Washington, D.C., district court Judge Trevor McFadden threw out the House Democrats’ lawsuit that was looking for an injunction against President Trump for his emergency border wall funding reallocation. According to McFadden, his decision was based on the fact that the matter is a political dispute and the politicians are lacking a legal case.
This past February, President Trump declared a national emergency over the humanitarian crisis at the southern border. The declaration came after Congress failed to find the border wall through legislation. In April, House Speaker Nancy Pelosi and Hosue Democrats filed a lawsuit, claiming that Trump was “stealing from appropriated funds” by moving $6.7 billion from other projects to the construction of the border wall. Democrats have argued that the White House has “flouted the fundamental separation-of-powers principles and usurped for itself legislative power specifically vested by the Constitution in Congress.” In his ruling, McFadden, who was appointed by Trump, suggested that Democrats were attempting to circumvent the political process.
In his opinion, McFadden wrote: “This case presents a close question about the appropriate role of the Judiciary in resolving disputes between the other two branches of the Federal Government. To be clear, the court does not imply that Congress may never sue the Executive to protect its powers. The Court declines to take sides in this fight between the House and the President.” The ruling from McFadden went against the U.S. District Court Judge Haywood Gilliam’s injunction last week, which blocked the administration from using reallocated funds for projects in Texas and Arizona. Gilliam had been appointed by Obama when he was in the White House.
McFadden began by directing focus to two guiding Supreme Court cases he referred to as “lodestars.” One case was the 2015 Arizona State Legislature v. Arizona Independent Redistricting Commission, and the other was the 1997 case Raines v. Byrd. McFadden wrote: “Read together, Raines and Arizona State Legislature create a spectrum of sorts. On one end, individual legislators lack standing to allege a generalized harm to Congress’s Article I power. On the other end, both chambers of a state legislature do have standing to challenge a nullification of their legislative authority brought about through a referendum.” McFadden quickly set apart the Arizona State Legislature case, which found institutional standing for legislatures only in limited instances. In the Arizona case, the judge stated that it “does not touch or concern the question whether Congress has standing to bring a suit against the President,” and the Supreme Court has found there was “no federal analogue to Arizona’s initiative power.”
According to McFadden, the Democrats’ argument was more similar to the one in the Raines case. Considering the factors and the framework of the Raines case, McFadden ruled that House Democrats lacked standing. When it comes to practices from the past, the Trump administration argued that when Congress was concerned about “unauthorized Executive Branch spending in the aftermath of World War I, it responded not by threatening litigation, but by creating the General Accounting Office.” The judge referred back to that argument, calling it “persuasive.”
McFadden has stated that examples of intensely debated political questions being resolved without involving the courts “abound” through history. McFadden wrote, for example, that in 1933, President Franklin D. Roosevelt “fired an official from his Senate-confirmed position at the Federal Trade Commission. …The President removed the official without providing a reason. … The Senate likely had a ‘strong[] claim of diminution of’ its Advice and Consent power. … Yet the Senate made no effort to challenge this action in court.”
McFadden also said that Democrats retained constitutional legislative options to remedy their objections. Under Supreme Court precedent in the Raines case, McFadden pointed out, the existence of those options suggested that Democrats lacked standing. In particular, McFadden noted that Democrats retained the power the modify or repeal the appropriations law if they wanted to “exempt future appropriations” from the Trump administration’s reach. McFadden wrote that because the White House hasn’t “nullified” that power, there’s not an urgent need for judicial intervention. McFadden wrote: “Congress has several political arrows in its quiver to counter perceived threats to its sphere of power. These tools show that this lawsuit is not a last resort for the House. And this fact is also exemplified by the many other cases across the country challenging the administration’s planned construction of the border wall.”
McFadden continued by saying: “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.” McFadden also added that House Democrats had the burden of demonstrating that they had standing, which is difficult for any plaintiff to prove. McFadden quoted former Chief Justice John Marshall’s opinion in the 1803 case Marbury v. Madison, in which Marshall wrote: the “province of the [C[ourt is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.”
Quoting another Supreme Court case, McFadden wrote: “Intervening in a contest between the House and President over the border wall would entangle the Court ‘in a power contest nearly at the height of its political tension’ and would ‘risk damaging the public confidence that is vital to the functioning of the Judicial Branch.'” During a hearing in May, McFadden hinted that the courts should stay out of the issue. He also suggested that an appeal was imminent. “I’m not sure how much necessarily our views will carry the day for the courts above us,” said McFadden at the hearing.
Disagreements are already taking place in the lower courts, setting the course for appellate panels to step in. Gilliam, the judge who ruled last month that Trump was more than likely breaking the law by reallocating the funds, blocked some projects that were meant for immediate construction in Yuma and El Paso. “In short, the position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds without Congress does not square with fundamental separation of powers principles dating back to the earliest days of our Republic,” wrote Gilliam.
