The D.C. Circuit issued an opinion today in U.S. House of Representatives v. Mnuchin. The opinion holds that the House of Representatives has standing to bring a lawsuit against the Trump administration to prevent President Trump from building a wall along the border with Mexico. Although I have previously said that I believe the House is correct on the merits that the administration does not have the authority to transfer funds to build a wall, the D.C. Circuit likely reached the wrong holding about standing. Specifically, Supreme Court precedent in Virginia House of Delegates v. Bethune-Hill likely prohibits the D.C. Circuit from reaching such a holding.

Background

The merits of the case involve President Trump transferring funds to build a wall along the border with Mexico. Although existing statute allowed the Trump administration to build a wall along the border with Mexico, Congress only appropriated $1.375 billion to build the wall.

As President Trump wanted to spend more money, the Trump administration transferred unused funds into appropriations accounts that could be used to build the wall.

The House brought a lawsuit claiming that the Trump administration had exceeded the statutory restrictions on transferring funds. Additionally, the House claimed that because the transfer of funds were illegal, building the wall violated the constitutional requirement that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The Supreme Court has interpreted this clause to mean that “the expenditure on public funds is proper only when authorized by Congress.”

The district court held that the House lacked standing.

Virginia House of Delegates v. Bethune-Hill

In Bethune-Hill, voters sued Virginia alleging that its 2010 redistricting was a racially motivated gerrymander. The Virginia House of Delegates intervened as defendants. When Virginia’s Attorney General declined to appeal a district court ruling, the House of Delegates appealed. The House of Delegates claimed standing based upon “its role in enacting redistricting legislation in particular. The House observes that, under Virginia law, ‘members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly.’”

However, the Supreme Court held that the House of Delegates did not have standing on its own. The Supreme Court’s “precedent . . . lends no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment. . . . [T]he Virginia constitutional provision the House cites allocates redistricting authority to the ‘General Assembly,’ of which the House constitutes only a part. . . . Just as individual members lack standing to assert the institutional interests of a legislature, a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole.”

D.C. Circuit’s Reasoning

The D.C. Circuit summarizes the previous caselaw on legislative standing as “[w]hen the injury alleged is to the Congress as a whole, one chamber does not have standing to litigate. When the injury is to the distinct prerogatives of a single chamber, that chamber does have standing to assert the injury.” I think this is an accurate summary of the caselaw.

However, where the D.C. Circuit likely deviates from applicable caselaw is when it says that there is a “two-string theory” for a single house of Congress to limit spending:

To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House’s key out of its hands. That is the injury over which the House is suing. . . .

The alleged Executive Branch action cuts the House out of the appropriations process, rendering for naught its vote withholding the Executive’s desired border wall funding and carefully calibrating what type of border security investments could be made. . . . The ironclad constitutional rule is that the Executive Branch cannot spend until both the House and the Senate say so. . . . Nor does it work to say that suit can only be brought by the House and Senate together, as that ignores the distinct power of the House alone not to untie its purse string. “[E]ach Chamber of Congress [possesses] an ongoing power—to veto certain Executive Branch decisions—that each House could exercise independent of any other body.” Bethune-Hill. Unlike the affirmative power to pass legislation, the House can wield its appropriations veto fully and effectively all by itself, without any coordination with or cooperation from the Senate.

For that reason, expenditures made without the House’s approval—or worse, as alleged here, in the face of its specific disapproval—cause a concrete and particularized constitutional injury that the House experiences, and can seek redress for, independently. And again, failure to recognize that injury in fact would fundamentally alter the separation of powers by allowing the Executive Branch to spend any funds the Senate is on board with, even if the House withheld its authorizations.

In short, Article III’s standing requirement is meant to preserve not reorder the separation of powers.

In that way, this case bears no resemblance to Bethune-Hill. The House of Representatives seeks to vindicate a legal interest that it possesses completely independently of the Senate, or of the Congress as a whole. The Constitution’s structure and the Appropriations Clause together give the House a vital power of its own: “[N]ot a dollar . . . can be used in the payment of anything” unless the House gives its “sanction[].” Reeside [v. Walker]. That is quite different from an effort by one legislative chamber to enforce rights that vest solely in the full “legislature as a whole.” Bethune-Hill. (citations omitted).

Why the D.C. Circuit’s Holding Is Likely Incorrect

The House likely does not have standing to bring a lawsuit as it alleges an institutional interest of Congress’ power of the purse under the Appropriations Clause. Here, only the House is bringing a lawsuit. Much like in Bethune-Hill, the lawsuit involves a single house of a legislature’s role in the legislative process when the Constitution grants an authority to the legislature as a whole.

Specifically, the Supreme Court has interpreted the Appropriations Clause to say that “the expenditure on public funds is proper only when authorized by Congress.” As such, it is Congress as an institution that is injured by an illegal appropriation, not each individual house of Congress. Thus, the House does not have authority to bring a lawsuit in its own capacity. Only the House and Senate acting together can bring a lawsuit. The D.C. Circuit’s decision even notes that the Founding Fathers rejected the House having a special role in appropriations: “an early draft of the Constitution went as far as to require appropriations bills originate in the House of Representatives,” but that requirement was not included in the final version of the Constitution.

Addressing the D.C. Circuit’s reasoning, the D.C. Circuit makes the factual observation that the House was cut out of the appropriations process. While true, it is a better description to say that Congress as a whole was cut out of the process. Bethune-Hill noted that when the legislature as a whole has an authority, only the legislature as a whole can bring a lawsuit. The Supreme Court has explicitly held that the Appropriations Clause grants Congress authority over the appropriations process. As such, only Congress as a whole would have authority to bring a lawsuit. To hold that one house would have standing from being cut out of a congressional role would mean that one house would have standing regarding any potential violation of congressional authority, which is exactly the situation the Supreme Court decided against in Bethune-Hill.

Next, the D.C. Circuit cites a Bethune-Hill footnote regarding INS v. Chadha to hold that the House has an appropriations veto. The full footnote, which the D.C. Circuit only partially cites, is:

Misplaced for similar reasons is the House’s reliance on this Court’s statements in INS v. Chadha, that the United States House and Senate were “proper parties” or “adverse parties.” First, it is far from clear that the Court meant those terms to refer to standing, as opposed to the simple fact that both Houses of Congress had intervened. In any event, the statute at issue in Chadha granted each Chamber of Congress an ongoing power—to veto certain Executive Branch decisions—that each House could exercise independent of any other body. (citations omitted).

I am not sure how this quote could apply to the present case. The Supreme Court notes that the holding does not necessarily apply to standing. Further, the language the D.C. Circuit cited is a description of a statute, not a general holding. Additionally, the statute at issue gave each house of Congress the affirmative power to veto an Executive Branch action (i.e., a legislative veto). The Appropriations Clause does not involve a legislative veto, but the requirement of Congress to pass a law to authorize any spending. Moreover, the Supreme Court found in Chadha that legislative vetoes are unconstitutional. Thus, the House does not have the authority to make an appropriations veto. Appropriations can only be approved or disapproved through a law passed by Congress as a whole.

The D.C. Circuit then holds that not finding standing would “alter the separation of powers by allowing the Executive Branch to spend any funds the Senate is on board with, even if the House withheld its authorizations.” The D.C. Circuit also makes similar separation of power arguments that I omitted from my summary. While the description of not finding standing altering the enforceability of the separation of powers is a factually true statement, it is a policy argument, not a legal argument. The separation of powers is between the Legislative Branch (i.e., the House and Senate combined) and the Executive Branch. The Appropriations Clause involves Congress’s authority, not an individual house. It is only Congress that can allege a separation of powers argument.

Finally, the D.C. Circuit cites Reeside v. Walker in holding that “the Constitution’s structure and the Appropriations Clause together give the House a vital power of its own. ‘[N]ot a dollar . . . can be used in the payment of anything’ unless the House gives its ‘sanction[].’” However, the full quote is: “It is a well known constitutional provision, that no money can be taken or drawn from the Treasury except under an appropriation by Congress. However much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of anything not thus previously sanctioned.” (citations omitted). Again, the Supreme Court holds the Appropriation Clause is a legal interest of Congress and not an interest of each individual house of Congress.

Conclusion

Prior caselaw from the Supreme Court likely holds that because the Appropriations Clause involves a legal interest of Congress as an institution, the House does not have standing on its own to bring a lawsuit challenging the Trump administration building a wall along the border with Mexico. If the en banc D.C. Circuit or the Supreme Court reverses the panel’s decision, the reversal would likely lead to the unusual situation where it would be hard for anyone to challenge an illegal appropriations.

Individuals would often not have standing as appropriations generally provided benefits, not harms. While Congress could have standing, it would likely only bring a lawsuit in the relatively rare situations that both houses of Congress were of the opposing party of the president.

What can be done then if nobody has standing to challenge an illegal action?

Although it is already illegal under the Antideficiency Act to spend money not authorized by law, it is unlikely that any administration would prosecute government officials for enacting its own administration policy. While future administrations would potentially have the authority to retroactively prosecute violations in previous administrations, such an avenue of enforcement would present issues because (i) criminal prosecution is likely not the best avenue to determine the legality of legal interpretations where reasonable minds could differ and (ii) the prosecutions could potentially lead to the regular, partisan prosecuting of top officials from a previous administration.

However, the previously passed Impoundment Control Act and the recent House of Representatives’ proposed Protecting Our Democracy Act provide examples of how Congress could ensure that there is authority to challenge any future, unauthorized appropriations.

The Impoundment Control Act allows the president to not spend funds appropriated by Congress (i.e., rescind funding) if the president (i) sends a message to Congress informing it of the president’s desire to rescind funding and (ii) prints the message in the Federal Register. However, the president must spend the funds if Congress does not affirmatively approve the rescission within 45 days. If the president fails to follow the Act, the Government Accountability Office (an independent, nonpartisan congressional watchdog) is authorized to bring a lawsuit on behalf of Congress.

As the Impoundment Control Act only deals with failures to spend appropriated money, it cannot be used in the reverse situation (such as building the wall) when Congress believes the president is spending money that was not appropriated.

The Protecting Our Democracy Act provides an avenue for a legislative remedy of this issue. This past week, the House of Representatives proposed the Protecting Our Democracy Act to provide additional oversight and protections against potential, presidential abuses of power. Although the proposed Act provides enhanced litigation authority for the Government Accountability Office to enforce the Impoundment Control Act, the provisions regarding violations of the Antideficiency Act, transfer authority, and other potential unauthorized spending only impose additional reporting requirements upon the Executive Branch.

Thus, the House should amend its proposal to provide a congressional enforcement mechanism for the Antideficiency Act. Specifically, Congress should use the example of the Impoundment Control Act to provide the Government Accountability Office the general authority to bring a lawsuit on Congress’ behalf to challenge any violations of the Antideficiency Act. Additionally, given the shorter nature of many appropriations act, Congress should also (i) include expedited procedures for judicial review of congressional lawsuits involving the Antideficiency Act and (ii) deter violations of the Antideficiency Act by allowing the Government Accountability Office to seek from a court administrative punishments (e.g., suspension of pay) against senior, political officials that violate the Antideficiency Act when there is a clear judicial precedent preventing the administration from authorizing the spending.

Hopefully, such a law would prevent the current situation where there may be no effective mechanism to challenge potentially unauthorized spending by an administration. Even if the D.C. Circuit’s decision is upheld on review, such a law could help streamline the review of potential violations of appropriations law.