By Jon Dougherty
A lawsuit filed by House Democrats in an attempt to stop POTUS Donald Trump from spending billions of dollars from the Defense Department budget for new border walls along the U.S.-Mexico boundary has hit a legal wall of its own: A skeptical federal judge.
U.S. District Judge Trevor McFadden was asked by Democrats to block the Trump administration from reallocating the funds from DoD after Congress outright refused to give POTUS funding he sought for the project, Bloomberg News reports.
However, McFadden — nominated to the federal bench by Trump in 2017 — expressed reservations about the House Democrats’ legal position from the outset, questioning whether the federal judiciary is the proper forum to resolve disputes that arise between the Executive and Legislative branches.
The question of so-called legal standing “strikes me as a significant issue in this case,” McFadden told said in court.
McFadden questioned House lawyer Douglas Letter if his clients had already tried all other avenues to resolve their dispute with POTUS.
But the judge — a 2017 Trump nominee — had reservations, opining at the outset about an apparent lack of legal precedent and whether courts are the right forum for resolving disputes between the executive and legislative branches. The so-called legal standing question “strikes me as a significant issue in this case,” McFadden said.
Bloomberg noted further:
The standoff over the funding, which began in December, resulted in a record 35-day partial shutdown of the federal government, after which both houses of Congress appropriated just $1.4 billion for Trump’s long-sought barrier. Trump signed the legislation, immediately declared a national emergency and said he’d tap other sources to get the rest of the money, raising the ire of Democrats.
“We cannot have the president appropriating money,” Letter told McFadden during the nearly three-hour hearing Thursday. That is a power reserved solely to Congress under the Constitution and, thus, goes “to the very heart” of our system of checks and balances.
Meanwhile, Justice Department lawyer James Burnham told McFadden the Constitution contains no provisions for allowing one branch of government to sue another in a battle that is then decided by the third branch — a notion he says our framers would have considered “ridiculous.”
As such, Burnham asked McFadden to rule that the House has no constitutional standing to sue the Executive Branch, adding, “Congress has plenty of tools to deal with the problem.”
In addition, he argued that the administration was only spending money that Congress had already allocated, even if it might have originally been intended for other purposes.
But was it? Before Trump, Congress has passed scores of spending bills containing funds that are allocated to a specific department or agency but not for a specific purpose, giving presidential administrations a lot of leeway in how those funds are eventually spent.
Plus, there is a substantial argument to be made that spending DoD funds to provide border security to the country enhances national security, a distinct function of the Pentagon.
For his part, Letter insisted that “both branches do expect the courts to tell them what the Constitution means,” and in many respects that’s true. But the allocation of funds approved by Congress but which are not earmarked for specific purposes negates any claims over control of the funds that Congress may attempt to reclaim after the fact.
House Democrats wanted McFadden to issue a broad preliminary injunction halting the administration’s intent to spend the funds, but he refused, saying he will take both positions under consideration before issuing a ruling.
We’ll see how it goes, but so far, so good for the administration’s ability to continue delivering on the president’s promise to build a “big, beautiful wall” to combat illegal immigration and drug smuggling.
- Follow Jon Dougherty on Twitter at @JonDougherty10