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Merrick Garland Corners DOJ Lawyer, Elicits Awkward Claim That Congress Can’t Challenge Presidential Spending

The full panel of judges seated on the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday began hearing oral arguments on two highly significant cases concerning the role of federal courts in resolving conflicts between Congress and the executive branch. As the proceedings unfolded, U.S. Circuit Judge Merrick Garland — who was infamously denied a hearing by Republicans in the Senate after being nominated by then-President Barack Obama to the Supreme Court — managed to back one of the Justice Department’s attorneys into arguing that the president has the unilateral authority to spend federal funds without congressional oversight.

The two monumental cases concerned whether former White House counsel Don McGahn must comply with a committee subpoena to testify before Congress and whether President Donald Trump acted within his authority by declaring an emergency to divert billions of dollars in already-allocated federal funds to build a wall along the U.S.-Mexico border.

Following Trump’s emergency declaration at the border, House Democrats filed a lawsuit challenging the administration’s ability to use money earmarked for other purposes toward building a border wall in excess of the $1.375 billion approved by Congress.

Questioning DOJ attorney Hashim Mooppan, Judge Garland posed a series of hypothetical scenarios pertaining to Congress’s standing to legally challenge a president’s spending in order to better understand the scope of the DOJ’s argument.

“After the defeat of a healthcare bill, the president of the United States instructs the Treasury [Department] to pay for healthcare insurance for any American who cannot get private insurance,” Garland said, essentially asking if a president could unilaterally implement universal healthcare. “Would the Congress have standing to challenge that?”

“No Your Honor,” Mooppan replied.

Pressed further, Mooppan said he could not “off the top of [his] head” think of anyone who would have standing to sue on such a claim, but he did concede that sometimes there are “somewhat surprising people” who could sue in such circumstances.

Garland then asked if Congress had standing to challenge a president who unilaterally instructed the Treasury to issue a check for $1,000 every month to every American until the coronavirus pandemic ends, even after such a proposal was — hypothetically — debated and failed to pass in Congress.

Mooppan said he could imagine that “debt collectors and repo men” may be the only people to have standing to challenge such a decree, because they would be the only ones to be injured.

“If appropriations power can never be checked in a situation where the government just gives money away […] that’s a significant power that the president has that can’t be checked by the Congress,” Garland replied.

Judge Garland also asked what recourse Congress would have if the president ordered such a payment in direct violation of federal law and supplemented that order with a directive to the Attorney General not to bring a case and a pardon for any behavior pursuant to the president’s order.

“What’s the check now?” Garland asked.

After a long pause, Mooppan suggested that Congress could “use all the other tools” at its disposal against the president, such as shutting down his legislative agenda and nominations.

Mooppan eventually conceded that if Congress has a president who is “ignoring all laws, I suppose the final solution for that sort of problem is removal from office, but at no point is the proper solution for that to let Congress come in and file lawsuits against the president.”

The reason Garland was asking these hypotheticals was because Mooppan, on behalf of the DOJ and the Trump administration, was arguing that courts do not have the power to settle disputes between branches of government. Mooppan’s position was that only a sovereign itself as a whole (meaning states and the united states government) can sue and be sued, as can private parties (such as companies and individuals) — sometimes in their official capacities. Individual branches of government cannot, he argued, redress their grievances before the courts. Even if they could, Mooppan argued, the House of Representatives certainly could not sue without the Senate joining the case, since the bicameral legislature is contained within the same article of the Constitution.

The “history and tradition” of the country, Mooppan explained elsewhere, was that Congress has generally had to live with it when the executive branch did not give Congress what it wanted.

The awkward extent of the hypotheticals, however, seemed to miss the constitutional reality that the president is not constitutionally in charge of the federal coffers. Article II, Section 3 of the Constitution says the president “shall take care that the laws be faithfully executed.” Article I, Section 8, Clause 1 says “Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” Congress has the power of the purse, and the president is supposed to execute it by constitutional logic.

Aaron Keller contributed to this report.

[Image via Brendan SmialowskiI/AFP/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.