FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SIERRA CLUB; SOUTHERN BORDER             Nos. 19-16102
COMMUNITIES COALITION,                        19-16300
               Plaintiffs-Appellees,
                                            D.C. No.
                 v.                      4:19-cv-00892-
                                              HSG
DONALD J. TRUMP, in his official
capacity as President of the United
States; MARK T. ESPER, in his              OPINION
official capacity as Secretary of the
Defense; CHAD F. WOLF, in his
official capacity as Acting Secretary
of Homeland Security; STEVEN
TERNER MNUCHIN, in his official
capacity as Secretary of the
Department of the Treasury,
              Defendants-Appellants.


     Appeal from the United States District Court
       for the Northern District of California
   Haywood S. Gilliam, Jr., District Judge, Presiding

       Argued and Submitted November 12, 2019
               San Francisco, California

                  Filed June 26, 2020
2                     SIERRA CLUB V. TRUMP

Before: Sidney R. Thomas, Chief Judge, and Kim McLane
     Wardlaw and Daniel P. Collins, Circuit Judges.

                Opinion by Chief Judge Thomas;
                   Dissent by Judge Collins


                            SUMMARY*


                          Appropriations

    The panel affirmed the district court’s judgment in an
action brought by the Sierra Club and the Southern Border
Communities Coalition (collectively the “Sierra Club”)
challenging the Department of Defense’s budgetary transfers
to fund construction of a wall on the southern border of the
United States in California, New Mexico, and Arizona.

   At issue is whether Section 8005 and Section 9002 of the
Department of Defense Appropriations Act of 2019 (“Section
8005”) authorized the budgetary transfers to fund
construction of the wall.

    The panel held that the Sierra Club had Article III
standing to pursue its claims. Specifically, the panel held that
Sierra Club’s thousands of members live near and frequently
visit areas along the U.S.-Mexico border for hiking,
birdwatching, photography, and other professional, scientific,
recreational, and aesthetic activities; and construction of a
border wall and related infrastructure will acutely injure these

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   SIERRA CLUB V. TRUMP                         3

interests because the Department of Homeland Security is
proceeding with border wall construction without ensuring
compliance with any federal or state environmental
regulations designed to protect these interests. Additionally,
the interests of Sierra Club’s members in the lawsuit are
germane to the organization’s purpose. Similarly, the panel
held that the Southern Border Communities Coalition alleged
facts that support that it had standing to sue on behalf of itself
and its member organizations. The panel further held that
Sierra Club’s injuries were fairly traceable to the Section
8005 transfers. In addition, the panel held that the injury to
Sierra Club members and Southern Border Communities
Coalition was likely to be redressed by a favorable judicial
decision.

    In companion appeal State of California v. Trump, Nos.
19-16299 and 19-16336, slip op. (9th Cir. June 26, 2020)
(published concurrently), the panel held that Section 8005 did
not authorize the transfers of funds at issue here. The panel
reaffirmed this holding here.

    The panel held that the Executive Branch lacked
independent constitutional authority to authorize the transfer
of funds. The panel noted that the Appropriations Clause of
the U.S. Constitution exclusively grants the power of the
purse to Congress. The panel held that the transfer of funds
violated the Appropriations Clause, and, therefore, was
unlawful.

    The panel held that the Sierra Club was a proper party to
challenge the Section 8005 transfers, and concluded that
Sierra Club had both a constitutional and an ultra vires cause
of action. First, the panel held that where plaintiffs, like
Sierra Club, establish that they satisfy the requirements of
4                  SIERRA CLUB V. TRUMP

Article III standing, they may invoke separation of powers
constraints, like the Appropriations Clause, to challenge
agency spending in excess of its delegated authority. Because
the federal defendants not only exceeded their delegated
authority, but also violated an express constitutional
prohibition designed to protect individual liberties, the panel
held that Sierra Club had a constitutional cause of action.
Second, the panel held that the Sierra Club had an equitable
ultra vires cause of action to challenge the Department of
Defense’s transfer of funds. Where it is alleged that the
Department of Defense has exceeded the statutory authority
delegated by Section 8005, plaintiffs like Sierra Club can
challenge this agency action.

    The panel rejected the federal defendants’ additional
arguments. First, the federal defendants asserted that Sierra
Club’s challenge must be construed as an Administrative
Procedure Act (“APA”) claim, rather than as a constitutional
or ultra vivres cause of action. The panel held that the APA
is not to be construed as an exclusive remedy, and the APA
does not displace all constitutional and equitable causes of
action. Second, the federal defendants asserted that the zone
of interests test must apply to any challenge brought by
Sierra Club, and that Section 8005 prescribes the relevant
zone of interests. The panel held that Sierra Club fell within
the Appropriations Clause’s zone of interests.            The
unconstitutional transfer of funds here infringed upon
Sierra Club’s members’ liberty interests, harming their
environmental, aesthetic, and recreational interests. The
panel concluded that the Sierra Club had a cause of action to
challenge the transfers.

     Finally, the panel held that the district court did not abuse
its discretion in granting Sierra Club a permanent injunction
                   SIERRA CLUB V. TRUMP                         5

enjoining the federal defendants from spending the funds at
issue. First, the panel agreed with the district court that Sierra
Club would suffer irreparable harm to its recreational and
aesthetic interests absent injunction. Second, the panel
agreed with the district court that the balance of equities and
the public interest favored injunctive relief. The panel held
that the Supreme Court’s decision in Winter v. NRDC, Inc.,

(2008), did not require the panel to vacate the
injunction.

    Judge Collins dissented. He agreed that at least the Sierra
Club established Article III standing, but in his view the
organizations lacked any cause of action to challenge the
transfers. Even assuming that they had a cause of action
Judge Collins would conclude that the transfers were lawful.
Accordingly, he would reverse the district court’s partial
summary judgment for the organizations and remand for an
entry of partial summary judgment in favor of the defendants.
6                 SIERRA CLUB V. TRUMP

                        COUNSEL

H. Thomas Byron III (argued), Anne Murphy, and Courtney
L. Dixon, Appellate Staff; Hashim M. Mooppan and James
M. Burnham, Deputy Assistant Attorneys General; Joseph H.
Hunt, Assistant Attorney General; Civil Division, United
States Department of Justice, Washington, D.C.; for
Defendants-Appellants.

Dror Ladin (argued), Noor Zafar, Jonathan Hafetz, Hina
Shamsi, and Omar C. Jadwat, American Civil Liberties Union
Foundation, New York, New York; Cecillia D. Wang,
American Civil Liberties Union Foundation, San Francisco,
California; Mollie M. Lee and Christine P. Sun, American
Civil Liberties Union Foundation of Northern California Inc.,
San Francisco, California; David Donatti and Andre I.
Segura, American Civil Liberties Union Foundation of Texas,
Houston, Texas; Sanjay Narayan and Gloria D. Smith, Sierra
Club Environmental Law Program, Oakland, California; for
Plaintiffs-Appellees.

Douglas N. Letter (argued), Todd B. Tatelman, Megan
Barbero, Josephine Morse, and Kristin A. Shapiro, United
States House of Representatives, Washington, D.C.; Carter G.
Phillips, Virginia A. Seitz, Joseph R. Guerra, and Christopher
A. Eiswerth, Sidley Austin LLP, Washington, D.C.; for
Amicus Curiae United States House of Representatives.

James F. Zahradka II (argued), Brian J. Bilford, Sparsh S.
Khandeshi, Heather C. Leslie, Lee I. Sherman, and Janelle M.
Smith, Deputy Attorneys General; Michael P. Cayaban,
Christine Chuang, and Edward H. Ochoa, Supervising Deputy
Attorneys General; Robert W. Byrne, Sally Magnani, and
Michael L. Newman, Senior Assistant Attorneys General;
                  SIERRA CLUB V. TRUMP                     7

Xavier Becerra, Attorney General; Attorney General’s Office,
Oakland, California; Jennie Lusk, Civil Rights Bureau Chief;
Nicholas M. Sydow, Civil Appellate Chief; Tania Maestas,
Chief Deputy Attorney General; Hector Balderas, Attorney
General; Office of the Attorney General, Santa Fe, New
Mexico; for Amici Curiae States of California and New
Mexico.

Christopher J. Hajec, Immigration Reform Law Institute,
Washington, D.C.; Lawrence J. Joseph, Washington, D.C.;
for Amicus Curiae United States Representative Andy Barr.

John W. Howard, George R. Wentz Jr., Richard Seamon, and
D. Colton Boyles, Davillier Law Group LLC, Sandpoint,
Idaho, for Amicus Curiae State of Arizona House of
Representatives Federal Relations Committee.

Richard P. Hutchison, Landmark Legal Foundation, Kansas
City, Missouri; Michael J. O’Neill and Matthew C. Forys,
Landmark Legal Foundation, Leesburg, Virginia; for Amici
Curiae Angel Families, Sabine Durden, Don Rosenberg,
Brian McAnn, Judy Zeito, Maureen Mulroney, Maureen
Laquerre, Dennis Bixby, and Advocates for Victims of Illegal
Alien Crimes.

Douglas A. Winthrop, Arnold & Porter Kaye Scholer LLP,
San Francisco, California; Irvin B. Nathan, Robert N. Weiner,
Andrew T. Tutt, Kaitlin Konkel, and Samuel F. Callahan,
Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for
Amici Curiae Former Members of Congress.

Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and
Ashwin P. Phatak, Constitutional Accountability Center,
Washington, D.C., for Amici Curiae Federal Courts Scholars.
8                 SIERRA CLUB V. TRUMP

Steven A. Zalesin, Adeel A. Mangi, and Amir Badat,
Patterson Belknap Webb & Tyler LLP, New York, New
York, for Amici Curiae 75 Religious Organizations.

Harold Hongju Koh, Peter Gruber Rule of Law Clinic, Yale
Law School, New Haven, Connecticut; Kathleen R. Hartnett,
Boies Schiller Flexner LLP, San Francisco, California; Phillip
Spector, Messing & Spector LLP, Baltimore, Maryland; for
Amici Curiae Former United States Government Officials.

Samuel F. Daughety and Suzanne R. Schaeffer, Dentons US
LLP, Washington, D.C.; Joshua O. Rees, Acting Attorney
General, Tohono O’Odham Nation, Sells, Arizona; for
Amicus Brief Tohono O’Odham Nation.
                      SIERRA CLUB V. TRUMP                               9

                              OPINION

THOMAS, Chief Judge:

    We consider in this appeal challenges by the Sierra Club
and the Southern Border Communities Coalition (“SBCC”)1
to the Department of Defense’s budgetary transfers to fund
construction of the wall on the southern border of the United
States in California, New Mexico, and Arizona. Specifically,
we consider whether Section 8005 and Section 9002 of the
Department of Defense Appropriations Act of 2019, Pub. L.
No. 115-245, 132 Stat. 2981 (2018) (“Section 8005”)2
authorized the budgetary transfers. In a companion appeal,
State of California, et al. v. Trump et al., Nos. 19-16299 and
19-16336, we considered similar challenges filed by a
collective group of States. However, because Sierra Club
asserts different legal theories, and this case, when presented,
was in a different procedural posture, we treat this appeal
separately. We conclude that the transfers were not
authorized, and that plaintiffs have a cause of action. We
affirm the judgment of the district court.




    1
      We refer throughout this opinion to Sierra Club and SBCC together
as “Sierra Club,” unless otherwise noted.
    2
      For simplicity, because the transfer authorities are both subject to
Section 8005’s substantive requirements, this opinion refers to these
authorities collectively as Section 8005, as did the district court and the
motions panel. Our holding in this case therefore extends to both the
transfer of funds pursuant to Section 8005 and Section 9002.
10                    SIERRA CLUB V. TRUMP

                                     I

   We recounted the essential underlying facts in the
companion case. However, we briefly outline them here for
convenience of reference.

   The President has long supported the construction of a
border wall on the southern border between the United States
and Mexico. Since the President took office in 2017,
however, Congress has repeatedly declined to provide the
amount of funding requested by the President.

    The debate over border wall funding came to a head in
December of 2018. During negotiations to pass an
appropriations bill for the remainder of the fiscal year, the
President announced that he would not sign any legislation
that did not allocate substantial funds to border wall
construction. On January 6, 2019, the White House requested
$5.7 billion to fund the construction of approximately
234 miles of new physical barrier.3 Budget negotiations
concerning border wall funding reached an impasse,
triggering the longest partial government shutdown in United
States history.

    After 35 days, the government shutdown ended without
an agreement to provide increased border wall funding in the
amount requested by the President. On February 14, 2019,
Congress passed the Consolidated Appropriations Act of
2019 (“CAA”), which included the Department of Homeland
Security Appropriations Act for Fiscal Year 2019, Pub. L.


     3
      Some form of a physical barrier already exists at the site of some of
the construction projects. In those places, construction would reinforce or
rebuild the existing portions.
                       SIERRA CLUB V. TRUMP                              11

No. 116-6, div. A, 133 Stat. 13 (2019). The CAA
appropriated only $1.375 billion for border wall construction,
specifying that the funding was for “the construction of
primary pedestrian fencing . . . in the Rio Grande Valley
Sector.”

The President signed the CAA into
law the following day.

    The President concurrently issued a proclamation under
the National Emergencies Act, 50 U.S.C. §§ 1601–1651,
“declar[ing] that a national emergency exists at the southern
border of the United States.” Proclamation No. 9,844,
84 Fed. Reg. 4949 (Feb. 15, 2019).4 An accompanying White
House Fact Sheet explained that the President was “using his
legal authority to take Executive action to secure additional
resources” to build a border wall, and it specified that “the
Administration [had] so far identified up to $8.1 billion that
[would] be available to build the border wall once a national
emergency [was] declared and additional funds [were]
reprogrammed.” The Fact Sheet identified several funding
sources, including $2.5 billion of Department of Defense
(“DoD”) funds that could be transferred to provide support
for counterdrug activities of other federal government
agencies under 10 U.S.C. § 284 (“Section 284”).5 Executive


    4
      Subsequently, Congress adopted two joint resolutions terminating
the President’s emergency declaration pursuant to its authority under 50
U.S.C. § 1622(a)(1). The President vetoed each resolution, and Congress
failed to override these vetoes.
    5
      Section 284 authorizes the Secretary of Defense to “provide support
for the counterdrug activities . . . of any other department or agency of the
Federal Government” if it receives a request from “the official who has
responsibility for the counterdrug activities.” 10 U.S.C. §§ 284(a),
284(a)(1)(A). The statute permits, among other things, support for
“[c]onstruction of roads and fences and installation of lighting to block
12                   SIERRA CLUB V. TRUMP

Branch agencies began using the funds identified by the Fact
Sheet to fund border wall construction. On February 25, the
Department of Homeland Security (“DHS”) submitted to
DoD a request for Section 284 assistance to block drug
smuggling corridors. In particular, it requested that DoD
fund “approximately 218 miles” of wall using this authority,
comprised of numerous projects. On March 25, Acting
Secretary of Defense Patrick Shanahan approved three border
wall construction projects: Yuma Sector Projects 1 and 2 in
Arizona and El Paso Sector Project 1 in New Mexico. On
May 9, Shanahan approved four more border wall
construction projects: El Centro Sector Project 1 in California
and Tucson Sector Projects 1–3 in Arizona.

    At the time Shanahan authorized Section 284 support for
these border wall construction projects, the counter-narcotics
support account contained only $238,306,000 in unobligated
funds, or less than one tenth of the $2.5 billion needed to
complete those projects. To provide the support requested,
Shanahan invoked the budgetary transfer authority found in
Section 8005 of the 2019 DoD Appropriations Act to transfer
funds from other DoD appropriations accounts into the
Section 284 Drug Interdiction and Counter-Drug Activities-
Defense appropriations account.

    For the first set of projects, Shanahan transferred
$1 billion from Army personnel funds. For the second set of
projects, Shanahan transferred $1.5 billion from “various
excess appropriations,” which contained funds originally


drug smuggling corridors across international boundaries of the United
States.”

DoD’s provision of support for other agencies
pursuant to Section 284 does not require the declaration of a national
emergency.
                      SIERRA CLUB V. TRUMP                              13

appropriated for purposes such as modification of in-service
missiles and support for U.S. allies in Afghanistan.

   As authority for the transfers, DoD invoked Section 8005,
which provides, in relevant part that:

         Upon determination by the Secretary of
         Defense that such action is necessary in the
         national interest, he may, with the approval of
         the Office of Management and Budget,
         transfer not to exceed $4,000,000,000 of
         working capital funds of the Department of
         Defense or funds made available in this Act to
         the Department of Defense for military
         functions (except military construction)
         between such appropriations or funds or any
         subdivision thereof, to be merged with and to
         be available for the same purposes, and for the
         same time period, as the appropriation or fund
         to which transferred.6

    Section 8005 also explicitly limits when its authority can
be invoked: “Provided, That such authority to transfer may


    6
       The other authority invoked by the Federal Defendants, Section
9002 provides that: “Upon the determination of the Secretary of Defense
that such action is necessary in the national interest, the Secretary may,
with the approval of the Office of Management and Budget, transfer up to
$2,000,000,000 between the appropriations or funds made available to the
Department of Defense in this title: Provided, That the Secretary shall
notify the Congress promptly of each transfer made pursuant to the
authority in this section: Provided further, That the authority provided in
this section is in addition to any other transfer authority available to the
Department of Defense and is subject to the same terms and conditions as
the authority provided in section 8005 of this Act.”
14                   SIERRA CLUB V. TRUMP

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.”

    Although Section 8005 does not require formal
congressional approval of transfers, historically DoD had
adhered to a “gentleman’s agreement,” by which it sought
approval from the relevant congressional committees before
transferring the funds. DoD deviated from this practice
here—it did not request congressional approval before
authorizing the transfer. Further, the House Committee on
Armed Services and the House Committee on Appropriations
both wrote letters to DoD formally disapproving of the
reprogramming action after the fact. Moreover, with respect
to the second transfer, Shanahan expressly directed that the
transfer of funds was to occur “without regard to comity-
based policies that require prior approval from congressional
committees.”

    In the end, Section 8005 was invoked to transfer
$2.5 billion of DoD funds appropriated for other purposes to
fund border wall construction.

                                   II

   On February 19, 2019, Sierra Club filed a lawsuit
challenging the Executive Branch’s funding of the border
wall.7 Sierra Club pled theories of violation of the 2019


     7
       California, New Mexico, and fourteen other states had filed a
lawsuit the previous day challenging the same border wall funding. Both
lawsuits named as defendants Donald J. Trump, President of the United
States, Patrick M. Shanahan, former Acting Secretary of Defense, Kirstjen
                      SIERRA CLUB V. TRUMP                            15

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.

    Sierra Club subsequently filed a motion requesting a
preliminary injunction to enjoin the transfer of funds pursuant
to Section 8005 to construct a border wall in Arizona’s Yuma
Sector and New Mexico’s El Paso Sector. The district court
held that Sierra Club had standing to assert its Section 8005
claims, and granted the preliminary injunction motion. The
Federal Defendants timely appealed the preliminary
injunction order. Sierra Club subsequently sought a
supplemental preliminary injunction to block additional
construction planned in California’s El Centro Sector and
Arizona’s Tucson Sector.

    Sierra Club also filed a motion requesting partial
summary judgment, a declaratory judgment, and a permanent
injunction to enjoin the transfer of funds pursuant to Section
8005 to construct a border wall in Arizona’s Yuma and
Tucson Sectors, California’s El Centro Sector, and New
Mexico’s El Paso Sector. The Federal Defendants cross-
moved for summary judgment and opposed Sierra Club’s
motion. The district court granted Sierra Club’s motion for
partial summary judgment and granted its request for a
declaratory judgment and a permanent injunction. The
Federal Defendants requested that the district court certify the
judgment for appeal under Fed. R. Civ. P. 54(b). The district


M. Nielsen, former Secretary of Homeland Security, and Steven Mnuchin,
Acting Secretary of the Treasury in their official capacities, along with
numerous other Executive Branch officials (collectively referenced as “the
Federal Defendants”).
16                SIERRA CLUB V. TRUMP

court considered the appropriate factors, made appropriate
findings, and certified the order as final pursuant to Rule
54(b). See Pakootas v. Teck Cominco Metals, Ltd., 

, 574–75 (9th Cir. 2018) (explaining when certification is
appropriate under Rule 54). The Federal Defendants timely
appealed the district court decision.

    The Federal Defendants initially filed a motion to stay the
district court’s preliminary injunction, and in their later
briefing on summary judgment, they requested that the
district court stay any permanent injunction granted pending
appeal. The district court denied both requests. The Federal
Defendants filed an emergency motion for stay of the
preliminary injunction pending appeal in this Court and
subsequently sought a stay of the permanent injunction,
relying on the same arguments. Sierra Club v. Trump,

, 685 (9th Cir. 2019). An emergency motions
panel of this Court considered whether to stay the injunction
pending appeal, and held that a stay was not warranted.

The Federal Defendants then filed an application for
a stay pending appeal with the Supreme Court. The Supreme
Court granted the application, noting that “[a]mong the
reasons is 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.” Trump v. Sierra Club, 

(2019)
(mem.).

   We now consider the merits of the Federal Defendants’
appeal of the district court’s grant of partial summary
judgment, grant of a declaratory judgment, and grant of a
                      SIERRA CLUB V. TRUMP                            17

permanent injunction to Sierra Club.8 We review the
existence of Article III standing de novo. See California v.
U.S. Dep’t of Health & Human Servs., 

, 420 (9th
Cir. 2019). We review questions of statutory interpretation
de novo. See United States v. Kelly, 

, 1046 (9th
Cir. 2017).

                                   III

     Sierra Club has Article III standing to pursue its claims.
To establish Article III standing, a plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision. Lujan v. Defs.
of Wildlife, 

, 560–61 (1992).9 An organization
has standing to sue on behalf of its members when “its
members would otherwise have standing to sue in their own
right,” and when “the interests it seeks to protect are germane
to the organization’s purpose.” United Food and Commercial
Workers Union Local 751 v. Brown Grp., Inc., 

,
553 (1996) (quoting Hunt v. Wash. State Apple Advert.

    8
      We dismiss the Federal Defendants’ appeal of the district court’s
grant of the preliminary injunction as moot. See Planned Parenthood
Ariz. Inc. v. Betlach, 

, 963 (9th Cir. 2013) (“The district
court’s entry of final judgment and a permanent injunction moots
Arizona’s appeal of the preliminary injunction.”); see also Planned
Parenthood of Cent. & N. Ariz. v. Arizona, 

, 949–50 (9th Cir.
1983); SEC v. Mount Vernon Mem’l Park, 

, 1361–62 (9th
Cir. 1982).
    9
      The Federal Defendants do not challenge Sierra Club’s Article III
standing in these appeals. However, “the court has an independent
obligation to assure that standing exists, regardless of whether it is
challenged by any of the parties.” Summers v. Earth Island Inst., 

, 499 (2009).
18                    SIERRA CLUB V. TRUMP

Comm’n, 

, 343 (1977)).10 An organization has
standing to sue on its own behalf when it suffers “both a
diversion of its resources and a frustration of its mission.” La
Asociacion de Trabajadores de Lake Forest v. City of Lake
Forest, 

, 1088 (9th Cir. 2010) (quoting Fair
Housing of Marin v. Combs, 

, 905 (9th Cir.
2002)). It must “show that it would have suffered some other
injury if it had not diverted resources to counteracting the
problem.”

judgment, a plaintiff cannot rest
on mere allegations, but “must set forth by affidavit or other
evidence specific facts.” Clapper v. Amnesty Int’l. USA,

, 412 (2013) (quotations and citation omitted).
However, these specific facts “for purposes of the summary
judgment motion will be taken to be true.” 

.

    Here, Sierra Club and SBCC have alleged facts that
support their standing to sue on behalf of their members.
Sierra Club has alleged that the actions of the Federal
Defendants will cause particularized and concrete injuries to
its members, and SBCC has shown that it has suffered a
concrete injury itself.

   Sierra Club has more than 400,000 members in
California, over 9,700 of whom belong to its San Diego
Chapter. Sierra Club’s Grand Canyon Chapter, which covers

     10
        United Food and Commercial Workers held that those two
requirements were based on constitutional demands, but held that the third
prong of Hunt’s test for organizational standing, whether the claim or
relief requested requires the participation of individual members in the
lawsuit, was prudential only.

In any case, because the claim
and relief requested here do not require the participation of Sierra Club or
SBCC members, even this prudential consideration supports plaintiffs’
standing here.
                   SIERRA CLUB V. TRUMP                       19

the State of Arizona, has more than 16,000 members. Sierra
Club’s Rio Grande Chapter includes over 10,000 members in
New Mexico and West Texas. These members visit border
areas such as the Tijuana Estuary (California), the Otay
Mountain Wilderness (California), the Jacumba Wilderness
Area (California), the Sonoran Desert (Arizona), Cabeza
Prieta National Wildlife Refuge (Arizona), and the Chihuahan
Desert (New Mexico).

    Sierra Club’s thousands of members live near and
frequently visit these areas along the U.S.-Mexico border for
hiking, birdwatching, photography, and other professional,
scientific, recreational, and aesthetic activities. They obtain
recreational, professional, scientific, educational, and
aesthetic benefits from their activities in these areas, and from
the wildlife dependent upon the habitat in these areas. The
construction of a border wall and related infrastructure will
acutely injure these interests because DHS is proceeding with
border wall construction without ensuring compliance with
any federal or state environmental regulations designed to
protect these interests.

    Sierra Club has adequately set forth facts and other
evidence by declaration, which taken as true, support these
allegations for the purpose of Article III standing.

    Sierra Club members Orson Bevins and Albert Del Val
have alleged that they will be injured by construction of
Yuma Project 1. Bevins avers that he visits the area several
times per year and is concerned that the wall “would disrupt
the desert views and inhibit [him] from fully appreciating
[the] area,” and that the additional presence of U.S. Customs
and Border Protection agents “would further diminish[] [his]
enjoyment of these areas” and “deter[] [him] from further
20                 SIERRA CLUB V. TRUMP

exploring certain areas.” Del Val worries that “construction
and maintenance of the border wall will limit or entirely cut
off [his] access to [] fishing spots” along the border, where he
has fished for more than 50 years.

    Sierra Club member Elizabeth Walsh has alleged that
construction of El Paso Sector Project 1 would injure her
because “[a]s part of [her] professional and academic work
[she] routinely visit[s] and stud[ies]” the area where the
project would be built to “supervise several ongoing and
long-term biology studies in this area with graduate students
on the aquatic diversity of ephemeral wetlands known locally
as playas.” Among other things, she is worried that border
wall construction would “negatively impact the scientific
playa studies . . . because a wall could impede vital natural
drainage patterns for the playas.”

    Sierra Club member Carmina Ramirez has alleged that
she “will be harmed culturally and aesthetically” if El Centro
Sector Project 1 is built because she has spent her entire life
in the area surrounding the U.S.-Mexico Border, including
the El Centro Sector, and she believes that border wall
construction would “drastically impact [her] ability to enjoy
the local natural environment,” because she would “see a high
border wall instead of [the] beautiful landscape,” and
“drastically impact [her] cultural identity by fragmenting
[her] community.” Construction will make her “less likely to
hike Mount Signal and enjoy outdoor recreational activities;
and when [she does] undertake those activities, [her]
enjoyment of them will be irreparably diminished.”

    Sierra Club member Ralph Hudson “recreat[es] in the
wilderness areas along the U.S.-Mexico border” in the area
referred to as the Tucson Sector and has done so for 20 years.
                   SIERRA CLUB V. TRUMP                      21

He uses the land “to hike, take photos, and explore the natural
history.” He is “extremely concerned that Tucson Projects 1
and 2 will greatly detract from [his] ability to enjoy hiking,
camping, and photographing these landscapes.”

    Sierra Club member Margaret Case lives a few miles
from the border, and she asserts that she will be injured by the
construction of Tucson Sector Project 3. “With each increase
and escalation in enforcement along the border, [her] and
other border residents’ quality of life decreases” and “[t]he
proposed wall will . . . extend an already unwanted eyesore in
the middle of a landscape whose beauty [she] treasure[s],
irrevocably harming [her] enjoyment of that landscape.”

     Additionally, the interests of Sierra Club’s members in
this lawsuit are germane to the organization’s purpose. Sierra
Club is a national organization “dedicated to exploring,
enjoying, and protecting the wild places of the earth; to
educating and enlisting humanity to protect and restore the
quality of the natural and human environment; and to using
all lawful means to carry out these objectives.” Sierra Club’s
organizational purpose is at the heart of this lawsuit, and it
easily satisfies this secondary requirement.

    SBCC has also alleged facts that support that it has
standing to sue on behalf of itself and its member
organizations. SBCC alleged that since the Federal
Defendants proposed border wall construction, it has had to
“mobilize[] its staff and its affiliates to monitor and respond
to the diversion of funds and the construction caused by and
accompanying the national emergency declaration.” These
“activities have consumed the majority of SBCC staff’s time,
thereby interfering with SBCC’s core advocacy regarding
border militarization, Border Patrol law-enforcement
22                 SIERRA CLUB V. TRUMP

activities, and immigration reform,” but it has had no choice
because it “must take these actions in furtherance of its
mission to protect and improve the quality of life in border
communities.”

    SBCC Director Vicki Gaubeca confirms these allegations.
She has stated that a “border wall, as a physical structure and
symbol, is contrary to the goals of SBCC and the needs of
border communities.” She avers that the “emergency
declaration and the threat and reality of construction have
caused [SBCC] to reduce the time [it] spend[s] on [its] core
projects, including public education about border policies,
community engagement on local issues, and affirmative
advocacy for Border Patrol accountability and immigration
reform.” SBCC and its member organizations have instead
“been forced to devote substantial time to analyze and
respond to the declaration and the promise to build border
walls across the southern border” “at a substantial monetary
and opportunity cost.”

    These allegations are sufficient to establish that, if funds
are transferred to the border wall construction projects, Sierra
Club members and SBCC will each suffer injuries in fact.

    Sierra Club and SBCC have also shown that such injuries
are “fairly traceable to the challenged action of the [Federal
Defendants], and [are] not the result of the independent action
of some third party not before the court.” Mendia v. Garcia,

, 1012 (9th Cir. 2014) (quoting Bennett v.
Spear, 

, 167 (1997)). It makes no difference that
the border wall construction is the product of other statutory
provisions, such as Section 284, in addition to Section 8005.
“Causation may be found even if there are multiple links in
the chain connecting the defendant’s unlawful conduct to the
                   SIERRA CLUB V. TRUMP                      23

plaintiff’s injury, and there’s no requirement that the
defendant’s conduct comprise the last link in the chain.”

Defendants could not build the border wall
projects challenged by Sierra Club without invoking Section
8005’s transfer authority—without this authority, there was
no money to build these portions of the border wall;
therefore, construction is fairly traceable to the Section 8005
transfers.

    The injury to Sierra Club members and SBCC is likely to
be redressed by a favorable judicial decision. A judicial order
prohibiting the Federal Defendants from spending the money
transferred pursuant to Section 8005 would stop construction,
thereby preventing the harm alleged by Plaintiffs. Thus,
Sierra Club and SBCC have established that their members
satisfy the demands of Article III standing to challenge the
Federal Defendants’ actions.

                              IV

     First, we consider whether Section 8005 or any
constitutional provision authorized DoD to transfer the funds
at issue. We hold they did not.

                               A

     Section 8005 provides DoD with limited authority to
transfer funds between different appropriations accounts, but
it provides no such authority “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.” In the opinion filed today in the companion case,
State of California, et al. v. Trump, et al., Nos. 19-16299 and
24                   SIERRA CLUB V. TRUMP

19-16336, slip op. at 37 (9th Cir. filed June 26, 2020), we
hold that Section 8005 did not authorize the transfer of funds
at issue here because “the border wall was not an unforeseen
military requirement,” and “funding for the wall had been
denied by Congress.” We reaffirm this holding here and
conclude that Section 8005 did not authorize the transfer of
funds.

                                  B

     The “straightforward and explicit command” of the
Appropriations Clause11 “means simply that no money can be
paid out of the Treasury unless it has been appropriated by an
act of Congress.” Office of Pers. Mgmt. v. Richmond,

, 424 (1990) (quotation and citation omitted).
The Clause is “a bulwark of the Constitution’s separation of
powers.” U.S. Dep’t. Of Navy v. Fed. Labor Relations Auth.,

, 1347 (D.C. Cir. 2012); see also United States
v. McIntosh, 

, 1174–75 (9th Cir. 2016). It
“assure[s] that public funds will be spent according to the
letter of the difficult judgments reached by Congress as to the
common good and not according to the individual favor of
Government agents.” Office of Pers. 

–28. Without it, “the executive would possess an
unbounded power over the public purse of the nation; and
might apply all its moneyed resources at his pleasure.”

(quoting Joseph Story, 2 Commentaries on the
Constitution of the United States § 1348 (3d ed. 1858)).

   Accordingly, “[t]he United States Constitution
exclusively grants the power of the purse to Congress, not the

    11
       “No money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law . . . .” U.S. Const. art. I, § 9, cl. 7.
                   SIERRA CLUB V. TRUMP                        25

President.” City and Cty. of San Francisco v. Trump,

, 1231 (9th Cir. 2018) (citing U.S. Const. art.
I, § 9, cl. 7). “[W]hen it comes to spending, the President has
none of ‘his own constitutional powers’ to ‘rely’ upon.”

(quoting Youngstown Sheet & Tube Co. v.
Sawyer, 

, 637 (1952) (Jackson, J., concurring)).

    Here, the Executive Branch lacked independent
constitutional authority to authorize the transfer of funds.
These funds were appropriated for other purposes, and the
transfer amounted to “drawing funds from the Treasury
without authorization by statute and thus violating the
Appropriations Clause.” 

.

    Therefore, the transfer of funds here was unlawful.

                                V

    All that is left for us to decide, then, is whether Sierra
Club is a proper party to challenge the Section 8005 transfers.
Sierra Club asserts that it has a number of viable causes of
action—including a constitutional cause of action and an
ultra vires cause of action—while the Federal Defendants
assert that Sierra Club has none.

    The Supreme Court stay order suggests that Sierra Club
may not be a proper challenger here. See Sierra Club, 140 S.
Ct. at 1. We heed the words of the Court, and carefully
analyze Sierra Club’s arguments. Having done so, we
conclude that Sierra Club has both a constitutional and an
ultra vires cause of action.

   In reaching this result, we realize that this is a rare case in
which the “judiciary may . . . have to intervene in determining
26                 SIERRA CLUB V. TRUMP

where the authority lies as between the democratic forces in
our scheme of government.” 

(1952) (Frankfurter, J. concurring). In doing so, we remain
“wary and humble,”

is not a pleasant judicial duty
to find that the President has exceeded his powers,”

But where, as here, “Congress could not more clearly and
emphatically have withheld [the] authority,”

exercised by DoD, “with full consciousness of what it was
doing and in the light of much recent history,”

Club satisfies the rigors of Article III standing, our
“obligation to hear and decide [this] case is virtually
unflagging,” Sprint Commc’ns, Inc. v. Jacobs, 

,
77 (2013) (quotations and citation omitted). “All we can do
is, to exercise our best judgment, and conscientiously to
perform our duty.” Cohens v. State of Virginia, 

,
404 (1821).

                               A

   First, we consider whether Sierra Club has a
constitutional cause of action to challenge the Federal
Defendants’ transfer. We hold that it does.

    Certain provisions of the Constitution give rise to
equitable causes of action. Such causes of action are most
plainly available with respect to provisions conferring
individual rights, such as the Establishment Clause or the
Free Exercise Clause. See Trump v. Hawaii, 

,
2416 (2018); Flast v. Cohen, 

(1968). But certain
structural provisions give rise to causes of action as well. See
Nat. Labor Relations. Bd. v. Noel Canning, 

,
556–57 (2014) (cause of action based on the Recess
Appointments Clause); Bond v. United States, 

,
225–26 (2011) (cause of action based on structural principles
                   SIERRA CLUB V. TRUMP                        27

of federalism); Clinton v. City of New York, 

,
434–36 (1998) (cause of action based on the Presentment
Clause); INS v. Chadha, 

, 943–44 (1983) (cause
of action based on the constitutional requirement of
bicameralism and presentment); 

–75 (cause of action based on the Appropriations
Clause).

    In Bond, the Supreme Court articulated why certain
structural constitutional provisions give rise to causes of
action. The Court considered “whether a person indicted for
violating a federal statute has standing to challenge its
validity on the grounds that, by enacting it, Congress
exceeded its powers under the Constitution, thus intruding
upon the sovereignty and authority of the 

. The Court held that “[j]ust as it is appropriate for an
individual, in a proper case, to invoke separation-of-powers
or checks-and-balances constraints, so too may a litigant, in
a proper case, challenge a law as enacted in contravention of
constitutional principles of federalism.”

It
reasoned that the challenge was permissible because
“structural principles secured by the separation of powers
protect the individual as well,” and “[a]n individual has a
direct interest in objecting to laws that upset the constitutional
balance . . . when the enforcement of those laws causes injury
that is concrete, particular, and redressable.”

In
other words, an individual who otherwise meets the
requirements of Article III standing may challenge
government action that violates structural constitutional
provisions intended to protect individual liberties.

   We have held that the Appropriations Clause contains
such a cause of action. See 

–74.
In McIntosh, defendants moved to enjoin their prosecutions
28                   SIERRA CLUB V. TRUMP

for federal marijuana offenses on the grounds that a
congressional appropriations rider prohibited the Department
of Justice from spending federal funds on such prosecutions.

We held that “[the Appropriations Clause]
constitutes a separation-of-powers limitation that Appellants
can invoke to challenge their prosecutions.”

The
opinion reasoned that so long as a litigant satisfies the Article
III standing requirements, he or she can challenge
Appropriations Clause violations because “[o]nce Congress,
exercising its delegated powers, has decided the order of
priorities in a given area, it is for . . . the courts to enforce
them when enforcement is sought.”

(quoting
Tenn. Valley Auth. v. Hill, 

, 194 (1978)). In
McIntosh, we also reaffirmed the Supreme Court’s statement
in Bond that “both federalism and separation-of-powers
constraints in the Constitution serve to protect individual
liberty, and a litigant in a proper case can invoke such
constraints ‘[w]hen government acts in excess of its lawful
powers.’”

(quoting 

).12

    The cause of action available to the plaintiffs in McIntosh
is available to Sierra Club here. Congress decided the order
of priorities for border security. In doing so, it chose to
allocate $1.375 billion to fund the construction of pedestrian


     12
        The Federal Defendants incorrectly characterize McIntosh’s
constitutional holding as dicta. The McIntosh Court discussed the
availability of a constitutional cause of action, analogizing to Bond and
Canning, and stating that “Appellants have standing to invoke separation-
of-powers provisions of the Constitution to challenge their criminal

. Because the Court “confront[ed] an issue
germane to the eventual resolution of the case,” and “resolve[d] it after
reasoned consideration in a published opinion,” McIntosh’s constitutional
holding is “the law of the circuit.” Cetacean Cmty. v. Bush, 

, 1173 (9th Cir. 2004) (quotations and citation omitted).
                       SIERRA CLUB V. TRUMP                               29

fencing in Texas. See 2019 CAA § 230(a)(1). It declined to
provide additional funding for projects in other areas, and it
declined to provide the full $5.7 billion sought by the
President: it is for the courts to enforce Congress’s priorities,
and we do so here. Where plaintiffs, like Sierra Club,
establish that they satisfy the requirements of Article III
standing, they may invoke separation-of-powers constraints,
like the Appropriations Clause, to challenge agency spending
in excess of its delegated authority.

    The Federal Defendants argue that Dalton v. Specter,

(1994) forecloses this result. They assert that
Dalton’s proposition that not “every action by the President,
or by another executive official, in excess of his statutory
authority is ipso facto in violation of the Constitution,” means
that when there is a claim that an Executive Branch official
acted in excess of his statutory authority, there is no
constitutional violation.

But Dalton does not hold
that every action in excess of statutory authority is not a
constitutional violation.13 Rather, Dalton suggests that some


    13
        Notably, the plaintiffs in Dalton never alleged that the President
violated the Constitution and sought review “exclusively under the
[Administrative Procedure Act (“APA”)].”
 Id. at 471. 
Only the Court of
Appeals “sought to determine whether non-APA review, based on either
common law or constitutional principles, was available.”
 

Court did not consider whether the President had violated a
specific constitutional prohibition; instead, it took issue only with the
Court of Appeals’ contention that “whenever the President acts in excess
of his statutory authority, he also violates the constitutional separation-of-
powers doctrine.”
 

Court’s objection to this conclusion
is unsurprising in the context of the Defense Base Closure and
Realignment Act of 1990 at issue in Dalton. The Constitution divides
authority with respect to the military between Congress and the President.
Here, in contrast, the Constitution delegates exclusively to Congress the
power of the purse.
30                 SIERRA CLUB V. TRUMP

actions in excess of statutory authority may be constitutional
violations, while others may not. Specifically, Dalton
suggests that a constitutional violation may occur when an
officer violates an express prohibition of the Constitution.
 Id.
(citing Bivens 
v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 
403 U.S. 388
, 396–97 (1971) for the distinction
between “actions contrary to [a] constitutional prohibition,”
and those “merely said to be in excess of the authority
delegated . . . by the Congress”). The Appropriations Clause
contains such a constitutional prohibition, declaring that “[n]o
Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law . . . .” U.S. Const. art.1, § 9,
cl. 7. Under Dalton, then, violations of the Appropriations
Clause may give rise to viable causes of action.

    Dalton’s discussion of Youngstown only underscores this
point. The Court determined that Youngstown could not stand
for the proposition “that an action taken by the President in
excess of his statutory authority necessarily violates the
Constitution” because in Youngstown “no statutory authority
was claimed.” 
Dalton, 511 U.S. at 473 
(emphasis added).
The Court concluded only that “claims simply alleging that
the President has exceeded his statutory authority are not
‘constitutional’ claims, subject to judicial review.”
 Id. Thus,
Dalton 
and its discussion of Youngstown do not address
situations in which the President exceeds his or her statutory
authority, and in doing so, also violates a specific
constitutional prohibition, as is the case here.

   Neither does Armstrong v. Exceptional Child Center, Inc.,
575 U.S. 320 
(2015), require an opposite result here. In
Armstrong, the Supreme Court rejected the argument that the
Supremacy Clause created a private right of action.
 

    But the Supremacy Clause is not the
                   SIERRA CLUB V. TRUMP                        31

Appropriations Clause: while the Supremacy Clause “only
declares a truth, which flows immediately and necessarily
from the institution of a Federal Government,”
 id. at 325
(citing The Federalist No. 33, p. 207 (J. Cooke ed. 1961)), the
Appropriations Clause contains an explicit prohibition, which
protects individual liberty, because “[a]ny exercise of a power
granted by the Constitution to one of the other branches of
Government is limited by a valid reservation of congressional
control over funds in the Treasury,” 
McIntosh, 833 F.3d at
1175
. “The individual loses liberty in a real sense if [the
appropriations power] is not subject to traditional
constitutional constraints.” Clinton v. City of New 
York,
524 U.S. at 451 
(Kennedy, J., concurring). Thus, while it
might be “strange” “to give a clause that makes federal law
supreme a reading that limits Congress’s power to enforce
that law,” 
Armstrong, 575 U.S. at 326
, it is entirely sensible
to give a clause that restricts the power of the federal
government as a whole a reading that safeguards individual
liberty.

    Therefore, because the Federal        Defendants not only
exceeded their delegated authority,       but also violated an
express constitutional prohibition        designed to protect
individual liberties, we hold that         Sierra Club has a
constitutional cause of action here.

                                B

    Second, we consider whether Sierra Club has an equitable
ultra vires cause of action to challenge the Federal
Defendants’ transfer. We hold that it does.

   Whether Sierra Club can assert an equitable ultra vires
cause of action turns on “whether the relief [it] request[s] . . .
32                 SIERRA CLUB V. TRUMP

was traditionally accorded by courts of equity.” Grupo
Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc.,
527 U.S. 308
, 319 (1999). Equitable actions to enjoin ultra
vires official conduct do not depend upon the availability of
a statutory cause of action; instead, they seek a “judge-made
remedy” for injuries stemming from unauthorized
government conduct, and they rest on the historic availability
of equitable review. 
Armstrong, 575 U.S. at 327
. “The
substantive prerequisites for obtaining an equitable remedy
. . . depend on traditional principles of equity jurisdiction.”
Grupo 
Mexicano, 527 U.S. at 318
–19 (quotations and citation
omitted).

    The relief Sierra Club requests has been traditionally
available. “The ability to sue to enjoin unconstitutional
actions by state and federal officers is the creation of courts
of equity, and reflects a long history of judicial review of
illegal executive action, tracing back to England.”
Armstrong, 575 U.S. at 327 
(citing Jaffe & Henderson,
Judicial Review and the Rule of Law: Historical Origins,
72 L.Q. Rev. 345 (1956)); see also Harmon v. Brucker,
355 U.S. 579
, 581–82 (1958) (“Generally, judicial relief is
available to one who has been injured by an act of a
government official which is in excess of his express or
implied powers.”). Such causes of action have been
traditionally available in American courts: “[w]hen Congress
limits its delegation of power, courts infer (unless the statute
clearly directs otherwise) that Congress expects this
limitation to be judicially enforced.” Dart v. United States,
848 F.2d 217
, 223 (D.C. Cir. 1988).

    The passage of the APA has not altered this presumption.
“Prior to the APA’s enactment . . . courts had recognized the
right of judicial review of agency actions that exceeded
                   SIERRA CLUB V. TRUMP                      33

authority,” and “[n]othing in the subsequent enactment of the
APA altered [that] doctrine of review,” to “repeal the review
of ultra vires actions.”
 Id. at 224. 
“When an executive acts
ultra vires, courts are normally available to reestablish the
limits on his authority.”
 Id.

    That Sierra 
Club has a cause of action to enjoin the
unconstitutional actions at issue here is best illustrated by
Youngstown. There, Congress passed numerous statutes
authorizing the President to take personal and real property
under specific 
conditions. 343 U.S. at 585
–86. During the
Korean War, however, President Truman signed an executive
order seizing most of the nation’s steel mills, even though the
conditions of the statutes had not been satisfied as a matter of
fact.
 Id. at 582, 
586. It fell to the Supreme Court to
determine whether the President had constitutional authority
to seize the steel mills—it held he did not and affirmed the
district court injunction.
 Id. at 588–589. 
The Court never
questioned that it had the authority to provide the requested
relief.

    Such is the case here. Section 8005 authorizes DoD to
transfer funds under certain conditions; however, as explained
previously, DoD failed to satisfy those conditions. Likewise,
as explained previously, the Executive Branch lacks
independent constitutional authority to fund border wall
construction. If an equitable ultra vires action was available
to the plaintiffs in Youngstown, it surely must be available to
Sierra Club here.

    A number of D.C. Circuit cases reaffirm that review is
ordinarily available when an agency exceeds its delegation of
authority. In Chamber of Commerce of the United States v.
Reich, the D.C. Circuit considered whether the Chamber of
34                  SIERRA CLUB V. TRUMP

Commerce had a cause of action to challenge an executive
order barring the federal government from contracting with
employers who hire permanent replacements during a lawful
strike. 
74 F.3d 1322
, 1325–26 (D.C. Cir. 1996). The
government argued that the Chamber of Commerce lacked a
statutory cause of action and that APA review was not
available because the challenge was directed at the
President’s statutory authority to issue the executive order,
and the President is not an agency within the meaning of the
APA. See
 id. The court 
agreed that APA review was not
available, but it held that non-statutory review remained
available. See
 id. at 1327. 
The court held that “[i]f a plaintiff
is unable to bring his case predicated on either a specific or a
general statutory review provision, he may still be able to
institute a non-statutory review action.”
 Id. The court
reasoned in part that “[t]he responsibility of determining the
limits of statutory grants of authority . . . is a judicial function
entrusted to the courts by Congress by the statutes
establishing courts and marking their jurisdiction.”
 Id.
(quoting Stark 
v. Wickard, 
321 U.S. 288
, 310 (1944)).

    Likewise, in Dart v. United States, the D.C. Circuit
considered whether the plaintiff could challenge the Secretary
of Commerce’s decision to impose civil sanctions for a
violation of the Export Administration Act (“EAA”). 
See
848 F.2d at 219
. The court held that even though the EAA
expressly limited judicial review, the court retained the ability
to review whether the Secretary exceeded the authority
delegated by the statute. See
 id. at 223–34. 
It explained that
“the presumption of judicial review is particularly strong
where an agency is alleged to have acted beyond its
authority.”
 Id. at 223. 
It ultimately concluded that the
Secretary had done just that and invalidated the sanctions he
imposed.
                   SIERRA CLUB V. TRUMP                       35

    These cases support our holding here that Sierra Club has
an equitable ultra vires cause of action to challenge DoD’s
transfer of funds. Where it is alleged that DoD has exceeded
the statutory authority delegated by Section 8005, plaintiffs
like Sierra Club can challenge this agency action.

    The Federal Defendants contend that an equitable cause
of action is not available to Sierra Club here because
equitable remedies are available only when they have been
“traditionally available in the specific circumstances
presented,” and that the remedies sought here have not been
traditionally available in the specific circumstances presented
by this case.

    The Federal Defendants cite Grupo Mexicano in support
of this argument, but that case provides little support for their
position. In Grupo Mexicano, the Court considered whether
a district court had the power to issue a preliminary
injunction to prevent the transfer of assets in which no lien or
equitable interest was claimed. 
See 527 U.S. at 318
. The
Court concluded it did not. See
 

It held that a
district court cannot grant relief that “has never been
available before—and especially (as here) a type of relief that
has been specifically disclaimed by longstanding judicial
precedent,” particularly when “there is absolutely nothing
new about debtors’ trying to avoid paying their debts, or
seeking to favor some creditors over others.”
 Id. at 322; 
see

    Here, however, the plaintiffs request a type of relief that
is consistent with our longstanding precedent. Indeed, as
explained above, the Supreme Court has actually granted
injunctive relief in circumstances very similar to these. See,
e.g., 
Youngstown, 343 U.S. at 589
. Further, unlike attempts
36                SIERRA CLUB V. TRUMP

to avoid paying debts, instances of Executive Branch ultra
vires action are, fortunately, relatively rare, and unlikely to
occur in contexts likely to repeat themselves precisely. Thus,
the justifications for limiting equitable relief in Grupo
Mexicano are not present here, and courts are able to grant the
relief sought by Sierra Club.

    We therefore hold that Sierra Club may assert an
equitable ultra vires cause of action to challenge DoD’s
transfer of funds.

                              C

   The Federal Defendants raise a number of additional
arguments. We address them here.

    First, the Federal Defendants assert that Sierra Club’s
challenge must be construed as an APA claim, rather than as
a constitutional or ultra vires cause of action. But neither of
the two cases cited by the Federal Defendants compel this
conclusion. The Federal Defendants cite Hoefler v. Babbitt,
139 F.3d 726
, 728 (9th Cir. 1998) for the proposition that
“[t]he APA is the sole means for challenging the legality of
federal agency action,” but there, we did not consider whether
plaintiffs had a constitutional or ultra vires cause of action;
rather, we considered whether the action was properly
considered under the APA or the Quiet Title Act. See
 id.
at 728–29. 
We ultimately held that the former was
appropriate. See
 id. at 729. 
To extrapolate from a general
statement made in this context, as the Federal Defendants do
here, goes too far.

   Likewise, in Bennett v. Spear, 
520 U.S. 154
, 175 (1997),
the Court did not consider whether plaintiffs had a
                  SIERRA CLUB V. TRUMP                    37

constitutional cause of action; rather, the Court considered
whether the citizen-suit provision of the Endangered Species
Act (“ESA”) provided an exclusive statutory remedy, or
whether a cause of action was also available under the APA.
The Court ultimately determined that “[n]othing in the ESA’s
citizen-suit provision expressly precludes review under the
APA, nor do we detect anything in the statutory scheme
suggesting a purpose to do so.”
 Id. If anything, 
this case
underscores that the APA is not to be construed as an
exclusive remedy. Thus, the APA does not displace all
constitutional and equitable causes of action.

    Second, the Federal Defendants assert that the zone of
interests test must apply to any challenge brought by Sierra
Club, and that Section 8005 prescribes the relevant zone of
interests. We reject this argument.

    The zone of interests test limits which plaintiffs can
invoke statutorily created causes of action. Although earlier
cases, such as Association of Data Processing Services
Organizations, Inc. v. Camp, 
397 U.S. 150 
(1970), suggested
that the test applied to constitutional causes of action, the
Supreme Court’s most recent zone of interests case, Lexmark
International, Inc. v. Static Control Components, Inc.,
572 U.S. 118 
(2014), clarifies that the test applies only to
statutory causes of action and causes of action under the
APA. See
 id. at 129 
(“[T]he modern ‘zone of interests’
formulation originated . . . as a limitation on the cause of
action for judicial review conferred by the [APA],” but “[w]e
have since made clear, however, that it applies to all
statutorily created causes of action.” (emphasis added)).

   Common sense supports this approach. As Judge Bork
explained in Haitian Refugee Center v. Gracey,
38                    SIERRA CLUB V. TRUMP

          Appellants need not, however, show that their
          interests fall within the zones of interests of
          the constitutional and statutory powers
          invoked by the President in order to establish
          their standing to challenge the interdiction
          program as ultra vires. Otherwise, a
          meritorious litigant, injured by ultra vires
          action, would seldom have standing to sue
          since the litigant’s interest normally will not
          fall within the zone of interests of the very
          statutory or constitutional provision that he
          claims does not authorize action concerning
          that interest. For example, were a case like
          Youngstown, to arise today, the steel mill
          owners would not be required to show that
          their interests fell within the zone of interests
          of the President’s war powers in order to
          establish their standing to challenge the
          seizure of their mills as beyond the scope of
          those powers.

809 F.2d 794
, 811 n.14 (D.C. Cir. 1987) (emphasis added).
We agree with Judge Bork.14 It would make little sense to


     14
       While the dissent asserts that we rely on the wrong portion of Judge
Bork’s opinion, we disagree. Section 8005 cannot merely be read as a
statutory provision limiting the authority conferred when it is
simultaneously a statutory power invoked by the President. In any case,
as explained below, the relevant limitation here is not the inapplicable
statutory power invoked by the Executive—Section 8005—but instead the
restriction on unlawful action—the Appropriations Clause. See also Ctr.
for Biodiversity v. Trump, No. 1:19-cv-00408, 
2020 WL 1643657 
at *25
(D.D.C. Apr. 2, 2020) (quoting the same language from Haitian Refugee
Center and holding that plaintiffs “thus need not satisfy the zone of
interests test for their ultra vires claims.”).
                   SIERRA CLUB V. TRUMP                        39

require Sierra Club to demonstrate that it falls within the zone
of interests of Section 8005. Congress may not have
contemplated the environmental advocacy group when it
included Section 8005 in the defense budget, but
nevertheless, Sierra Club has asserted a legally cognizable
injury. The fact Congress did not have Sierra Club as a
particular plaintiff in mind when it authorized Section 8005’s
transfer authority does not make its injury less real, nor
DoD’s action more lawful.

    If the zone of interests test applies at all, the
Appropriations Clause of the Constitution defines the zone of
interests because it is the “particular provision of law upon
which [Sierra Club] relies” in seeking relief. 
Bennett,
520 U.S. at 175
–76. Section 8005 is relevant only because,
to the extent it applies, it authorizes executive action that
otherwise would be unconstitutional or ultra vires. That a
statute is relevant does not transform a constitutional claim
into a statutory one. Sierra Club’s cause of action stems from
the Federal Defendants’ violation of the Appropriations
Clause because it seeks to enforce the limits mandated by the
clause.

    To the extent the zone of interests test ever applies to
constitutional causes of action, it asks only whether a plaintiff
is “arguably within the zone of interests to be protected . . . by
the . . . constitutional guarantee in question.” Boston Stock
Exch. v. State Tax Comm’n, 
429 U.S. 318
, 320 n.3 (1977)
(quoting Data 
Processing, 397 U.S. at 153
). This renders the
test nearly superfluous: so long as a litigant is asserting an
injury in fact to his or her constitutional rights, he has a cause
of action. See ERWIN CHEMERINKSY, FEDERAL JURISDICTION
112 (7th ed. 2016) (citing LAURENCE TRIBE, AMERICAN
CONSTITUTIONAL LAW 446 (3d ed. 2000)).
40                       SIERRA CLUB V. TRUMP

    Applying that generous formulation of the test here,
Sierra Club falls within the Appropriations Clause’s zone of
interests. Here, Sierra Club is an organization within the
United States that is protected by the Constitution. The
Appropriations Clause is a “bulwark of the Constitution’s
separation of powers,” U.S. Dep’t. of Navy v. Fed. Labor
Relations Auth., 
665 F.3d 1339
, 1347 (D.C. Cir. 2012), and
the “separation of powers can serve to safeguard individual
liberty,” 
McIntosh, 833 F.3d at 1174 
(quoting Noel 
Canning,
573 U.S. at 525
). The unconstitutional transfer of funds here
infringed upon Sierra Club’s members’ liberty interests,
harming their environmental, aesthetic, and recreational
interests. Thus, Sierra Club falls within the Clause’s zone of
interests, and Sierra Club has a cause of action to challenge
the transfers.

                                      VI

    Finally, we consider whether the district court abused its
discretion in granting Sierra Club a permanent injunction
enjoining the Federal Defendants from spending the funds at
issue. We hold it did not, and we affirm the district court
injunction.

    A permanent injunction is appropriate when: (1) a
plaintiff will suffer an irreparable injury absent injunction,
(2) remedies available at law are inadequate,15 (3) the balance
of hardships between the parties supports an equitable
remedy, and (4) the public interest would not be disserved.
eBay Inc. v. MercExchange, LLC, 
547 U.S. 388
, 391 (2006).
When the government is a party to the case, the court should
consider the balance of hardships and public interests factors

     15
          The parties do not contest this factor and so we do not address it.
                  SIERRA CLUB V. TRUMP                      41

together. See Drakes Bay Oyster Co. v. Jewell, 
747 F.3d
1073
, 1092 (9th Cir. 2014). Although injunctive relief “does
not follow from success on the merits as a matter of course,”
Winter v. NRDC, Inc., 
555 U.S. 7
, 32 (2008), we review a
district court’s decision to grant a permanent injunction for
abuse of discretion, see 
eBay, 547 U.S. at 391
.

    The district court did not abuse its discretion in weighing
these factors and determining that injunctive relief was
warranted. First, we agree with the district court that Sierra
Club would suffer irreparable harm to its recreational and
aesthetic interests absent injunction. An organization can
demonstrate irreparable harm by showing that the challenged
action will injure its members’ enjoyment of public lands.
See All. for the Wild Rockies v. Cottrell, 
632 F.3d 1127
, 1135
(9th Cir. 2011) (finding irreparable harm when the Forest
Service’s proposed project would harm the Alliance’s
members’ ability to “view, experience, and utilize” national
forest areas in an undisturbed state). We conclude that Sierra
Club sufficiently demonstrated that the Federal Defendants’
proposed use of funds would harm its members ability to
recreate and enjoy public lands along the border such that it
will suffer irreparable harm absent injunction.

    The Federal Defendants’ arguments to the contrary are
unpersuasive. The Federal Defendants submit that Sierra
Club will not be irreparably harmed because its members
have plenty of other space to enjoy. We have already rejected
the essence of the Federal Defendants’ argument. See All. for
the Wild 
Rockies, 632 F.3d at 1135 
(concluding that the
Forest Service’s argument that plaintiffs can “view,
experience, and utilize other areas of the forest” “proves too
much,” because its logical extension is that a “plaintiff can
never suffer irreparable injury resulting from environmental
42                 SIERRA CLUB V. TRUMP

harm in a forest as long as there are other areas of the forest
that are not harmed” (internal citations omitted)).

    Moreover, we agree with the district court that the balance
of equities and the public interest favor injunctive relief here.
The public has an important interest in “ensuring that statutes
enacted by their representatives are not imperiled by
executive fiat.” E. Bay Sanctuary Covenant v. Trump,
932 F.3d 742
, 779 (9th Cir. 2018) (quotations and citation
omitted). By passing the CAA, Congress made a calculated
choice to fund only one segment of border barrier. The
public interest favors enforcing this decision. In contrast, the
Federal Defendants cannot suffer harm “from an injunction
that merely ends an unlawful practice.” Rodriguez v.
Robbins, 
715 F.3d 1127
, 1145 (9th Cir. 2013) (citing Zepeda
v. INS, 
753 F.2d 719
, 727 (9th Cir. 1983) (“[T]he INS cannot
reasonably assert that it is harmed in any legally cognizable
sense by being enjoined from constitutional violations.”)).
We agree with the district court that the Federal Defendants’
position essentially “boils down to an argument that the Court
should not enjoin conduct found to be unlawful because the
ends justify the means.” No matter how great the collateral
benefits of building a border wall may be, the transfer of
funds for construction remains unlawful. The equitable
maxim “he who comes in equity must come with clean
hands” would be turned on its head if unlawful conduct by
one party precluded a court from granting equitable relief to
the opposing party. The district court properly concluded that
the balance of equities and the public interest favor injunctive
relief.

   The Federal Defendants’ additional arguments do not
compel a different result. First, the Supreme Court’s decision
in Winter does not require us to vacate the injunction. In
                   SIERRA CLUB V. TRUMP                       43

Winter, the Supreme Court reversed a preliminary injunction
enjoining the Navy from using a particular type of sonar that
was essential to its training exercises because it violated
NEPA and a number of federal environmental 
laws. 555 U.S.
at 16
–17. Key distinctions between this case and Winter
render it inapposite. There, plaintiffs’ “ultimate legal claim
[was] that the Navy must prepare an [environmental impact
statement], not that it must cease sonar training” because the
use of the sonar had otherwise been sanctioned by law.
 Id.
at 32. 
Having determined that the “continuation of the
exercises . . . was ‘essential to national security,’”
 id. at 18,
the President had used his statutory authority to “exempt from
compliance those elements of the Federal agency activity that
[were] found by the Federal court to be inconsistent with an
approved State program,” 16 U.S.C. § 1456(c)(1)(B). In
addition, the Council on Environmental Quality (“CEQ”) had
authorized the Navy to implement alternative arrangements
to NEPA compliance that would allow the Navy to conduct
its training exercises under mitigation procedures, but it
imposed additional notice, research, and reporting
requirements. 
Winter, 555 U.S. at 18
–19.

    By contrast, here, Sierra Club’s ultimate legal claim is
that DoD cannot legally use Section 8005 to fund
construction of the border wall, and moreover, that no such
exemption applies. If anything, Section 8005 itself is a
defense against the Executive Branch’s unconstitutional
transfer of funds; however, as discussed previously, it offers
no such legal cover here. Therefore, while the use of the
sonar was not unlawful at the time the Supreme Court vacated
the injunction in Winter, DoD’s transfer of funds here is.
While the injunction here “merely ends an unlawful practice,”
Rodriguez, 715 F.3d at 1145
, the injunction in Winter
44                 SIERRA CLUB V. TRUMP

enjoined conduct that had been sanctioned by law, see
Winter, 555 U.S. at 32
.

    Moreover, the public interest at issue in Winter more
clearly favored vacating the injunction. “Antisubmarine
warfare [was] [] the Pacific Fleet’s top war-fighting priority.”
Winter, 555 U.S. at 12
. Accordingly, the use of MFA sonar
during training missions was deemed “mission-critical,”
 id.
at 14, 
because it is not only the “most effective technology,”

id. at 13, 
but “the only proven method of identifying
submerged diesel-electric submarines operating on battery
power,”
 id. at 14. 
On the other side of the equation, “the
most serious possible injury [to plaintiffs] would be harm to
an unknown number of marine mammals.”
 Id. at 26. 
The
Court reasonably concluded that the “balance of equities and
consideration of the overall public interest . . . tip strongly in
favor of the Navy.”
 Id.

    The balance 
of interests does not so starkly favor the
Federal Defendants here. Although they allege that the
injunction “frustrates the government’s ability to stop the
flow of drugs across the border,” unlike the government in
Winter, the Federal Defendants have failed to demonstrate
that construction of the border wall would serve this purpose,
or alternatively, that an injunction would inhibit this purpose.
The Federal Defendants cite drug trafficking statistics, but
fail to address how the construction of additional physical
barriers would further the interdiction of drugs. The
Executive Branch’s failure to show, in concrete terms, that
the public interest favors a border wall is particularly
significant given that Congress determined fencing to be a
lower budgetary priority and the Department of Justice’s own
                       SIERRA CLUB V. TRUMP                                45

data points to a contrary conclusion.16 The district court
properly accorded this interest little weight.17 Therefore, we
hold that the district court did not abuse its discretion, and we
affirm the grant of the permanent injunction.

                                     VII

    In sum, we affirm the district court. We conclude that
Sierra Club and SBCC have Article III standing to file their


    16
       According to the U.S. Department of Justice’s Drug Enforcement
Administration’s 2018 National Drug Threat Assessment Report, the
“most common method employed by [Mexican Transnational Criminal
Organizations] involves transporting illicit drugs through U.S. [ports of
entry] in passenger vehicles with concealed compartments or commingled
with legitimate goods on tractor trailers.” 2018 National Drug Threat
Assessment, U.S. Dep’t of Just. Drug Enforcement Admin. at 99 (2018).
Opioids like heroin and fentanyl are most commonly smuggled across the
southwest border into the U.S. through legal ports of entry.
 Id. at 19–20,
33; see also Joe Ward & Anjali Singhvi, Trump Claims There is a Crisis
at the Border. What’s the Reality?, NEW YORK TIMES (Jan. 11, 2019)
(analyzing U.S. Customs and Border Patrol data and finding that “[m]ost
drugs are seized at ports of entry, not along the open border”).
    17
        We are likewise unconvinced by Defendants argument, citing
Maryland v. King, 
567 U.S. 1301 
(2012), that “there is ‘irreparable harm’
whenever a government cannot enforce its own laws.” The Ninth Circuit
has recognized that there is “some authority” for the idea that “a state may
suffer an abstract form of harm whenever one of its acts is enjoined,” but,
“to the extent that is true . . . it is not dispositive of the balance of harms
analysis.” Latta v. Otter, 
771 F.3d 496
, 500 (9th Cir. 2014) (quoting
Indep. Living Ctr. of So. Cal., Inc. v. Maxwell-Jolly, 
572 F.3d 644
, 658
(9th Cir. 2009), vacated and remanded on other grounds, 
132 S. Ct. 1204
(2012) (alterations adopted)); see also
 id. at 500 
n.1 (noting that
“[i]ndividual justices, in orders issued from chambers, have expressed the
view that a state suffers irreparable injury when one of its laws is
enjoined, [but] [n]o opinion for the Court adopts this view” (citations
omitted)).
46                SIERRA CLUB V. TRUMP

claims, that the Federal Defendants violated Section 8005 in
transferring DoD appropriations to fund the El Paso, Yuma,
El Centro, and Tucson Sectors of the proposed border wall,
and that Sierra Club and SBCC have a constitutional cause of
action under the Appropriations Clause and an ultra vires
cause of action to challenge the Section 8005 transfers. We
also decline to reverse the district court’s decision to impose
a permanent injunction. Given our resolution of this case
founded upon the violations of Section 8005, we need
not—and do not—reach the merits of any other theory
asserted by Sierra Club, nor reach any other issues presented
by the parties.

     AFFIRMED.



COLLINS, Circuit Judge, dissenting:

    This case involves similar claims to those presented in
California v. Trump, Nos. 19-16299 & 19-16336, ___ F.3d
___ (9th Cir. 2020). In each case, a distinct group of
plaintiffs brought suit challenging the Acting Secretary of
Defense’s invocation of § 8005 and § 9002 of the Department
of Defense Appropriations Act, 2019 (“DoD Appropriations
Act”), Pub. L. No. 115-245, Div. A, 132 Stat. 2981, 2999,
3042 (2018), to transfer $2.5 billion in funds that Congress
had appropriated for other purposes into a different
Department of Defense (“DoD”) appropriation that could
then be used by DoD for construction of border fencing and
accompanying roads and lighting. In California v. Trump, the
relevant plaintiffs are the States of California and New
Mexico, who challenged two such construction projects, and
here the plaintiffs are the Sierra Club and the Southern Border
                      SIERRA CLUB V. TRUMP                             47

Communities Coalition (“SBCC”) (collectively, the
“Organizations”), who challenge six projects. The district
court granted declaratory relief to both sets of plaintiffs
invalidating the transfers, but it granted permanent injunctive
relief only to the Organizations. The majority concludes that
the Organizations have Article III standing; that they have a
cause of action to challenge the transfers under the
Appropriations Clause of the Constitution as well as a cause
of action under an equitable ultra vires theory; that the
transfers were unlawful; and that the district court properly
determined that the Organizations are entitled to declaratory
and injunctive relief. I agree that at least the Sierra Club has
established Article III standing, but in my view the
Organizations lack any cause of action to challenge the
transfers. And even assuming that they had a cause of action,
I conclude that the transfers were lawful. Accordingly, I
would reverse the district court’s partial judgment for the
Organizations and remand for entry of partial summary
judgment in favor of the Defendants. I respectfully dissent.1




    1
       There is considerable overlap between the substantive issues
presented in this case and in California v. Trump, and my disagreements
with the majority in this case largely parallel my disagreements in the
other case. But rather than simply cross-reference all of the discussion in
my dissent in California v. Trump, I will follow the majority and will rely
on cross-reference only when it does. The result is a fair amount of
verbatim repetition between this dissent and my dissent in California v.
Trump, but proceeding in this way avoids the awkwardness of directing
the reader to a separate published opinion when that reader wants to see
what my response is to a particular point made by the majority in its
opinion in this case.
48                SIERRA CLUB V. TRUMP

                              I

    The parties’ dispute over DoD’s funding transfers comes
to us against the backdrop of a complex statutory framework
and an equally complicated procedural history. Before
turning to the merits, I will briefly review both that
framework and that history.

                              A

    Upon request from another federal department, the
Secretary of Defense is authorized to “provide support for the
counterdrug activities” of that department by undertaking the
“[c]onstruction of roads and fences and installation of
lighting to block drug smuggling corridors across
international boundaries of the United States.” 10 U.S.C.
§ 284(a), (b)(7). On February 25, 2019, the Department of
Homeland Security (“DHS”) made a formal request to DoD
for such assistance. Noting that its counterdrug activities
included the construction of border infrastructure, see Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, § 102(a),
110 Stat. 3009-546, 3009-554 (1996) (codified as amended as
a note to 8 U.S.C. § 1103), DHS requested that “DoD,
pursuant to its authority under 10 U.S.C. § 284(b)(7), assist
with the construction of fences[,] roads, and lighting” in
several specified “Project Areas” in order “to block drug-
smuggling corridors across the international boundary
between the United States and Mexico.”

   On March 25, 2019, the Acting Defense Secretary
invoked § 284 and approved the provision of support for
DHS’s “El Paso Sector Project 1” (which would involve DoD
construction of border fencing, roads, and lighting in Luna
                  SIERRA CLUB V. TRUMP                     49

and Doña Ana Counties in New Mexico), as well as for, inter
alia, DHS’s “Yuma Sector Project 1” (which would involve
DoD construction of similar border infrastructure in Yuma
County, Arizona). Thereafter, the Secretary of Homeland
Security invoked his authority under § 102(c) of IIRIRA to
waive a variety of federal environmental statutes with respect
to the planned construction of border infrastructure in the
relevant portions of the El Paso Sector and the Yuma Sector,
as well as “all . . . state . . . laws, regulations, and legal
requirements of, deriving from, or related to the subject of,”
those federal laws. See 84 Fed. Reg. 17185, 17187 (Apr. 24,
2019); 84 Fed. Reg. 17187, 17188 (Apr. 24, 2019).

    Subsequently, on May 9, 2019, the Acting Defense
Secretary again invoked § 284, this time to approve DoD’s
construction of similar border infrastructure to support DHS’s
“El Centro Sector Project 1” in Imperial County, California,
and DHS’s “Tucson Sector Projects 1, 2, and 3” in Pima and
Cochise Counties in Arizona. Less than a week later, the
Secretary of Homeland Security again invoked his authority
under IIRIRA § 102(c) to waive federal and state
environmental laws, this time with respect to the construction
in the relevant sections of the El Centro Sector and the
Tucson Sector. See 84 Fed. Reg. 21800, 21801 (May 15,
2019); 84 Fed. Reg. 21798, 21799 (May 15, 2019).

    Although § 284 authorized the Acting Defense Secretary
to provide this support, there were insufficient funds in the
relevant DoD appropriation to do so. Specifically, for Fiscal
Year 2019, Congress had appropriated for “Drug Interdiction
and Counter-Drug Activities, Defense” a total of only
$670,271,000 that could be used for counter-drug support.
See DoD Appropriations Act, Title VI, 132 Stat. at 2997
(appropriating, under Title governing “Other Department of
50                SIERRA CLUB V. TRUMP

Defense Programs,” a total of “$881,525,000, of which
$517,171,000 shall be for counter-narcotics support”);
 id.,
Title IX, 
132 Stat. at 3042 (appropriating $153,100,000 under
the Title governing “Overseas Contingency Operations”).
Accordingly, to support the El Paso Sector Project 1 and
Yuma Sector Project 1, the Acting Secretary on March 25,
2019 invoked his authority to transfer appropriations under
§ 8005 of the DoD Appropriations Act and ordered the
transfer of $1 billion from “excess Army military personnel
funds” into the “Drug Interdiction and Counter-Drug
Activities, Defense” appropriation. That transfer was
accomplished by moving $993,627,000 from the “Military
Personnel, Army” appropriation and $6,373,000 from the
“Reserve Personnel, Army” appropriation.

    To support the El Centro Sector Project 1 and Tucson
Sector Projects 1, 2, and 3, the Acting Secretary on May 9,
2019 again invoked his transfer authority to move an
additional $1.5 billion into the “Drug Interdiction and
Counter-Drug Activities, Defense” appropriation. Pursuant
to § 8005 of the DoD Appropriations Act, DoD transferred a
total of $818,465,000 from 12 different DoD appropriations
into the “Drug Interdiction and Counter-Drug Activities,
Defense” appropriation. Invoking the Secretary’s distinct but
comparable authority under § 9002 to transfer funds
appropriated under the separate Title governing “Overseas
Contingency Operations,” DoD transferred $604,000,000
from the “Afghanistan Security Forces Fund” appropriation
and $77,535,000 from the “Operation and Maintenance,
Defense-Wide” appropriation into the “Drug Interdiction and
Counter-Drug Activities, Defense” appropriation.
                  SIERRA CLUB V. TRUMP                    51

                             B

    The complex procedural context of this case involves two
parallel lawsuits and four appeals to this court, and it has
already produced one published Ninth Circuit opinion that
was promptly displaced by the Supreme Court.

                             1

    The Organizations filed this action in the district court
against the Acting Defense Secretary, DoD, and a variety of
other federal officers and agencies. In their March 18, 2019
First Amended Complaint, they sought to challenge, inter
alia, any transfer of funds by the Acting Secretary under
§ 8005 or § 9002. California and New Mexico, joined by
several other States, filed a similar action, and their March
13, 2019 First Amended Complaint also sought to challenge
any such transfers. Both sets of plaintiffs moved for
preliminary injunctions in early April 2019. The portion of
the States’ motion that was directed at the § 8005 transfers
was asserted only on behalf of New Mexico and only with
respect to the construction on New Mexico’s border (i.e., El
Paso Sector Project 1). The Organizations’ motion was
likewise directed at El Paso Sector Project 1, but it also
challenged Yuma Sector Projects 1 and one other project
(“Yuma Sector Project 2”).

    After concluding that the Organizations were likely to
prevail on their claims that the transfers under § 8005 were
unlawful and that these organizational plaintiffs had
demonstrated a “likelihood of irreparable harm to their
members’ aesthetic and recreational interests,” the district
court on May 24, 2019 granted a preliminary injunction
enjoining Defendants from using transferred funds for “Yuma
52                     SIERRA CLUB V. TRUMP

Sector Project 1 and El Paso Sector Project 1.”2 In a
companion order, however, the district court denied
preliminary injunctive relief to the States. Although the court
held that New Mexico was likely to succeed on its claim that
the transfers under § 8005 were unlawful, the court concluded
that, in light of the grant of a preliminary injunction against
El Paso Sector Project 1 to the Organizations, New Mexico
would not suffer irreparable harm from the denial of its
duplicative request for such relief. On May 29, 2019,
Defendants appealed the preliminary injunction in favor of
the Organizations, and after the district court refused to stay
that injunction, Defendants moved in this court for an
emergency stay on June 3, 2019. New Mexico did not appeal
the district court’s denial of its duplicative request for a
preliminary injunction.

                                     2

    While the Defendants’ emergency stay request was being
briefed and considered in this court, the Organizations moved
for partial summary judgment on June 12, 2019. The motion
was limited to the issue of whether the transfers under § 8005
and § 9002 were lawful, and it requested corresponding
declaratory relief, as well as a permanent injunction against
the use of transferred funds for all six projects (El Paso Sector
Project 1, El Centro Sector Project 1, Yuma Sector Project 1,
and Tucson Sector Projects 1, 2, and 3). California and New
Mexico (but not the other States) filed a comparable summary
judgment motion that same day, directed only at El Paso


     2
      By the time the district court ruled, DoD had decided not to use
funds transferred under § 8005 for any construction in Yuma Sector
Project 2, and so the request for a preliminary injunction as to that project
was moot.
                   SIERRA CLUB V. TRUMP                      53

Sector Project 1 and El Centro Sector Project 1. Defendants
filed cross-motions for summary judgment on the legality of
the transfers under § 8005 and § 9002 with respect to the
corresponding projects at issue in each case.

    On June 28, 2019, the district court granted partial
summary judgment and declaratory relief to both sets of
plaintiffs, concluding that the transfers under § 8005 and
§ 9002 were unlawful. The court granted permanent
injunctive relief to the Organizations against all six projects,
but it denied any such relief to California and New Mexico.
The district court concluded that California and New Mexico
had failed to prove a threat of future demonstrable
environmental harm. The court expressed doubts about the
States’ alternative theory that they had demonstrated injury to
their sovereign interests, but the court ultimately concluded
that it did not need to resolve that issue. As before, the
district court instead held that California and New Mexico
would not suffer any irreparable harm in light of the
duplicative relief granted to the Organizations. The district
court denied Defendants’ cross-motions for summary
judgment in both cases. Invoking its authority under Federal
Rule of Civil Procedure 54(b), the district court entered
partial judgments in favor of, respectively, the Sierra Club
and SBCC, and California and New Mexico. The district
court denied Defendants’ request to stay the permanent
injunction pending appeal.

                               3

    On June 29, 2019, Defendants timely appealed in both
cases and asked this court to stay the permanent injunction
based on the same briefing and argument that had been
presented in the preliminary injunction appeal. California
54                   SIERRA CLUB V. TRUMP

and New Mexico timely cross-appealed nine days later. On
July 3, 2019, this court consolidated Defendants’ appeal of
the judgment and permanent injunction with Defendants’
pending appeal of the preliminary injunction.3 That same
day, a motions panel of this court issued a 2–1 published
decision denying Defendants’ motion for a stay of the
permanent injunction (which had overtaken the preliminary
injunction). See Sierra Club v. Trump, 
929 F.3d 670 
(9th Cir.
2019).

    Defendants then applied to the Supreme Court for a stay
of the permanent injunction pending appeal, which the Court
granted on July 26, 2019. See Trump v. Sierra Club, 140 S.
Ct. 1 (2019). That stay remains in effect “pending disposition
of the Government’s appeal in the United States Court of
Appeals for the Ninth Circuit and disposition of the
Government’s petition for a writ of certiorari, if such writ is
timely sought.”
 Id. at 1. 
In granting the stay, the Court
concluded that “the Government has made a sufficient
showing at this stage that [the Sierra Club and SBCC] have
no cause of action to obtain review of the Acting Secretary’s
compliance with Section 8005.”
 Id.

                                  II

    Defendants 
have not contested the Article III standing of
the Sierra Club and SBCC on appeal, but as the majority
notes, “‘the court has an independent obligation to assure that
standing exists, regardless of whether it is challenged by any
of the parties.’” See Maj. Opin. at 17 n.9 (quoting Summers
v. Earth Island Inst., 
555 U.S. 488
, 499 (2009)). As “an

     3
       This court later consolidated the appeal and cross-appeal in the
States’ case with the already-consolidated appeals in this case.
                  SIERRA CLUB V. TRUMP                      55

indispensable part of the plaintiff’s case, each element” of
Article III standing “must be supported in the same way as
any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation.” Lujan v. Defenders
of Wildlife (Lujan v. Defenders), 
504 U.S. 555
, 561 (1992).
Thus, although well-pleaded allegations are enough at the
motion-to-dismiss stage, they are insufficient to establish
standing at the summary-judgment stage.
 Id. “In response 
to
a summary judgment motion, . . . the plaintiff can no longer
rest on such mere allegations, but must set forth by affidavit
or other evidence specific facts, which for purposes of the
summary judgment motion will be taken to be true.”
 Id.
(simplified).

     In 
reviewing standing sua sponte in the context of cross-
motions for summary judgment, it is appropriate to apply the
more lenient standard that takes the plaintiffs’ evidence as
true and then asks whether a reasonable trier of fact could
find Article III standing. Lujan v. 
Defenders, 504 U.S. at 563
(applying this standard in evaluating whether Government’s
cross-motion for summary judgment should have been
granted). In their briefs below concerning the parties’ cross-
motions, the Sierra Club and SBCC each asserted that
Defendants’ allegedly unlawful conduct caused harm to their
members’ recreational, aesthetic, and environmental interests.
Accepting the Organizations’ evidence as true, and drawing
all reasonable inferences in their favor, a reasonable trier of
fact could conclude that at least the Sierra Club has
associational standing under Hunt v. Washington State Apple
56                    SIERRA CLUB V. TRUMP

Advert. Comm’n, 
432 U.S. 333 
(1977).4 Under the Hunt test,
an association has standing if “(a) its members would
otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s
purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in
the lawsuit.”
 Id. at 343. 
The Sierra Club has presented
sufficient evidence as to each of these three requirements.

    To establish that its members would suffer irreparable
harm absent a permanent injunction, the Sierra Club
presented declarations from members who regularly visit the
respective project areas. These members described how the
construction and the resulting border barriers would interfere
with their enjoyment of the surrounding landscape and would
impede their ability to fish, to hunt, to monitor and document
wildlife and vegetation for educational purposes, and to
participate in other activities near the project sites. These
injuries to the members’ recreational, aesthetic, and
environmental interests are sufficient to constitute an injury-
in-fact for Article III purposes. See Lujan v. 
Defenders,
504 U.S. at 562
–63 (“Of course, the desire to use or observe
an animal species, even for purely esthetic purposes, is
undeniably a cognizable interest for purpose of standing.”).
Moreover, these injuries are fairly traceable to the
construction, and an injunction blocking the transfers would
redress those injuries by effectively stopping that


     4
      The district court explicitly addressed Article III standing only in
connection with the preliminary injunction motion. Although Article III
standing was not revisited when the Organizations subsequently moved
for summary judgment and a permanent injunction, the Organizations’
showing of injury in support of a permanent injunction provides a
sufficient basis for evaluating their Article III standing.
                  SIERRA CLUB V. TRUMP                      57

construction. See
 id. at 560–61. 
This evidence is therefore
sufficient to establish that these members would have Article
III standing to sue in their own right.

    The other Hunt requirements are also satisfied. These
members’ interests are clearly germane to the Sierra Club’s
mission to protect the natural environment and local wildlife
and plant life. And in seeking declaratory and injunctive
relief, the lawsuit does not require the participation of
individual members. See 
Hunt, 432 U.S. at 343
.

    Because the Sierra Club satisfies the applicable standing
requirements as to all of the challenged projects, we may
proceed to the merits without having to address SBCC’s
standing. See Secretary of the Interior v. California, 
464 U.S.
312
, 319 n.3 (1984) (“Since the State of California clearly
does have standing, we need not address the standing of the
other [plaintiffs], whose position here is identical to the
State’s.”). And given my view that the Organizations’ legal
challenges fail, I perceive no obstacle to entering judgment
against both the Sierra Club and SBCC without determining
whether the latter has standing. See Steel Co. v. Citizens for
a Better Environment, 
523 U.S. 83
, 98 (1998).

                             III

    After examining the Article III standing of the
Organizations, the majority then proceeds straight to the
merits of whether the transfers were unlawful. See Maj.
Opin. at 23. But we ought not address that issue unless we
have first determined that the Organizations have asserted a
viable cause of action that properly brings that issue before
us. See Air Courier Conf. v. American Postal Workers Union
AFL-CIO, 
498 U.S. 517
, 530–31 (1991). The majority
58                     SIERRA CLUB V. TRUMP

belatedly gets to that question in Section V of its opinion,
holding that the Organizations have two viable causes of
action: an equitable cause of action under the Constitution
and an ultra vires cause of action. See Maj. Opin. at 25. I
disagree with that conclusion, and I also disagree with the
Organizations’ alternative argument that they have a valid
cause of action under the Administrative Procedure Act
(“APA”). See Trump v. Sierra 
Club, 140 S. Ct. at 1 
(“[T]he
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.”).5




     5
       In its merits analysis, the majority scarcely cites the motions panel’s
published decision, which addressed the Organizations’ likelihood of
success on the merits of many of the same issues before us. I agree with
the majority’s implicit rejection of the Organizations’ contention that the
motions panel’s opinion bars this merits panel from examining these
issues afresh. Although the motions panel decision is a precedent, it
remains subject to reconsideration by this court until we issue our
mandate. See United States v. Houser, 
804 F.2d 565
, 567–68 (9th Cir.
1986) (distinguishing, on this point, between reconsideration of a prior
panel’s decision “during the course of a single appeal” and a decision “on
a prior appeal”); cf. Gonzalez v. Arizona, 
677 F.3d 383
, 389 n.4 (9th Cir.
2012) (en banc) (three-judge panel lacks authority to overrule a decision
in a prior appeal in the same case). To the extent that Lair v. Bullock, 
798
F.3d 736
, 747 (9th Cir. 2015), suggests otherwise, that suggestion is dicta
and directly contrary to our decision in Houser. See East Bay Sanctuary
Covenant v. Trump, 
950 F.3d 1242
, 1261–65 (9th Cir. 2020). In all
events, the precedential force of the motions panel’s opinion was largely,
if not entirely, vitiated by the Supreme Court’s subsequent decision to
grant the very stay that the motions panel’s opinion denied. I do not
agree, however, with the majority’s disregard of the Supreme Court’s
order in this case—a disregard that hardly befits the “wary and humble”
attitude the majority professes. See Maj. Opin. at 25–26.
                      SIERRA CLUB V. TRUMP                            59

                                   A

    Although the Organizations invoke the APA only as a
fallback to their preferred non-statutory claims, I think it is
appropriate to first consider whether they have a statutory
cause of action under the APA. Cf. Chamber of Commerce
v. Reich, 
74 F.3d 1322
, 1326–27 (D.C. Cir. 1996) (suggesting
that, if a plaintiff relies on both the APA and non-statutory-
review claims, the APA claim should be considered first).
Even assuming arguendo that the APA does not displace
reliance upon alternative non-statutory causes of action, see
infra at 69, the contours of any express cause of action under
the APA certainly provide appropriate context for the
consideration of any non-statutory claim.

    In authorizing suit by any person “adversely affected or
aggrieved by agency action within the meaning of a relevant
statute,” 5 U.S.C. § 702, the APA incorporates the familiar
zone-of-interests test, which reflects a background principle
of law that always “applies unless it is expressly negated,”
Bennett v. Spear, 
520 U.S. 154
, 163 (1997); see also Lexmark
Int’l, Inc. v. Static Control Components, Inc., 
572 U.S. 118
,
129 (2014).6 That test requires a plaintiff to “establish that
the injury he complains of (his aggrievement, or the adverse
effect upon him) falls within the ‘zone of interests’ sought to
be protected by the statutory provision whose violation forms
the legal basis for his complaint.” Lujan v. 
NWF, 497 U.S. at

    6
      The Supreme Court has not squarely addressed whether the zone-of-
interests test applies to a plaintiff who claims to have “suffer[ed] legal
wrong because of agency action,” which is the other class of persons
authorized to sue under the APA, 5 U.S.C. § 702. See Lujan v. National
Wildlife Fed. (Lujan v. NWF), 
497 U.S. 871
, 882–83 (1990). The
Organizations have not invoked any such theory here, so I have no
occasion to address it.
60                 SIERRA CLUB V. TRUMP

883 (quoting Clarke v. Securities Indus. Ass’n, 
479 U.S. 388
,
396–97 (1987)). This test “is not meant to be especially
demanding.” 
Clarke, 479 U.S. at 399
. Because the APA was
intended to confer “generous review” of agency action, the
zone-of-interests test is more flexibly applied under that
statute than elsewhere, and it requires only a showing that the
plaintiff is “arguably within the zone of interests to be
protected or regulated by the statute or constitutional
guarantee in question.” Association of Data Processing Serv.
Orgs., Inc. v. Camp (Data Processing), 
397 U.S. 150
, 153,
156 (1970) (emphasis added); see also 
Bennett, 520 U.S.
at 163 
(“what comes within the zone of interests of a statute
for purposes of obtaining judicial review of administrative
action under the generous review provisions of the APA may
not do so for other purposes”) (simplified). Because an APA
plaintiff need only show that its interests are “arguably”
within the relevant zone of interests, “the benefit of any doubt
goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 
567 U.S. 209
, 225 (2012).
Although these standards are generous, the Organizations
have failed to satisfy them.

                               1

    In applying the zone-of-interests test, we must first
identify the “statutory provision whose violation forms the
legal basis for [the] complaint” or the “gravamen of the
complaint.” Lujan v. 
NWF, 497 U.S. at 883
, 886; see also Air
Courier 
Conf., 498 U.S. at 529
. That question is easy here.
The Organizations’ complaint alleges that the challenged
transfers are not authorized by § 8005 and § 9002 because
“[t]he diversion of funding to build a border wall or fence is
not based on unforeseen military requirements”; “the building
of a permanent border wall is not a ‘military requirement’”;
                       SIERRA CLUB V. TRUMP                              61

and “Congress has denied funding for Defendants’ planned
wall construction, thus barring the Department of Defense
from using transfers to fund it.”7 The Organizations allege
that, because Congress thus “has not authorized the
Department of Defense to transfer additional Defense funds
into the Drug Interdiction and Counter-Narcotics Activities
account for the purpose of supporting another agency, rather
than for military requirements,” the Appropriations Clause
bars the transfers and “Defendants are acting ultra vires in
seeking to transfer funds into the Drug Interdiction and
Counter-Narcotics Activities account for the purpose of
building a permanent border wall.” Given that the case turns
on whether the transfers met the criteria in § 8005, that statute
is plainly the “gravamen of the complaint,” and it therefore
defines the applicable zone of interests. Lujan v. 
NWF,
497 U.S. at 886
.

    Although the Organizations invoke the Appropriations
Clause and the constitutional separation of powers in
contending that Defendants’ actions are unlawful, any such
constitutional violations here can be said to have occurred
only if the transfers violated the limitations set forth in
§ 8005: if Congress authorized DoD to transfer the
appropriated funds from one account to another, and to spend
them accordingly, then the money has been spent “in
Consequence of Appropriations made by Law,” U.S. CONST.
art. I, § 9, cl. 7, and the Executive has not otherwise




    7
       Because the limitations on transfers set forth in § 8005 also apply to
transfers under § 9002, see 132 Stat. at 3042, the parties use “§ 8005” to
refer to both provisions, and I will generally do so as well.
62                    SIERRA CLUB V. TRUMP

transgressed the separation of powers.8           All of the
Organizations’ theories for challenging the transfers—
whether styled as constitutional claims or as statutory
claims—thus rise or fall based on whether DoD has
transgressed the limitations on transfers set forth in § 8005.
As a result, § 8005 is obviously the “statute whose violation
is the gravamen of the complaint.” Lujan v. 
NWF, 497 U.S.
at 886
. To maintain a claim under the APA, therefore, the
Organizations must establish that they are within the zone of
interests of § 8005.9


     8
      The only possible exception is the Organizations’ argument that
§ 8005 itself violates the Presentment Clause. As explained below, that
contention is frivolous. See infra at 71–72.
     9
       The Organizations briefly contend that DoD has exceeded its
authority under § 284 and has violated the National Environmental Policy
Act (“NEPA”), but even assuming arguendo that the Organizations have
a cause of action to raise any such challenges, they are patently without
merit. The Organizations note that § 284 contains a special reporting
requirement for “small scale construction” projects, which are defined as
projects costing $750,000 or less, 10 U.S.C. § 284(h)(1)(B), (i)(3), and
they argue that this shows that Congress did not authorize projects on the
scale at issue here. The inference is a non sequitur: the fact that Congress
requires special reporting of these smaller projects does not mean that they
are the only projects authorized. Congress may have imposed such a
unique reporting requirement in order to capture the sort of smaller-scale
activities that might otherwise have escaped its notice. And the fact that
past expenditures under § 284 have happened to be for more modest
projects is irrelevant, because nothing in the text of § 284 imposes any
such size limits on the projects authorized by that statute. The
Organizations’ reliance on NEPA is likewise meritless. We have upheld
DHS’s waiver of NEPA under § 102(c) of IIRIRA, see In re Border
Infrastructure Envtl. Litig., 
915 F.3d 1213
, 1225 (9th Cir. 2019), and the
district court correctly concluded that the waiver applies to construction
that DoD undertakes under § 284 to “provide support” to DHS at DHS’s
“request[],” 10 U.S.C. § 284. See Sierra Club v. Trump, 
379 F. Supp. 3d
883
, 922–23 (N.D. Cal. 2019).
                     SIERRA CLUB V. TRUMP                            63

                                   2

    Having identified the relevant statute, our next task is to
“discern the interests arguably to be protected by the statutory
provision at issue” and then to “inquire whether the plaintiff’s
interests affected by the agency action in question are among
them.” National Credit Union Admin. v. First Nat’l Bank &
Trust Co. (NCUA), 
522 U.S. 479
, 492 (1998) (simplified).
Identifying the interests protected by § 8005 is not difficult,
and here the Organizations’ asserted interests are not among
them.

     Section 8005 is a grant of general transfer authority that
allows the Secretary of Defense, if he determines “that such
action is necessary in the national interest” and if the Office
of Management and Budget approves, to transfer from one
DoD “appropriation” into another up to $4 billion of the
funds that have been appropriated under the DoD
Appropriations Act “for military functions (except military
construction).” See 132 Stat. at 2999. Section 8005 contains
five provisos that further regulate this transfer authority, and
the only limitations on the Secretary’s authority that the
Organizations claim were violated here are all contained in
the first such proviso. That proviso states that “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.” Id.10 The remaining provisos require prompt
notice to Congress “of all transfers made pursuant to this


    10
       Similar language has been codified into permanent law. See
10 U.S.C. § 2214(b). No party contends that § 2214(b) alters the relevant
analysis under the comparably worded provision in § 8005.
64                 SIERRA CLUB V. TRUMP

authority or any other authority in this Act”; proscribe the use
of funds to make requests to the Committees on
Appropriations for reprogrammings that are inconsistent with
the restrictions described in the first proviso; set a time limit
for making requests for multiple reprogrammings; and
exempt “transfers among military personnel appropriations”
from counting towards the $4 billion limit.
 Id.

    Focusing on 
“the particular provision of law upon which
the plaintiff relies,” 
Bennett, 520 U.S. at 175
–76, makes clear
that § 8005 as a whole, and its first proviso in particular,
are aimed at tightening congressional control over the
appropriations process.         The first proviso’s general
prohibition on transferring funds for any item that “has been
denied by the Congress” is, on its face, a prohibition on using
the transfer authority to effectively reverse Congress’s
specific decision to deny funds to DoD for that item.
132 Stat. at 2999. The second major limitation imposed by
the first proviso states that the transfer authority is not to be
used unless, considering the items “for which [the funds
were] originally appropriated,” there are “higher priority
items” for which the funds should now be used in light of
“military requirements” that were “unforeseen” in DoD’s
request for Fiscal Year 2019 appropriations.
 Id. The obvious
focus of this restriction is likewise to protect congressional
judgments about appropriations by (1) restricting DoD’s
ability to reprioritize the use of funds differently from how
Congress decided to do so and (2) precluding DoD from
transferring funds appropriated by Congress for “military
functions” for purposes that do not reflect “military
requirements.” The remaining provisos, including the
congressional reporting requirement, all similarly aim to
maintain congressional control over appropriations. And all
of the operative restrictions in § 8005 that the Organizations
                   SIERRA CLUB V. TRUMP                        65

invoke here are focused solely on limiting DoD’s ability to
use the transfer authority to reverse the congressional
judgments reflected in DoD’s appropriations.

    In addition to preserving congressional control over
DoD’s appropriations, § 8005 also aims to give DoD some
measure of flexibility to make necessary changes. Notably,
in authorizing the Secretary to make transfers among
appropriations, § 8005’s first proviso specifies only one
criterion that he must consider in exercising that discretion:
he must determine whether the item for which the funds will
be used is a “higher priority item[]” in light of “unforeseen
military requirements.” 132 Stat. at 2999 (emphasis added).
Under the statute, he need not consider any other factor
concerning either the original use for which the funds were
appropriated or the new use to which they will now be put.

    In light of these features of § 8005, the “interests” that the
Organizations claim are “affected by the agency action in
question” are not “among” the “interests arguably to be
protected” by § 8005. 
NCUA, 522 U.S. at 492 
(simplified).
In particular, the Organizations’ asserted recreational,
aesthetic, and environmental interests clearly lie outside the
zone of interests protected by § 8005. The statute does not
mention recreational, aesthetic, and environmental interests,
nor does it require the Secretary to consider such interests.
On the contrary, the statute requires him only to consider
whether an item is a “higher priority” in light of “military
requirements,” and it is otherwise entirely neutral as to the
uses to which the funds will be put. Indeed, that neutrality is
reflected on the face of the statute, which says that, once the
transfer is made, the funds are “merged with and . . . available
for the same purposes, and for the same time period, as the
appropriation or fund to which transferred.” 132 Stat.
66                SIERRA CLUB V. TRUMP

at 2999 (emphasis added). Because the alleged recreational,
aesthetic, and environmental harms that the Organizations
assert here play no role in the analysis that § 8005 requires
the Secretary to conduct, and are not among the harms that
§ 8005’s limitations seek to address or protect, the
Organizations’ interests in avoiding these harms are not
within § 8005’s zone of interests.

     Moreover, focusing on the specific interests for which the
Organizations have presented sufficient evidentiary support
at the summary-judgment stage, see Lujan v. 
NWF, 497 U.S.
at 884
–85, further confirms that, in deciding whether to
redirect excess military personnel funds under § 8005 to
assist DHS by building fencing to stop international drug
smuggling, the Acting Secretary of Defense did not have to
give even the slightest consideration to whether that
reprogramming of funds would disrupt views of the desert
landscape or affect local flora and fauna. Put simply, the
Organizations’ recreational, aesthetic, and environmental
interests are “‘so marginally related to . . . the purposes
implicit in the statute that it cannot reasonably be assumed
that Congress intended to permit the suit.’” 
Patchak,
567 U.S. at 225 
(quoting 
Clarke, 479 U.S. at 399
).

                              3

    The Organizations nonetheless claim that they fall within
§ 8005’s zone of interests because § 8005 was “aimed at
tightening congressional control over executive spending,”
and the Organizations’ interests do not “meaningfully diverge
from Congress’s interests in enacting the statute.” This
contention fails. As the Supreme Court made clear in Lujan
v. NWF, the zone-of-interests test requires the plaintiff to
make a factual showing that the plaintiff itself, or someone
                       SIERRA CLUB V. TRUMP                              67

else whose interests the plaintiff may properly assert, has a
cognizable interest that falls within the relevant statute’s zone
of 
interests. 497 U.S. at 885
–99 (addressing whether the
interests of NWF—or of any of its members, whose interests
NWF could validly assert under Hunt’s associational standing
doctrine—had been shown to be within the relevant zone of
interests). I am aware of no precedent that would support the
view that these Organizations can represent the interests of
Congress (akin to NWF’s representation of the interests of its
members), much less that they can do so merely because they
are sympathetic to Congress’s perceived policy objectives.11
But the Organizations do not actually rely on such a novel
theory. Instead, the Organizations suggest that, merely
because their overall litigation objectives here do not diverge
from those of Congress, they have thereby satisfied the zone-
of-interests test with respect to their own interests. This
theory is clearly wrong.

    The critical flaw in the Organizations’ analysis is that it
rests, not on the interests they are asserting (preservation of
landscape, flora, fauna, etc.), but on the legal theory that the
Organizations invoke to protect those interests here. But the
zone-of-interests test focuses on the former and not the latter.
See Lujan v. 
NWF, 497 U.S. at 885
–89. Indeed, if the
Organizations were correct, that would effectively eliminate


     11
        Even if the Organizations could assert Congress’s interests in some
representational capacity, they could do so only if the injury to Congress’s
interests satisfied the requirements of Article III standing. See Air Courier
Conf., 498 U.S. at 523
–24 (zone-of-interests test is applied to those
injuries-in-fact that meet Article III requirements). I express no view on
that question. Cf. U.S. House of Reps. v. Mnuchin, 
379 F. Supp. 3d 8
(D.D.C. 2019) (holding that House lacks Article III standing to challenge
the transfers at issue here), appeal ordered heard en banc, 
2020 WL
1228477 
(D.C. Cir. 2020).
68                 SIERRA CLUB V. TRUMP

the zone-of-interests test. By definition, anyone who alleges
a violation of a particular statute has thereby invoked a legal
theory that does not “meaningfully diverge” from the
interests of those other persons or entities who are within that
statute’s zone-of-interests. Such a tautological congruence
between the Organizations’ legal theory and Congress’s
institutional interests is not sufficient to satisfy the zone-of-
interests test here.

     The Organizations suggest that their approach is
supported by the D.C. Circuit’s decision in Scheduled
Airlines Traffic Offices, Inc. v. Department of Defense,
87 F.3d 1356 
(D.C. Cir. 1996), but that is wrong. As the
opinion in that case makes clear, the D.C. Circuit was relying
on the same traditional zone-of-interests test, under which a
plaintiff’s interests are “outside the statute’s ‘zone of
interests’ only ‘if the plaintiff’s interests are so marginally
related to or inconsistent with the purposes implicit in the
statute that it cannot reasonably be assumed that Congress
intended to permit the 
suit.’” 87 F.3d at 1360 
(quoting
Clarke, 479 U.S. at 399
). The court mentioned “congruence”
in the course of explaining why the plaintiff’s interests in that
case were “not more likely to frustrate than to further
statutory objectives,” i.e., why those interests were not
inconsistent with the purposes implicit in the statute.
 Id.
(simplified). It 
did not thereby suggest—and could not
properly have suggested—that the mere lack of any such
inconsistency is alone sufficient under the zone-of-interests
test. Here, the problem is not that the Organizations’ interests
are inconsistent with the purposes of § 8005, but rather that
they are too “marginally related” to those purposes. See
supra at 66.
                     SIERRA CLUB V. TRUMP                            69

    The Organizations also suggest that we must apply the
zone-of-interests test broadly here, because—given
Congress’s inability to enforce the limitations of § 8005
directly—the agency’s transfers would otherwise be
effectively “unreviewable.” The assumption that no one will
ever be able to sue for any violation of § 8005 seems
doubtful, cf. Sierra Club v. 
Trump, 929 F.3d at 715 
(N.R.
Smith, J., dissenting) (suggesting that “those who would have
been entitled to the funds as originally appropriated” may be
within the zone of interests of § 8005), but in any event, we
are not entitled to bend the otherwise applicable—and already
lenient—standards to ensure that someone will be able to sue
in this case or others like it.

                                   B

    As noted earlier, the Organizations only invoke the APA
as a fallback option, and they instead insist that they may
assert claims under the Constitution, as well as an equitable
cause of action to enjoin “ultra vires” conduct. The
Organizations do not have a cause of action under either of
these theories.

                                   1

    The Organizations contend that they are not required to
satisfy any zone-of-interests test to the extent that they assert
non-APA causes of action to enjoin Executive officials from
taking unconstitutional action.12 Even assuming that an


    12
       It is not entirely clear that the Organizations are alternatively
contending that APA claims to enjoin unconstitutional conduct, see 5
U.S.C. § 706(2)(B), are exempt from the zone-of-interests test. To the
extent that they are so contending, the point seems doubtful. See Data
70                   SIERRA CLUB V. TRUMP

equitable cause of action to enjoin unconstitutional conduct
exists alongside the APA’s cause of action, see Juliana v.
United States, 
947 F.3d 1159
, 1167–68 (9th Cir. 2020);
Navajo Nation v. Department of the Interior, 
876 F.3d 1144
,
1172 (9th Cir. 2017); but see Sierra Club v. 
Trump, 929 F.3d
at 715
–17 (N.R. Smith, J., dissenting), it avails the
Organizations nothing here. The Organizations have failed
to allege the sort of constitutional claim that might give rise
to such an equitable action, because their “constitutional”
claim is effectively the very same § 8005-based claim dressed
up in constitutional garb. And even if this claim counted as
a “constitutional” one, it would still be governed by the same
zone of interests defined by the relevant limitations in § 8005.

                                   a

    The Organizations assert three constitutional claims in
their operative complaint: (1) that Defendants have violated
the constitutional separation of powers by “usurp[ing]
Congress’s legislative authority”; (2) that Defendants have
violated the Presentment Clause by “modify[ing] or
repeal[ing] Congress’s appropriations legislation by executive
proclamation, rather than by law”; and (3) that Defendants
have violated the Appropriations Clause by “allocat[ing]
money from the Department of the Treasury by executive
proclamation, rather than by law, and in contravention of
restrictions contained in Congress’s appropriations’ laws.”


Processing, 397 U.S. at 153 
(zone-of-interests test requires APA claimant
to show that its interest “is arguably within the zone of interests to be
protected or regulated by the statute or constitutional guarantee in
question”). But in all events, any such APA-based claim to enjoin
unconstitutional conduct would fail for the same reasons as the
Organizations’ purported free-standing equitable claim to enjoin such
conduct.
                  SIERRA CLUB V. TRUMP                      71

As clarified in their subsequent briefing, the Organizations
assert both what I will call a “strong” form of these
constitutional arguments and a more “limited” form. In its
strong form, the Organizations’ argument is that, even if
§ 8005 authorized the transfers in question here, those
transfers nonetheless violated the Presentment Clause. In its
more limited form, the Organizations’ argument is that the
transfers violated the separation of powers, the Presentment
Clause, and the Appropriations Clause because the transfers
were not authorized by § 8005.

     I need not address whether the Organizations have an
equitable cause of action to assert the strong form of their
constitutional argument, because in my view that argument
on the merits is so “wholly insubstantial and frivolous” that
it would not even give rise to federal jurisdiction. Bell v.
Hood, 
327 U.S. 678
, 682–83 (1946); see also Steel 
Co.,
523 U.S. at 89
. If § 8005 allowed the transfers here, then that
necessarily means that the Executive has properly spent funds
that Congress, by statute, has appropriated and allowed to be
spent for that purpose. Cf. Lincoln v. Vigil, 
508 U.S. 182
,
192 (1993) (“allocation of funds from a lump-sum
appropriation is another administrative decision traditionally
regarded as committed to agency discretion”).               By
transferring funds after finding that the statutory conditions
for doing so are met, an agency thereby “execut[es] the policy
that Congress had embodied in the statute” and does not
unilaterally alter or repeal any law in violation of the
Presentment Clause or the separation of powers. See Clinton
v. City of New York, 
524 U.S. 417
, 444 (1998). If anything,
it is the Organizations’ theory—that the federal courts must
give effect to an alleged broader congressional judgment
against border funding regardless of whether that judgment
72                     SIERRA CLUB V. TRUMP

is embodied in binding statutory language—that would
offend separation-of-powers principles.

    That leaves only the more limited form of the
Organizations’ argument, which is that, if § 8005 did not
authorize the transfers, then the expenditures violated the
Appropriations Clause, the Presentment Clause, and the
separation of powers. Under Dalton v. Specter, 
511 U.S. 462
(1994), this theory—despite its constitutional garb—is
properly classified as “a statutory one,”
 id. at 474. 
It
therefore does not fall within the scope of the asserted non-
APA equitable cause of action to enjoin unconstitutional
conduct.13

    In Dalton, the Court addressed a non-APA claim to enjoin
Executive officials from implementing an allegedly
unconstitutional Presidential decision to close certain military
bases under the Defense Base Closure and Realignment Act
of 
1990. 511 U.S. at 471
.14 But the claim in Dalton was not
that the President had directly transgressed an applicable
constitutional limitation; rather, the claim was that, because
Executive officials “violated the procedural requirements” of
the statute on which the President’s decision ultimately
rested, the President thereby “act[ed] in excess of his
statutory authority” and therefore “violate[d] the


     13
        There remains the Organizations’ claim that statutory violations
may be enjoined under a non-APA ultra vires cause of action for equitable
relief, but that also fails for the reasons discussed below. See infra at
79–80.
     14
       The plaintiffs in Dalton also asserted a claim under the APA itself,
but that claim failed for the separate reason that the challenged final action
was taken by the President personally, and the President is not an
“agency” for purposes of the APA. 
See 511 U.S. at 469
.
                   SIERRA CLUB V. TRUMP                       73

constitutional separation-of-powers doctrine.”
 Id. at 471–72.
The Supreme Court rejected this effort to “eviscerat[e]” the
well-established “distinction between claims that an official
exceeded his statutory authority, on the one hand, and claims
that he acted in violation of the Constitution, on the other.”

Id. at 474 
(emphasis added). As the Court explained, its
“cases do not support the proposition that every action by the
President, or by another executive official, in excess of his
statutory authority is ipso facto in violation of the
Constitution.”
 

The Court distinguished
Youngstown Sheet & Tube Co. v. Sawyer, 
343 U.S. 579
(1952), on the ground that there “the Government disclaimed
any statutory authority for the President’s seizure of steel
mills,” and as a result the Constitution itself supplied the rule
of decision for determining the legality of the President’s
actions. 
Dalton, 511 U.S. at 473
. Because the “only basis of
authority asserted was the President’s inherent constitutional
power as the Executive and the Commander in Chief of the
Armed Forces,” Youngstown thus “necessarily turned on
whether the Constitution authorized the President’s actions.”

Id. (emphasis added). 
By contrast, given that the claim in
Dalton was that the President had violated the Constitution
because Executive officials had “violated the terms of the
1990 Act,” the terms of that statute provided the applicable
rule of decision and the claim was therefore “a statutory one.”

Id. at 474
. And because those claims sought to enjoin
conduct on the grounds that it violated statutory
requirements, it was subject to the “longstanding” limitation
that non-APA “review is not available when the statute in
question commits the decision to the discretion of the
President.”
 Id.

   Under Dalton, 
the Organizations’ purported
“constitutional” claims—at least in their more limited
74                 SIERRA CLUB V. TRUMP

version—are properly classified as statutory claims that do
not fall within any non-APA cause of action to enjoin
unconstitutional 
conduct. 511 U.S. at 474
. Here, as in
Dalton, Defendants have “claimed” the “statutory authority”
of § 8005, and any asserted violation of the Constitution
would occur only if, and only because, Defendants’ conduct
is assertedly not authorized by § 8005.
 Id. at 473. 
The rule
of decision for this dispute is thus not supplied, as in
Youngstown, by the Constitution; rather, it is supplied only by
§ 8005.
 Id. at 473–74. 
Because these claims by the
Organizations are thus “statutory” under Dalton, they may
only proceed, if at all, under an equitable cause of action to
enjoin ultra vires conduct, and they would be subject to any
limitations applicable to such claims.
 Id. at 474
. The
Organizations do assert such a fallback claim here, but it fails
for the reasons I explain below. See infra at 79–80.

                               b

    But even if the Organizations’ claims may properly be
classified as constitutional ones for purposes of the particular
equitable cause of action they invoke here, those claims
would still fail.

    To the extent that the Organizations argue that the
Constitution itself grants a cause of action allowing any
plaintiff with an Article III injury to sue to enjoin an alleged
violation of the Appropriations Clause, the Presentment
Clause, or the separation of powers, there is no support for
such a theory. None of the cases cited by the Organizations
involved putative plaintiffs, such as the Organizations here,
who are near the outer perimeter of Article III standing. On
the contrary, these cases involved either allegedly
unconstitutional agency actions directly targeting the
                   SIERRA CLUB V. TRUMP                       75

claimants, see Bond v. United States, 
564 U.S. 211
, 225–26
(2011) (criminal defendant challenged statute under which
she was convicted on federalism and separation-of-powers
grounds); United States v. McIntosh, 
833 F.3d 1163
, 1174–75
(9th Cir. 2016) (criminal defendants sought to enjoin, based
on an appropriations rider and the Appropriations Clause, the
Justice Department’s expenditure of funds to prosecute them),
or they involved a suit based on an express statutory cause of
action, see Clinton v. City of New 
York, 524 U.S. at 428
(noting that right of action was expressly conferred by
2 U.S.C. § 692(a)(1) (1996 ed.)).

    Moreover, the majority’s novel contention that the
Constitution requires recognizing, in this context, an
equitable cause of action that extends to the outer limits of
Article III cannot be squared with the Supreme Court’s
decision in Armstrong v. Exceptional Child Ctr., Inc.,
575 U.S. 320 
(2015). There, the Court rejected the view that
the Supremacy Clause itself created a private right of action
for equitable relief against preempted statutes, and instead
held that any such equitable claim rested on “judge-made”
remedies that are subject to “express and implied statutory
limitations.”
 

The Supremacy Clause provides
a particularly apt analogy here, because (like the
Appropriations Clause) the asserted “unconstitutionality” of
the challenged action generally depends upon whether it falls
within or outside the terms of a federal statute: a state statute
is “unconstitutional under the Supremacy Clause” only if it is
“contrary to federal law,” Burbank-Glendale-Pasadena
Airport Auth. v. City of Burbank, 
136 F.3d 1360
, 1361–62
(9th Cir. 1998), and here, the transfers violated the
Appropriations Clause only if they were barred by the
limitations in § 8005. And just as the Supremacy Clause
protects Congress’s “broad discretion with regard to the
76                     SIERRA CLUB V. TRUMP

enactment of laws,” 
Armstrong, 575 U.S. at 325
–26, so too
the Appropriations Clause protects “congressional control
over funds in the Treasury,” 
McIntosh, 833 F.3d at 1175
. It
is “unlikely that the Constitution gave Congress such broad
discretion” to enact appropriations laws only to
simultaneously “require[] Congress to permit the
enforcement of its laws” by any “private actor[]” with even
minimal Article III standing, thereby “limit[ing] Congress’s
power” to decide how “to enforce” the spending limitations
it enacts. 
Armstrong, 575 U.S. at 325
–26.15

    The Appropriations Clause thus does not itself create a
constitutionally required cause of action that extends to the
limits of Article III. On the contrary, any equitable cause of
action to enforce that clause would rest on a “judge-made”
remedy: as Armstrong observed, “[t]he ability to sue to enjoin
unconstitutional actions by state and federal officers is the
creation of courts of equity, and reflects a long history of
judicial review of illegal executive action, tracing back to
England.” 575 U.S. at 327
. At least where, as here, the
contours of the applicable constitutional line (under the

     15
        The majority asserts that Armstrong is distinguishable on the
grounds that the Appropriations Clause is supposedly more protective of
individual liberty than the Supremacy Clause. See Maj. Opin. at 30–31.
Nothing is cited to support this comparative assertion, which seems highly
doubtful: there is no reason to think that Congress’s ability, in the exercise
of its enumerated powers, to preempt potentially oppressive state laws is
any less protective of individual liberty than is Congress’s ability to insert
riders in appropriations bills. Moreover, to the extent that these clauses
protect individual liberty, they both do so only as a consequence of
protecting congressional authority within our overall constitutional
structure. Armstrong’s core point—that it would be “strange indeed” to
construe a clause that protects congressional power as simultaneously
saddling Congress with a particular enforcement method—remains
equally applicable to 
both. 575 U.S. at 326
.
                       SIERRA CLUB V. TRUMP                               77

Appropriations Clause) are defined by and parallel a statutory
line (under § 8005), any such judge-made equitable cause of
action would be subject to “express and implied statutory
limitations,” as well as traditional limitations governing such
equitable claims.
 Id.

    One long-established 
“‘judicially self-imposed limit[] on
the exercise of federal jurisdiction’”—including federal
equitable jurisdiction—is the requirement “that a plaintiff’s
grievance must arguably fall within the zone of interests
protected or regulated by the statutory provision or
constitutional guarantee invoked in the suit.” 
Bennett,
520 U.S. at 162 
(quoting Allen v. Wright, 
468 U.S. 737
, 751
(1984)). This limitation is not confined to the APA, but
rather reflects a “prudential standing requirement[] of general
application” that always “applies unless it is expressly
negated” by Congress.
 Id. at 163.16 
Because Congress has
not expressly negated that test in any relevant respect, the
Organizations’ equitable cause of action to enforce the
Appropriations Clause here remains subject to the zone-of-
interests test. Cf. Thompson v. North American Stainless, LP,

    16
       The majority wrongly contends that, by quoting this language from
Bennett, and stating that the zone-of-interests test therefore “applies to all
statutorily created causes of action,” 
Lexmark, 572 U.S. at 129 
(emphasis
added), the Court in Lexmark thereby intended to signal that the test only
applies to statutory claims and not to non-statutory equitable claims. See
Maj. Opin. at 36–37. Nothing in Lexmark actually suggests any such
negative pregnant; instead, the Court’s reference to “statutorily created
causes of action” reflects nothing more than the fact that only statutory
claims were before the Court in that case. 
See 572 U.S. at 129
. Moreover,
Lexmark notes that the zone-of-interests test’s roots lie in the common
law,
 id. at 130 
n.5, and Bennett (upon which Lexmark relied) states that
the test reflects a “prudential standing requirement[] of general
application” that applies to any “exercise of federal 
jurisdiction,” 520 U.S.
at 162
–63.
78                 SIERRA CLUB V. TRUMP

562 U.S. 170
, 176–77 (2011) (construing a cause of action as
extending to “any person injured in the Article III sense”
would often produce “absurd consequences” and is for that
reason rarely done). And given the unique nature of an
Appropriations Clause claim, as just discussed, the line
between constitutional and unconstitutional conduct here is
defined entirely by the limitations in § 8005, and therefore
the relevant zone of interests for the Organizations’
Appropriations-Clause-based equitable claim remains defined
by those limitations. Thus, contrary to the majority’s
conclusion, see Maj. Opin. at 39–40, the Organizations are
outside the applicable zone of interests for this claim as well.

    In arguing for a contrary view, the Organizations rely
heavily on United States v. McIntosh, asserting that there
we granted non-APA injunctive relief based on the
Appropriations Clause without inquiring whether the
claimants were within the zone of interests of the underlying
appropriations statute. McIntosh cannot bear the considerable
weight that the Organizations place on it.

    In McIntosh, we asserted interlocutory jurisdiction over
the district courts’ refusal to enjoin the expenditure of funds
to prosecute the defendants—an expenditure that allegedly
violated an appropriations rider barring the Justice
Department from spending funds to prevent certain States
from “‘implementing their own laws that authorize the use,
distribution, possession, or cultivation of medical
marijuana.’” 833 F.3d at 1175
; see also
 id. at 1172–73. 
We
held that the defendants had Article III standing and that, if
the Department was in fact “spending money in violation” of
that rider in prosecuting the defendants, that would produce
a violation of the Appropriations Clause that could be raised
by the defendants in challenging their prosecutions.
 Id.
                  SIERRA CLUB 
V. TRUMP                      79

at 1175. After construing the meaning of the rider, we then
remanded the matter for a determination whether the rider
was being violated.
 Id. at 1179. 
Contrary to the
Organizations’ dog-that-didn’t-bark theory, nothing can be
gleaned from the fact that the zone-of-interests test was never
discussed in McIntosh. See Cooper Indus., Inc. v. Aviall
Servs, Inc., 
543 U.S. 157
, 170 (2004) (“‘Questions which
merely lurk in the record, neither brought to the attention of
the court nor ruled upon, are not to be considered as having
been so decided as to constitute precedents.’”) (quoting
Webster v. Fall, 
266 U.S. 507
, 511 (1925)). Moreover, any
such silence seems more likely to have been due to the fact
that it was so overwhelmingly obvious that the defendants
were within the rider’s zone of interests that the point was
incontestable and uncontested. An asserted interest in not
going to prison for complying with state medical-marijuana
laws seems well within the zone of interests of a statute
prohibiting interference with the implementation of such state
laws.

                              2

    The only remaining question is whether the Organizations
may evade the APA’s zone-of-interests test by asserting a
non-APA claim for ultra vires conduct in excess of statutory
authority. Even assuming that such a cause of action exists
alongside the APA, cf. Trudeau v. Federal Trade Comm’n,
456 F.3d 178
, 189–90 (D.C. Cir. 2006), I conclude that it
would be subject to the same zone-of-interests limitations as
the Organizations’ APA claims and therefore likewise fails.

    For the same reasons discussed above, any such equitable
cause of action rests on a judge-made remedy that is subject
to the zone-of-interests test. See supra at 74–79. The
80                     SIERRA CLUB V. TRUMP

Organizations identify no case from the Supreme Court or
this court affirmatively holding that the zone-of-interests test
does not apply to a non-APA equitable cause of action to
enjoin conduct allegedly in excess of express statutory
limitations on statutory authority, and I am aware of none.
Indeed, it makes little sense, when evaluating a claim that
Executive officials exceeded the limitations in a federal
statute, not to ask whether the plaintiff is within the zone of
interests protected by those statutory limitations. Cf. Haitian
Refugee Ctr. v. Gracey, 
809 F.2d 794
, 811 n.14 (D.C. Cir.
1987) (although plaintiff asserting ultra vires claim may not
need to show that its interests “fall within the zones of
interests of the constitutional and statutory powers invoked”
by Executive officials, when “a particular constitutional or
statutory provision was intended to protect persons like the
litigant by limiting the authority conferred,” then “the
litigant’s interest may be said to fall within the zone protected
by the limitation”) (emphasis added).17 Here, those
limitations are supplied by § 8005, and the Organizations are
not within the zone of interests of that statute. 18


     17
       The majority thus relies on the wrong portion of Judge Bork’s
opinion in Haitian Refugee Center. See Maj. Opin. at 37–39. This case
turns on a “statutory provision” that “limit[s] the authority 
conferred.”
809 F.2d at 811 
n.14. If the Executive had contended that it had power to
transfer the funds regardless of § 8005, then this case would look more
like Youngstown, but no such extravagant claim has been pressed in this
case. On the contrary, Defendants concede that, if the requirements of
§ 8005 were not met, then the transfers were unlawful.
     18
      Even if the Organizations were correct that the zone-of-interests test
does not apply to a non-APA equitable cause of action, that would not
necessarily mean that such equitable jurisdiction extends, as the
Organizations suggest, to the outer limits of Article III. Declining to apply
the APA’s generous zone-of-interests test might arguably render
applicable the sort of narrower review of agency action that preceded the
                     SIERRA CLUB V. TRUMP                           81

                             *    *    *

     Given that each of the Organizations’ asserted theories
fail, the Organizations lack any cause of action to challenge
the DoD’s transfer of funds under § 8005.

                                 IV

    Alternatively, even if the Organizations had a cause of
action, their claims would fail on the merits, because the
challenged transfers did not violate § 8005 or § 9002. In the
companion appeal, California v. Trump, the majority
concluded that § 8005 and § 9002 did not authorize the
transfers at issue, and I concluded that these provisions did
authorize the transfers. Just as the majority “reaffirm[s] this
holding here and conclude[s] that Section 8005 did not
authorize the transfer of funds,” Maj. Opin. at 24, I reaffirm
my previous conclusion that § 8005 and § 9002 authorized
the transfers.

                                  V

    Based on the foregoing, I conclude that at least the Sierra
Club has Article III standing, but that the Organizations lack
any cause of action to challenge these § 8005 and § 9002
transfers. Alternatively, if the Organizations did have a cause
of action, their claims fail on the merits as a matter of law
because the transfers complied with the limitations in § 8005
and § 9002. I therefore would reverse the district court’s
partial grant of summary judgment to the Organizations and
would remand the matter with instructions to grant


APA standards articulated in Data 
Processing, 397 U.S. at 153
. See also
Clarke, 479 U.S. at 400 
n.16.
82              SIERRA CLUB V. TRUMP

Defendants’ motion for summary judgment on this set of
claims. Because the majority concludes otherwise, I
respectfully dissent.