FIRST CAUSE OF ACTION
(Non-statutory review of ultra vires action; violation of separation of powers)
53. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful ofï¬cial action that is ultra vires.
54. Article I, Section l of the Constitution assigns the role of making laws to Congress,and Article I, Section 9 speciï¬es that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.â€
55. Federal legislation, including laws appropriating money, must be passed by both chambers of Congress before it may be presented to the President and, if signed, become law. U.S. Const., art. I.
56. In 2017 and 2018, Congress declined to appropriate money for a border wall.
57. The Constitution vests executive power in the President. U.S. Const., art. II. The President of the United States has only those powers conferred on him by the Constitution and federal statutes.
58. The president has no inherent authority to declare emergencies to override appropriations laws and other laws enacted by Congress; his emergency powers are deï¬ned and limited by statute.
59. Because no national emergency exists with respect to immigration across the southern border, the President’s Declaration exceeds the limited authority delegated to the President to declare national emergencies and invoke speciï¬c statutory powers conferred by Congress to act in such an emergency.
60. Because the emergency declaration is unlawful, the President lacks statutory authority to direct the spending of funds for that purpose; the expenditure of monies from the United States Treasury for a border wall for which Congress has refused to appropriate funds violates Article I of the Constitution.
61. Because no national emergency exists with respect to immigration across the southem border, the President’s invocation of emergency powers through the Declaration usurps legislative authority conferred by the Constitution on the Congress.
62. The Declaration and invocation of emergency powers pursuant to the Declaration violate the separation of powers.
63. Plaintiffs and members of Frontera Audubon will suffer irreparable injury if the Declaration and invocation of authority under 10 U.S.C. § 2808 are not declared unlawful, and plaintiffs and members of F rontera Audubon have no adequate remedy at law.
SECOND CAUSE OF ACTION
(Non-statutory review of ultra vires action; violation of separation of powers)
64. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful ofï¬cial action that is ultra vires.
65. In the Declaration, the President declared that the “emergency†requires use of theArmed Forces and invoked the construction authority provided by 10 U.S.C. § 2808.66. Because the requirements for invocation of 10 U.S.C. § 2808 are not satisï¬ed, reliance on section 2808 to authorize use of funds appropriated for other purposes usurps legislative authority conferred by the Constitution on the Congress.
67. President’s direction to use the authority set forth in 10 U.S.C. § 2808 for the purpose of constructing a border wall is ultra vires and violates the separation of powers.
68. Plaintiffs and members of Frontcra Audubon will suffer irreparable injury if the invoke l0 U.S.C. § 2808 is not declared unlawful, and plaintiffs and members of Frontera Audubon have no adequate remedy at law.
THIRD CAUSE OF ACTION
(Non-statutory review of ultra vires action; violation of separation of powers)
69. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful ofï¬cial action that is ultra vires.
70. Because transferring funds to construct a border wall is not authorized by 10 U.S.C.§ 284, the President’s direction to use Defense Department funds appropriated for other purposes for the purpose of constructing a border wall directs action contrary to law and usurps legislative authority conferred by the Constitution on the Congress.
71. The President’s direction to transfer funds pursuant to 10 U.S.C. § 284 for the purpose of constructing a border wall is ultra vires and violates the separation of powers.
72. Plaintiffs and members of Frontera Audubon will suffer irreparable injury if the direction to transfer funds pursuant to 10 U.S.C. § 284 is not declared unlawful, and plaintiffs and members of Frontera Audubon have no adequate remedy at law.
FOURTH CAUSE OF ACTION
(Non-statutory review of ultra vires action by defendant Secretary of Defense)
73. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful ofï¬cial action that is ultra vires.
74. The Secretary of Defense may act only pursuant to authority lawfully delegated by Congress or the President.
75. When declaring a national emergency, the President declared that the “enlergency†requires use of the Armed Forces and invoked the construction authority provided by 10 U.S.C.§ 2808.
76. Because the requirements for invocation of 10 U.S.C. § 2808 are not satisï¬ed, reliance on section 2808 to authorize use of funds appropriated for other purposes usurps legislative authority conferred by the Constitution on the Congress.
77. Use of military construction funds pursuant to 10 U.S.C. § 2808 to construct a border wall violates the separation of powers.
78. Plaintiffs and members of Frontera Audubon will suffer irreparable injury if the Secretary of Defense takes action to build a wall in reliance on the Declaration or in implementing the President’s direction to use military construction funds pursuant to l0 U.S.C. § 2808, and plaintiffs and members of Frontera Audubon have no adequate remedy at law.
FIFTH CAUSE OF ACTION
(Non-statutory review of ultra vires action by defendant Secretary of Defense)
79. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful ofï¬cial action that is ultra vires.
80. The Secretary of Defense may act only pursuant to authority lawfully delegated by Congress or the President.
81. Because transferring funds to construct a border wall is not authorized by 10 U.S.C. § 284, implementation of the President’s direction to do so would exceed the authority of the Secretary of Defense under that statute, and would be ultra vires, arbitrary, capricious, and contrary to law.
82. Plaintiffs and members of Frontera Audubon will suffer irreparable injury if the Secretary of Defense takes action to build a Wall in reliance on the Declaration or in implementing the President’s direction to transfer funds pursuant to 10 U.S.C. § 284, and plaintiffs and members of Frontera Audubon have no adequate remedy at law.
