Showdown over border wall spending reaches Supreme Court

Biden administration's petition focuses on separation-of-powers concerns

The wall stretches along the U.S.-Mexico border near Columbus, N.M.
 (Bill Clark/CQ Roll Call file photo)
The wall stretches along the U.S.-Mexico border near Columbus, N.M. (Bill Clark/CQ Roll Call file photo)
Posted June 15, 2021 at 6:49pm

The Biden administration has asked the Supreme Court to wipe out a lower court ruling that sided with House Democrats in the drawn-out fight over spending to build a barrier on the U.S.-Mexico border.

The Justice Department filed the petition Friday with an argument that rests not on politics or defense of a policy but on separation-of-powers concerns.

These types of lawsuits could put federal courts in the middle of an “infinite” number of spending disputes between a president and one chamber of Congress, the petition said.

And the department argues the justices also should declare that the case is moot since President Joe Biden halted all spending on wall construction that President Donald Trump had ordered.

Back in late 2018, Trump wanted $5 billion in a fiscal 2019 spending bill to build a wall. Congress appropriated $1.375 billion for fencing. That caused a showdown between the branches that shut down the government for more than a month, until Trump relented.

But Trump then announced plans to transfer up to $8.1 billion from other funds for the border wall construction. And the House filed a lawsuit that argued the move violated the Appropriations Clause of the Constitution in a way that usurps Congress’ authority over spending.

After a lot of twists and turns in the lower courts, a federal appeals court in Washington ruled in September that the House had the legal right to file a lawsuit over the spending drama.

The Biden administration told the justices that letting that ruling stand could give rise to “an infinite number of disputes” between a president and one chamber of Congress that could be framed as disputes over spending.

“If it remains in place, the court of appeals’ unprecedented decision will open the courthouse doors in the District of Columbia to a variety of suits by one House of Congress against the Executive Branch over how the Executive Branch is exercising its statutory authority,” the petition filed Friday states.

“That would inject the federal courts into fundamentally political disputes and upset the balance of power between the political Branches,” the petition states.

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In September, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that the House had the right to sue because it was asserting a “distinct individual right” and not one that belonged to Congress as a whole.

“To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys,” the ruling stated. “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.”

That ruling allowed the House to move forward with the lawsuit but did not address the merits of the case. In the meantime, Trump lost the election and Biden has stopped the spending.

At the time, Speaker Nancy Pelosi called the D.C. Circuit ruling “a strong victory for the Constitution and the rule of law” that “upholds our Founders’ vision for our democracy, with three co-equal branches serving as a check and balance on the others.”