WASHINGTON (CN) — The D.C. Circuit gave the Trump administration a cool reception Tuesday as it attempts to quash a lawsuit by Congress in the funding fight over the president’s long-promised border wall.
When Justice Department attorney Michael Raab denied that there are any circumstances under which courts should resolve disputes between the legislative and executive branches, the three-judge panel presiding over arguments this morning tested that argument with a volley of hypothetical scenarios.
U.S. Circuit Judge Patricia Millett conjured a situation in which Congress overrode the president's veto of a bill that clearly said the president could not spend any money on a border wall, only for the president to ignore the prohibition. To the Obama appointee's surprise, Raab stuck by his assertion that Congress could not go to court over that situation.
"Courts have to sit back and watch the separation of powers collapse and say, 'nothing we can do about it,'" Millett said, summarizing Raab's case.
Across nearly an hour and a half of sometimes-feisty arguments, the judges struggled with Raab's position, which Millett said would dramatically cede power to the president and be a significant "constitutional line to cross."
U.S. Circuit Judge Robert Wilkins, also an Obama appointee, wondered whether the president would be able to sue if the situation was reversed and Congress denied his ability to exercise a power the Constitution grants to him alone.
Tuesday's arguments come after a federal judge ruled in June that the House could not sue over Trump's 2019 declaration of an emergency that allowed him to fund construction of a border wall with money freed up from other accounts.
That declaration came at the resolution of the longest government shutdown in U.S. history and allowed Trump to access billions more than Congress had appropriated for the project in a spending bill Trump signed.
In its lawsuit, which does not name Trump as a defendant, the House of Representatives argued the declaration effectively washed away the votes of lawmakers who explicitly declined to give Trump more money for the wall.
The House and Senate each voted to terminate the emergency declaration, but the House was unable to override the veto, leading to the lawsuit.
Arguing before the D.C. Circuit on Tuesday, House General Counsel Douglas Letter said courts should indeed be cautious about weighing in on interbranch political squabbles, but that the case over the emergency declaration subverted Congress' unique authority to control how money the federal government may spend.
Absent a court ruling, the House has exhausted its remedies to vindicate it constitutional role, Letter said.
"Here the votes clearly were nullified," Letter said. "There was nothing more, as a practical matter that the House could do. It had done everything. It was stuck."
In probing Letter's case, the judges primarily focused on whether the House, as just one chamber of a bicameral legislature, can bring suit based on injuries that the Senate also suffered. The judges also seemed unreceptive to Letter's request that they rule on the merits of the dispute, rather than just deciding the standing issue that was the basis of McFadden's ruling.
Letter said the House could seek depositions from top administration officials, including Trump, if the case returns to the District Court for further development of the factual record.
Raab's argument against Letter rested primarily on precedent, arguing that courts up to the Supreme Court have been cautious about allowing the legislative and executive branches to bring their bouts into court rather than keeping them in the political arenas.
Responding to the judges' concerns that, if Congress cannot bring suit, the administration's funding maneuver can effectively never be challenged in court, Raab said a lawsuit would be possible from a private party that lost out on money redirected to the border wall from other projects.
Raab repeatedly cited the 1997 decision in Raines v. Byrd in which the Supreme Court held members of Congress did not have standing to bring a court challenge to the Line Item Veto Act. He particularly pointed to Justice David Souter's concurring opinion that explained courts have throughout the history of the country been reluctant to step into disputes between the branches out of concern over the public perception of such a ruling.
But the judges were quick to note the facts in Raines, which dealt with only a handful of legislators rather than the whole House of Representatives, are different than those presented in the current case.
While Raab called it the "touchstone" holding of Raines that courts have not allowed suits between Congress and the executive branch in the past, U.S. Circuit Judge David Sentelle said that does not mean a court might not find reason to do so if presented with a compelling case.
"I never touched that stone," Sentelle, an appointee of President Ronald Reagan, said Tuesday.
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