“No Wall” Funding Litigation Update: In The Oakland (Trial Level) Federal District Court, This Morning…

The Sierra Club has filed its brief a little early.

It is a very well reasoned 21 pager. The full PDF is available here — but here’s the summary:

. . . .The material facts remain largely unchanged since the Court temporarily enjoined wall construction last month, and Defendants’ position continues to be untenable. Defendants attempt to evade review of their unauthorized transfer and use of Department of Defense (“DoD”) funds by arguing that Sections 284 and 8005 are essentially beyond challenge, as no injured plaintiff may sue to enforce their limits. On the merits, they put forth equally implausible statutory arguments claiming unbounded authority to divert and use military funds for a border wall that Congress specifically denied.

Defendants’ assertion that Congress never “denied” funding for a border wall and that its construction is an “unforeseen military requirement” “runs afoul of the plain language of Section 8005.” PI Order 33. Their reading of Section 284 is similarly strained and, as this Court previously observed, “likely would raise serious questions as to the constitutionality of such an interpretation.” PI Order 39.

Defendants try to sidestep the constitutional concerns that their “massive reallocation of funds” implicates, but their arguments are unavailing “given that Congress has repeatedly rejected legislation” that would have granted the President the funds that he now seeks to unlawfully obtain. . . .

Now you know — and. . . we await an answer [perhaps as early as this evening] on the petition for rehearing in the Ninth Circuit, on the Title X cases.


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