Democrats hit a roadblock this week in their efforts to use the courts to go after President TrumpDonald TrumpUN meeting with US, France canceled over scheduling issue Trump sues NYT, Mary Trump over story on tax history McConnell, Shelby offer government funding bill without debt ceiling MORE.
On the heels of several initial wins in lawsuits targeting Trump and his personal finances, Democratic lawmakers were dealt a blow Monday when a federal judge ruled that they don’t have the authority to sue the president over his diversion of military funds to build a border wall.
Judge Trevor McFadden — a Trump appointee — wrote that the “lawsuit is not a last resort for the House,” pointing to “several political arrows in its quiver to counter perceived threats to its sphere of power.”
House Democrats have increasingly turned to the courts to further their investigations into Trump and his administration. But Monday’s ruling is a reminder that not all of those lawsuits are guaranteed to succeed.
The ruling also underscores the judiciary’s wariness of entangling itself in political fights between the executive and legislative branches, with judges preferring that the two bodies resolve the fights among themselves — a near impossibility in this political climate.
McFadden noted in his ruling that the House has successfully sued presidential administrations before, like when Republicans won their lawsuit against the Obama administration for moving federal funds to support the Affordable Care Act.
However, that ruling was not enough to show Democrats can sue the administration in this case, McFadden wrote, because they did not exhaust every political option before going to court.
McFadden’s ruling related only to Democrats’ request that he issue a preliminary injunction to temporarily stop Trump from accessing military funds for constructing a wall along the U.S.-Mexico border. The rest of the case is pending, though Monday’s ruling does not bode well for Democrats, who are weighing whether to appeal McFadden’s order.
Democrats had argued in court that Trump’s national emergency order violated the Constitution’s Appropriations Clause, which grants Congress authority over the allocation of federal funds.
The Justice Department argued that the national emergency gave Trump the authority to shift the Pentagon funds. The attorneys also said there was no scenario in which the House could ever sue the administration.
Some legal observers were skeptical of the judge’s reasoning.
“I don’t know how he can deny that the House has a right to make sure that funds appropriated are spent for that purpose, and not redirected, which is what the administration did,” said Lou Fisher, an expert in constitutional law and the separation of powers at The Constitution Project.
“To me it’s unacceptable for the court to say, ‘Well, you might have been injured, but you can figure it out later on some other way,’ ” Fisher added. “This is a specific injury here and the court should address it.”
But even as congressional Democrats suffered their first major legal defeat in recent months, legal analysts told The Hill that it’s unlikely to affect their other court cases.
Democrats are fighting Trump in a pair of lawsuits brought by the president to block congressional subpoenas for his financial records. Those lawsuits were filed by Trump in his personal capacity, not as president, although his lawyers have invoked his office as a reason to dismiss the congressional subpoenas.
Department of Justice (DOJ) lawyers are representing Trump in another lawsuit, filed by more than 200 Democrats in Congress, alleging that the president is violating the Emoluments Clause of the Constitution by continuing to profit from foreign governments while in office.
A federal judge in D.C. has ruled that lawmakers can move forward with that lawsuit, but the DOJ is asking that an appeals court review his order.
McFadden acknowledged in Monday’s ruling that the subpoena fights differ from the border wall lawsuit, writing that the “history of judicial and executive recognition of the House’s investigatory power distinguishes it from the Appropriations power.”
“Judge McFadden very clearly distinguishes the border-wall dispute from the subpoena-enforcement context, and he makes clear that his conclusion regarding the standing of one chamber of Congress to sue the president would not necessarily apply to a suit to enforce a subpoena,” Daniel Hemel, a law professor at the University of Chicago, told The Hill.
However, Jonathan Turley — an opinion contributor to The Hill and a George Washington University law professor who represented the House in the 2014 lawsuit over ObamaCare — said that while he encouraged Democrats’ legal fights over the congressional subpoenas, he didn’t think that the lawsuit over the border wall would be successful.
“I strongly encouraged the House of Representatives not to bring this lawsuit, because I believed it was a guaranteed loser,” Turley said. “The federal courts are not created to protect Congress from itself. And that’s pretty much what the court said.”
He pointed to another case in California, where a coalition of immigration and environmental groups were granted a preliminary injunction to stop border wall construction, as evidence that the House lawsuit was unnecessary.
“House leadership put the farm at stake over something that is already being litigated by parties with clear standing. And so they’ve not only secured a massive loss, but they did so with little chance of prevailing and little need to litigate,” Turley said.
However, Monday’s setback doesn’t mean wall construction can move forward.
Judge Haywood Gilliam, an Obama appointee in California, last month granted a preliminary injunction in a separate lawsuit, also backed by House Democrats, to stop Trump from accessing some of the defense funds for border wall construction.
The administration late Monday also asked the 9th Circuit Court of Appeals to issue a stay on the injunction so they can begin work on the wall.
Still, Trump celebrated the D.C. court ruling in a tweet Tuesday.
“Just had a big victory in Federal Court over the Democrats in the House on the desperately needed Border Wall. A big step in the right direction,” Trump wrote.