California v. Trump, Case No. 19-cv-00872-HSG

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: HAYWOOD S. GILLIAM, JR., United States District Judge
• Citation: 407 F.Supp.3d 869
• Parties: 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.
• Docket Number: Case No. 19-cv-00892-HSG,Case No. 19-cv-00872-HSG
• Decision Date: 11 December 2019

407 F.Supp.3d 869

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.

Case No. 19-cv-00872-HSG
Case No. 19-cv-00892-HSG

United States District Court, N.D. California.

Signed December 11, 2019

407 F.Supp.3d 876

Dror Ladin, Pro Hac Vice, Hina Shamsi, Pro Hac Vice, Jonathan L. Hafetz, Pro Hac Vice, Noor Zafar, Pro Hac Vice, Omar C. Jadwat, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Andre Ivan Segura, ACLU Foundation of Northern California, Inc., David A. Donatti, Pro Hac Vice, ACLU of Texas, Houston, TX, Christine Patricia Sun, Mollie M Lee, Cecillia Derphine Wang, ACLU Foundation of Northern California, San Francisco, CA, Gloria Diantha Smith, Sanjay Narayan, Sierra Club, Oakland, CA, for Plaintiff.

Andrew Irwin Warden, Rachael Westmoreland, Eric Grant, James Mahoney Burnham, U.S. Department of Justice, Civil Division, Washington, DC, for 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. No. 220, 236

Re: Dkt. Nos. 210, 236

HAYWOOD S. GILLIAM, JR., United States District Judge

407 F.Supp.3d 877

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, 944 F.3d 773, 808–09, 2019 WL 6726131, *27 (9th Cir. Dec. 5, 2019), Dkt. No. 27 at 2–3 (Bybee, J., concurring) (explaining that "even as we are embroiled

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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 , ––– U.S. ––––, 138 S. Ct. 2392, 2423, 201 L.Ed.2d 775 (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

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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

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