Ex-House general counsels back House’s border wall suit

By JOSH GERSTEIN 05/06/2019 10:45 PM EDT

Eight former top lawyers for the House of Representatives are backing a House lawsuit seeking to block President Donald Trump from spending billions of dollars of federal funds on a border wall without any specific authorization from Congress.

Attorneys who served a bipartisan set of speakers over the past four decades filed a brief Monday urging U.S. District Court Judge Trevor McFadden to rule that the House has standing to pursue the border wall suit and that the dispute is a proper one for the courts despite the reluctance of many judges to weigh in on fights between Congress and the president.

“Congress has voted not to provide $8 billion for a border wall, doing so after a drawn-out standoff with the executive branch that led to the longest government shutdown in history. Congress has used all of the political tools in its box, the amicus brief says. “Congress has used all of the political tools in its box.”

The suit was filed last month by the House in federal court in Washington after Trump announced plans to tap $8.1 billion in drug interdiction and military construction funds to build the wall despite Congress only appropriating $1.375 billion for border fencing projects in the current fiscal year. Administration officials have argued that much of the funding was unlocked by declaration Trump signed declaring a national emergency due to prospective migrants trying to stream across the border.

Justice Department lawyers’ first substantive response to the House suit is due Wednesday. Those attorneys are expected to argue that the courts should essentially butt out of the case and leave the Congress and the administration to battle out the issue in other ways.

However, the former House lawyers seek to preempt those arguments by saying Trump’s actions in announcing his plans to proceed with the border wall are such an egregious rebuff of Congress’s appropriations power under the Constitution that adjudicating the suit doesn’t risk courts being drawn into every funding dispute between Congress and the White House or federal agencies.

“If there is any slippery slope to fear here, it is what would happen if the House lacked standing to enforce the Appropriations Clause: In such circumstances, the Executive would have an open invitation to flout Congress’s appropriations decisions and to spend funds as it pleases without fear of consequences (save, perhaps, in extreme cases, that of impeachment),” the brief from the former general counsels says, adding that the suit will “restore, not upset, the intended separation of powers between the three branches of government.”

The former House general counsels backing the brief are Kerry Kircher, Irving Nathan, Geraldine Gennet, Thomas Spulak, Steven Ross and Stanley Brand. Former acting general counsels William Pittard and Charles Tiefer also signed on. The attorneys served House Speakers from Tip O’Neill through Paul Ryan.

The amicus brief was prepared by lawyers from Washington law firm Robbins Russell.

In addition to filing the suit in Washington, the House is also supporting a separate suit 16 states filed in federal court in Oakland, Calif., over Trump’s border wall plan.

https://www.politico.com/story/2019/...r-wall-1307386