I. Introduction
Imagine being able to look down at the ground beneath your feet and know that your ancestry and heritage comes precisely from where you stand. Imagine then dedicating your life to teaching your fellow descendants what it means to be from that land. This is the reality of Lorraine Marquez Eiler, a member of the Hia C-ed O’odham tribe—one of only a hundred tribal members still alive. She has dedicated her life to teaching O’odham history to the tribe’s young people, and she has the privilege of physically showing her students where their history took place. Around thirty miles from the Arizona-Mexico border, Eiler can point to where her dad made adobe clay for homes. In the ground, an indent marks where he used to mix mud and grass. In April 2020, at eighty years old, Eiler can also point to something else as she stands on her ancestral land: a thirty-foot wall made of steel, accompanied by construction trucks and planes flying overhead—a visual reminder that her tribe, part of which also remains on the Mexico side of the border, is cut in half.
On Wednesday, February 26, 2020, U.S. Customs and Border Protection (CBP) held a press conference titled “Monument Hill Controlled Detonation and Briefing.” The CBP invited press to watch explosives break up rock under the Organ Pipe National Monument in Arizona. The monument, which the National Park Service describes as “a thriving community of plants and animals” with “[h]uman stories echo[ing] throughout [the] desert preserve, chronicling thousands of years of desert living,” is adjacent to a sacred burial site of the O’odham tribe. As the CBP detonated their explosives, Chairman of the Tohono O’odham, Ned Norris Jr., testified in front of the Committee of Natural Resources in the U.S. House of Representatives in Washington, D.C. about the detrimental effects of the construction with a chilling declaration: “For us, this is no different than [the Department of Homeland Security] building a 30-foot wall through Arlington Cemetery or through the grounds of the National Cathedral.”
The Departments of Defense (DoD) and Homeland Security (DHS) funded the border wall by using transfer and reprogramming statutes to circumvent congressional appropriations. These transfer and reprograming statutes allow executive agencies to divert congressionally designated funding for specific purposes for use for other agency initiatives. When the government rerouted appropriations to fund the border wall, private parties had no meaningful way to combat the funding. In response, this Note proposes that the use of private party suits alleging ultra vires action could remedy this issue. An ultra vires action allows private parties to challenge congressional acts, such as the enactment of a statute, as being outside of congressional power. Diverting the appropriations power from Congress to the executive branch should be challenged as ultra vires. If the Hia C-ed O’odham tribe sued Congress, the DoD, and the DHS, alleging that the transfer and reprogramming statutes were ultra vires and thus unconstitutional, tribe members like Eiler and Norris could have the redress they seek, and courts could set precedent to intervene when appropriations are misused.
This Note will analyze a mechanism for private enforcement of appropriations by ultra vires action. First, it will introduce and explain the background of the Appropriations Clause and accompanying statutes, along with the congressional process of appropriating funds for use by executive agencies. Second, this Note will explain ultra vires actions and standing. Third, it will discuss the Trump administration’s actions that gave rise to the border wall and appropriations use to fund the construction, as well as the Biden administration’s decisions for the program and the reason this issue deserves continued attention under the new administration. Fourth, this Note will analyze Sierra v. Trump and Center for Biological Diversity v. Trump, two contrasting cases challenging the use of appropriations for the border wall. Finally, it will contrast Sierra and Center for Biological Diversity with a proposed solution for private parties to bring ultra vires actions to the judiciary, challenging appropriations statutes that allow the executive branch to select funding and circumvent Congress.
II. The Legal and Structural Backdrop of the Current Appropriations Scheme
To adequately understand the necessary ability of courts to allow private party enforcement of misused appropriations through ultra vires claims, one must first understand the appropriations power, the separation of power between Congress and the executive branch, ultra vires actions, standing, and the current legal backdrop. The history of the appropriations power, from the Constitution to its bookend statutes, the Miscellaneous Receipts Act and the Anti-Deficiency Act (ADA), create the legal framework of appropriations. Ultra vires actions, defined and contextualized with the Administrative Procedure Act (APA), explain the judicial right to review agency actions and the standing requirements for plaintiffs to bring such actions. The legal and structural backdrop of appropriations show the parameters by which private parties should be able to police the government’s appropriations power.
A. Issues Highlighted by the Diversion of Funds for Border Wall Construction
A gap exists between the branches of government and private enforcement of the constitutional mandate that only Congress may appropriate funds from the treasury. Currently, private parties are unable to enforce misused appropriations, unless they use a qui tam action under the False Claims Act (FCA). In a qui tam action, employees of a government contractor with insight into how a contractor may be defrauding the government, or whistleblowers, can use the FCA to bring to light and prosecute the mishandling of government funds. Alternatively, a citizen can exercise the constitutional right to vote against elected officials who appropriate funds inconsistently with the way the citizen believes funds should be used. This issue is compounded when funding for controversial projects is allocated through agencies themselves, arguably thwarting the voting process by delegating power given to elected congressional officials to agencies. When an action is controversial and immediate, there is no avenue for private citizens to quickly divert use of funds for public purpose. This issue is acutely illustrated by the many private citizens and organizations who unsuccessfully sought to prevent the Trump administration’s funding and construction of the border wall.
B. The Appropriations Power
Article I, Section 9, clause 7 of the United States Constitution states that “[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Appropriations control is Congress’s grant of spending control given by the Constitution. The appropriations power is exercised and enforced by congressional statutes. The Government Accountability Office (GAO), the Congress’s audit institution, defines an appropriation as “a law authorizing payment of funds from the Treasury.” Congress enacts appropriations laws for executive agencies to use for agency initiatives and programming.
1. Congress’s Role in Appropriations
Appropriations provide budgets for executive, legislative, or independent agencies, and the authority to withdraw the money from the Treasury. Congress passes appropriations statutes for agencies to perform their missions, including funding programs, initiatives, and personnel. Congress must specify an appropriation’s proper purpose, a time limit to use the appropriation, and a certain amount for the appropriation. These three appropriation guidelines allow Congress to limit executive agency spending. An obligation given to an agency, such as a program designated by Congress, does not itself create a purpose for the funds. Rather, funds must be explicitly designated for a given program through an appropriation. Time limits give an executive agency a deadline for when they must spend the funds. A definite appropriation allocates a specific amount of money in comparison to an indefinite appropriation that allocates an unspecified amount of money. By designating a purpose, time, and amount, Congress gives executive agencies a specific scope within which they must use appropriations.
The Miscellaneous Receipts Act and the ADA are integral offshoots of the Appropriations Clause. First, the ADA renders unlawful spending by a federal government or District of Columbia officer or employee of any money not appropriated by Congress. Any knowing or willful violation of the ADA may result in a criminal penalty or a fine of $5,000. This Act gives power to and further enforces the constitutional mandate of the Appropriations Clause to only spend money allocated and approved by Congress. Second, the Miscellaneous Receipts Act ensures money from any receipt of the United States is funneled into the Treasury. It states that “an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim.” Violation of this statute can result in removal from office. The GAO has labeled the Miscellaneous Receipts Act as a “logical, perhaps indispensable, complement” to the ADA. Because “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” the Miscellaneous Receipts Act and the ADA work together to enforce the constitutional clause and to ensure that once a “miscellaneous receipt” is deposited into the Treasury, only an appropriation can then take the funds back out.
2. Executive Agencies and the Appropriations Power
The appropriations power subjects many agencies and agency programs to the will of the legislative branch. As a part of the executive branch, executive agencies work with the President, Vice President, and Cabinet members to enforce the daily administration of federal laws. A differentiating feature of executive agencies is that the director or head of the agency serves at the pleasure of the President and can be removed by the President at any time, with or without cause. Thus, executive agencies are funded by the legislative branch but are administered by the executive branch. This separation of funding and administration reinforces the concept of separation of powers and the constitutional roles of each branch of government.
Congress’s appropriations power has become diluted as laws modernize and evolve. The executive branch has been able to siphon control of appropriations by using legislative statutes to circumvent the congressional appropriations power. Proponents of statutes that permit the transfer or reprograming of funds argue there is a need for flexibility due to changing circumstances, such as emergencies during which funds are needed elsewhere. Transfer statutes give statutory authority for agencies to shift funds between appropriations, whereas reprogramming statutes permit shifting funds “within an appropriation to purposes other than those contemplated at the time of appropriation.” Reprogramming can occur without statutory authority, allowing an agency to reprogram funds as it wishes. Transfer and reprogramming statutes allow for the transfer of funds within an executive agency without direct congressional oversight, circumventing the traditional congressional authority to appropriate funding for agency programs. Transferring and reprograming funds occurs behind layers of bureaucracy, increasing the challenge of oversight, both congressionally and privately, and giving more power to the executive branch than traditionally allocated.
C. Ultra Vires Actions and Standing of Private Parties
The authority of a private individual to challenge statutes as unconstitutional provides an avenue for private enforcement against agencies transferring and reprogramming funds. Currently, transfer and reprogramming appropriations statutes provide the executive branch with largely unchecked authority to direct funding. One way to challenge the constitutionality of government action is by bringing an ultra vires action in court. Ultra vires actions are actions taken by the government that go beyond the scope of power given to the government by law. Claiming official conduct was ultra vires and should be enjoined “do[es] not depend upon the availability of a statutory cause of action; instead, [a private plaintiff] seek[s] a ‘judge-made remedy’ for injuries stemming from unauthorized government conduct,” which “rest[s] on the historic availability of equitable review.” Each party’s injury must rise to this level to permit standing. The right to allege an action was ultra vires also governs the “right of judicial review of agency actions that [have] exceeded authority.”
1. Ultra Vires Actions
Ultra vires means “beyond power” in Latin. An ultra vires action is a challenge to a government official’s act that the challenging party believes was outside of the scope of the official’s power or authority. Judicial review of actions beyond the scope of government power traces back to England and creates a judicial remedy to enjoin either unauthorized or unconstitutional actions. When a government official’s act results in injury to a private party, judicial relief can generally be found when the act “is in excess of his [or her] express or implied powers.” For example, it would be ultra vires if a fictitious President of the United States declares war between Mexico and Canada, as declaring war between two other countries besides the United States is outside the scope of his or her power. If Mary Joe challenges this act in court, showing injury that relates to this declaration, she will have brought a claim alleging an ultra vires action. Actions taken by officials and actions taken by agencies can both be judicially reviewed.
The APA confers on the judiciary the right to review agency actions. The APA provides for a right of review when “[a] person suffered legal wrong because of agency action, or [is] adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The scope of agency authority is dependent on the statute that gives the agency the power at issue. Agency action is presumptively reviewable under the APA. This presumption is rebuttable by a showing that a statute “precludes judicial review” or “the agency action is by law committed to agency discretion.” A statute precludes review when it specifically states a judicial body cannot review it. Courts generally view this exception to the presumption narrowly. The APA authority to review agency actions extends the ultra vires right of private parties to challenge government action to government agencies.
2. Standing Requirements
Standing is an essential element in every case, even when plaintiffs challenge official government action. Standing can and should be addressed sua sponte, if the parties do not raise the issue themselves. Article III of the Constitution limits judicial review to “cases” and “controversies.” The case and controversy requirement does not include every dispute, but only those disputes by which resolution is available through the judicial process. It is not enough for a party to have a “keen interest” in the issue; the parties must have “suffered a concrete and particularized injury” for an actual controversy. To establish standing, parties must fulfill three requirements: (1) the party has suffered a concrete and particularized injury in fact; (2) the injury must be traceable to the challenged conduct; and (3) the injury must be able to be remedied by a favorable judicial decision. An injury in fact must be more than a “generalized grievance,” but can be economic or noneconomic.
When looking to private challenges of federal expenditures, even “when the plaintiff is closely affected,” the courts may not accept a suit to remedy the alleged wrong. Professor Louis Jaffe’s article, Standing to Secure Judicial Review: Public Actions, explores standing when individuals challenge state and federal actions. He argues that when an individual is allowed to sue on behalf of the general public interest, it is the “alleged illegalities or irregularities . . . of that high order of concern” that give the person standing. To Jaffe, the legal wrong is immaterial. Instead, the quest for the legal right of persons to challenge government action is redundant in itself. The grant of standing itself gives the legal right to the plaintiff—a court’s decision to give standing “creates the supposed premise for the decision.” The “judicial construction” of standing can be found in “overlays” of statutes in recent years. Although there are specific standing requirements in other statutes, such as the APA, Jaffe argues the common law developments of such standing issues are at times contradictory and not systematic.
III. The Trump Administration’s Exposure of Gaps in the Enforcement of Appropriations Use and the Biden Administration’s Current and Potential Role
The Trump administration’s use of appropriations through transfer and reprogramming statutes to build the border wall highlights the necessity of private party enforcement of appropriations use. Sierra Club v. Trump and Center for Biological Diversity v. Trump provide examples of the intricacies and impact of private enforcement on misused appropriations in this context. The Biden administration’s decision to halt construction of the border wall will not put an end to this broader issue. This Part will look to the actions of the Trump and Biden administrations and how the political landscape may evolve to explore the significance of appropriations use to fund the border wall and the necessity for private party enforcement of the appropriations power.
A. The Trump Administration’s Use of Inter-Agency Appropriations Transfers for Border Wall Construction
In April 2014, Donald Trump mentioned his idea for a border wall at an event in New Hampshire. This created the “cornerstone” campaign promise that would aid Trump’s bid, and ultimate win, of the presidential election in November 2016. He promised to build a “big, beautiful wall” along the border of Mexico to keep out immigrants from Latin American countries. Questions about how the wall would be funded persisted, and, in 2015, Trump promised the public Mexico would pay for the U.S.-made wall running between the two countries. This claim continued throughout the election, and, in April 2017, the DHS estimated the wall would cost $21.6 billion over an almost four-year period. By mid-December 2019, a thirty-five day government shutdown, the longest in history, began over the congressional allocation of funds for the wall. Trump originally called for a $5.7 billion appropriation to fund the wall for the fiscal year. On February 15, 2019, the President signed the Consolidated Appropriations Act of 2019 (CAA) which allocated $1.375 billion for the border wall out of a $328 billion spending bill to reopen the government. The CAA designated the $1.375 billion for “the construction of primary pedestrian fencing . . . in the Rio Grande Valley Sector.”
The next day, the President declared a “National Emergency” at the southern border in order to direct funding originally appropriated for programs within the DoD to the DHS to use to build the border wall. The national emergency declaration allowed the president to divert funds allocated to the DoD under 10 U.S.C. § 284 (Section 284), and was in itself controversial. Section 284 allows the DoD to transfer funds between other departments or agencies within the federal Government because of a grant of statutory authority. On February 25, 2019, the DHS requested the DoD use Section 284 for assistance “to block drug smuggling corridors” by funding “approximately 218 miles” of border wall.
Acting Secretary of Defense Patrick Shanahan approved the request and invoked Sections 8005 and 9002 of the 2019 Department of Defense Appropriations Act. Section 8005 gives reprogramming authority and allows the DoD to transfer funds from other DoD appropriations accounts for use of Section 284. Section 9002 then confers on the Secretary of Defense the ability to transfer funds. Acting Secretary Shanahan transferred $2.5 billion of appropriations to the DHS from Army personnel appropriations and various excess appropriations. Section 8005 qualifies the authority to use the statute: “Provided, [t]hat such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” The funds were originally partially allocated for “purposes such as modification of in-service missiles and support for U.S. allies in Afghanistan.”
The DoD historically adhered to a “gentlemen’s agreement” when transferring funds, in which the agency would provide a written notification and explanation to Congress with the transfer. This “comity-based policy,” as Shanahan described it, is not mandated for approval of the funds, but is a historical procedural step which backs the validity of the transfer. With no written notification from the DoD, Congress wrote formal letters disapproving the transfer, and filed suit alleging that the use of funds was illegal.
B. Sierra Club v. Trump and Center for Biological Diversity v. Trump
The Trump administration’s use of appropriations to fund a border wall between the United States and Mexico spurred numerous suits alleging unlawful use of funds. Each suit centered on private parties’ ability to bring a claim challenging the use of appropriations. In Trump v. Sierra Club, the Supreme Court granted a stay of the permanent injunction for building the border wall, holding that the Government made a sufficient showing that the plaintiffs had no cause of action to challenge the appropriations use. Justice Breyer’s concurrence posed the question of “the ability of private parties to enforce Congress’ appropriations power,” but deposed no views on the merits of this question. After the stay, the Ninth Circuit held for plaintiffs, finding the Trump administration’s action unlawful.
Another pending case that challenges the use of appropriations to fund the border wall is Center for Biological Diversity v. Trump, which contrasts with Sierra Club in that the district court found the administration’s actions lawful. As various organizations continue to challenge the Trump administration’s use of funds, courts have disagreed as to the ability of private parties to bring ultra vires actions for misuse of appropriations. The inconsistency regarding the ability of private parties to enforce appropriations use is a pressing issue. As set forth in Part IV, infra, courts should uniformly allow claims to be brought and heard in which private parties challenge the transfer and reprogramming statutes as unconstitutional via ultra vires actions.
C. The Biden Administration Takes on the Border Wall
On January 20, 2021, Joe Biden was inaugurated as the forty-sixth President of the United States. President Biden campaigned on the promise that he would not build “another foot” of the border wall if elected. The President also pledged to withdraw the government from all lawsuits currently fighting the appropriations use, including Sierra Club and Center for Biological Diversity. Shortly after he was sworn into office, Biden halted construction and funding at the border for assessment and evaluation of the project and possible avenues for moving forward. On February 10, 2021, President Biden rescinded Trump’s 2019 national emergency declaration. In a letter to Speaker of the House Nancy Pelosi, President Biden wrote that “the declaration of a national emergency at our southern border was unwarranted” and “no more American taxpayer dollars [will] be diverted to construct a border wall.” The declaration also directed a review of all the appropriate or “redirected” resources allocated for the border wall. This decision resulted in forty Senate Republicans sending a letter to the GAO requesting an investigation into President Biden’s actions as a violation of the Impoundment Control Act (ICA). On June 15, 2021, the GAO reported the “delays in the obligation and expenditure of DHS’s appropriations are programmatic delays, not impoundments,” finding the Biden Administration did not violate the ICA.
Following the GAO’s decision, the DHS began cancelling current border wall construction contracts to follow the administration’s plan for unobligated border wall funds. Because the DHS is required to use funds obligated by Congress only for the appropriation’s intended purpose, the agency decided to “prioritize the remaining border barrier funds to address and remediate urgent life, safety, and environmental issues resulting from the previous administration’s border wall construction.” This plan included cleaning up construction sites, focusing on drainage, erosion control, site remediation, material disposal, and mitigating environmental damage caused by border wall construction. The executive branch’s obligation to comply with contested appropriations from a previous administration showcases why the impacts of transfer and reprogramming statutes should be mitigated and enforced by private action. Consequences do not cease once a new president takes office.
The government has the contractual right to terminate a contract for convenience. This allows the government to terminate a contract if doing so is in the interest of the government and could result in returning funds back to the government. However, this is not without negative consequences: once contracts are terminated for convenience, the contractors are entitled to be paid for any work completed or accepted that has not yet been paid for, including costs attributable to such work and a fair and reasonable profit on the work performed unless the construction is being performed at a loss. The Army Corps estimated at the start of Biden’s presidency that terminating the government’s border wall contracts for convenience would cost approximately $700 million. The longer that funds are paused, the more likely it becomes that money may have to be diverted to contractors following cancelled contracts, instead of the government being able to use the funds for environmental mediation or other initiatives under the appropriation. If Biden had terminated the border wall construction contracts for convenience on his first day in office, the federal government would have saved an estimated $2.6 billion.
The Biden administration can also allow the current contracts to continue with a change order directing only the completion of ancillary features of the border wall. On December 20, 2021, the DHS announced the DoD would be directing the cancellation of all 284 DoD projects and would turn over all unfinished projects to the DHS. These contracts will be used to “address urgent life, safety, environmental, or other remediation required to protect border communities.” This action will save $1.1 billion, compared to $1.46 billion that would have been saved if the project was completely frozen at the start of Biden’s presidency. Other untouched appropriations will remain in the DHS account, which could be used for new Border Patrol equipment or other border-related technology.
The Biden administration also must address many lawsuits stemming from the border wall. On July 2, 2021, the Supreme Court granted the Biden administration’s motion to vacate Sierra Club, with instructions for the case to be remanded and the district court to vacate its judgments. The Trump administration also filed over 140 condemnation lawsuits that are still pending. President Biden promised to dismiss all cases: “End. Stop. Done. Over. Not going to do it. Withdraw the lawsuits. We’re out. We’re not going to confiscate the land.”
However, after Biden halted the border wall construction and funding, the Department of Justice (DOJ) asked for a sixty-day continuance in at least one land seizure case. Following a lapsed deadline, a federal judge in Texas granted “immediate possession” to the government, handing over six acres of land from a family whose grandmother had paid for their farm by selling tamales and tortillas nearly seventy years ago. This action sends a signal to other border families that Trump’s border wall policy may still wreak havoc on their lives and livelihoods. So long as land seizure cases are not shut down, they “[add] to the toll of Mr. Trump’s pursuit of a border wall . . . under the watch of a successor who campaigned against him in part by criticizing it.” The land seizures, initiated under the Trump administration, could still be used by the Biden administration for roads for Border Control, towers, or scanners to detect migrants, a pivot that would fit within Biden’s support of investments into technology along the border, but instead continue to harm landowners and their land. As of June 2021, 114 of the 140 open cases have progressed under Biden. Additionally, in December 2021, Missouri and Texas filed a lawsuit asking a judge to force the Biden administration to continue constructing the wall.
While the above suits present varying legal and factual questions, the underlying issue the Trump administration created through its use of Sections 284, 8005, and 9002 remains the same and continues to impact taxpayers and the focus of the current administration. By circumventing checks and balances for federal funding, the lack of an ability for private parties to enforce appropriations use has become a key issue related to government spending. Transferring and reprogramming statutes not only allow the executive branch to usurp congressional directive, but do so at the expense of the taxpayer. There is no reason why this situation cannot be repeated in the future for different issues on any part of the political spectrum or government landscape.
IV. Analysis
Case law surrounding the Trump administration’s border wall invites analysis of the applicability and necessity of private party enforcement of the appropriations power. The Court of Appeals of the Ninth Circuit in Sierra Club held that the organizations had Article III standing and the ability to bring an ultra vires action to enjoin defendants from using transferred funds. The court also held that the agency’s transfer of funds was unconstitutional. This holding came on remand after the Supreme Court granted a stay of the injunction in favor of the Trump administration, as mentioned above. In Center for Biological Diversity, the District Court for the District of Columbia granted in part and dismissed in part the defendants’ motion to dismiss, holding that the plaintiffs’ claim against use of the funds was statutory and that plaintiffs were improperly attempting to recast it as a constitutional claim. Sierra Club and Center for Biological Diversity are examples of how courts at various levels of the federal judicial system are split regarding the ability of private parties to enforce actions against misused appropriations. Judicial action allowing private parties to enforce appropriations use through claims of ultra vires action provides a judicial remedy.
A. Sierra Club v. Trump: Judicial Inconsistency Regarding Private Party Enforcement
In Sierra Club, the plaintiffs, Sierra Club and Southern Border Communities Coalition (SBCC), brought action against President Trump, the Acting Secretary of Defense, the Acting Secretary of Homeland Security, and the Secretary of the Department of the Treasury. The suit alleged that redirected funds to construct the border wall harmed the organizations and each group’s members. Thousands of the Sierra Club’s members in its San Diego, Rio Grande, and Grand Canyon chapters visit and live near border areas designated as estuaries, wilderness areas, and wildlife refuges; these members visit the border for recreational, scientific, educational, and other activities. The Sierra Club alleged that the destruction of nature by the border wall would “acutely injure” the group and its members’ interests. The SBCC alleged similar harm, specifically that funding for the construction of the border wall impacted its members because its resources were diverted from the mission of “advocacy regarding border militarization, Border Patrol law-enforcement activities, and immigration reform,” to instead focus a vast majority of its resources to “protect and improve” border communities.
Plaintiffs in Sierra Club alleged Sections 8005 and 9002 did not authorize the budgetary transfers. The plaintiffs’ suit challenged the Trump administration’s actions, alleging that they were in “violation of the 2019 CAA, violation of the constitutional separation of powers, violation of the Appropriations Clause, violation of the Presentment Clause, violation of the National Environmental Policy Act (NEPA), and ultra vires action.” The Ninth Circuit held that the transfers were not authorized and that the plaintiffs did have a cause of action, and denied defendants’ stay of the injunction. Defendants then filed an application to the Supreme Court for a stay pending appeal.
The Supreme Court granted the stay, with Justice Kagan writing that “the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” This ruling was coupled with Justice Breyer’s quip, as discussed above, that this case presents “novel and important questions about the ability of private parties to enforce Congress’ appropriations power.” On remand, the Ninth Circuit “heed[ed] the words of the [Supreme] Court” but determined Plaintiffs had a cause of action which could be addressed by a legal remedy. The Ninth Circuit found that the parties had standing to challenge the use of the funds and that the DoD was not statutorily authorized to transfer the funds.
1. The Ninth Circuit’s Decision in Sierra Club
On remand, the Ninth Circuit directly referenced the Supreme Court’s suggestion that Sierra Club was not the proper challenger for the case at issue. The Ninth Circuit cited Bond v. United States, in which the Supreme Court detailed how structural provisions of the constitution can give rise to a cause of action. The Bond court held that the structural principles of the Constitution, such as separations of powers or checks and balances, may be challenged by individuals because the structure of the Constitution is bound to protect individuals. The Ninth Circuit further highlighted cases where congressional action barred executive branch allocation of appropriations. Sierra Club held that the congressional allocation of $1.375 billion for the border wall showed the executive branch Congress’s limited intent, low priority, and minimal support for the project.
In Sierra Club, defendants looked to Dalton v. Specter to highlight the claim that not “every action by the President, or by another executive official, in excess of his statutory authority is [automatically unconstitutional].” However, as the Ninth Circuit pointed out, this also does not qualify every action which may be in excess of statutory authority as constitutional. In Dalton, state officials attempted to stop the Secretary of Defense from closing the Philadelphia Naval Shipyard, a decision made by the president, by alleging the president violated the Defense Base Closure and Realignment Act of 1990 (Defense Base Act). The Defense Base Act gave power to a committee to recommend base closures to the president. After denying statutory review of the claim, the Supreme Court then also denied review as a constitutional claim.
The Ninth Circuit distinguished Dalton, stating the Appropriations Clause, prohibiting money to be drawn from the Treasury but for “in Consequence of Appropriations made by Law,” is a direct constitutional prohibition against withdrawing money not appropriated by Congress. A cause of action can arise when the executive branch violates a constitutional prohibition. The Ninth Circuit concluded that transferring the funds violated an express constitutional provision and that the Sierra Club had a “constitutional cause of action.”
The Ninth Circuit found plaintiffs had alleged a viable ultra vires cause of action, citing Youngstown Sheet & Tube Co. v. Sawyer. In Youngstown, the Supreme Court enjoined President Truman’s executive order to seize steel mills for use in the Korean War, holding that the order fell outside the scope of congressional statutes and outside the scope of executive power. In Sierra Club, the appropriations statutes at issue were circumvented by the executive branch, which lacks its own independent authority to assign funding to projects. Sierra Club found that the transfer of funds itself was an ultra vires action by the executive branch, and did not challenge the statute as a whole.
B. Center for Biological Diversity v. Trump: Supreme Court Precedent Prevents Review
In Center for Biological Diversity, the plaintiffs alleged similar causes of action and arguments as those advanced in Sierra Club. The United States District Court for the District of Columbia rejected plaintiffs’ argument qualifying the holding in Dalton v. Spencer. The district court, in contrast with the Ninth Circuit in Sierra Club, found for defendants. The district court held the constitutional claims against defendants were statutory claims recast in constitutional terms, and further stated that “Dalton dispose[d] of these claims.” The district court stated Dalton’s holding that “claims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’ claims, subject to judicial review,” meaning that all presidential claims are statutory, and none is constitutional. This is in direct contrast with the Ninth Circuit’s qualification of Dalton in Sierra Club. The district court alluded to the aim of this Note: “[Plaintiff] does not argue that §§ 2808 or 8005 themselves are unconstitutional—merely that defendants misused those statutes to circumvent the CAA.” Defendant’s motion to dismiss was granted in part and denied in part, allowing statutory claims under the CAA.
Sierra Club and Center for Biological Diversity show outcomes by three different courts, the District Court of the District of Columbia, the Court of Appeals of the Ninth Circuit, and the Supreme Court, where private enforcement of appropriations use at the statutory level produced inconsistent results.
C. The Solution: Private Party Ultra Vires Actions
Utilizing private enforcement actions to challenge the constitutionality of transfer and reprogramming appropriations statutes can be a mechanism to check the federal government’s spending. A private plaintiff can allege a breach of separation of powers by ultra vires action, by claiming appropriations statutes passed by Congress that allow the executive branch to circumvent congressional power are beyond the power of the legislature.
1. The Judiciary’s Back Seat in the Appropriations Power
Traditional judicial challenges to the appropriations power were initially a weak starting point in weighing the probability of private party enforcement of appropriations. The Supreme Court in Flast v. Cohen held that a taxpayer has standing to allege that congressional acts under the taxing and spending clause are in violation of constitutional provisions. However, lower courts have also held that the Appropriations Clause “is not self-defining and Congress has plenary power to give meaning to the provision.” In Harrington v. Bush, the United States Court of Appeals, District of Columbia Circuit held that a member of the U.S. House of Representatives did not have standing to challenge the Central Intelligence Act for its ability to fund secret illegal activity through interagency transfer. However, the challenge in Harrington was not based on constitutionality of the statute. Instead, Representative Harrington challenged the statute’s allowance of secret interagency transfer of funds for confidential uses, regardless of the prior appropriations designation, inhibiting his ability to vote on funding. Representative Harrington sought declaratory judgement to deem the statute illegal. The Court declined to do so, refusing to decide what a “proper legislative process” is and referencing Flast v. Cohen’s statement that judicial intervention is only proper when substantive issues are at hand.
2. Controversy Regarding Open-Ended Appropriations and Remedies
Private citizen enforcement of the misuse of appropriations through ultra vires action claims should be used to police appropriations statutes, and courts should find statutes that allow the executive branch to authorize funds unconstitutional. Professor Kate Stith’s 1988 article, Congress’ Power of the Purse, claims “not every legislative grant of spending authority necessarily qualifies as an ‘Appropriation made by Law.’” Professor Stith argues open-ended or indefinite appropriations statutes are unconstitutional because such statutes allow for the transfer of authority from the legislative branch to the executive branch. While Professor Stith goes on to speak about accountability shifting from courts to the GAO to solve the problem, this Note proposes private enforcement of appropriations statutes by challenging them as unconstitutional. An imperative aspect of proposing the use of ultra vires action claims to police appropriations statutes is to provide an avenue for persons not directly related to political processes to seek judicial action. This proposition comes on the heels of one political party in control of the presidency, Senate, and the judiciary, and during a time where the opposing party then also gained control of the presidency, the Senate, and the House. When political norms are upended by a new political wave, actors outside of Washington, D.C.’s city lines should be able to hold their federal government accountable. By allowing private enforcement of overbroad, open-ended appropriations statutes, private citizens would be able to do just this.
Professor Stith cites the “‘plenary’ authority” of Congress to allocate funds, as referenced in Harrington, and dismisses the idea of judicial intervention. Overlooking judicial intervention, Professor Stith claims that there must be enforcement by Congress because, “as the Supreme Court indicated a century ago, Congress has ‘absolute’ authority to construe and to effectuate the appropriations requirement.” However, Professor Stith’s own citations show the tension between such plenary power of Congress to appropriate funds, and the separation of powers argument that Congress may only exercise power as duly delegated by the Constitution. Footnote 212 reads:
See Reeside v. Walker, 52 U.S. (11 How.) 272, 290–91 (1850); Hart’s Case, 16 Ct. Cl. 459, 484 (1881) (“[A]bsolute control of money of the United States is in Congress, and Congress is responsible for its exercise of this great power only to the people.”), aff’d,118 U.S. 62 (1886); cf. Baker v. Carr, 369 U.S. 186, 217 (1962) (“textually demonstrable constitutional commitment of the issue to a coordinate political department. . . .”).
Such juxtapositions of the appropriations power and congressional overreach are ever present in judicial history. These contrasting ideals provide a narrow opening, if not an avenue, for private party enforcement of the appropriations power. The judiciary should allow review of alleged violations of the appropriations power, not just by narrowly challenging the executive branch’s action in Sierra Club and Center for Biological Diversity, but by challenging the statute itself as ultra vires on the ground that Congress has exercised power outside of constitutional bounds.
3. A Functionalist Solution to Judicial Review of Ultra Vires Claims
In Sierra Club, the plaintiffs challenged the action of transferring the funds as ultra vires; the plaintiffs did not challenge the statute itself as unconstitutional. Further, the suit focused on the executive branch’s actions, not on the legislative branch. In Center for Biological Diversity, plaintiffs had similar allegations, yet the court found for defendants. In order to effectively police congressional, and then executive, use of appropriations, transfer and reprogramming statutes themselves should be challenged as unconstitutional. In enacting these statutes, Congress unconstitutionally transferred its power of the purse to the executive branch. Private parties should be able to bring suit to allege that appropriations statutes are unconstitutional. Courts could then rule on the facts and specific transfer and reprogramming statutes at hand. While this option in theory could open a Pandora’s box for all challenges to all statutes, the ordinary standing requirements should be maintained as they have been in the border-wall suits mentioned herein. This would allow appropriations enforcement without an influx of frivolous litigation by upholding the stringent bar to find standing as evidenced in Sierra Club and Center for Biological Diversity.
This approach to appropriations enforcement by private parties should be endorsed by the courts. The legal school of thought of functionalism promotes the idea that “law is regarded as an instrument for forwarding some independently desirable purpose given to it from the outside.” A functionalist judge looks to precedent, but also to the future, so he or she can bring “about the likely best results in the present case.” When looking to separation of powers, functionalism encourages the judiciary to look to changed circumstances and encourage the evolution of doctrine. This was the basis of Justice Jackson’s concurrence in Youngstown, and it is the same view that the current Supreme Court should take to allow private enforcement of appropriations. Regardless of political affiliation, there is a consensus that the Trump administration pushed the boundaries of the American legal system. It is up to the judiciary to fill the holes that any administration could use to circumvent the rule of law and abuse the privilege of governing the American people. Private enforcement of appropriations by bringing ultra vires action claims challenging the legislative’s enactment of statutes which allow reprogramming and transferring of funds between executive agencies should be struck down by the judiciary.
4. Statutory Solutions Fail to Provide an Adequate Private Party Remedy
Two potential statutory schemes provide a solution at first glance; however, they fail to adequately address and overcome the issues of private party enforcement and the separation of powers concerns of transfer and reprogramming statutes between Congress and the executive branch. First, a congressional statute which codifies the “gentlemen’s agreement” between the DoD and Congress by which the DoD must notify the legislative branch when transferring and reprogramming statutes could be an additional solution to this issue. Instead of notification as a courtesy, the statute could mandate notification and approval by Congress. Codifying this step could shift power from the executive branch back to Congress without inhibiting the function of the statutes for emergency use, and ensuring funds are used solely for congressionally approved purposes. By ensuring there is congressional approval on appropriations use through transfer and reprogramming statutes, Congress would take back the power the statutes gave to the executive branch.
The executive branch would likely criticize this statute and point to the need for funding to be diverted as quickly as possible when true disaster strikes. Regardless, the codification would likely be upheld in court, as regulating the appropriations power is a constitutionally mandated congressional power. This solution does not safeguard against consequences of future partisan control of Congress and the executive branch, and it does not give private citizens the ability to enforce appropriations use in any way different from that in Sierra Club and Center for Biological Diversity. Instead, the statute would allow discretionary power to remain in the hands of the government with no private party check on use of appropriations.
An additional statutory solution is to promulgate a qui tam provision similar to that in the False Claims Act (FCA) described above, in which Congress allows private parties to bring suit alleging knowledge of wrongdoing to the government. In an FCA claim, a private person, known as a relator, brings suit against a government contractor on behalf of the government, and the government then investigates the contractor’s alleged wrongdoing. The FCA’s qui tam provisions are significant because a relator who brings suit under the statute does so under a theory of assignment. Therefore the relator does not need to show injury to him or herself to achieve standing in order to bring suit. Because Congress has assigned the right of action to private parties, it is the harm to the government that is the injury in which the relator relies on. Here, if Congress were to institute a qui tam provision allowing private parties to bring enforcement actions on behalf of the government to challenge misuse of appropriations, private parties would be able to police government use of funding and ensure that a check on spending occurs throughout the branches of government. The statute could incorporate a scheme like that of the FCA, which mandates the DOJ to investigate the claim and then dismiss the suit if there are no merits, or alternatively decide not to intervene and allow the relator to move forward with the suit on his or her own.
There are, however, several issues with this statutory solution. First, the FCA qui tam provisions are effective largely because of the extensive monetary gains that a relator can receive. If a qui tam suit prevails, a relator can receive up to twenty-five percent of damages, plus attorney’s costs and fees. However, in the case of appropriations enforcement, damages would likely be equitable instead of monetary, which would decrease the likelihood relators would want to bring suit. Alternatively, this could decrease the number of suits, as only well-funded, large organizations would be able or willing to go through years of litigation for no financial gain.
The second issue with instituting a qui tam statute for misuse of appropriations is that, without a standing requirement, relators could bring suit alleging massive monetary damages based on government action and courts would not be able to dismiss the action unless the DOJ intervened, based on standing requirements. This policy could open the floodgates for frivolous litigation. Additionally, the DOJ’s mandatory requirement to investigate all qui tam cases, if instituted in the same way, would result in the lawyers of the government investigating the government for wrongdoing of the government. Because the DOJ is the government’s lawyer, instituting a qui tam statute in which the DOJ must investigate the allegations creates an unavoidable circular conflict of interest. One way to avoid this issue would be to create an independent agency charged with investigating these types of cases, which would undoubtedly come with its own host of political and logistical challenges, the least of which being funding and resources.
The most glaring issue with instituting a qui tam provision for the misuse of appropriations is the transfer and reprogramming statutes at issue are not presently illegal. Parties would bring suit alleging either ultra vires action or that the statutes are unconstitutional on the whole, as discussed above. This in itself would create massive issues as to why relators are bringing actions, who should be investigating them, and the scope of the investigations that suits, if open to all private parties, could bring in. While at first glance a qui tam action may sound like a viable solution, it is not practical and would likely not adequately allow for private enforcement of appropriations use.
These legislative solutions are two potential avenues for private party enforcement; however, neither seems likely or the most beneficial solution. While relying on the judiciary is a bigger leap than a statutory solution, it is the most promising way to allow private parties to hold their government accountable and receive a nuanced solution to the issue at hand. Government should be accountable to the people, and often it is the judiciary’s role to remind the other branches of government of such duty.
V. Conclusion
The Trump administration highlighted a mechanism in the American appropriations scheme that allows the executive branch to circumvent congressional allocations. It is not outside the realm of possibility that transfer and reprogramming statutes will be used again by future administrations to actualize controversial programs or policies. The judiciary must play an active role in allowing private parties to police appropriations use so that the government remains accountable to the people. By upholding use of claims of ultra vires actions to strike down transfer and reprogramming statutes as outside the scope of congressional power, the judiciary can aid private parties’ checks on their government. It is imperative that the people have a role in their own government. When Congress and the executive branch fail the people, the judiciary must protect democracy.
