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Judge rejects House suit to block transfer of billions of dollars for Trump border wall

Border wall prototypes in the San Diego sector.
Border wall prototypes in the San Diego sector. (Carolyn Van Houten/The Washington Post)

A federal judge in Washington on Monday rejected a House lawsuit to block spending on President Trump’s plan to build a wall at the border with Mexico.

U.S. District Judge Trevor N. McFadden denied a House request to temporarily stop spending on the wall, saying the House lacked legal standing to sue the president for allegedly overstepping his power by diverting billions intended for other purposes to pay for it.

“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, a 2017 Trump appointee, wrote in a 24-page decision. “The Court therefore lacks jurisdiction to hear the House’s claims and will deny its motion.”

The decision is at odds with a May 24 ruling by a federal judge in California that temporarily blocked part of the plan because it was using money Congress never appropriated for that purpose.

President Trump on April 24 claimed building a border wall will help curb the flow of drugs into the U.S., and talked about the role of dogs in drug detection. (Video: The Washington Post)

A central issue for both courts is whether diverting the funds is an illegal act that violates the constitutional separation of powers between branches of the government. Both challenges were brought shortly after the president declared a national emergency along the southern border, but the plaintiffs in California included border communities and environmental groups.

The judge in Washington never touched on the merits of the Democratic-led House’s claim, ruling instead that a single chamber of Congress had “several political arrows in its quiver” remaining to address disputes with a president and could not show that it needed courts to intervene as “a last resort.”

Read the opinion here

McFadden granted that the case “presents a close question” and added that his ruling “does not imply that [the full] Congress may never sue the Executive to protect its powers.” Still, he said, the Constitution provides the House other levers to use against the executive, including specifically denying funds, passing other legislation, conducting hearings and investigations, or overriding a president’s veto.

Tommy Fisher, president of Fisher Industries, has made repeated appearances in conservative media insisting he can build the wall faster and for less money. (Video: The Washington Post)

McFadden’s order effectively kills the House suit, which sought to block the administration from tapping not only $1 billion already transferred from military pay and pension accounts, but also money from an emergency military construction fund that the administration said it intends to transfer but has not yet moved.

A spokesman for House Speaker Nancy Pelosi (D-Calif.) said Democrats were reviewing the ruling and evaluating whether to appeal.

The Justice Department issued a statement through a spokesman: “The Court rightly ruled that the House of Representatives cannot ask the judiciary to take its side in political disputes and cannot use federal courts to accomplish through litigation what it cannot achieve using the tools the Constitution gives to Congress.”

McFadden’s decision ran counter to a 2015 ruling that found the GOP-led House could sue the Obama administration for spending on an Affordable Care Act program it said Congress never approved, a ruling that would have marked the first time the House was able to challenge an administration in court. The case was settled before it withstood appeal.

McFadden wrote that applying the 2015 decision “to the facts here would clash with binding precedent holding that Congress may not invoke the courts’ jurisdiction to attack the execution of federal laws.”

“The Executive and Legislative Branches have resolved their spending disputes without enlisting courts’ aid,” he added. “The House thus ‘lack[s] support from precedent,’ and ‘historical practice appears to cut against [it] as well.’ ”

In a hearing last month, McFadden said the issue of whether the House had legal standing to sue as a single chamber of Congress was “problematic” and called it a “significant issue in this case.”

On May 24, U.S. District Judge Haywood S. Gilliam Jr. of the Northern District of California said those challenging Trump’s actions had a good chance of prevailing on their claims that the administration is acting illegally in shifting money from other programs to pay for the wall.

Gilliam is a 2014 appointee of President Barack Obama. He ruled in response to lawsuits brought by the Sierra Club and the Southern Border Communities Coalition.

The California court ruled against using the already transferred funds and blocked projects slated for immediate construction. The court said it would come back with a ruling on the emergency military construction funds once the administration actually shifts them. The decision applies to wall segments around Yuma, Ariz., and El Paso.

With some contracts already awarded for construction, Gilliam said, allowing work to go forward before the legal issues have been fully resolved could cause irreparable harm.

He also said plaintiffs can come back to seek injunctions if and when the Trump administration an­nounces additional projects at the border.

A spokesman for the American Civil Liberties Union, which represented the California plaintiffs, said Gilliam’s order remains in place.

The Justice Department has argued that the funding dispute amounts to a political disagreement that should be settled outside the legal system, suggesting Congress could have passed a law saying “no money shall be obligated” in any form to construct a border barrier.

The House sued April 5 in Washington to block Trump’s plan to transfer $6.7 billion for a “big beautiful” wall he had promised during his campaign.

Congress declined to fund it and after a 35-day partial government shutdown appropriated $1.375 billion for border barriers.

Trump wants his border barrier to be painted black with spikes. He has other ideas, too.

On the same day he signed the spending bill, Trump made his emergency declaration. The administration said added financing for the wall will include $3.6 billion diverted from Pentagon construction projects, $2.5 billion transferred from other defense programs into a military program to install fencing to counter drugs at the border, and $600 million collected in enforcement and forfeiture actions by customs and treasury agencies.

Pentagon will shift an additional $1.5 billion to help fund Trump’s border wall

The law the administration invoked to shift funds allows transfers for “unforeseen” events.

In his California ruling, Gilliam said the government claim that the wall construction was unforeseen did not square with the president’s many funding demands dating to early 2018 and even in the 2016 campaign.

Correction: An earlier version of this article incorrectly said that after a 35-day partial government shutdown Congress appropriated $1.375 million for border barriers. It was $1.375 billion.

Ann E. Marimow and Fred Barbash contributed to this report.

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