Theodore Griswold | Partner | ted.griswold@procopio.com
A panel of the 9th Circuit Court of Appeals has affirmed a District Court’s judgment enjoining the Department of Defense’s use of Trump Administration ordered budgetary transfers to fund construction of a Border Wall on the southern border of the United States in California, New Mexico, and Arizona, including across the Tohono O’odham Nation, Cocopah, and Quechan lands.
The decision found that Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 (“Section 8005”) did not and could not authorize the budgetary transfers to fund construction of the wall at the direction of the Executive Branch (Trump Administration). The panel held that the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. The panel noted that the Appropriations Clause of the U.S. Constitution exclusively grants the power of the purse to Congress. The panel further held that the transfer of funds violated the Appropriations Clause, and therefore was unlawful and unconstitutional. In 2018, Congress refused to fund construction of the Border Wall, which led to the Trump Administration attempt to unilaterally divert appropriations through section 8005.
The construction of the Border Wall had been proceeding using the 8005 funds (which should now be halted), and relying on an administrative waiver to avoid the application of 28 federal environmental or cultural protection statutes from applying to the use of the funds. As a result of the administrative waivers, the project was able proceed without a requirement to investigate and mitigate environmental and cultural impacts caused by the wall construction. Ironically, this made it easier for the Sierra Club to makes its constitutional claim, as the project would self-evidently cause environmental, cultural and recreational harm. If the plaintiff’s in the case could prove standing based upon harm caused by environmental, cultural and recreational harm (as found in this decision), they had standing to sue under the Appropriations Clause.
This can be an important avenue for Tribal Governments and communities to use in challenging the wall construction across their lands and other Administrative actions that use waivers to circumvent required consultation and environmental review.
As of this publication, there has been no reaction to the case by the Department of Homeland Security or the Trump Administration. Concurrent with the Sierra Club decision, the Circuit Court filed an opinion in the companion case, State of California, et al. v. Trump, et al., Nos. 19-16299 and 19-16336, slip op. at 37 (9th Cir. filed June 26, 2020), in which it also held that Section 8005 did not authorize the transfer of funds at issue because “the border wall was not an unforeseen military requirement,” and “funding for the wall had been denied by Congress” and concluded that Section 8005 did not authorize the transfer of funds.
Ted Griswold leads Procopio’s Real Estate and Environmental Team, which includes the Native American Law Practice Group. He is the primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.
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