Can the Courts Decide Turf Battles Between Congress and the White House?

And what happens when a judge clearly doesn’t want to.
by Kim Wehle
June 7, 2019
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What can Nancy do to stop Donald from bypassing Congress on wall funding? She'd really like to know. (Photo by Win McNamee/Getty Images)

On Monday, a federal judge threw out a lawsuit brought by the House of Representatives against Treasury Secretary Steve Mnuchin and other Trump administration officials that challenged the administration’s plan to spend certain funds to build a wall along the U.S. border. The House claimed that the expenditures would violate the Appropriations Clause of the Constitution, which gives Congress the primary authority to decide how taxpayer dollars are spent.

In his decision the judge claimed he had no authority to decide a constitutional dispute between Congress and the president, but that is precisely what he did. In this case, the “powerball” winner was the presidency.

In January, Congress refused Trump’s demands for billions in wall funding, prompting him to start the longest partial government shutdown in the nation’s history. The next month, he declared a national emergency to bypass Congress and use up to $3.6 billion in military funds for the construction. (Trump plans to use an additional $601 million from the “Treasury Forfeiture Fund” and another $2.5 billion in funds allocated for support of counterdrug activities.) Congress passed a resolution blocking his emergency declaration, but the House fell short of the two-thirds majority needed to overturn a veto (13 House Republicans and 12 Senate Republicans joined the initial measure).

There exists a law which provides that, by declaring a national emergency, presidents may authorize certain military construction projects to address the problem. Trump plans to use that loophole to reallocate billions from the Department of Defense budget to build his wall. Hakeem Jeffries (D-NY) explained the House’s reaction to Trump’s declaration this way: “This is not a dictatorship. It’s a democracy. [And] we have the power of the purse and that prerogative has been invaded by Donald Trump.

The Trump-appointed federal judge who dismissed the House’s lawsuit agreed that this is a matter of massive constitutional importance. But to the judge, it was Congress—not Trump—who was acting beyond the pale. He characterized the case as “about whether one chamber of Congress has the ‘constitutional means’ to conscript the Judiciary in a political turf war with the President over implementation of legislation.”

(Days earlier, a federal judge in California partially granted a preliminary injunction against Team Trump on the very same subject, concluding that “the proposed plan for funding border barrier construction exceeds the Executive Branch’s lawful authority under the Constitution and a number of statutes duly enacted by Congress.”)

So, as a constitutional matter, who is the bad guy here—Trump or Congress? And what’s the role of federal judges as referees in this battle?

To be sure, Congress gave presidents the power to declare national emergencies under the National Emergencies Act (“NEA”). The D.C. judge basically punted the case back to Congress, reasoning that Congress needs to marshal the votes to bring the president into line; it’s not the courts’ role to do that job.

But as the judge in the California case noted, “[t]his appears to have been the first time in American history that a President declared a national emergency to secure funding previously withheld by Congress.” Congress definitively said “no” to $5.7 billion for a border wall—giving Trump only $1.375 billion. The president went around that decision and through a side door, grabbing money from other appropriated pots of cash to make up for Congress’s refusal to give him what he wants. The House asked the D.C. judge to stop the president from using the NEA to do what Congress said he couldn’t do through the basic appropriations process.

The judge didn’t hold that the law allowed Trump to do what he did, mind you. He didn’t even reach that question. Instead, he held that Congress had no right to bring the case in the first place.

The theory employed by the judge is known as constitutional “standing.” It’s designed to ensure that courts only resolve disputes between discrete parties over a concrete harm that the defendant caused the plaintiff. If the plaintiff isn’t injured in a particularized way—if the injury is more abstract and generalized, like a generic claim that the president isn’t doing his job properly, for example—that dispute belongs with the political branches of government and must be resolved, if at all, at the ballot box.

Standing doctrine is incredibly squishy. Although designed to confine judges’ power, it in fact leaves judges lots of authority to decide a case on the ultimate legal question presented, under the guise of claiming that the plaintiff is asking for a political judgment that the court doesn’t have the power to decide in the first instance. In short, the D.C. court exercised a tremendous amount of power in refusing to exercise its constitutional power to hear the case.

The House argued that it suffered “institutional injury” by virtue of the Trump administration’s actions because Trump’s maneuver operated to diminish Congress’s power to decide how money is spent under the Appropriations Clause. The judge didn’t exactly conclude that the House’s injury wasn’t a real injury. He instead reasoned that historically, courts have largely stayed out of disputes between the other branches about whether the president is properly executing the laws enacted by Congress, and the Supreme Court hasn’t resolved the precise question presented one way or another. Back in 1803, however, the Supreme Court held in Marbury v. Madison that federal courts have the power to resolve disputes regarding the constitutionality of the other branches’ actions. They do it all the time. The court could have done it here, too.

The separation-of-powers bottom line with any case involving standing to sue is this: If federal courts decline to hear a case, where else can the plaintiffs go? That is, where can the House go to hold Trump in line for allegedly violating the Constitution in attempting to use the NEA to do what Congress refused to do through the Appropriations Clause?

The D.C judge offered some answers, but they’re not especially satisfying ones:

  • Members of Congress can get the two-thirds majority necessary to override Trump’s legislative veto.
  • Congress can “legislate in the future” to expressly restrict the use of military funds to finance the border wall.
  • The House can hold hearings on the Trump administration’s spending decisions.

The first option was already tried, and failed.

Option two is cold comfort. The D.C. judge took the position that it’s not the courts’ role to decide whether the executive branch executes laws properly (an overstatement, of course, because courts review executive actions all the time). But imagine if the president were to employ the NEA to funnel military funds to his own personal bank account, on the theory that his low government salary hinders his ability to do his job as commander-in-chief. Sounds ridiculous, but we live in a real world of ridiculousness. Imagine, too, that the House passes a bill to make the obviously illegal maneuver explicitly illegal, but the Republican Senate refuses to pass the bill because that’s what it does when it comes to Trumpisms (i.e., nothing).

Would the federal courts have no power to step in and declare the maneuver unconstitutional on the rationale that, “too bad, it’s up to Congress to fix it”? That too would be ridiculous. Congress can’t exactly pass a law stating, “we really mean it this time,” and expect Trump to finally care.

Option three, Congress can hold hearings. To be sure, it’s time that the House gets going on its threat to hold hearings on a whole host of Trumpian disasters. But hearings manage only to gather information and make that information known to the public.

The compelling constitutional question of our time is: What can be done about the information once it’s known? An elected official who violates the Constitution must be held accountable if America is to remain governed by the people. Accountability is precisely what courts—and elections—are for.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).