FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 3 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SIERRA CLUB; SOUTHERN BORDER No. 19-16102 COMMUNITIES COALITION, 19-16300 Plaintiffs-Appellees, D.C. No. 4:19-cv-00892-HSG Northern District of California, v. Oakland DONALD J. TRUMP, in his official ORDER capacity as President of the United States; et al., Defendants-Appellants. Before: CLIFTON, N.R. SMITH, and FRIEDLAND, Circuit Judges. Order by Judges Clifton and Friedland Dissent by Judge N.R. Smith CLIFTON and FRIEDLAND, Circuit Judges: This emergency proceeding arises from a challenge to a decision by the President and certain of his cabinet members (collectively, “Defendants”)1 to 1 When federal officials are parties to litigation, we usually refer to them collectively as “the Government.” That terminology seems inapt in this proceeding given that the question before us is whether the Executive Branch of the federal government is attempting to exercise authority that is allocated by the Constitution to the Legislative Branch of the federal government, and whether the Executive Branch is doing so without authorization from the Legislative Branch. “reprogram” funds appropriated by Congress to the Department of Defense (“DoD”) for Army personnel needs and to redirect those funds toward building a barrier along portions of our country’s southern border. This reprogramming decision was made after President Trump had repeatedly sought appropriations from Congress for the construction of a border barrier. Although Congress provided some funding for those purposes, it consistently refused to pass any measures that met the President’s desired funding level, creating a standoff that led to a 35-day partial government shutdown. The President signed the budget legislation that ended the shutdown, but he then declared a national emergency and pursued other means to get additional funding for border barrier construction beyond what Congress had appropriated. One of those means, and the one at issue in this emergency request for a stay, was a reprogramming of funds by DoD in response to a request by the Department of Homeland Security (“DHS”). Specifically, DoD relied on section 8005 of the Department of Defense Appropriations Act of 2019 and related provisions to reprogram approximately $2.5 billion, moving the funds from DoD to DHS, for the purpose of building And the House of Representatives, which is part of the Legislative Branch, has filed an amicus brief opposing the Executive Branch’s position. To avoid confusion, we therefore refer to the President and the cabinet members sued here collectively as “Defendants.” 2 border barriers in certain locations within Arizona, California, and New Mexico. Section 8005 authorizes the Secretary of Defense to transfer funds for military purposes if the Secretary determines that the transfer is “for higher priority items, based on unforeseen military requirements” and “the item for which funds are requested has [not] been denied by the Congress.” Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999 (2018) (hereinafter “section 8005”). The Sierra Club and the Southern Border Communities Coalition (collectively, “Plaintiffs”) sued Defendants to enjoin the reprogramming and the funds’ expenditure. They argued ...
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