United States District Court, District of Columbia
U.S. HOUSE OF REPRESENTATIVES, Plaintiff,
STEVEN T. MNUCHIN, in his official capacity as Secretary of the Department of the Treasury et al., Defendants.
N. McFADDEN, U.S.D.J.
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.
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.
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.
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”).
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.
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).
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.
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.
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. 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.
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
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
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
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).
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.
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
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).
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.
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.
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.
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.
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