This is for an argument in the case of versus truck. Nice to see you again. Thank you. Thomas byron on behalf of the government defend it with is ecker for the department of Defense Office of general counsel. This case is about an internal transfer of funds among deities accounts. In the internal transfer itself, didnt harm plaintiffs in fact they contend otherwise for the content that their interests will harmed by the subsequent downstream use of those funds for construction of border barriers and roads. But the transfer itself was authorized by a provision in the appropriations act. In that provision was not designed to protect the kind of interest that the plaintiffs here assert against quote recreational a set environmental that they face. This zone of interest requirement which is the universal requirement, so weather they are seeking a review of the ata or on an equitable overviews, claim, and applies in any event and it asked this quote to determine whether those kinds of interest that the plaintiff start researching are alondra with the objectives of congress purpose in enacting the statute they rely on. Here in this section is intended to regulate the relationship between the department of defense and the congress a congressional committee, not the interest of the plaintiffs that are asserted. On your theory, who are these people prayed in his defense, decision, articulated a view that perhaps those who are otherwise been entitled to receive the funds, could be within the zone of interest in the make some sense your honor. We dont know [speaking in native tongue] [inaudible conversation] we dont know who those people wouldbe because those contracts will not expended. May be our honor in the case particular transfer the right night might not be of plaintiff and the zone of interest and that is a true in a variety of cases but its not a basis for the relaxing these other entrance requirements. A display of five size that the Supreme Court in the appeal among other reasons, the quote said on his concern about the cause of action the zone of interest concern. Statutory cause of action brought by the sierra club, i dont see that the plaintiffs here brought statutory causes of action against the government but the cause of action that they brought, worked for a violation of the appropriations that the elder beres, and it was the government that laid section 0059002 where 84 284 into defense. So the interest test, it applies to the causes of action that the plaintiff actually brought. Not to what the defense should be. I disagree with the characterization. I think if you look out obviously the briefs in this quote decision blow but also the complaints. That section 8005, is the central part of the plaintiffs here theory here. Let me take those step back and just see that in all of the appropriations cause cases, that have been discussed in brief and the plaintiffs have relied on, the focus is always on the limitations in an appropriations statute. Soon macintosh in the department of the navy and in harrington, we just turn to the department of the navy in the dc circuit where the judge kavanaugh made clear that the way congress expresses the authority on the appropriation cause is through appropriation statues this way the appropriate focus in all these cases, has been on the statutory terms in the limits of the plaintiffs rely on, that is the basis where they concern. They see that the Defense Department violated the limits in section eight 675 and thats why they see the appropriations causes implicated. If the question will just have the funds made appropriated by law. Of course they have. Thats what it is. The law of the act that congress did enact was the 1. 375 billion dollars to the border propensity in texas. Thats what congress appropriated. And the argument is that the governments acting and violating the appropriations cause by spending in excess to that amount and in other places along the southwest country. The me take that in a couple of her respect paid for saul, they argued for example by the plaintiffs. By approving some but not all of the separate request by a different agency, dhs forfeiting that agencies construction. How does dhs make a difference in this case where the only reason the deity due to reprogramming was because dhs requested it. It so make a big difference because section 8005, because of an item, of military requirements and whether that is unforeseen. Whether the item is unforeseen. In the language of the provision, i think is 2241 which reflects the same limitations but has brought part of each individual appropriations. Its part of title x. It uses to similar terms. In the item in this context, is an item in deities budget. Has brought an other agency news budget. The whole purpose of section 8005, is to regulate that dynamic and ongoing relationship can the parties have a dispute about what the particular items is. And what you are characterization of the item is, his wife. The 284 drug support by deity. That is the kind of think that could be included in dod budget report requested member dod appreciate appropriation act was finalized in september of 2019. It was several month before. About five must be the dhs appropriation. And so, the question about whether them pursing what kind of that we are talking about l has to be measured with a dod appropriations process which was concluded in september of 2018. Can you clarify one factual issue for me. The Motions Panel, said multiple times in his opinion the deity was going to transfer the funds after they have been put into the account or drug dod account. And is going to transfer the funds to dhs. Is that correct. No. Thats wrong. So the record explains and ill acknowledge it a little bit. These a lot of jargon. Thus the nature of these budgeting appropriation documents. But it makes it clear that the transfer is in the dod accounts. The dod is going to be the one actually spending on this bill. Yes judge thats right. And so let me just go back to the fourth part of your question. Think you are asking also if im understanding correctly about whether the approval of the lower amount for dhs, constituted some kind of decision. What it would spend fencing along this southwest border. And i think the answered to that, is twofold. One point adjustment is that dhs not deity. But solely apart from that. Fair enough. Is still the executive branch pretty if the question is whether congress and that consoled call and stated act by approving a smaller amount and a lower amount of appropriations that was requested, the government can do division Watchdog Agency expressly conflict mileti concluded and pointed out that they had reached similar conclusions many times appropriated. , chippers w to the gao. Again, judge kavanaugh in the department in the navy opinion refer to that as an expert view. The quote should give it appropriate consideration. Jail is the Expert Agency with respective appropriations lot and that is why all these cases often refer to g a oh opinion about appropriations questions. Thanks wesley said the approval of the lower amount but congress has brought in denial or transfer by several agencies not a late dod but i have been approved by gao in the past. Not just the denial. So is fascinating to me, how the written in the cases written. When starts the all of us preelection with the president promising a border wall is going to cost however many billions in congress refusing to extend that many over and over to pay for that government shut down, ultimately uncompromised was a lesser amount and a smaller amount. Then you start with, the item has to be specifically requested by deity and turndown. Internet bike is the most like your to just i dont think we are talking past each other but i do think the relevant consideration of the statutory stacked, does talk about those items denied by congress in the unforeseen higher priority military. Thats the basis for the course permanent injunction. Its the appropriate focus for the courts. And item is denied within the meaning of 8005, only if the live is zeroed out. Sooner i dont think that is the is the only way it could be denied, but i think its an important. About why he thousand five, regulates the relationship between congress and Defense Department. The way we pointed out in the reef is theres a lot of evidence of the macbook between the agency and the appropriations the experts on the hill. Thats often reflected in the committee and the conference report which we recited 600 i think 687 pages. Then this or the backandforth of what was requested and with the house approved nor the Senate Approved the committee finally decided. It was all the backandforth. Thus the evidence. What they didnt zero frontline but they did put in the conference report, we dont want to expand on this. Would see that that counts as a denial. It it will be judge collins, but all of this has brought clear whether that wouldbe judicially enforceable in that context. And it is hard to imagine a situation certainly not by plaintiffs. Asserting the kind of interest that these plaintiffs are alleging. Where quote could sort of discern based on the backandforth, but thats backandforth that congress uses to determine weather an item was denied. Whether this is an appropriate use of the transfer of authority. That transfer authority is again, by congress, back to your. About the consolidated appropriation act the leader in that statute, congress expressly included an authorization to use fire transfer authorities in addition to the transcript authorities and a bill itself. So congress could have, if it thought to restrict the use of the transfer authority could have a consolidated or prohibited that use for any particular purpose or altogether. Not only do it not do that, explicitly, approved those usages. Judge collins, going back to this question of was denied and was gao said nearly reducing amount has brought a denial. Has brought im not aware of any other opinions that gao might constitute a denial but i think one think we know is that year, there is such an a continuation and different build, different ages in different requests, that it has brought within gao. It is clear not within the terms of the limitations in section 8005. Dating back to the zone of interest. On this record, is there anyone you believe within the zone of interest that can challenge the borderline funding. Possible. Again, there are several. On this record. It smacked the record does include the details about the programs which the funds will taken. In a very large bulk of the funds will from military personnel. Excess retirement. Estimates that turned out not to be need it because military personnel will using the different benefits. Those offered to them. Six of those estimates turned out to be excessive. And some of the other programs so may have included for example, a contractor who expected to be granted contract to build i dont recall, any of the stakes independently of california and the mexico race. They have raised similar issues and substantial military contracting. Why isnt that sufficient. From the lowest standard of interest. On this record again, the plaintiff here are not asserting that any contractor in their state would have been entitled to funds from a transferral or account. So i dont think theyve alleged those kind of interest here. Your question is weather it is possible that somebody might in theory be within the zone of interest. I dont know the answered to that. But again, whether somebody is able to challenge and particular case, has brought the appropriate measure. Suppose somebody on a home that was a ranch, right in the mortar and in connection after the funds have reprogrammed, they come with a breaking ball to tear it down. Is that, of course who compensate them for it but they come with a breaking ball. This is because of action to see wait a minute, this reprogramming was illegal. Says little bit but like which i think is your. They said that users are uses of the land, a lease with respect to that statute addition in that case, could be within the zone of interest. But that is because the purpose of the statute that authorizes that position of land for indian uses by indian tribes, in the case, expressly consent to the uses was designed to encourage economic benefits for the tribes themselves. So congress, identified that purpose. But here, the downstream use for construction or demolition or whatever it might be, is that the purpose of the transfer authorities. The homeowner in the case, but these plaintiffs here might have a claim about the statue offering or authorizing that later use here to like before. We can talk about 24. It expressly authorizes the conduct, the construction of the issue here. That is not with the quote found in the purpose of the transfer statute just has nothing to do with the later use which could be really anything within military arms. It they still have no cause of action. I think thats right you are on a normal with respect to enforcing the limits to make section 8005, there wouldbe ample remedies for challenging on other grounds. But i think if what we are talking about is just a thousand five, the transfer internal transfer authority, that is what the zone of interest needs to focus on here. If it would indicate like back in this case, he thousand five is essentially in my view for my defense is the zone of interest requirements opposed to a statute that there is an applied cause of action or a direct cause of action. A statement i think, i would have to take issue first with from a different way. I would see that because we dont, we havent conceded to this evidence. I havent frankly look for cases that came that way. But one the reasons i think we know looking at for example, i think that that gravity of the complaint, and the limitations of the statute or constitutional provisions thought to be enforced, is the proper focus of the interest inquiry. And that based on that focus, limitation here is not the constitution appropriation caused by itself. As i said, these funds will appropriated by congress and the Defense Department in the act. The only question is weather the internal transfer authority, they complied with and would like to reserve some time for rebuttal search. I appreciate the questions. If there are no further i would like to reserve the remainder of time. Thank you your honor. Good morning. Sierra club plaintiffs. Southern border club coalition. I think you been here through the entire litigation. Welcome back. Thank you honor. I think i would like to devote my time to three questions and then ill just answered whatever else is interested of them. I would like to be slain with a motion to help got it right. I like to ask this quote to in addition reach the section 284 issue that was alluded to some of the questioning. And finally have a just like to emphasize the urgency of action at this stage. So first of all, we dont think given the manifest correctness of the motion panel news decision, you think you need to go beyond the second layer decision. Because you can find that whether or not it is binding on this quote, that the motion panel was correct and persuasive in a head is here an argument and Briefing Initiative public decision and whether or not it is binding i think the quote should adopt exclusions in particular the conclusion has been the subject from this backandforth about whether the government is invoking section 8005 is the Permanent Defense or whether in fact we are bringing flames on section 8005 i think might help to clarify the about the timeline in a different race. We filed this complaint on fairbury 19th which was the First Business day after the president signed the consolidated appropriations act. And also on february 15, was the day that the white house issued an official announcement staying that they were taking the 1. 375 billion that congress had given them after this very lengthy Government Shutdown, i would nonetheless meet building a border wall for 8. 1 billion. And that scr 186. The white house announcement on travois 15, doesnt include all, and he thousand five. Theres a good reason for. There werent trumpeting the fact that they were going to be rating military personnel and pension funds. The wall. We also do not know that was their intention and when we stoco erase flames on the appropriations act because what they announced was an intention to brent disregard congresses appropriations judgment. As well as on the consolidated appropriation act we did not assert a private right of action under thousand five. Nor did we even know that he thousand if i was going to be triggered. We later amended the complaint once a invoked 8005 which in march and again in may. And we added reasons why that was not a lawful defense for those spending. So whenever suggested that section 8005 converted private right of action. And i do think that the Motions Panel got it exactly right in staying these are flames on the appropriations act, then they turn as many appropriations act flames must, on issues of statutory interpretation because that is how congress exercises this appropriations judgment. But that does not convert every appropriations issue which is fundamentally a sub separation of powers issue. Into just a wrote statutory claim. Rogue. If we will to disagree with any of the conclusions, is that your position on the land that we lack the authority to do to celebrate, our position is yes, the layer states that a published Motions Panel decision, is as binding as any other panel news decision. The mayor addressed the applicability of the law of the case doctrine and applies when a quote remains seized of a case and reconsidering changes decision in the courts didnt discuss that doctrine at all. In cases that discuss a . They are focusing instead of love the sucker. Which i understand it, its sort of a more binding rule than law of the case so well on the case can change over the course of the case, as it turns out the facts have changed or there is some, manifesto. You might also case law law start has brought subject to the limitations. I believe he was focusing on law of the circuit. When youve made this comment, that the day after the president signed the caa. He announced in a billiondollar and intent to build may billiondollar. They can find, many of they were going to do that. Was a combined tuning appropriated to the dod for the dhs or anything. News of the 8. 1 is the combination of the 1. 375 the congress gave. Around i think its around 6. 2 maybe coming from the department of defense. Out of which we have 2. 5 million of issue in this appeal. In this way, i dont know who will be with me at that argument. It be back in the District Court on the remaining three and half Million Dollars that is on the National Emergency. In addition, there is a small sort of wealth up to this case, a 600 million taken from the treasury for fund. The defense with eight devoted to come from the National Emergency that also deity. Yes, sorry dod. Thats a 3. 5 billion. Not issued today. Im not sure that what youve said about about love the cases. Because we held in the case, we will reconsider a ruling of this quote in the same issue presented in the same action of the showing is made which compels us to reconsider our prior decision. We said that with respect to a prior Motions Panel decision. And we said where we have published the decision, setting forth the reasons which guided us in resolving an issue legal issue in a certain way, we can more readily determine whether a proper showing has been made. So layer didnt address the long case doctrine on the ability when a quote remains seized of a case to reexamine the rulings. It talks about, yes a published authority as general binding but it didnt address this issue is i read. Than the law of the case test to be undone. But i also want to stress your honor we are not asking you to make that ruling here. Because we do think there is sample enough reason to follow the Motions Panel, and in addition i want to add a little bit above and be over with the panel found. So one thing is if you disagree, and you further disagree with the Motions Panel that this case should be arising under the appropriation act of the courts equitable powers and you agree with a government that there needs to be some interest shown under section 8005 before the governments actions under 8005 may be checks, i want to come into this case the d. C. Circuits very thorough opinion of unscheduled airlines in which they were also faced with a statute that congress enacted bakhtin in 1849 specifically to govern the appropriations relationship between the executive branch and congress. Theres also a case against the department of defense. And they are, the government is said as it does here, private plaintiffs can enforce that. The d. C. Circuit found it certainly true that the private plaintiffs in that case were not regulated by the statute. And it was not for their benefit. It was for the benefit of the public for us in Congress Appropriations control. Nonetheless, what matters is the congruence of the interest between the challenger and congress. And there was no question that the plaintiff was a suitable challenger. Because of seeking accomplish exactly what congress was trying to accomplish which was enforce the instructions on the executive misusing appropriated funds. Hereto, theres no meaningful way in which our interest can divert from congress the further as your questioning is shown, no one else can come into this court with the government would agree within the zone of interest and enforce the government moving a billion dollars out of military retirement money theyre simply no one who can do that. If the government is correct, there is just a billiondollar slush fund lying around in dod for the government to use as they please. Can ask the clerk rang question . The Motions Panel spent a great deal of time discussing the authority under the administrative procedures act. But as i read your first complaints, you are not raising that claim is that true . Your honor we dont think this case is best thought of as an apa case. We bet think its best thought of as a nonstatutory ultra beer status. My question is did you play that. We did not pleaded as an apa claim. Now this court has said, we certainly put in our briefing here that this court has said numerous times there is no specific preclusive meaning to that. The panel and the japanese monks of the same. The panel can take, and the Supreme Court can take a complaint that was not an apa and construed as an apa claim. With that is in your power if you think it is an apa. But we do think the nonstatutory the way his doric lee courts look at the executive acting without any authority. Is it in your view that end nonstatutory ultra beers claim that the standing goes to the outer limit of article three . I know we dont call prudential standing anymore, but there is no prudential limits on the standing . Yes, your honor, but i think the reason that this is the case is because ultra beer actions are rare actions within executive officer takes an action without any legal authority. To dating back to england courts of equity have been available to enforce that. I think a prudential restriction, first of all the court and lexmark has already started disapproving of those. But they do really speak to in lexmark to the courts unflagging need to address cases that are properly before. And nothing is more properly, we believe that the article than separate court separate print power issues that implicates private citizens. Theyve always been able to call upon the courts for that. So yes i dont think theres a limit. And your honor if i may just say one thing about urgency please, ever since the Supreme Court stated the injunction of this action, the government has moved very quickly to spend the money and began building. As we speak there are sections of wall going up in oregon pipe which is up until now been a highly protected national monument. There are huge amounts of water being drawn because they are putting the wall with a great deal of cements, and their bulldozers and really heart wrenching pictures from the board of there being sent to me every day. So i would just ask this court to please move as expeditiously as it can. Thank you very much. Think a counselor. Youre from the state. Good morning and may please the court genes a racket with the California Department of justice. On behalf of the state. You heard for the federal government talking about recreation, and environmental and aesthetic interest. Those are the interest at the organizational plane is a sort while recognized at legitimate. What they failed to mention repeatedly in their briefs and here today are the states interest. And there is an important interest unique to the states. Our sovereign interest in our enforcing our laws. Which defendants conducts have wiped out. We have laws to enforce the clean water act, the clean air act, congress has specifically said applied to federal construction project and through their series of actions its really one set of actions that should be looked at together. There divert weights and build scheme that fence have wiped that out. The states are prevented from enforcing the laws. This is an interest that went before the state panel, not before the same court and the defendants camp distantly ignore. They cite the same case that we do, but this is irreparable harm when the State Government is restricted from enforcing its laws, summarily king case of justice roberts, thats irreparable harm. They cite the same case far from contesting it. The only argument they make, is an argument about traceability which is article three argument and they dont contest article three standing points of this needs to be addressed by this court to the states particular harms. As far as a constitutional claims go, they urged us they urge you to look at the complaint and i would do the same. Youll see our complaint, our first two claims are constitutional violations. Thats the heart of this case. Whether or not this 8005 statues complied with or not, their actions are unconstitutional. Its justice warlock went through the actions it proceeded, that the Government Shutdown, we have a clear denial, we have a clear refusal by congress to fund barriers to be on 1. 375 billion in the rio grande valley. It could not be clear. How do you define the item . Your honor that is along with it a statutory claim its not does not go with the appropriations claim. But for the statutory claim. They claim the authorization to spend the money or to move the money and spend it is 8005, then we have to look at what counts as an item under 8005. What is a criteria, what is the test for determining what counts is the relevant item . I will also say that whether or not they comply with section 8005 has no bearing on our constitutional claims. Because they flew in the state, their actions flew in the state of congress has repeatedly expressed will, and they cant do that in youngstown and they also made a different policy choice just written by the city of new york. So even if a thousand and five allows them to transfer the money, its your view that there is a constitutional violation with doing so based on what . What prevents the stat sheet says they can move the money, what prevents them from moving the money . The constitution your honor. Explained that. Cell if 8005 was construed to allow this constitutional act, it would be unconstitutional as applied. In the face of this consistent congressional or fusel to appropriate funds beyond the 1. 75 billion we have multiple failed legislations, we have a whole shutdown over, we have administration coming again and again give us more give us more. Congress said no. If they can then go ahead and move money for more border barriers and face of all that opposition, based on 8005 thats unconstitutional. In violation of the appropriations clause . And the appropriation clause. And appropriations it gives and the authority to spend money, they still cant spend it if there was another debate about a different set of money . We should read that as the barring the express authorization and the other statute . I think discus back to your question about item. In the relevant item in here whether its a statutory term are more generally, what was it issued . Is border barrier funding. It was very clear the Government Shutdown of that. We have a very robust record of congressional refusal on that. We have the administration consciously deciding to go against that the day after the president signed the congressional consolidate appropriation act with 1. 75 doing it. Hes adding im adding 1. 6 billion more. And that is right in the face of the new york case, as required on that that the president cannot countermand congress that way. So yes, if this statute was too interpreted to allow their doing, its unconstitutional as applied. We dont think it should be construed that way and we think the item for statutory purposes, getting back to her question was the border wall. Thats the common sense interpretation its the common usage of the word item. This idea that it some specific budget line item is that the state panel properly said could really offer some gains on their. But were talking about the border wall. Thats what congress refused a fun, thats what the husband president went ahead and transferred money for. I would like to speak briefly to the gao report and just to say correctly that the panel had mentioned that there is no actual deference due to that. And also say that it doesnt speak at all to the constitutional issues. It onlys beaks the statutory issue and thats really if they have an expertise in, thats what it is. And also say that they really flip to the intent of this 8005 statute completely on its head. They say it was meant to give the deity more flexibility exact opposite is true. Congressman had an active tooth at 8005 because they are proceeding correctly, in some cases, the dod was putting funds towards uses a congress and already said no to. So they really just get it, frankly quite wrong in that. Id also like to speak to this issue of the zone of interest. I think judge collins are hypothetical and their response really shows the threat of their argument here. Which is that really, nobody can challenge the act they are taking here. And so i would just say that the case makes very clear that we look to the ultimate use. So its not, they really want to make this about this very technical intergovernmental transfer, but the chalk system we look at it looks at the ultimate use. No question here the ultimate use was to build border barriers. So our interest, the states interest are intertwined with the entire process. This is a phrasing of the chalk that the there was, the statute of Land Acquisition was directly tied to the ultimate use. Likewise here, what they did with 8005 is ultimately directly tied to the use of the funds. Its a billboard and barriers. And those states have a profound interest in that. Particular given the fact that the laws were waved through that cause irreparable harm to the states. They dont need to contest their inability to enforce the laws as irreparable harm. And congress has said that her state Environmental Standards applied to federal construction projects. There isnt even a credible argument that there some sort of federal preemption here which they allude to briefly. So i think him a look at that shockingly shows we are in the zone of interest, even with the statutory claims. In their argument is breathtaking i would say in its breath and wiped everyone out from being able to challenge these types of actions. He think of the zone of interest applied to the constitutional claims . We dont your honor. Lexmark speaks very specifically about statutes, legislative intent, and congressional. Is lexmark the latest Supreme Court decision describing with the zone of interest test is . I would say im sure theyve addressed it since but its set the current standard. He would agree the zone of interest applies to your apa claims . Yes it has been consistently applied. And i will speak a little more on the constitutional claims. And the reason that this test is so broad is that every stakeholder in our democracy has an interest in ensuring that their structural positions are enforced. So to layover some sort of artificial zone of interest test, would make those pillars of the constitution unenforceable. Because nobody could come into court issue just heard this morning. No one could come into court to challenge them. And Justice Kennedy was very clear on the bond case, where he said that i basically going along the lines of any person can come in who is harmed in the article, which by the way is not a check the box exercise. We know that people generalize grievances the typical taxpayer could not commit and challenge it. They would have to have all of the lesion on factors which that is the test Justice Kennedy specifically alluded to in bond to say if you made the louche on article three, factors the fact that these constitutional provisions are meant to preserve liberty for all means that you can come in and challenge. But didnt also referred to prudential and we dont call them prudential again today at lexmark, but didnt also refer to the part then chilled doctrines as well as being prevalent . It did your honor and thats exactly same part of the discussion were Justice Kennedy mentioned it. So where is saying there is quite clear. That due to the structural nature of these provisions, the importance of every stakeholder in our democracy being able to commit and challenge actions undermined appeared as long as they meet louche on. When they talk about art a freestanding it doesnt talk about the prudential ones and the role that one hears zone of interest is prudential doctrine, lexmark. But it would traditionally the time a bond been understood as a prudential doctrine. So why doesnt bond suggest that it does apply . Because Justice Kennedy discussed that after he talked about article three standing. So in that case the criminal defendant had article three standing. But then he went on to say we do have prudential concerns, but those are met here and referred back to luzon. So his view is quite clear to me that his view is as long as you have article three standing, because the nature of these constitutional provision, you are able to commit and assert them. There is no additional zone of interest as laid. And this court also endorsed that viewed mcintosh in the in an appropriations closet cited a lot of Justice Kennedys language from bond including a string site with multiple cases where this is been the case. The city of new york and shot and other cases when theyre paired and endorse this idea in the specific conscience of the appropriation clause did not look to the appropriation itself and say heres the statute, this is what defensemen stated, just look at the statute in what sense trying to protect. I took a very broad view, just like Justice Kennedy did in bond. We think thats appropriate here as well. Thank you counselors. Thank you. Mr. Letter nice to see you again good have you back different capacity. Think youre honored is kind of odd here. Mr. Byron and i worked together for about 25 years for the Justice Department and now here i am, in fact i work closely with judge collins with the Justice Department. But now i am representing the house of representatives. In this case on the right side. [laughter] so i just have several points i did want to start by saying the house of representatives, the speaker of the house deeply appreciates the courtesy of this court and allowing us to be heard here, thank you. A couple of things, i think this case is best summed up by statement by the acting chief of staff, the president s righthand man mr. Mulvaney. He said we are going to build the wall with or without congress. And thats what this is about. You cant build a wall without congress. As we know, thats what the appropriation clause says. It is absolutely clear. We relied on judge kavanaughs opinion read i think he says Something Like you cant buy Common Agency cant buy a stick of wood without appropriations from congress. As to the specifics, i did want to address the questions your honor has asked her judge collins you said what is the item . If i may refer you to pages 21 and 22 of our brief, the administration answered that question. Down at the bottom of page 21 the active secretary of defense his miranda with the first transfer of funds. He said that the items, the items to be funded are and im quoting projects one into an apostle project one. To the secretary of defense new with items were in the items are extensive construction of a southern border wall. If you look at the statute, it says in the proviso it says in no case where the item for which funds are requested. That suggests that you are looking at where the funds are going within dod, doesnt it . I dont think so your honor. To my mind a common sense reading here is the funds that are requested. President trump said requested very clearly quite requested i want to build a border wall and i want a whole lot of money to do that. And congress, not just the house, Congress Said absolutely not. So i think your honor but again a common sense reading against the backdrop as my learned cocounsel said, remember that section 800 live from which you are quoting, was meant by congress as a restriction on the ability of the executive branch to reprogram and transfer money. So under those circumstances winners absolutely clear to everybody, were talking better border wall and did your honor will fly would the administration have shut down the government . Why would they shut them down for long periods as it did. Why would they do that if they knew all of this is just theater because we can and will move the money from dod. That cant possibly be what was meant, its just impossible to believe that congress decided to provide a statute whereby the president can be denied so publicly and specifically in a way where Congress Said ultimately said we will give you a certain amount of money, but we dont think what you want the money for it is not a good use of the taxpayers funds. Absolutely clear there. If i may, i just want to add one item on the gao report and the expert nature. I think, i hope that this court, i like to express outrage for you. Notice of the gao opinion never even mentions, not even mentions the determination by judge gilliam and this court about the legal issues here. I am just astonished that a federal agency would purports to describe them meaning of a statutory provision without even mentioning recent decisions by judges. The sound of interest test, i think what we would like the court to do, and again we cited in our brief, as i believe that judge bork provided a very good discussion and the bracey decision. And i think the court, its a quite persuasive decision that mr. Holtz, i had to urge the court to look borks words there. Oh, and one of the thing is, my friend mr. Byron who is by the way a phenomenal advocate. I think what i heard the answer to was cheech judge thomas is was no, its a practical matter, nobody can superior the appropriation clause can be violated at 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 it this absently 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. The court has no other questions. Thank you. Thank you. Good to see you. Thank you, just a few points in rebuttal if i may. First of all on the zone of interest, just to take issue with mr. Letters interpretation of our position. We are not saying we made very clear in our briefing as well that there could never be a plaintiff who could be within the zone of interest of either just restriction or numerous other restrictions. In the appropriations act. But i want to go to judge collins, your question about the plaintiffs characterization of their claim as one that does not rest in some way on section 8005. I dont think its fair or accurate in light of the way the claims have actually been addressed in this case, the way they were presented to the District Court entered this court. The idea that congress silently, merely by enacting an appropriation statute for dhs with a lower amounts of funding for that agency, then was requested, somehow implicitly acted to prohibit the use of a statutory transfer authority and dods own appropriation statute that the consolidated act itself expressly preserves. It boggles the mind of this idea that congress can somehow impliedly act in a way that contradicts its express statutory terms. That does not make any sense. And certainly not confirmed by any of the appropriations cases that we have looked at. In judge thomas i want to go back to your question about whether this could be fairly characterized as an affirmative descendents. I think plaintiffs claim is just. No have been no appropriation, then the fence is not, weve complied with the terms of 8005, the intent is the s there is appropriation, funds were appropriated in the dod and fy 19 packet. And in the plainest counter then is we didnt comply with the terms limiting the transfer authority. Were pretty far down the line at that. , but that is really where the rubber meets the road. That is the plaintiffs complaint. If the statute whose term they seek to enforce. And its those limitations that are at issue here. Its those that are the appropriate focus of interest inquiry. That zone of inquiry going back to judge collins questions on how that played out in different contexts and chief just thomas i think you also asked about an equitable ultra veras claim how the zone of interest requirement should be understood. We think that lexmark properly understood, did not see the clear statement in Valley Forge Christian College in clark, im pretty much every case that talks about the zone of interest. But the zone of interest requirement is universal them. Congress may in some circumstances expand the zone of interest, perhaps theoretically maybe even to all plaintiffs within article three. The top on against north america stainless that might not actually be right. And the only case for the Supreme Court has said that expressly is in the housing act contact entitled aid. And even in title vii which has a person agrees standard just like the apa, thompson makes clear that not everybody can the hypothetical there that is really critical is that a shareholder couldnt sue even though the shareholders article three injury of the stock price merely based on the discriminatory firing of say the ceo. Which causes a chair prices to change probe that shareholder is not within his own interest of title vii. Similarly here, the zone of interest of section 8005, transfer statute wholly apart from 284 has to do with the relationship between congress and the pentagon. And that transfer statute, like others of the ga referred to, is designed to see flexibility because Congress Wants to see the needs of the military can be met even as they change after the enactment of the appropriations act for any particular fiscal year. B are positioned in this case the other cases that congress has no standing it is not within their interest. Senior honor congress is not Business Case and the other cases where the house of representatives have sued or were individual legislators have sued common question that standing have been addressed and must be resolved. And those are serious, this article three concerns are related to the article three concerns in other contexts. But that doesnt mean the fact that congress cant come to court, it doesnt Mean Congress cant enforce its mandate. It does so all the time both in the ongoing appropriations process and the gla router for to this, and also in the enactment of statutes. Iowas essay understood for your briefing that claim in response to who consume, that litigation from what i read in your brief, that litigation is not the proper response. The proper response is a political response. Legislative annexes by the house. I was trying to explain that is the ordinary way Congress Takes care of its concern with the budgeting process and the flux of elites afforded. We are not however saying its the only way. And ive tried to make that clear, that there could be a potential plaintiff in an appropriate case who could sue. Weve never set otherwise. Weve tried to make very clear that we are not taking that core gattaca position here. This zone of Interest Inquiries about the interest these plaintiffs have raised and the ideas that they can evade the zone of interest requirements required by Congress Enacts an affirmative express right of action which is in the apa itself. Merely by saying we are not relying on that express cause of action. We are relying on an implied cause of action. That would undermine the principle of zone of interest requirement as thompson against north American Steel made very clear. And he did for selected to he implied right of action is broader than an express on, that doesnt make any sense from the separation of powers perspective. I see my time is almost expired. If the court has any further questions i would be happy to answer them. Otherwise we would ask you to reverse and vacate the decisions below. Thank you. Thank you for all your arguments today in your briefing. We will be in recess. Book tv in prime time starts now. Tonight its a book of the Supreme Court. It seems Supreme Court justice recount her life and time on the high court. The federal smalley hemingway and judicial crisis examine the confirmation Supreme Court Justice Brett kavanaugh. And legal analysts and Supreme Court biographer joan bis cubic profiles chief justice brought john roberts. Check your Program Guide for more information. Now, first up tonight Supreme Court justice kneeled gorgeous reflects on his career and offers his thoughts on judiciary and the u. S. Constitution
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