El Paso Cnty. v. Trump

Decision Date11 October 2019
Docket NumberEP-19-CV-66-DB
Citation408 F.Supp.3d 840
Parties EL PASO COUNTY, Texas and Border Network for Human Rights, Plaintiffs, v. Donald J. TRUMP, in his official capacity as President of the United States of America, et al., Defendants.
CourtU.S. District Court — Western District of Texas

Anton Metlitsky, Pro Hac Vice, Ephraim A. McDowell, O'Melveny & Myers LLP, Matthew Dollan, Pro Hac Vice, Richard Mancino, Pro Hac Vice, Samantha G. Prince, Pro Hac Vice, Shaimaa Hussein, Pro Hac Vice, Willkie Farr & Gallagher LLP, Stephanie Llanes, Pro Hac Vice, Protect Democracy Project, Inc., New York, NY, Deana K. El-Mallawany, Pro Hac Vice, Protect Democracy Project, Inc., Laurence H. Tribe, Pro Hac Vice, Law Office, Cambridge, MA, Erica Newland, Pro Hac Vice, Justin Florence, Pro Hac Vice, Kristy Parker, Protect Democracy Project, Inc., Stuart M. Gerson, Pro Hac Vice, Epstein Becker & Green, P.C., David Bookbinder, Niskanen Center, Washington, DC, John Charles Padalino, The Law Office of John Padalino, Austin, TX, for Plaintiffs.

Andrew Irwin Warden, James Mahoney Burnham, U.S. Department of Justice, Michael Joseph Gerardi, U.S. Dept. of Justice, Civil Division, Fed. Programs Branch, Washington, DC, for Defendants.


On this day, the Court considered Plaintiffs El Paso County, Texas, ("El Paso County") and Border Network for Human Right's ("BNHR") (collectively, "Plaintiffs") "Motion for Summary Judgment or, in the alternative, a Preliminary Injunction" ("Motion"), filed in the above-captioned case on April 25, 2019. On June 10, 2019, Defendants Donald J. Trump, Patrick M. Shanahan, Kirstjen M. Nielsen, David Bernhardt, Steven T. Mnuchin, William Barr, John F. Bash, and Todd T. Semonite (collectively, "Defendants") filed their "Memorandum in Support of the Government's Cross-Motion to Dismiss or for Summary Judgment, and Opposition to Plaintiffs' Motion for Summary Judgment and a Preliminary Injunction" ("Cross-Motion"). On July 10, 2019, Plaintiffs filed a Reply. The Defendants filed their Reply on July 31, 2019. The Court held a hearing on the Motion and Cross-Motion on August 29, 2019.

On September 10, 2019, Plaintiffs filed their "Supplemental Brief in Light of Notice of Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808." On September 20, 2019, Defendants filed their "Supplemental Brief Addressing Border Barrier Construction Pursuant to 10 U.S.C. § 2808." On September 24, 2019, Plaintiffs filed their Reply. After due consideration, the Court is of the opinion that the Plaintiffs' Motion shall be granted.


This case presents questions regarding whether the proposed plan for funding border barrier construction exceeds the Executive Branch's lawful authority under the Consolidated Appropriations Act ("CAA"), the Appropriations Clause of the Constitution, the Military Construction Act10 U.S.C. § 2808 (" § 2808"), the Funding for Counterdrug Activities – 10 U.S.C. § 284 (" § 284"), and the National Emergency Act ("NEA").

In 2017, President Trump requested $999 million in congressional appropriations for "the first installment of the border wall." Budget Request, Pl.'s Mot. 5, ECF No. 55-6. A Republican-controlled Congress instead provided the Department of Homeland Security ("DHS") with $341.2 million "to replace approximately 40 miles of existing primary pedestrian and vehicle border fencing along the southwest border." CAA, Pub. L. No. 115–31, 131 Stat. 135, 434 (2017). In 2018, President Trump requested $1.6 billion in congressional appropriations for 74 miles of new or replacement border wall. FY 2018 Budget in Brief, Pl.'s Mot. 3, ECF No. 55-7. In response, Congress appropriated $1.571 billion for new border security technology and new and replacement fencing in specified areas on the southern border. CAA, Pub. L. No. 115–141 (2018) (to be printed at 132 Stat. 348, 616).

In January 2019, President Trump formally requested $5.7 billion for fiscal year 2019 "for construction of a steel barrier for the Southwest border." Letter to Appropriations Chairman 1, ECF No. 55-28. On February 14, 2019, Congress passed the 2019 CAA. Pub. L. No. 116–6 (2019) (to be printed at 133 Stat. 13). The CAA provides $1,375 billion for "the construction of primary pedestrian fencing" in "the Rio Grande Valley Sector." CAA § 230(a)(1). And it states that none of the funds appropriated by the Act can be used "for the construction of pedestrian fencing" in any other areas of the border. Id. § 231. A component of the CAA, § 739 of the Financial Services and General Government Appropriations Act, states:

None of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.

Pub. L. No. 116–6, div. D, § 739. On February 15, 2019, President Trump signed the CAA into law.

Also on February 15, 2019, the President issued a proclamation declaring that a national emergency exists at the southern border. See Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States, 2019 WL 643819, at *1 (Feb. 15, 2019) ("Proclamation").

The proclamation itself states:

The current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency. The southern border is a major entry point for criminals, gang members, and illicit narcotics. The problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch's exercise of existing statutory authorities, the situation has worsened in certain respects in recent years. In particular, recent years have seen sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending. If not detained, such aliens are often released into the country and are often difficult to remove from the United States because they fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to locate. In response to the directive in my April 4, 2018, memorandum and subsequent requests for support by the Secretary of Homeland Security, the Department of Defense has provided support and resources to the Department of Homeland Security at the southern border. Because of the gravity of the current emergency situation, it is necessary for the Armed Forces to provide additional support to address the crisis.

Proclamation No. 9844, 84 Fed. Reg. 4, 949.

In addition to declaring a national emergency, the President announced a plan, to be carried out by Defendant Acting Secretaries of Defense and Homeland Security, to use funds that Congress appropriated for other purposes to build a border wall. Most relevant, President Trump directed those Acting Secretaries to use: (1) $2.5 billion of the Department of Defense ("DOD") funds appropriated for Support for Counterdrug Activities under § 284 ; and (2) $3.6 billion of DOD funds appropriated for "military construction projects" under § 2808. President Donald J. Trump's Border Security Victory , White House Fact Sheet (Feb. 15, 2019) ("Fact Sheet"), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-border-security-victory/.

On September 3, 2019, Defendants gave the Court notice that the DOD has made a final determination to build eleven border wall projects using $3.6 billion in military construction funds under 10 U.S.C. § 2808. Notice of DOD Decision, ECF No. 112. And on September 5, 2019, Defendants gave notice identifying the military construction projects that Congress had already appropriated money for that will now lose funding in order to build those eleven wall projects. Supplemental Notice of DOD Decision, ECF No. 114. Most relevant for this case: the DOD will divert $20 million away from a planned military construction project at Fort Bliss in El Paso County, and one of the new wall projects will take place in southern New Mexico, in El Paso County's close vicinity. 2808 Deferrals in United States Territories 2, ECF No. 114–1.


The parties have filed cross-motions for summary judgment. Rule 56 of the Federal Rules of Civil Procedure mandates entry of summary judgment "if the 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) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Curtis v. Anthony , 710 F.3d 587, 594 (5th Cir. 2013). Defendants agree with Plaintiffs that this case presents questions of law for the Court to resolve that do not require further factual development through discovery. In these circumstances, the Court should enter either summary judgment for Defendants based on the parties' moving papers or dismiss the First Amended Complaint under Federal Rule of Civil Procedure 12.

Furthermore, the Court must dismiss a case under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction if it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998). The party asserting subject-matter jurisdiction has the burden of proving it exists by a preponderance of the evidence. See New Orleans & Gulf Coast Ry. Co. v. Barrois , 533 F.3d 321, 327 (5th Cir. 2008).

To survive a motion to dismiss under Civil Rule 12(b)(6), "a complaint...

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    ...this Court concludes that Washington's expected loss of tax revenue is sufficient to confer standing. See also El Paso County v. Trump , 408 F.Supp.3d 840, 851 (W.D. Tex. 2019) (El Paso County's potential loss in $4 million in tourism tax revenue due to "the perception that [El Paso] is cha......
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1 books & journal articles
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    • Harvard Journal of Law & Public Policy Vol. 44 No. 3, June 2021
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    ...within the zone of interests protected by Section 8005 to maintain this suit"); id. at 17-20. (157.) See, e.g., El Paso Cty. v. Trump, 408 F. Supp. 3d 840 (W.D. Tex. 2019); Ctr. for Biological Diversity v. Trump, 453 F. Supp. 3d 11 (D.D.C. (158.) See El Paso Cty., 408 F. Supp. 3d at 846. (1......

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