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In the Supreme Court of the United States

No. 19A60. In the Supreme Court of the United States _____. DONALD J. trump , PRESIDENT OF THE United States , ET AL., Applicants, v. SIERRA CLUB, ET AL., Respondents, _____. RESPONDENT'S OPPOSITION TO APPLICATION FOR STAY. _____. Sanjay Narayan Cecillia D. Wang Gloria D. Smith Counsel of Record SIERRA CLUB ENVIRONMENTAL AMERICAN CIVIL LIBERTIES. LAW PROGRAM UNION FOUNDATION. 2101 Webster Street, Suite 1300 39 Drumm Street Oakland, CA 94612 San Francisco, CA 94111. (415) 343-0770. Mollie M. Lee Christine P. Sun AMERICAN CIVIL LIBERTIES Dror Ladin UNION FOUNDATION OF Noor Zafar NORTHERN CALIFORNIA, INC.

No. 19A60 In the Supreme Court of the United States _____ DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., Applicants, v. SIERRA CLUB, ET AL., Respondents, _____ RESPONDENT’S OPPOSITION TO APPLICATION FOR STAY Sanjay Narayan

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Transcription of In the Supreme Court of the United States

1 No. 19A60. In the Supreme Court of the United States _____. DONALD J. trump , PRESIDENT OF THE United States , ET AL., Applicants, v. SIERRA CLUB, ET AL., Respondents, _____. RESPONDENT'S OPPOSITION TO APPLICATION FOR STAY. _____. Sanjay Narayan Cecillia D. Wang Gloria D. Smith Counsel of Record SIERRA CLUB ENVIRONMENTAL AMERICAN CIVIL LIBERTIES. LAW PROGRAM UNION FOUNDATION. 2101 Webster Street, Suite 1300 39 Drumm Street Oakland, CA 94612 San Francisco, CA 94111. (415) 343-0770. Mollie M. Lee Christine P. Sun AMERICAN CIVIL LIBERTIES Dror Ladin UNION FOUNDATION OF Noor Zafar NORTHERN CALIFORNIA, INC.

2 Jonathan Hafetz 39 Drumm Street Hina Shamsi San Francisco, CA 94111 Omar C. Jadwat AMERICAN CIVIL LIBERTIES. David Donatti UNION FOUNDATION. Andre I. Segura 125 Broad Street AMERICAN CIVIL LIBERTIES New York, NY 10004. UNION FOUNDATION OF TEXAS. Box 8306 David D. Cole Houston, TX 77288 AMERICAN CIVIL LIBERTIES. UNION FOUNDATION. 915 15th Street, NW. Washington, 20005. Attorneys for Respondents CORPORATE DISCLOSURE STATEMENT. In accordance with United States Supreme Court Rule , respondents make the following disclosures: 1) Respondents Sierra Club and Southern Border Communities Coalition do not have parent corporations.

3 2) No publicly held company owns ten percent or more of the stock of any respondent. 1. INTRODUCTION. Defendants ask this Court , without full briefing and argument and despite their own significant delay, to allow them to circumvent Congress and immediately begin constructing a massive, $ billion wall project through lands including Organ Pipe National Monument, Coronado National Memorial, the Cabeza Prieta National Wildlife Refuge, and the San Bernardino National Wildlife Refuge. A stay would dramatically upend the status quo, irrevocably injure delicate public lands, and permit Defendants to irretrievably commit taxpayer funds in contravention of Congress's considered spending judgment.

4 Defendants have failed to meet the standard for such an extraordinary disruption of the appellate process. For several years Congress has considered, and rejected, the administration's plans to spend billions of dollars on the construction of barriers along the border with Mexico. Congress has considered the same justifications Defendants offer here an asserted need to address drug trafficking and has consistently refused to pass any measures that met the President's desired funding level. App. 2a. The impasse between Congress and the administration over wall funding resulted in the longest government shutdown in history.

5 The shutdown was finally resolved after Congress passed and the president signed the Consolidated Appropriations Act (CAA), which provided a fraction of the wall funding that the Executive Branch requested, and imposed geographic and other limitations on wall construction. Defendants now ask this Court to allow them to swiftly spend billions of dollars that Congress denied, across more than a hundred miles of lands on which 2. Congress refused to authorize construction. Defendants' argument is that the shutdown was essentially a charade, because the entire sum of wall money they sought through the appropriations process was already available for wall construction and remains so regardless of Congress's rejection of the president's request.

6 Defendants maintain that they can funnel this money to the Department of Homeland Security (DHS) from various military accounts and achieve the same result Congress refused to authorize. Defendants have not met their heavy burden of showing that this Court will grant certiorari and reverse. Defendants' actions are unauthorized by the plain language of the statutes they invoke, and raise serious constitutional concerns in light of Congress's exclusive control over the public fisc. Defendants' primary argument is that no Court may review the lawfulness of their conduct, based on their contention that Plaintiffs' claims, founded in equity and the Constitution, do not fall within the zone of interests of the statutes Defendants invoke in defense to those claims.

7 That theory essentially seeks unreviewable authority to expend funds that Congress has specifically declined to appropriate, even where that expenditure causes direct and concrete injury to citizens. But if the Appropriations Clause means anything, it means that no executive officer can spend funds that Congress has refused to authorize. Persons who would be injured by such expenditures must be able to call upon the courts to protect them, and Defendants have shown no basis to preclude review. 3. Moreover, if a stay is granted and wall construction begins, there will be no turning back.

8 By essentially handing Defendants an irrevocable victory, a stay would accomplish the opposite of a stay's proper purpose: providing interim relief to allow for considered review. See Nken v. Holder, 556 418, 427 (2009). (explaining that one purpose of the stay mechanism is to avoid justice on the fly );. Nat'l Socialist Party of Am. v. Village of Skokie, 434 1327, 1328 (1977). (Stevens, J., in chambers) (denying application for stay that would be tantamount to a decision on the merits in favor of the applicants ). If Defendants obligate taxpayer funds and commence construction, the status quo would be radically altered, and Plaintiffs will suffer irreparable harm.

9 By contrast, Defendants' claims of harm are speculative and undermined by both their own delay and the administration's own expert assessments. Congress has repeatedly refused to provide billions of dollars for construction of walls in the lands at issue here, in a transparent process subject to great public scrutiny. App. 39a. Insofar as Defendants believe they have the authority to spend those funds unilaterally, that question should be decided in the normal course. It should not be mooted by issuance of a stay. STATEMENT OF THE CASE.

10 1. Congress has repeatedly refused to fund the construction at issue here. In February 2018, the White House submitted its Fiscal Year 2019 Budget Request seeking $18 billion to fund a border wall, claiming that, since most of the illegal drugs that enter the United States come through the Southwest border, a border 4. wall is critical to combating the scourge of drug addiction that leads to thousands of unnecessary deaths. Fiscal Year 2019 Budget Request, Dist. Ct. ECF No. 168-2 . 10, Ex. 10 (RJN). Throughout 2018, Congress rejected numerous bills that would have provided billions of dollars for wall construction.


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