Appeals Court Permits House to Sue Over Trump’s Border 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 —

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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 —

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Appeals court revives House lawsuit against Trump border wall

A federal appeals court in Washington, D.C., revived a lawsuit by House Democrats challenging the Trump administration’s authority to use military funds for a border wall on Friday.

In a 3-0 decision, the appeals court reversed a lower court’s dismissal of the case. Friday’s ruling means the House has the right to sue. The case will be sent back to the trial court level.

The House filed its lawsuit last year, claiming President TrumpDonald John TrumpSteele Dossier sub-source was subject of FBI counterintelligence probe Pelosi slams Trump executive order on pre-existing conditions: It ‘isn’t worth the paper it’s signed on’ Trump ‘no longer angry’ at Romney because of Supreme Court stance MORE’s use of a national emergency to divert military funds for border wall construction unconstitutionally bypassed Congress’s authority to appropriate funds.

U.S. District Judge Trevor McFadden, a Trump appointee, dismissed the case in 2019, ruling that the House lacked standing to sue over the national emergency order that allowed Trump to divert military funds to the border wall.

The appeals court said Friday that the Trump administration “cut the House out of its constitutionally indispensable legislative role” of handling appropriations.

“To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The executive branch has, in a word, snatched the House’s key out of its hands. That is the injury over which the House is suing,” the three-judge panel on the D.C. Circuit wrote.

The judges consisted of one Reagan appointee and two Obama appointees.

A ruling in favor of the administration “would fundamentally alter the separation of powers by allowing the Executive Branch to spend any funds the Senate is on board with, even if the House withheld its authorizations,” they wrote in their opening.

“Expenditures made without the House’s approval—or worse, as alleged here, in the face of its specific disapproval—cause a concrete and particularized constitutional injury that the House experiences, and can seek redress for, independently,” the judges added.

The White House did not immediately respond to a request for comment.

It is unclear what practical effect it would have if Democrats ultimately prevail in their lawsuit.

The Supreme Court has allowed the Trump administration to use defense funds amid litigation in the case, despite a California-based court’s ruling that the scheme is unconstitutional.

Disputes over Trump’s financing tactic arose early last year after he declared a national emergency at the southern border in an effort to free up additional funding for his signature project. Trump’s move came after a congressional spending bill allocated some $1.3 billion for border security, which fell short of the nearly $5 billion Trump said was needed.

Trump then reallocated $2.5 billion in funding that Congress appropriated for defense and military uses, sparking several lawsuits.

A federal district court in California last year temporarily halted the use of the reappropriated funds. But the Supreme Court in July 2019 stayed that order, allowing the administration to use defense funds

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Appeals court rejects rehearing in transgender bathroom case

RICHMOND, Va. (AP) — A federal appeals court on Wednesday denied a request for a full-court review of a ruling that a Virginia school board’s transgender bathroom ban is unconstitutional.

The 4th U.S. Circuit Court of Appeals in Richmond rejected a request from the Gloucester County School Board for a rehearing to review a ruling that the board’s policy discriminated against Gavin Grimm, a transgender student who was barred from using the boys bathrooms at Gloucester High School.

The board’s policy required Grimm to use restrooms that corresponded with his sex assigned at birth — female — or to use private restrooms.

A federal judge in Norfolk ruled against the school board last year, a ruling that was upheld last month by a three-judge panel of the 4th Circuit.

The school board had argued that laws protect against discrimination based on sex, not gender identity. Because Grimm had not undergone sex-reassignment surgery and still had female genitalia, the board’s position was that he remained anatomically a female.

An attorney for the school board did not immediately respond to a request for comment Wednesday.

Grimm filed his lawsuit in 2015, saying he suffered from urinary tract infections from avoiding school bathrooms as well as suicidal thoughts that led to hospitalization.

The lawsuit became a federal test case when it was supported by the administration of then-President Barack Obama. It was scheduled to go before the U.S. Supreme Court in 2017, but the high court hearing was canceled after President Donald Trump rescinded an Obama-era directive that students can choose bathrooms corresponding with their gender identity.

Grimm, now 21, graduated in 2017. He lives in California and is an activist for transgender rights.

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Appeals court denies re-hearing in Gloucester transgender bathroom case; U.S. Supreme Court could be next

A federal appeals court on Tuesday denied the Gloucester School Board’s request for a full rehearing in the long-running case of a lawsuit filed by a transgender student.

The next step could be the U.S. Supreme Court — where the case had once been destined before the high court sent it back to lower courts in 2017. The decision by the 4th U.S. Circuit Court of Appeals wasn’t unexpected: Requests to have all 15 judges hear a case are rarely successful, granted less than 1% of the time.

In August 2019, a Norfolk federal judge ruled that the School Board’s policy — limiting bathroom usage at the schools to students “with corresponding biological genders” — violated transgender student Gavin Grimm’s constitutional rights and federal legal protections. Last month, a three-judge panel for the 4th Circuit voted 2-1 to uphold Wright Allen’s ruling, likening the board’s policy to illegal racial segregation in public accommodations.

The Gloucester School Board filed a petition Sept. 9 asking that all 15 judges on the appellate court — from Virginia, West Virginia, Maryland, North Carolina and South Carolina — hear the case “en banc.”

But none of the 15 judges wanted to do that. That included Judge Paul V. Niemeyer, who sided with the School Board in last month’s 2-1 ruling. Niemeyer wrote Tuesday that the case “merits” a rehearing “under every applicable criterion,” but that the outcome wouldn’t change.

“There is no reason to conclude that this court, even though en banc, will change its mind,” Niemeyer wrote.

“It would, I believe, be the more efficient course” for the Gloucester School Board to ask the U.S. Supreme Court to hear the case, he wrote. “The issues in this case certainly merit its doing so.”

Niemeyer asserted that biological and anatomical differences between people are “at the root of why restrooms are generally separated on the basis of sex.” Grimm, he wrote was not treated differently from other transgender students.

“In stepping past these applicable legal principles, this court’s opinion simply advances policy preferences, which, of course, are for Congress to define, not our court,” Niemeyer wrote.

Another judge on the three-judge panel, James Wynn, wrote against a rehearing on a different ground — that the courts have gotten it right so far.

“The rights guaranteed by our Constitution enshrine this country’s most fundamental values and inviolable principles designed to protect individuals and minorities against majoritarian politics,” he wrote.

“The district court below delivered on this promise by holding that under our laws, the Board unlawfully discriminated against Grimm,” Wynn added.

Grimm — who identifies as a male — began using the boys’ room at Gloucester High School in late 2014. But after parents objected to the practice, the board soon adopted a policy barring him from doing so.

Grimm and the ACLU sued the School Board in 2015, asserting that the policy turned him into an outcast and violated both his constitutional rights and federal law.

David Corrigan and Gene Schaerr, outside attorneys

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Gloucester School Board appeals recent ruling declaring bathroom ban unconstitutional in Gavin Grimm case

GLOUCESTER, Va. (WAVY) — In another development in a yearslong battle over bathroom rights for transgender students, the Gloucester County School Board has made an appeal in court over a ruling that said its transgender bathroom ban was unconstitutional.

The school board announced Wednesday it was appealing a previous court ruling that said the division had discriminated against a transgender male student, Gavin Grimm.

The board has requested an en banc review in the Richmond-based United States Court of Appeals for the Fourth Circuit. That means the full circuit court of appeals — all the judges — could hear the case and could potentially overturn the previous ruling by a three-judge panel.

“We await that court’s further guidance,” the school wrote.

The last ruling, considered a victory for transgender rights advocates, as well as Grimm, was made late last month.

The panel determined that Gloucester’s requirement that Grimm use restrooms corresponding with his biological sex — the female bathrooms — or private bathrooms violated his rights when he was in school five years ago.

The three-judge panel with the appeals court wrote that the school board sent Grimm “to special bathrooms that might as well have said ‘Gavin’ on the sign.”

The panel’s decision upheld a previous one from a federal judge in Norfolk. That judge ruled in 2019 that Grimm’s rights were violated under the Constitution’s equal protection clause as well as under Title IX, a federal civil rights law that protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.

Grimm began transitioning from female to male while attending school at Gloucester High School.

He has chest reconstruction surgery and hormone therapy. In 2016, as a senior in high school, he legally changed his sex to male via state court order and on his birth certificate.

Stay with WAVY.com for updates.


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House Democrats ask appeals court to review ruling that McGahn doesn’t have to testify

House Democrats asked a larger panel of judges on a powerful Washington, DC-based appeals court on Tuesday to review whether former White House counsel Donald McGahn must appear before a congressional committee and testify about President Donald Trump.



Don McGahn looking at the camera: White House counsel Donald McGahn at a Senate Judiciary Committee hearing on Thursday, September 27, 2018 on Capitol Hill.


© Melina Mara-Pool/Getty Images
White House counsel Donald McGahn at a Senate Judiciary Committee hearing on Thursday, September 27, 2018 on Capitol Hill.

The filing is the latest chapter in a significant separation of powers dispute concerning whether federal courts can enforce legislative subpoenas against executive-branch officials.

Late last month, a three judge panel of the US Court of Appeals for the District of Columbia Circuit ruled that the House’s lawsuit against McGahn must be dismissed. The court reasoned that Congress had to enact law expressly authorizing such a suit before it can go forward.

Now the House wants the full court to review the opinion.

In the new filing, House general counsel Douglas Letter argued that the opinion by the three judge panel “hamstrung the House’s constitutional right to obtain information.”

Letter said it was time for the full court “to resolve this matter so that the House can finally act upon its subpoena and obtain the information it requires to carry out its constitutional responsibilities.”

The House Judiciary Committee has been trying to interview McGahn under oath since spring 2019, and Democrats say they want to question him about potentially obstructive behavior from the President during the Russia investigation, which McGahn witnessed and had disclosed to special counsel Robert Mueller.

But the case has ping ponged between a three judge panel of the court, and the full panel of judges. Previously, the same split panel of three judges said the House didn’t have the ability to take the executive branch to court over a subpoena. But then the full appeals court disagreed, sending the case back to the same three judges.

The Justice Department, representing Trump and his Cabinet, had argued the courts should stay out of the disputes, letting Congress use politics and legislation to force the administration into compliance if it must.



Don McGahn wearing a suit and tie


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