Judge Tosses House Challenge to Border Wall Funding

The border fence between San Diego and Tijuana, seen from Mexico. (AP file photo/Daniel Ochoa de Olza)

WASHINGTON (CN) – Declining to take sides in what he described as a “political turf war” between the White House and Democrat-controlled House of Representatives, a federal judge denied a House request Monday to freeze funds taken for construction of a wall at the southern border.

U.S. District Judge Trevor McFadden said he lacks jurisdiction to play referee for the two neighboring branches of government.

“To be clear, the court does not imply that Congress may never sue the Executive to protect its powers,” McFadden wrote in a memorandum opinion.

This past February, President Donald Trump declared a national emergency, in a climactic response to Congress denying funds for his long-promised border wall, to tap military construction accounts to fund a barrier at the border with Mexico.

A month later, Treasury officials transferred $1 billion from the 2019 federal budget earmarked for military construction projects to an account for counter-narcotics support that previously contained $517.71 million. Plans for a second transfer of $1.5 billion are underway.

McFadden said the House has not exhausted all institutional remedies to counter the president’s action – such as a two-thirds majority vote to override the emergency declaration, unlikely given the Senate is under Republican control – and he cannot intervene based on claims the Executive has abused the Legislature’s authority and House Democrats have no other option but to sue.

Citing lack of binding precedent and failure to establish standing as the primary reasons for his decision, McFadden compared portions of the House argument to a “slender reed.”

“This is going to the very heart of our checks and balances,” House attorney Douglas Letter argued last month in court. “We cannot have the president appropriating money.”

But McFadden relied on the principle laid out in Marbury v. Madison that the role of the court is to decide on the rights of individuals, not directives coming out of the Oval Office.

He emphasized the importance of the Judiciary branch to maintain complete independence in political battles between the other branches of government.

“While the Constitution bestows upon members of the House many powers, it does not grant them standing to hale the Executive Branch into court claiming a dilution of Congress’s legislative authority,” McFadden wrote in his opinion.

The judge noted that “rancorous fights” have commonly broken out between Congress and the executive, resulting in 21 federal government shutdowns since 1976 – the most recent and longest in U.S. history this past December over border wall funding.

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