Outside the Beltway

Federal Judge Blocks House Lawsuit Over Border Wall Funding

A Federal Judge in Washington, D.C. dismissed a lawsuit against Trump "national emergency" to fund the border wall, but his ruling did not reach the merits of the lawsuit's claim.

Doug Mataconis · Tuesday, June 4, 2019 · 6 comments

A Federal District Court Judge in Washington, D.C. blocked a lawsuit filed by the House of Representatives against the President’s efforts to use his authority to declare a “national emergency” to bypass Congress and provide funding to his border wall on the southern border with Mexico:0

WASHINGTON — President Trump ended a losing streak in court clashes with the House on Monday, as a federal judge rejected the Democrat-controlled chamber’s lawsuit seeking to stop him from using emergency powers to build a wall along the southwestern border.

Judge Trevor N. McFadden of the United States District Court for the District of Columbia, who was appointed by Mr. Trump, ruled that the House could not show that it had suffered the sort of injury that gave it standing to sue.

The ruling will not have any immediate practical consequences because other groups have already secured an order blocking Mr. Trump from proceeding. But if other courts accept Judge McFadden’s reasoning, the House’s litigation options will narrow as it battles the president on several fronts.

Rulings from trial judges do not set binding precedents, however, and Judge McFadden’s ruling did not concern subpoenas issued by the House seeking information from the administration. He said a different legal analysis applied to disputes arising from such subpoenas.

Judge McFadden said courts should generally resolve disputes between the other two branches only as a last resort. Here, he wrote, “Congress has several political arrows in its quiver to counter perceived threats to its sphere of power,” including legislation “to expressly restrict the transfer or spending of funds for a border wall.”

Moreover, Judge McFadden wrote, “as it has recently shown, the House is more than capable of investigating conduct by the executive.” The House can also file briefs in lawsuits brought by private parties, he added, noting that it did so in the California cases.

“These tools show that this lawsuit is not a last resort for the House,” Judge McFadden wrote.

More from The Washington Post:

A federal judge in Washington on Monday rejected a House lawsuit to block spending on President Trump’s plan to build a wall at the border with Mexico.

U.S. District Judge Trevor N. McFadden denied a House request to temporarily stop spending on the wall, saying the House lacked legal standing to sue the president for allegedly overstepping his power by diverting billions intended for other purposes to pay for it.

“While the Constitution bestows upon Members of the House many powers, it does not grant them standing to hale the Executive Branch into court claiming a dilution of Congress’s legislative authority,” McFadden, a 2017 Trump appointee, wrote in a 24-page decision. “The Court therefore lacks jurisdiction to hear the House’s claims and will deny its motion.”

The decision is at odds with a May 24 ruling by a federal judge in California that temporarily blocked part of the plan because it was using money Congress never appropriated for that purpose.

A central issue for both courts is whether diverting the funds is an illegal act that violates the constitutional separation of powers between branches of the government. Both challenges were brought shortly after the president declared a national emergency along the southern border, but the plaintiffs in California included border communities and environmental groups.

The judge in Washington never touched on the merits of the Democratic-led House’s claim, ruling instead that a single chamber of Congress had “several political arrows in its quiver” remaining to address disputes with a president and could not show that it needed courts to intervene as “a last resort.”

McFadden granted that the case “presents a close question” and added that his ruling “does not imply that [the full] Congress may never sue the Executive to protect its powers.” Still, he said, the Constitution provides the House other levers to use against the executive, including specifically denying funds, passing other legislation, conducting hearings and investigations, or overriding a president’s veto.

McFadden’s order effectively kills the House suit, which sought to block the administration from tapping not only $1 billion already transferred from military pay and pension accounts, but also money from an emergency military construction fund that the administration said it intends to transfer but has not yet moved.

A spokesman for House Speaker Nancy Pelosi (D-Calif.) said Democrats were reviewing the ruling and evaluating whether to appeal.

The Justice Department issued a statement through a spokesman: “The Court rightly ruled that the House of Representatives cannot ask the judiciary to take its side in political disputes and cannot use federal courts to accomplish through litigation what it cannot achieve using the tools the Constitution gives to Congress.”

This case originated, of course, with the “national emergency” that President Trump declared in late February at the same time that he signed off on a final budget deal reached by the House and Senate. That budget, of course, did not include significant funding for the President’s border wall, something that had been the main issue of contention during the thirty-five-day government shutdown that lasted from December 22nd to January 25th. In response to the failure of Congress to provide this funding, the President purported to utilize the authority granted to him under the National Emergencies Act of 1976, which gives the President the authority to declare a “national emergency” that at least in theory includes the authority to divert funding from one part of the Executive Branch to another to address the purported emergency. This authority has been used by Presidents in a variety of ways in the past but never in the manner that Trump used it to provide funding to a project that had been specifically denied by Congress. Indeed, the President seemed to undermine his own case for a “national emergency” at the news conference where he announced it when he admitted that he “did not need to do this.” Specifically, the President admitted that he could have waited for additional funding from Congress but that he wanted to speed the project along. This admission is an obviously damaging admission on the part of the President because it suggests that there is no “national emergency” and that Trump was merely using the alleged authority the law provides to him to get around the political process that the Constitution contemplates.

In response, a number of organizations and entities filed lawsuits against the President in an effort to block his declaration and put a hold on border wall spending and construction. These include suits filed by California and fifteen other states that allege that they would be adversely impacted by the Administration’s action. Another has been filed by the watchdog group Public Citizen on behalf of Texas landowners and an environmental group in Texas. Another lawsuit was brought by the Center for Biological Diversity, Defenders and Wildlife, and the Animal Defense Fund. Others have been filed by the American Civil Liberties Union,
El Paso County, Texas, and the Border Network for Human Rights. Finally, of course, there was the lawsuit filed by the House of Representatives asserting that the President’s efforts to use his emergency powers

In addition to these rulings, Congress also sought to block the President’s declaration of a “national emergency” through the procedures allowed by the 1976 law. Within days after the President had made his declaration, the Democratic-controlled House of Representatives began considering a resolution designed to halt that declaration. That resolution was approved by the House and Senate but vetoed by the President, and Congress unsurprisingly failed to override that veto. Despite that veto, though, it was notable that at least in the Senate the vote against the President’s declaration was bipartisan in some sense, with six Republicans joining in with the Democrats in favor of the resolution. Unfortunately, the number of Republicans in the House who did the same was relatively small.

It’s important to note that this was not a decision on the merits and the Judge’s opinion does not address any of the legal questions raised by the House in its lawsuit or by any of the Plaintiffs in the other cases in this lawsuit. In this respect, it is similar to the fate suffered by the lawsuit filed by California and fifteen other states. In both cases, the Courts ruled that the Plaintiffs lacked legal standing to bring a lawsuit against the President over this issue. In the state lawsuit, the Court ruled that the states had failed to establish the kind of damages necessary to establish standing in a Federal Court. In this lawsuit, Judge Trevor McFadden, who was appointed by President Trump in 2017, the Court ruled that one chamber of Congress lacked a legal basis to file suit against the President under the facts alleged. In so doing, the Court noted that Congress had other means, such as oversight powers, the “power of the purse,” and the power to put forward legislation to limit Presidential authority to push back against the Executive Branch in situations such as this.

Standing is not among the ‘sexier’ areas of the law in Federal Courts, but it has often been a way that lawsuits that seemingly have merit have been cut off at the knees, In a long series of cases that go back decades, the Supreme Court and lower Federal courts have held that in order to have standing to maintain a lawsuit in Federal Court, a Complaint must meet three criteria:

• First, the Plaintiff must have suffered a “concrete” and “particularized” “injury in fact.” Generally speaking, this means that the Plaintiff must allege facts sufficient to show that they have suffered something more than a generalized “injury” that impacts them uniquely from the public as a whole;
• Second, the Plaintiff must show a causal link between the injury and the alleged illegal conduct by the Defendant; and
• Third, the Plaintiff must show that the injury can be redressed by a ruling from the Court.

In both this case and in the lawsuit filed by California and its sister states, the respective district judges found that the Plaintiffs had failed to meet the first criteria in that they failed to show that they had suffered some unique injury by virtue of the President’s action.

Ilya Somin has a post up at The Volokh Conspiracy on this decision, noting that it does seem to conflict with a decision from a difference Judge on the D.C. District Court:

The House claimed that Trump’s illegal divergence of federal funds to the border wall inflicts an “institutional injury” on Congress by undermining its control over federal spending through the power of the purse. Judge McFadden concludes that “an alleged injury to the Appropriations power” is not enough to confer standing. Otherwise, Congress could bring lawsuits in a wide range of cases where presidents spend money in ways congressional leaders claim were not properly authorized. Moreover, he contends that judicial resolution of disputes between the different branches of government should be a “last resort.

(…)

It is true that the House has other  potential tools to use in its conflict with the president. But they all involve passing additional legislation, which is subject to presidential veto. Part of the point of giving Congress control over spending is that the burden of inertia supports them. If they choose not to allocate money for purposes the White House wants, that decision cannot be reversed unless and until they change their minds. Congress can protect its power simply by doing nothing. By contrast, once the president uses funds for unauthorized purposes, Congress cannot prevent it other than by passing new legislation—legislation that the president has enormous leverage over.

I am also skeptical about Judge McFadden’s attempt to distinguish this case from his own court’s 2015 ruling in House of Representatives v. Burwell, where the court ruled that the then-GOP controlled House had standing to sue the Obama administration for illegally spending federal funds on Affordable Care Act health insurance subsidies. Judge McFadden claims that Burwell is too much of a “slender reed” to justify granting the House standing in this case. But the two seem very similar to me. Burwell claimed that standing is permissible in cases that involved “constitutional” violation (the money in question had never been appropriated at all), as opposed to a statutory violation (the statutes at issue do not authorize the spending in question). But, as McFadden himself recognizes the distinction between statutory and constitutional issues here is far from clear. If the wall spending is not authorized by any statute, then Trump’s diversion of the money violates the Constitution by infringing on Congress’ power of the purse.

Because Burwell was a district court decision, it is not a binding precedent that future courts must follow (the same goes for Judge McFadden’s ruling). But if Burwell was correctly decided (as I believe it was), than Judge McFadden is wrong.

While the media coverage of this ruling is framing this as a victory for the Trump Administration, it’s important to note that it is, at best, a limited one. As noted, Judge McFadden did not rule on the merits of the lawsuit and essentially expressed no opinion on whether or not the President’s exercise of emergency powers in this situation was proper, or whether the diversion of funds from purposes specified by Congress was permissible. As a result, its actual impact and importance is relatively limited.

Additionally, it should be noted that the outcome in this case has no impact on the ruling handed down late last month by a Federal Judge in California in cases brought by a number of private organizations and individual Plaintiffs. In that case, the Judge found that the Plaintiffs did pass the standing test and ultimately handed down a ruling that found that the President had overstepped his Constitutional and statutory authority in diverting funds to border wall construction. As a result, the Judge in that case, who had also ruled against California and her sister states in their lawsuit, placed an injunction on border wall funding that remains in place.

The next step for the House of Representatives, of course, would be to appeal this matter to the D.C. Circuit Court of Appeals. Potentially, that court could rule that Judge McFadden erred in his ruling that the House lacked standing to bring the lawsuit and that the case should be allowed to proceed to the merits of the claim. At the moment, though, there is no indication whether that appeal will be taken, though. So, for now, the Trump Administration has won this one but it essentially happened for reasons that don’t really go to the questions presented by the case.

Here’s the opinion:

House of Representative v. … by on Scribd