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Justice Department Argues Congress Lacks Authority to Sue the President. Period.


The Justice Department defended Donald Trump’s redistribution of billions of dollars previously earmarked by Congress to fund a wall at the US-Mexico border in court on Thursday. The administration asserted that Congress lacks the legal standing to sue the President, an argument that, if accepted, could have widespread legal repercussions for dealing with inter-branch governmental conflicts.

The dispute centers on Trump’s decision to pay for a border wall with money that Congress had already designated be spent on other projects.

Trump originally requested $5.7 billion in wall funding for fiscal year 2019, of which Congress appropriated $1.375 billion toward constructing border fence projects. Trump declared a national emergency in February, claiming approximately $8.1 billion for his wall by redirecting approximately $600 million in Treasury Department forfeiture funds, $2.5 billion in Defense Department drug interdiction funds, and $3.6 billion from the military construction budget.

House Democrats responded by filing a lawsuit against the administration in April, contending that the president usurped Congress’ legislative authority by using an emergency declaration as a way to reappropriate border wall funding, despite Congress’s lack of approval. In the complaint, the House argued that Trump demonstrated “a shocking disregard” for the Constitution’s appropriations clause, which empowers Congress to distribute money from the Treasury.

Appearing before Trump-appointed U.S. District Judge Trevor McFadden Thursday, Justice Department attorney James Burnham argued that the framers of the Constitution “would have been horrified” by the prospect that one branch of government has the ability to sue another branch of government. As noted in a report from BuzzFeed News, McFadden was receptive to the argument. He appeared skeptical of House Democrats’ legal standing to bring the case at all and wondered if allowing the inter-branch litigation to continue would violate the principles of separation of powers.

Attorney Douglas Letter, general counsel to the House of Representatives, promulgated the theory that the Constitution did, in fact, intend for Congress to have standing to sue the President, and that in a dispute such as this, it’s the role of the courts to step in and say, “[H]ere’s what the law means.”

Letter’s fundamental argument on behalf of House Democrats is that Congress is empowered to decide how money is spent — which it did, only to have Trump ignore the decree of the legislature and usurp its power.

Burnham essentially countered that by noting that Trump did not ignore Congress; he simply invoked his power to reallocate certain Department of Defense funds, a power expressly granted to him through a law passed by Congress.

Judge McFadden’s interest may have been piqued by Burnham’s argument, as he then questioned Letter about the fact that Trump was acting within the procedural confines of a process specifically approved by Congress. Letter responded that it was still an unlawful sidestepping of Congress’ authority, as it had clearly denied Trump funding for the specific project in question when finalizing the budget.

Judge McFadden did not give any indication as to when he would rule, though Burnham requested that he wait for acting Defense Secretary Patrick Shanahan to announce how the administration planned to spend the money reallocated from the military construction budget before ruling.

[Image via Mark Wilson Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.