“The Court declines to take sides in this fight between the House and the President.”
If more judges would think as Judge Trevor McFadden wrote yesterday in a memorandum denying House Democrats’ standing to sue Trump’s border wall, we’d have a semblance of a republic left.
Yesterday, in direct contradiction of a California judge’s ruling last week, Judge Trevor McFadden of the U.S. District Court of the District of Columbia ruled that House Democrats have no standing to sue the Trump administration over using defense funding for a border wall. He did not write on the merits of whether the president interpreted the statutes correctly or not. That does not matter. The judiciary does not stand above the other two branches and is not the final arbiter of political disputes. It decides cases or controversies and grants relief to specific plaintiffs with legitimate standing before a court. In this case, “the Constitution grants the House no standing to litigate these claims,” according to Judge McFadden.
In the 24-page ruling in U.S. House of Representatives v. Steven Mnuchin, McFadden noted that more broadly, “Intervening in a contest between the House and President over the border wall would entangle the Court ‘in a power contest nearly at the height of its political tension’ and would ‘risk damaging the public confidence that is vital to the functioning of the Judicial Branch.’”
What a refreshing change from what we’ve grown accustomed to seeing in the courts. Rather than twisting Marbury vs. Madison to elevate the role of the judiciary to that of a god, as many other judges mistakenly do, McFadden rightfully noted that Marbury limited the role of judicial review “to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.”
So what happens to the competing injunction of Judge Haywood Gilliam of the Northern District of California? Last week, he not only gave standing to Democrats to sue, but downright pretended like he has the power to stop Trump from constructing a wall in parts of Arizona and New Mexico. Rather than simply ignoring this toothless injunction, which violates separation of powers, the administration begged the judge to “allow” it to continue the construction pending the appeals process, a request he summarily denied.
This should all change with Judge McFadden’s ruling. It’s time for Trump to set the precedent that “heads we win, tails you lose” is not a legitimate judicial process. Until now, especially during the travel ban case, the Trump administration went along with the point that Democrats can forum-shop for the most liberal districts on a broad national question and shut down the policy, even if judges elsewhere side with the administration. Under this erroneous practice, if 93 district courts were to toss out a lawsuit lodged against an administrative policy, but one takes the case and issues an injunction, prevailing legal theory acts as if there is some sort of extra-constitutional veto on the policy or law. That is simply not the case.
Trump should point to McFadden’s decision and his own separate branch of government as rationale for pushing back against Haywood Gilliam’s order. Democrats were also engaging in forum-shopping by going to the D.C. district along with the northern district of California. Democrat judges have an overwhelming majority on this panel (11-4), just like they do in the San Francisco court. Yet they struck out and got a Trump appointee. Why should the San Francisco judge rule the day when he is not even in a border district? At least the D.C. court naturally has more jurisdiction, because that is the go-to court for most controversies related to executive branch decisions.
The president can use this auspicious moment to delegitimize forum-shopping vetoes. The lawyers in the administration were counting on the Supreme Court to rein in these wayward California judges, but this is clearly not happening. We are nearly one year into this border crisis created by a single district judge, yet the Supreme Court will not act on catch-and-release. Just yesterday, the high court denied the government’s expedited motion for appeal in the case of a lower court judge making DACA the law of the land. Seventeen months after such a harmful and radical opinion, the Supreme Court is allowing lawlessness to pervade the foundation of our sovereignty.
As a separate branch of government, with the power to defend our nation’s border vested in the president, not the courts, the president must begin pushing back. There is no better case with which to launch that campaign, now that he has one robed omnipotent on his side.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.