U.S. House of Representatives v. Mnuchin

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, U.S.D.J.

         Few ideas are more central to the American political tradition than the doctrine of separation of powers. Our Founders emerged from the Revolution determined to establish a government incapable of repeating the tyranny from which the Thirteen Colonies escaped. They did so by splitting power across three branches of the federal government and by providing each the tools required to preserve control over its functions. The “great security against a gradual concentration of the several powers in the same department, ” James Madison explained, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” The Federalist No. 51.

         This is a case about whether one chamber of Congress has the “constitutional means” to conscript the Judiciary in a political turf war with the President over the implementation of legislation. The U.S. House of Representatives seeks to enjoin the Secretaries and Departments of the Treasury, Defense, Homeland Security, and the Interior (collectively, the “Administration”) from spending certain funds to build a wall along our southern border. The House argues that this expenditure would violate the Appropriations Clause of the Constitution and usurp Congress's authority. This harm, the House suggests, constitutes an “institutional injury” supporting Article III standing.

         The Administration disagrees. The Judiciary cannot reach the merits of this dispute, it contends, because the Constitution grants the House no standing to litigate these claims. The Administration is correct. The “complete independence” of the Judiciary is “peculiarly essential” under our Constitutional structure, and this independence requires that the courts “take no active resolution whatever” in political fights between the other branches. See The Federalist No. 78 (Alexander Hamilton). And while the Constitution bestows upon Members of the House many powers, it does not grant them standing to hale the Executive Branch into court claiming a dilution of Congress's legislative authority. The Court therefore lacks jurisdiction to hear the House's claims and will deny its motion.

         I.

         The House and the President have been engaged in a protracted public fight over funding for the construction of a barrier along the border with Mexico. Following the longest partial shutdown of the Federal Government in history, Congress passed the Consolidated Appropriations Act of 2019 (the “CAA”), which provided $1.375 billion for new border fencing in the Rio Grande Valley. See Pub. L. No. 116-6 (2019). The President had sought much more. See Letter from Acting Dir., Office of Mgmt. & Budget to Senate Comm. On Appropriations (Jan. 6, 2019) (requesting “$5.7 billion for construction of a steel barrier for the Southwest border”).^[1]

         On the same day he signed the CAA into law, President Donald Trump declared that “a national emergency exists at the southern border of the United States.” Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019) (“National Emergency Declaration”). The President determined that the “current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests.” Id. He noted that the “southern border is a major entry point for criminals, gang members, and illicit narcotics” and that the problem of “large-scale unlawful migration” has “worsened in certain respects in recent years.” Id. “Because of the gravity of the current emergency situation, ” he added, “it is necessary for the Armed Forces to provide additional support to address the crisis.” Id.

         Congress passed a joint resolution to void the President's National Emergency Declaration. See 165 Cong. Rec. S1882 (Mar. 14, 2019). Explaining the vote, Speaker Nancy Pelosi remarked that “[w]e would be delinquent in our duties as Members of Congress if we did not overturn what the President is proposing. He is asking each and every one of us to turn our backs on the oath of office that we took to the Constitution of the United States.” See Speaker Pelosi's Floor Speech on Privileged Resolution, House of Representatives (Feb. 27, 2019).

         The President vetoed the resolution. See Veto Message to the House of Representatives for H.J. Res. 46, White House (March 15, 2019). Some Members of the House tried unsuccessfully to override this veto. See 165 Cong. Rec. H2815 (Mar. 26, 2019). For the override to be operative, the Senate would have also had to vote to support it by a super-majority. It did not attempt to do so. So the “veto of the President was sustained and the joint resolution was rejected.” Id. The House then filed this suit.

         Upon a declaration of a national emergency “that requires the use of armed forces, ” the Secretary of Defense “may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.” 10 U.S.C. § 2808(a). The White House explained that Section 2808 would be one of three sources of funding the Administration would use, on top of the $1.375 billion Congress appropriated through the CAA, to build the border wall. See President Donald J. Trump's Border Security Victory, White House (Feb. 15, 2019), ECF No. 36-7. It plans to use sequentially: (1) $601 million from the Treasury Forfeiture Fund; (2) up to $2.5 billion in funds transferred for “Support for Counterdrug Activities” under 10 U.S.C. § 284; and (3) up to $3.6 billion reallocated from Department of Defense military construction projects under Section 2808. Id.

         The House does not challenge the President's declaration of an emergency under the National Emergencies Act. See Compl., ECF No. 1, at 39-43; Hr'g Tr. 81:23-25.^[2] Nor does it contest the use of the Treasury Forfeiture Fund to build the wall. See Pl.'s Mot. for Prelim. Inj. (“Pl.'s Mot.”), ECF No. 17, at 21. Instead, it argues that 10 U.S.C. §§ 284 and 2808 do not authorize the use of funds for building a border wall and that the Administration's planned spending therefore violates the Appropriations Clause of the Constitution and the Administrative Procedure Act (the “APA”). Compl. 39-42.

         The Administration rejects the House's interpretation of the statutes. See Defs.' Opp. to Mot. for Prelim. Inj. (“Defs.' Opp.”), ECF No. 36, at 57-64. But primarily, it contends that the House lacks standing to raise its arguments here. Id. at 28. There are “no Appropriations Clause principles at issue in this case, ” the Administration claims, precisely because the parties are contesting the meaning of bills that Congress has validly passed using its Appropriations power. Id. at 37. And quarrels over how to implement a law do not support legislative standing, as the “Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.” Id. at 36 (quoting Bowsher v. Synar, 478 U.S. 714, 722 (1986)).

         The parties submitted thorough briefing on these issues, and the House's application for a preliminary injunction is now ripe. The Court also heard oral arguments from both sides and has reviewed the memoranda submitted by amici curiae.

         II.

         Before it may consider the merits of the House's motion, the Court must first confirm its jurisdiction over this case. Article III of the Constitution limits the jurisdiction of federal courts to “actual cases or controversies.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013). One element of the “case-or-controversy requirement” is that plaintiffs “must establish that they have standing to sue.” Id.

         Article III's standing requirements are “built on separation-of-powers principles” and serve “to prevent the judicial process from being used to usurp the powers of the political branches.” Id. Thus, “when reaching the merits of the dispute would force [it] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional, ” the Court's standing inquiry must be “especially rigorous.” Id. (quoting Raines v. Byrd, 521 U.S. 811, 819-20 (1997)). The power of federal courts to hear cases “is not an unconditioned authority to determine the constitutionality of legislative or executive acts.” Valley Forge Christian Coll. v. Am. Utd. for Sep. of Church and State, Inc., 454 U.S. 464, 471 (1982).

         As the plaintiff, the House “bear[s] the burden of establishing standing.” Commonwealth v. U.S. Dep't of Educ., 340 F.Supp.3d 7, 12 (D.D.C. 2018). The Court “presumes that it lacks jurisdiction unless the contrary appears affirmatively from the record.” Id. (cleaned up). To establish standing, the House must allege an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper, 568 U.S. at 409. For an injury to be legally cognizable, the dispute must be “traditionally thought to be capable of resolution through the judicial process.” Raines, 521 U.S. at 819.

         III.

         The Administration concedes, and the Court agrees, that only the first prong of the standing analysis-injury that is concrete and particularized-is at issue here. See Defs.' Opp. at 28-43. Applying the “especially rigorous” analysis required, the Court finds that the House has failed to allege such an injury. So the Court must deny the House's motion.

         A.

         Two Supreme Court decisions-Raines and Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652 (2015)-guide the Court's inquiry. Neither directly addresses whether one House of Congress has standing to allege an institutional injury to the Appropriations power. Perhaps unsurprisingly, while the House urges the Court to conclude that this case is more like one (Arizona State Legislature), the Administration believes this case is more like the other (Raines).

         In Raines, six federal legislators sued to contest the constitutionality of the Line Item Veto Act. See 521 U.S. at 813-14. The plaintiffs had voted against it. Id. at 814. They sued the Executive Branch, arguing that the Act “unconstitutionally expands the President's power, ” “divests the [legislators] of their constitutional role in the repeal of legislation, ” and “alters the constitutional balance of powers.” Id. at 816. They claimed, in other words, that “the Act causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally.” Id. at 821.

         The Supreme Court found that the legislators lacked standing. Beginning its analysis, it emphasized the “time-honored concern about keeping the Judiciary's power within its proper constitutional sphere.” Id. at 820. That concern required it to “carefully inquire” about whether the legislators' “claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.” Id. The Court concluded that it was not. Id. at 830.

         The legislators could not allege that “the Act will nullify their votes, ” the Court explained, because “[i]n the future, a majority of Senators and Congressmen can pass or reject appropriations bills; the Act has no effect on this process.” Id. at 824. Their votes on the Act itself “were given full effect.” Id. “They simply lost that vote.” Id. It therefore held that “these individual members of Congress do not have a sufficient ‘personal stake' in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing.” Id. at 830.

         By contrast, in Arizona State Legislature, the Supreme Court held that a state legislature had standing to challenge the constitutionality of a proposition adopted by Arizona's voters by referendum. See 135 S.Ct. at 2659. Proposition 106 amended the Arizona Constitution to remove redistricting authority from the legislature and vest it in an independent commission. Id. at 2658. The legislature alleged that the Proposition violated its authority under the Elections Clause of the U.S. Constitution, which provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1.

         The Court characterized the Arizona Legislature as “an institutional plaintiff asserting an institutional injury, ” that “commenced this action after authorizing votes in both of its chambers.” Ariz. State Leg., 135 S.Ct. at 2664. It noted that Arizona's constitution prohibits the legislature from “adopt[ing] any measure that supersedes a [voter-initiated proposition]” unless the measure “furthers the purposes of the initiative.” Id. This limitation, when combined with Proposition 106, would “completely nullify” any vote by the state's ...