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In the United States Court of Appeals for the Ninth Circuit Case: 19-16102, 06/11/2019, ID: 11326807, DktEntry: 32, Page 1 of 21 No. 19-16102 In the United States Court of Appeals for the Ninth Circuit SIERRA CLUB, ET AL., Plaintiffs-Appellees, v. DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, ET AL., Defendants-Appellants. On Appeal from the United States District Court for the Northern District of California Case No. 19-cv-00092-HSG BRIEF OF AMICI CURIAE FEDERAL COURTS SCHOLARS IN OPPOSITION TO DEFENDANTS’ MOTION FOR A STAY Elizabeth B. Wydra Brianne J. Gorod Brian R. Frazelle Ashwin P. Phatak CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th St., NW, Suite 501 Washington, DC 20036 (202) 296-6889 [email protected] Case: 19-16102, 06/11/2019, ID: 11326807, DktEntry: 32, Page 2 of 21 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................. ii INTEREST OF AMICI CURIAE ............................................................ 1 INTRODUCTION AND SUMMARY OF ARGUMENT ..................... 1 ARGUMENT .......................................................................................... 3 I. COURTS MAY GRANT EQUITABLE RELIEF WHERE PLAINTIFFS CHALLENGE EXECUTIVE ACTION AS ULTRA VIRES .......................................................................... 3 II. PLAINTIFFS SEEKING TO ENJOIN ULTRA VIRES ACTION NEED NOT SATISFY A ZONE-OF-INTERESTS TEST ....................................................................................... 7 CONCLUSION ....................................................................................... 14 i Case: 19-16102, 06/11/2019, ID: 11326807, DktEntry: 32, Page 3 of 21 TABLE OF AUTHORITIES Page(s) CASES Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) .................................................................................. 5 Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) ........................................................................ 2, 3, 7, 9, 10 Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563 (1939) ................................................................................ 11 Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318 (1977) ................................................................................ 12 Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667 (1986) ................................................................................ 2 Carroll v. Safford, 44 U.S. 441 (1845) .................................................................................. 5, 7 Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) ................................................................ 9 Dames & Moore v. Regan, 453 U.S. 654 (1981) ................................................................................ 6 Data Processing Service v. Camp, 397 U.S. 150 (1970) ................................................................................ 12 Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308 (1999) ................................................................................ 3, 9, 11 Haitian Refugee Ctr. v. Gracey, 809 F.2d 794 (D.C. Cir. 1987) ................................................................ 11 Harmon v. Brucker, 355 U.S. 579 (1958) ................................................................................ 6 Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) ................................................................... 10 Kendall v. United States ex rel. Stokes, 37 U.S. 524 (1838) .................................................................................. 5 Land v. Dollar, 330 U.S. 731 (1947) ................................................................................ 7 ii Case: 19-16102, 06/11/2019, ID: 11326807, DktEntry: 32, Page 4 of 21 TABLE OF AUTHORITIES – cont’d Page(s) Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ................................................................................ 7 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) ............................................................................. 8, 9, 13, 14 Marbury v. Madison, 5 U.S. 137 (1803) .................................................................................... 4, 5 Oestereich v. Selective Serv. Sys. Local Bd. No. 11, 393 U.S. 233 (1968) ................................................................................ 7 Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. 518 (1851) .................................................................................. 3 Ray Charles Found. v. Robinson, 795 F.3d 1109 (9th Cir. 2015)................................................................. 9, 12 Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993) ................................................................................ 7 Santa Fe Pac. R.R. Co. v. Payne, 259 U.S. 197 (1922) ................................................................................ 7 Stark v. Wickard, 321 U.S. 288 (1944) ................................................................................ 7 Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) ................................................................................ 8, 9 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ................................................................................ 6 Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ............................................................................ 13 CONSTITUTIONAL PROVISIONS AND LEGISLATIVE MATERIALS Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73 ............................................ 4 U.S. Const. art. III, § 2, cl. 1 ....................................................................... 4 iii Case: 19-16102, 06/11/2019, ID: 11326807, DktEntry: 32, Page 5 of 21 TABLE OF AUTHORITIES – cont’d Page(s) BOOKS, ARTICLES, AND OTHER AUTHORITIES Louis Jaffe & Edith Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956) .......................................... 3 W. Keeton et al., Prosser and Keeton on Law of Torts § 36 (5th ed. 1984) ........................................................................................................ 14 James E. Pfander, Sovereign Immunity and the Right To Petition, 91 Nw. U. L. Rev. 899 (1997) .................................................................................. 4 John F. Preis, In Defense of Implied Injunctive Relief in Constitutional Cases, 22 Wm. & Mary Bill of Rts. J. 1 (2013) ................................................. 3 Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 Colum. L. Rev. 1612 (1997) ................................................................... 4 11A Charles Alan Wright et al., Federal Practice and Procedure § 2941 (2d ed. 1995) .................................................................................................. 9 iv Case: 19-16102, 06/11/2019, ID: 11326807, DktEntry: 32, Page 6 of 21 INTEREST OF AMICI CURIAE1 Amici curiae are leading scholars with expertise in the jurisdiction of the federal courts, including expertise pertaining to the government’s argument that courts cannot hear this case because Plaintiffs have not pointed to a statutory cause of action. Amici curiae are: • Erwin Chemerinsky, Dean, Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley Law • Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School • David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic, University of Chicago Law School • Stephen I. Vladeck, A. Dalton Cross Professor in Law, University of Texas School of Law INTRODUCTION AND SUMMARY OF ARGUMENT On February 15, 2019, following months of trying to secure funding from Congress to build a wall along the southern border, President Trump issued an order declaring a “national emergency” and directing that funds Congress appropriated for other purposes be diverted to build the wall. Plaintiffs challenged that order and its 1 No person or entity other than amici and their counsel assisted in or made a monetary contribution to the preparation or submission of this brief. Counsel for all parties have consented to the filing of this brief. 1 Case: 19-16102, 06/11/2019, ID: 11326807, DktEntry: 32, Page 7 of 21 implementation, arguing that this diversion of funds exceeds the President’s authority under various federal laws. They also sought a preliminary injunction, which the district court granted in part. Order 55. The government now seeks a stay pending appeal and argues, among other things, that Plaintiffs may not sue because the statute at issue “contains no express cause of action.” Mot. 9. It further argues that even if “an implied cause of action in equity” were available, “these plaintiffs fall outside the zone of interests protected” by the statute at issue. Id. Both arguments are wrong. First, “equitable relief . is traditionally available to enforce federal law,” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1385-86 (2015), and even in the absence of a statutory cause of action, the federal courts are empowered to provide redress where the executive illegally exceeds its authority. See, e.g., Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 (1986) (“We ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that
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