In 2018, President Donald Trump asked Congress to appropriate $5.7 billion for construction of a wall on the U.S.-Mexico border. On February 14, 2019, Congress denied that request and instead appropriated only $1.375 billion. Although President Trump signed this appropriations bill, he simultaneously declared a national emergency under the National Emergencies Act, and directed the Departments of Defense, Homeland Security, and the Treasury to reallocate military and other funds in order to build the border wall.

Five days later, the Sierra Club and the Southern Border Communities Coalition responded by filing this lawsuit in the U.S. District Court for the Northern District of California, seeking to prevent construction of the wall. They sued the president, the Department of Defense, the Department of Homeland Security, and the Department of the Treasury under the National Environmental Policy Act (42 U.S.C. §4332), the Administrative Procedure Act (5 U.S.C. §§701–706), the All Writs Act (28 U.S.C. §1651), and the Declaratory Judgments Act (28 U.S.C. §2201), seeking declaratory and injunctive relief.

The plaintiffs, represented by the ACLU, ACLU of Northern California, and ACLU of Texas, argued that the president’s attempt to fund the wall using the National Emergencies Act was a constitutional violation. The Constitution grants Congress exclusive authority to control appropriations. Although Congress has given the president some authority under the National Emergencies Act, the plaintiffs argued that the Act was never intended to allow the president to circumvent explicit appropriations decisions of Congress. His actions were therefore a violation of the constitutional principle of separation of powers.

Statutorily, the plaintiffs argued that funding the wall was an inappropriate use of the National Emergencies Act because (a) there was no national emergency, (b) the border wall was not a military construction project, as required by the Act, and (c) the border wall was not “necessary to support…the armed forces.”

Finally, they alleged that the president and the defendant departments were in violation of the National Environmental Policy Act, because they had failed to review the environmental impacts of the border wall construction project.

The case was assigned to Judge Haywood S. Gilliam, Jr., who ordered it related to Sierra Club v. Trump on March 6, 2019.

The plaintiffs filed an amended complaint on March 18, 2019. On April 4, they moved for a preliminary injunction, seeking to prevent construction along certain stretches of the border (Yuma Sector Projects 1 and 2, and El Paso Sector Project 1). The United States House of Representatives filed an amicus brief in support of the plaintiffs, and was permitted to present arguments at the Preliminary Injunction Hearing held on May 17, 2019. On May 24, 2019, the court granted a preliminary injunction prohibiting the Departments of Defense, Homeland Security, and the Treasury from taking any action to build the wall using certain reallocated military funds. The injunction applied only to two of the three sectors requested by the plaintiffs (Yuma Sector Project 1 and El Paso Sector Project 1). 379 F. Supp. 3d 883.

On May 29, 2019, the government appealed the preliminary injunction to the Ninth Circuit, and moved for the district court to stay the injunction pending appeal (a motion that the district court denied the following day). Also on May 29, the plaintiffs moved for a supplemental preliminary injunction, seeking to prevent construction along four additional stretches of the border (El Centro Project 1 and Tucson Sector Projects 1, 2, and 3).

In June 2019, both parties moved for partial summary judgment. On June 28, the court denied the government’s motion for summary judgment, and partially granted the plaintiffs’. It declared that the government’s use of certain military funds to build the wall in the disputed sectors was unlawful, and issued a permanent injunction prohibiting the government from using those funds to build in those sectors. The court certified its judgment for immediate appeal, but declined to stay the injunction pending appeal. 2019 WL 2715422. The following week, on July 3, the Ninth Circuit similarly denied the government’s motion for stay. 929 F.3d 670.

Later that month, on July 26, 2019, the Supreme Court of the United States overruled the district court and the Ninth Circuit, granting a stay of the injunction pending completion of the appeal in the Ninth Circuit. 140 S.Ct. 1.

The plaintiffs sought summary judgment on some issues on October 11, 2019. Like the June 28, 2019 ruling, the issues in dispute here regarded the legality of reallocating funds for wall construction; however, this motion dealt with a different source of funds, and covered more segments of the border. The government similarly moved for summary judgment on October 25, 2019. The House of Representatives again filed a brief in support of the plaintiffs, and was again allowed to present argument. A hearing on summary judgment took place on November 20, 2019, after which the court granted partial summary judgment to the plaintiffs on December 11, 2019, denying the government’s motion. Like on June 28, 2019, it ruled that it was unlawful for the government to use certain reallocated funds for construction on the disputed border segments, and issued a permanent injunction. However, unlike in June, the district court immediately stayed its injunction pending appeal, citing the Supreme Court’s July 26 ruling.

On December 30, 2019, the Ninth Circuit denied the plaintiffs’ motion to lift the stay, also citing the Supreme Court’s ruling. It further explained that since the Western District of Texas had issued a nationwide injunction on December 10, which covered the sections of wall at issue in this case, lifting the stay would have no practical effect.

On February 5, 2020, the plaintiffs dismissed their claims regarding border wall funding reallocated from yet another source (the Treasury Forfeiture Fund). In light of this dismissal, the court sought to close the case, since all of the plaintiffs’ claims had been resolved by summary judgment or voluntary dismissal. The parties jointly requested that the case remain open: although the claims regarding fiscal year 2019’s appropriations had been resolved, they expected that similar disputes would arise regarding fiscal year 2020’s budget. The fiscal year 2020 dispute, however, was assigned to another case, Sierra v. Trump, filed by the plaintiffs on February 28, 2020 (docket number 4:20-cv-01494). The two cases were ordered related on March 2, 2020.

On June 26, 2020, the Ninth Circuit upheld the district court’s June 28, 2019 ruling, including the permanent injunction. However, due to the Supreme Court’s July 26, 2019 order, the injunction remains stayed until the government’s appeal to the Supreme Court is either decided or rejected.

Mackenzie Walz - 03/17/2019
Gregory Marsh - 07/10/2020
Rebecca Fisher - 11/18/2020


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