The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 three 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.