Border wall

Federal Judge Dismisses House of Representatives Border Wall Lawsuit for Lack of Standing

The decision does not reach the merits of President Trump's attempt to divert military funds to build his border wall.

|The Volokh Conspiracy |

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.

 

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  1. “Otherwise, Congress could bring lawsuits in a wide range of cases where presidents spend money in ways congressional leaders claim were not properly authorized.”

    This is bad because we don’t want the Executive Branch to be held to spending only what Congress authorizes?

    1. Except if the purpose of demanding standng is to stop the hoi polloi from filing innumerable court cases, clogging the system, this cannot be said of Congress, who is the opposite of that and unique in that they created the law being prospectively abused.

      The judge is just speculating.

      1. I accidentally clicked “flag” on the comment above. Please ignore it.

    2. That was my reaction. I’m not actually seeing the problem there.

      1. It’s a problem because it’s being applied to Trump and no one else.

        1. “It’s a problem because it’s being applied to Trump and no one else.”

          Maybe because Trump’s the only one who’s currently President, and no one else is?

      2. To expand on that, it was never applied in the past, and won’t be applied in the future to Democrat Party presidents. It’s intended to rein in Trump solely because he’s an “illegitimate President.”

        1. You mean, other than when it was applied to Obama in _Burwell_?

        2. So, the problem is the instances where it isn’t applied, not the ones where it is.

  2. I don’t think the House had standing in either Burrell or here.

    The Judiciary is merely a coequal branch of government. It cannot directly referree disputes between coequal branches.

    So long as no-one else is affected, it’s no business of the Judiciary’s if Congress’ laws are flouted.

    1. “It cannot directly referree disputes between coequal branches.”

      It absolutely can. It would prefer not to.
      Example… the courts had to decide whether Nixon had to turn over tapes to Congress, or not.

  3. I think the standing issue can be differentiated from Burwell without splitting too many hairs. In Burrell the funds had never been appropriated. Trump is spending funds that had been appropriated and repurposed according to the National Emergencies Act of 1976. One is a constitutional transgression, the other if anything is a dispute about it being a lot easier for congress to pass a statute ceding power than it is for them to claw back the power down the road.

    In some ways it would be best to let congress flex its undoubted institutional power to rectify both cases, however it’s needs to be united to do so. But we don’t want to make every dispute between congress and the president an impeachment fest.

    But really if the Senate ever gets to 2/3 favoring impeachment, the best solution would be for congress to gut the imperial presidency using its veto proof majority rather than impeach over political disagreements.

    1. I think the standing issue can be differentiated from Burwell without splitting too many hairs. In Burrell the funds had never been appropriated. Trump is spending funds that had been appropriated and repurposed according to the National Emergencies Act of 1976.

      The court got it wrong; there’s no distinction been spending money that hasn’t been appropriated and spending money that hasn’t been appropriated for the purpose for which it was spent.

      The claim that the emergencies act allows the money to be repurposed is a merits argument, not a standing argument.

      1. Agreed. I happen to think they should lose it on the merits, (Congress was stupid enough to pass the National Emergencies act, now they have to live with it until it’s repealed.) but the standing argument here is bogus.

    2. The veto override to rein in the executive, which would require 2/3 of both houses rather than just the Senate, should in theory be more achievable with bipartisan support than impeachment since it is a narrower solution to a problem that both parties in Congress should acknowledge. In reality though I doubt it would be more achievable just because the triggering event is the wall: It would be campaigned against as an attack against Trump’s signature policy rather than an attempt to rebalance government power, and congressional Republicans will be as wary of attacking the President’s wall as they would be of attacking the President.

      1. The basic problem here for the Congressional Republicans is that Trump is much more in line with what the Republican voting base want, than they are. They don’t dare be seen as deliberately opposing him, and they certainly can’t vote to impeach him for something they basically ran on themselves.

        That’s the origin of most of the opposition Trump has seen from the GOP establishment: They’ve been running a bait and switch on their base for a couple generations now, and Trump actually proposed to deliver what was promised.

        1. “The basic problem here for the Congressional Republicans is that Trump is much more in line with what the Republican voting base want, than they are.”

          The basic problem for Congressional Republicans is that they are assigned the task of creating legislation that works, whereas the President just has to promise people what they want to hear. We’re gonna build a wall (wait, that means higher taxes to pay for it, so, um, you won’t have to pay for it, Mexico will pay for it! Yeah, that’s how we’ll do it!)
          This is a recurring theme. We’re gonna repeal ACA and replace it with something better. Got an idea for something better? No, why, is that a problem?

          The modern Republican party is an alliance between social conservatives and moderate businessmen. The social conservatives want to be allowed to be openly bigoted again, instead of being shamed for it, and the moderate businessmen want relief from regulation and taxes that keep them from making as much money as they think they could be making. The problem is, the two don’t agree about much of anything except being opposed to anything the Democrats want to do… as a result, the last decade of Republican “ideas” have been largely confined to “whatever they did or said, we’re against it”.

          Even Trump spends most of his time whining about Democrats keeping him from doing whatever it is he thinks his audience wants him to do… whether or not Democrats are actually keeping him from doing it, whatever it is.

          1. I think you’re making some leaps of logic there. While it is theoretically Congress’ job to create legislation that works, I’ve seen little evidence of them actually doing that for, well, pretty much all of my adult life. And that has been a bi-partisan problem. You say that “the President just has to promise people what they want to hear.” I would lay that same charge at the feet of just about every Senator and Representative in Congress.

            1. “I think you’re making some leaps of logic there. While it is theoretically Congress’ job to create legislation that works, I’ve seen little evidence of them actually doing that for, well, pretty much all of my adult life.”

              It is Congress’ job to write laws that work, not to write laws that work the way you wish they did.

              ” You say that ‘the President just has to promise people what they want to hear.'”

              Specifically, I’m claiming that, at present, the fans of the President are happy if he says what they think they want to hear, and don’t seem to care if he delivers anything like what he promised, or even anything at all.
              It’s one thing to have a politician who lies. It is another thing to have an electorate that is satisfied with nothing but lies, with nothing done to back them up.

              1. We’re happy if he looks like he’s trying to fulfill his campaign promises. We’d be happier if Congress carried their end of the load. But we’re perfectly aware that he is NOT, in fact, a dictator, and thus needs cooperation from the other branches to do it.

                1. “We’re happy if he looks like he’s trying to fulfill his campaign promises.”

                  He isn’t. Yet his fans go along with him when he pretends he is.

                  Remember, he had that “better than Obamacare” health care system “ready to sign on day one”. Then it turned out he didn’t have anything, and he wanted someone else to do it. When they didn’t do it, he did… what?

                  Trump is more than happy to tell you what you think you want to hear. But he is either unwilling or incapable of actually DOING anything (possibly both. Likely both on many issues.) Instead, what he wants to do is take credit for other peoples’ work. He’s more than happy to do THAT. But if nobody’s getting it done, it’s everybody’s fault but Mr. Trump’s.

                  And y’all keep letting him get away with it. Nobody to blame but yourselves. (J/K. I know you’ll blame the Democrats, and the “deep state”, and anyone else you can think of.)

          2. Say all you want about the wall, but if we diverted our spending to Israel for a year, we could build it in one year swift.

          3. That’s a gross oversimplification for partisan purposes. Mexico is literally paying for the wall right now and they’re going to pay more with each passing day so long as Trump remains in office. You can’t say otherwise unless you’re going to deny the reality that we’re damaging their trade and pressuring them to commit more resources (their own resources, not tariffs paid by US citizens). Also, repealing ACA isn’t a “do nothing” solution. The solution is a return to free markets and if that needs to be articulated and explained on Reason of all places, god help us.

            1. “That’s a gross oversimplification for partisan purposes. Mexico is literally paying for the wall right now and they’re going to pay more with each passing day so long as Trump remains in office.”

              Oh, honey.

            2. Mexico is literally paying for the wall right now and they’re going to pay more with each passing day so long as Trump remains in office.

              Do you know who gets taxed in a tariff, awildseaking?

              1. “You can’t say otherwise unless you’re going to deny the reality that we’re damaging their trade and pressuring them to commit more resources (their own resources, not tariffs paid by US citizens).”

                Do you know how to read?

                1. Making a claim that something is ‘reality’ does not actually make it so.

                  The problem we have with your words isn’t their syntax, it’s the lack of intellect behind them.

                  1. Speaking of lack of intellect, are you actually suggesting that tariffs do not increase prices and thus do not actually harm Chinese exporters? Because that’s reality, not because of sophistry as you so claim, but because of the fundamental basics of supply and demand.

                    1. “are you actually suggesting that tariffs do not increase prices and thus do not actually harm Chinese exporters”

                      Yes, that is how it works. If country A imposes a tariff, and country B doesn’t, then exports go to country B instead of country A. This increases scarcity in country A, leading to higher prices. Higher prices are a benefit to exporters, not a detriment.

                      You need more than one semester of economics.

                2. The part in italics above is a quote from you. That’s the part where you don’t know how tariffs work.

                  That earlier you appeared to understand, and then later forgot or something, doesn’t make you look better.

                  1. That’s exactly how tariffs work. They damage foreign producers by reducing their comparative advantage and force the nation in question to negotiate with us in order to remove said tariffs. Trump specifically stated that we’re trying to make Mexico contribute more to border security and I don’t see us sending them any checks to patrol the borders or stop the caravans.

        2. “The basic problem here for the Congressional Republicans is that Trump is much more in line with what the Republican voting base want, than they are. ”

          If true, this means Republicans deserve another half-century or more of having their political preferences rejected by the people who shape American progress.

      2. Pretty much every political position can be spun to look like something else, sometimes even something else it really isn’t.

        Saying “you can’t do X because the other guys will frame it as Y” isn’t really an answer, unless cowardice is your primary personality trait.
        We got mired in Vietnam because Johnson didn’t want to be labeled “soft on Communism”, not because the US actually has a significant interest in what happens in the region.

  4. The notion of no particularized interest seems belied by the opinion itself, when the judge cites what congress, not the house, could do in response. Suggesting a need for joint action by congress to vindicate a power particular to the house seems itself to be unconstitutional, and a powerful argument for why this case should have been decided the other way.

    The house, not congress, has the constitutionally particularized interest in originating appropriations. Much has been made of that power, at the time of the founding and ever since, as one of the principal guarantors of separation of powers.

    How can it be that the house has no cognizable interest in defending that power? When the judge asserts that to seek a remedy, the house must avail itself of procedures it can not exercise on its own, but only with the cooperation of a hostile senate, the opinion reads more like a taunt than like a considered opinion.

    I am a non-lawyer who is certain he does not understand standing. Nevertheless, I can’t see why that matters in this case, because the flaw in the decision is logical, not legal. Or is it frequently true that adverse standing decisions ignore reason to keep from court the cases judges fear deciding on the merits?

    1. “The house, not congress, has the constitutionally particularized interest in originating appropriations.”

      The House has the constitutionally particularized interest in originating taxes.

      “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

  5. 1. Congress authorizes appropriations.
    2. Congress authorizes regulations on how those appropriations can be spent.
    3. President uses those appropriations and regulations to spend money in a way Congress doesn’t like (but authorized).
    4. Lawsuit?

    1. Merits argument, not standing argument.

    2. “3. President uses those appropriations and regulations to spend money in a way Congress doesn’t like (but authorized).”

      There’s a small, but very significant error in this statement. It should be
      “3. President uses those appropriations and regulations to spend money in a way Congress doesn’t like (but authorized?).”

      I think there’s an argument to be made that when the Congress authorizes the President to do things in an emergency, they do still intend an actual emergency to exist at the time. In other words, they didn’t mean “emergency” to mean “a time when the Congress won’t appropriate funds for something the President wants to do.”

      Now, the fun part will be, what other “emergencies” have the President’s staff thought up to declare if the current “emergency” gets shut down in court. Will it be “There’s flooding in Ohio. Emergency! I’m going to build the levee in Texas…”?

      1. “In other words, they didn’t mean “emergency” to mean “a time when the Congress won’t appropriate funds for something the people want to do and have been clamoring for decades about but have been denied traditional legal avenues because of traitors at all levels of government who benefit from importing illegals and stealing representation to further cement their power.””

        FTFY. Illegal immigration has been an emergency since the moment our elected officials decided it was advantageous to keep migrants in the US permanently.

        1. “Emergency” comes from the same root as “emergent”, meaning “new”, or “sudden”. So your argument that this “emergency” is older than we think is actually not a very good one.

          Emergency:
          noun, plural e·mer·gen·cies.
          1) a sudden, urgent, usually unexpected occurrence or occasion requiring immediate action.
          2) a state, especially of need for help or relief, created by some unexpected event:

          1. The problem with declaring this not an emergency, is that border crossings have been rising rapidly since late last year. The situation is, by the numbers, is objectively getting worse, fast.

            Border Patrol apprehensions, October 2011-present

            Take a look at that graph about a third of the way down. When Trump took office, illegal border crossings dropped dramatically for a short while, because illegal aliens actually do follow the news, and thought a new policy was in place. Then the crossings started growing, as that news revealed that only the President was in favor of that new policy, and the courts and Congress were going to obstruct it.

            By September of last year, border crossings were back where they’d been before Trump took office, and then they spiked. And kept spiking.

            The more people attempt our borders without our government putting effective measures in place, the more people come. It’s basically a human wave attack at this point, completely swamping our (deliberately limited!) capacity to cope.

            Potential illegal immigrants are rationally responding to the knowledge that only one branch of government wants to stop them, and it can’t by itself.

            1. This is a lot of spin.

              Apprehensions != border crossings.

              It’s basically a human wave attack at this point
              Cut out the dramatics, you just look silly.

              And Illegals likely care and know more about ICE’s latest directives than about what’s happening in Washington.

              1. https://www.npr.org/2019/05/31/728556493/are-tariffs-on-mexico-the-right-way-to-stymie-illegal-immigration

                Apprehensions are actually down compared to historical data, but the number of unique people crossing keeps increasing.

                1. The number of people everywhere keeps increasing. 4 billion, 5 million, 6 billion…

            2. The thing you cited at me says that what’s different is that parents are bringing their kids more than they did before.

              What, exactly, makes that change an “emergency”? (Note that when Obama went to a Republican Congress to request to be allowed to hire more officers to hear deportation cases, they didn’t even bother to schedule a hearing to talk about the request. That doesn’t sound like an emergency.

  6. Oops. Right. Too early in the morning. Thanks Brett.

    1. I, too, have problems when the blood level in my caffeine stream gets too high.

  7. When did government by litigation become a thing?

    1. Immediately after government by ignoring the law became a thing.

    2. When the courts became the super-legislature.

    3. “When did government by litigation become a thing?”

      Marbury v. Madison.

  8. The practical implications of this decision on the wall are pretty much nil: the case is still being litigated, and wall construction is still enjoined, pursuant to the California case.

    The practical implications of this decision, if it stands, on _everything else_ are pretty spectacular. Suppose Congress relents and gives Trump $25 billion for wall construction in next year’s budget. Suppose the next president decides that climate change, not unauthorized border crossings, is the biggest emergency facing the country, and decides to spend the remaining $20 billion of wall funds on building giant solar and wind generation facilities instead (and for kicks, redirects $50 billion of Pentagon funding for research into green energy). Under this ruling, what is Congress’s remedy? Passing a law saying that the President can’t do that? You need a veto-proof majority in both houses. Impeaching the President? A majority of the House, plus two-thirds of the Senate. Oh, right – “holding hearings.” Thanks, judge!

    I was only briefly a FedSoc member in law school, but I don’t recall this being the sort of thing we spent a lot of time arguing for.

    1. The answer is to elect a President who won’t veto that bill. Elections have consequences and we shouldn’t throw out good procedure just because the outcome is bad for the people, lest we become literal Communists who centrally plan everything because we think we know what’s best for others.

      1. Of course elections have consequences. That’s why Trump can’t get his wall funded: because the American people elected a Congress who didn’t support funding it. Saying “we shouldn’t throw out good procedure just because the outcome is bad for the people” as a defense for throwing out 220 years of appropriations procedure is irony that even Alanis Morissette couldn’t screw up.

        1. The problem with saying that is that they didn’t run on being opposed to funding it. He’d have gotten his wall a couple years ago if it hadn’t been for a fair number of Republicans who had lied their way into office.

          1. Since when has _that_ been the standard? If it were, then we could limit Trump’s electoral mandate to locking up Hillary Clinton and pretty much put a pin in it there. Not to put too fine a point on it, but Trump didn’t run on funding the wall, either, did he?

            1. When he was running for the job, he explicitly said Americans wouldn’t pay for the wall. Now that Americans are not paying for the wall, President Trump is complaining that they believed him.

              Here’s a responsible middle point:
              How about if the President personally funds the building of the wall on spec, and then bills Mexico for it, with enough markup to make a profit on the endeavor.

          2. “He’d have gotten his wall a couple years ago if it hadn’t been for a fair number of Republicans who had lied their way into office.”

            Perhaps they ran on supporting measures that would actually make a difference, and then supported measures that would actually make a difference.

            1. Yeah, in some hypothetical alternate universe they could have done that. In this one they just dedicated themselves to making sure the problem they’d run on solving never got solved.

              1. Get better candidates?

        2. There’s a lot of reasons Republicans lost the House and the wall wasn’t one of them, which is why you’ll see Trump 2020 and a red wave.

          There is no appropriations procedure being thrown out here. Congress decided to allow the President to redirect funding for emergencies. If you don’t like that, vote better.

          1. “Congress decided to allow the President to redirect funding for emergencies.”

            Again, this is a merits argument, not a standing argument. (And, for what it’s worth, a merits argument that was rejected by the only court to rule on it to date.)

            1. Good thing I didn’t say it was a standing argument. IANAL and don’t really care for procedural mumbo jumbo. The fact that the argument was rejected thus far really isn’t an argument at all. Of course there will be uncertainty when a subject is addressed for the first time.

              1. ” IANAL and don’t really care for procedural mumbo jumbo.”

                A law professor blog seems like an odd place to find you, then.

  9. I tend to agree that the power of the purse is the one clear way for Congress to remedy other actions of the executive they believe to be unconstitutional. If we accept Congressional standing at all in interbranch conflicts, disputes over illegal spending seem the most likely grounds for it.

    Now it’s possible to suggest that Congress never has standing over things like this, but that’s the only other reasonable position, imo.

  10. […] 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: […]

  11. I think this is pretty easy to distinguish from Burwell.

    The House in Burwell didn’t have a political remedy. How should Congress unappropriate money that they never appropriated in the first place?

    The House in Mnuchin has a political remedy. They failed to succeed using that political remedy for political reasons. They acceded to the President’s authority to use this money for the wall when they passed an objection to the President’s declaration of a national emergency.

    The court is not a referee between the Executive and Legislature. Congress has power here. Their failure to exercise that power is for lack of political will, not because the President abused his power.

    If Congress had successfully overridden the President’s veto and objected to his declaration of a national emergency and the President continued to spend the money then there would be a controversy.

    1. The President takes money appropriated for A and spend it on B instead. If Congress doesn’t have a veto-proof majority in both houses, by your (and the court’s) logic, what’s to stop him?

      1. “what’s to stop him?”

        One possible answer is that President Next-in-Line might have the new Attorney General draw up charges.

        Fun Fact: The former President has no Constitutional powers of any kind.

      2. A, a person who benefits from A’s work, or a victim of B may sue the President for not following the law. This is not a decision on the merits, the Court is not saying the President was right, it is saying that the Court is not the appropriate venue for Congress to seek a remedy.

      3. Except in this case, it’s being spent on A1, which accomplishes the objectives of A, but not in a manner that the House likes.

        1. Take a stand. Do you favor the President ignoring what Congress intended when they appropriate money from the treasury? Or is the President supposed to be bound to what the Congress authorized?
          (Note that if your answers change depending on who the President is and which party controls Congress at the time, your opinion on the question is without value.)

  12. Congress may have an interest in spending creating standing for judicial intervention, a single house does not. Perhaps the Senate is happy with the “diversion”, why should the House’s view control?

    Maybe we ought to get away from government by judges? Its been bad for the country.

    1. “Congress may have an interest in spending creating standing for judicial intervention, a single house does not. Perhaps the Senate is happy with the “diversion”, why should the House’s view control? ”

      You get run into while crossing a crosswalk You want to sue the SOB that ran you over. But maybe I’m OK with the “diversion”. Why should you get a day in court?

      The aggrieved party gets to show up in court and make the case that their view should control the outcome. The other party gets to make the case that their view should control the outcome. Sometimes, interested third parties are ALSO given an opportunity to weigh in.

      If we set up a hypothetical where everything is the same (The House wants to sue, but the Senate is happy with things as they are.) Why should the Senate’s view control?
      By any chance, is the answer “because I, Bob, want the outcome the Senate wants, and not the outcome the House wants?” It seems like this might be it.

      1. A single house is not “aggrieved”, Congress as a whole [both houses] may be.

        It was wrong in Burwell too.

        The House can impeach if it feels the President is acting improperly. It may pass specific legislation too.

        It doesn’t do these things because the Seante does not agree so it runs to the courts. Its a sign of weakness.

        1. You do realize that you just inverted the entire structure of the budget process, right? It’s no longer true that spending must be authorized by laws passed by Congress and signed by the President; now the President can spend whatever money is in the budget however he pleases, but Congress can stop him if they have a veto-proof majority in both Houses.

        2. “A single house is not “aggrieved”, Congress as a whole [both houses] may be.”

          This is an assertion you choose not to support with any evidence or argument. It suits your present interests to believe this way. I suggest that if circumstances change, and you prefer a different outcome, so to will your assertion(s) on the subject change (though, I suspect, whatever your new assertion is, it ALSO won’t be backed by any evidence or argument to support it.)

  13. “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.”
    Once again, TDS leads to intellectual incoherence. “Whom the gods would destroy . . . .” Standing doctrine is essential to separation of powers, which was dangerously subverted by Parliament in the seventeenth and eighteenth centuries, but restored by the Framers. Congress is required (by the ex post facto and bill of attainder clauses, inter alia) to act prospectively and generally, the essence of legislative power. The courts are required (by the cases and controversies clause, inter alia) to act particularly and individually, the essence of judicial power. Of course there have been transgressions over the past two and a half centuries, but the principle of separation of powers, the bulwark of our liberties, is even more important than stopping Trump. (Though not to Prof. Somin, who would cut down every tree in the forest to get at the Devil, if necessary.)

  14. On the other hand, if they had planned to visit the empty space where the wall is to be, and very much looked forward to seeing it…

  15. That any judge could seriously write an opinion suggesting that the House has “remedies” in this case, in the form of “investigations” that the President sees no reason to cooperate with and new laws the President would have no reason to follow, and that the House must clearly prohibit any given use of funds it does not intend to permit, is an embarrassment for our entire system of justice. McFadden is a disgrace, working to expand presidential lawlessness without limit.

    Also, classic Trump appointment.

    1. The House has the power to resolve. THE HOUSE. But the House does not have any problems with whats going on. Some members of he House do. But not the House. The political structure is designed to be this cumbersome. In the big picture, the President moving around a few$billion isn’t a big deal. If it were…The legislature would take back the power it has delegated to the Executive. Since the legislature doesn’t see the need…there is no problem. For sure nothing the Judiciary should be sticking their nose in.

  16. Two things

    Trump was merely specifying that funds already approved by Congress for defense be used specifically for the border wall, a form of defense. In Burwell, if I understand it aright, the kinyun coopted fund that were NOT designated by Congress and utilised them to fix a big boo boo HE and HIS plan made. The kinyun was allocating NEW funds not previously designated other than for “defense”. And if guarding against the ingress of illegal invaders is not part of our defense,

    Whether the House have standing to sue is not the most important question to be pondering. WHICH court MUST be the one to take this matter up, as it names the President in his capacity AS president, thus, per Art 3 Sec 2 Par 2 can ONLY be taken up uponi original jurisdiction by the Supreme Court. Thisjudge SHOULD have dismissed it on that basis.

    1. Congress doesn’t approve a pot of money for defense, it appropriates money for specific functions as it directs. The Defense Approps bill is pretty big every year.

      Also, did you call Obama the kinyun? Anyhow, just because Obama did a thing doesn’t mean it’s right.

      Your last paragraph is cool stuff though; I love Federal Courts and I don’t know why. https://www.fjc.gov/history/courts/jurisdiction-original-supreme-court

      1. The money moved was for Defense construction. No specific project(s). The President has just defined the project. Congress delegated the power to declare emergencies. The President has, and if we are honest, Judges have no power to override.

        It’s hard to squeal about violating the constitution, when Eisenhower started the Interstate Highway system as a defense project. Other than Post Roads, highways are a power of the States.

        1. ” if we are honest, Judges have no power to override. ”

          Sure they do. That’s what they’re there for.

          ” Eisenhower started the Interstate Highway system as a defense project.”

          The Interstate highway system IS a defense project. The ability to move men, equipment, and supplies around the country as needed is vital to defense. Mr. Eisenhower had some degree of military experience when he took over as President, as I recall.

    2. ” it names the President in his capacity AS president, thus, per Art 3 Sec 2 Par 2 can ONLY be taken up uponi original jurisdiction by the Supreme Court.”

      The President isn’t listed in A3S2P2.
      “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

  17. This is a political disagreement, not a legal one. Congress has the power to get their way. Yes it may take time, but that’s the nature of bean bag. Judges governing is demonstrably a terrible way to govern.

  18. […] Judge Gilliam is the first federal judge to address (some of) the substantive issues at stake in the wall litigation. But, earlier this month, another federal trial court dismissed a wall lawsuit filed by the Democratic-controlled House of Representatives because the judge concluded the House lacked standing to file the claim. I criticized that ruling (which is also likely to be appealed) here. […]

  19. […] Judge Gilliam is the first federal judge to address (some of) the substantive issues at stake in the wall litigation. But, earlier this month, another federal trial court dismissed a wall lawsuit filed by the Democratic-controlled House of Representatives because the judge concluded the House lacked standing to file the claim. I criticized that ruling (which is also likely to be appealed) here. […]

  20. […] Judge Gilliam is the first federal judge to address (some of) the substantive issues at stake in the wall litigation. But, earlier this month, another federal trial court dismissed a wall lawsuit filed by the Democratic-controlled House of Representatives because the judge concluded the House lacked standing to file the claim. I criticized that ruling (which is also likely to be appealed) here. […]

  21. […] Judge Gilliam is the first federal judge to address (some of) the substantive issues at stake in the wall litigation. But, earlier this month, another federal trial court dismissed a wall lawsuit filed by the Democratic-controlled House of Representatives because the judge concluded the House lacked standing to file the claim. I criticized that ruling (which is also likely to be appealed) here. […]

  22. […] Judge Gilliam is the first federal judge to address (some of) the substantive issues at stake in the wall litigation. But, earlier this month, another federal trial court dismissed a wall lawsuit filed by the Democratic-controlled House of Representatives because the judge concluded the House lacked standing to file the claim. I criticized that ruling (which is also likely to be appealed) here. […]

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