State v. Trump

Decision Date27 February 2020
Docket NumberCASE NO. 2:19-cv-01502-BJR
Citation441 F.Supp.3d 1101
Parties STATE of Washington, Plaintiff, v. Donald J. TRUMP, et al., Defendants
CourtU.S. District Court — Western District of Washington

Andrew R. W. Hughes, Brendan C. Selby, Martha Rodriguez-Lopez, Attorney General's Office (Sea-Fifth Ave), Seattle, WA, for Plaintiff

Andrew I. Warden, Leslie C. Vigen, US Dept. f Justice, Washington, DC, for Defendants

Barbara Jacobs Rothstein, U.S. District Court Judge


This matter comes before the Court on the parties' cross motions for summary judgment. The State of Washington ("Washington," "the State," or "Plaintiff") brings this lawsuit—and the instant motion for summary judgment—to enjoin Defendants1 from diverting $88.96 million in funding from a construction project located at the Naval Submarine Base Bangor ("the Bangor Project") on the Kitsap Peninsula in Washington, to construction of a wall along the United States-Mexico border. Defendants cross move for summary judgment and seek dismissal of the State's claims, arguing among other things that the State lacks Article III standing to pursue the claims, and that their actions are authorized by statute.

The circumstances in which this conflict arises are well-known. President Trump has long advocated for a border wall between the United States and Mexico; Congress has refused to appropriate the funds he requested to build the wall. This impasse led to the nation's longest government shutdown, beginning in December 2018 and ending 35 days later on January 25, 2019 when Congress passed, and the President signed, a stopgap spending measure to reopen the government for three weeks while a bipartisan committee negotiated an agreement on border security. On February 14, 2019, Congress passed the Consolidated Appropriations Act of 2019 ("CAA") in which it appropriated $1.375 billion to the Department of Homeland Security for border security. This amount was far less than the $5.7 billion President Trump had requested.

The President signed the CAA into law, but concurrently issued a proclamation under the National Emergencies Act, 50 U.S.C. §§ 1601 - 1651, in which he declared that a national emergency existed at the southern border of the United States. Pursuant to this proclamation, the President invoked 10 U.S.C. § 2808, a military construction funding provision that according to the Trump Administration allows the Department of Defense to "reprogram" funds appropriated by Congress for military construction projects away from those projects and instead use the monies to build the border wall. Thereafter, the Department of Defense identified which military construction projects it intends to defer in order to fund the border wall. The Bangor Project is among the deferred projects.

Washington's arguments are based on both statutory and constitutional grounds. First, because the Trump Administration is implementing its plan through its federal executive departments—namely, the Department of Defense and the Department of Homeland Security—Washington challenges the Defendants' actions through the familiar legal framework of the Administrative Procedures Act ("APA"), which grants federal courts oversight over the actions of these departments. The State contends that the decision to reprogram the Bangor Project funds must be set aside pursuant to the APA on three independent grounds: first, 10 U.S.C. § 2808 does not authorize Defendants' actions, and therefore the decision is "in excess of statutory ... authority;" second, the actions are barred by the CAA and therefore "not in accordance with the law;" and third, the decision is "arbitrary [or] capricious." 5 U.S.C. § 706(2)(A),(C) ). The State also argues that Defendants' actions run afoul of the separation of powers enshrined in the Constitution, and in particular that Defendants' actions violate, inter alia, the Appropriations Clause and the Presentment Clause.2 Washington asks this Court to permanently enjoin Defendants' efforts to reprogram the military construction funds.

Having reviewed the cross motions for summary judgment, the responsive pleadings, amici curiae briefs3 , the record of this case, and the relevant legal authorities, and having heard oral argument,4 the Court will grant in part Washington's motion and deny Defendants' motion. The reasoning for the Court's decision follows.

A. The President's Negotiations with Congress

As stated above, the President campaigned on the promise to build "The Wall" between the United States and Mexico. Five days after taking the oath of office, President Trump issued an Executive Order stating that it is the policy of the Executive Branch to "secure the southern border of the United States through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism."5

Upon taking office, President Trump sought $2.6 billion in appropriations from Congress for barrier construction along the southern border.6 ,7 Congress declined to appropriate the amount requested, instead allocating $1.571 billion for border security.8 Members of Congress introduced several bills throughout 2018 that would have appropriated additional billions for border barrier construction along the southern border, but ultimately Congress declined to pass any of these bills. See Sierra Club v. Trump , 929 F.3d 670, 677 (9th Cir. 2019) (listing bills). In fact, between 2017 and 2018, Congress considered and rejected at least ten additional bills to fund the border wall. Id.

Unhappy with Congress's repeated refusal to appropriate the funds he requested for the border wall, in December 2018, President Trump declared that he would not sign any government funding bill that did not allocate substantial funding for a physical barrier along the United States' southern border.9 He also repeatedly stated that he was willing to declare a national emergency in order to obtain funding for the wall if Congress refused to allocate the funds.10

Congress did not pass a funding bill with the President's requested border barrier appropriations, and as a result, the United States entered the longest partial federal government shutdown in its history. During the shutdown, the President "request[ed] $5.7 billion for construction of a steel barrier" of approximately "234 miles of [a] new physical barrier" along "the Southwest border" of the United States.11 As stated above, the government shutdown ended without an agreement on the amount to be provided for border barrier funding.12 Instead, Congress passed and the President signed a stopgap spending measure to reopen the federal government for three weeks, Sierra Club , 929 F.3d at 678 (citing H.R.J. Res. 28, 116th Cong. (2019)), and a bipartisan committee of House and Senate lawmakers was created to "put together a Homeland Security package" within the "next 21 days" for the President to "sign into law."13

B. The Consolidated Appropriations Act of 2019

On February 14, 2019, Congress passed the Consolidated Appropriations Act of 2019 ("CAA"). Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019). The CAA consolidated into one bill appropriations acts related to different federal agencies, including the Department of Homeland Security Appropriations Act for Fiscal Year 2019. See id. , div. A. The CAA made available $1.375 billion—less than one quarter of the $5.7 billion sought by the President—for border barrier security. Further, the CAA placed several limitations on how the funds could be spent.14

Most importantly, being well-aware of President Trump's repeated threats to declare a national emergency if Congress did not provide him with the full $5.7 billion he requested to build the border wall, Congress included § 739 in the CAA. Section 739 provides:

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 appropriations Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.

Id. at § 739. President Trump signed the CAA into law the following day.

C. The President Issues Proclamation No. 9844

The same day that the President signed the CAA into law, he issued Proclamation No. 9844 under the National Emergencies Act, declaring that "a national emergency exists at the southern border of the United 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

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