United States House of Representatives v. Mnuchin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

U.S. HOUSE OF REPRESENTATIVES,

Plaintiff,

v. Case No. 1:19-cv-00969 (TNM)

STEVEN T. MNUCHIN, in his official
capacity as Secretary of the
Department of the Treasury et al.,

Defendants.

MEMORANDUM OPINION

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

1
The Court takes judicial notice of the government documents cited in this Opinion as “sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. See Cannon v. District of Columbia, 717
F.3d 200, 205 n.2 (D.C. Cir. 2013).

2
 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

3
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

2
All citations are to the page numbers generated by this Court’s CM/ECF system.

4
“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

5
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

6
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

7
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 legislature, “now or in the

future,” that purported to adopt a redistricting plan. Id. at 2665. The Court thus concluded that

the legislature had standing. Id.

B.

Read together, Raines and Arizona State Legislature create a spectrum of sorts. On one

end, individual legislators lack standing to allege a generalized harm to Congress’s Article I

power. On the other end, both chambers of a state legislature do have standing to challenge a

nullification of their legislative authority brought about through a referendum.

The House sees this case as largely indistinguishable from Arizona State Legislature. It

alleges that the Administration’s “usurpation” of the Appropriations power “inflicts a significant

harm to the House as an institution.” Pl.’s Mot. at 32. Permitting the Administration to “offend

the Appropriations Clause” by spending funds in an unauthorized way would “affect the balance

of powers in a manner that puts the House at a severe disadvantage within our system of

government.” Id. at 33. This form of institutional injury has, in the House’s view, “consistently”

been recognized as conferring standing upon institutional plaintiffs. Id.

But, as the Administration notes, the holding in Arizona State Legislature is narrower

than the House suggests. See Defs.’ Opp. at 40-41. The Supreme Court emphasized that its

holding “does not touch or concern the question whether Congress has standing to bring a suit

against the President.” Ariz. State Leg., 135 S. Ct. at 2665 n.12. It explained that there is “no

federal analogue to Arizona’s initiative power, and a suit between Congress and the President

8
would raise separation-of-powers concerns absent here.” Id. The Administration also highlights

that here, “[o]nly the House of Representatives has initiated this action.” Defs.’ Opp. at 41 n.7.

The Arizona Legislature, however, filed its suit after authorizing votes in both of its chambers.

Id. (citing Ariz. State Leg., 135 S. Ct. at 2664).

For its part, the House questions the relevance of Raines. There, “only six Members of

Congress” alleged a “wholly abstract and widely dispersed” injury. Pl.’s Reply in Supp. of Its

Mot. for Prelim. Inj. (“Pl.’s Reply”), ECF No. 45 at 12. And both Houses of Congress “actively

opposed” the lawsuit. Id. This is why, the House argues, Arizona State Legislature described

Raines as “holding specifically and only that individual members of Congress lack Article III

standing” to allege a nullification of their legislative power. Id. at 12-13 (quoting Ariz. State

Leg., 135 S. Ct. at 2664). See also Amicus Br. of Former General Counsels of the U.S. House of

Reps. (“Former General Counsels’ Amicus Br.”), ECF No. 35 at 18 (“Raines and its progeny are

simply inapplicable here, where the House not only has authorized the lawsuit but also itself

appears as a litigant seeking to vindicate its institutional interests.”).

This case falls somewhere in the middle of these two lodestars. Both therefore guide the

Court’s analysis. But, as explained below, the factors considered by the Raines Court are more

relevant here. Application of these factors reveals that the House lacks standing to challenge the

Administration’s actions.

1.

Consider first historical practice and precedent. As the Raines Court explained, it is

“evident from several episodes in our history that in analogous confrontations between one or

9
both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed

injury to official authority or power.” Raines, 521 U.S. at 826. 3

For example, Congress passed the Tenure of Office Act over President Andrew

Johnson’s veto in 1867. Id. The Act provided that if an Executive Branch official’s appointment

required confirmation by the Senate, the President could not remove him without the Senate’s

consent. Id. Undeterred, President Johnson fired his Secretary of War. Id. A week later, the

House impeached the President, but the Senate acquitted him. Id.

Arguably, either the President could have sued Congress over the constitutionality of the

Act or Congress could have sued the President for violating it. Yet neither occurred. Had a

federal court “entertained an action to adjudicate the constitutionality of the Tenure of Office Act

immediately after its passage in 1867” it would have “been improperly and unnecessarily

plunged into the bitter political battle being waged between the President and Congress.” Id. at

827. So too here.

Similar episodes abound throughout our history. In 1933, President Franklin D.

Roosevelt fired an official from his Senate-confirmed position at the Federal Trade Commission.

The Federal Trade Commission Act permitted removal only for “inefficiency, neglect of duty, or

malfeasance in office.” Humphrey’s Ex’r v. United States, 295 U.S. 602, 619 (1935). The

President removed the official without providing a reason. Id. The Senate likely had a “strong[]

claim of diminution of” its Advice and Consent power. Raines, 521 U.S. at 826. Yet the Senate

made no effort to challenge this action in court.

3
Arizona State Legislature does not discuss the importance of historical practice in the context of
legislative standing. That case, however, did not “touch or concern the question whether Congress has
standing to bring a suit against the President,” and it suggested that when this question arises, an
“especially rigorous” standing analysis is required. 135 S. Ct. at 2665 n.12. This more exacting inquiry
requires consideration of historical practice, as evidenced by the discussion in Raines.

10
 In INS v. Chadha, 462 U.S. 919 (1983), a private plaintiff sought judicial review of his

deportation order claiming the Immigration and Nationality Act’s one-House veto was

unconstitutional. Under a diminution of institutional power theory, the “Attorney General would

have had standing to challenge the one-House veto provision because it rendered his authority

provisional rather than final.” Raines, 521 U.S. at 828. But the Executive brought no such suit.

And, applying the same line of reasoning, Congress could have challenged the validity of

presidential pocket vetoes, first exercised by President Madison in 1812. But the pocket veto

went unchallenged for over 100 years until President Coolidge pocketed a bill expanding Indian

tribes’ rights to damages for lost tribal lands and certain tribes sued. See The Pocket Veto Case,

279 U.S. 655, 673 (1929). See also Tara L. Grove et al., Congress’s (Limited) Power to

Represent Itself in Court, 99 Cornell L. Rev. 571, 583-93 (2014) (discussing these and many

other times when Congress declined to seek judicial intervention in the face of the Executive’s

non-defense of or alleged non-compliance with a federal law).

More still, the Administration notes that, “when Congress was concerned about

unauthorized Executive Branch spending in the aftermath of World War I, it responded not by

threatening litigation, but by creating the General Accounting Office . . . to provide independent

oversight of the Executive Branch’s use of appropriated funds.” Defs.’ Opp. at 38.

This history is persuasive. In the 230 years since the Constitution was ratified, the

political branches have entered many rancorous fights over budgets and spending priorities.

These fights have shut the Federal Government down 21 times since 1976, when Congress

enacted the modern-day budget process. See Mihir Zaveri et al., The Government Shutdown was

the Longest Ever. Here’s the History., N.Y. Times (Jan. 25, 2019). Given these clashes, the

paucity of lawsuits by Congress against the Executive would be remarkable if an alleged injury

11
to the Appropriations power conferred Article III standing upon the legislature. See United

States v. Windsor, 570 U.S. 744, 790 (2013) (Scalia, J., dissenting) (remarking that the “famous,

decades-long disputes between the President and Congress [discussed in Raines] . . . would

surely have been promptly resolved by a Congress-vs.-the-President lawsuit if the impairment of

a branch’s powers alone conferred standing to commence litigation”). Indeed, no appellate court

has ever adjudicated such a suit.

The House points to cases from this Circuit purportedly supporting the view that

legislatures have standing to seek redress for this type of injury. Pl.’s Mot. at 33. Not so.

True, the D.C. Circuit has held that the “House as a whole has standing to assert its

investigatory power.” United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976) (emphasis

added). See also Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008) (finding

that the House has standing to assert investigatory and oversight authority); Comm. on Oversight

& Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013) (same). But whatever these cases

may suggest about the House’s ability to hale the Executive into court in the context of

investigations, or the scope of this ability, they are of little use to the House here.

Indeed, using the Judiciary to vindicate the House’s investigatory power is

constitutionally distinct from seeking Article III standing for a supposed harm to Congress’s

Appropriations power. Unlike the Appropriations power, which requires bicameralism and

presentment, the investigatory power is one of the few under the Constitution that each House of

Congress may exercise individually. See U.S. Const. art. I, § 5 (“Each House may determine the

Rules of its Proceedings”); see also Congress’s (Limited) Power to Represent Itself in Court, 99

Cornell L. Rev. at 596-97 (noting that “the House and the Senate have long asserted the power to

12
conduct investigations and handle any litigation arising out of those investigations,” while they

have not historically brought suits to enforce federal statutes).

It is perhaps for this reason that the House’s power to investigate has been enforced with

periodic help from federal courts. In 1927, for instance, the Supreme Court observed that a

“legislative body cannot legislate wisely or effectively in the absence of information respecting

the conditions which the legislation is intended to affect or change.” McGrain v. Daugherty, 273

U.S. 135, 175 (1927). Thirty years later, the Court affirmed that the power to investigate is

“inherent in the legislative process” and is “broad.” Watkins v. United States, 354 U.S. 178, 187

(1957). See also Miers, 558 F. Supp. 2d at 56 (noting that vindicating the House’s investigatory

power “involves a basic judicial task—subpoena enforcement—with which federal courts are

very familiar”).

And the House has, since the Founding era, exercised an independent power to conduct

investigations and gather information. In 1792, it established a committee to examine General

St. Clair’s defeat at the Battle of the Wabash, a failed raid by the U.S. Army against Native

Americans residing in the Northwest Territory. See 3 Annals of Cong. 494 (1792). Before

complying with its requests for papers and records, President George Washington and his cabinet

members, including Thomas Jefferson and Alexander Hamilton, concluded that “the House

could conduct an inquest, institute inquiries, and call for papers.” Congress’s (Limited) Power to

Represent Itself in Court, 99 Cornell L. Rev. at 598-99. This history of judicial and executive

recognition of the House’s investigatory power distinguishes it from the Appropriations power.

Standing based on the Appropriations power would be a very different matter. 4

4
The Administration contends that the “scattered cases involving congressional subpoena enforcement
are likewise incorrect and inconsistent with the Constitution’s fundamental design, as well as
irreconcilable with Raines.” Defs.’ Opp. at 42. But because the Court finds that the House’s
investigatory power is distinct from Congress’s Appropriations power, it need not address this argument.

13
 During oral argument, the House also suggested that U.S. House of Representatives v.

U.S. Department of Commerce, 11 F. Supp. 2d 76 (D.D.C. 1998), provides an example of courts’

willingness to recognize standing in similar contexts. Hr’g Tr. 6:12:23. Not so. There, the

House had standing to argue that the Census Bureau’s “statistical sampling will deprive

Congress of information it is entitled to by statute (and the Constitution), and must have in order

to perform its mandatory constitutional duty—the apportionment of Representatives among the

states.” U.S. Dep’t of Commerce, 11 F. Supp. 2d at 85. In other words, the “inability to receive

information which a person is entitled to by law” is “sufficiently concrete and particular to

satisfy constitutional standing requirements.” Id. This type of informational injury, which an

individual can allege, is conceptually distinct from the “institutional” harm to an “institutional

plaintiff” the House asks the Court to recognize here. More, informational injuries to Congress

arise “primarily in subpoena enforcement cases,” which hold that the legislature “has standing to

assert its investigatory power.” Id. at 86. 5

This leaves the House with a single, non-precedential case in its support. In U.S. House

of Representatives v. Burwell, the House alleged that the Executive Branch “spent billions of

5
The House relied on two other cases at the hearing to suggest that the Supreme Court is “perfectly
comfortable” resolving claims of the type it raises. Hr’g Tr. 11:19-12:4. Neither case lends the House’s
position much support.

In the first, Chadha, the Court noted that, before Congress sought to intervene to defend its veto power,
“there was adequate Art[icle] III adverseness even though the only parties were the INS and Chadha.”
462 U.S. at 939. True, the Court suggested that “Congress is the proper party to defend the validity of a
statute when an agency of government . . . agrees with plaintiffs that the statute is inapplicable or
unconstitutional.” Id. at 940. But this statement arose in the context of “prudential, as opposed to
Art[icle] III, concerns” about hearing the merits of the parties’ claims. Id.

In the second, Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012), the Court held that the
political question doctrine did not bar judicial review of a private plaintiff’s claim against the Executive
Branch. Id. at 191. Both Chadha and Zivotofsky, in other words, featured private plaintiffs seeking to
vindicate their rights. And neither case held that one House of Congress has standing to allege harm to its
Appropriations power.

14
unappropriated dollars to support the Patient Protection and Affordable Care Act.” 130 F. Supp.

3d 53, 57 (D.D.C. 2015). This spending, the House alleged, “usurped its Article I legislative

authority.” Id. at 63.

The Burwell court held that the House had standing to sue on this “Non-Appropriation

Theory,” as it would “suffer a concrete, particularized injury if the Executive were able to draw

funds from the Treasury without a valid appropriation.” Id. at 74. The court distinguished

“constitutional violations,” which it found supported institutional standing, from “statutory

violations,” which it concluded did not. Id. Based on this dichotomy, it dismissed some claims

but allowed others to proceed. See id.

This slender reed will not sustain the House’s burden. As Burwell itself shows, it can be

difficult to articulate a workable and consistent distinction between “constitutional” and

“statutory” violations for legislative standing. There, Counts I and II of the House’s complaint

both alleged violations of constitutional provisions. Even so, the court dismissed Count II but

permitted Count I to survive, because the former’s allegations were “far more general” than the

latter’s. Id.

More, as Burwell notes, if “the invocation of Article I’s general grant of legislative

authority to Congress were enough to turn every instance of the Executive’s statutory non-

compliance into a constitutional violation, there would not be decades of precedent for the

proposition that Congress lacks standing to affect the implementation of federal law.” Id. (citing

Bowsher, 478 U.S. at 722). But any claim about a violation of the Appropriation power would

“inevitably involve some statutory analysis,” as the Administration’s “primary defense will be

that an appropriation has been made, which will require reading the statute.” Id. at 74 n.24

(emphasis in original).

15
 Applying Burwell to the facts here would clash with binding precedent holding that

Congress may not invoke the courts’ jurisdiction to attack the execution of federal laws. See,

e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (“To permit Congress to convert

the undifferentiated public interest in executive officers’ compliance with the law into an

individual right vindicable in the courts is to permit Congress to transfer from the President to

the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws

be faithfully executed,’ Art. II, § 3.”). The Court thus declines to do so. 6

In short, like in Raines, the Court finds the lack of historical examples telling. The

Executive and Legislative Branches have resolved their spending disputes without enlisting

courts’ aid. Until now. The House thus “lack[s] support from precedent,” and “historical

practice appears to cut against [it] as well.” Raines, 521 U.S. at 826.

2.

The availability of institutional remedies also militates against finding that the House has

standing. The notion that nullification of a legislature’s power can support institutional standing,

expressed in both Raines and Arizona State Legislature, comes from Coleman v. Miller, 307 U.S.

6
More still, even if the Court were to apply the Burwell approach, it is far from certain that the case
would survive. Count III of the House’s Complaint, for instance, alleges that the Administration’s
planned spending violates the APA. Compl. 42. This Count claims, in part, that the Administration’s
actions would be “‘in excess of statutory, jurisdiction, authority, or limitations, or short of statutory
right.’” Id. at 43 (quoting APA § 706(2)(C)). Whether the Administration has fallen afoul of this
provision of the APA is a “statutory and not constitutional” question that concerns “the implementation,
interpretation, or execution of federal statutory law.” Burwell, 130 F. Supp. 3d at 74. The House would
thus lack standing to allege this part of Count III, as it does not “seek redress for constitutional
violations.” Id. (emphasis in original). The remaining counts allege both statutory and constitutional
allegations, not dissimilar to the count Burwell dismissed. See Compl. 39-42.

Additionally, Burwell emphasized that the Administration “conceded that there was no 2014 statute
appropriating new money” for its planned expenditure. 130 F. Supp. 3d at 63. The Administration made
no such concession about the lack of an applicable appropriations authority here. The lack of this
concession complicates any effort to distinguish an alleged “constitutional” violation from a “statutory”
one. Because the Court declines to apply Burwell, it need not resolve this issue.

16
433 (1939). 7 Id. There, the Kansas Legislature had rejected Congress’s proposed Child Labor

Amendment to the U.S. Constitution. Coleman, 307 U.S. at 435. Later, a state senator

introduced a resolution to ratify the amendment. Id. at 435-36. The state senators’ votes split

evenly, so the lieutenant governor purported to cast a tie-breaking vote for the resolution. Id. at

436. The state’s house of representatives then adopted the resolution. Id.

The senators who voted against, and three members of the state’s house, sued in the

Kansas Supreme Court to block the resolution from taking effect. Id. After the state’s high court

found that the lieutenant governor could legally cast the deciding vote, the legislators asked the

U.S. Supreme Court to review and reverse the judgment. Id. at 437.

The Court held that the legislators had standing to challenge the state court’s decision. It

found that, assuming the truth of their allegations, their votes against ratifying the amendment

had “been overridden and virtually held for naught.” Id. at 438. Thus, because they had a

“plain, direct and adequate interest in maintaining the effectiveness of their votes,” the legislators

fell “directly within the provisions of the statute governing [the Supreme Court’s] appellate

jurisdiction.” Id. The plaintiffs in Coleman, in other words, had no other recourse but to turn to

federal court.

So too in Arizona State Legislature. There, the Court found that the voter-adopted

constitutional amendment “would completely nullify any vote by the Legislature, now or in the

future.” 135 S. Ct. at 2665 (cleaned up). Because of this, the Court concluded that judicial

resolution of the legislature’s claims was appropriate. Id. at 2665-66.

7
The House does not rely on, or even cite, Coleman in its application for a preliminary injunction. See
generally Pl.’s Mot. But the holding and reasoning in Coleman animates much of the analysis in Arizona
State Legislature and thus merits brief discussion here.

17
 Not so in Raines. There, the Court noted that dismissal “neither deprives Members of

Congress an adequate remedy (since they may repeal the Act or exempt appropriations bills from

its reach), nor forecloses the Act from constitutional challenge (by someone who suffers

judicially cognizable injury as a result of the Act).” Id. at 829. It clarified that, “at most,”

Coleman means that “legislators whose votes would have been sufficient to defeat (or enact) a

specific legislative Act have standing to sue . . . on the ground that their votes have been

completely nullified.” Id. at 823. No such nullification, the Court held, had been alleged by the

six legislators. Id. The Court thus concluded that there is “a vast difference between the level of

vote nullification at issue in Coleman and the abstract dilution of institutional legislative power

that is alleged here.” Id. at 826.

Again, Raines is the more salient precedent. The House urges that “Congress’s authority

under the [Appropriations] Clause is absolute for good reason.” Pl.’s Mot. at 31. The Court

agrees. It is no doubt true that Congress “should possess the power to decide how and when any

money should be” spent by the Federal Government. OPM v. Richmond, 496 U.S. 414, 427

(1990). “If it were otherwise, the executive would possess an unbounded power over the public

purse of the nation; and might apply all its moneyed resources at his pleasure.” Id.

But like the plaintiffs in Raines, the House retains the institutional tools necessary to

remedy any harm caused to this power by the Administration’s actions. Its Members can, with a

two-thirds majority, override the President’s veto of the resolution voiding the National

Emergency Declaration. They did not. It can amend appropriations laws to expressly restrict the

transfer or spending of funds for a border wall under Sections 284 and 2808. Indeed, it appears

to be doing so. See ECF No. 36-9 at 3-4 (describing a proposed FY 2020 appropriation stating

that “none of the funds appropriated in this or any other Act for a military construction project . .

18
. 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”). And Congress

“may always exercise its power to expand recoveries” for any private parties harmed by the

Administration’s actions. OPM, 496 U.S. at 428.

More still, the House can hold hearings on the Administration’s spending decisions. As it

has recently shown, the House is more than capable of investigating conduct by the Executive.

See, e.g., Alex Moe, House Investigations of Trump and his Administration: The Full List, NBC

News (Mar. 27, 2019) (detailing “at least 50” ongoing House investigations into the President,

federal agencies, and members of the Administration). And it has other tools it can use against

Officers of the Executive Branch for perceived abuses of their authority.

The House believes it has exhausted the institutional remedies at its disposal. See Hr’g

Tr. 14:19-15:6 (contending that “the House did exactly what the political weaponry tells it to

do”). See also Former General Counsels’ Amicus Br. at 22 (“Congress has used all of the

political tools in its box”); id. at 23 (noting that “any new legislation here would require two-

thirds majorit[ies] in both the House and Senate to overcome the President’s veto, and so would

be an exercise not only in redundancy but also futility”). But that the House majority may lack

the votes to pass a resolution over the President’s veto does not, by itself, confer standing on the

legislators who would like to see the resolution enacted. To hold otherwise would likely place

“the Constitution’s entirely anticipated political arm wrestling into permanent judicial

receivership[, which] does not do the system a favor.” Windsor, 570 U.S. at 791 (Scalia, J.,

dissenting).

The availability of these institutional remedies shows that there is no “complete

nullification” of the House’s power. Considering the type of lawmaking at issue emphasizes this

19
point. As the D.C. Circuit has noted, the “key to understanding the [Supreme Court’s] treatment

of Coleman and its use of the word nullification is its implicit recognition that a ratification vote

on a constitutional amendment is an unusual situation.” Campbell v. Clinton, 203 F.3d 19, 22

(D.C. Cir. 2000). Once the amendment passed, “[i]t is not at all clear whether” the legislature

“could have done anything to reverse that position.” Id. at 22-23. 8

The House does not allege that it is powerless to legislate in the future. Nor does it

suggest that appropriations bills are unusual in the way the constitutional amendment in Coleman

or the referendum in Arizona State Legislature might have been. Rather, it argues that the

Administration’s planned expenditures violate the Appropriations Clause because the

Administration is interpreting Sections 284 and 2808 incorrectly. But like in Raines, the House

“may repeal” or amend these laws or “exempt [future] appropriations” from the Administration’s

reach. Raines, 521 U.S. at 829. Thus, it has not alleged that the Administration’s actions have

nullified its legislative power. And it is therefore the political tools the Constitution provides,

8
Coleman may in fact be best understood as a case about the Supreme Court’s jurisdiction to review the
decisions of state courts rather than to the ability of the Judiciary to hear suits between the co-equal
political branches of the Federal Government. Recall that the plaintiffs first sued in state court before
seeking to invoke the Supreme Court’s appellate jurisdiction. See Coleman, 307 U.S. at 446. The Court
did not suggest that the plaintiffs would have had jurisdiction to bring their claims directly to federal
court. Indeed, as Justice Frankfurter observed, “[c]learly a Kansan legislator would have no standing had
he brought suit in a federal court.” Id. at 465 (Frankfurter, J., dissenting). No Justice disagreed with him.

When it issued, scholars and commentators viewed Coleman as part of a then-ongoing debate over the
scope of the Court’s ability to review the decisions on federal law made by state courts. See, e.g., James
Wm. Moore et al., The Supreme Court: 1938 Term II. Rule-Making, Jurisdiction and Administrative
Review, 26 Va. L. Rev. 679, 706-07 (1940) (suggesting that Coleman was “consistent with earlier cases”
because it held that the legislators could “invoke the appellate jurisdiction of the Supreme Court, although
they would not have had standing to sue initially in the federal courts”); see also Raines, 521 U.S. at 832
n.3 (Souter, J., concurring). That debate is over, and the “same standing requirements” now apply “both
at trial and on appeal to any Article III court.” Tara L. Grove, Government Standing and the Fallacy of
Institutional Injury, forthcoming 167 U. Pa. L. Rev. __ at *40 (2019). The basis on which the Coleman
legislators had standing then does not supply the House a basis for asserting standing today.

20
rather than the federal courts, to which the House must turn to combat the Administration’s

planned spending. 9

3.

Lastly, Raines and Arizona State Legislature caution federal courts to consider the

underlying separation-of-powers implications of finding standing when one political branch of

the Federal Government sues another. See Ariz. State Leg., 135 S. Ct. 2665 n.12; Raines, 521

U.S. at 820 (“the law of Art. III standing is built on a single idea—the separation of powers”).

Respect for the doctrine of separation of powers “requires the Judicial Branch to exercise

restraint in deciding constitutional issues by resolving those implicating the powers of the three

branches of Government as a ‘last resort.’” Raines, 521 U.S. at 833 (Souter, J., concurring).

Were it to rule on the merits of this case, the Court would not be deciding constitutional

issues as a “last resort.” Id. Instead, intervening in a contest between the House and the

President over the border wall would entangle the Court “in a power contest nearly at the height

of its political tension” and would “risk damaging the public confidence that is vital to the

functioning of the Judicial Branch.” Id.

As discussed above, Congress has several political arrows in its quiver to counter

perceived threats to its sphere of power. These tools show that this lawsuit is not a last resort for

the House. And this fact is also exemplified by the many other cases across the country

challenging the Administration’s planned construction of the border wall. Cf. Raines, 521 U.S.

9
One other distinction between this case and Arizona State Legislature merits mention. Here, the
House’s claims are not being brought by both chambers of the legislature. While the House is correct that
its allegations are less disparate and diluted than those brought by the Raines plaintiffs, these allegations
are also less concrete and particularized than those brought by the united legislature in Arizona State
Legislature.

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at 534 (Souter, J., concurring) (“The virtue of waiting for a private suit is only confirmed by the

certainty that another suit can come to us.”).

In some of these lawsuits, including two before this Court, private plaintiffs have

disputed the legality of the President’s declaration of a national emergency and the

Administration’s ability to use Sections 284 and 2808 to build the wall. See Ctr. for Biological

Diversity v. Trump, No. 19-cv-408 (D.D.C. 2019); Rio Grande Int’l Study Ctr. v. Trump, No. 19-

cv-720 (D.D.C. 2019). The plaintiffs in both cases specifically allege that the Administration’s

planned expenditures violate the Appropriations Clause. See, e.g., Compl., No. 19-cv-720, ECF

No. 1 at 38; Compl., No. 19-cv-408, ECF No. 1 at 35-36. The House is free to seek leave to file

briefs as amicus curiae in these suits.

In fact, it has done so in a related matter in the Northern District of California. See Br. of

Amicus Curiae, Sierra Club v. Trump (“House Sierra Club Br.”), No. 4:19-cv-892 (N.D. Cal.

2019), ECF No. 47. There, two citizens’ groups sought a preliminary injunction against the

Administration to prevent it from using the Sections 284 and 2808 funds to build the wall. See

Sierra Club v. Trump, No. 4:19-cv-892, 2019 WL 2247689 (N.D. Cal. May 24, 2019). As

amicus curiae, the House too, urged the court to enjoin the Administration, raising many of the

contentions it did before this Court. See House Sierra Club Br. at 3-17. The Sierra Club court

granted the citizens’ groups a partial injunction and enjoined the Administration “from taking

any action to construct a border barrier” along the southern border using Section 284 funds.

Sierra Club, 2019 WL 2247689 at *30.

An old maxim in politics holds that, “Where you stand depends on where you sit.” See

Rufus E. Miles, Jr., The Origin and Meaning of Miles’ Law, 38 Pub. Admin. Rev. 399 (1978).

At law too, whether a plaintiff has standing often depends on where he sits. A seat in Congress

22
comes with many prerogatives, but legal standing to superintend the execution of laws is not

among them.

As Chief Justice Marshall explained, the “province of the [C]ourt is, solely, to decide on

the rights of individuals, not to enquire how the executive, or executive officers, perform duties

in which they have a discretion.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803). The

“irreplaceable value” of the Judiciary’s power “lies in the protection it has afforded the

constitutional rights and liberties of individual citizens and minority groups against oppressive or

discriminatory government action.” Raines, 521 U.S. at 829 (quoting United States v.

Richardson, 418 U.S. 166, 192 (1974) (Powell, J., concurring)) (emphasis added). It is “this

role, not some amorphous, general supervision of the operations of government,” that permits the

“countermajoritarian implications” of judicial review to coexist with the “democratic principles

upon which” the Founders built the Federal Government. Id. Mindful of these admonitions, the

Court declines to take sides in this fight between the House and the President. 10

10
Based on the D.C. Circuit’s reading of Raines, the Court includes this separation-of-powers discussion
as a part of its standing analysis. See Chenoweth v. Clinton, 181 F.3d 112, 116 (D.C. Cir. 1999)
(suggesting that Raines may “require us to merge our separation of powers and standing analyses”).
Before Raines, the D.C. Circuit had upheld a district court’s dismissal on equitable grounds of an inter-
branch controversy that raised significant separation-of-powers concerns. See Moore v. U.S. House of
Representatives, 733 F.2d 946 (D.C. Cir. 1984).

The House urges the Court not to apply this “doctrine of equitable discretion,” as it has rarely been used
in recent years. Pl.’s Reply at 22. But the Circuit has not found that Raines formally overruled the Moore
approach. See Chenoweth, 181 F.3d at 116 (“Raines notwithstanding, Moore . . . may remain good law,
in part, but not in any way that is helpful to the plaintiff Representatives. Whatever Moore gives the
Representatives under the rubric of standing, it takes away as a matter of equitable discretion.”). Here, as
in Chenoweth, the parties’ dispute is “fully susceptible to political resolution” on either jurisdictional or
prudential grounds. Id.

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 IV.

This case presents a close question about the appropriate role of the Judiciary in resolving

disputes between the other two branches of the Federal Government. To be clear, the Court does

not imply that Congress may never sue the Executive to protect its powers. But considering the

House’s burden to establish it has standing, the lack of any binding precedent showing that it

does, and the teachings of Raines and Arizona State Legislature, the Court cannot assume

jurisdiction to proceed to the merits. For these reasons, it will deny the House’s motion. A

separate Order accompanies this Opinion.

2019.06.03
17:39:35 -04'00'
Dated: June 3, 2019 TREVOR N. McFADDEN, U.S.D.J.

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