WASHINGTON (CN) — President Trump’s declaration of a national emergency is already facing a storm of lawsuits, but perhaps the most high-profile legal challenge could come from people who denied Trump money for a border wall in the first place — the House of Representatives.
Soon after word came out last week that Trump planned to declare a national emergency to shift money from other areas of government to the construction of a wall on the Mexican border, Democrats began raising the possibility of a lawsuit challenging the decision.
Speaker of the House Nancy Pelosi left open that possibility in her weekly press conference and after Trump made the announcement Friday, Pelosi and Senate Minority Leader Chuck Schumer said Congress would use “every remedy available” to challenge the order, including “the courts.”
U.S. Rep. Jerry Nadler, the New York Democrat who chairs the House Judiciary Committee, told reporters Thursday it is likely the House would bring a lawsuit, and other lawmakers have endorsed the option in the days since.
Legal experts said the main argument would be fairly straightforward: that Trump violated Congress’s wishes by giving himself more money for a border wall than authorized in a spending bill passed last week. The Constitution gives Congress, not the executive branch, the power of the purse.
“Here, I think you could argue that the votes had been completely nullified because we have this whole history of the last few months where the House has basically said, ‘No, we’re not going to fund this wall,’ and here they’ve come up with a spending package that involves much lesser funding of a wall,” Bernadette Meyler, a professor at Stanford Law School, said in an interview. “And then that vote is basically being nullified by Trump diverting funds from other programs.”
But once in court, the picture becomes less clear.
Congress as an institution rarely sues the executive branch, with one Congressional Research Service report from 2016 finding five instances since 1975. Most of those suits came from House committees, while others cited specific statutory authorizations.
The House’s 2014 lawsuit against the Obama administration over the federal health care law might have the most important bearing on a potential House suit against Trump’s emergency declaration.
That suit in part challenged the Obama administration’s move to repurpose money from different accounts to make cost-sharing payments under the Patient Protection and Affordable Care Act, better known as Obamacare.
A federal judge in 2016 ruled in favor of the House, finding the Obama administration had improperly funded the subsidy program against Congress’s wishes.
Mark Tushnet, a professor of constitutional law at Harvard Law School, said the claims on which the House, then under Republican control, prevailed in that case look similar to the ones House Democrats would bring against Trump.
“Attempts by the House to sue the president go back 30, 35 years and they rarely get very far because judges say you have political means to get back at the president,” Tushnet said. “But in this context, the response is, ‘Well, we used those political means and he’s evading them.’”
Saikrishna Prakash, a law professor at the University of Virginia, noted, however, that the 2016 Obamacare opinion is not binding precedent, and a different judge might see the issue differently.
An important issue is whether the House has standing to bring the suit.
Meyler said courts have traditionally been kinder to legislatures that bring a lawsuit as an institution than they have been to individual lawmakers. She cited the 2015 Supreme Court case Arizona State Legislature v. Arizona Independent Redistricting Commission, in which the court held the Arizona Legislature had standing to challenge a voter referendum that created an independent commission to redraw legislative maps.
“The court seems to be more amenable to having a whole House or whole legislature sue rather than individual legislators,” Meyler said.
A 2016 Congressional Research Service report, however, noted that the Supreme Court mentioned in that case that it might be a different situation if it were a legal fight between Congress and the president, given the separation-of-powers concerns a federal dispute would raise.
Another problem a potential lawsuit from the House could face would be that Congress has its own method of blocking Trump’s action outside of the courts. Under the National Emergencies Act, Congress can pass a resolution terminating an emergency declaration, though because the measure would need Trump’s signature, it would need to pass by a veto-proof majority in both chambers. To reach court, then, Congress might have to exhaust its remedies by passing such a resolution, and have it vetoed.
Meyler said the high bar Congress would need to clear to terminate the emergency would strike a blow against what would otherwise be an argument for locking Congress out of the court.
“I think they can argue that the law that they already passed in terms of the budget, basically, is being nullified by this action and that they can’t override it through the normal process — they’d have to override it through a veto-proof majority,” Meyler said. “I think it’s an argument definitely on the other side, but I don’t think it’s as successful in this case as it could be.”
Tushnet, of Harvard, said the House would be best off attempting to pass the resolution of disapproval before bringing a lawsuit, because it would show normal political means are effectively off the table.
“Eventually, the resolution won’t be legally effective and the odds are high that the veto will stick, but their legal position would be strengthened quite a bit if they tried to do the resolution of disapproval first,” Tushnet said.
Prakash, the University of Virginia professor, said it is hard to tell exactly what a court will do with a House lawsuit against the emergency declaration, considering the numerous political routes Congress could take instead that would leave the courts out of the fight entirely.
“It’s not an open-and-shut case,” Prakash said. “There is certainly broad authority to reprogram funds in many statutes, and that’s just a function of Congress willing to delegate to its institutional rival.”