Green Light for House to Advance Suit on Border-Wall Funding

Gilberto Gil picks up a ball at a park in Calexico, Calif., as the border wall that separates the city from Mexicali, Mexico, from sits in the distance on July 21. Imperial Valley is surrounded on three sides in the U.S. by vast, uninhabited desert and Mexicali’s urban sprawl to the south. (AP Photo/Gregory Bull)

WASHINGTON (CN) — The en banc D.C. Circuit cleared the way Friday for House lawmakers to mount a court challenge over the use of military funds to build President Donald Trump’s long-promised border wall.

Issued in conjunction with its separate decision this morning that lets the House Judiciary Committee enforce a subpoena against former White House counsel Don McGahn, the 7-2 order on the wall is just two paragraphs long.

Both cases concerned whether courts may weigh in on disputes between the political branches, and the court had consolidated the cases for oral argument on April 28.

“The en banc court’s decision in McGahn resolves that common issue by holding there is no general bar against the House of Representatives’ standing in all cases involving purely interbranch disputes,” the unsigned order in the wall case states.

Without touching the merits of the border wall dispute, the majority found simply that the House is not categorically locked out of civil litigation. From here, the case returns to a three-judge panel that heard arguments in the case in February but never ruled.  

That panel, which featured Obama appointees Judges Patricia Millett and Robert Wilkins as well as Reagan appointee David Sentelle, appeared skeptical of the White House’s contention that courts have no role in the dispute.

In both the McGahn case and the dustup over the border-wall funding, the Trump administration has argued disputes between the executive and legislative branches must be resolved through political means and that courts have no role to play.

A full sitting of the D.C. Circuit rejected that view in the McGahn case and reversed a three-judge panel that held the opposite in February.

Judges Karen LeCraft Henderson and Thomas Griffith — both appointees of President George W. Bush — dissented from the order, writing the court should have resolved the entire case rather than sending it back to the original panel.

“By reserving these matters for the panel to consider in the first instances, the remand order disserves the parties’ expectations and makes poor use of scarce judicial resources,” Judge Karen LeCraft Henderson wrote.

Griffith wrote the House does not have standing to carry the lawsuit even under the view of legislative standing the court endorsed in the McGahn case, which he described as “discredited.”

“The parties have been litigating this case for well over a year and the court’s remand of the matter to the panel will likely delay final judgment for at least that long again,” Griffith wrote. “Such delay not only deprives the parties of timely resolution of this dispute, but it leaves this circuit’s law on congressional standing uncertain.”

The dispute between House Democrats and the White House over the border wall dates to the impasse over funding the precipitated the longest government shutdown in U.S. history at the end of 2018.

That shutdown began when Congress refused to budge from the $1.375 billion it provided for border wall construction in the yearly spending bill. Trump finally agreed to sign a spending bill in February 2019, but at the same time declared a national emergency the White House said would allow up to $8.1 billion to flow to wall construction.

The House filed suit, arguing the new funding authority the White House claimed infringed on Congress’ constitutional power over federal spending.

“That so misunderstands an absolute key part of our Constitution and why the framers put the provision in as a result of their knowledge of the experience of the Glorious Revolution in England, the need to limit a monarch from just spending freely,” House attorney Douglas Letter said during April arguments before the D.C. Circuit.

Speaker of the House Nancy Pelosi did not immediately respond to a request for comment on the border-wall order.

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