The building of the wall has been a topic that has been discussed in multiple capacities, and it has been a discussion amongst the House, Congress, and President. Over a year ago, the House filed a lawsuit stating that the funding to build the wall between the U.S. Border, and Mexico violated the Appropriations Clause, and the Administrative Procedure Act. The funds to build the wall were transferred wrongfully from the Department of Defense by the Executive Branch, and they do not have the keys to approve this transaction. However, the lawsuit was dismissed due to lack of standing because the House was not injured; however, a year later, the U.S. Court of Appeals has overturned the ruling stating that the House has standing because it has been injured due to the violation of the Appropriations Clause and Administrative Procedure Act.
"'The court ruled that "each chamber has a distinct individual right, and in this case, one chamber has a distinct injury." Therefore, the House Democrats can challenge the President's transfer of funds to build the border wall. "To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House's key out of its hands,' the appeals court said." (https://www.cnn.com/2020/09/25/politics/federal-appeals-court-border-wall-chance/index.html)
Therefore, the U.S. Court of Appeals has asked the lower court to further review the lawsuit, and to consider the standing as part of the case, which would rightfully allow the case to continue.
In addition, the Department of Defense defends the transfer of funds because previously it was not an issue due to previous practice, and they do not have to have congressional approval to transfer the funds. Also, the wall was being built while this case was being reviewed previous but the Supreme Court allowed the wall to continue to be built. What would be the outcome at this point, when the wall has a majority already constructed?
So in conclusion, my questions are:
Now that standing has been established, what do you think they will rule?
What power does the Department of Defense have in persuading the outcome of the review?
Is it correct that one chamber (the House in this case) have the right to file a lawsuit to protect their powers from another branch (executive branch)?
Citations:
Articles:
[1]
https://www.cnn.com/2020/09/25/politics/federal-appeals-court-border-wall-chance/index.html
[2]
https://www.cnn.com/2019/06/03/politics/house-border-wall-lawsuit/index.html
Opinion:
[3]
https://www.cadc.uscourts.gov/internet/opinions.nsf/36AF285EAC18D766852585EE004E27BB/$file/19-5176-1863354.pdf
Vocabulary:
Appropriations Clause (1968) Constitutional law. The constitutional provision mandating that federal funds may be spent only as Congress directs by law and requiring periodic publication of a statement and account of federal receipts and expenditures. U.S. Const. art. I, § 9, cl. 7
Administrative Procedure Act (1946) Administrative law. 1. A federal statute establishing practices and procedures to be followed in rulemaking and adjudication. 5 USCA § 500 et seq. • The Act was designed to give citizens basic due-process protections such as the right to present evidence and to be heard by an independent hearing officer. 5 USCA § 551. 2. A similar state statute. — Abbr. APA.
Now that standing has been established, what do you think they will rule?
ReplyDeleteI don’t think we are done addressing the threshold issues. If the intent is to create as much time as possible in the process to spend the money before it can be stopped then they will look for other threshold issues that can be used. They have already used ripeness because there was no impact until they went past the actual approved 1.3 B. Standing was one of these then there can be statutory issues defining if the funds for military spending can be used in this way. All of this needs to be addressed before they can get to the merits of the case. We know the president has the right to declare a national emergency but what constitutes a national emergency? The president can respond to an immediate attack on the use by sending troops but the congress still needs to fund the militaries ability to do this. Shifting funds earmarked for other projects, is this doing an end runs around the congress ability to meets its constitutional responsibilities? I don’t think we are near the end of this yet.
What would be the outcome at this point, when the wall has a majority already constructed?
This may be a case of asking for forgiveness instead of permission. Once the money has been spent and the work is done there is no redress that can be offered. If you give your son money for lunch and he buys Ice cream and eats it, it is too late to spend that money on lunch. Do you give him more money? What do we do with the projects that were expecting to use the construction funds?
I like your analogy.
DeleteI think the administrative perspective may change, IF Biden wins the election. If he does not, I think you're right, and this is no where near the end.
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ReplyDeleteIs it correct that one chamber (the House in this case) have the right to file a lawsuit to protect their powers from another branch (executive branch)?
ReplyDeleteI’m going with yes based in part on the opinion from the U.S. District Court of Appeals, D.C. Circuit that simply because Congress I bicameral doesn’t mean one chamber doesn’t have authority without the other. While it takes both to pass laws, the ruling points to the early days of the Federal Convention when the House was granted stronger monetary powers than the Senate . That was struck to put the chambers on more equal footing, and allow for individual power over spending. “The purse has two strings, and it takes both (chambers) to untie.”
To me this appears to be a solid separation of the sword from the purse, ensuring separation of money (House appropriation) from might (executive branch).
The opinion also notes that the Dept of Defense, in using more funds than were allocated, overrode the authority of Congress and blurred the lines between the executive and legislative branches, and allowed the President to usurp power and exceed his authority.
But government operations, or in this case funding the wall build, is incumbent on money, which must be appropriated by Congress or operations come to a hard stop.
Where the defendant appealed on a standing issue, this part of the opinion and my musings above, sum it up:
“… failure to recognize that injury in fact would fundamentally alter the separation of powers by allowing the Executive Branch to spend any funds the Senate is on board with, even if the House withheld its authorizations.” [P. 23, ¶ 1]
What power does the Department of Defense have in persuading the outcome of the review?
The defendant in this case is the Secretary of the Treasury. I’m guessing that the Department of Defense and other agencies will justify and defend moving money around under the National Emergency Concerning the Southern Border of the United States Proclamation 9844 of last year to boost national security and efforts to reduce drug trafficking. The district court’s ruling was remanded by the appeals court, so it’s back to square one.
“The judgment of the district court insofar as it dismisses the Administrative Procedure Act claims is affirmed. Insofar as the judgment dismisses the constitutional claims, it is vacated and remanded for further proceedings consistent with this decision.” [P. 24, ¶ 2]
Now that standing has been established, I'd like to think that there would be a peaceable reversal of actions taken by the Exectuive branch, but this current administration might not go quietly if that is what the Court decides. I cannot imagine that the Department of Defense would actually have enough sway to influence the outcome, because that would be an extreme indicator or further abuse of power from the Executive branch. In this instance, it is extremely important and one branch of government be allowed to file a lawsuit to protect their powers. Recently, it seems as though there has been significant overreach by certain branches of government and it is fitting that a branch be able to fight for their constitutionally-given powers.
ReplyDeleteYes, I agree the overreach of this administration seems to me egregious
DeleteAlthough, standing has been established, I do not think that we should expect a ruling in the immediate future, nor do I feel that a future ruling will significantly alter actions that have already occurred (aka building the wall). The mere recognition that the House of Representatives has established standing, does not provide a one-way ticket to a ruling in their favor. The House of Representatives and Executive Branch were designed to work together and execute their power to make decisions that benefit the people. Instead, that power is being used to fuel political agendas on both sides of the spectrum and essentially force the courts to pick a side. Unfortunately, the funds are gone, and the wall is built. Those funds certainly could have been put to a better and more appropriate use, but instead, they were literally used to divide. But at the end of the day, is litigation going to mend this and bring people together? My answer is no. If our government continues to respond to a “wrong” with a “wrong” it will NEVER make a “right”.
ReplyDeleteU.S. House of Representatives v. Mnuchin, Circuit Judge Griffith dissenting-
“The Judiciary isn't Congress's watchdog, and Congress may not enlist us to "monitor[] . . . the wisdom and soundness of Executive action….Allowing the House to dress up a generalized grievance as an "institutional injury" would force the federal courts into a role that the Supreme Court has repeatedly and emphatically refused to accept. The House rightly reminds us that the Executive Branch is not above the law. But neither is the Judiciary.”[United States House of Representatives v. Mnuchin, 969 F.3d 353,*P20].
At this point, I believe that all branches of government are holding their breath until mid-November and we will have to see where is goes from there.
Is it correct that one chamber (the House in this case) have the right to file a lawsuit to protect their powers from another branch (executive branch)?
ReplyDeleteYes. This goes back to the balance of powers between the Legislative, Executive and Judicial branches. The intent is to keep one area from becoming all powerful, as demonstrated by the following:
"The ironclad constitutional rule is that the Executive
Branch cannot spend until both the House and the Senate say
so. “However much money may be in the Treasury at any one
time, not a dollar of it can be used in the payment of any thing
not thus previously sanctioned. Any other course would give
to the fiscal officers a most dangerous discretion.” Reeside v.
Walker, 52 U.S. (11 How.) at 291. The Appropriations Clause
even “prevents Executive Branch officers from even
inadvertently obligating the Government to pay money without
statutory authority.” [P.21, ¶ 2]
That is great context, Cindi
DeleteThe problem with this entire case is that no one "took the House's keys" to anything. Congress gave them away. They gave the President and the DOD the fiscal "keys" via the 2019 Defense Appropriation Act and the 1991 Defense Appropriation Act as codified in 10 USC 284. Judge Daniel Collins of the 9th Circuit makes the argument in his dissent in Sierra Club v. Trump. 19-16102 (9th Cir. 2020), and BYU's own Judge N. Randy Smith makes a similar argument in his dissent in the 2019 version of Sierra Club v. Trump. (929 F.3d 670, 9th Circuit, 2019). The ultimate result is the wall continues to be built, pursuant to a stay issued by the U.S. Supreme Court. That isn't going to change.
ReplyDeletehttps://media.giphy.com/media/UTYz3M8lcTvqaVbSo9/giphy.gif
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