‘The executive branch can’t build this wall without Congress…’
(Todd Ruger, CQ-Roll Call) An attorney for the House urged a federal judge in California on Friday to block the Trump administration from moving federal funds around to build a wall on the U.S.-Mexico border, calling the move “statutory sleight of hand, or, more accurately, three-card monte.”
Douglas N. Letter, the House general counsel, told U.S. District Court Judge Haywood S. Gilliam Jr. that the government can’t claim the authority to divert billions of dollars for wall construction when Congress had just denied President Donald Trump’s demands to appropriate those funds.
“As I think everybody in this courtroom knows, the executive branch can’t build this wall without Congress,” Letter said.
The federal court hearing Friday was the first about whether a federal court should temporarily stop the Trump administration plan to spend up to $8.1 billion for construction of southern border barriers under three separate laws. Trump made the move in February after he asked Congress for $5 billion for a border wall and Congress instead appropriated $1.375 billion.
Letter argued Friday as a “friend of the court” in two lawsuits in California to stop the wall construction, one brought by a coalition of 20 states and another brought by an environmental group. Gilliam appeared ready to make a decision quickly.
The House has filed its own lawsuit in Washington, a more direct separation-of-powers showdown over control of government spending. Friday’s arguments in California were a preview of sorts for a May 23 hearing on the lawmakers’ request for a preliminary injunction.
Letter argued Friday that the court needed to step in and stop the construction because the House would be irreparably harmed. The funds couldn’t be returned after contractors were paid, and he said the administration’s budget request for more funds to compensate for the border wall spending “makes absolutely clear this money’s not coming back.”
Letter pointed to the high-profile government shutdown over the sole issue of the border wall funding to show how clearly Congress didn’t want to allocate money for it.
“This money was clearly denied by Congress under immense pressure,” Letter said of the government shutdown and media coverage of the debate. “This wasn’t something that was just knocked dead in the middle of the night or something.”
Trump then decided Congress is “just a nuisance,” Letter said, and the president needed to build the wall and would fund it on his own, “and that is unconstitutional.”
Letter also said that Justice Department lawyers in these challenges would turn statutes upside down and move them around to argue that they have the authority to transfer Defense Department funds.
“But at the end of the day what it comes back to, to paraphrase a famous line, if it looks like an appropriation, if it swims like an appropriation, if it quacks like an appropriation, then it is an appropriation,” Letter said.
But the Justice Department, which said Friday that no construction would start for 45 days, argued that Congress gave it the authority to transfer money in two laws in September and lawmakers could have restricted that authority if they wanted.
To demonstrate that, James Burnham of the Justice Department pointed out that the House put a section in the fiscal 2020 Military Construction-VA spending bill that no funds may be “obligated, expended, or used to design, construct, or carry out a project to construct a wall, barrier, fence, or road along the Southern border of the United States or a road to provide access to a wall, barrier, or fence constructed along the Southern border of the United States.”
“That is what an explicit restriction on using these authorities would look like,” Burnham said. “They didn’t do that.”
Congressional denial of appropriations is specific and objective in a spending law or an explanatory statement of a conference report, Burnham said, and it is “just not done on the level of generality that the plaintiffs are talking about.”
Letter later told the judge that Burnham’s argument “can’t be right” in the context of appropriations, where no money may be spent unless Congress actually appropriates it.
“The president asked for billions of dollars and Congress said no,” Letter said. “That’s a denial.”
Burnham also foreshadowed that at next week’s hearing he will argue that the House does not have the right to bring the lawsuit in the first place.
Letter on Friday called his appearance a “traveling road show” that he would take to as many states as possible to stop the wall. “This is your trial run,” Gilliam told him. “Yes,” Letter replied, “this is first, so let’s hope it goes well.” Letter gets involved in cases based on the House’s bipartisan legal advisory group comprised of three members of majority leadership and two members of minority leadership.
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