tv Sierra Club v. Trump Oral Argument CSPAN November 23, 2019 4:09am-5:07am EST
following the supreme court order allowing the administration to temporarily begin construction using the funds . >> the time is set for argumentin the case of sierra clubversus trunk . take your seat . nice to see you again. >> thank you chief justice smith. thomas byron from the department of justice on behalf of the government defended . with me is karen hecker
office of general counsel riyadh this case is about an internal transfer assignment among the ods accounts and the internal defense for itself didn't harm plaintiffs, they don't contend otherwise. they contend their interests were harmed by the subsequent downstream use of these funds for construction of border barriers and roads. but the transfer itself was authorized by a provision in the dod operations act and that provision was not designed to protect the kind of interests the plaintiffs assert, the kinds of recreational aesthetic and environmental concerns they've raised. the requirements which is a universal requirement whether they're seeking review under the apa or under an equitable ultra viris claim applies in any event and it asks this court to determine whether those kinds of interests that the plaintiffs are asserting are aligned with the
objectives of congress purpose in enacting the statute they rely on. here it's actually intended to regulate the relationship between the department of defense and the congress, the congressional committee, not the interest of the plaintiffs there are asserting. >> under your theory who would be an interest? >> judge smith in his dissent articulated a view that perhaps those who would otherwise have been entitled to receive the funds could be within the zone of interest and that makes no sense your honor. >> we don't know who those people would be because the funds were never extended, contracts were never left. >> it may be that in the case of a particular transfer there might not be a plaintiff within the zone of interest . that's true in a variety of cases but it's not a basis for relaxing the zone of interest requirement.
i want to emphasis the supreme court's grant of a stay pending appeal was based among other reasons the court said on its concern about the cause of action that the plaintiffs overlying, this zone of interest concern. >> statutory cause of action brought by the sierra club but i don't see that the plaintiffs brought statutory causes of action against the government. what the causes of action thatthey brought work for violation of the appropriations act , ultra viris and it was the government that raised sections 800-5902 and 44, 284 in effect so the zone of interest test would apply to the causes of action that the plaintiffs actually brought,
not to what the defense would be. >> justice, i disagree with the characterization. i think if you look at obviously the briefs in this court and also the complaints that section 8005 performs the central part of the plaintiffs theory here and let me take a step back and just say that in all of the appropriations cause cases that have been discussed in the briefs and that the plaintiffs have relied on, the focus is always on the limitations in an operations statute so in macintosh, in department of the navy and in herrington, the fourth circuit, let me turn to the department of navy in the fourth circuit where judge kavanaugh made clear that the way congress expresses its
authority under the appropriations clause is through appropriations statutes and that's why the appropriate focus in all those cases has been on the statutory terms but limits that the plaintiffs rely on, that's the basis for their concern. they say that the defense department violated the limits in section 8005 and that's why the operations cost is implicated. the question was whether these funds have been permitted by law, of course they have . >> the law the congress to enact which was the 1.375 billion dollars in border fencing in texas, that's what congress appropriated and the argument is that the governments acting in violating the appropriations clause by spending in excess of that amount and in other places along the southwest boundary.
>> judge wardlaw let me take that in a couple of respects. first of all the plaintiffs have argued for example that by improving some but not all of the separate requests by a different agency, the hs for funding for that agency construction . >> how does dhs being a different agency make a difference in this case where the only reason dod did the reprogramming was because the hs requested it? >> it makes it a big difference because section 8005 speaks of an item of military requirements and whether that is unforeseen, whether the item is unforeseen and in the language of the provision i think it's 241 which reflects the same limitations but is not part of just each individual operations act as part of title x uses similar terms and the item in the context is an item in dod's budget, not in other agency budget.
the whole purpose of section 8005 to regulate that dynamic an ongoing relationship. >> why then do the parties have a dispute about what the particular item is ? what your characterization of the item is. >> the counter drugs support my dod and that's the kind of thing that could have been included in dod's budget request and remember the ods approach to appropriation acts were finalized in september 2018 several months before i think five months before the dhs appropriation was finalized and so the question about whether it's unforeseen, what kind of item we're talking about as to be measured with respect to the dodappropriations process which was completed in september . >>. >> and verify one issue for me, the motions panel said multiple times in its opinion dod was going to transfer funds after they had been put into the counter drug dod account, was going to
transfer the funds to dhs, is that correct or is that wrong ? >> that's wrong. the record explains and i like knowledge it's a bit tedious, uses a lot of jargon , that's the nature of these budgeting and appropriations documents, but it makes clear that the transfer is within the dod accounts. >> the dod is going to be the one to spend the funds? >> so let me just go back judge word want to your question because you are asking also if i'm understanding correctly about whether this approval of a lower amount for dhs constituted some kind of. >> congresses word on what it would spend for fencing along the southwest border. >> and i think the answer to that is twofold. one point i just made is that wholly apart from that.
>> it's not the government. it's still the executive branch. >> if the question is whether congress in the consolidated appropriations act by approving a smalleramount , a lower amount of appropriations and was requested, the gao, government accountability office which is the legislative branch and independent watchdog agency expressly concluded and pointed out that it has reached similar conclusions. >> your referring to your20 8j letter . how much deference to we both the gao. >> judge cavanaugh in the department of the navy opinion refer to that as an expert view and the court should give it appropriate consideration . >> to you all is the expert agency with respect to appropriations law and that's why all those cases often refer to gao opinions about appropriations questions so gao aspects expressly said the approval of a lower
amount by congress is not a denial and that transfers several agencies not just dod under this authority had been approved by gao in the past where there had been a lower -- >> not yet the denial of a greater amount. so it's fascinating to me how these briefs are written and how the case is written. one starts them almost pre-election with the president promising a board of law and it's going to cost however billion and congress refusing to expend that many over and over it's to pay for that government shutdown, ultimately some compromise, some lesser amounts, some smaller piece and then you start with the item has to be specifically requested by dod and specifically turned down, it's almost like you're lying
to each other. >> i don't think we're talking past each other but i think the relevant consideration is the statutory text and 2005 does talk aboutthose items denied by congress that were unforeseen . that's the basis for the district court permanent injunction and is the appropriate focus for the courts. >> would you review that an item is denied within the meaning of 8005 only if the line is zeroed out ? >> your honor, i don't think that's the only way it could be denied but i think this is an important point about 1005 regulates the relationship between congress and the defense department. it doesn't, the way we pointed out in our briefs that there's a lot of evidence of the back-and-forth to the agency and appropriations experts on the hill. that's often reflected in the committee conference report which we cited 600-, 680
something pages that goes through the back-and-forth of what was requested. what the house approved, what the conference committee finally decided so there's all that back-and-forth and that theevidence of what congress considered . >> if they didn't zero outline but they put in the conference report we don't want to spend on this you would say that counts as a denial . >> that could well be judge collins and all of this, it's not clear whether that would be additionally enforceable in that context and it's hard to imagine a situation, but certainly not by plaintiffs asserting the kind of interest that these plaintiffs are alleging where a court could sort of discern based on that back-and-forth that's the back-and-forth that congress uses to determine whether an item was denied, whether this is an appropriate use of transfer of authority and that transfer of authority is again let me go back judge
word law to your point about the appropriations act and in that statute congress included an authorization to use prior transfer of authority in addition to the transfer of authorities in that bill itself so congress could have if it sought to restrict the use of the transfer authority could have in the consolidated appropriations act committed that for any particular purpose or altogether read not only did it not do that expressly approved those uses . judge collins, going back to this question about what's denied and what's not, the gao has said that merely reducing amount is not a denial and i'm not aware of any other opinions that the gao may have issued about what constitutes a denial but one thing we know is that here is such attenuation. bill, different agency,
different request that it's not within and gao is clear, it's notwithin the terms of the limitation . >> going back to zone of interest, on this record is there anyone you believe within the zone of interest that could challenge the board of law funding? >> it's possible. >> on this record. >> the record does include the details about the programs from within the funds were taken and a very large bulk of the funds were from military personnel. >> access retirement estimate that turned out not to be needed because military personnel were using the different benefit that was offered to them so those estimates turned out to be excessive. some of the other programs though may have included for example a contractor who expected to be granted a contract to build i don't recall.
>> many of the states independently california and new mexico raised similar issues. they say we have substantial military contracting on our states. why isn't that sufficient from a low standard of the zone of interest to satisfy the requirements? >> on this record again the plaintiffs are not asserting any contractor in their state would have been entitled to fund from the transfer accounts so i don't think they've alleged those kind of interests here. your question is whether it's possible that somebody might in theory be within the zone of interest. i don't know the answer to that but again, whether somebody is able to challenge a particular case is not the appropriate measure. >> supposed somebody owned a home that was a ranch right on the border and in connection after the funds are reprogrammed they come with a wrecking ball to tear it down .
of course they're going to compensate them for it but they come with a wrecking ball. does he have a cause of action to say wait a minute, reprogramming was illegal? >> it sounds a little bit like a patch act which i expect is your point and the supreme court there said that users , uses of the land at least with respect to that statute at issue in that case could be within the zone of interest but that's because the purpose of the statute that authorized acquisition of land for indian uses by indian tribes in that case expressly considered uses it was designed to encourage economic benefit for the tribes themselves. so congress identified that purpose area here the downstream use for construction or demolition or whatever it might be is not the purpose of the transfer authority so the homeowner in that case like these
plaintiffs here might have a claim about the statute offering that later use. here 284. we can talk about 284, that expressly authorizes the conduct, construction at issue here but that's not what the district court found and the purpose of the transfer statute just has nothing to do with the later use which could be really anything within military requirements . >> that person would have no cause ofaction in your view . >> at least with respect to enforcing the limits in 8005. there would be ample remedies for challenging it's on other grounds area but i think of what we're talking about is just 1005,the transfer, the internal transfer authority , that's what the zone of interest needs to focus on here. >> if it would indicate that like in this case 8005 is essentially in my view a firm's defense. that is subject to our
requirements as opposed to the statute where there's an implied cause of action or direct cause of action . >> chief justice thomas i think i would have to take issue first with this from an affirmative defense. i would say then that because we don't, we haven't conceived this as an affirmative defense and i haven't frankly look for cases that way but one of the reasons i think we know looking at for example i think clark says this, that the rabbit rabbit of the complaint and the limitations of the statute or the constitutional provision to be enforced is the proper focus of the zone of interest inquiry area and that based on that focus, the limitation here is not the constitution appropriations clause by itself. as i said the judge wardlaw earlier these funds were
appropriated by congress in the appropriations act. the only question is whether the internal transfer authority has been complied with and i would like to reserve some time for rebuttal and i'd appreciate the courts questions. if there are no further i like to reserve the remainder . >>. >> thank you your honor and good morning area for a dean for plaintiff sierra club and southern border communities coalition. with me is rona jaffa. >> you been here throughout theentire litigation . >> i'd like to devote my time to three questions and then i'll just answer whatever else the court is interested in area i'd like to explain
why emotions panel got it right. i'd like to ask this court to in addition reached the section 284 issue that was alluded to in some of the questioning and finally i just like emphasized the urgency of action at this stage. so first of all, we don't think given the manifest correctness of the motion's decision we don't think you need to go beyond the second layer decision because you can find that whether or not it's binding on this court, the emotions panel was correct. it was persuasive, and had us here at argument and it had supplemental breathing, it issued a published decision and whether it's finding the court should adopt its conclusions and in particular the conclusion that the subject of this back and forth about whether the government is invoking second aw five as a defense or whether we are bringing claims under section 8005 i think it might help to clarify you were talking about the timeline and the different briefs. we filed this complaint on february 19 which was the
first businessday after the president signed the consolidated operations . and also on february 15 was the day the white house issued an official announcement saying they were taking the 1.375 billion congress had given them after this very lengthy government shutdown. but would nonetheless be building a border wall $40.1 billion. and that is scr 186. that white house announcement on february 15 doesn't include at all secondly thousand five and there's a good reason for it.they weren't trumpeting the fact that they were going to be reading military personnel and pension funds for the wall. we also did not know that was their intention and when we suit we raised claims under the operations at because what they had announced was an intention to disregard promises appropriations judgment as well as under the consolidated appropriations act . we do not assert a private
right of action nor did we even know that they thousand five was going to be triggered. we later amended the complaint once invoked 8005 which was in march and again in may. and we and reasons why that was not a lawful defense of their spending . we never suggested that section 8005 conferred a further right of action. and i do think that the motions panel got it right in saying these are claims under the operations act. they turn as many operations act claims must on issues of statutory interpretation because that is out congress exercises its appropriations judgment that does not convert every appropriations issue which is fundamentally a separation of powers issue into just a rogue statutory claim. >> if we were to disagree with any of the motions, panels conclusions. >> ..
in and the courts didn't discuss the doctor and all? my understanding blair was focusing on circuit which i understand is sort of a more binding rule so the law of the case can change over the course if it turns out that facts have changed or are there is a manifest air might also erode the case. circuit is not subject to those limitations so i believe blair is focusing on law of the circuit. >> when you made this comment the day after the president
signed the caa that he announced an 8 billion-dollar an attempt to build an 8 billion-dollar 8 billion-dollar --was that can find? was that can find two appropriators to the dod or the dhs and anyway? >> so being .1 is a combination of the 1.375 that congress gave. around i think it was round 6.2 may be coming from the department of defense out of which we have 2.5 billion at issue in this appeal and next week i don't know who will be with me at that acumen that we will back be back in the district court on the remaining $3.5 billion that is under the national emergency and in addition there's a small relative to this case, 600 million from the treasury forfeiture fund. spam or did the defense come
from for the national emergency? >> sorry that's also dod so that's another 3.5 billion that is not at issue today. >> i'm not sure what you said about the law of the case is correct because we held in the house or case we will reconsider a ruling of the scored on the same issue presented my same action which compels us to reconsider our prioritization. he said that with respect to a prior motions decision and we said where we have published the decision setting forth the reasons which guided us in resolving a legal issue in a certain way we can more readily determine whether a proper showing has been made. so blair didn't address the case doctrine and the ability when a court remains in a case to re-examine the rulings. talks about yes published authority is binding but it didn't address this issue. >> your honor i'm not contending that blair addressed the lava
case that by so that i misspoke and i apologize. blair believes speaks only to lava circuit. my contention is that once you have lava circuit weather was created by emotions panel or a merits panel it remains lava circuit and must meet the miller v emby test in order to be undone but i also want to stress your honor we are not asking you to make their ruling here. because we do think there is ample enough reason to follow the motions panel. in addition i just want to add a little bit over and above what the motions panel found. one thing is if you disagree and you further disagree with the motions panel says this case is arising under the appropriations act for the courts echoed all courts echoed what powers a degree with the government that there needs to be showing under section 80005 for the government sanctions may be checked i want to commend to this case the d.c.
circuit very thorough opinion and scheduled airline in which they were faced with a statute that congress enacted back in 1849 specifically to govern the appropriations relationship between the executive branch and congress. there's also a case against the department of defense. they are the government said they can enforce that and the d.c. circuit found it's certainly true that the private plaintiffs in that case were not regulated or the statute and it was not to their benefit. was to the benefit of the public and appropriations control. nonetheless with matters is the congruence of dancers between the challenger and congress and there was no question the plaintiff was a suitable challenger because it was seeking to accomplish exactly what congress was trying to accomplish which is forfeiture restrictions on the executive misusing of appropriated funds. here too there's no meaningful way in which your interest can
divert from congress but further as questioning has shown no one else can come into this court that the government would agree it is within the zone of interest in and force the government moving a billion dollars out of military retirement money. there's simply no no way to do that so the government is correct this is a billion-dollar slush fund fund lying around to dod for the government to use. >> i'd like to ask a clarifying question. a great deal of time was spent discussing authority under the administrative procedures act. you are not raising that claim. that drew? >> your honor we don't think this case is thought of as an apa case. we think it's best thought of as a non-statuary altar beer section. >> my question is to deeply that? >> we did not plead that is an apa claim. we certainly put it and it's in our briefing this court is said numerous times that there is no specific purpose of meaning to
that. the panel can take in the supreme court can take a complaint did not plead naca claimed and construed ace a claim so certainly is within your power. we think the nonstatutory action is the way to historically courts look at examples of the executive acting without any authority. >> is it your view that the nonstatutory altar beer's claim the standing goes to the outer limit? a no we don't call a prudential anymore but there's no prudential limits on the standing? >> yes your honor but the reason that is the case is because the actions are rare actions in which an executive officer takes an action without any legal authority so dating back to include courts of equity have been available to enforce that. i think a prudential restriction , the korda started
disapproving of those but they speak the courts unflagging need to address cases that are properly before it. nothing is more improper than the article iii courts than core separation of powers issues that implicate private citizens. a vice been able to call upon the courts for that. your honor if i may say one thing about urgency please. ever since the supreme court stayed the injunction is action the government has moved very quick way to spend the money and as we speak there are sections of walls going up in oregon pike which is up until now been a highly protected national monument. their huge amounts of water being drawn because they they are putting the wall with a great deal of cement and there are bulldozers and heartwrenching pictures from the border that are being sent to me everyday but i would just ask this court to please move as
expeditiously as they can. thank you very much. >> thank you. >> we will hear from the state. >> good morning and made please the court. the california department of justice on behalf of the state. you heard counsel for the federal government talk about recreational environmental and synthetic interest to those of the interest the organizational clients assert. what they fail to mention repeatedly in their briefing here and today the state interest in their sake enters jeanie to the state or sovereignty threat in enforcing our laws which were wiped out. we have laws to enforce the clean water act and the clean air act in congress specifically says apply to construction project in through their series of actions one set of actions that they were looked at together their diverse way the
defense has wiped those up to the states are prevented from enforcing their laws. this is an interest that is before the state panel and not the supreme court and the panel can ignore. they cite the same place we do that this is irreparable harm. when the government is prevented from enforcing a clause the maryland v. key case that's irreparable harm. the only argument they make is an argument about traceability and article iii argument that they don't contest article iii standings of this issue needs be addressed by the court to stay particular harms. as far as the constitutional claims go they urge you to look at the complaint and i would do the same. we have seen our complaint their first claim our constitutional violation. that's part of this case whether or not the 8005 statute is complied with or not their actions are unconstitutional. judge wardlaw went through the
actions that preceded the government shutdown. we have a clear denial and a clear refusal by congress to fund border barriers between $1.375 billion in the real rand valley. he could not be clear. >> how do you define the item? >> your honor that's the statutory claimant is not relevant to the statutory clause which is at the heart of this case. i would say for the compensatory claim -- >> to claim their authorization to spend the money were to move money and spend it is 8005 and we have to locate what counts as an item under 2005. what is the criteria in the test for determining for what counts as relevant? >> i will address that in also say whether or not they comply with section 805 has no bearing on her constitutional claim because their actions flew in the face of congress repeatedly expressing will on youngstown
amid a different policy choice by the city of new york. >> even 8005 allows them to transfer the money it's your view that there is a constitutional violation when doing so based on what? the statute says they can move the money. what prevents them from moving the money? and the constitution your honor. >> and you are supporting that. >> at 8005 construed as a constitutional act it would be unconstitutional as applied. in the face of this consistent congressional refusal to appropriate funds down to 1.375 billion view of multiple failed legislation and the whole shutdown over it and we had the administration coming again and again and congress said no. we have -- you can go ahead and move their ears in the state opposition based on 8005. that's unconstitutional. >> in violation of the appropriations clause? >> in violation of the separation of powers doctrine
yes your honor. >> and appropriations statute gives him authority to spend money they can spend it if there was another debate about a different set of money and they should read that as an express authorization of the other statute? >> this gets back to your question about the item and the relevant item here more generally what was at issue is border barrier funding. was clear the government shutdown of deputy of a very robust record of congressional refusal on a point you made the administration constantly deciding to go against that the day after the president signed the consolidated robreese and sat with 1.375 billion it. so i'm adding 6.1 billion more and that is right in the face and the city of new york is in front on this, yes your honor if the statutes were interpreted to
allow what they are doing its unconstitutional as applied through we don't think it should be construed that way and we think the item for statutory purposes getting back to your question was the border law. that's thus the commonsense interpretation in the common usage of the word item. this idea that it's a specific widget line item the panel were really said it can allow for gamesmanship on their point so we are talking about the border wall. that's what the president went ahead and transferred money for. i'd like to speak briefly to the gao report and to say correctly that the panel has mentioned there is no actual deference to that. it doesn't speak to the constitutional issues. it only speaks to the statutory issue and that's what it is. also if they really flipped the intent of the 8005 statute it was meant to give dod more flexibility and when the exact opposite is true. congress went ahead enacted 2005
because they were receiving correctly in some cases that dod was putting funds for use that congress had agreed to lammle get it frankly quite wrong in that point. i'd like to also speak to this issue of the zone of interest and i think judge collins your hypothetical and their response shows the threats of their argument which is really nobody can challenge the acts they are taking here. i would just say it makes very clear that we look to use so they try make this very technical intergovernmental transfer but when we look at zones of interest is about the ultimate use. no question the ultimate use of these funds listed build order. so the safe interest are intertwined with the entire process. there it was the statute about
land acquisition which directly ties to ultimate use. likewise here what they do in 8005 is directly tied to the use of their funds for building border barriers. the state has a pro foundation that particular given the fact that the laws were raved -- way. that's what causes the report will harm to the state to enforce our laws is irreparable harm and congress has said that our state environmental standards apply to federal construction projects. there is a credible argument that there's some sort of a federal preemption that they allude to frequently. we are in the zone of interest even though it's a statutory claim and their argument is breathtaking in its wrath and wiped everyone out from being able to challenge these types of actions. >> activities applied to the appropriations constitutional
claims? >> let's speak specifically about statute legislative intent. >> is the latest supreme court decision describing what it is? >> i would say i'm sure they have addressed it but it's certainly the current standard. >> you would agree that it applies to your aba plan. i will speak a little more on the constitutional claim. the reason it's so broad is every stakeholder in our democracy has an interest in ensuring the structural provisions are in force. talaya for some sort of artificial zone interest test would make those pillars of the constitution unenforceable because no one could come to court as you heard this morning to challenge them. justice kennedy was clear on this in the bud case where he said basically any person can come in who's harmed in the
article presents which by the way is not a check the box exercise. people generalize grievances and the typical taxpayer could not come in and challenge it. they'd have to have all the luge on factors which justice kennedy specifically alluded to in bonn. if you need lujan the fact that these constitutional provisions are meant to preserve liberty for all means he can come in and challenge. >> it didn't bond also refer to credentials and again we don't call them prudential but did it refer to the prudential doctrines as well as being relevant? >> you did your honor and that's the same part of the discussion where justice kennedy mentions lou gene. what he saying there is that due to the structural nature of this provision every stakeholder in our democracy able to come in and challenge actions to undermine it as long as they need lujan. >> it talks about article iii standing tree doesn't talk about
the prudential ones and a relative one here zone of interest is credential doctrine. traditionally at the time of law and it would be understood as the doctrine so what is in bond explained that the supply? >> justice kennedy discussed after he talked about the article iii standing in that case the criminal defendant had article iii standing and then he went on to say we do have prudential concerns of those are met here and he referred back to leon so his views quite clear to me that his view is as long as you have article iii standing because of the nature of the constitutional provision you are able to come in and insert that there's no zone of interest test relate to that in this course addressed in the specific context of the appropriations clause i might add that site a lot of justice kennedy's language from bond including a site with multiple cases where this has been the case for the city of you make -- new york and
isn -- endorse this idea in appropriations clause did not look to the appropriation itself to say here's the statute as defendants wanted to do. it took a very broad view just like justice kennedy did in bond and we think that's appropriate here as well. >> aq console. >> thank you. nice to see you again. welcome back, different capacity. smit thank you very much your honor. mr. byron and i worked together for 25 years at the justice department and now here i am in effect they work closely with judge collins but i'm now representing the house of representatives your honor. and in this case on the right side. so i have several points. did want to start by saying the house of representatives and the speaker of the house deeply
appreciate your courtesy of this court in allowing us to be heard here. thank you. a couple of things. i think that this case is best summed up by a statement by the acting chief of staff the president's right-hand man mr. mulvaney. he said we are going to build the wall with or without congress. that is what this is about. you can't tell the wall without congress. as we know that's what the appropriations clause says. it's absolutely clear we relied on then judge kavanagh and i think he said something like you can't come an agency can't die a stick of wood without appropriations from congress. as to the specifics i did want to address the questions that your honor is asking the judge collins he said what is the item if i may refer you to pages 21 and 22 r. amicus brief the administration answer that
question on the bottom of page 21. the acting secretary of defense's memorandum was the first transfer of funds. he said that the items, the items to be funded are and i'm quoting project wanted to yuma and el paso project once they secretary defense do with the items were in the items are construction of the southern border wall. >> if you look at the statute that says in the proviso that says in no case where the items for which funds are requested. that suggests that you are looking at where the funds are going within dod, doesn't it? >> i don't think so your honor. to my mind the common sense reading here is the funds that are requested. president trump requested very clearly requested i want to
build a border wall and i want a whole lot of money to do that. congress, not just the house, congress said absolutely not. i think your honor again a commonsense reading against the backdrop of what cocounsel said remember section 8005 in which you are quoting was meant by congress as a restriction on the ability of the executive ranks to reprogram and transfer money. under those circumstances when it's absolutely clear to everybody we are talking about a border wall and indeed your honor why would the administration shut down the government portal along period is a dead. if it knew all of this is just theater because we can and will move the money from dod. they can't possibly be what was
meant. it's just impossible to believe that congress decided to provide a statute whereby the president can't be denied so publicly and specifically in a way where congress said ultimately we will give you a certain amount of money but we don't think what you want the money for is not accused -- good use of taxpayer funds, absolutely clear their. if i may want to add one item on the gao report and the expert major the gao. i think, hope that this court, and like to express outrage for you notice that the gao opinion never even mentions, not even mentions the determination lay judge gilliam and this court about the legal issues here. i'm just astonished that a federal agency would rip or two
describe the meaning of the statutory provision without even mentioning recent decisions by judges. the zone of interest test i think we'll would like the court and again we stated in our brief , i believe judge bork provided a very good discussion in the bracy decision and i think the court was quite persuasive in its decision so i would urge the court to look at judge works words there. and the one other thing is again my friend who by the way is a phenomenal oral advocate, i believe what i heard the answer to i believe chief judge thomas's question was no. it's a practical manner and nobody can sue. the appropriations clause can be violated and will by the
president in such a major and public way and there really is nothing the courts are going to be able to do about it because we the justice department are going to oppose anybody come into court to try to enforce this absolutely central part of the u.s. constitution with roots going back hundreds of years into british history about the importance of the power of the purse being exercised by the representatives of the people. i have no other questions. >> thank you. good to see you. >> thank you. just a few points in rebuttal if i may. first of all i take issue with mr. ladin's characterization and we have made clear in her breathing as well we are not saying there could never be a plaintiff who could be within the zone of interest of this
restriction or numerous other restrictions in appropriations act or they want to go to judge collins or question about the plaintiff's characterization of their claim as one that does not rest on section 8005. don't think it's fair or accurate in light of the way the claims have actually been addressed and the way was representative from the district court into this court. the idea that congress silently merely by enacting an appropriations statute for dhs with a lower amount of funding for that agency that was requested somehow implicitly prohibits the use of the statutory transfer authority in dod's own appropriations statute in a consolidated appropriations act itself expressly preserves boggles the mind to this idea that congress can somehow act in
a way that contradicts its express statutory terms does not make any sense. certainly not confirmed by any of the appropriations cases that we have looked at her judge thomas i want to go back to your question about whether this could be characterized as a determinative sense. if the plaintiff claims it's just. there have no -- not than an appropriations the census yes there was an appropriations and funds were appropriated in the dod by the appropriations act. the plaintiffs counter is obviously we didn't comply with the terms limiting transfer authority. we are pretty far down the line at that point and that's where the rubber meets the road. the plaintiff complaint is the statute is termed they seek to enforce and if those limitations are at issue here the
implementations are the appropriate focus of those interests inquiry. that's on of interest including going back to your question to opposing counsel about how that plays out in direct context in chief judge thomas i believe you asked as well about inequitable claims as a zone of interest requirement should be understood .. congress may in some circumstances expand their own interest perhaps maybe even to all plaintiffs with an article three and thompson against north american stainless suggested it might not be right and the only
case where the supreme court has said that is in the housing act context even in title vii which a person has an agreed standard and thompson makes clear that everybody can suit, the hypothetical and this is really critical, a shareholder could not sue even though the shareholder has article three of the stock price, nearly based on this criminal tory firing of the ceo which caused the share price to decline this shareholder is not within its own interest of title vii. similarly loan interest of section 8005, the transfer statue apart from 284 has a relationship between congress and the pentagon. that transfer statue that the others referred to is design for thflexibility and they want to make sure the needs of the military can be met even after
the change the enactment of the procreation act for any particular fiscal year. >> your position or another occasion that congress has no standing and no interest cracked. >> congress has not sued in this case and in other cases where the house of representatives has sued or legislators have sued legislative standing have been addressed and must be resolved. those article three are related and other context but that does not mean that congress cannot come to court and enforce the mandate it does all the time both in the ongoing appropriation in the gao referred to this and in the enactment of statute. >> i understood from your briefing that in response to who consume, litigation from what i read in your briefing that
litigation is not the proper response in the proper response is political response. >> i think i was trying to ask only that the ordinary way congress enforces its concern about the process and the flexible the afforded. were not however, saying it's the only way. i've tried to make that clear there could be a plaintiff in an appropriate case who could to and we've never said otherwise, we've tried to be very clear we are not taken that categorical. in this is really not the interest that these plaintiffs have raised. they can invade when congress enacts an affirmative express right of action in the ap itself nearly by saying were not relying on that express were relying on an implied appropriation because of institution or equitable theory. that would undermine the
principal of the interest requirement is thompson against north america and they made very clear and if implied right of action is broader than an express one that does not make any sense from the separation of powers perspective. my time is almost expired. if any further questions i'd be happy to answer. we be happy to reverse make the decision. >> i thank you for your arguments and briefings. it's helpful to the court. we will be in recess.