Appeals Court Permits House to Sue Over Trump’s Emergency Wall Spending

WASHINGTON — The House may pursue a constitutional lawsuit challenging President Trump’s use of emergency powers to spend more public funds on a southwestern border wall than Congress was willing to appropriate, a federal appeals court ruled on Friday.

In a unanimous decision, a three-judge panel on the Court of Appeals for the District of Columbia Circuit ruled that the House had claimed a sufficient injury to give lawmakers legal standing to pursue a lawsuit against the Trump administration.

The 24-page ruling partly reversed a decision by a district court judge in June 2019. That ruling had thrown out the lawsuit on the grounds that the House had no legal standing to sue the executive branch over a claimed threat to its constitutionally authorized control over federal spending.

That earlier ruling, by Judge Trevor N. McFadden of the United States District Court for the District of Columbia, whom Mr. Trump appointed to the bench, was wrong, the appeals court said. It would undermine the “ironclad constitutional rule” that the president has no power to spend money without the approval of both the House and the Senate, the panel said.

Under the Trump legal team’s theory, wrote Judge David B. Sentelle, a senior judge on the appeals court, the president was free to spend public money however he wished unless veto-proof majorities in both chambers of Congress were willing to challenge him.

“That turns the constitutional order upside down,” the judge wrote. “The whole purpose of the appropriations clause’s structural protection is to deny the executive ‘an unbounded power over the public purse of the nation,’ and the power to ‘apply all its moneyed resources at his pleasure.’”

Judge Sentelle, a former chief judge of the appeals court, was appointed by President Ronald Reagan. His opinion sending the case back to Judge McFadden to be decided on the merits was joined by two appointees of President Barack Obama, Patricia Millett and Robert Wilkins.

The Justice Department declined to comment about the panel’s ruling. It did not say whether it would appeal to the full appeals court — which has previously rejected the Trump administration’s claims that Congress had no right to pursue the case on other grounds — or whether it would acquiesce and move to fight over the constitutional questions before the district court.

Either way, the case appeared unlikely to be resolved before the election. In making sweeping claims of executive power, the Trump legal team has often suffered losses in court, but in the meantime, it has used appeals and the slow pace of litigation to successfully run out the clock on any definitive resolution of the underlying disputes while it could make a difference politically.

The appeals court did back another part of Judge McFadden’s ruling. The House lawsuit had argued that Mr. Trump’s transfer of funds that Congress had appropriated for other purposes to pay for a wall along the Mexican border violated not only the appropriations clause of the Constitution, but also a statute — the Administrative Procedure Act.

But Judge McFadden had also ruled in 2019 that the House lacked sufficient injury to create standing to sue over that topic. And Judge Sentelle took only a paragraph to say the district court had been correct about that matter, citing previous rulings that “Congress does not have standing to litigate a claim that the president has exceeded his statutory authority.”

The dispute traces to early 2019, when Democrats had just taken over the House after their success in the 2018 midterm elections. The government swiftly shut down because Mr. Trump vetoed spending bills that did not contain as much money for his wall as he wanted. Finally, Mr. Trump declared a national emergency at the southern border that he said empowered him to unilaterally transfer other public money to that project.

Mr. Trump’s move was unprecedented. While presidents had declared national emergencies to unlock special powers dozens of times, none before had done so as an end-run around lawmakers to spend money on a project that they had decided against funding. Mr. Trump also ordered certain military funds Congress had appropriated for other purposes transferred to the wall project under other claimed authorities.

The move provided a face-saving way for Mr. Trump to back down from his immediate confrontation with Congress — he signed spending bills that did not contain his requested wall funding, ending the government shutdown — but set off a longer-term legal fight. Frustrated House Democrats challenged his move in court, part of an unprecedented volume of separation-of-powers confrontations that have ended up in the courts.

The appeals court panel had heard arguments in the case in February. But before it could render a decision, the full appeals court took up the matter in conjunction with a parallel lawsuit in which the House had sued to enforce a subpoena to force Donald F. McGahn II, Mr. Trump’s former White House counsel, to testify before lawmakers.

Source Article