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Border wall

DC Circuit Rules House of Representatives has Standing to Challenge Trump's Diversion of Funds to Build his Border Wall

The opinion was written by prominent conservative Judge David Sentelle.

|The Volokh Conspiracy |

It may not get much media coverage, due to the furor over the Supreme Court nomination. But yesterday the US Court of Appeals for the DC Circuit issued an important decision holding that the Democratic-controlled House of Representatives has standing to challenge Donald Trump's attempted diversion of military and other funds to build his border wall.

The ruling was written by senior Judge David Sentelle, a prominent conservative judge appointed by Ronald Reagan. Judge Sentelle is a highly distinguished jurist, and generally thought of as one of the two or three most conservative members of the DC Circuit. It's hard to dismiss Sentelle as either a jurisprudential lightweight, or a liberal with an axe to grind against the right.

Perhaps more importantly, Judge Sentelle's originalist and structural analysis of the issue at stake is very compelling, and might well carry the day in the Supreme Court, should they take up the case. As Sentelle emphasizes, the key reason why the House suffered a sufficient "injury" to qualify for standing is that the original meaning of the Constitution embodies the idea that it is essential that the power of the purse remain under the control of Congress, not the executive branch:

The separation between the Executive and the ability to appropriate funds was frequently cited during the founding era as the premier check on the President's power. In fact, "the separation of purse and sword was the Federalists' strongest rejoinder to Anti-Federalist fears of a tyrannical president." Josh Chafetz, Congress's Constitution, Legislative Authority and the Separation of Powers 57 (2017); see also 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 367 (Jonathan Elliot ed., 2d ed. 1836)…. For example, James Madison, in the Federalist Papers, explained, "Th[e] power over the purse may in fact be regarded as the most compleat and effectual weapon with which any constitution can arm the immediate representatives of the people . . . ." The Federalist No. 58 at 394 (J. Madison) (Jacob E. Cooke ed., 1961). At the New York ratification convention, Alexander Hamilton reassured listeners, stating, "where the purse is lodged in one branch, and the sword in another, there can be no danger…"

As evidenced by the quotations above, a repeated theme in the founding era was the importance of putting the power of the purse specifically in the hands of the "representatives of the people." The Federalist No. 58 at 394 (J. Madison) (Jacob E.
Cooke ed., 1961)….

[A]n early draft of the Constitution went as far as to require appropriations
bills originate in the House of Representatives, the representatives of the people. 2 Records 131. While the final text does not include that same origination provision and provides only that "[a]ll bills for raising Revenue shall originate in the House of Representatives," U.S. Const. art. I, § 7, cl. 1, "[u]nder immemorial custom the general appropriations bills . . . originate in the House of Representatives." Cannon's Procedure in the House of Representatives 20, § 834 (4th ed. 1944). In fact, "the House has returned to the Senate a Senate bill or joint resolution appropriating money on the ground that it invaded the prerogatives of the House." Wm. Holmes Brown, House Practice 71 (1996); see also 3 Deschler's Precedents 336 (1976). The appropriations statute at issue in this case originated with the House, as is traditional. 165 Cong. Rec. H997 (daily ed. Jan. 22, 2019); 165 Cong. Rec. H1181–83 (daily ed. Jan. 24, 2019).

While custom cannot create an interest sufficient to establish standing, it can illustrate the interest of the House in its ability, as discussed above, to limit spending beyond the
shared ability of the Congress as a whole.

Judge Sentelle also offers a compelling explanation of why the House has standing to bring the case, even if the GOP-controlled Senate does not agree. For reasons he describes, case is thereby distinguishable from previous cases where the Supreme Court ruled that a single house cannot bring a lawsuit over separation of powers issues:

When the injury alleged is to the Congress as a whole, one chamber does not have standing to litigate. When the injury is to the distinct prerogatives of a single chamber, that chamber does have standing to assert the injury….

[T]he House is suing to remedy an institutional injury to its own institutional power to
prevent the expenditure of funds not authorized. Taking the allegations of the complaint as true and assuming at this stage that the House is correct on the merits of its legal position, the House is individually and distinctly injured because the Executive Branch has allegedly cut the House out of its constitutionally indispensable legislative role. More specifically, by spending funds that the House refused to allow, the Executive Branch has defied an express constitutional prohibition that protects each congressional chamber's unilateral authority to prevent expenditures….

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…

To hold that the House is not injured or that courts cannot recognize that injury would rewrite the Appropriations Clause. That Clause has long been understood to check the
power of the Executive Branch by allowing it to expend funds only as specifically authorized…

The ironclad constitutional rule is that the Executive Branch cannot spend until both the House and the Senate say so….

But under the defendants' standing paradigm, the Executive Branch can freely spend Treasury funds as it wishes unless and until a veto-proof majority of both houses of
Congress forbids it. Even that might not be enough: Under the defendants' standing theory, if the Executive Branch ignored that congressional override, the House would remain just as disabled to sue to protect its own institutional interests. That turns the constitutional order upside down.

As Judge Sentelle emphasizes, the stakes in this case go far beyond the specific policy issues raised by the border wall. If the president is free to reallocate federal funds without regards to congressional authorization, and Congress cannot challenge him without enacting new, veto-proof legislation, that would enable the executive to exercise sweeping control over the power of the purse that it could easily use on a broad range of issues. Conservatives who may like Trump's border wall diversion are unlikely to be happy if a future Democratic president uses the same tactics to divert funds to the Green New Deal or some other left-wing project.

Judge Sentelle relies in part on the DC Circuit's August ruling in Committee on the Judiciary v. McGahn, in which that court ruled that the House (acting without the support of the Senate) had standing to enforce a subpoena against former White House counsel Don McGahn. But, in the above-quoted parts of his ruling, he raises compelling considerations specific to the spending power.

When it comes to the legal battle over the border wall, the congressional standing issue has turned out to be more important than I initially thought, when I assessed the district court opinion the DC Circuit has just overruled. A number of lower court  decisions have ruled against the administration in border wall challenges brought by private parties and  local governments. But these decisions have been stayed on procedural grounds by the Supreme Court and the Fifth Circuit. These procedural concerns likely do not apply to the suit by the House of Representatives, assuming Judge Sentelle is correct about standing, and about the fact that the House has a cause of action under the Appropriations Clause of the Constitution, and thus is not vulnerable to arguments that it hasn't suffered the right type of injury, or lacks a statutory cause of action.

Yesterday's ruling is not a decision on the merits. It does not resolve the issue of whether Trump administration had the authority to divert the funds. The trial court and—eventually—the DC Circuit have yet to consider that issue. But the administration's position on the merits is weak for a variety of reasons discussed in lower court rulings on the subject (see here, here, and here). I discussed some additional flaws in the administration's position here.

The administration could potentially appeal the DC Circuit's standing ruling to the Supreme Court. If the  Supreme Court decides to take the case, it might preclude the district court from addressing the merits until after the justices review the standing issue.  I hope and expect that Judge Sentelle's analysis will appeal to the conservative originalists on the Court. If even two of the five conservatives (or six, if new Trump appointee Amy Coney Barrett gets confirmed) join with the five liberals, the DC Circuit ruling will be affirmed.

If Joe Biden wins the presidential election, the border wall cases might all become moot, because he has promised to end Trump's border wall diversion. But even if that happens, the DC Circuit ruling will still be an important decision, because it sets a precedent for future congressional lawsuits challenging executive diversion of funds without congressional authorization.

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50 responses to “DC Circuit Rules House of Representatives has Standing to Challenge Trump's Diversion of Funds to Build his Border Wall

  1. ” If the president is free to reallocate federal funds without regards to congressional authorization”

    But, of course, he claims authorization, and points to specific statutes.

    I agree that Congress absolutely must have standing to challenge Executive spending decisions, but I expect they’ll lose on the merits much of the time because they’ve genuinely delegated a lot of authority.

    1. The argument here is not whether Trump is authorized, it is whether the House has standing to dispute the alleged authorization.

      1. The line I quoted was concerned with the former.

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    2. I’d agree. The House should have standing to sue.

      1. What about Sharron, Sandy and Trish?

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  2. If the House, one half of Congress, has standing because of “custom” and because it is part of Congress, does a committee where revenue or appropriations bills originate have similar standing, because of custom and it is part of the House?

    How about individual members, whether of those customary revenue or appropriations committees or just House members in general?

    Me, I’m in favor of as may ways to repeal laws, especially spending, as possible. But I wonder how far this goes.

  3. What about all the financial games 0bama played to finance 0bamacare?

    1. Whaaaaaaaaaaa!!! Someone has a dirty diaper…stinky.

    2. What about the Teapot Dome scandal, or President Jackson’s veto of the Bank of the US reauthorization?

      1. Is there some doubt about the legitimacy of that veto?

        1. They sure did at the time.

  4. Trey Gowdy implied Trump’s diversion of military funds to the border wall should be investigated in light of Trump’s “Benghazi” in Kenya in which an American outpost with tens of millions of dollars in American air assets was infiltrated by Al Qaida and they slaughtered 3 Americans after the Kenyan “security” force fled. And to make it worse it took hours to evacuate a severely burned American to a hospital as Trump Tweeted or played golf. Anyway, anyone that voted against Hillary for Benghazi should be strongly opposed to Trump in this election.

    1. That’s quite the tale. Very general in its telling, leads me to conclude the details would reveal a truth you are working hard to hide.

      1. Or you are just a P O S that doesn’t give a f about the military and Americans working for the government overseas…after all, they knew what they signed up for, right?

        1. Perhaps he agrees with his leadership that soldiers who suffer and/or die in service to our nation are “losers”.

          1. Who made that claim? Biden. “applaud you dumb bastards”

            1. “Who made that claim?”

              It was in all the papers, before RBG died and changed the topic of discussion.

              1. The difference, of course, is that you have no trouble actually proving “Clap for that, you stupid bastards,” actually got said. For the supposed Trump statement, you’ve got every supposed witness on record saying it didn’t happen.

              2. Actually, it was in all the papers … before it was debunked by everyone who was present, including John Bolton who hates Trump’s guts.

      2. The attack described by Sebastian is real. It was carried out by al-Shabab, an affiliate of al Qaeda, and took place on January 5 of this year.

        1. Yep, and it happened literally right after the bad Tennessee Williams character Lindsey Graham said there would be “no Bengatheez” on Trump’s watch. Obviously Trump diverting security money for his border wall is a stretch but it is waaaaaaay more likely than what the Republicans alleged about Hillary/Benghazi. And the fact the security force was a bunch of Kenyans shows how irresponsible the faux outrage about the Benghazi local security guards was…because apparently it is standard operating procedure. And throw in Trump’s State officials using WhatsApp instead of official email accounts and the entire Hillary/Benghazi/email smear might be the greatest mountain ever made out of a mole hill…good for Republicans and bad for Comey and Democrats for not defending Hillary.

    2. I’m skeptical that anyone voted against Hillary because of Bengazi. They might have used that as an excuse, but I doubt that was the deciding factor.

  5. President Trump should ignore and plow forward. Pen and Phone.

    1. And the Americans that die in terrorist attacks overseas because Trump fails to protect them are simply collateral damage…right?

      1. Building the Wall will put overseas Americans at risk?

        You can’t be serious.

        1. It has already led to the deaths of 3 Americans in Kenya…much worse than Benghazi because with Benghazi it made sense to employ a local security team because Stevens wanted to keep a low profile. At the Kenya outpost we had Kenyans guarding American pilots and tens of millions of dollars with of American air assets. So I assume you just won’t be voting because Trump FAILED in his duty to protect Americans working for the government overseas??

          1. President Trump instituted such an arrangement? Or maybe it was USAFRICOM leader, General Townsend. Another of the “dumb bastards”, Biden denigrated.
            I’m to believe the President of the United States personally works on every post assignment across the globe?” I think the US military is way better suited to determine proper defense staffing than you.

            You are still working very hard at obscuring the fact.

            1. Take that up with Trey Gowdy who on Bill Maher implied he would have investigated the terrorist attack and the investigation would have included the Trump WH. Personally I believe the DoD investigation is sufficient but that wasn’t Gowdy’s standard with respect to Benghazi. And keep in mind Kenya occurred after Benghazi and tens of millions of dollars of American air assets were involved so there was no hope of keeping a low profile and just the assets would have piqued Al Qaida’s interest…so why was there a Kenyan security force and not much physical barrier and the Marines miles away???

            2. ” working very hard at obscuring the fact.”

              Wow, that is a super tactful way of saying “you are lying sack of shit”.

              Accurate, but tactful.

    2. That seems to be what he is doing. The President has not really pushed for any legislation but rather is trying to address all problems with executive orders. While Obama, Bush and Clinton issued more executive orders it was over an eight year administration. Trump has issued more in his first four years than any of the last three Presidents.

  6. “Changes in Texas election law passed by the Texas Legislature and signed by the Governor of Texas in 2017, which went into effect on September 1, 2020, will result in fewer votes being cast for Texas Democrat candidates for office, therefore the Texas law should be blocked from being used in the upcoming national general election.”

    If a judge can block Texas Voter laws because of fewer Democrat votes, President Trump can do whatever he wants because the court system is garbage and should be treated as such.

    1. A sitting President can do whatever he wants and disregard the court system.

      You can’t be serious.

      1. He means just the Republican ones, of course.

  7. The House should absolutely have standing to sue in this case. No question about it.

    There are a couple other concerns however.

    1. If the House has standing to sue, should there automatically be a block on the spending? (Probably not, for a variety of reasons).

    2. What if the spending is done before the court case is done?

    1. The trick is that either house of Congress can sue to stop Democratic Presidents from doing things, too. That seems like it might matter as soon as next February.

  8. Let’s hope this does go the Supreme Court. It will be a great test that determines whether or not the conservatives on the Court are true conservatives or are opportunistic conservatives, voting a conservative line only when that aligns with their personal political preference.

    Me, I say take the bet that there are five or six false conservatives on the Court. Closest thing to a sure thing.

    1. I don’t think liberal/conservative is a very easy divide on something like this. Roberts is a Judicial minimalist, for example, who defers to the political branches and electorate rather than let the courts get involved. I could see him having a different viewpoint than Gorsuch, for example.

  9. Odd that this topic would engage Sentelle’s attention, since it did not involve the sexual habits of 22-year-old interns.

  10. “If even two of the five conservatives (or six, if new Trump appointee Amy Coney Barrett gets confirmed) join with the five liberals, the DC Circuit ruling will be affirmed.”

    5 conservatives + 5 liberals = 10 total.
    I thought there were only nine judges on the Supreme Court.
    Who are the five conservatives?
    Who are the five liberals?

    1. I think Prof. Somin meant 3 liberals (Kagan, Breyer, Sotomayor).

    2. “Who are the five liberals?”

      The three liberals will join with the two squishy conservatives to form a 5-liberal-vote majority. Leaving the 4 reliably conservative justices to fume and fret, in that event.

      1. Who are “the two squishy conservatives”?
        Who are “the 4 reliably conservative justices”?

        1. “Who are ‘the two squishy conservatives’?”

          The hypothetical two who change sides.

          “Who are ‘the 4 reliably conservative justices’?”

          The other ones.

  11. I don’t think Congress has standing to sue the president. There are enough border wall cases winding there way through the courts by plaintiffs who have standing on more traditional grounds. The courts will be able to side the issue without this.

    1. Any Americans who paid taxes last year should ideally have standing to sue the President for misappropriating Treasury funds.

      1. This is all part of Congress constantly delegating authority to the Executive branch. Which they think is a great idea so long as the President is their guy.

        Trump has seized on the latitude they provided to do what he wants and now the House is going to court to plead that they did not mean what they said. Seems to me that they have standing to sue, but nothing to win on when they get there.

        Profession Somin is, as usual, just pontificating on what he wishes would happen.