WASHINGTON — In defending President Donald Trump's decision to order billions of dollars in federal funds moved around to pay for a wall along the US–Mexico border, the Justice Department made the sweeping argument Thursday that Congress shouldn't be able to sue the administration at all.
Appearing before a federal judge in Washington, DC, Justice Department official James Burnham argued the US Constitution simply did not give one branch of government — in this case, the Democrat-controlled House of Representatives — the tools to sue another branch.
The framers of the Constitution "would have been horrified by that prospect," Burnham said, since it would put the courts above Congress and the executive branch.
It's an argument that extends far beyond the fight over the border. The Justice Department argued in its brief that lawsuits by Congress to enforce subpoenas to the executive branch were also inconsistent with the Constitution — Burnham cited examples of presidents before the mid–20th century who refused to give information to Congress and weren't taken to court. But both Republicans and Democrats have argued to the contrary when they've gone to court to enforce their subpoenas.
Trump announced in February that he would declare a national emergency and redirect billions of dollars in federal funds to pay for construction at the border. Congress designated $1.375 billion for border barrier construction earlier this year. But Trump’s plan would involve reprogramming an additional $2.5 billion from Department of Defense counter-drug efforts, $600 million from the Treasury Forfeiture Fund, and $3.6 billion in military construction funds to build the wall. Accessing the military construction money required the declaration of a national emergency; tapping the other sources of funds did not.
House Democrats sued the administration in April, arguing Trump's actions fly in the face of multiple congressional votes denying additional funding for the wall; other lawsuits challenging Trump's plans are pending in several courts. The House isn't challenging the lawfulness of Trump's declaration of a national emergency, but rather the specific use of funds from various sources for border wall construction. They argue the administration's plan violates the Appropriations Clause and runs afoul of Congress's authority to decide how federal money is spent.
US District Judge Trevor McFadden made clear at the beginning of Thursday's hearing that he had concerns about whether the House had standing to bring the case at all and whether allowing the case to go forward would violate separation of powers principles. He did not say when he would rule.
The Justice Department has argued in the past in favor of limiting the role of courts in deciding interbranch disputes. But judges have historically found that there is at least some role for them to play in interpreting the law when these sorts of fights come up.
Douglas Letter, general counsel to the House of Representatives, argued there was clear precedent supporting the role of the courts in stepping in to resolve fights between the other two branches. He argued the Constitution did contemplate one branch suing another when it made clear that the executive branch couldn't sue Congress over legislative decision-making.
"The Supreme Court is perfectly comfortable telling us, telling the two branches, here’s what the law means," Letter said.
Letter argued the Founding Fathers would have applauded the House for stepping in to say that the president could not spend money that wasn't appropriated by Congress, a key tenet of the Constitution. Perhaps with an eye to the inevitable appeals to come, he cited language written by Justice Brett Kavanaugh, formerly a judge on the US Court of Appeals for the DC Circuit, highlighting the importance of Congress's appropriations power.
Responding to the Justice Department's argument that Congress had other ways of opposing the executive branch without going to court — for instance, holding hearings or passing legislation explicitly preventing Trump from using funds for this purpose — Letter said Congress did what it was supposed to when it denied the bulk of Trump's request for billions of dollars for border construction. Trump's actions amounted to nullifying Congress's vote, he argued, and members weren't required to pass a measure saying, "No, we really meant it," before they could go to court.
“It seems to me that here, we are dealing with something where Congress did act, and one the keys things to remember is the Supreme Court has said many times the executive can’t spend money on its own," Letter said.
Burnham countered that Trump wasn't ignoring or nullifying Congress, but rather was invoking another law Congress had passed to give the Department of Defense flexibility in spending its funds. He said there were potentially serious consequences for federal officials to spend money that wasn't appropriated, and the administration didn't take that lightly.
If Congress could sue the executive branch when it wasn't happy with what the administration was doing, that opens the door to other types of interbranch litigation, Burnham argued. He said it was absurd to imagine the judiciary suing another branch for removing its authority, and that same logic should apply to Congress suing the executive branch.
"If you allow them to sue, you move the entire political process into Article III," Burnham said, referring to the section of the Constitution that established the judicial branch.
As for the merits of the fight over whether Trump could lawfully move billions of dollars from other sources to fund border construction, McFadden asked Letter about the fact that Congress had passed the very processes Trump was invoking now. Letter said it was still an unlawful workaround — that Congress clearly denied funding for the specific item that Trump was trying to pay for using this money.
Letter also argued that the border construction projects didn't qualify as the kind of "unforeseen" military requirements that fell under the laws cited by the administration — Trump had been talking about wanting to build a wall since he was a candidate. McFadden asked if it was still "unforeseen" as a military project, as opposed to serving a civilian purpose through the Department of Homeland Security. The judge asked if the border was a "gray area" when it came to the role of the military.
Letter said building border walls historically was not a military function, and the military was at the border now supporting Homeland Security. The administration's proposal to define border construction as a military function was "sufficiently bizarre" that the court could rule on whether it was allowed.
Burnham argued that construction of sections of border wall, or border barriers, wasn't a monolith — these were individual projects being funded by money that was appropriated by Congress to the Defense Department and now was being appropriately moved around under authority that Congress gave the department. Where Congress wanted to prohibit the use of funds for specific projects along the border, it had done so, he said.
Burnham also asked the judge to wait to rule on whether the administration could spend certain money designated for military construction during a national emergency until Acting Defense Secretary Patrick Shanahan decided exactly what projects to spend that money on. The Justice Department could better explain why the funds were being lawfully used once they knew what the Defense Department intended, he said. McFadden did not say what he planned to do.