State of California et al v. Trump et al

Filing 115

Consent MOTION for Leave to File Memorandum as Amici Curiae in Support of Plaintiffs Motion for a Preliminary Injunction filed by Former U.S. Government Officials. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Hartnett, Kathleen) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF).

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Harold Hongju Koh (pro hac vice forthcoming)
RULE OF LAW CLINIC
Yale Law School
127 Wall Street, P.O. Box 208215
New Haven, CT 06520
Telephone:
[phone]
Email:
[e-mail]

Kathleen R. Hartnett (SBN 314267)
BOIES SCHILLER FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, CA 94612
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
Phil Spector (pro hac vice forthcoming)
MESSING & SPECTOR LLP
1200 Steuart Street, #2112
Baltimore, MD 21230
Telephone:
[phone]
Email:
[e-mail]

Counsel for Amici Curiae Former U.S. Government Officials

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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STATE OF CALIFORNIA, et al.,

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Plaintiffs,
vs.
DONALD J. TRUMP, President of the
United States, in his official capacity, et al.,
Defendants.

Case No. 4:19-cv-00872-HSG
BRIEF OF FORMER U.S. GOVERNMENT
OFFICIALS AS AMICI CURIAE IN SUPPORT
OF PLAINTIFFS’ MOTION FOR A
PRELIMINARY INJUNCTION
Judge:
P.I. Hearing Date:
Time:
Courtroom:

Hon. Haywood S. Gilliam, Jr.
May 17, 2019
10:00 a.m.
2, 4th Floor

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TABLE OF CONTENTS

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INTEREST OF AMICI CURIAE ..................................................................................................... 1 

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ARGUMENT .................................................................................................................................. 1 

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I. 

Illegal border crossings have been near historic lows. ............................................ 2 

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II. 

The recent increase in crossings does not present a national
emergency................................................................................................................ 2 

III. 

There is no evidence of a terrorist or national security emergency at
the southern border. ................................................................................................. 3 

IV. 

There is no emergency related to violent crime at the southern
border. ...................................................................................................................... 4 

V. 

There is no human or drug trafficking emergency that can be
addressed by a wall at the southern border. ............................................................. 5 

VI. 

This proclamation will only exacerbate the humanitarian concerns
that do exist at the southern border.......................................................................... 6 

VII. 

Redirecting funds for the claimed “national emergency” will
undermine U.S. national security and foreign policy interests. ............................... 7 

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VIII.  The situation at the border does not require the use of the armed
forces, and a wall is unnecessary to support the use of the armed
forces. ...................................................................................................................... 8 
IX. 

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There is no basis for circumventing the appropriations process with
a declaration of a national emergency at the southern border. ................................ 9 

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CONCLUSION ............................................................................................................................. 10 

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APPENDIX - List of Amici Curiae ............................................................................................... 11 

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TABLE OF AUTHORITIES

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Other Authorities 

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2018 National Drug Threat Assessment
U.S. Department of Just. Drug Enforcement Admin. (2018) .................................................. 5, 6

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Alex Nowrasteh
Criminal Immigrants in Texas: Illegal Immigrant Conviction and Arrest Rates for
Homicide, Sex Crimes, Larceny, and Other Crimes
Cato Inst. (Feb. 26, 2018) ............................................................................................................ 5
Alex Nowrasteh
Sending Troops to the Border Is Unnecessary and Dangerous
Cato Inst. (Apr. 4, 2018).............................................................................................................. 8
Alex Nowrasteh
Trump’s Wall Will Not Stop Terrorism
Cato Inst. (Dec. 18, 2018) ........................................................................................................... 3
Ames Grawert & Cameron Kimble
Crime in 2018: Updated Analysis, Brennan Ctr. for Just. (Dec. 18, 2018)................................. 5
Ashley Roque
Readiness Questions Abound, the Pentagon Prepares To Send Thousands of Additional
Troops to Border
Jane’s Defence Wkly. (Jan. 29, 2019) ......................................................................................... 7
Betsy Klein
Pence Misleadingly Cites Some Statistics to Push Trump Border Wall
CNN (Jan. 8, 2019, 5:46 PM) ...................................................................................................... 4
Brett Samuels
Conway: Sarah Sanders Made ‘Unfortunate Misstatement’ About Terror Suspects at
Border
Hill (Jan. 8, 2019, 10:30 AM) ..................................................................................................... 4
Claudia Grisales
Trump Declares Emergency on Southern Border, Opens Battle Over Use of Military
Funds To Build Wall
Stars & Stripes (Feb. 15, 2019) ................................................................................................... 7
Congressional Border Security Briefing: A Border Security and Humanitarian Crisis
White House (Jan. 4, 2019) ......................................................................................................... 4
Gen. Robert Neller, Commandant, U.S. Marine Corp.
Memorandum to Richard V. Spencer, Sec’y, U.S. Navy (Mar. 18, 2019)
https://www.latimes.com/nation/politics/la-marine-corps-commandant-memos20190321-story.html ................................................................................................................... 7
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Gustavo Solis
Drug Smuggling, and the Endless Battle To Stop It
USA Today (last visited Feb. 18, 2019) ...................................................................................... 6
Heather Timmons
The US Border Situation Isn’t a National Emergency, Pentagon Officials Tell Congress
Quartz (Jan. 29, 2019) ................................................................................................................. 9
Holly Rosenkrantz
Sanders Repeats Claim on Terrorists at the Border Refuted by Administration’s Own
Data
CBS News (Jan. 7, 2019, 3:28 PM) ............................................................................................ 4
Holly Yan
The Deadly Toll of Human Smuggling and Trafficking in the U.S.
CNN (July 28, 2017, 3:45 PM) ................................................................................................... 6
Jeffrey S. Passel & D’Vera Cohn
U.S. Unauthorized Immigrant Total Dips to Lowest Level in a Decade
Pew Res. Ctr. (Nov. 27, 2018) .................................................................................................... 2
Jenna Krajeski
The Hypocrisy of Trump’s Anti-Trafficking Argument for a Border Wall
New Yorker (Feb. 5, 2019) ......................................................................................................... 6
Joe Ward & Anjali Singhvi
Trump Claims There Is a Crisis at the Border. What’s the Reality?
N.Y. Times (Jan. 11, 2019) ......................................................................................................... 5
John Gramlich
5 Facts About Crime in the U.S.
Pew Res. Ctr. (Jan. 3, 2019) ........................................................................................................ 5
Julia Ainsley
Only Six Immigrants in Terrorism Database Stopped by CBP at Southern Border from
October to March
NBC News (Jan. 7, 2019, 4:10 PM) ............................................................................................ 4
Leo Shane III
Democrats Want To Know Why Active-Duty Troops Are Still on the Southern US
Border
Mil. Times (Jan. 29, 2019) .......................................................................................................... 7
Michael T. Light & Ty Miller
Does Undocumented Immigration Increase Violent Crime?
56 Criminology 370 (2018) ......................................................................................................... 5

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Michaelangelo Landgrave & Alex Nowrasteh
Criminal Immigrants in 2017: Their Numbers, Demographics, and Countries of Origin
Cato Inst. (Mar. 4, 2019) ............................................................................................................. 5
Michelangelo Landgrave & Alex Nowrasteh
Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin
Cato Inst. (Mar. 15, 2017) ........................................................................................................... 4
Noah Gray
Acting U.S. Defense Secretary Will Review Programs To Cut for Wall Funding
CNN (Feb. 17, 2019) ................................................................................................................. 10
Press Release, Dep’t of Homeland Security
DOJ, DHS Report: Three Out of Four Individuals Convicted of International Terrorism
and Terrorism-Related Offenses were Foreign-Born (Jan. 16, 2018) ......................................... 4
Press Release, Sen. Lamar Alexander
Statement on National Emergency Announcement (Feb. 15, 2019) ........................................... 9
Press Release, Sen. Mitt Romney
Statement on Spending, Border Security Deal (Feb. 14, 2019) .................................................. 9
Press Release, Sen. Susan Collins
Statement on Reports President Trump Will Declare National Emergency To Fund
More Border Walls (Feb. 14, 2019) ............................................................................................ 9
Remarks by President Trump on the National Security and Humanitarian Crisis on our
Southern Border
White House (Feb. 15, 2019) ...................................................................................................... 9
Richard Gonzales
For 7th Consecutive Year, Visa Overstays Exceeded Illegal Border Crossings
NPR (Jan. 16, 2019, 7:02 PM) .................................................................................................... 2
Thomas Gibbons-Neff & Helene Cooper
Impact of Border Deployments Is Felt by Troops at Home and Away, N.Y. Times (Dec.
24, 2018) ...................................................................................................................................... 7
U.S. Border Patrol
Southwest Border Sectors
https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-southwestborder-sector-apps-fy1960-fy2018.pdf ....................................................................................... 2
U.S. Customs & Border Protection
Total Illegal Alien Apprehensions by Month
https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthlyapps-sector-area-fy2018.pdf ........................................................................................................ 2

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U.S. Customs & Border Protection
United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien
Children Apprehensions Fiscal Year 2016
https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy2016 ............................................................................................................................................. 3
U.S. Customs and Border Protection
Southwest Border Migration FY 2019
https://www.cbp.gov/newsroom/stats/sw-border-migration ....................................................... 3
U.S. Dep’t of State
Country Reports on Terrorism 2017 (Sept. 2018) ....................................................................... 3
U.S. Department of Homeland Security
Department of Homeland Security Border Security Metrics Report 13 (May 1, 2018)
https://www.dhs.gov/sites/default/files/publications/BSMR_OIS_2016.pdf.............................. 2
U.S. Department of Homeland Security
Myth/Fact: Known and Suspected Terrorists/Special Interest Aliens
(Jan. 7, 2019) ............................................................................................................................... 4

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BRIEF OF FORMER U.S. GOV’T OFFICIALS AS AMICI CURIAE
IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
CASE NO. 4:19-cv-00872-HSG

INTEREST OF AMICI CURIAE1

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Amici curiae, listed in the Appendix to this brief, are sixty-two former officials in the U.S.

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government who have worked on national security and homeland security issues from the White

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House as well as agencies across the Executive Branch. They have served in senior leadership

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roles in administrations of both major political parties, and collectively they have devoted a great

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many decades to protecting the security interests of the United States. They have held the highest

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security clearances, and participated in the highest levels of policy deliberations on a broad range

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of issues. These include: immigration, border security, counterterrorism, military operations, and

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our nation’s relationship with other countries, including those south of the U.S. border.
Amici respectfully submit this brief because, in their professional opinion, there is no

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factual basis for the declaration of a national emergency for the purpose of circumventing the

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appropriations process and reprogramming billions of dollars in funding to construct a wall at the

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southern border, as directed by the Presidential Proclamation of February 15, 2019.
ARGUMENT

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On February 15, 2019, the President declared a “national emergency” for the purpose of

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diverting appropriated funds from previously designated uses to build a wall along the southern

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border. Amici are aware of no emergency that remotely justifies such a step. The President’s

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actions are at odds with the overwhelming evidence in the public record, including the

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administration’s own data and estimates. Amici have lived and worked through national

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emergencies and support the President’s power to mobilize the Executive Branch to respond

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quickly in genuine national emergencies. But under no plausible assessment of the evidence is

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there a national emergency today that entitles the President to tap into funds appropriated for

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other purposes to build a wall at the southern border, which will take many years to complete. To

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Amici’s knowledge, the President’s assertion of a national emergency here is unprecedented, in

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Amici affirm that no counsel for any party authored this brief in whole or in part; no party or
party’s counsel contributed money intended to fund preparing or submitting the brief; and no
person, other than amici, their members, and counsel, contributed money that was intended to
fund preparing or submitting this brief. The views expressed by Yale Law School’s legal clinics
are not necessarily those of the Yale Law School.
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that he seeks to address a situation: (1) that has been enduring, rather than one that has arisen

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suddenly; (2) that in fact has improved over time rather than deteriorated; (3) by reprogramming

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billions of dollars in funds in the face of clear congressional intent to the contrary; and (4) with

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assertions that are rebutted not just by the public record, but by his agencies’ own official data,

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documents, and statements.

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I.

Illegal border crossings have been near historic lows.

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According to the administration’s own data, the numbers of apprehensions at the southern

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border through the end of fiscal year 2018 were near forty-year lows.2 There was a modest

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increase in apprehensions in 2018, but that total was in line with the number of apprehensions

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only two years earlier,3 and the overall trend continued to exhibit a dramatic decline over the last

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fifteen years in particular. The number of undetected unlawful entries at the southern border also

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fell from about 851,000 to nearly 62,000 between fiscal years 2006 to 2016, the most recent year

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for which data are publicly available.4 The United States hosts what is estimated to be the

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smallest number of undocumented immigrants since 2004.5 And, in recent years, the majority of

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currently undocumented immigrants entered the United States legally, but overstayed their visas,6

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a problem that will not be addressed by a declaration of an emergency along the southern border.

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II.

The recent increase in crossings does not present a national emergency.

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The last couple of months have seen a sharp rise in the number of individuals apprehended

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U.S. Border Patrol, Southwest Border Sectors,
https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-southwest-border-sectorapps-fy1960-fy2018.pdf.
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Id. (noting 396,579 southwest border apprehensions during FY 2018, 408,870 during FY 2016,
and 479,371 in FY 2014); see also U.S. Customs & Border Protection, Total Illegal Alien
Apprehensions by Month, https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bptotal-monthly-apps-sector-area-fy2018.pdf (466,623 southwest border apprehensions during CY
2018, 442,940 during CY 2016, and 458,745 during CY 2014).
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U.S. Dep’t of Homeland Security, Dep’t of Homeland Security Border Security Metrics
Report 13 (May 1, 2018),
https://www.dhs.gov/sites/default/files/publications/BSMR_OIS_2016.pdf.
5
Jeffrey S. Passel & D’Vera Cohn, U.S. Unauthorized Immigrant Total Dips to Lowest Level in a
Decade, Pew Res. Ctr. (Nov. 27, 2018).
6
Richard Gonzales, For 7th Consecutive Year, Visa Overstays Exceeded Illegal Border
Crossings, NPR (Jan. 16, 2019, 7:02 PM) (noting “that from 2016-2017, people who overstayed
their visas accounted for 62 percent of the newly undocumented, while 38 percent had crossed a
border illegally”).
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at the southern border relative to previous years. This change is due to an increase in the number

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of families and unaccompanied children turning themselves in to border officials for asylum.

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Family units and unaccompanied children comprised 67 percent of apprehensions at the southern

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border in March 2019, compared to 9 percent in March 2012.7 Further, many asylum seekers are

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forced to seek asylum between ports of entry, where they are counted as apprehensions, because

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this administration has placed a strict cap on asylum entrants at ports of entry. These events have

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placed a great strain on the capacity of our border system—which is equipped to address

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individuals who are covertly crossing the border for work, rather than families and children

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openly seeking asylum—and will require an investment of resources. But the administration

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cannot explain how this rise and redirection of asylum seekers presents a security emergency,

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much less a situation that would be solved with a wall.

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III.

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There is no reason to believe there is a terrorist or national security emergency at the

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There is no evidence of a terrorist or national security emergency at the
southern border.

southern border that could justify the President’s proclamation.
a.

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This administration’s own most recent Country Report on Terrorism, released only

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five months ago, found that “there was no credible evidence indicating that international terrorist

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groups have established bases in Mexico, worked with Mexican drug cartels, or sent operatives

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via Mexico into the United States.”8 Since 1975, there has been only one reported incident in

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which immigrants who had crossed the southern border illegally attempted to commit a terrorist

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act. That incident occurred more than twelve years ago, and involved three brothers from

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Macedonia who had been brought into the United States as children more than twenty years

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earlier.9

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U.S. Customs & Border Protection, United States Border Patrol Southwest Family Unit Subject
and Unaccompanied Alien Children Apprehensions Fiscal Year 2016,
https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016 (last
visited Apr. 9, 2019); U.S. Customs and Border Protection, Southwest Border Migration FY
2019, (https://www.cbp.gov/newsroom/stats/sw-border-migration) (last visited Apr. 9, 2019).
8
U.S. Dep’t of State, Country Reports on Terrorism 2017, at 205 (Sept. 2018).
9
See Alex Nowrasteh, Trump’s Wall Will Not Stop Terrorism, Cato Inst. (Dec. 18, 2018).
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b.

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Although the White House has claimed, as an argument favoring a wall at the

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southern border, that almost 4,000 known or suspected terrorists were intercepted at the southern

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border in a single year,10 this assertion has since been widely and consistently repudiated,

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including by this administration’s own Department of Homeland Security.11 The overwhelming

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majority of individuals on terrorism watchlists who were intercepted by U.S. Customs and Border

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Patrol were attempting to travel to the United States by air;12 of the individuals on the terrorist

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watchlist who were encountered while entering the United States during fiscal year 2017, only 13

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percent traveled by land.13 And for those who have attempted to enter by land, only a small

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fraction do so at the southern border. Between October 2017 and March 2018, forty-one foreign

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immigrants on the terrorist watchlist were intercepted at the northern border.14 Only six such

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immigrants were intercepted at the southern border.15

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IV.

There is no emergency related to violent crime at the southern border.

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Nor can the administration justify its actions on the grounds that the incidence of violent

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crime on the southern border constitutes a national emergency. Factual evidence consistently

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shows that unauthorized immigrants have no special proclivity to engage in criminal or violent

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behavior. According to a Cato Institute analysis of criminological data, undocumented

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immigrants are 49 percent less likely to be incarcerated nationwide than are native-born citizens.16

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See Congressional Border Security Briefing: A Border Security and Humanitarian Crisis,
White House (Jan. 4, 2019); Holly Rosenkrantz, Sanders Repeats Claim on Terrorists at the
Border Refuted by Administration’s Own Data, CBS News (Jan. 7, 2019, 3:28 PM). Vice
President Mike Pence made similar statements during his appearance on ABC the next week. See
Betsy Klein, Pence Misleadingly Cites Some Statistics to Push Trump Border Wall, CNN (Jan. 8,
2019, 5:46 PM).
11
See U.S. Dep’t of Homeland Security, Myth/Fact: Known and Suspected Terrorists/Special
Interest Aliens (Jan. 7, 2019); see also, e.g., Brett Samuels, Conway: Sarah Sanders Made
‘Unfortunate Misstatement’ About Terror Suspects at Border, Hill (Jan. 8, 2019, 10:30 AM).
12
See U.S. Dep’t of Homeland Security, supra note 11.
13
See Press Release, Dep’t of Homeland Security, DOJ, DHS Report: Three Out of Four
Individuals Convicted of International Terrorism and Terrorism-Related Offenses were ForeignBorn (Jan. 16, 2018).
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See Julia Ainsley, Only Six Immigrants in Terrorism Database Stopped by CBP at Southern
Border from October to March, NBC News (Jan. 7, 2019, 4:10 PM).
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See id.
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Michelangelo Landgrave & Alex Nowrasteh, Criminal Immigrants: Their Numbers,
Demographics, and Countries of Origin, Cato Inst. (Mar. 15, 2017).
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A recent longitudinal study across all fifty states and the District of Columbia that

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examined the period between 1990 and 2014 found a “generally negative” relationship between

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the presence of undocumented immigrants and violent crime.17 And in Texas, the state with the

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best data availability, undocumented immigrants were found to have a first-time conviction rate

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32 percent below that of native-born Americans,18 and the conviction rates of unauthorized

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immigrants for violent crimes such as homicide and sex offenses were also below those of native-

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born Americans.19 Meanwhile, overall rates of violent crime in the United States have declined

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significantly over the past 25 years, falling 49 percent from 1993 to 2017.20 And violent crime

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rates in the country’s 30 largest cities decreased on average by 2.7 percent in 2018 alone, further

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undermining any suggestion that recent crime trends currently warrant the declaration of a

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national emergency.21

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V.

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There is no human or drug trafficking emergency that can be
addressed by a wall at the southern border.

The administration has claimed that the presence of human and drug trafficking at the

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border justifies its emergency declaration. But there is no evidence of any such sudden crisis at

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the southern border that necessitates a reprogramming of appropriations to build a border wall.
a.

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The overwhelming majority of opioids that enter the United States across a land

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border are carried through legal ports of entry in personal or commercial vehicles, not smuggled

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through unauthorized border crossings.22 A border wall would not stop these drugs from entering

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Michael T. Light & Ty Miller, Does Undocumented Immigration Increase Violent Crime?, 56
Criminology 370 (2018).
18
Michaelangelo Landgrave & Alex Nowrasteh, Criminal Immigrants in 2017: Their Numbers,
Demographics, and Countries of Origin, Cato Inst. (Mar. 4, 2019).
19
Alex Nowrasteh, Criminal Immigrants in Texas: Illegal Immigrant Conviction and Arrest
Rates for Homicide, Sex Crimes, Larceny, and Other Crimes, Cato Inst. (Feb. 26, 2018).
20
John Gramlich, 5 Facts About Crime in the U.S., Pew Res. Ctr. (Jan. 3, 2019).
21
Ames Grawert & Cameron Kimble, Crime in 2018: Updated Analysis, Brennan Ctr. for Just.
(Dec. 18, 2018).
22
2018 National Drug Threat Assessment, U.S. Dep’t of Just. Drug Enforcement Admin. (2018).
Ninety percent of heroin seizures at U.S. borders and more than 85 percent of cocaine and
methamphetamine seizures occur at ports of entry, where drugs can be smuggled in personal
vehicles or hidden among legal commercial goods in tractor trailers. Joe Ward & Anjali Singhvi,
Trump Claims There Is a Crisis at the Border. What’s the Reality?, N.Y. Times (Jan. 11, 2019).
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the United States. Nor would a wall stop drugs from entering via other routes, including

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smuggling tunnels, which circumvent such physical barriers as fences and walls,23 and

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international mail (which is how high-purity fentanyl, for example, is usually shipped from China

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directly to the United States).24
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Likewise, illegal crossings at the southern border are not the principal source of

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human trafficking victims. About two-thirds of human trafficking victims served by nonprofit

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organizations that receive funding from the relevant Department of Justice office are U.S.

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citizens, and even among non-citizens, most trafficking victims usually arrive in the country on

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valid visas.25 None of these instances of trafficking could be addressed by a border wall. And the

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three states with the highest per capita trafficking reporting rates are not even located along the

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southern border.26

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VI.

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This proclamation will only exacerbate the humanitarian concerns
that do exist at the southern border.

There are real humanitarian concerns at the border, but they largely result from the current

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administration’s own deliberate policies towards migrants. For example, the administration has

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used a “metering” policy to turn away the families fleeing extreme violence and persecution in

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their home countries, forcing them to wait indefinitely at the border to present their asylum cases,

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and has adopted a number of other punitive steps to restrict those seeking asylum at the southern

19

border. These actions have forced asylum-seekers to live on the streets or in makeshift shelters

20

and tent cities with abysmal living conditions, and limited access to basic sanitation has caused

21

outbreaks of disease and death. This state of affairs is a consequence of choices this

22

administration has made, and erecting a wall will do nothing to ease the suffering of these people.

23
24
25
26
27
28

23

See Gustavo Solis, Drug Smuggling, and the Endless Battle To Stop It, USA Today.
2018 National Drug Threat Assessment, supra note 22, at 33.
25
Jenna Krajeski, The Hypocrisy of Trump’s Anti-Trafficking Argument for a Border Wall, New
Yorker (Feb. 5, 2019).
26
Holly Yan, The Deadly Toll of Human Smuggling and Trafficking in the U.S., CNN (July 28,
2017, 3:45 PM).
6
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VII.

2

Redirecting funds for the claimed “national emergency” will
undermine U.S. national security and foreign policy interests.

In the face of a nonexistent threat, redirecting funds for the construction of a wall along

3
4

the southern border will undermine national security by needlessly pulling resources from

5

Department of Defense programs that are responsible for keeping our troops and our country safe

6

and running effectively.
a.

7

Repurposing funds from the defense construction budget will drain money from

8

critical defense infrastructure projects, possibly including improvement of military hospitals,

9

construction of roads, and renovation of on-base housing.27
b.

10

The proclamation will divert resources away from military priorities in a manner

11

that is likely to degrade troop readiness and effectiveness.28 In fact, in a March 2019

12

memorandum, General Robert Neller, the Commandant of the Marine Corps, warned that the

13

“Marine Corps faces fiscal challenges without precedent” and that the transfer of troops and

14

funding to the southern border was contributing to “unacceptable risk to Marine Corps combat

15

readiness and solvency.” General Neller warned that fiscal pressures would cause the Marine

16

Corps to cancel or scale back training exercises “at a time when we are attempting to double

17

down on strengthening alliances and attracting new partners.” As “Marines rely on the hard,

18

realistic training provided by these events . . . the experience lost by these units at a critical time

19

in their preparation cannot be recouped.”29
c.

20

In addition, the administration’s unilateral, provocative actions are heightening

21

tensions with our neighbors to the south, at a moment when we need their help to address a range

22

of Western Hemisphere concerns. These actions are placing friendly governments to the south

23

27

24
25
26
27
28

Claudia Grisales, Trump Declares Emergency on Southern Border, Opens Battle Over Use of
Military Funds To Build Wall, Stars & Stripes (Feb. 15, 2019).
28
Leo Shane III, Democrats Want To Know Why Active-Duty Troops Are Still on the Southern US
Border, Mil. Times (Jan. 29, 2019); Thomas Gibbons-Neff & Helene Cooper, Impact of Border
Deployments Is Felt by Troops at Home and Away, N.Y. Times (Dec. 24, 2018); Ashley Roque,
Readiness Questions Abound, the Pentagon Prepares To Send Thousands of Additional Troops to
Border, Jane’s Defence Wkly. (Jan. 29, 2019).
29
Memorandum from Gen. Robert Neller, Commandant, U.S. Marine Corps, to Richard V.
Spencer, Sec’y, U.S. Navy (Mar. 18, 2019), https://www.latimes.com/nation/politics/la-marinecorps-commandant-memos-20190321-story.html.
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under impossible pressures and driving partners away. They have especially strained our

2

diplomatic relationship with Mexico, a relationship that is vital to regional efforts ranging from

3

critical intelligence and law enforcement partnerships to cooperative efforts to address the

4

growing tensions with Venezuela. Additionally, the proclamation could well lead to the

5

degradation of the natural environment in a manner that could only contribute to long-term

6

socioeconomic and security challenges.
d.

7

Finally, by declaring a national emergency for domestic political reasons with no

8

compelling reason or justification from his senior intelligence and law enforcement officials, the

9

President has further eroded his credibility with foreign leaders, both friend and foe. Should a

10

genuine foreign crisis erupt, this lack of credibility will materially weaken this administration’s

11

ability to marshal allies to support the United States, and will embolden adversaries to oppose us.

12

VIII. The situation at the border does not require the use of the armed forces,
and a wall is unnecessary to support the use of the armed forces.

13

Amici understand that the administration is also claiming that the situation at the southern

14
15

border “requires use of the armed forces,” and that a wall is “necessary to support such use” of

16

the armed forces. These claims are implausible.
a.

17

Historically, our country has deployed National Guard troops at the border solely

18

to assist the Border Patrol when there was an extremely high number of apprehensions, together

19

with a particularly low number of Border Patrol agents. But currently, even with retention and

20

recruitment challenges, the Border Patrol is at historically high staffing and funding levels, and

21

apprehensions—measured in both absolute and per-agent terms—are near historic lows.30
b.

22

Further, as noted above, the composition of southern border crossings has shifted

23

such that families and unaccompanied minors now account for the majority of immigrants

24

seeking entry at the southern border; these individuals do not present a threat that would need to

25

be countered with military force.
c.

26
27
28

Just last month, when asked what the military is doing at the border that couldn’t

30

Alex Nowrasteh, Sending Troops to the Border Is Unnecessary and Dangerous
Cato Inst. (Apr. 4, 2018).
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be done by the Department of Homeland Security if it had the funding for it, a top-level defense

2

official responded, “[n]one of the capabilities that we are providing [at the southern border] are

3

combat capabilities. It’s not a war zone along the border.”31 Finally, it is implausible that

4

hundreds of miles of wall across the southern border are somehow necessary to support the use of

5

armed forces. Amici are aware of no military- or security-related rationale that could remotely

6

justify such an endeavor.

7

IX.

8

There is no basis for circumventing the appropriations process with a
declaration of a national emergency at the southern border.

Amici do not deny that our nation faces real immigration and national security challenges.

9
10

But as the foregoing demonstrates, these challenges demand a thoughtful, evidence-based

11

strategy, not a manufactured crisis that rests on falsehoods and fearmongering. In a briefing

12

before the Senate Intelligence Committee on January 29, 2019, less than one month before the

13

Presidential Proclamation, the Directors of the CIA, DNI, FBI, and NSA testified about numerous

14

serious current threats to U.S. national security, but none of the officials identified a security

15

crisis at the U.S.-Mexico border. In a briefing before the House Armed Services Committee the

16

next day, Pentagon officials acknowledged that the 2018 National Defense Strategy does not

17

identify the southern border as a security threat.32 Leading legislators with access to classified

18

information33 and the President’s own statements34 have strongly suggested, if not confirmed, that

19

there is no evidence supporting the administration’s claims of an emergency. And it is reported

20

that the President made the decision to circumvent the appropriations process and reprogram

21

money without the Acting Secretary of Defense having even started to consider where the funds

22
23
24
25
26
27
28

31

Heather Timmons, The US Border Situation Isn’t a National Emergency, Pentagon Officials
Tell Congress, Quartz (Jan. 29, 2019).
32
See id.
33
See, e.g., Press Release, Sen. Lamar Alexander, Statement on National Emergency
Announcement (Feb. 15, 2019); Press Release, Sen. Susan Collins, Statement on Reports
President Trump Will Declare National Emergency To Fund More Border Walls (Feb. 14, 2019);
Press Release, Sen. Mitt Romney, Statement on Spending, Border Security Deal (Feb. 14, 2019).
34
Remarks by President Trump on the National Security and Humanitarian Crisis on our
Southern Border, White House (Feb. 15, 2019) (“I didn’t need to do this. But I’d rather do it
much faster.”).
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might come from,35 suggesting an absence of consultation and internal deliberations that in

2

Amici’s experience are necessary and expected before taking a decision of this magnitude.
CONCLUSION

3
4

For the foregoing reasons, Amici respectfully submit that there is no factual basis for the

5

declaration of a national emergency for the purpose of circumventing the appropriations process

6

and reprogramming billions of dollars in funding to construct a wall at the southern border, as

7

directed by the Presidential Proclamation of February 15, 2019.

8

Dated: May 2, 2019

Respectfully Submitted,

9
By:

10
11
12
13
14

/s/ Kathleen R. Hartnett
Kathleen R. Hartnett (SBN 314267)
BOIES SCHILLER FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Harold Hongju Koh (pro hac vice forthcoming)
RULE OF LAW CLINIC
Yale Law School
127 Wall Street, P.O. Box 208215
New Haven, CT 06520
Telephone: [phone]
Email: [e-mail]

15
16
17
18
19

Phil Spector (pro hac vice forthcoming)
MESSING & SPECTOR LLP
1200 Steuart Street, #2112
Baltimore, MD 21230
Telephone: [phone]
Email: [e-mail]

20
21
22
23

Attorneys for Amici Curiae Former U.S.
Government Officials

24
25
26
27
28

35

Noah Gray, Acting U.S. Defense Secretary Will Review Programs To Cut for Wall Funding,
CNN (Feb. 17, 2019).
10
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APPENDIX - List of Amici Curiae

1
2

1.

Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee

3

and naturalized American citizen, she served as U.S. Permanent Representative to the United

4

Nations from 1993 to 1997. She has also been a member of the Central Intelligence Agency

5

External Advisory Board since 2009 and of the Defense Policy Board since 2011, in which

6

capacities she has received assessments of threats facing the United States.

7
8
9

2.

Jeremy B. Bash served as Chief of Staff of the U.S. Department of Defense from

2011 to 2013, and as Chief of Staff of the Central Intelligence Agency from 2009 to 2011.
3.

John B. Bellinger III served as the Legal Adviser to the U.S. Department of State

10

from 2005 to 2009. He previously served as Senior Associate Counsel to the President and Legal

11

Adviser to the National Security Council from 2001 to 2005.

12
13
14
15
16

4.

Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S.

Department of State from 2009 to 2012.
5.

Antony Blinken served as Deputy Secretary of State from 2015 to 2017. He

previously served as Deputy National Security Advisor to the President from 2013 to 2015.
6.

John O. Brennan served as Director of the Central Intelligence Agency from 2013

17

to 2017. He previously served as Deputy National Security Advisor for Homeland Security and

18

Counterterrorism and Assistant to the President from 2009 to 2013.

19

7.

R. Nicholas Burns served as Under Secretary of State for Political Affairs from

20

2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S. Ambassador to

21

Greece.

22

8.

William J. Burns served as Deputy Secretary of State from 2011 to 2014. He

23

previously served as Under Secretary of State for Political Affairs from 2008 to 2011, as U.S.

24

Ambassador to Russia from 2005 to 2008, as Assistant Secretary of State for Near Eastern Affairs

25

from 2001 to 2005, and as U.S. Ambassador to Jordan from 1998 to 2001.

26

9.

Johnnie Carson served as Assistant Secretary of State for African Affairs from

27

2009 to 2013. He previously served as the U.S. Ambassador to Kenya from 1999 to 2003, to

28

Zimbabwe from 1995 to 1997, and to Uganda from 1991 to 1994.
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10.

James Clapper served as U.S. Director of National Intelligence from 2010 to 2017.

2

11.

David S. Cohen served as Under Secretary of the Treasury for Terrorism and

3

Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central Intelligence

4

Agency from 2015 to 2017.
12.

6
7
8
9

Eliot A. Cohen served as Counselor of the U.S. Department of State from 2007 to

13.

5

Bathsheba N. Crocker served as Assistant Secretary of State for International

2009.

Organization Affairs from 2014 to 2017.
14.

Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, as

10

U.S. Ambassador to Iraq from 2007 to 2009, as U.S. Ambassador to Pakistan from 2004 to 2007,

11

as U.S. Ambassador to Syria from 1998 to 2001, as U.S. Ambassador to Kuwait from 1994 to

12

1997, and U.S. Ambassador to Lebanon from 1990 to 1993.

13
14
15
16
17

15.

Thomas Donilon served as National Security Advisor to the President from 2010

to 2013.
16.

Jen Easterly served as Special Assistant to the President and Senior Director for

Counterterrorism from 2013 to 2016.
17.

Nancy Ely-Raphel served as Senior Adviser to the Secretary of State and Director

18

of the Office to Monitor and Combat Trafficking in Persons from 2001 to 2003. She previously

19

served as the U.S. Ambassador to Slovenia from 1998 to 2001.

20

18.

Daniel P. Erikson served as Special Advisor for Western Hemisphere Affairs to

21

the Vice President from 2015 to 2017, and as Senior Advisor for Western Hemisphere Affairs at

22

the U.S. Department of State from 2010 to 2015.

23

19.

John D. Feeley served as U.S. Ambassador to Panama from 2015 to 2018. He

24

served as Principal Deputy Assistant Secretary for Western Hemisphere Affairs at the U.S.

25

Department of State from 2012 to 2015.

26
27
28

20.

Daniel F. Feldman served as Special Representative for Afghanistan and Pakistan

at the U.S. Department of State from 2014 to 2015.
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21.

1

Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 to

2

2017, and Director of the Policy Planning Staff at the U.S. Department of State from 2016 to

3

2017.

4
5
6
7
8
9
10
11

22.

Jendayi Frazer served as Assistant Secretary of State for African Affairs from

2005 to 2009. She served as U.S. Ambassador to South Africa from 2004 to 2005.
23.

Suzy George served as Executive Secretary and Chief of Staff of the National

Security Council from 2014 to 2017.
24.

Phil Gordon served as Special Assistant to the President and White House

Coordinator for the Middle East, North Africa and the Gulf from 2013 to 2015, and Assistant
Secretary of State for European and Eurasian Affairs from 2009 to 2013.
25.

Chuck Hagel served as Secretary of Defense from 2013 to 2015, and previously

12

served as Co-Chair of the President’s Intelligence Advisory Board. From 1997 to 2009, he served

13

as U.S. Senator for Nebraska, and as a senior member of the Senate Foreign Relations and

14

Intelligence Committees.

15

26.

Avril D. Haines served as Deputy National Security Advisor to the President from

16

2015 to 2017. From 2013 to 2015, she served as Deputy Director of the Central Intelligence

17

Agency.

18
19
20

27.

Luke Hartig served as Senior Director for Counterterrorism at the National

Security Council from 2014 to 2016.
28.

General (ret.) Michael V. Hayden, USAF, served as Director of the Central

21

Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as Director of the National

22

Security Agency.

23

29.

Kathleen H. Hicks served as Principal Deputy Under Secretary of Defense for

24

Policy from 2012 to 2013, and as Deputy Under Secretary of Defense for Strategy, Plans, and

25

Forces from 2009 to 2012.

26
27
28

30.

Heather A. Higginbottom served as Deputy Secretary of State for Management

and Resources from 2013 to 2017.
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31.

1

Christopher R. Hill served as Assistant Secretary of State for East Asian and

2

Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador to Macedonia, Poland, the

3

Republic of Korea, and Iraq.
32.

4

Roberta Jacobson served as U.S. Ambassador to Mexico from 2016 to 2018. She

5

previously served as Assistant Secretary of State for Western Hemisphere Affairs from 2011 to

6

2016.

7

33.

Gil Kerlikowske served as Commissioner of Customs and Border Protection from

8

2014 to 2017. He previously served as Director of the Office of National Drug Control Policy

9

from 2009 to 2014.

10

34.

John F. Kerry served as Secretary of State from 2013 to 2017.

11

35.

Prem Kumar served as Senior Director for the Middle East and North Africa at the

12
13

National Security Council from 2013 to 2015.
36.

John E. McLaughlin served as Deputy Director of the Central Intelligence Agency

14

from 2000 to 2004 and as Acting Director in 2004. His duties included briefing President-elect

15

Bill Clinton and President George W. Bush.

16

37.

Lisa O. Monaco served as Assistant to the President for Homeland Security and

17

Counterterrorism and Deputy National Security Advisor from 2013 to 2017. Previously, she

18

served as Assistant Attorney General for National Security from 2011 to 2013.

19
20
21

38.

Janet Napolitano served as Secretary of Homeland Security from 2009 to 2013.

She served as the Governor of Arizona from 2003 to 2009.
39.

James D. Nealon served as Assistant Secretary for International Engagement at the

22

U.S. Department of Homeland Security from 2017 to 2018. He served as U.S. Ambassador to

23

Honduras from 2014 to 2017.

24

40.

James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from

25

2015 to 2017. He served in the U.S. Department of State from 1989 to 2001, including as

26

Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the Balkans.

27

41.

28

from 2011 to 2014.

Matthew G. Olsen served as Director of the National Counterterrorism Center
14

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42.

1
2

Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to

2011, he served as Director of the Central Intelligence Agency.
43.

3

Anne W. Patterson served as Assistant Secretary of State for Near Eastern Affairs

4

from 2013 to 2017. Previously, she served as the U.S. Ambassador to Egypt from 2011 to 2013,

5

to Pakistan from 2007 to 2010, to Colombia from 2000 to 2003, and to El Salvador from 1997 to

6

2000.

7

44.

Thomas R. Pickering served as Under Secretary of State for Political Affairs from

8

1997 to 2000. He previously served as Ambassador to El Salvador from 1983 to 1985, and as

9

U.S. Permanent Representative to the United Nations from 1989 to 1992.

10
11
12

45.

Amy Pope served as Deputy Homeland Security Advisor and Deputy Assistant to

the President from 2015 to 2017.
46.

Samantha J. Power served as U.S. Permanent Representative to the United Nations

13

from 2013 to 2017. From 2009 to 2013, she served as Senior Director for Multilateral and Human

14

Rights at the National Security Council.

15

47.

Jeffrey Prescott served as Deputy National Security Advisor to the Vice President

16

from 2013 to 2015, and as Special Assistant to the President and Senior Director for Iran, Iraq,

17

Syria and the Gulf States from 2015 to 2017.

18

48.

Nicholas Rasmussen served as Director of the National Counterterrorism Center

19

from 2014 to 2017.

20

49.

Alan Charles Raul served as Vice Chairman of the Privacy and Civil Liberties

21

Oversight Board from 2006 to 2008. He previously served as General Counsel of the U.S.

22

Department of Agriculture from 1989 to 1993, General Counsel of the Office of Management and

23

Budget in the Executive Office of the President from 1988 to 1989, and Associate Counsel to the

24

President from 1986 to 1989.

25
26
27
28

50.

Dan Restrepo served as Special Assistant to the President and Senior Director for

Western Hemisphere Affairs at the National Security Council from 2009 to 2012.
51.

Susan E. Rice served as U.S. Permanent Representative to the United Nations from

2009 to 2013 and as National Security Advisor to the President from 2013 to 2017.
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1
2
3

52.

Anne C. Richard served as Assistant Secretary of State for Population, Refugees,

and Migration from 2012 to 2017.
53.

Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees,

4

and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for refugee and

5

humanitarian issues at the National Security Council, ultimately serving as Special Assistant to

6

the President for National Security Affairs and Senior Director for Multilateral and Humanitarian

7

Affairs.

8
9
10
11
12

54.

Andrew J. Shapiro served as Assistant Secretary of State for Political-Military

Affairs from 2009 to 2013.
55.

Wendy R. Sherman served as Under Secretary of State for Political Affairs from

2011 to 2015.
56.

Vikram J. Singh served as Deputy Special Representative for Afghanistan and

13

Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for Southeast Asia

14

from 2012 to 2014.

15

57.

16
17

Dana Shell Smith served as U.S. Ambassador to Qatar from 2014 to 2017.

Previously, she served as Principal Deputy Assistant Secretary of Public Affairs.
58.

Jeffrey H. Smith served as General Counsel of the Central Intelligence Agency

18

from 1995 to 1996. He previously served as General Counsel of the Senate Armed Services

19

Committee.

20

59.

Jake Sullivan served as National Security Advisor to the Vice President from 2013

21

to 2014. He previously served as Director of Policy Planning at the U.S. Department of State

22

from 2011 to 2013.

23

60.

Strobe Talbott served as Deputy Secretary of State from 1994 to 2001.

24

61.

Linda Thomas-Greenfield served as Assistant Secretary for the Bureau of African

25

Affairs from 2013 to 2017. She previously served as U.S. Ambassador to Liberia and Deputy

26

Assistant Secretary for the Bureau of Population, Refugees, and Migration from 2004 to 2006.

27
28

62.

Arturo A. Valenzuela served as Assistant Secretary of State for Western

Hemisphere Affairs from 2009 to 2011. He previously served as Special Assistant to the President
16
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and Senior Director for Inter-American Affairs at the National Security Council from 1999 to

2

2000, and as Deputy Assistant Secretary of State for Mexican Affairs from 1994 to 1996.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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