House Suit Over Trump ‘Emergency’ to Fund Border Wall Gets New Life

President Donald Trump speaks with Rodney Scott, the U.S. Border Patrol chief, as he tours a section of the border wall in San Luis, Ariz., on June 23. (AP Photo/Evan Vucci)

WASHINGTON (CN) — House Democrats scored a victory for checks and balances Friday after the D.C. Circuit revived their challenge to billions of dollars that the Trump administration has diverted to build a border wall.

The Constitution’s Appropriations Clause states no money shall be drawn from the treasury without congressional legislation and a regular accounting of the funds taken.

“To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys,” Senior U.S. Circuit Judge David Sentelle wrote for a three-judge panel. “The Executive Branch has, in a word, snatched the House’s key out of its hands.”

President Donald Trump diverted the funding in February with an executive order after the Congress refused his demand to include $6 billion in its appropriations bill to support construction of a wall between the U.S. and Mexico.

The standoff led to a 35-day government shutdown, the longest in the country’s history, before Trump asserted that he had the power to move the money because of what he called “the national humanitarian crisis at the Southern border.”

“We will have a national emergency and we will then be sued and they will sue us in the Ninth Circuit even though it shouldn’t be there. And we will possibly get a bad ruling and then we’ll get another bad ruling. And then we’ll end up in the Supreme Court. And hopefully we’ll get a fair shake and we’ll win in the Supreme Court just like ban,” Trump said last February, referring to his 2017 travel ban barring entry into the U.S. by the nationals from seven countries where Muslims are in the majority population.

Friday’s ruling for House Democrats is a stark reversal from the one that the Trump-appointed U.S. District Judge Trevor McFadden issued last year.

McFadden concluded that the legislative body lacked standing and further that it had failed to run through all available options it has to put Trump in check. Namely, he pointed to the possibility of achieving a two-thirds majority in the Senate — not an easy feat given the GOP’s control of that body.

Sentelle and his colleagues meanwhile found the House’s challenge was a sound one.

“The Appropriations Clause, thus, provides one foundational element of the separation between the powers of the sword of the Executive Branch and the purse of the Legislative Branch. It is a core structural protection of the Constitution — a wall, so to speak, between the branches of government that prevents encroachment of the House’s and Senate’s power of the purse,” the 24-page unanimous opinion states.

The Constitution makes it “ironclad” that the executive branch cannot spend until both the House and Senate have a say.

“However much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not thus previously sanctioned. Any other course would give to the fiscal officers a most dangerous discretion,” Sentelle wrote. 

The Reagan-appointed Sentelle also skewered the argument that the president can freely spend treasury dollars as it wishes and until a veto-proof majority involving both bodies of Congress forbids it. 

“Even that might not be enough: Under the defendants’ standing theory, if the Executive Branch ignored that congressional override, the House would remain just as disabled to sue to protect its own institutional interests. That turns the constitutional order upside down,” he wrote. 

For this reason, the injury to the House was “concrete and particularized,” the ruling states.

U.S. Circuit Judges Robert Wilkins and Patricia Mille, both Obama appointees, concurred.

Friday’s reversal sends the case back to McFadden for further proceedings.

The Department of Justice did not return a request for comment Friday.

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