The U.S. House of Representatives Has Institutional Standing to Challenge Alleged Violation of the Appropriations Clause, Holds D.C. Circuit

In United States House of Representatives v. Mnuchin, No. 19-5176 (D.C. Cir. Sept. 25, 2020), a panel of the D.C. Circuit holds that the House has institutional standing as a legislative body to challenge the alleged misappropriation of funds by the White House to pay for construction of a border wall.

“Congress enacted a budget resolution which included an appropriation of $1.375 billion ‘for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector.’ Pub. L. No. 116-6, § 230(a)(1), 133 Stat. 13, 28.” Dissatisfied with this appropriation, the President—rather than veto the bill—“announced that he planned to ‘us[e] his legal authority to take Executive action to secure additional resources’ beyond the funding appropriated by Congress and signed into law by the President.” The House contested two sources of additional funds:  Department of Defense funds appropriated for the Support of Counterdrug Activities (10 U.S.C. § 284), and Department of Defense funds allocated for other construction projects (10 U.S.C. § 2808).”

The House filed suit to prevent the president from spending the funds, “alleging that the defendants’ actions violated the Appropriations Clause of the Constitution and the Administrative Procedure Act [APA]. Fundamentally, the House’s position is that Congress authorized the defendants to spend $1.375 billion, and only $1.375 billion, for construction of a barrier, but the defendants are attempting to spend $8.1 billion.” The district court held that the House lacked standing and dismissed the suit.

The D.C. Circuit reverses. This case was decided in the wake of Committee on Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755 (D.C. Cir. 2020) (en banc), which held for the first time that a single house of Congress could have standing to pursue litigation against the Executive for injury to its legislative rights. In that case, the en banc court held that the House had standing to enforce a subpoena issued by one of its committees against a recalcitrant witness.

Here, “[t]he House alleges that it has suffered an institutional injury because the defendants’ actions have disrupted Congress’s specific authority over the appropriation of federal funds . . . . Congress’s authority is derived from the Appropriations Clause, U.S. Const. art I, § 9, cl. 7, which provides that ‘No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.’” Defendants argued that the institutional rights in appropriations belonged only to the U.S. Congress as a whole, not one chamber.

The panel holds, citing The Records of the Federal Convention of 1787, that while the Founders gave both the Senate and House a role in appropriations, it was “recognize[d that] the federal purse has ‘two strings’ and ‘[b]oth houses must concur in untying’ them.” Thus, “[t]he allegations are that the Executive interfered with the prerogative of a single chamber to limit spending under the two-string theory discussed at the time of the founding. Therefore, each chamber has a distinct individual right, and in this case, one chamber has a distinct injury. That chamber has standing to bring this litigation.”

“Taking the allegations of the complaint as true and assuming at this stage that the House is correct on the merits of its legal position, the House is individually and distinctly injured because the Executive Branch has allegedly cut the House out of its constitutionally indispensable legislative role. More specifically, by spending funds that the House refused to allow, the Executive Branch has defied an express constitutional prohibition that protects each congressional chamber’s unilateral authority to prevent expenditures. It is therefore ‘an institutional plaintiff asserting an institutional injury’ that is both concrete and particularized, belonging to the House and the House alone.”

Nevertheless, the panel rejects the House’s standing to pursue an APA claim. “Those allegations in no way set forth a legislative injury distinct to the House of Representatives and affording it standing. This court has explained that Congress does not have standing to litigate a claim that the President has exceeded his statutory authority . . . . Once a statute is passed, a claim that the Executive is exceeding his statutory authority is a generalized grievance and not particular to the body (or part of the body) that passed the law.”

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