Our Litigators of the Week are Stuart Gerson of Epstein Becker & Green; Richard Mancino of Willkie Farr & Gallagher and Anton Metlitsky of O'Melveny & Myers, who notched a major win in Texas. Working pro bono, the trio teamed up to challenge President Trump's bid to secure border wall funding by declaring a national emergency.

On Oct. 11, U.S. District Judge David Briones in El Paso ruled that the plaintiffs had standing to challenge the president's action, and that the administration's use of funds to build a border wall violated the Consolidated Appropriations Act.

Gerson, Mancino and Metlitsky discussed the case with Lit Daily.

Lit Daily: Who are your clients and how did you get involved in the case?

Stuart Gerson: Our clients are the County of El Paso, Texas, a community that a section of the border wall would, if completed, go through, and the Border Network for Human Rights, an organization that promotes  humane immigration policies and whose members are directly affected by the president's proclamation. 

I got involved in the case at the request of Protect Democracy, one of the public interest groups that initially connected with our clients. I was selected as an experienced trial and appellate litigator and former government official with well-known right-of-center views. Among the others working on the case, [Professor] Larry Tribe offered great skills and experience and has well-known liberal views. It was important that our team be seen as non-partisan, dedicated to the constitution and the rule of law, and not acting for political reasons.

Richard Mancino: Willkie was asked to become a part of the team by Protect Democracy. Willkie litigation partner Shaimaa Hussein and I previously worked on a number of amicus briefs in support of actions challenging various policies related to immigration under the current administration, so it was familiar territory.

Anton Metlitsky: This case was spearheaded by Protect Democracy, a nonpartisan, nonprofit organization dedicated to furthering the rule of law. Justin Florence, who is the Legal Director of Protect Democracy and an old-friend from our days as O'Melveny appellate associates, contacted me after the initial complaint had been filed and we came on board to assist with legal strategy, and to take the lead in drafting the summary judgment papers.

Tell us about the members of your team – what individual strengths did they bring to the representation?

Richard Mancino: Our team includes myself, partner Shaimaa Hussein, and associates Samantha Prince, Jordan Reisch, Michaela Connolly and Madeleine Tayer. 

Shaimaa, Samantha and I previously worked on many other immigration-related pro bono matters. We understood the law and the challenges presented by new immigration policies enacted by the current administration. Our team worked diligently and collaboratively, and devoted a great deal of resources in developing the legal claims and researching the key issues we anticipated would be raised in the litigation. Shortly after filing the complaint, we also traveled to El Paso to meet with community members to gather the necessary facts to support the standing and redressability points that we expected the government to raise in seeking to dismiss our claims.

Anton Metlitsky: The core O'Melveny team was me and Ephraim McDowell, an appellate associate in our Washington, D.C. office who joined us last year from clerkships with Justice Elena Kagan and Chief Judge Merrick Garland (for whom I also clerked many years back). 

We are both very interested in the types of structural separation-of-powers and statutory interpretation issues implicated by this case, and Ephraim in particular really mastered the materials as we were preparing for and drafting the summary judgment papers.  And we were blessed with an incredible co-counsel, including a team from Protect Democracy led by Justin Florence and Kristy Parker, who have really spearheaded this litigation from the outset

It was particularly gratifying when the team entrusted Ephraim—who had not argued in court before but was obviously fluent with the materials and issues in the case—with the responsibility to argue the merits of our summary judgment motion before Judge Briones, with Stuart Gerson arguing the standing issues.

Stuart Gerson: The "team" is a large one composed of excellent law firms and experienced associations (Protect Democracy and Niskanen) all with very talented lawyers. In my own firm, Epstein Becker & Green, I had sought some volunteer pro bono help and was able to put together a group of no fewer than nine partners and associates who spent hundreds of hours assisting in research and formulation of arguments. It was very satisfying to see this large group of lawyers dedicated to litigating an important public issues case.

Can you comment about working with co-counsel? How did you all coordinate your efforts?

Anton Metlitsky: Working with our incredible co-counsel was certainly one of the most gratifying aspects of this litigation. It's been a wonderful experience working with a team of such talented attorneys from across the political spectrum, all of whom believe strongly in ensuring that the executive branch does not exceed its constitutional authority or usurp the authority of Congress.  

Different members of the team focused on different aspects of the case at different times—for example, Kristy [Parker], David Bookbinder, and Rich and Shaimaa's team from Willkie took the lead in investigation and fact development, which was crucial to our standing argument, while we were more focused on the legal arguments and briefing—but the whole team worked together seamlessly in developing legal strategy and arguments.  

Richard Mancino: Working with our co-counsel was an extraordinary experience. There was a tremendous amount of effort, by each attorney across the various organizations, in pursuit of one goal – which was to defend our clients against the unlawful actions of the current administration. The group was highly collaborative and supportive of one another, and as a result, we were able to advance the strongest arguments in support of our clients. 

Stuart Gerson: While a relatively large number of lawyers from several firms and groups worked on the case, the project has been expertly coordinated by Kristy Parker of Protect Democracy. We have regular group conference calls, disseminate research requests among the various entities, produce and edit pleadings and conduct moot courts, all of which has been accomplished cordially and efficiently.

What was your overarching theme or message? 

Anton Metlitsky: There were a lot of legal arguments in the case, but our overarching theme was that under the Constitution, Congress alone holds the power of the purse, and that the executive branch cannot usurp that authority by declaring a national emergency when it disagrees with the way Congress has decided to appropriate funds.  

The general facts of this case were well known to the public. Congress and the Trump administration strongly disagreed about how much money to appropriate for the construction of a wall at our southern border, which resulted in their inability to agree on an appropriations bill before prior appropriations expired (i.e., a partial government shutdown). They eventually agreed on the 2019 Consolidated Appropriations Act, which allocated approximately $1.3 billion to be used on border wall construction—substantially less than the $6.1 billion the Administration had sought.  

Yet almost immediately, the President declared that there was a national emergency at the border and asserted that this emergency and other statutory powers authorized him to spend $6 billion on the wall after all.  

Stuart Gerson: The governing theme of our approach is a conservative one. We believe that the president's so-called "emergency" proclamation is unlawful and, as the court held, that the government's attempt, following Congress's denial of the administration's budget request to fully fund a wall, to redirect to wall construction funds that Congress appropriated for other specific purposes violated the congressional power of the purse as exemplified by the Appropriations Act. Thus, at the base of our arguments, we sought to protect the rule of law and the constitutional prerogatives of the legislative branch which the executive was attempting to arrogate.

Richard Mancino: Our challenge was not a partisan effort or about political views, but rather a defense of the Constitution and delicate balance between the executive and legislative branches upon which our government is founded. In issuing his Emergency Declaration and seeking to use funds appropriated by Congress for other purposes, and instead building additional border construction, the president flouted those fundamental principles.  Our Constitution simply does not permit the president to act unilaterally in that way, disregarding the powers granted to the other branches of government.

What to you were some of the most fascinating elements of the case? How unique were the issues presented?

Richard Mancino: This case is particularly fascinating because the key facts are largely undisputed. The government has not disputed the statements by the president or the fact that he is seeking to use funds that were explicitly denied to him by Congress. Our arguments relied on the president's statement that he did not believe there was an actual emergency necessitating his emergency declaration, his negative remarks about El Paso and the communities at the southern border, and the clear response by Congress denying the president the additional funding that he originally sought for the border wall construction.  

The veracity of those facts was not at issue in this case. The questions before Judge Briones were entirely legal questions of whether the president's actions could be reviewed by the court and whether our clients had standing to pursue their legal claims. As complex commercial litigators, it was a rare and humbling opportunity to dive into constitutional issues and matters implicating the governance of our country. 

Stuart Gerson: Individually, the issues presented are typical of constitutional and administrative law litigation. What is unique is how many of those issues were presented collectively in this case, a range from Article I of the Constitution to the Administrative Procedure Act, to various statutory matters including the determinative one under the Appropriations Act.

Anton Metlitsky: While presidents had in the past declared national emergencies under the act, we are not aware of any previous instance in which an administration has done so to impose a policy or appropriate funds that Congress had expressly considered and rejected.  Moreover, there are very few cases—and none of this magnitude—that squarely address the scope of Congress's authority under the Appropriations Clause, and in particular the executive branch's ability to spend government funds when Congress has expressly considered and rejected such expenditures. 

Take us into the courtroom for the hearing on Aug. 29. How did the argument unfold? Highlights? Surprises?

Anton Metlitsky: The courtroom was full of spectators, including many of our clients—officials from El Paso County and members of the Border Network for Human Rights. Judge Briones split the argument up between standing and the merits—half an hour for each side on standing, and then half an hour each on the merits.  

Stuart Gerson first explained to the court why both our clients had standing to bring this suit.  Stuart was followed James Burnham, a deputy assistant attorney general at the Justice Department in charge of the Federal Programs branch in the Civil Division, who argued against standing. Burnham then returned after a short break to argue the government's position on the merits—i.e., that the administration had constitutional and statutory authority to spend the border-wall funds. Ephraim argued last, addressing why the executive branch's actions violated the Appropriations Clause and the National Emergencies Act and responding to the government's contrary arguments.

Stuart Gerson:  The court listened to both sides intently but had little to say. Besides arguing an important case, the highlight of the case for me was the fact that representatives of our clients could attend and express satisfaction that their rights and interests were sufficiently explained. We represent real people in this case and it is satisfying that they believe they are well served.

Richard Mancino: Judge Briones runs a tight ship. He gave each side an hour apiece to present their arguments, and asked the parties to address standing first. He listened intently to both sides.  What struck me most is that at no point did Judge Briones give a hint or suggestion of where he might be leaning.  

The oral advocacy was excellent all around. I may be biased, but I thought that Stuart Gerson and Ephraim McDowell presented our clients' positions as well as any advocates I've worked with.

What to you were some of the most notable aspects of Judge Briones' decision?

Stuart Gerson: While we presented a number of issues that we believed could support the relief we sought, the court's opinion was economical, scholarly and precise. I am particularly respectful of the fact that, in holding that both of our clients had standing to sue the administration, the court evidenced a persuasive understanding of the impact that the president's actions have had on the community and its citizens. 

While the case could have been decided in our favor on constitutional and other grounds, the court practiced "constitutional avoidance" and decided the case on statutory grounds. This was a well-reasoned approach and our other issues are preserved in the event that they ever need to be addressed. In granting summary judgment, the court made this case the first border wall litigation to have produced a final judgment on the merits.

Richard Mancino: I think the decision is most notable for two reasons. First the court's clear and simple statutory interpretation of the Consolidated Appropriations Act: The defendants raised a number of arguments and case law to get around the clear words of the CAA but the court was not persuaded. Ultimately, Judge Briones based his opinion on a very comprehensive and straight-forward interpretation of the clear words of the CAA. 

Second, the recognition by Judge Briones of the tangible harms inflicted on our clients as a result of the president's actions.  His opinion recognizes that words do, in fact, have meaning especially when they are the words of our president.

Anton Metlitsky: Judge Briones adopted one of our principal merits arguments: that the executive branch's plan to build a border wall using funds appropriated for other purposes violated the 2019 Consolidated Appropriations Act.  

This argument captured the core theme of the case: that Congress reached a decision about whether to appropriate funds for a border wall, and the separation of powers requires the executive branch to respect Congress's decision. Because this ground fully supported Judge Briones's decision, he did not reach the question whether the president's national emergency declaration violated the National Emergencies Act.

What happens next?

Richard Mancino: The court has asked that we present our proposed injunction by Monday. Once entered, we expect that the government will appeal the decision by Judge Briones. We are prepared to respond appropriately.