Supreme Court Stays Injunction That Had Blocked a Portion of the Administration’s Border Wall Funding

Supreme Court Stays Injunction That Had Blocked a Portion of the Administration’s Border Wall Funding

Legal Sidebari

Supreme Court Stays Injunction That Had
Blocked a Portion of the Administration’s
Border Wall Funding
Updated July 29, 2019
UPDATE: On July 26, 2019, the Supreme Court in a divided decision stayed a June 28 injunction issued
by a federal district court in California that had permanently prohibited the Trump Administration from
using Sections 8005 and 9002 of the 2019 Department of Defense Appropriations Act to transfer any of
the $2.5 billion it had proposed to use for border-barrier projects. The Trump Administration had
appealed the district court’s permanent injunction to the U.S. Court of Appeals for the Ninth Circuit and
asked that court to stay the injunction pending appeal, but the Ninth Circuit denied the Trump
Administration’s request earlier this month. In its order issuing a stay, the Supreme Court stated that
“[a]mong the reasons” for its order was that the Trump Administration had “made a sufficient showing .
. . that the plaintiffs have no cause of action to obtain review of” the Administration’s transfer of funds
pursuant to the 2019 Department of Defense Appropriations Act (discussed below). The Court did not
rule on the lawfulness of the Trump Administration’s actions. The stay is in effect during the pendency of
the Trump Administration’s appeal until the resolution of any petition for certiorari to the Supreme Court.
As a result, the Trump Administration may now use funds transferred under Sections 8005 and 9002 to
pay for border barrier construction.
In the interim, both houses of Congress continue to move through the annual appropriations process. The
House of Representatives has passed its version of the Department of Defense Appropriations Act for FY
2020 and its version of the National Defense Authorization Act (NDAA) for FY 2020. The House version
of the 2020 Defense Appropriations Act contains a provision prohibiting the use of funds for the
construction of border barriers, as does the House-passed version of the NDAA. Meanwhile, the Senate
has passed its version of the NDAA for FY 2020, which does not appear to include such a prohibition.
The original post from June 17, 2019 is below.
In recent months, the Trump Administration has taken steps to secure additional funds to pay for the
construction of barriers along the U.S.-Mexico border, and various entities have brought suits challenging
the lawfulness of those actions. On May 24, 2019, the U.S. District Court for the Northern District of
California issued a preliminary injunction in one lawsuit, Sierra Club v. Trump, barring the
Administration from using funds reprogrammed under Section 8005 of the 2019 Department of Defense
Congressional Research Service
https://crsreports.congress.gov
LSB10310
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

Congressional Research Service
2
Appropriations Act to pay for specified barrier construction projects in New Mexico and Arizona while
the lawsuit is pending. But the court declined to issue a preliminary injunction with respect to any
construction project not involved in that lawsuit (even if Section 8005 is used to fund the project) or to
opine on the lawfulness of the Trump Administration’s other proposed funding sources.
This Sidebar discusses the district court’s determination that Section 8005 does not authorize the transfer
of funds for border wall construction. Next, it addresses how the court dealt with the Administration’s use
of other funding sources. Finally, the Sidebar identifies potential considerations for Congress.
Background
The Trump Administration has long declared the deployment of additional fencing, walls, and other
barriers along the U.S.-Mexico border to be a priority and has sought to secure funding from Congress for
this purpose. To that end, earlier this year the Administration requested that Congress appropriate $5.7
billion for additional border barrier construction, but Congress did not grant this request. Following an
extended lapse in appropriations due to disagreement on this issue, President Trump signed the
Consolidated Appropriations Act of 2019, which appropriated $1.375 billion to DHS for “the construction
of primary pedestrian fencing” along a portion of the U.S. southern border. But the Trump Administration
said it would deploy additional fencing by tapping other appropriated amounts to fund complementary
construction activities by the Department of Homeland Security (DHS), the lead agency responsible for
deterring illegal border crossings, and the Department of Defense (DOD).
On February 15, 2019, President Trump announced that his Administration would reprogram money from
three sources. First, the President proposed to withdraw $601 million in unobligated funds from the
Treasury Forfeiture Fund available “for obligation or expenditure in connection with the law enforcement
activities of any Federal agency” to be used by DHS for border wall construction. Second, the President
proposed to use the transfer authority in Section 8005 of the 2019 Department of Defense Appropriations
Act to transfer $2.5 billion to the DOD drug interdiction fund. These funds would then be used by DOD
pursuant to 10 U.S.C. § 284, which authorizes DOD (upon request) to assist another agency’s
“counterdrug activities” through the construction of “roads and fences and installation of lighting to block
drug smuggling corridors across international boundaries of the United States.” On March 25, 2019, the
Administration invoked Section 8005 to transfer $1 billion originally appropriated for military personnel
costs for specific border barrier projects in New Mexico and Arizona. Third, the President stated that, in
connection with his declaration of a national emergency along the U.S. southern border, he would invoke
his authority under 10 U.S.C. § 2808 to repurpose $3.6 billion allocated to “military construction
projects” for border wall construction.
Lawsuits challenging the lawfulness of the Administration’s actions have been filed in federal district
courts in California, Texas, and the District of Columbia. (The last of these cases, brought by the U.S.
House of Representatives, was recently dismissed on standing grounds.) In late May, the U.S. District
Court for the Northern District of California issued a decision in Sierra Club v. Trump, concluding that
Section 8005 does not authorize the transfer of money for border wall construction. As a result, the court
issued a preliminary injunction barring the Administration from using $1 billion in funds transferred
under Section 8005 to fund specified projects in New Mexico and Arizona while the lawsuit is pending.
Having granted a preliminary injunction in Sierra Club, the same district court judge declined to enter a
preliminary injunction in California v. Trump—a related suit challenging the same proposed use of
Section 8005 at issue in Sierra Club.

Congressional Research Service
3
Preliminary Injunction on Use of Section 8005 To Fund Arizona and New
Mexico Fencing Projects
A fundamental question in Sierra Club and other lawsuits challenging the Administration’s recent border
fence deployment strategy is whether the Trump Administration has authority to spend federal dollars in
the manner it has proposed. The Constitution gives Congress the power of the purse, providing that “[n]o
money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.” Courts
have recognized that this clause confers on Congress “‘absolute’” authority over federal expenditures,
such that no entity can “‘authorize the expenditure of funds beyond what Congress has approved.’” To
enforce this prerogative, Congress has provided by statute that “[a]ppropriations shall be applied only to
the objects for which the appropriations were made” and that money “may be withdrawn from one
appropriation account and credited to another . . . only when authorized by law.”
For DOD appropriations, that authorization is currently found in Section 8005 of the 2019 Department of
Defense Appropriations Act. While this provision grants the Secretary of Defense authority to “transfer”
up to $4 billion of DOD funds “for military functions (except military construction),” it also imposes
restrictions on when this authority may be invoked. As relevant here, Section 8005’s “authority to
transfer” may only be used for “higher priority items, based on unforeseen military requirements, than
those for which originally appropriated.” And even then, Section 8005 is unavailable “where the item for
which funds are requested has been denied by the Congress.”
The district court in Sierra Club concluded that Section 8005 does not authorize the transfer of funds for
the construction of border barriers because the transfer was for an “item” for which funds had been denied
by Congress and because, in any event, the asserted need for the construction of border barriers was not
“unforeseen.” (The plaintiffs had not argued that the Trump Administration’s proposed construction fell
within the “military construction” exclusion in Section 8005 and the court’s decision did not address that
issue.)
With respect to whether the transfer was for an item for which Congress had denied funds, the Trump
Administration had argued to the court that the relevant “item for which funds [were] requested” was
DOD’s assistance to DHS for “counterdrug activities” under 10 U.S.C. § 284, rather than the construction
of border barriers generally. On this theory, because Congress had not “denied” a request for additional
funding for Section 284 “counterdrug activities,” Section 8005 would not prohibit the transfer. The court
rejected this characterization and found instead that the historical context leading up to the transfer—
including the previous disagreement between the Administration and Congress regarding the appropriate
funding levels for border barriers that resulted in an extended lapse in appropriations—indicated that the
“item for which funds [were] requested” was the construction of border barriers, regardless of the agency
doing the constructing or the statutory authority on which it relied. “[T]he reality is that Congress was
presented with—and declined to grant—a $5.7 billion request for border barrier construction,” the court
concluded. Thus, “[b]order barrier construction, expressly, is the item [the Administration] now seek[s] to
fund via the Section 8005 transfer, and Congress denied the requested funds for that item.”
The court relied on portions of Section 8005’s legislative history to support this conclusion. In particular,
the court cited portions of a House report from 1973—when Congress first added the language in Section
8005 to DOD’s annual appropriations bill—to conclude that Congress originally enacted this provision to
“‘tighten congressional control of the reprogramming process’’’ and to “‘prevent the funding for programs
which have been considered by Congress and for which funding has been denied.’” In the court’s view, an
interpretation of Section 8005 that would allow the Administration to transfer money for border wall
construction despite Congress’s refusal to appropriate the amount of money requested for that purpose
would undermine Section 8005’s objective.

Congressional Research Service
4
The court also determined that Section 8005’s transfer authority was unavailable because the
Administration’s proposed border wall construction was not an “unforeseen military requirement[]” for
which funding could be reprogrammed under the statute. The Administration had argued that the proposed
border barrier construction (i.e., the “military requirement”) was “unforeseen” because the need for DOD
to provide support to DHS via 10 U.S.C. § 284 was not known until DHS had requested that assistance—
which occurred after the President’s budget request and after Congress had passed the DOD
appropriations bill. The district court, however, rejected this effort to define the “unforeseen . . .
requirement[]” with reference to the particular statutory authority relied on to fulfill that requirement
(e.g., Section 284). On this theory, the court explained, “every request for Section 284 support” would be
unforeseen because the need to rely on that particular statutory authority would only ever arise at the time
another agency requests DOD’s assistance under that provision. Further, the district court reasoned that
“[the Administration’s] argument that the need for the requested border barrier construction funding was
‘unforeseen’ cannot logically be squared with the Administration’s multiple requests for funding” for a
border wall.
Finally, the court invoked the canon of constitutional avoidance to support its reading of Section 8005.
Under this rule of statutory interpretation, when there are two possible interpretations of a statute, one of
which would raise serious constitutional concerns, courts should adopt the interpretation that avoids the
constitutional difficulties. According to the district court, the Administration’s proposed interpretation of
Section 8005 would “pose serious problems under the Constitution’s separation of powers principles”
because it would allow the executive branch to “render meaningless Congress’s constitutionally-
mandated power” to control federal expenditures by “ceding essentially boundless appropriations
judgment” to the executive branch. Avoiding these potential pitfalls was, in the court’s view, an additional
reason to reject the Administration’s broader interpretation of Section 8005.
On these grounds, the court decided that the plaintiffs would likely succeed on their claim that the
Administration could not lawfully use Section 8005 to transfer funds for border wall construction. Thus,
after finding the remaining preliminary injunction requirements satisfied, the court entered an order
temporarily prohibiting the Administration from using the $1 billion of funds transferred under Section
8005 to construct the specific border barrier projects in New Mexico and Arizona at issue in the lawsuit.
Consideration of Other Funding Sources
While the district court’s decision in Sierra Club addressed the lawfulness of the Administration’s
proposed use of Section 8005’s transfer authority, its decision in that case and in the related case of
California v. Trump did not resolve whether the Administration could lawfully use the Treasury Forfeiture
Fund or Section 2808 to secure additional border barrier funding. The court viewed it as unnecessary to
reach these legal questions at the preliminary injunction stage of the litigation because it concluded that
the plaintiffs had not shown a likelihood of irreparable harm from the use of either funding source.
Nonetheless, though declining to definitively rule on the scope of Section 2808, the court proceeded to
analyze that provision’s text and ultimately expressed doubts that border barrier construction “could
reasonably constitute a ‘military construction project’ such that [the Administration’s] invocation of
Section 2808 would be lawful.”
Based on these conclusions, the court declined to enter a preliminary injunction with respect to either of
these additional sources of border wall funding, thus leaving the Administration free to use those funds
for border barrier construction. However, because the dismissal of the plaintiffs’ preliminary injunction
motions as to these funding sources was without prejudice, the plaintiffs may reassert their motions if
future developments enable them to show a likelihood of irreparable harm.

Congressional Research Service
5
Considerations for Congress
Because Congress has plenary control over federal appropriations, it has the power, subject to presidential
veto, to enact legislation appropriating additional funds for border barrier construction, limiting the extent
to which the Administration’s proposed funding sources may be used for border wall construction, or
prohibiting the Administration’s efforts to secure additional funding. Moreover, because Congress
operates on an annual appropriations cycle, one or more of the Administration’s proposed sources of
funding may become unavailable in the future if the House and Senate do not reach agreement on
whether, or to what extent, to appropriate funds for these sources.
The House of Representatives is currently considering the DOD Appropriations Act for FY 2020, which
would prohibit the Administration from using Section 8005 to fund border wall projects. (The Senate has
not yet introduced a DOD appropriations bill for FY 2020.) On May 23, 2019, the House Committee on
Appropriations reported H.R. 2968, which includes similar transfer authority to that in Section 8005 of
the 2019 Department of Defense Appropriations Act, except that the transfer authority in H.R. 2968 is
subject to a $1 billion (rather than $4 billion) cap on the aggregate amount that may be transferred and
can only be used if the Secretary of Defense and the head of any impacted entity “certifies in writing to
the congressional defense committees” that “the funds will be used for higher priority items, based on
unforeseen military requirements, than those for which originally appropriated.” However, H.R. 2968 also
includes new provisions specifically addressing the use of DOD funds for border barrier construction.
First, Section 8127 of H.R. 2968 states that “None of the funds appropriated or otherwise made available
by this Act or any prior appropriations Acts may be used to construct a wall, fence, border barriers, or
border security infrastructure along the southern land border of the United States.” If enacted, this
language would appear to prohibit the Administration from using any federal money—potentially
including the three funding sources already discussed—to construct barriers of any kind along the
southern border. Second, H.R. 2968 would prohibit the transfer authority in Section 8005 from applying
to the DOD drug interdiction fund. Similar restrictions have also been included in the Chairman’s mark of
H.R. 2500, the National Defense Authorization Act (NDAA) of 2020, ordered to be reported, as amended,
by the House Armed Services Committee on June 13, 2019. The Senate’s version of the FY 2020 NDAA,
S. 1790, does not contain similar restrictions.

Author Information

Edward C. Liu
Benjamin Hayes
Legislative Attorney
Legislative Attorney

Congressional Research Service
6

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
LSB10310 · VERSION 5 · UPDATED