Lawyers for the Democratic-led House and the Trump Justice Department are meeting in federal court Thursday regarding whether a judge should block construction of President Trump’s border wall in a test of his national emergency declaration and Congress’s constitutional power of the purse.
The House filed suit in Washington on April 5 to prevent the work after House Speaker Nancy Pelosi (D-Calif.) accused the administration of “stealing from appropriated funds” by seeking to transfer $6.7 billion more for the effort than the $1.375 billion Congress approved, a shift of money from other projects lawmakers authorized.
Trump declared a national emergency in February to redirect mostly military-designated funding for the wall along the U.S.-Mexico border after losing a grueling two-month fight over fully paying for it that prompted a government shutdown.
[ Trump declares national emergency on southern border in bid to build wall ]
The lawsuit is one of seven nationwide that challenge whether Trump’s extraordinary invocation of executive powers — to deter what he called “an invasion of drugs and criminals coming into our country” — is an abuse of presidential authority that circumvents the constitutional separation of powers and its checks and balances.
Other lawsuits have been brought by parties that include 20 states , environmental groups, land owners and civil liberties organizations. But the House lawsuit directly raises constitutional arguments from another elected branch of federal government.
The fight comes as Trump has declared blanket defiance of congressional oversight investigations of his administration, finances and possible obstruction of a Russia inquiry by special counsel Robert S. Mueller III, telling reporters, ” We’re fighting all the subpoenas,” and, “These aren’t, like, impartial people. The Democrats are trying to win 2020.” The pushback also has included court battles.
[ Trump says he is opposed to White House aides testifying to Congress, deepening power struggle with Hill ]
Pelosi and Senate Minority Leader Charles E. Schumer (D-N.Y.) issued a statement after Trump’s emergency declaration, saying, “This is plainly a power grab by a disappointed president, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process.”
When the House lawsuit over funding for the border wall was announced, Pelosi said, “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.”
Justice Department lawyers have urged U.S. District Judge Trevor N. McFadden of the District not to block construction pending the outcome of the lawsuit, saying an injunction would “harm the Executive’s strong interest in border security and enforcement of counter-drug and immigration laws.” McFadden is a 2017 Trump appointee who served briefly as a senior Justice Department official.
They also presented arguments for why the lawsuit should be dismissed or is flawed.
The Justice Department described the funding transfers as military decisions in which courts should play no role and argued that the case was premature because the Defense Department has not yet authorized construction to start under the emergency declaration.
It also argued that both chambers of Congress — not just the House — would need to bring the suit against the executive arm for it to be an interbranch dispute subject to the court’s jurisdiction.
“There is no historical tradition of courts enjoining the Executive Branch at the request of one House of Congress,” department lawyers wrote.
[ Pentagon will pull money from ballistic missile and surveillance plane programs to fund border wall ]
Deputy Assistant Attorney General James M. Burnham said Friday in Oakland federal court, in the first border wall lawsuit to reach a hearing, that to prevent additional money from going toward building the wall, Congress needed to have explicitly said that “no money shall be obligated” in any form to construct a barrier along the U.S.-Mexico border, but that it never did.
The financing plan for what Trump has called “a big, beautiful wall,” Justice Department lawyers wrote, would include transferring $600 million collected in enforcement and forfeiture actions by customs and treasury agencies, and transferring from other defense programs $2.5 billion into a Pentagon fund authorized by Congress for installing fences to block drug smuggling at the border.
The plan also could draw on an additional $3.6 billion Congress approved for use by the Pentagon for unanticipated “higher priority items, based on unforeseen military requirements.”
[ Trump administration tells judge Congress did not deny border wall funds when it declined to appropriate money for it ]
But that spending would violate the Constitution’s appropriations clause, House general counsel Douglas Letter countered, because the clause mandates that “no money may be spent unless Congress actually appropriates it.”
Letter argued that there are controls on military and counternarcotics spending that bar use of the money for a border wall. The House also argued that the National Emergencies Act applies only to actual emergencies, not what it called a manufactured crisis.
Finally, the House suit alleged that Trump’s actions violate the Administrative Procedure Act, which governs federal rulemaking.
“The administration flouted fundamental separation-of-powers principles and usurped for itself legislative power specifically vested by the Constitution in Congress,” the House suit says. “Even the monarchs of England long ago lost the power to raise and spend money without the approval of Parliament.”
The suit asks McFadden to block the spending of $1 billion in funding already transferred March 25 for the wall and to block any further money transfers for wall construction.
On Friday in Oakland, U.S. District Judge Haywood S. Gilliam Jr., a 2014 appointee of President Barack Obama, heard arguments in a similar lawsuit brought by a coalition of states led by California and the Sierra Club under advisement. Gilliam did not say when he would rule.
Fred Barbash contributed to this report.
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