated: “Among the reasons [for overriding the Ninth Circuit] is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005 [i.e., of the transfer of appropriated funds].”

The panel majority purports to “heed the words of the Court” and to be “wary and humble,” for, it says, “it is not a pleasant judicial duty to find that the President has exceeded his powers.” (The majority is quoting and embracing language from a concurring opinion by Justice Frankfurter.) But, for the reasons that Judge Collins spells out in his dissents, it is difficult to contend that the majority has acted cautiously and humbly.

The opinions in the two cases span nearly 200 pages, so, even though there is a fair amount of overlap between the cases, it is not an easy matter to present the key points of division concisely. But I’ll take a stab.

1. On whether plaintiffs have a cause of action

Sierra Club: The majority holds that Sierra Club has a constitutional cause of action. (Sierra Club at 25-31.) Circuit precedent, it says, establishes that the Appropriations Clause provides a cause of action to challenge violations of that provision. It rejects the government’s argument that the “zone of interests” test limits who has a cause of action under the Appropriations Clause. (Pp. 37-40.)

Collins argues that, under the Supreme Court’s ruling in Dalton v. Specter (1994), Sierra Club’s supposed constitutional cause of action is a statutory claim “dressed up in constitutional garb” and, in any event, is governed by, and cannot satisfy, the zone-of-interests test. (Pp. 70-79; see also pp. 59-69 on zone of interests of section 8005.)

The majority also holds that Sierra Club has “an equitable ultra vires cause of action.” (Pp. 31-36.) Collins replies that even if such a cause of action exists, it also is subject to, and can’t satisfy, the zone-of-interests limitations. (Pp. 79-80.)

California: The majority holds that plaintiffs California and New Mexico have a cause of action under the Administrative Procedure Act. (California at 30-36.) They satisfy the applicable zone-of-interests test, in its view, “because their interests are congruent with those of Congress and are not inconsistent with the purposes implicit in the statute.” (Internal quotation omitted.)

Collins disagrees that the states satisfy the zone-of-interests test. Section 8005 is “aimed at tightening congressional control over the appropriations process” and has nothing to do with the environmental interests that the states assert. (Pp. 61-74.)

2. On the legality of transferring the funds

Section 8005 provides that its transfer authority “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.”

The majority holds that the need for a border wall was not “unforeseen” (California at 37-42) and that the need was not related to a military requirement (pp. 42-46). It also holds that Congress denied the item for which funds were requested (pp. 46-47).

Collins responds, first, that Congress did not deny the relevant “item” at issue. The “item,” he argues, is not properly “broadly defined to include any ‘border barrier construction” but must instead by understood “at the same ‘item’ level at which the Secretary would have to justify a reprogramming with an appropriation.” (Pp. 85-93.)

Collins also disputes the majority’s conclusion that the need was unrelated to a military requirement, as the Department of Defense’s provision of support for counterdrug activities is plainly a military requirement. (Pp. 94-98.) The majority is also wrong, he argues, in concluding that the need for a border wall was not “unforeseen.” In the context of the appropriations process, an item is foreseen only if it is reflected in DoD’s budgetary submissions or in Congress’s review and revision of those submissions. (Pp. 98-100.)


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