Douglas Letter, the top lawyer for the U.S. House of Representatives, effectively got a dress rehearsal Friday for next week’s arguments in the House’s quest to block President Donald Trump’s transfer of money to fund construction of the border wall that was signature of the president’s 2016 election campaign.
The Democratic-led House of Representatives filed suit against the Trump administration in U.S. District Court for the District of Columbia last month claiming that the president’s declaration of a national emergency at the nation’s southern border didn’t justify funneling away funds appropriated to pay for anti-narcotics projects and military construction. Letter is set to argue the House’s motion for a preliminary injunction next Thursday before Judge Trevor McFadden of the U.S. District Court for the District of Columbia.
But Friday, Letter argued as a friend of the court across the country before Judge Haywood Gilliam Jr. of the U.S. District Court for the Northern District of California, who was hearing injunction requests in two separate suits brought on behalf of a group of Democratic states’ attorneys general and nonprofit groups represented by the ACLU.
Letter, who was first up among a half-dozen different lawyers to argue Friday, said that the House’s case could be best summed up by remarks a Trump official made to the media saying the administration would build the border wall “with or without Congress.”
“The executive branch cannot build this wall without Congress,” Letter said. He said the administration’s arguments otherwise amounted to “some statutory sleight of hand or more accurately three-card monte.”
The House’s lawsuit and those where Gilliam heard injunction arguments Friday were filed in the wake of the president’s declaration of an emergency at the nation’s southern border. The emergency declaration came after the president reached an impasse with Congress over funding for a wall along the border with Mexico. On Feb. 15 after a prolonged government shutdown fueled by disagreement over the border issue, the president signed Congress’ appropriations bill, which authorized $1.375 billion in spending on barriers in the Rio Grande Valley border sector in Southern Texas. That same day the president declared a national emergency and announced his intention of pulling in $8.1 billion in funding for border barriers—in part by reallocating funds from military construction projects and projects to support counterdrug activities,
At Friday’s hearing lawyers at the American Civil Liberties Union, representing the Sierra Club and Southern Border Communities Coalition, were seeking a nationwide injunction barring the administration from tapping military funding sources for border construction or, in the alternative, a block on spending for three specific projects along the border in New Mexico and Arizona.
Arguing on behalf of the plaintiffs, Dror Ladin, staff attorney with the ACLU’s National Security Project, urged Gilliam to issue a nationwide injunction noting the government’s plans of which projects to fund had shifted just in the time since the plaintiffs had filed suit.
Gilliam, however, struck a note of caution. “For the analysis of irreparable harm, how do I asses that without knowing what the projects actually are?” the judge asked.
At the same time, Gilliam pushed back against arguments from Deputy Assistant Attorney General James Burnham, representing the administration, who argued that the Department of Homeland Security’s request to tap military construction fund under the emergency declaration was “unforseen.” Burnham argued that in September 2018 when Congress appropriated funds for the military, DHS didn’t know it would be making an emergency request for border construction funds just five months later.
“Your perspective is that unforeseen means a request is unforeseen,” Gilliam said. “Wouldn’t every request from DHS be unforeseen then until the moment it was made?”
Gilliam took the injunction requests under submission at the conclusion of Friday’s hearing.