A federal district judge grappled Thursday with the involvement of the judiciary in a dispute between the House of Representatives and the administration his border wall.
During the roughly three-hour hearing, Judge Trevor McFadden, a Trump appointee, appeared skeptical about involving the judiciary in a conflict between the Democratic-led House and the administration regarding Trump’s decision to transfer funds from appropriated accounts to construct his wall.
“The President in this instance is going to the very heart of our checks and balances,” Douglas Letter, representing the House, argued before the judge in the District Court for the District of Columbia.
McFadden, however, cited the political tools at the disposal of the legislative branch.
“Has your client utilized all the tools at its disposal before rushing to court?” he asked. To which, Letter responded that the House did what it’s supposed to do in appropriating funds.
Lawyers for the Trump administration warned of opening up the opportunity for branches to sue each other. “For over 200 years, Congress and the executive branch resolved political disputes through political means,” said James Burnham, a government lawyer.
Like the Justice Department has said in court filings, Burnham argued that the House lacks standing to bring the lawsuit in the first place, has no cause of action against the administration and is unlikely to prevail on the merits.
The Democratic-controlled House joined a slew of organizations in filing a lawsuit against the President’s national emergency declaration earlier this year. Last week, the first of those hearings kicked off, with a federal district court judge in Oakland, California.
The House lawsuit argues that Trump’s choice to move around funds for the wall violated the Appropriations Clause of the Constitution. The clause – found in Article I, Section 8 – gives Congress power over the designation of federal spending. It asks McFadden to block spending of money transferred for the wall in addition to future transfers.
In recent weeks, the suit has received notable support from former members of Congress and former House general counsels from both sides of the aisle.
“Rarely in our Nation’s history has the Executive Branch launched such an assault on Congress’s exclusive legislative powers,” an amicus brief from a bipartisan group of more than 100 former House members said, citing the President’s national emergency declaration which allowed him to circumvent Congress and obtain funds for his border wall.
“Without action by this Court to prevent the Administration’s usurpation of congressional authority, the unchecked expansion of the Executive’s power at the expense of the Legislative Branch will threaten our democracy,” the brief adds.
Among the points laid out in the brief, the former lawmakers refuted the idea that there’s a national emergency at the southern border. “Emergencies are sudden and immediate, not longstanding and static,” the brief says, noting that Trump has called for a wall since the start of his presidential campaign in 2015.
Among those who joined the briefing are former House Majority Leader Dick Gephardt and two former House members and Secretaries of Defense, Bill Cohen and Leon Panetta.
McFadden did not say when he would rule.
This story has been updated with additional developments.