Below is my column in The Hill newspaper on rejection of the lawsuit by the House of Representatives against the order issued by President Donald Trump to build the wall on the Southern border under the National Emergencies Act. I had previously testified against this lawsuit as a reckless and unnecessary move by the house. It is part of a litigation strategy that is clearly driven more by political than legal calculations.
Here is the column:
With a crucial defeat in federal court this week, one would expect the House Democrats to be embarrassed at losing long protected precedent supporting legislative authority. Instead, as a federal judge in Washington was rejecting their challenge to the executive order by President Trump to build a wall along the southern border, House leaders have nonetheless moved ahead with an assortment of other inadvisable gambles.
The first step for compulsive gamblers is to admit they have a problem. Democrats have a serious and growing problem. The court defeat was particularly stinging to those of us who have tried repeatedly to persuade House Democrats to recognize that they are destroying themselves with reckless litigation. I have spent decades writing, testifying and litigating in support of congressional authority. A typical Madisonian scholar, I favor the legislative branch in court battles with the executive branch. We have seen the steady erosion of legislative power over the years, and many of us have indeed tried to steer Congress away from reckless litigation.
For more than a year, I have objected to a dangerous strategy of pursuing litigation in a wide array of conflicts with the Trump administration. As someone who has represented the House both as a body and as individual members, my concern was that Democrats would fritter away hard fought victories on congressional authority. Despite such warnings, politics has trumped good judgment. Now the bill has come due with the decision by District Judge Trevor McFadden tossing a challenge by Congress and, with it, the claim that the House has standing to bring such a lawsuit.
In a House Judiciary Committee hearing in February, I laid out various reasons why such a challenge was unnecessary and unwise. First, other groups could bring the lawsuit, so there was no need for the House to risk its hard fought precedent. As shown in California, various states secured an injunction against the construction of the border wall. While I remain skeptical of the prospect of barring all construction in the long term, the case showed why there was no need for the lawsuit.
Second, on the merits, it was doubtful that any court would protect the House from itself. Congress unwisely passed the National Emergencies Act, giving a president virtually unchecked authority. However, it reserved the ability to rescind such order. It did not do so in this case, for lack of votes in the Senate. Speaker Nancy Pelosi (D-Calif.) and the House were asking a judge to order a result that they could not secure for themselves in Congress. Ironically, Pelosi was finally proven correct, in an odd way.
When I was asked to represent the House in challenging the payment of billions to insurance companies under the Affordable Care Act without congressional approval, Pelosi and all of the Democrats opposed the litigation. They supported the circumvention of Congress and opposed contempt proceedings for withholding information from Congress. In our litigation, Pelosi insisted that the case was guaranteed to fail and that President Obama should be able to unilaterally order the payments from the Treasury despite a refusal of Congress previously to do so.
We not only won the case but created long sought precedent recognizing the right of the House to bring such a lawsuit as a question of standing. In bringing this lawsuit over the southern border wall, Pelosi and House leaders have now allowed a bad case to make bad law and undermined future sessions of Congress in efforts to rein in executive overreach. It is a high price to pay for a courthouse photo opportunity and sound bite.
Just two weeks ago, I testified before the House Judiciary Committee and again begged members not to bring such lawsuits, including a threatened contempt action against Attorney General William Barr. I told Chairman Jerrold Nadler (D-N.Y.) that, if the House repeated the arguments being made in the press, it was walking “into a world of hurt” in the further loss of needed precedent. Now, on the heels of this court defeat, the Democrats are proceeding with the equally dubious contempt action. Like bad gamblers playing in Las Vegas, the Democrats are doubling down on their losses, pledging to magnify their losses with an appeal and new challenges.
There also is the “preoccupation” of the Democrats with gambling. They are eager to get their base to forget about impeachment and instead focus on these litigation gambits. That is why there is still no initiation of an impeachment inquiry, as opposed to frivolous court and contempt actions. Then there are symptoms of gambling when “depressed” and concealing its costs. With a base angry over impeachment, these cases give temporary satisfaction even though they will achieve very little.
That is why pathological gamblers often show a “reliance on others to provide money to relieve desperate situations caused by gambling.” Rational legislators do not litigate close calls, and this was not a close call. Yet, at the very time that the court was dismissing it, Pelosi and House leaders were back at the poker table, scheduling a vote on contempt against Barr next week. It is a pattern that would make Pete Rose blush.
I have been one of the experts encouraging the House to use its contempt authority much more aggressively. However, this is not such a case. In the hearing two weeks ago, I testified that the contempt measure was facially and legally absurd, based on a subpoena demanding that Barr turn over a full unredacted report. Under federal law, Barr could not do so, and he could not release grand jury material to Congress without a court order.
At that hearing, Democratic witnesses and House members agreed that Barr could not release the full unredacted report. Thus, he is being held in contempt for not complying with a subpoena that he could not comply with under federal law. Moreover, Barr offered to appear before the House to answer questions, as he did before the Senate. But the House threw in an absurd condition that he would be questioned by House staff rather than members. The House Judiciary Committee insisted that it needed to do so because the special counsel report is evidently “complicated.”
Putting aside that neither the report nor the underlying laws are overly complicated, the Senate questioned Barr for hours. In the House request for testimony by special counsel Robert Mueller and others, there is no demand for staff questioning. Suddenly, the report is less complicated. In its decision, the federal court did precisely what I warned of in prior hearings. It not only dismissed the heart of the case for Congress but drove a stake into the heart of legislative standing, which is the essential element needed for the House to litigate such cases in the future.
All of this delights those who want an all-powerful executive branch, and House leaders are playing into the hands of advocates who have worked to create an uber-presidency. Litigating against executive power is like playing the house in poker as the odds always favor the casino. No one is more pleased than the White House to see Democrats back at the table.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.