Pls.' Opening Br. at 13 n. 14; Defs.' Opp'n and Reply at 25-26, n. 5
(agreeing that arguments for Contra Costa BCTC and BCTD are substantially
the same). Contra Costa BCTC is in a similar position with respect to the
RTV project as BCTD is with respect to the Woodrow Wilson Bridge Project
but for EO 13202, Contra Costa BCTC would have negotiated with the City
of Richmond to require a PLA for the RTV project in which it would be the
exclusive bargaining agent for employees on that project, and would have
helped determine the terms and conditions of employment on the project.
See Plfs.' Opening Br., Ex. C. The Richmond City Council made clear that
it was not requiring a PLA because of EO 13202, and therefore Contra
Costa BCTC's injury is fairly traceable to EO 13202. The requested
injunctive relief will open the door for Richmond to negotiate and adopt
a PLA, thus redressing Contra Costa BCTC's injury. Accordingly, Contra
Costa BCTC has satisfied the injury, causation, and redressability
However, the Court need not determine standing for Contra Costa BCTC
because it has found standing for BCTD and Richmond. It is well-settled
that a court need not determine the standing of all plaintiffs when the
standing of others has been established. See, e.g., Clinton, 524 U.S. at
431 n. 19, 118 S.Ct. 2091; U.S. Airwaves, Inc. v. FCC, 232 F.3d 227,
232-33 (D.C.Cir. 2000).
II. Standard of Review
Summary judgment should be granted only if the moving party has shown
that there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Aka
v. Washington Hosp. Ctr., 116 F.3d 876, 879 (D.C.Cir.), reh'g en banc
granted, 124 F.3d 1302 (1997). Likewise, in ruling on cross-motions for
summary judgment, the court shall grant summary judgment only if one of
the moving parties is entitled to judgment as a matter of law upon
material facts that are not genuinely disputed. See Rhoads v. McFerran,
517 F.2d 66, 67 (2d Cir. 1975).
III. Constitutional and Statutory Authority
The President's authority to issue an Executive Order "must stem either
from an act of Congress or from the Constitution itself." Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S.Ct. 863, 96
L.Ed. 1153 (1952); see also Minnesota v. Mille Lacs Band of Chippewa
Indians, 526 U.S. 172, 188-89, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999).
Section 3 of EO 13202 stems from neither. To borrow the words of the
Supreme Court in Youngstown, "The President's order does not direct that
a congressional policy be executed in a manner prescribed by Congress it
directs that a presidential policy be executed in a manner prescribed by
the President." 343 U.S. at 588, 72 S.Ct. 863.
EO 13202 cites the President's general authority under the "the
Constitution and laws of the United States of America," and in
particular, the Procurement Act (or "the Federal Property and
Administrative Services Act, 40 U.S.C. § 471 et seq."). Despite the
fact that the Procurement Act is the only specific authority cited in EO
13202, and despite the fact that defense counsel initially represented
to the Court at oral argument that the Procurement Act authorized §
have since abandoned this argument because that Act clearly does not
provide authority for § 3's conditions on the receipt of federal
funding. See generally Defs.' Surreply. While § 1 involves
contracting by federal agencies, and is arguably authorized by the
Procurement Act,*fn9 § 3 attempts to regulate the conditions of
contracts by recipients of federal funding. The Procurement Act, which
addresses contracting by the federal government, simply is not relevant
to conditions placed on the funding of projects owned and conducted by
parties other than the federal government.
Defendants now argue that EO 13202 § 3 is authorized by both the
Constitution and several federal statutes other than the Procurement
Act. See Defs.' Surreply at 1.
Defendants' constitutional argument rests on the "well-established"
power of the President to supervise and guide subordinate executive
officials to ensure the consistent execution of the laws. See Defs'
Surreply at 2 (citing Meyer v. Bush, 981 F.2d 1288, 1312 (D.C.Cir.
1993)). Because EO 13202 § 3 contains the caveat "to the extent
permitted by law," argue the defendants, § 3 is simply a directive by
the President to agencies to guide their implementation of existing
statutes. Thus, the defendants argue for the very first time in their
surreply brief, "in order to determine whether, and to what extent,
Section 3 of EO 13202 will apply to a particular grant, the legislation
and regulations governing that grant must be examined." Defs' Surreply at
3. Defendants place far too much weight on the words "to the extent
permitted by law" than those words can bear.
Defendants' argument that EO 13202 is simply a
constitutionally-authorized guidance by the President on the
implementation of existing law is unpersuasive. EO 13202 does much more
than guide agencies as to how to implement existing statutes it creates
substantive prohibitions for federal agencies and substantive conditions
on the receipt of federal funding. Once again, the words of the Supreme
Court in the Youngstown case are particularly applicable here. 343 U.S.
at 587-88, 72 S.Ct. 863. In Youngstown, the government also argued that
the general Article II power of the President to take care that the laws
be faithfully executed justified an action without any other basis in the
Constitution or statutes. Id. The Court rejected that argument:
In the framework of our Constitution, the President's
power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking
process to the recommending of laws he thinks wise and
the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who
shall make laws which the President is to execute. The
first section of the first article says that `All
legislative Powers herein granted shall be vested in a
Congress of the United States * * *.' After granting
many powers to the Congress, Article I goes on to
provide that Congress may `make all Laws which
shall be necessary and proper for carrying into
Execution the foregoing Powers and all other Powers
vested by this Constitution in the Government of the
United States, or in any Department or Officer
Id. The reasons that the Youngstown Court believed the President's action
at issue in that case exceeded his Constitutional authority and intruded
upon Congress' law-making powers are also particularly applicable here: