Court Says House Lacks Standing to Challenge Trump's Border Wall Funding

Steven D. Schwinn, John Marshall Law School

Judge Trevor N. McFadden (D.D.C.) ruled today that the House of Representatives lacks standing to challenge President Trump's reallocation of appropriated funds to build a border wall.

We last posted on the case here.

The ruling deals a sharp blow to the House in this case (although one imagines it'll be appealed). But other legal challenges against the reallocation of funds are still pending. And as Judge McFadden wrote in some detail, the House has other ways to hold President Trump to account.

Recall the background: Congress declined to appropriate the full amount of money that President Trump sought for the wall; President Trump then turned to three statutory authorities, including an "emergency" authority, that he claimed authorized him to reallocate funds appropriated for other purposes for the wall; and the House sued, arguing that the reallocation violated the Appropriations Clause and federal law.

We analyzed the merits arguments here.

Today's ruling in U.S. House of Representatives v. Mnuchin says that the House hasn't suffered a sufficient concrete injury because of President Trump's reallocation of funds to build the wall. In particular, the court said that the House hasn't suffered a "complete nullification" of its appropriations powers, and therefore hasn't suffered a sufficient injury to support standing:

But unlike the plaintiffs in Raines, the House retains the institutional tools necessary to remedy any harm caused to this power by the Administration's actions. Its Members can, with a two-thirds majority, override the President's veto of the resolution voiding the National Emergency Declaration. They did not. It can amend appropriations laws to expressly restrict the transfer or spending of funds for a border wall under Sections 284 and 2808. Indeed, it appears to be doing so. And Congress "may always exercise its power to expand recoveries" for any private parties harmed by the Administration's actions.

More still, the House can hold hearings on the Administration's spending decisions.

You might wonder why the (Republican) House had standing to challenge President Obama's decision to reallocate funds for the cost-sharing reduction payments under the Affordable Care Act, but the (Democratic) House has no standing to challenge President Trump's reallocation of funds for the wall.

I don't have a good answer, and I'm not sure the court in today's case does, either.

Judge McFadden seems to say that standing in the cost-sharing case was based on the House's constitutional (Appropriations Clause) claim, whereas this case looked more like a statutory claim (in which the House wouldn't have standing). But that seems weak: Judge McFadden himself says that the distinction between a constitutional claim and statutory claim is murky; and the constitutional claim in this case seems as strong, or stronger, than the constitutional claim in the cost-sharing case. Judge McFadden also says that allowing the House to sue here would also allow the House to sue over "every instance of the Executive's statutory non-compliance." But that's plainly not the case.

(Maybe you can understand the court's analysis better than I can. Take a crack: it's at pages 14 to 15 of the enclosed version of the opinion.)