The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, federal district Judge Trevor McFadden issued a ruling dismissing a lawsuit filed by the Democratic-controlled House of Representatives challenging President Donald Trump's attempt to divert defense funds to build his border wall. The decision does not reach the merits of the dispute, and therefore does not even attempt to resolve the issue of whether Trump's actions are legal. Instead, Judge McFadden concluded that the House lacked "standing" to bring the case in the first place. While the ruling addresses an important legal issue, I believe it will not have much effect on the ultimate fate of the litigation over Trump's wall spending. Even if the House is knocked out of the game on procedural grounds, other lawsuits against the administration can still proceed.
Supreme Court precedent holds that a plaintiff must have standing to bring a case in federal court. In order to meet that burden, it must prove that it has 1) suffered an "injury in fact" that is "concrete" and "particularized," 2) that there is a causal link between the injury and the defendant's supposedly illegal conduct, and 3) that the injury can be redressed by a judicial ruling. Judge McFadden concludes that the House suit failed on the first criterion: the House did not suffer an injury in fact.
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." Here, the House has many other ways to assert its interests against the president:
[T]the House retains the institutional tools necessary to remedy any harm caused to this power by the Administration's actions. Its Members can, with a two-thirds majority, override the President's veto of the resolution voiding the National Emergency Declaration. They did not. It can amend appropriations laws to expressly restrict the transfer or spending of funds for a border wall under Sections 284 and 2808. Indeed, it appears to be doing so…. And Congress "may always exercise its power to expand recoveries" for any private parties harmed by the Administration's actions.…
More still, the House can hold hearings on the Administration's spending decisions. As it has recently shown, the House is more than capable of investigating conduct by the Executive…
The availability of these institutional remedies shows that there is no "complete nullification" of the House's power.
I think Judge McFadden is right to consider this issue a "close question." As he explains, Supreme Court precedent issue of congressional standing—like many parts of standing doctrine—is far from a model of clarity. But I still think he got the question wrong.
A diminution of congressional power over spending strikes me as a compelling example of a "concrete" and "particularized" injury. It is concrete because it literally infringes on Congress' control over material resources (in this case billions of dollars in federal spending). It is particularized because the power in question is unique to Congress. No other organization can claim similar authority over the federal budget.
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.
There is some irony in the fact that a Democratic House is today relying on the same sort of argument to oppose a GOP administration that the Republican House in 2015 used to sue a Democratic one. On this, as on many other legal issues, where the parties stand depends more on political convenience than principle. Along with "fair weather federalism," we also have "fair weather separation of powers"
In my view, the right way to deal with the vagaries of standing doctrine is to get rid of it entirely (at least as a constitutional rule), because it is nowhere actually mandated by the Constitution. Unless and until the Supreme Court does that, we are going to have dubious hair-splitting decisions like Judge McFadden's ruling.
Be that as it may, his decision is unlikely to have much effect on the litigation over Trump's wall spending. As McFadden notes, there are numerous other ongoing lawsuits challenging the legality of Trump's wall spending. Many of them have been brought by local governments, charitable organizations, and landowners that have property and other interests in the area where the wall would be built. They clearly are likely to suffer "injury" from the wall project (even in the narrow sense of the word), and many of them are likely to get their cases decided on the merits, even if Judge McFadden's ruling stands.
Indeed, there has already been one such ruling, issued by a district court in California just a few days ago. It went against the administration. There will likely be more such decisions soon enough.
If this decision survives on appeal, its real significance will not be in the effect it has on the wall litigation, but in the precedent it sets for future congressional suits against the president for undermining the separation of powers. Some of them may involve issues where there are no private parties available to take up the slack. Republicans who applaud this ruling may not be happy when a Democratic president exploits it in the future.