Tonight, the United States District Court for the Northern District of California (Gilliam, J.) issued an injunction as follows:
Defendants Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense, Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, Steven T. Mnuchin, in his official capacity as Secretary of the Department of the Treasury, and all persons acting under their direction, are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as Yuma Sector Project 1 and El Paso Sector Project 1 using funds reprogrammed by DoD under Section 8005 of the Department of Defense Appropriations Act, 2019.
Slip op. at 55
The court’s reasoning is succinctly summed up in the conclusion of the opinion as follows:
Congress’s “absolute” control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one. See [U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012)] at 1346–47 (“The power over the purse was one of the most important authorities allocated to Congress in the Constitution’s ‘necessary partition of power among the several departments.’”) (quoting The Federalist No. 51, at 320 (James Madison)). The Appropriations Clause is “a bulwark of the Constitution’s separation of powers among the three branches of the National Government,” and is “particularly important as a restraint on Executive Branch officers.” Id. at 1347. In short, the position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds “without Congress” does not square with fundamental separation of powers principles dating back to the earliest days of our Republic. See City & Cty of San Francisco, 897 F.3d at 1232 (“[I]f the decision to spend is determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened.”) (internal quotation marks and brackets omitted) (quoting Clinton, 524 U.S. at 451) (Kennedy, J., concurring). Justice Frankfurter wrote in 1952 that “[i]t is not a pleasant judicial duty to find that the President has exceeded his powers,” Youngstown, 343 U.S. at 614 (Frankfurter, J., concurring), and that remains no less true today. But “if there is a separation-of-powers concern here, it is between the President and Congress, a boundary that [courts] are sometimes called upon to enforce.” E. Bay Sanctuary Covenant, 909 F.3d at 1250; see also Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 825–26 (9th Cir. 2017) (“To declare that courts cannot even look to a statute passed by Congress to fulfill international obligations turns on its head the role of the courts and our core respect for a co-equal political branch, Congress.”). Because the Court has found that Plaintiffs are likely to show that Defendants’ actions exceeded their statutory authority, and that irreparable harm will result from those actions, a preliminary injunction must issue pending a resolution of the merits of the case.
Slip opinion at 54-55.
I have posted a copy of the opinion here.
