the house has sued here because the executive branch is spending a vast amount of money that was never appropriate for that purpose the house sued after engaging in all sorts of political activity the president asked for a large amount of money to build the southern border wall congress said no eventually led to the president shutting down the united states government the longest period in its history the there were all sorts of negotiations and eventually that shutdown was solved the once again the house and the senate largely said no to what the president wanted as far as funding for the wall this is very clear very specific he's focused on this one thing after in fact the same day that the president entered into this compromise he said actually i don't like the political compromise i entered into i'm going to spend a lot more money on this wall then congress appropriated for it so he set about to do that he declared a national emergency which was necessary for one of the sources of funds that he was going to use and congress disapproved that the president vetoed that disapproval and went ahead so this is a situation that comes here under the appropriations clause but the reason i'm going through this is an amazing amount of political effort preceded this is not a situation the government has in its brief that there are two specific tools which you can use one of which you have a use according to them which would be to pass another bill that specifically disapproves of these tactics that the president has use to find the wall in ways that you say violate  states house of representatives we are the government just like the justice department is a government there were both ago your honor the we the house and the senate already did that they already said to the president no and then part of the compromise was the house and senate said we'll give you far less than you've asked for just a little bit so it's not it's very puzzling why i don't i don't know th position of the president of the justice department is that he can spend the money and so if we if the house and the senate passed that legislation as it did in  overriding his emergency determination he vetoed it so what that means is in essence you are saying you were there saying the constitution requires that before congress the house or senate can go to court you have to have a veto proof majority to pass something to do exactly what you already did you already said i can't have this money but i'm going to spend it anyway in addition your court recently the house according to them congress and or the house can never never come to court to sue the executive branch and that well the whole role of hole by campbell and very that is exactly the question and just we fattened focused on that and we believe our position set out quite clearly is that the house can sue because the house as an institution has been injured here now one question one answer you know right off the action tell is that the house as an institution can sue on its own have this unique situation valving the appropriations clause the luggage problem is really not a problem but to continue answering your question just sent out so the appropriations clause as we know it was put in the constitution by the framers as perhaps the most important check on the power of another branch as as judge kavanaugh wrote for this court in the department and eighty cases no money of any kind can be spent without an appropriat that purpose the appropriations closer grows out of a compromise that was worked out in the constitutional convention the framers originally had a broad origination clause that said that measures to raise money and to appropriate money could only be done come only originate in the house the other members of that from the convention said that would disadvantage the senate too much we want each house of congress to have independent significant authority over appropriations and so the origination clause was change so each house has a special and when i say house here i'm obviously meaning the house and senate has a special power under the appropriations clause now i understand the response that is but that's true of all legislation because my cameras but remember what's different about the appropriations clause is that the government can exist without virtually any other legislation but the government can't do anything without appropriating money so this means that this clause gives special power to each separately the house and the senate because they both know legislation must be passed we have to have some legislation it's not like you can say shall we pass the national labor relations act if one house is know it just ends the government goes on  silence itself a form of action that is a prohibition in the way that other legislation normal legislation is not and so requiring the house or senate to adopt specific prohibitions changes president lincoln spending money was congress wasn't there yet to to try to put down the insurrection in the beginning of the civil war and when congress comes back he then goes to congress to get an appropriation he's not he wasn't he was quite obviously quite uncomfortable with even in that kind of emergency the president spending any kind of money and obviously have responded to your son tells concern about that's going to the congress and so how do you define from this you know a good story where there has to be affirmative action by congress before the executive come and spend money that it's that it breaks down into history of the development of the appropriations clause show that they're compromised and this is part of the broader compromise about whether you know the how the senate was going to be set up we should be the house with  representatives per state as opposed to the way the house is set up that the framers meant each house to have the individual power to block any appropriations and thereby stop anybody from being spent and again this is unique because the government can do nothing without the appropriation of funds only the executive could lead to litigate for the state and there were two grounds for the house of delegates standing there one was speaking for the state that's are you going to that's fine that's not it is ok here but i do want to focus on the nd one where they said fine we still have an independent interest as the house of delegates ourselves right in the beginning that's really what's relevant here and there that was tied to the st part because again the supreme court was clearly looking at the way the regina government was set up the whole opinion is discussing that and the court said there was nothing specially unique to the but admitted it beautifully but i still think at all times the court was talking about virginia and remember it was a case involving state government as in the arizona case where the supreme court also as was granted originally by district court in california and then the th circuit declined to say that the supreme court been issued a stay of that injunction because had questions about who would say it was the injunction would prohibit the executive from spending funds for building a border wall without a specific statute that statute says you can't transfer money if it's been denied by congress which we think we argue and it's the courts in california except it is quite clear here  the key thing is for two thousand eight hundred and eight phones they can only be suspension for certain things for military construction and again that there's no disputed facts here about what these funds are being used for institutional interests each unlike what happened in the through the hill here where the problem was that a failure to convince enough legislators to do certain things here the each house has its own the forty over appropriations that remember must be passed there is no that's why the proper asians powers you would not correct non passage would mean for example we all have to leave there is no there no funds to run this corporation your i'm sorry the government shut down its happy end it could be a government shutdown and as you know we've had only half shutdowns or order shutdowns what it would mean is if we talk about the appropriations clause it would mean no money for the military for the f a a planes would have to stop flying the court would have to stop operating obviously the judges are constitutionally guaranteed their salaries but bailiff it's nobody else's and so everything would shut down that obviously cannot be there is then no government and so that's why this is a situation that is so unique and is not what the court discusses bethink hill but let me come back to the one other point i want to make clear it would be very on way and i think not appropriate for the supreme court to take a case involving a state system and without mentioning how the federal system works you're analyzing it all the appropriations clause saying and the house of representatives the united states government can't sue about appropriations that would just be i don't think there's any example i can think of where the supreme court would operate that way and in fact as a starting mention in the arizona case where the court did examine standing and found there was standing there for a state the court said of course we're not talking about the federal government that breeze is different issues it's that are unique to the federal government we're standing in that situation but there might not have been in the federal system the flipside of that in the equally valid one is says you know states can have all sorts of differences and i believe i think there are some states that still have a about who votes for which representatives you still you can have a redistrict system that might or might not be flawed there's supreme court for example over the years is struck down systems but he still had elections can have government you can't have any there wouldn't be any of them there wouldn't be any vote in your government it wouldn't be able to spend money to have the electoral college come and gather if there is no procreation and so again and if i may this is why we really don't have a flood gauge problem judge of the fad was concerned about that this is quite different from merely it disagreement by  house or even both houses without a government how the executive branch is executing the law because the courts have over the years in trying to figure out what does article three mean that have been concerned about  things like floodgates here we have two cases this one and the housekeeper well which is call your found in circumstances extremely similar to this that there was standing there was boundaries a little bit to spins reprogram some funds one on the project why should we be concerned about that because of exactly what i started with this is a situation where all the political means were exile lost is that the president made clear and remember the president's chief of staff said very tellingly we will  congress a and by both houses and a government shutdown and veto it cetera so that so i think your honor has definitely has or has a point though what about all the considerations mentioned in raines  involved a case involving individual legislators not the house itself that's a very key point and yes we agree completely you should be reticent we have no disagreement with that medicine means you should be concerned you should not jump in but here is a we have this very unusual situation of the political means being exhausted the president making clear that no matter what you do politically i will spend this money and therefore passing the kind of statute that you asked me about earlier to wilkens would make any difference i'm going to spend this money to build the wall  so yes it should be unusual when the the the courts step into a dispute between the branches but there certainly is nothing in the text of the constitution there's no that would say you can't there don't change here people will but coleman with the supreme court found that it was a state so why you you heard me say before state and federal can be different but there the supreme court said if a vote has been nullified there is standing here the votes clearly were notified there was nothing more as a practical matter the house could do it was it done every day it was stuck so so suppose congress decided to respond to this politically by saying well you know we understand that article two gives you mr president the authority to appoint in bassa there's we're not going to give you  the past that into law as part of the appropriations bill prison it vetoes it it's passed over his veto president sue congress president soon congress  i don't believe so and i'm fine i'm trying to think of what the theory would be that the president would have to be arguing that congress has to appropriate money and i'm not sure what where that would come from the constitution  you or you or preventing me from executing my express duty that the framers gave because you're not giving me any money for investors and i have a duty written right there do that well when i sit down but again no such suit could be brought the text of the constitution makes absolutely clear it can't notice that there is no speech or debate there's no such immunity in the constitution for the president for official act and you know as far as the the other problem i think about the point about floodgates your honor is remember we also have an anti deficiency act it says you know money can't be spent and can lead to criminal activity criminal punishment now obviously no president here is going to spend money in violation of the deficiency act and be prosecuted by his own attorney general so obviously this has limited utility for a case like this but nevertheless i think it acts as a at least some check on presidents just spending money without any authorization franklin in mississippi versus johnson but again fortunately we as this court recognized in case i handled your swan versus clinton this court said there is a problem with the president but you can sue that's precisely what's happening here the question but do know is what power is being asserted constitutionally years the appropriations power the text of the constitution makes clear that appropriations are made by law that refers us back to the general provisions for lawmaking in article one it would require bi cameral isn't present that's true judge millette we know there's nothing special about the appropriations power in this regard and the absence of consent stops the during that time the president has said i'm going to start building i'm all i'm going to take eighty eight billion dollars scuse me one billion dollars i need to get that they're not giving the money i'm night i'm just trying to understand your position and so i get that it's not this case that we laid out on the table ok absolutely the government's position is that if the president and this is hypothetical to be crystal clear said i'm taking eight billion dollars out of the medicare trust fund to build a wall or do whatever else some president wanted to do because congress is authorizing nothing nobody can stop them what we do think is that we present to  said they can't do it because the preparations pause in the relevant statutes year run to congress the particular folks who brought suit to date have not been the type that might be able to properly might be able to bring this lawsuit for example individuals military so military personnel can bring these laws i don't think so perhaps a contractor who had been receiving these funds but again that's not what we have to date in terms of you know that it was it would brought suit and not everybody i don't understand so so th anyhow so it's the wrong people bringing suit and i just i don't understand why if courts are allowed to educate the president cannot spend that money in the absence of an authorization from congress and we can do it if a contractor brings it why can't we do that if congress and we put aside the one house to house issue if congress brings it because it is like you've been separation of powers issue know and there's no history of that happening here with regarding here in this very contacts as we put it on page twenty seven of our brief congress did enact some express prohibitions on the use of funds  explicit as could be zero dollars for this project zero under any statute of the united states not a penny will be spent if there's any law that could even possibly be construed to support it is here by amended to forbid it they both pass and president vetoes it both chambers override the veto when the president does core of the art of case or controversy limitation interim branch disputes involving alec allegations of injury to official power use those kinds of disputes historically have not been that wasn't a but they did because of reprogramming that took place here and why would that person have stayed because you know the same in their branch dispute because that is the traditional kind of case that gets brought when there are separation of powers dispute the consequences of the court's ruling are exactly the same but that's the difference you could have said the same thing with regards seems rama's just to have the two branches that are fighting here than to have to and your bottom line has congress as a whole the house never has standing to inforce its rights under the separation of powers again re have to sit back and watch the separation of powers between the two branches collapse and say nothing we can do about it i guess congress you have to try and shut everything down but the  or you start you don't you need you you president need to find affirmative authorization in action alone ties your hands and for us to say what you have to do to have a constitutional injury is affirmative spend money to probe the president and the executive branch also generally unless there's some inherent authority of the part of the executive branch in the particular issue needs a statute to authorize action and that's why the court in campbell made clear that the political is not quite the same thing because as we know from the steel seizure case when it comes to legislation and things other than funding in action by congress creates a gray area where the president may or may not be able to act but not big assumption for some reasons i wished earlier but for now we just look at we have to assume they don't exist i think the stand your standing position will be exactly the same those statutes did not exist and during the shutdown the not in our structure constitutional structure and the same with the same constitution the same there's a reason the appropriations pauses there has this distinct constitutional function it says in action  answering questions it's just not helpful to say we think in fact we have a statutory authorization because there are appropriations act claims right or wrong will be assumed they're right at this stage assume that you cannot use those other statutes i'm not saying they're right or wrong on that or your pride are wrong but at this really early stage of this very near a question we have to assume those are out of the questions so it's not right to say you or you know the bedrock foundational parts of the constitution to you know preserve liberty by preventing the aggrandizement of power by any one constitutional systems have where the legislative branch comes to court that's not as the court made clear and arranged the model of the const our constitutional system is adopted did raise say if congress brains doesn't doesn't follow from from that holding going most of it that they were saying that even if the institution was injured was before us you could bring the suit would only be someone right that individual it didn't have the reservation at the end of brains that this was not a suit involving either both branches but what the bizarre scene humble lower courts kind of have to take that seriously well with respect you also have to take very seriously as discourse is recognized not only i consider the reasoning of the court even if it's over dichter which is not here allegation is that there is a bargain that struck between one cheek or the other with the executive were they say we know that you want to spend this money want to address the war within for we know that there's a limitation in the appropriations bill preventing you from doing that just go ahead and spend the money we w join in any lawsuit the other change or can't bring the lawsuit by themselves they need to hold congress so we the senate will stand down we know what you're going to do you know clear in the arizona legislature case the important separation of powers question presented but that would be nice would present a closer question about whether you have some sort of coleman problem now here or there would be a coleman problem think that huge a branch of these cuts let's walk let's pretend so back to my hypothetical about taking the money out of the medicare trust fund and there's an overriding override of the detail and the we're in has not happened yet but that's not because people brought suits in court said no it's because it hasn't happened yet and that's where  and how it fits in with the through the hill this is a single house seeking to vindicate interest of one of the charms of the constitution belongs to congress as a whole that's the appropriation is that i mean i guess i'm not giving judge wilkins hypothetical i'm not sure that's right imagine to make it even more extreme in the senate or in a shutdown the senate says this is ridiculous we're passing a law that's passed president you may spend this money to to make it hypothetical we shall say to build new governmental buildings and the state state  there was a political battle that we say look you guys try and sort this out that happened and legislation was passed compromise was reached and then taking and to be clear i'm taking the facts from the suit and just just sent pointed out we're talking about the appropriations power which is very supposed to be their most potent weapon and if we say it can be ignored and there's nothing anyone can do about it seems to me just a pretty dramatic i just for my for my purpose of pretty dramatic constitutional line to cross and i feel like i need a little more comfort than pointing to cases that just didn't seem anything like that like to taking their allegations as they make them that this that v h s was appropriated only a limited amount of money for border fencing the g a o itself in your opinion that they recite the reference on page forty five dollars of their brief makes noting that under established appropriations law principles it's not the case that simply having appropriated less amount to one agency political ram of these have been exhausted where as i was mentioning earlier congress has in this very context made expressed limitations on the use of funds for border fencing those have been hon where he what we have here is a good faith dispute about the scope and meaning of an appropriations provision but that's no different from the scope or meaning of any statute the house can come in and invoke this court's power to say this is how we want the law that we enacted to be interpreted your standing so so so much mallette su the hypothetical earlier where there's no corroboration and all and president just takes the money from the medicare trust fund and uses it for the project that's not the suit about you know the scope of any tools against the executive branch and that it wasn't intended by the framers to invoke the power the article reports to get and mashed in those kinds of political disputes but this court might differ because that is a much different situation from what we have here here we have just a good faith dispute about the meaning of existing provisions there is no dispute here that the executive branch can act without appropriations authority is there any help is there any dispute that spending restriction limitation on the border wall was at the of express prohibitions that they've been active in can the context of the provisions that i was alluding to well well so let's let's let's make sure we understand what you're saying  do extent that that if we believe that congress just by the operation of the simple majority vote in the president you know signing that into law can take a certain action but there if if if we you know if the theory of this lawsuit is that the president then is going to ignores the words in the statu in the political remedy is to pass another law but you have to pass it with a veto proof majority in having she put congress in the position proof majority potentially because i would be surprised if president clinton campbell where they would have signed into law the kind of statutory provisions that the court and campbell said there were necessary really but i guess my hypothetical assumes for the sake of the of the question and in the argument that you're passing the same thing a nd time you only ha pass it was a majority vote the st time because you kind of had begun the head of everybody had a gun into each other's head because it was a government shutdown  have political self help you know there they are the presumption is that you know you didn't is specifically speak to this is st rate that i don't think that's running campbell the court noted that the legislators there have been successful in defeating the new authorization of president clinton's bombing in yugoslavia the that i don't think it's the same because there was no legislation passed it was defeated so so the assumption is that the help we certainly could have meant that if congress speaks once they have to say the nd time and say well i really meant it this will we think again and that's essentially what was going on in campbell with regard to the need to pass potentially with a veto proof majority the kind of legislation that the plaintiffs thought that they had been six didn't think if they didn't have to pass it all now here or there to be clear right there in the gray area there that case involves legislation not appropriations the president on his hand had great constitutional authorization to conduct foreign policy and commander in chief and congress let you know congress had its authority but you are in that gray  here with appropriations i thought you said earlier on you agreed that absent express authorization to spend money the president's non integration on the president can't spend and the plaintiffs were arguing hey you're spending money on this american heritage rivers initiative without complying with the appropriations power in the spending power in our progressives and the supreme court said now that this court observers said no in agrees needs express authorization to spend money and you have your arguments on why you have that here what happens what does the president do if it's something genuinely you know world or the constitution requires express authorization if something is genuinely ambiguous congress just passes we see these sometimes sorry but congress passes sings and we're like oh my gosh it's genuinely ambiguous does the president so let's suppose that the appropriations law said you can only spend one million dollars for the border wall from x account that's very specific and then the allegation is that the president said i don't care about that take two billion dollars from the tax account and use it for the wall it your position that they have a political remedy because they could go back and pass a a a law that says you cannot spin more than a one billion dollars from the x account that's one thing they do but they also as you were alluding to earlier your honor that they have all sorts of leverage over the executive branch with respect to initiatives and legislation that the executive favors they can is that that that the political remedy one of the political realities that they should do is to pass the law the nd time the exact same long i mean if it really is the exact thing they're mature that that's the remedy but i'm not we think take this case so so if their political remedy is to say we're not going to fund any ambassadors and basically we're going to to not enable you to conduct foreign referenced the decades long disputes involving multiple presidents over the tenure in office act there were serious concerns about that but it was only result in private with a geisha much much later not th what the court the power of the courts as we know more reverse madison or the courts is to say what the law is why would the framers have thought the only way this kind of dispute can be resolved is if there happens to be a party or shutting down the government and doing things that are harmful and dangerous to our nation enormously armful for our economy dangerous for our that the framers why should you in true grit article three in this way when there is nothing in the constitution nothing in the debates by the framers that would lead you to that to meet that is  the absolute essence of this case judge will ensue ask about the some of the technical details of the funding who was proposed what it's described in pages five through nine of our opening reef the whole way that when i know that he just department is very fond of justice souter's concurring opinion in the rains case it is just want to know one thing justice souter footnote one referring to an argument made by the solicitor general for the just department said as appellants noted it is also possible that the impairment of certain official powers may support yes exactly because there's a mean one doesn't mean there are other ways of developing a record on exactly there there what money has been spent on but there's no there is no factual dispute these are all in the california litigation are there not other threshold issues that might also be raised in district court before you can get into this or is this the only one i would actually be i believe we would now be set if this court held that the case is just