State of California et al v. Trump et al

Filing 128

Brief of Former Members of Congress as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed byAmici Curiae Former Members of Congress. (Winthrop, Douglas) (Filed on 5/8/2019)

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ARNOLD & PORTER KAYE SCHOLER LLP
Irvin B. Nathan*
Robert N. Weiner*
Andrew T. Tutt*
Kaitlin Konkel*
Samuel F. Callahan*
601 Massachusetts Ave, NW
Washington, DC 20001
Telephone:
[phone]
[e-mail]
*Pro hac vice application forthcoming
Douglas A. Winthrop (SBN 183532)
Three Embarcadero Center, 10th Floor
San Francisco, CA 94111
Telephone:
[phone]
[e-mail]
Counsel for Amici Curiae Former Members of Congress

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

Case No.: 4:19-cv-00872-HSG
BRIEF OF FORMER MEMBERS OF
CONGRESS AS AMICI CURIAE IN
SUPPORT OF PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION
P.I. Hearing: May 9, 2019, at 2:00 PM

Defendants.

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Brief of Former Members of Congress as Amici Curiae (4:19-cv-00872-HSG)

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TABLE OF CONTENTS
Page

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TABLE OF AUTHORITIES ........................................................................................................... iii
INTEREST OF AMICI CURIAE ......................................................................................................1
INTRODUCTION AND SUMMARY OF ARGUMENT ................................................................2
ARGUMENT .....................................................................................................................................3
I.

THE PRESIDENT HAS DECLARED A PATENTLY FICTITIOUS EMERGENCY..........3

II.

THE EXECUTIVE BRANCH IS UNDERMINING THE SEPARATION OF POWERS
BY USURPING THE APPROPRIATIONS POWER VESTED EXCLUSIVELY
IN CONGRESS .......................................................................................................................6

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A.

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III.

Congress’s Exclusive Power over Appropriations Is Critical to our
Constitutional Structure .............................................................................................10

C.

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Congress Must Appropriate Money Before the Executive Branch Can Spend It........6

B.

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Only The Courts Can Check Executive Branch Violations of the
Appropriations Power ................................................................................................11

THE EXECUTIVE BRANCH IS EXCEEDING THE LIMITS OF
“THE EXECUTIVE POWER” ..............................................................................................12

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CONCLUSION ................................................................................................................................16

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ATTACHMENT A—LIST OF AMICI CURIAE

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ATTACHMENT B—JOINT DECLARATION OF FORMER UNITED STATES
GOVERNMENT OFFICIALS

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CERTIFICATE OF SERVICE

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-iBrief of Former Members of Congress as Amici Curiae (4:19-cv-00872-HSG)

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TABLE OF AUTHORITIES
Page(s)

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Cases
Am. Fed’n of Gov’t Emps., AFL-CIO, Local 1647 v. FLRA,
388 F.3d 405 (3d Cir. 2004).......................................................................................................8
Bowsher v. Synar,
478 U.S. 714 (1986) .................................................................................................................11
Buckley v. Valeo,
424 U.S. 1 ................................................................................................................................15
Cincinnati Soap Co. v. United States,
301 U.S. 308 (1937) ...................................................................................................................7
Clinton v. City of New York,
524 U.S. 417 (1998) .........................................................................................................8, 9, 10
Comm. on the Judiciary v. Miers,
558 F. Supp. 2d 53 (D.D.C. 2008) ...........................................................................................12

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Comm. on Oversight & Gov’t Reform v. Holder,
979 F. Supp. 2d 1 (D.D.C. 2013) .............................................................................................12
Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833 (1986) .................................................................................................................11
Consumer’s Union of U.S., Inc. v. Kissinger,
506 F.2d 136 (D.C. Cir. 1974) ...................................................................................................9

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Dames & Moore v. Regan,
453 U.S. 654 (1981) .................................................................................................................13
Dep’t of the Navy v. FLRA,
665 F.3d 1339 (D.C. Cir. 2012) .................................................................................................8
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,
561 U.S. 477 (2010) .................................................................................................................10

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Hart’s Adm’r v. United States,
16 Ct. Cl. 459 (1880) .................................................................................................................8
Ho Ah Kow v. Nunan,
12 F. Cas. 252 (C.C.D. Cal. 1879) ...........................................................................................12
INS v. Chadha,
462 U.S. 919 (1983) .............................................................................................................9, 15

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- ii Brief of Former Members of Congress as Amici Curiae (4:19-cv-00872-HSG)

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King v. Burwell,
135 S. Ct. 2480 (2015) ...............................................................................................................5
Lynch v. Alworth–Stephens Co.,
267 U.S. 364 (1925) ...................................................................................................................4
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803).....................................................................................................2
Medellin v. Texas,
552 U.S. 491 (2008) .................................................................................................................12
Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc.,
501 U.S. 252 (1991) .................................................................................................................10
Mistretta v. United States,
488 U.S. 361 (1989) .................................................................................................................11
Myers v. U.S.,
272 U.S. 52 (1926) ...................................................................................................................11

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N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,
458 U.S. 50 (1982) ...................................................................................................................11
Nixon v. United States,
506 U.S. 224 (1993) .................................................................................................................16
NLRB v. Noel Canning,
134 S. Ct. 2550 (2014) .............................................................................................................11

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Office of Pers. Mgmt. v. Richmond,
496 U.S. 414 (1990) ...................................................................................................................7
Powell v. McCormack,
395 U.S. 486 (1969) .................................................................................................................16
Pub. Citizen v. U.S. Dep’t of Justice,
491 U.S. 440 (1989) .................................................................................................................10

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Reeside v. Walker,
52 U.S. 272 (1850) .....................................................................................................................7
Rochester Pure Waters Dist. v. EPA,
960 F.2d 180 (D.C. Cir. 1992) ...................................................................................................8
Roper v. Simmons,
543 U.S. 551 (2005) ...................................................................................................................5

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Sandifer v. U.S. Steel Corp.,
571 U.S. 220 (2014) ...................................................................................................................4
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United States v. AT&T,
551 F.2d 384 (D.C. Cir. 1976) .................................................................................................12
United States v. Estate of Romani,
523 U.S. 517 (1998) ...................................................................................................................6
United States v. MacCollom,
426 U.S. 317 (1976) ...................................................................................................................7
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .................................................................................................5, 13, 14, 15
Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) .............................................................................................................13
Statutes and Constitutional Provisions
10 U.S.C. § 284 ..............................................................................................................................6

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10 U.S.C. § 2808 ............................................................................................................................6
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31 U.S.C. § 9705(g)(4)(B) .............................................................................................................6
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2019 Consolidated Appropriations Act ....................................................................................6, 14
Antideficiency Act, 31 U.S.C. §§ 1341 et seq. ..............................................................................9

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National Emergencies Act, Pub. L. 94-412, 90 Stat. 1255 ................................................2, 3, 4, 6

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U.S. Const. art. I, § 1 ..................................................................................................................3, 6

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U.S. Const. art. I, § 7, cl. 2 .....................................................................................................3, 7, 8

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U.S. Const. art. I, § 9, cl. 7 .........................................................................................................3, 6

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Other Authorities

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H.J. Res. 31 § 230(b)....................................................................................................................21

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H.J. Res. 31 § 280(a)(1) ...............................................................................................................21

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H.J. Res. 46 ..................................................................................................................................20
S. Rep. No. 94-1168 (1976) ...........................................................................................................4

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Hearing on H.R. 3884 Before the S. Comm. of Governmental Operations,
94th Cong. 7 (1976) .................................................................................................................11

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Collins English Dictionary (12th ed. 2014) .................................................................................11

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The American Heritage Dictionary (1976) ....................................................................................4
- iv Brief of Former Members of Congress as Amici Curiae (4:19-cv-00872-HSG)

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Webster’s New Collegiate Dictionary (1977) ................................................................................4

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3 Commentaries on the Constitution § 1342 (1833) ......................................................................8

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The Federalist No. 58 (C. Rossiter, ed. 1961) (J. Madison) ..........................................................9

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Gerald S. Dickinson, Op-Ed., The Biggest Problem for Trump’s Border Wall Isn’t
Money. It’s Getting the Land., Wash. Post (Mar. 3, 2017),
http://tinyurl.com/y42cttcp.........................................................................................................5

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Peter Baker, Trump Declares a National Emergency, and Provokes a Constitutional
Clash, N.Y. Times (Feb. 15, 2019), https://tinyurl.com/y4ngfkyz ............................................2
White House, Remarks by President Trump on the Humanitarian Crisis on our
Southern Border and the Shutdown
(Jan. 19, 2019), https://tinyurl.com/y7gdj6s8 ..........................................................................14

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-vBrief of Former Members of Congress as Amici Curiae (4:19-cv-00872-HSG)

INTEREST OF AMICI CURIAE1

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Amici curiae are a bipartisan group of more than 100 former Members of the House of

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Representatives, both Republicans and Democrats. Amici have served an aggregate of

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approximately 1,500 years in Congress, hail from 36 States, and include 21 former Members from

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the states of the Ninth Circuit. Amici disagree on many issues of policy and politics. Some amici

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believe that a wall along the Southern Border is in the national interest. Others do not. But all amici

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agree that the Executive Branch is undermining the separation of powers by proposing to spend tax

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dollars to build a border wall that Congress repeatedly and emphatically refused to fund.

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Amici, as former members of Congress and as citizens of our Nation, have a strong interest

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in preventing Executive Branch overreach from degrading Congress’s unique and important role in

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America’s tripartite system of separated powers. Some amici have served in leadership positions in

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their respective party caucuses, including as Majority Leader; several have served on the

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Appropriations, Budget and Intelligence Committees of the House; and some have gone on to serve

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in the Senate or in the Executive Branch. Two amici have served as U.S. Secretaries of the Defense

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Department (one Democrat and one Republican) and are particularly well versed in the laws and

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practices surrounding the Defense Department budget. One has served as the head of the Office of

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Management and Budget and went on to serve as Chief of Staff to the President. All of the amici

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are uniquely positioned to offer their perspective because they are former members of the

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Legislative Branch intimately familiar with the appropriations process. Each of them swore an oath

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to protect the Constitution; each has seen firsthand how the separation of powers safeguards the

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rights of the American people; and each firmly believes that defending Congress’s power of the

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purse is essential to preserving democracy’s promise that Americans’ hard-earned tax dollars are

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spent in accordance with the will of the people.
A full listing of amici appears in the Appendix as Attachment A.

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All parties have consented to the filing of this amicus brief. No party’s counsel authored this brief
in whole or in part. Nor did any party or party’s counsel, or any other person other than amici
curiae, contribute money that was intended to fund preparing or submitting this brief.
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INTRODUCTION AND SUMMARY OF ARGUMENT

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This suit concerns the continued viability of the separation of powers—the foundation upon

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which “the whole American fabric has been erected,” Marbury v. Madison, 5 U.S. (1 Cranch) 137,

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176 (1803)—as a limit on Executive authority. The Executive Branch plans, and has already begun,

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to take billions of dollars that Congress appropriated for other pressing national needs and spend it

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instead on a wall along the United States-Mexico border. It has done this despite repeated votes in

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both houses to refuse to fund construction of a border wall, and on the heels of a multi-month

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government shutdown provoked, in part, by that very dispute. Now, more than four years after first

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arguing for a wall during the Presidential campaign, the President has determined that the situation

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at the border constitutes a national emergency justifying these extraordinary steps. Why? Because,

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as President Trump boasted: “I want to do it faster. I could do the wall over a longer period of time.

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I didn’t need to do this, but I’d rather do it much faster…. I just want to get it done faster, that’s

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all.” Peter Baker, Trump Declares a National Emergency, and Provokes a Constitutional Clash,

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N.Y. Times (Feb. 15, 2019), https://tinyurl.com/y4ngfkyz.

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Rarely in our Nation’s history has the Executive Branch launched such an assault on

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Congress’s exclusive legislative powers. In the statement quoted above and many others like it, the

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President’s essential rationalization for unilateral Executive Branch action is that Congress has

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refused to authorize his requested appropriation. This subversion of Article I has caused, and

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continues to cause, grave harm to the House as an institution. Without action by this Court to prevent

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the Administration’s usurpation of congressional authority, the unchecked expansion of the

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Executive’s power at the expense of the Legislative Branch will threaten our democracy.

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In light of this impending threat, this brief makes three points.

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First, the President’s invocation of powers under the National Emergencies Act to override

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Congress’s appropriations decisions is pretextual. Under any plausible definition, the situation at

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the Southern Border is not an “emergency.” Emergencies are sudden, not glacial. Justified exercises

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of the emergency powers address problems so urgent that they require a response before Congress

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can appropriate funds for them, not longstanding problems where Congress has thoroughly

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considered, and rejected, the proposed appropriation.
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Second, the President’s action poses a grave threat to our constitutional system. The power
to decide whether and how to appropriate and spend tax dollars—the People’s money—is uniquely
congressional. For the President to justify expenditures Congress explicitly disapproved, by
invoking a “national emergency” where none exists, usurps congressional power. The Framers
regarded this power of the purse, see U.S. Const. art. I, § 9, cl. 7; id. art. I, § 1; id. art I, §7, cl. 2, as
the defining power of the Legislative Branch. They also saw it as a fundamental check on Executive
power. Making Congressionally disapproved expenditures on a border wall effectively nullifies this
important constitutional safeguard. Neither the National Emergencies Act nor any other statute
could constitutionally surrender this power. To read the laws otherwise would contravene the
Court’s duty to interpret statutes in a manner that avoids constitutional issues.

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Third, the Executive Branch is not only trammeling on Congress’s exclusive appropriations
powers, but also aggrandizing its own power. The Executive Branch cannot act without authority
granted by legislation or the Constitution. No legislative or constitutional provision authorizes
building a lengthy border wall. To the contrary, Congress repeatedly denied such authority, and a
majority of both houses expressly rejected the President’s emergency declaration. The powers of
the Executive Branch are therefore at their lowest ebb.

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ARGUMENT
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I.
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THE PRESIDENT HAS DECLARED A PATENTLY FICTITIOUS EMERGENCY
The President has purported to use emergency powers that Congress granted in the National

Emergencies Act, Pub. L. 94-412, 90 Stat. 1255, codified at 50 U.S.C. §§ 1601-1651, to spend on
the border wall funds that Congress appropriated for other purposes. The English language,
however, is not so boundlessly elastic as to allow the claim that there is a national emergency at the
Southern Border. Emergencies are sudden and immediate, not longstanding and static. The President
raised the need for a wall as early as 2015, promised in his campaign to build a “big beautiful wall,”
and also promised that Mexico would pay for it. After the government shutdown, the President
signed legislation that passed both houses and once again rejected his request for border funding.
Only after Congress explicitly refused to fund the wall did the President declare an emergency, even
though he said he didn’t need to do so. The proclamation fails to justify the President’s actions. “Not
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getting your way” is an improper ground for declaring a national emergency. After the proclamation,
a majority of both houses rejected the claim of a national emergency.
In the aftermath of the abuses by the Executive Branch during Watergate, Congress passed
the National Emergencies Act to “insure” that the president’s “extraordinary” emergency powers
would “be utilized only when emergencies actually exist.” S. Rep. No. 94-1168, at 2 (1976). “[T]he
President should not be allowed to invoke emergency authorities or in any way utilize the provisions
of this Act for frivolous or partisan matters, nor for that matter in cases where important but not
‘essential’ problems are at stake.” Hearing on H.R. 3884 Before the S. Comm. of Governmental
Operations, 94th Cong. 7 (1976) (statement of Sen. Frank Church). “The Committee intentionally
chose language which would make clear that the authority of the Act was to be reserved for matters
that are ‘essential’ to the protection of the Constitution and the people.” Id.
As former legislators, several of whom served during the Watergate crisis, amici know how
challenging it is to write a statute that limits the authority of a resourceful President, as this statute
was intended to do. To that end, it would be difficult to find a more restrictive formula than to
confine those powers to “national emergencies.” The Court has emphasized that “the plain, obvious,
and rational meaning of a statute is always to be preferred,” Lynch v. Alworth–Stephens Co., 267
U.S. 364, 370 (1925) (internal quotation marks omitted), and that, absent an explicit statutory
definition, courts should employ the common meaning of words, as reflected in the dictionary,
Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227-28 (2014). The meaning of “emergency” is clear.
Webster’s Dictionary defines it as “an unforeseen combination of circumstances or the resulting
state that calls for immediate action.” Webster’s New Collegiate Dictionary 372 (1977). Another
dictionary defines it as, “A situation or occurrence of a serious nature, developing suddenly and
unexpectedly, and demanding immediate action.” The American Heritage Dictionary 427 (1976).
Similarly, a third dictionary says an “emergency” is “An unforeseen or sudden occurrence, esp. of
a danger demanding immediate remedy or action.” Collins English Dictionary 644 (12th ed. 2014).
Plainly, in providing presidential authority to deal with “emergencies,” Congress intended those
powers to apply only to issues that Congress had not had the opportunity to consider and that were
too urgent for it to consider before the expenditures had to be made.
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If the circumstances at the Southern Border are a national emergency, “[w]ords no longer
have meaning.” King v. Burwell, 135 S. Ct. 2480, 2497 (2015) (Scalia, J., dissenting); see also Roper
v. Simmons, 543 U.S. 551, 609 (2005) (Scalia, J., dissenting) (same). Whatever the dimensions of
the situation at the Southern Border, whatever its importance, no one would mistake it for
“unforeseen,” “sudden,” or “unexpected.” The President issued the Emergency Proclamation more
than two years after he took office and six weeks after first publicly suggesting that he could “do” a
national emergency to secure funding that Congress in the exercise of its appropriations powers had
refused to grant. During that period, Congress considered at length a border wall that would extend
across the entire Southern Border, repeatedly voted not to fund it, and instead passed legislation
appropriating funds for limited repair and construction of fencing in particular locations along the
border. The fact that Congress had time to take action refutes the idea of an emergency.

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A large group of highly respected, bipartisan former United States government officials,
specializing in security matters, including former Secretaries of State and CIA Directors, have
issued a fact-based declaration demonstrating that there is no “emergency” on our Southern Border.
A copy of their declaration is set out in the Appendix as Attachment B.2 These are the facts that
Congress had before it when it rejected funding for the wall. Further, the alleged emergency is not
amenable to a quick fix, as the eminent domain process necessary to acquire the land on which to
build the wall will consume years, during which Congress is available to consider the proposal. See
Gerald S. Dickinson, Op-Ed., The Biggest Problem for Trump’s Border Wall Isn’t Money. It’s
Getting the Land., Wash. Post (Mar. 3, 2017), http://tinyurl.com/y42cttcp.

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None of the other authorities the President invokes changes this assessment. Reliance on 10
U.S.C. § 2808 is unavailing because it, like the National Emergencies Act, is triggered only by an
emergency. See 10 U.S.C. § 2808(a). And while the other statutes that the President has invoked,
including 10 U.S.C. § 284 and 31 U.S.C. § 9705(g)(4)(B), do not explicitly refer to emergencies,

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As noted, not all amici, a large and diverse set of former House Members, agree with all of the
assertions in Attachment B. However, all agree that Congress knew the arguments for and against
the construction of the wall and consciously decided not to fund construction. The denial of funding
was intentional, not the product of “inertia, indifference or quiescence.” Youngstown, Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 637 (1952).
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they were invoked here pursuant to an emergency declaration. More importantly, none of these
provisions can override the subsequently adopted legislation—the 2019 Consolidated
Appropriations Act—that expressly refused to fund the President’s border wall. See, e.g., United
States v. Estate of Romani, 523 U.S. 517, 530 (1998) (“[A] specific policy embodied in a later
federal statute should control our construction of the [earlier] statute ….”).

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II.
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THE EXECUTIVE BRANCH IS UNDERMINING THE SEPARATION OF
POWERS BY USURPING THE APPROPRIATIONS POWER VESTED
EXCLUSIVELY IN CONGRESS

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While the statutory issue discussed above is dispositive, the Administration’s argument is

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so flimsy that it cannot camouflage the President’s attempted usurpation of congressional authority.

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The Constitution guarantees the House the central role in any expenditure of public funds. It

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requires, before the funds are spent, that the House initiate appropriations, that both houses pass

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identical appropriations bills, and that the President sign them or allow them to become law. See

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U.S. Const. art. I, § 1; § 7 cl. 2; § 9, cl. 7. Put another way, the House’s affirmative vote is a necessary

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precondition of any public expenditure by the Executive.

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The Executive’s expenditure of public funds that Congress has not appropriated, as the

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President proposes here, directly injures the House by nullifying its central constitutional power.

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That injury undermines the separation of powers. If the Executive Branch can spend money for

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purposes the House specifically refused to fund, the House’s appropriations power would no longer

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be an effective check or balance in the constitutional structure. If, despite their clear language, the

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National Emergencies Act and other statutes cited by the President were interpreted as authorizing

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this overreaching, they would be unconstitutional.

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A.

Congress Must Appropriate Money Before the Executive Branch
Can Spend It

The Executive Branch does not have the power to appropriate money, nor does it have the
power to spend money not appropriated. Congress alone controls appropriations. The Executive
Branch’s expenditure of money on the border wall, which Congress never appropriated for that
purpose, violates this basic tenet of the separation of powers.

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-6Brief of Former Members of Congress as Amici Curiae (4:19-cv-00872-HSG)

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The Appropriations Clause, Article I, section 9 of the Constitution, states that “[n]o Money
shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The words
“No Money” and “in Consequence of Appropriations” are not ambiguous. This straightforward
language “was intended as a restriction upon the disbursing authority of the Executive department.”
Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937). The Clause “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.
Mgmt. v. Richmond, 496 U.S. 414, 428 (1990).
The Supreme Court has strictly enforced the Appropriations Clause. Nearly 170 years ago,
the Court ruled that, “No officer, however high, not even the President, much less a Secretary of the
Treasury or Treasurer, is empowered to pay debts of the United States generally, when presented to
them. . . . [in] the want of any appropriation by Congress to pay this claim.” Reeside v. Walker, 52
U.S. 272, 291 (1850) (emphasis added). The Court emphasized that under Article 1, Section 9 of
the Constitution, “no money can be taken or drawn from the Treasury except under an appropriation
by Congress.” Id. Indeed, the Court held, “[h]owever much money may be in the Treasury at any
one time, not a dollar of it can be used in the payment of anything not thus previously sanctioned.
Any other course would give to the fiscal officers a most dangerous discretion.” Id. (emphasis
added). The Court has been no less emphatic in its more recent expressions of this point. See OPM
v. Richmond, 496 U.S. 414, 424 (1990) (“Our cases underscore the straightforward and explicit
command of the Appropriations Clause. ‘It means simply that no money can be paid out of the
Treasury unless it has been appropriated by an act of Congress.’” (quoting Cincinnati Soap, 301
U.S. at 321)); United States v. MacCollom, 426 U.S. 317, 321 (1976) (“[T]he expenditure of public
funds is proper only when authorized by Congress . . . .” (emphasis added)); see also Dep’t of the
Navy v. FLRA, 665 F.3d 1339, 1348 (D.C. Cir. 2012) (“Congress’s control over federal expenditures
is ‘absolute.’” (quoting Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992)));
Rochester, 960 F.2d at 185 (Congress has “exclusive power over the federal purse”); Hart’s Adm’r
v. United States, 16 Ct. Cl. 459, 484 (1880) (“[A]bsolute control of the moneys of the United States

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is in Congress, and Congress is responsible for its exercise of this great power only to the people.”),
aff’d, 118 U.S. 62 (1886).
The Court has likewise made clear that the appropriations power may be exercised only
through the “single, finely wrought, and exhaustively considered, procedure,” Clinton v. City of
New York, 524 U.S. 417, 439-40 (1998), that requires the cooperation of different constituencies
and interests to secure passage of identical bills by the House and Senate (bicameralism), and
delivery to the President for his signature or veto (presentment), see U.S. Const. art. I, § 7, cl. 2.
Permitting the Executive, “on its own, [to] carve out an area of nonappropriated funding would
create an Executive prerogative that offends the Appropriations Clause and affects the constitutional
balance of powers.” Am. Fed’n of Gov’t Emps., AFL-CIO, Local 1647 v. FLRA, 388 F.3d 405, 414
(3d Cir. 2004).
In striking down the line item veto, the Supreme Court held that even where Congress
intended to empower a President to repeal a portion of a spending bill, the two political branches
could not violate the procedures set forth in Article I of the Constitution. Clinton v. City of New
York, 524 U.S. 417. That case invalidated the President’s decisions not to spend funds appropriated
by Congress. It is even more obviously unconstitutional for the President to spend funds that
Congress did not appropriate and actively opposes, even if the President claims that there is
inapplicable legislation that authorizes it.
The Framers viewed it as critical that Executive Branch officials not have the power of the
purse. As Joseph Story described their concerns, “In arbitrary governments the prince levies what
money he pleases from his subjects, disposes of it, as he thinks proper, and is beyond responsibility
or reproof.” 3 Commentaries on the Constitution § 1342 (1833). The Framers feared that giving
even an elected executive the power of the purse would be just as dangerous. Id. “[If not for the
Appropriations Clause,] the executive would possess an unbounded power over the public purse of
the nation; and might apply all its monied resources at his pleasure.” Id. This concern about
unchecked executive spending motivated Congress in 1884 to enact criminal penalties for officials
who spent money without an appropriation. Such penalties remain in force today. See
Antideficiency Act, 31 U.S.C. §§ 1341 et seq.
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Instead of bestowing this power on the Executive, the Framers instead gave the people,
through their elected representatives, a “check upon profusion and extravagance, as well as upon
corrupt influence and public peculations.” 3 Commentaries on the Constitution § 1342. “This power
over the purse,” James Madison believed, “may, in fact, be regarded as the most complete and
effectual weapon with which any constitution can arm the immediate representatives of the people,
for obtaining a redress of every grievance, and for carrying into effect every just and salutary
measure.” The Federalist No. 58 (C. Rossiter, ed. 1961) (J. Madison).
Amici know firsthand the serious responsibilities that come with the power of the purse. In
particular, they understand the gravity of denying an appropriation requested by the President.
Withholding a requested appropriation renders the Executive Branch unable to complete projects
for which it sought those funds. And while the President can veto appropriations bills and force
Congress to return to the negotiating table, his power is only negative. The ultimate result of the
negotiations still must be initiated and approved by Congress. Congress followed this procedure
when it crafted the 2019 Appropriations Bill and presented it to the President. The Constitution gave
the President two options: he could sign it or veto it.
The President, in effect, did both, and then reneged on the agreement his signature
represented. He signed the bill, but then proposed to seize money that Congress had appropriated
for other purposes to divert it to one that Congress had repudiated. He proposes to spend money in
direct violation of the Appropriations Clause. The separation of powers is “violated when one
branch assumes a function that more properly is entrusted to another.” INS v. Chadha, 462 U.S. 919,
963 (1983). That is precisely what happened here. The President is not just acting without
constitutional authority of his own; he is usurping Congress’s exclusive authority over
appropriations. Courts have not hesitated to block executives from exercising legislative powers.
See, e.g., Clinton, 524 U.S. at 447 (Presentment Clause, Article I, § 7, forbade President from
exercising “unilateral power to change the text of duly enacted statute”); Consumer’s Union of U.S.,
Inc. v. Kissinger, 506 F.2d 136, 142 (D.C. Cir. 1974) (President has no inherent power to adjust
tariffs or to regulate foreign commerce because those are enumerated legislative powers). This court
should do the same.
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If the statutes cited by the President were read to authorize the President to spend
unappropriated funds—which they emphatically do not—they would be unconstitutional, and so
would the President’s actions. As Justice Kennedy wrote in a concurring opinion in Clinton: “That
a congressional cession of [appropriations] power is voluntary does not make it innocuous. The
Constitution is a compact enduring for more than our time, and one Congress cannot yield up its
own powers, much less those of other Congresses to follow. Abdication of responsibility is not part
of the constitutional design.” 524 U.S. at 452 (citations omitted). The Court must interpret statutes
so as to avoid such constitutional infirmities. See, e.g., Pub. Citizen v. U.S. Dep’t of Justice, 491
U.S. 440, 465–66 (1989). The interpretation discussed above, supra Part A, thus is not only
compelling, but also compelled by this principle.

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Congress’s Exclusive Power over Appropriations Is Critical to our
Constitutional Structure

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Vesting Congress with the exclusive power to appropriate public funds was central to

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effectuate the Framers’ intent that political compromises between competing and otherwise

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antagonistic groups be thrashed out in the legislative process. These structural elements of the

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Constitution, the Supreme Court has stated many times, are not simply matters of etiquette or

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architecture. They protect individual liberty—in this instance, by ensuring that only those

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representatives closest to the people can decide how to spend their money. See generally Free Enter.

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Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 501 (2010) (the “Framers recognized

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that, in the long term, structural protections against abuse of power were critical to preserving

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liberty”) (internal quotation marks omitted); Clinton, 524 U.S. at 450 (Kennedy, J., concurring)

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(“Liberty is always at stake when one or more of the branches seek to transgress the separation of

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powers.”); Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501

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U.S. 252, 272 (1991) (“The ultimate purpose of this separation of powers is to protect the liberty

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and security of the governed.”); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d

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667, 714 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (“the separation of powers protects not simply

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the office and the officeholders, but also individual rights”).

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As a result, the Appropriations Clause plays a critical role in fashioning majoritarian
compromises. Under a framework in which Congress has the exclusive power to appropriate public
funds, the President may announce any policy priorities, give any speeches, and submit to Congress
any budget he wishes, but in order to spend the taxpayer’s money, he must persuade Congress to
appropriate it for the particular purpose sought. If the Executive could spend freely without
appropriations—or, as the defendants assert the right to do here, could re-appropriate funds for
purposes different from the ones Congress chose—Congress would be reduced to an advisory role,
no longer able to function as the crucible of political debate, negotiation, and compromise in our
constitutional system.
Congress also carries out its oversight responsibilities and compels accountability on the
part of the Executive Branch—the branch that spends well in excess of 99 percent of all federal
dollars expended by the federal government—by forcing the Executive repeatedly to justify
authorized programs, its operations of those programs, and the amounts needed to operate those
programs effectively and efficiently. The Executive commands both the military and federal law
enforcement. Without the appropriations power, Congress would have little ability to influence the
Executive’s policy or ensure that it faithfully and honestly executes the laws.

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Only The Courts Can Check Executive Branch Violations of the
Appropriations Power

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The Legislative Branch’s power of the purse is effective as a limitation on the “unbounded

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power” of the Executive only if that legislative power is enforceable through the courts. Policing

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the efforts of one branch to aggrandize its powers at the expense of other branches is one of the

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judiciary’s critical functions. See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550 (2014); Mistretta v.

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United States, 488 U.S. 361 (1989); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833

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(1986); Bowsher v. Synar, 478 U.S. 714 (1986); N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,

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458 U.S. 50 (1982); Myers v. U.S., 272 U.S. 52 (1926).

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Unless the courts remain available to stop violations of the Appropriations Clause, disputes

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over the lawfulness of Executive Branch violations would linger for years in the political process,

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where only blunt and imperfect tools are available to bring about compliance. To be sure, courts
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cannot be the arbiter of every constitutional disagreement between the political branches. But for
violations like this one, that go to the very heart of Congress’s exclusive powers and undermine its
most important check on the Executive Branch, judicial review is necessary to safeguard the
separation of powers. See, e.g., United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976) (“[T]he
mere fact that there is a conflict between the legislative and executive branches . . . does not preclude
judicial resolution of the conflict.”); Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp.
2d 1, 3 (D.D.C. 2013) (“The fact that this case arises out of a dispute between two branches of
government does not make it non-justiciable; Supreme Court precedent establishes that this branch
has an equally fundamental role to play, and that judges not only may, but sometimes must, exercise
their responsibility to interpret the Constitution and determine whether another branch has exceeded
its power.”); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 56 (D.D.C. 2008) (“[T]he
Supreme Court has confirmed the fundamental role of the federal courts to resolve the most sensitive
issues of separation of powers.”). To allow the Executive Branch’s bare incantation of the words
“national emergency” to shift the power to appropriate funds for a border wall from Congress to the
President would make judicial review a hollow exercise. As Justice Field wrote more than a century
ago, in words particularly apropos today, “we cannot shut our eyes to matters of public notoriety
and general cognizance. When we take our seats on the bench we are not struck with blindness, and
forbidden to know as judges what we see as men.” Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D.
Cal. 1879).

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THE EXECUTIVE BRANCH IS EXCEEDING THE LIMITS OF “THE
EXECUTIVE POWER”

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It also is clear that the Executive Branch has run roughshod over the constitutional limits on

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its power. The Executive Branch has no power to act unless legislation by Congress or a provision

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of the Constitution confers that power. Medellin v. Texas, 552 U.S. 491, 524 (2008). Because neither

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the Constitution nor any statute authorizes the Executive Branch to spend unappropriated funds to

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build a border wall, it is acting in excess of its constitutional authority.

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The President pressed hard during legislative negotiations for funding of the wall, even

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shutting down the government for a record 39 days in early 2019 in an effort to coerce Congress to
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accede to his demands. Nevertheless, on a bipartisan, bicameral basis, Congress denied the funding.
If that disapproval were not sufficiently clear, a majority of both houses of Congress on March 14,
2019, passed a joint resolution to terminate the President’s emergency declaration. See H.J. Res. 46.
Because Congress considered and expressly rejected the President’s border-wall proposal,
and because no other statute authorizes the President’s actions, those actions violate the separation
of powers under Youngstown. Justice Jackson in Youngstown laid out a three-part framework for
evaluating the relationship between Congress’s actions and the President’s powers. 343 U.S. 579,
635-38 (1952) (concurring opinion). The Supreme Court has frequently applied Justice Jackson’s
framework in resolving challenges to executive action. E.g., Zivotofsky v. Kerry, 135 S. Ct. 2076,
2083-84 (2015); Dames & Moore v. Regan, 453 U.S. 654 (1981).
Justice Jackson explained that when Congress has authorized the President to take a certain
action, that action is “supported by the strongest of presumptions and the widest latitude of judicial
interpretation.” 343 U.S. at 637. Courts rarely strike down presidential action in this first category.
If Congress has neither authorized nor forbidden the President’s action, then it falls within
“a zone of twilight in which he and Congress may have concurrent authority, or in which its
distribution is uncertain.” Id. at 637. In this category, courts ask whether Congress has shown
“inertia, indifference or quiescence” in the face of past executive action. Id.
Finally, “[w]hen the President takes measures incompatible with the expressed or implied
will of Congress, his power is at its lowest ebb.” In this third category, the President “can rely only
upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
Id. In other words, for a court to uphold a presidential action forbidden by Congress, the Constitution
must give the President “conclusive” power, to the exclusion of Congress. Id.; see, e.g., Zivotofsky,
135 S. Ct. at 2095. These executive assertions of power must be “scrutinized with caution, for what
is at stake is the equilibrium established by our constitutional system.” Youngstown, 343 U.S. at
637-38.
Justice Jackson found that President Truman’s executive order directing a temporary
government seizure of the nation’s steel mills fell into this “lowest ebb” category. Id. at 637, 640.
No statute authorized executive seizure of the steel industry. Id. at 638. And the earlier legislation
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that Congress had passed on the general subject of property seizures imposed detailed procedures
the President had not followed. Id. at 639. By implication, Congress had forbidden the President’s
action.

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That left the question whether the President had inherent constitutional power that Congress
could not displace. Id. at 640. For Jackson and five other Justices, the answer was no. Justice Jackson
rejected the notion that the President could rely on his “executive Power,” his powers as
“Commander in Chief of the Army and Navy,” or his power to “take Care that the Laws be faithfully
executed”—all granted under Article II—to justify a domestic seizure Congress had considered and
not approved. Id. at 640-46. Nor could the President rely on “nebulous, inherent powers never
expressly granted” by the Constitution, including “emergency powers.” Id. at 646-47. Justice
Black’s majority opinion agreed. Id. at 586.

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As an assault upon the separation of powers, President Trump’s order goes far beyond the
order struck down in Youngstown. President Truman did not take action that Congress had
specifically considered and rejected immediately prior to his action. But that is exactly what
President Trump did. He asked Congress to authorize and appropriate $5.7 billion to fulfill his
campaign promise of a wall at the Southern Border, which he had assured the electorate Mexico
(and not the American taxpayer) would fund. White House, Remarks by President Trump on the
Humanitarian Crisis on our Southern Border and the Shutdown (Jan. 19, 2019),
https://tinyurl.com/y7gdj6s8. Congress debated the President’s proposal and, after weeks of
negotiation, passed the 2019 Consolidated Appropriations Act allocating only $1.375 billion—not
for a wall, but rather for “construction of primary pedestrian fencing, including levee pedestrian
fencing, in the Rio Grande Valley Sector” of the border. H.J. Res. 31 § 280(a)(1). Congress went
out of its way to differentiate this fencing from a border wall, limiting the designs to ones already
deployed, which did not use solid material like concrete. Id. § 230(b). The Congressional record
precludes any doubt that Congress rejected the President’s proposal.3 The emergency declaration is
a transparent attempt to implement it anyway.

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Vice Chairman of the Senate Appropriations Committee Patrick Leahy: “The agreement does not
fund President Trump’s wasteful wall.” 165 Cong. Rec. S1362 (daily ed. Feb 14, 2019).
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Moreover, in Youngstown, President Truman faced a real emergency. His attempted seizure
came in the midst of a war, and he worried that labor strikes shuttering the mills would threaten
equipment supplies to American service members in Korea. That threat was credible. At the time of
Truman’s executive order, American armed forces had been fighting in Korea for almost two years
and had suffered nearly 108,000 casualties. See Youngstown, 343 U.S. at 668 (Vinson, J.,
dissenting). By contrast, for the reasons discussed above, President Trump’s declared emergency is
not even a plausible pretext. Whatever inherent power the President may have in true emergencies—
and Youngstown shows that such power is sharply limited—a counterfeit emergency authorizes
nothing. The court must prevent the President from overriding Congress’s clearly expressed will.
The amici adopt and endorse the plaintiffs’ analysis demonstrating that none of the narrow
statutes passed by Congress to deal with real emergencies authorize the President to spend on the
building of a border wall funds appropriated for other purposes. As demonstrated above, there is an
utter lack of an emergency. And, as demonstrated in the plaintiffs’ briefs, none of the statutes on
which the President purports to rely is applicable.

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*****
Immigration policy poses significant challenges. But meeting those challenges cannot
require sacrificing the backbone of our democracy: a commitment to the Constitution and the rule
of law. Congress’s power of the purse, like other aspects of the constitutionally enshrined separation
of powers, was “not simply an abstract generalization in the minds of the Framers,” but was
expressly “woven into the document that they drafted in Philadelphia in the summer of 1787.”
Chadha, 462 U.S. at 946 (quoting Buckley v. Valeo, 424 U.S. 1, 124) (internal quotation marks
omitted)).
Because the constitutional structure helps safeguard individual liberty, the Judiciary has long
played a critical role in preserving the structural compromises and choices embedded in the
constitutional text. As the Supreme Court has often explained, the “courts possess power to review
either legislative or executive action that transgresses identifiable textual limits.” Nixon v. United
States, 506 U.S. 224, 238 (1993); Powell v. McCormack, 395 U.S. 486, 506 (1969).

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The Executive Branch has circumvented the Constitution’s clear limits on Executive Power
and usurped Congress’s exclusive power to appropriate money. The Court should enjoin these
unlawful actions and restore the checks and balances that govern the legislative and executive
branches.

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CONCLUSION
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For the foregoing reasons and the reasons set forth in the plaintiffs’ briefs, the Court should
grant the plaintiffs’ motion for a preliminary injunction.

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Dated: May 1, 2019

ARNOLD & PORTER KAYE SCHOLER LLP

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By: /s/ Douglas A. Winthrop_____
Irvin B. Nathan*
Robert N. Weiner*
Andrew T. Tutt*
Kaitlin Konkel*
Samuel F. Callahan*
601 Massachusetts Ave. NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Douglas A. Winthrop
10th Floor
Three Embarcadero Center
San Francisco, CA 94111
[phone]
[e-mail]

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Counsel for Amici Curiae

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*Application for admission pro hac vice
forthcoming

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ATTACHMENT A—LIST OF AMICI CURIAE
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Gary Ackerman
Tom Andrews
James Bacchus
Brian Baird
Michael Barnes
John Barrow
Steve Bartlett
Berkley Bedell
Howard Berman
Douglas Bereuter
Tim Bishop
David Bonior
Rick Boucher
Charles Boustany
Barbara Boxer
Bruce Braley
Jack Buechner
Lois Capps
Robert Carr
Rod Chandler
William Cohen
Jerry Costello
Mark Critz
Joe Crowley
Jim Davis
Lincoln Davis
William Delahunt
Chris Dodd
Byron Dorgan
Steve Driehaus
Donna Edwards
Mickey Edwards
Bill Enyart
Elizabeth Esty
Sam Farr

Vic Fazio
Barney Frank
Martin Frost
Richard Gephardt
Wayne Gilchrest
Dan Glickman
Gene Green
Janice Hahn
Deborah Halvorson
Lee Hamilton
Colleen Hanabusa
Richard Hanna
Paul Hodes
Elizabeth Holtzman
Bob Inglis
Steve Israel
David Jolly
Steve Kagen
Mary Jo Kilroy
Ron Klein
Jim Kolbe
Mike Kopetski
Dennis Kucinich
Nick Lampson
Martin Lancaster
Larry LaRocco
Jim Leach
John LeBoutillier
Mel Levine
Jim Marshall
Carolyn McCarthy
Pete McCloskey
James McDermott
Matt McHugh
Tom McMillan
Brad Miller

George Miller
Walt Minnick
Toby Moffett
Jim Moran
Connie Morella
Leon Panetta
Tom Perriello
Earl Pomeroy
Carol Shea Porter
Silvestre Reyes
Don Riegle
Tim Roemer
Max Sandlin
Claudine Schneider
Patricia Schroeder
Allyson Schwartz
Joe Sestak
Chris Shays
Gerry Sikorski
David Skaggs
Peter Smith
John Spratt
Alan Steelman
Charlie Stenholm
Bart Stupak
Betty Sutton
John Tanner
John Tierney
Jim Turner
Henry Waxman
Tim Wirth
Lynn Woolsey
David Wu
Albert Wynn

ATTACHMENT B
JOINT DECLARATION OF FORMER UNITED STATES
GOVERNMENT OFFICIALS
We, the undersigned, declare as follows:
1.
We are former officials in the U.S. government who have worked on national security and
homeland security issues from the White House as well as agencies across the Executive Branch. We
have served in senior leadership roles in administrations of both major political parties, and
collectively we have devoted a great many decades to protecting the security interests of the United
States. We have held the highest security clearances, and we have participated in the highest levels of
policy deliberations on a broad range of issues. These include: immigration, border security,
counterterrorism, military operations, and our nation’s relationship with other countries, including
those south of our border.
a.
Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee
and naturalized American citizen, she served as U.S. Permanent Representative to the United
Nations from 1993 to 1997. She has also been a member of the Central Intelligence Agency
External Advisory Board since 2009 and of the Defense Policy Board since 2011, in which
capacities she has received assessments of threats facing the United States.
b.
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.
c.
John B. Bellinger III served as the Legal Adviser to the U.S. Department of State
from 2005 to 2009. He previously served as Senior Associate Counsel to the President and
Legal Adviser to the National Security Council from 2001 to 2005.
d.
Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S.
Department of State from 2009 to 2012.
e.
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.
f.
John O. Brennan served as Director of the Central Intelligence Agency from 2013
to 2017. He previously served as Deputy National Security Advisor for Homeland Security
and Counterterrorism and Assistant to the President from 2009 to 2013.
g.
R. Nicholas Burns served as Under Secretary of State for Political Affairs from
2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S. Ambassador
to Greece.
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h.
William J. Burns served as Deputy Secretary of State from 2011 to 2014. He
previously served as Under Secretary of State for Political Affairs from 2008 to 2011, as U.S.
Ambassador to Russia from 2005 to 2008, as Assistant Secretary of State for Near Eastern
Affairs from 2001 to 2005, and as U.S. Ambassador to Jordan from 1998 to 2001.
i.
Johnnie Carson served as Assistant Secretary of State for African Affairs from 2009
to 2013. He previously served as the U.S. Ambassador to Kenya from 1999 to 2003, to
Zimbabwe from 1995 to 1997, and to Uganda from 1991 to 1994.
j.

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

k.
David S. Cohen served as Under Secretary of the Treasury for Terrorism and
Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central Intelligence
Agency from 2015 to 2017.
l.
Eliot A. Cohen served as Counselor of the U.S. Department of State from 2007 to
2009.
m.
Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, as
U.S. Ambassador to Iraq from 2007 to 2009, as U.S. Ambassador to Pakistan from 2004 to
2007, as U.S. Ambassador to Syria from 1998 to 2001, as U.S. Ambassador to Kuwait from
1994 to 1997, and U.S. Ambassador to Lebanon from 1990 to 1993.
n.
Thomas Donilon served as National Security Advisor to the President from 2010
to 2013.
o.
Jen Easterly served as Special Assistant to the President and Senior Director for
Counterterrorism from 2013 to 2016.
p.
Nancy Ely-Raphel served as Senior Adviser to the Secretary of State and Director
of the Office to Monitor and Combat Trafficking in Persons from 2001 to 2003. She
previously served as the U.S. Ambassador to Slovenia from 1998 to 2001.
q.
Daniel P. Erikson served as Special Advisor for Western Hemisphere Affairs to the
Vice President from 2015 to 2017, and as Senior Advisor for Western Hemisphere Affairs at
the U.S. Department of State from 2010 to 2015.
r.
John D. Feeley served as U.S. Ambassador to Panama from 2015 to 2018. He
served as Principal Deputy Assistant Secretary for Western Hemisphere Affairs at the U.S.
Department of State from 2012 to 2015.
s.
Daniel F. Feldman served as Special Representative for Afghanistan and Pakistan
at the U.S. Department of State from 2014 to 2015.
t.
Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 to 2017,
and Director of the Policy Planning Staff at the U.S. Department of State from 2016 to
2017.
2

u.
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.
v.
Suzy George served as Executive Secretary and Chief of Staff of the National
Security Council from 2014 to 2017.
w.
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.
x.
Chuck Hagel served as Secretary of Defense from 2013 to 2015, and previously
served as Co-Chair of the President’s Intelligence Advisory Board. From 1997 to 2009, he
served as U.S. Senator for Nebraska, and as a senior member of the Senate Foreign Relations
and Intelligence Committees.
y.
Avril D. Haines served as Deputy National Security Advisor to the President from
2015 to 2017. From 2013 to 2015, she served as Deputy Director of the Central Intelligence
Agency.
z.
Luke Hartig served as Senior Director for Counterterrorism at the National
Security Council from 2014 to 2016.
aa.
Heather A. Higginbottom served as Deputy Secretary of State for Management
and Resources from 2013 to 2017.
bb.
Roberta Jacobson served as U.S. Ambassador to Mexico from 2016 to 2018. She
previously served as Assistant Secretary of State for Western Hemisphere Affairs from 2011
to 2016.
cc.
Gil Kerlikowske served as Commissioner of Customs and Border Protection from
2014 to 2017. He previously served as Director of the Office of National Drug Control
Policy from 2009 to 2014.
dd.

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

ee.
Prem Kumar served as Senior Director for the Middle East and North Africa at the
National Security Council from 2013 to 2015.
ff.
John E. McLaughlin served as Deputy Director of the Central Intelligence Agency
from 2000 to 2004 and as Acting Director in 2004. His duties included briefing Presidentelect Bill Clinton and President George W. Bush.
gg.
Lisa O. Monaco served as Assistant to the President for Homeland Security and
Counterterrorism and Deputy National Security Advisor from 2013 to 2017. Previously, she
served as Assistant Attorney General for National Security from 2011 to 2013.

3

hh.
Janet Napolitano served as Secretary of Homeland Security from 2009 to 2013. She
served as the Governor of Arizona from 2003 to 2009.
ii.
James D. Nealon served as Assistant Secretary for International Engagement at the
U.S. Department of Homeland Security from 2017 to 2018. He served as U.S. Ambassador
to Honduras from 2014 to 2017.
jj.
James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from
2015 to 2017. He served in the U.S. Department of State from 1989 to 2001, including as
Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the
Balkans.
kk.
Matthew G. Olsen served as Director of the National Counterterrorism Center
from 2011 to 2014.
ll.
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.
mm. Anne W. Patterson served as Assistant Secretary of State for Near Eastern Affairs
from 2013 to 2017. Previously, she served as the U.S. Ambassador to Egypt from 2011 to
2013, to Pakistan from 2007 to 2010, to Colombia from 2000 to 2003, and to El Salvador
from 1997 to 2000.
nn.
Thomas R. Pickering served as Under Secretary of State for Political Affairs from
1997 to 2000. He served as U.S. Permanent Representative to the United Nations from 1989
to 1992.
oo.
Amy Pope served as Deputy Homeland Security Advisor and Deputy Assistant to
the President from 2015 to 2017.
pp.
Samantha J. Power served as U.S. Permanent Representative to the United Nations
from 2013 to 2017. From 2009 to 2013, she served as Senior Director for Multilateral and
Human Rights at the National Security Council.
qq.
Jeffrey Prescott served as Deputy National Security Advisor to the Vice President
from 2013 to 2015, and as Special Assistant to the President and Senior Director for Iran,
Iraq, Syria and the Gulf States from 2015 to 2017.
rr.
Nicholas Rasmussen served as Director of the National Counterterrorism Center
from 2014 to 2017.
ss.
Alan Charles Raul served as Vice Chairman of the Privacy and Civil Liberties
Oversight Board from 2006 to 2008. He previously served as General Counsel of the U.S.
Department of Agriculture from 1989 to 1993, General Counsel of the Office of
Management and Budget in the Executive Office of the President from 1988 to 1989, and
Associate Counsel to the President from 1986 to 1989.

4

tt.
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.
uu.
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.
vv.
Anne C. Richard served as Assistant Secretary of State for Population, Refugees,
and Migration from 2012 to 2017.
ww. Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees,
and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for refugee and
humanitarian issues at the National Security Council, ultimately serving as Special Assistant
to the President for National Security Affairs and Senior Director for Multilateral and
Humanitarian Affairs.
xx.
Andrew J. Shapiro served as Assistant Secretary of State for Political-Military
Affairs from 2009 to 2013.
yy.
Wendy R. Sherman served as Under Secretary of State for Political Affairs from
2011 to 2015.
zz.
Vikram Singh served as Deputy Special Representative for Afghanistan and
Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for Southeast Asia
from 2012 to 2014.
aaa.
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.
bbb. Jeffrey H. Smith served as General Counsel of the Central Intelligence Agency
from 1995 to 1996. He previously served as General Counsel of the Senate Armed Services
Committee.
ccc.
Jake Sullivan served as National Security Advisor to the Vice President from 2013
to 2014. He previously served as Director of Policy Planning at the U.S. Department of State
from 2011 to 2013.
ddd.

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

eee.
Linda Thomas-Greenfield served as Assistant Secretary for the Bureau of African
Affairs from 2013 to 2017. She previously served as U.S. Ambassador to Liberia and Deputy
Assistant Secretary for the Bureau of Population, Refugees, and Migration from 2004 to
2006.
fff.
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 and Senior Director for Inter-American Affairs at the National Security Council
from 1999 to 2000, and as Deputy Assistant Secretary of State for Mexican Affairs from
1994 to 1996.
5

2.
On February 15, 2019, the President declared a “national emergency” for the purpose of
diverting appropriated funds from previously designated uses to build a wall along the southern
border. We are aware of no emergency that remotely justifies such a step. The President’s actions are
at odds with the overwhelming evidence in the public record, including the administration’s own
data and estimates. We have lived and worked through national emergencies, and we support the
President’s power to mobilize the Executive Branch to respond quickly in genuine national
emergencies. But under no plausible assessment of the evidence is there a national emergency today
that entitles the President to tap into funds appropriated for other purposes to build a wall at the
southern border. To our knowledge, the President’s assertion of a national emergency here is
unprecedented, in that he seeks to address a situation: (1) that has been enduring, rather than one
that has arisen suddenly; (2) that in fact has improved over time rather than deteriorated; (3) by
reprogramming billions of dollars in funds in the face of clear congressional intent to the contrary;
and (4) with assertions that are rebutted not just by the public record, but by his agencies’ own
official data, documents, and statements.
3.
Illegal border crossings are near forty-year lows. At the outset, there is no evidence of a sudden or
emergency increase in the number of people seeking to cross the southern border. According to the
administration’s own data, the numbers of apprehensions and undetected illegal border crossings at
the southern border are near forty-year lows.1 Although there was a modest increase in
apprehensions in 2018, that figure is in keeping with the number of apprehensions only two years
earlier, and the overall trend indicates a dramatic decline over the last fifteen years in particular.2 The
administration also estimates that “undetected unlawful entries” at the southern border “fell from
approximately 851,000 to nearly 62,000” between fiscal years 2006 to 2016, the most recent years for
which data are available.3 The United States currently hosts what is estimated to be the smallest
number of undocumented immigrants since 2004.4 And in fact, in recent years, the majority of
currently undocumented immigrants entered the United States legally, but overstayed their visas,5 a
problem that will not be addressed by the declaration of an emergency along the southern border.
4.
There is no documented terrorist or national security emergency at the southern border. There is no reason
to believe that there is a terrorist or national security emergency at the southern border that could
justify the President’s proclamation.
Southwest Border Sectors: Total Illegal Alien Apprehensions by Fiscal Year, U.S. CUSTOMS & BORDER PROTECTION,
https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP%20Southwest%20Border%20Sector%20
Apps%20FY1960%20-%20FY2017.pdf (last accessed Feb. 17, 2019); Southwest Border Migration FY2019, U.S. CUSTOMS &
BORDER PROTECTION, https://www.cbp.gov/newsroom/stats/sw-border-migration (last accessed Feb. 17, 2019).
1

Southwest Border Migration FY2019, supra note 1; Southwest Border Migration FY2017, U.S. CUSTOMS & BORDER
PROTECTION, https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017 (last accessed Feb. 17, 2019).
2

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.
3

Jeffrey S. Passel & D’Vera Cohn, U.S. Unauthorized Immigrant Total Dips to Lowest Level in a Decade, PEW RES. CTR. (Nov.
27, 2018).
4

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”).
5

6

a.
This administration’s own most recent Country Report on Terrorism, released only
five months ago, found that “there was no credible evidence indicating that international
terrorist groups have established bases in Mexico, worked with Mexican drug cartels, or sent
operatives via Mexico into the United States.”6 Since 1975, there has been only one reported
incident in which immigrants who had crossed the southern border illegally attempted to
commit a terrorist act. That incident occurred more than twelve years ago, and involved
three brothers from Macedonia who had been brought into the United States as children
more than twenty years earlier.7
b.
Although the White House has claimed, as an argument favoring a wall at the
southern border, that almost 4,000 known or suspected terrorists were intercepted at the
southern border in a single year,8 this assertion has since been widely and consistently
repudiated, including by this administration’s own Department of Homeland Security.9 The
overwhelming majority of individuals on terrorism watchlists who were intercepted by U.S.
Customs and Border Patrol were attempting to travel to the United States by air;10 of the
individuals on the terrorist watchlist who were encountered while entering the United States
during fiscal year 2017, only 13 percent traveled by land.11 And for those who have
attempted to enter by land, only a small fraction do so at the southern border. Between
October 2017 and March 2018, forty-one foreign immigrants on the terrorist watchlist were
intercepted at the northern border.12 Only six such immigrants were intercepted at the
southern border.13
5.
There is no emergency related to violent crime at the southern border. Nor can the administration justify
its actions on the grounds that the incidence of violent crime on the southern border constitutes a
national emergency. Factual evidence consistently shows that unauthorized immigrants have no
special proclivity to engage in criminal or violent behavior. According to a Cato Institute analysis of
criminological data, undocumented immigrants are 44 percent less likely to be incarcerated

6

U.S. DEP’T OF STATE, COUNTRY REPORTS ON TERRORISM 2017, at 205 (Sept. 2018).

7

See Alex Nowrasteh, Trump’s Wall Will Not Stop Terrorism, CATO INST. (Dec. 18, 2018).

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).
8

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).
9

10

See U.S. DEP’T OF HOMELAND SECURITY, supra note 9.

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 Foreign-Born (Jan. 16, 2018).
11

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).
12

13

See id.

7

nationwide than are native-born citizens.14 And in Texas, undocumented immigrants were found to
have a first-time conviction rate 32 percent below that of native-born Americans;15 the conviction
rates of unauthorized immigrants for violent crimes such as homicide and sex offenses were also
below those of native-born Americans.16 Meanwhile, overall rates of violent crime in the United
States have declined significantly over the past 25 years, falling 49 percent from 1993 to 2017.17 And
violent crime rates in the country’s 30 largest cities have decreased on average by 2.7 percent in 2018
alone, further undermining any suggestion that recent crime trends currently warrant the declaration
of a national emergency.18
6.
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 border justifies its
emergency declaration. But there is no evidence of any such sudden crisis at the southern border
that necessitates a reprogramming of appropriations to build a border wall.
a.
The overwhelming majority of opioids that enter the United States across a land
border are carried through legal ports of entry in personal or commercial vehicles, not
smuggled through unauthorized border crossings.19 A border wall would not stop these
drugs from entering the United States. Nor would a wall stop drugs from entering via other
routes, including smuggling tunnels, which circumvent such physical barriers as fences and
walls,20 and international mail (which is how high-purity fentanyl, for example, is usually
shipped from China directly to the United States).21
b.
Likewise, illegal crossings at the southern border are not the principal source of
human trafficking victims. About two-thirds of human trafficking victims served by
nonprofit organizations that receive funding from the relevant Department of Justice office
are U.S. citizens, and even among non-citizens, most trafficking victims usually arrive in the
country on valid visas.22 None of these instances of trafficking could be addressed by a
border wall. And the three states with the highest per capita trafficking reporting rates are
not even located along the southern border.23
Michelangelo Landgrave & Alex Nowrasteh, Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin,
CATO INST. (Mar. 15, 2017).
14

Alex Nowrasteh & Andrew Forrester, Illegal Immigrant Conviction Rates Are Low, Even When Factoring in Recidivism, CATO
INST. (Jan. 7, 2019).
15

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).
16

17

John Gramlich, 5 Facts About Crime in the U.S., PEW RES. CTR. (Jan. 3, 2019).

18

Ames Grawert & Cameron Kimble, Crime in 2018: Updated Analysis, BRENNAN CTR. FOR JUST. (Dec. 18, 2018).

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).
19

20

See Gustavo Solis, Drug Smuggling, and the Endless Battle To Stop It, USA TODAY (last visited Feb. 18, 2019).

21

2018 National Drug Threat Assessment, supra note 19, at 33.

22

Jenna Krajeski, The Hypocrisy of Trump’s Anti-Trafficking Argument for a Border Wall, NEW YORKER (Feb. 5, 2019).

23

Holly Yan, The Deadly Toll of Human Smuggling and Trafficking in the U.S., CNN (July 28, 2017, 3:45 PM).

8

7.
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
administration’s own deliberate policies towards migrants. For example, the administration has used
a “metering” policy to turn away families fleeing extreme violence and persecution in their home
countries, forcing them to wait indefinitely at the border to present their asylum cases, and has
adopted a number of other punitive steps to restrict those seeking asylum at the southern border.
These actions have forced asylum-seekers to live on the streets or in makeshift shelters and tent
cities with abysmal living conditions, and limited access to basic sanitation has caused outbreaks of
disease and death. This state of affairs is a consequence of choices this administration has made, and
erecting a wall will do nothing to ease the suffering of these people.
8.
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 the southern border will undermine national security by needlessly pulling resources from
Department of Defense programs that are responsible for keeping our troops and our country safe
and running effectively.
a.
Repurposing funds from the defense construction budget will drain money from
critical defense infrastructure projects, possibly including improvement of military hospitals,
construction of roads, and renovation of on-base housing.24 And the proclamation will likely
continue to divert those armed forces already deployed at the southern border from their
usual training activities or missions, affecting troop readiness.25
b.
In addition, the administration’s unilateral, provocative actions are heightening
tensions with our neighbors to the south, at a moment when we need their help to address a
range of Western Hemisphere concerns. These actions are placing friendly governments to
the south under impossible pressures and driving partners away. They have especially
strained our diplomatic relationship with Mexico, a relationship that is vital to regional
efforts ranging from critical intelligence and law enforcement partnerships to cooperative
efforts to address the growing tensions with Venezuela. Additionally, the proclamation could
well lead to the degradation of the natural environment in a manner that could only
contribute to long-term socioeconomic and security challenges.
c.
Finally, by declaring a national emergency for domestic political reasons with no
compelling reason or justification from his senior intelligence and law enforcement officials,
the President has further eroded his credibility with foreign leaders, both friend and
foe. Should a genuine foreign crisis erupt, this lack of credibility will materially weaken this
administration’s ability to marshal allies to support the United States, and will embolden
adversaries to oppose us.
Claudia Grisales, Trump Declares Emergency on Southern Border, Opens Battle Over Use of Military Funds To Build Wall, STARS
& STRIPES (Feb. 15, 2019).
24

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).
25

9

9.
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. We understand that the administration is also claiming that the situation at
the southern border “requires use of the armed forces,” and that a wall is “necessary to support such
use” of the armed forces. These claims are implausible.
a.
Historically, our country has deployed National Guard troops at the border solely to
assist the Border Patrol when there was an extremely high number of apprehensions,
together with a particularly low number of Border Patrol agents. But currently, even with
retention and recruitment challenges, the Border Patrol is at historically high staffing and
funding levels, and apprehensions—measured in both absolute and per-agent terms—are
near historic lows.26
b.
Furthermore, the composition of southern border crossings has shifted such that
families and unaccompanied minors now account for the majority of immigrants seeking
entry at the southern border; these individuals do not present a threat that would need to be
countered with military force.
c.
Just last month, when asked what the military is doing at the border that couldn’t be
done by the Department of Homeland Security if it had the funding for it, a top-level
defense official responded, “[n]one of the capabilities that we are providing [at the southern
border] are combat capabilities. It’s not a war zone along the border.”27 Finally, it is
implausible that hundreds of miles of wall across the southern border are somehow
necessary to support the use of armed forces. We are aware of no military- or securityrelated rationale that could remotely justify such an endeavor.
10.
There is no basis for circumventing the appropriations process with a declaration of a national emergency at
the southern border. We do not deny that our nation faces real immigration and national security
challenges. But as the foregoing demonstrates, these challenges demand a thoughtful, evidencebased strategy, not a manufactured crisis that rests on falsehoods and fearmongering. In a briefing
before the Senate Intelligence Committee on January 29, 2019, less than one month before the
Presidential Proclamation, the Directors of the CIA, DNI, FBI, and NSA testified about numerous
serious current threats to U.S. national security, but none of the officials identified a security crisis at
the U.S.-Mexico border. In a briefing before the House Armed Services Committee the next day,
Pentagon officials acknowledged that the 2018 National Defense Strategy does not identify the
southern border as a security threat.28 Leading legislators with access to classified information29 and

26

Alex Nowrasteh, Sending Troops to the Border Is Unnecessary and Dangerous, CATO INST. (Apr. 4, 2018).

Heather Timmons, The US Border Situation Isn’t a National Emergency, Pentagon Officials Tell Congress, QUARTZ (Jan. 29,
2019).
27

28

See id.

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).
29

10

the President’s own statements30 have strongly suggested, if not confirmed, that there is no evidence
supporting the administration’s claims of an emergency. And it is reported that the President made
the decision to circumvent the appropriations process and reprogram money without the Acting
Secretary of Defense having even started to consider where the funds might come from,31 suggesting
an absence of consultation and internal deliberations that in our experience are necessary and
expected before taking a decision of this magnitude.
11.
For all of the foregoing reasons, in our professional opinion, there is no factual basis for the
declaration of a national emergency for the purpose of circumventing the appropriations process
and reprogramming billions of dollars in funding to construct a wall at the southern border, as
directed by the Presidential Proclamation of February 15, 2019.
Respectfully submitted,
Signed/
1. Madeleine K. Albright
2. Jeremy B. Bash
3. John B. Bellinger III
4. Daniel Benjamin
5. Antony Blinken
6. John O. Brennan
7. R. Nicholas Burns
8. William J. Burns
9. Johnnie Carson
10. James Clapper
11. David S. Cohen
12. Eliot A. Cohen
13. Ryan Crocker
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.”).
30

31

Noah Gray, Acting U.S. Defense Secretary Will Review Programs To Cut for Wall Funding, CNN (Feb. 17, 2019).



Signatures on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School, P.O. Box 208215, New Haven, CT
06520, [e-mail], 203-432-4932.

11

14. Thomas Donilon
15. Jen Easterly
16. Nancy Ely-Raphel
17. Daniel P. Erikson
18. John D. Feeley
19. Daniel F. Feldman
20. Jonathan Finer
21. Jendayi Frazer
22. Suzy George
23. Phil Gordon
24. Chuck Hagel
25. Avril D. Haines
26. Luke Hartig
27. Heather A. Higginbottom
28. Roberta Jacobson
29. Gil Kerlikowske
30. John F. Kerry
31. Prem Kumar
32. John E. McLaughlin
33. Lisa O. Monaco
34. Janet Napolitano
35. James D. Nealon
36. James C. O’Brien
37. Matthew G. Olsen
12

38. Leon E. Panetta
39. Anne W. Patterson
40. Thomas R. Pickering
41. Amy Pope
42. Samantha J. Power
43. Jeffrey Prescott
44. Nicholas Rasmussen
45. Alan Charles Raul
46. Dan Restrepo
47. Susan E. Rice
48. Anne C. Richard
49. Eric P. Schwartz
50. Andrew J. Shapiro
51. Wendy R. Sherman
52. Vikram Singh
53. Dana Shell Smith
54. Jeffrey H. Smith
55. Jake Sullivan
56. Strobe Talbott
57. Linda Thomas-Greenfield
58. Arturo A. Valenzuela

13

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CERTIFICATE OF SERVICE

2

I hereby certify that this document filed through the ECF system will be sent electronically
to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper
copies will be sent to those indicated as non-registered participants on the date of electronic filing.

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/s/ Douglas A. Winthrop_____
Douglas A. Winthrop
10th Floor
Three Embarcadero Center
San Francisco, CA 94111
[phone]
[e-mail]