Middle-class families can’t wait for Republicans in Congress to do stuff. So sue me. As long as they’re [Congress] doing nothing, I’m not going to apologize for trying to do something.

–President Barack Obama, July 1, 2014

We’re going to confront the national security crisis on our southern border, and we’re going to do it one way or the other.

–President Donald Trump, February 15, 2019

President Trump visited the U.S.-Mexico border in early April, just days after the House filed a lawsuit to prevent construction of a border wall. (Photo: U.S. Customs and Border Protection)

Presidents are inaugurated and leave office, but their positions on the use of power are often quite similar, regardless of which party they belong to. Both President Obama and President Trump declared their frustration at Congress’ refusal to accommodate their priorities. Back in 2014, President Obama’s wanted Congress to pass legislation providing more domestic spending. In February of this year, President Trump, exasperated by Congress’ refusal to fund his plans for a border wall, issued an emergency declaration that would allow him, under his interpretation of the law, to spend money on construction of the barrier.

The Constitution, however, does make clear that some actions are reserved to the Congress no matter how frustrated the President might be, and one of the most important of these is the exclusive right to appropriate public funds.  The House of Representatives, under the control of Democratic leaders, has filed a suit to ask the Courts to determine whether or not the emergency declaration violates Congress’ constitutional prerogatives. On Thursday of this week, a Federal judge will hold a hearing to consider whether to issue a preliminary injunction. It will be the next step in the latest inter-branch tussle over the power of the purse.

The House of Representatives General Counsel filed a lawsuit against the Trump Administration in early April. In U.S. House of Representatives v. Mnuchin, et al, counsel for the House allege that the Administration is unconstitutionally spending money to build a wall along the U.S.-Mexico border. The Democratic majority is using a strategy that former Speaker John Boehner and previous Republican majority used when President Obama was in the White House. The episode illustrates the old adage, “Where you stand depends on where you sit.” It also illustrates a corollary that applies to political processes: If a particular tool is useful, a party will use it, even if they objected to it when their roles were reversed.

Republican Speaker John Boehner led the 2014 strategy to sue the Obama Administration to protect the rights of the House. “I believe the House must act as an institution to defend the constitutional principles at stake and to protect our system of government and our economy from continued executive abuse,” he said in July 2014. On July 30, the House agreed to a resolution (H.Res. 676) that allowed the Speaker to “initiate or intervene in one or more civil actions on behalf of the House of Representatives” to ensure that the Administration was carrying out Obamacare as the law intended. The adoption of the resolution was seen as a way to increase the chances that a court would rule on the merits of the case. Generally, courts decline to rule in matters that they see as properly a political fight between the Executive and Legislative Branches. Keeping with that, when individual Members of Congress or groups have filed suit against the Administration alleging violations of their constitutional prerogatives as legislators, courts typically have ruled that they lack standing to sue. However, according to the Rules Committee report on the resolution, the adopting it would signify the House’s approval of the lawsuit, and a “House of Congress is the natural and appropriate plaintiff to urge the courts to enforce the separation of powers.” The House voted 225-201 to authorize the lawsuit. The vote was largely along party lines, though 5 very conservative Republicans joined the Democrats in voting against it. The Obama Administration sought to have the case dismissed arguing that the House lacked standing to sue, but Judge Rosemary Collyer of the U.S. District Court for the District of Columbia ruled that the “constitutional trespass alleged in this case [spending without an appropriation] would inflict a concrete, particular harm upon the House for which it has standing to seek redress in this Court.”

Back when a Democrat was in the White House, Pelosi opposed the House’s lawsuit. In November 2014, the House of Representatives, then controlled by the Republicans, filed a lawsuit against Obama Administration officials; in U.S. House of Representatives v. Burwell, et al, they alleged that the Administration was spending money that had not been duly appropriated. In December 2015, Pelosi and other leading Democrats filed an amicus curiae brief supporting the Obama Administration. When this was filed, Pelosi said in a statement, “For the courts to wade into such an inter-branch political dispute would displace the traditional legislative processes and destabilize the separation of powers among the three branches of government.”

The Court eventually ruled in the House’s favor in House v. Burwell (later renamed v. Price and again v. Azar, as the Health and Human Services Secretaries changed). The Obama Administration appealed, but changes in the political process somewhat abruptly ended the legal challenge. After President Trump took office, the House and the Administration settled, rather than continue the matter. Had Hillary Clinton won the 2016 election, and had the Republicans not lost the House in 2018, the case probably would have wound its way to the Supreme Court.

Now that a Republican is in the White House and Democrats are in the House majority, Democratic leaders have been more than willing to pursue litigation. On April 4, the House’s Bipartisan Legal Advisory Group (BLAG) voted 3-2 to authorize the lawsuit. The BLAG is a panel consisting of the Speaker, the Majority and Minority Leaders, and the Majority and Minority Whips. According to the Standing Rules of the House, this group “speaks for, and articulates the institutional position of, the House in all litigation matters” (Rule II, clause 8(b)). In this case, the Democratic members of the BLAG (Speaker Nancy Pelosi, Majority Leader Steny Hoyer, and Majority Whip James Clyburn) voted to allow the lawsuit, and the Republican members (Republican Leader Kevin McCarthy and Republican Whip Steve Scalise) voted against it. The day after the BLAG’s vote, the House General Counsel filed a complaint with the U.S. District Court for the District of Columbia.

According to the House’s complaint, the Trump Administration violated the Appropriations Clause of the U.S. Constitution. The Appropriations Clause (Article I, section 9) states that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”. It claims that Congress duly appropriated only $1.375 for “barrier construction,” but that the appropriations for the additional monies the Administration is using are for other purposes, not for building a wall.

Naturally, the Administration would dispute that it is unconstitutionally spending money. For instance, one White House fact sheet cites sections 284 and 2808 of title 10 of the U.S. Code as the source of its authority to spend money on the border wall. Whatever the merits of the Administration’s claim, Speaker Pelosi would describe herself as defending Congress’ right to appropriate. “The House will once again defend our Democracy and our Constitution, this time in the courts.  No one is above the law or the Constitution, not even the President,” she said in a statement.

Although the Democratic leadership has taken up their former opponent’s strategy, their tactic was slightly different. As noted previously, Boehner had the House as a whole vote on the lawsuit, whereas the current case followed a vote of the Bipartisan Legal Advisory Group (BLAG). This difference might be easy to overlook but has at least two effects worth noting. With the BLAG’s vote, Members were spared the responsibility of voting on the question of whether to sue the Administration. Newly elected Democrats from swing districts, especially those that went for Trump in the 2016 election, probably welcomed that reprieve. Additionally, it meant Republicans were unable to use deft parliamentary moves to scuttle a resolution. (For instance, on the Floor, they normally would be able to offer a motion to recommit, which also would have occasioned uneasy votes for some Democrats.) At the same time, pursuing the matter through a vote of the BLAG meant that the House General Counsel was filing suit on behalf of the Chamber. That way, individual House Democrats, or groups of them, did not need to sue individually—an effort that would likely have been futile, since the courts would probably have said they lack standing. With the House itself a party to this lawsuit, the case will probably go farther.

For most of the nation’s history, the Court have been reluctant to wade into battles over whether an Executive action might trample on the rights of the Congress.  However, given the inexorable shift of power from the Legislative to the Executive, it is probably a good thing that the Court start playing the role of Constitutional referee.  So, while House v. Burwell ended in the House’s favor, House v. Mnuchin et al is a new opportunity for the courts to weigh in further on an important constitutional issue, one that affects the relations of all three branches of our Federal Government. Though the Republicans’ lawsuit did not go as far as it could have, it did achieve some success. If the Democrats’ current lawsuit succeeds, they should thank former Speaker John Boehner for testing the strategy for them.