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Judge Questions House Lawsuit to Stop Trump's Border Wall, Calling It 'Problematic'
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24 May 2019 05:25 PM EST

By Laura Tucker, Staff writer; Image: Trevor McFadden (Image source: Public domain)


There have been so many more developments with the situation at the United States/Mexico border, as well as other non-border-related issues in government, that the lawsuit the House filed seemed all but forgotten. This doesn't have to do with the multiple congressional investigations of Donald Trump but the money he obtained through an emergency declaration to build his border wall.


U.S. District Judge of the District of Columbia Trevor McFadden, a Trump appointee, ruled Thursday in the president's favor, during a week when he was sorely in need of a win. 

Trump promised to build a wall at the border while campaigning for the 2016 election. He also promised Mexico would pay for it, but once that fell through, he wanted to get the money from taxpayers, but Congress didn't agree.


He fought long and hard for the funding for his wall, even shutting down the government over the Christmas holiday and beyond, but the Democrats in Congress were still not going to give in. Eventually, Trump declared the emergency and took all the money he wanted from the Defense Department. 

House Speaker Nancy Pelosi (D-CA) accused the administration of "stealing from appropriated funds" by declaring the emergency and transferring $6.7 billion more than the $1.375 billion Congress had approved. The Democrat-led House filed suit in Washington on April 5.


After listening to the two sides for nearly three hours, McFadden pointed out there weren't many cases to help guide his decision on what is a key test of constitutional separation of powers. He asked Douglas Letter, House general counsel, to show him precedent that allows one chamber of Congress to sue the president to work through political differences. 

He called the question over whether the House had legal standing to file the lawsuit "problematic" and a "significant issue in this case." He noted the fundamental legal requirement that a party prove it's being harmed and to show that it can only be addressed in court.


"Courts are not there to adjudicate just interesting constitutional or political questions between the branches," he later explained. 

McFadden didn't say when he would rule on the House's motion to block spending while they continue to litigate but did mention he expects the outcome to be appealed.


"I'm not sure how much necessarily our views will carry the day for the courts above us," said the judge, adding he didn't find a 2015 ruling by a federal judge binding that the GOP-led House could sue the Obama legislation for spending on the Affordable Care Act that hadn't been approved by Congress. 

There are six other lawsuits pertaining to this same principle to invoke executive power. Twenty states, environmental groups, landowners, and civil liberties organizations have brought the other suits. However, the lawsuit filed by the Democrat-controlled House raises constitutional arguments.


When the House lawsuit had initially been announced, Pelosi announced, "The president's action clearly violates the Appropriations Clause by stealing from appropriated funds, an action that was not authorized by constitutional or statutory authority." 

In court on Thursday Deputy Assistant Attorney General James Burnham encouraged McFadden not to interfere in executive branch decisions, explaining that Trump was legally transferring money under other laws that Congress had approved.


"For over 200 years of our Constitution's history, Congress and the executive branch resolved their political disputes through political means," he argued, and this time Congress should have passed a law that explicitly explained that "no money shall be obligated" to construct a barrier at the border. 

Burnham added that the nation's founders would have been "horrified" and "appalled" at the House trying to get the courts to side with them in a dispute, "making the president subservient to the courts." He went on to suggest any time courts have allowed a chamber to sue or enforce subpoenas, those rulings should be overturned.


"The founders were very careful to give the branches what they needed to defend themselves," he continued. the Constitution nowhere even hints at the possibility of inter-branch litigation." 

Letter argued that spending the money Congress had approved for other reasons violates the Constitution's appropriations clause, as it mandates that "no money may be spent unless Congress actually appropriates it."


He went on to say that Congress made it clear that no additional money should be spent on the border wall, yet Chief of Staff Mick Mulvaney indicated the wall would be built "with or without Congress." 

While it could be seen as a win that the judge in this matter seems to be leaning towards tossing the House's lawsuit, there were other matters that have to do with the border wall that may take it back to square one.


Throughout the past several months when discussing the construction of the wall, Trump has repeatedly encouraged the U.S. Army Corp of Engineers head and Homeland Security leaders to sign a contract with a North Dakota construction firm, Fisher Industries, according to four administration officials. 

The problem with this is that Fisher's top executive is a GOP donor and frequent guest on Fox News. It's been pushed so much that it has alarmed military commanders and DHS officials.


Perhaps making the situation even more prickly is that Fisher sued the government in April after the Army Corps didn't accept their bid to install the border fence. 

While Trump keeps pushing for Fisher to be awarded the big-money contract, they have started building a section of fencing that faces New Mexico.


This has been arranged by We Build the Wall, a nonprofit that is behind building the wall on private land with private funds. The group's associates and advisory board includes former White House adviser Steve Bannon, Blackwater USA founder Erik Prince, ex-Rep. Tom Tancredo (R-CO), and former Kansas secretary of state Kris Kobach (R).  

It seems that while Trump's right to invoke an emergency to get funding is debated in court, the plans for the wall are moving ahead quickly, made possible by a contractor with ties to GOP funding that the president appears to have a particular interest in.

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