Again, the Separation of Powers Matters.

Weekly WastebasketAgain, the Separation of Powers Matters.Federal court says no to presidential sleight of hand on border barriers.

The president’s plan to transfer $3.6 billion in Pentagon dollars to build a fence on the southern border was just dealt a substantial legal blow by a federal court decision in Texas. But that will be far from the final shot in the volley.

The U.S. District Judge in the El Paso division of the Western District of Texas granted a Motion for Summary Judgment to the plaintiffs who are seeking to stop the Trump Administration from using military construction funds to build 174 miles of fencing along the Texas border. The Plaintiffs in the case are the County of El Paso and a non-governmental organization, “Border Network for Human Rights.” The Defendants are President Trump, the Secretaries of Defense, Homeland Security, Treasury, the Attorney General and a few other lower-ranking federal officials.

In granting the motion for summary judgment, the judge blocked the administration’s plan to divert funds Congress had appropriated for military construction to instead be used for border security. The judge found the plain language of the Consolidated Appropriations Act for Fiscal Year 2019 (CAA) specifically appropriates only $1.375 billion for border security and requires the money only be spent on “…construction…in the Rio Grande Valley Sector…” Another section of the law explicitly forbids using appropriated funds for anything not specifically in the appropriations act “…unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations act.”

This last is boilerplate language to maintain Congressional prerogatives over federal appropriations because, well, the separation of powers matters!

Clearly Congress was intent upon restricting the amount of money to be spent on border barriers, the type of barrier allowed, and where the construction could occur. You’ll recall that disagreement on this exact issue led to the longest partial shutdown of the federal government in history. A shutdown that resolved nothing, cost at least $2.2 billion, reduced first quarter GDP by $8 billion, resulted in nearly 6.6 million lost federal workdays (equal to more than 25,000 work years). But we digress: The president’s emergency declaration was crafted to circumvent the plain intent of the Congress and force the building of more border barriers.

The administration intended to use the emergency declaration to justify the transfer of $3.6 billion of military construction funds to fence construction. We’ve been throwing the proverbial flag to indicate a process foul on this end-around for months. (Imagine us in the referee’s striped shirt, standing on the field.) The Constitution gives Congress the power of the purse: the president can veto bills he doesn’t like, but let’s remember the CAA was signed by the president!  It’s nice to see a federal court illustrating the full picture of separation of powers – the courts, not the president, gets to resolve constitutional questions.

We hope that Congress will jump more directly into this fight – they should be seeking to protect their constitutional prerogatives rather than relying on third parties to take the fight to the courts.  This is an important decision, but the plaintiffs don’t have the right to appropriate funds either – Congress does.

This won’t be the end of this fight because the government is sure to appeal the decision. With everything else going on in Washington, this issue might get lost in the shuffle. But at TCS we’ll be paying attention to this important issue and writing about it as the fight progresses in the courts.

But for the time being, Congressional responsibilities as mandated by the Constitution are winning.