After the short-lived government shutdown earlier in the year over the failure of the Congress to appropriate more than a pittance for border security, President Trump vowed to build the wall with money already appropriated to the federal government.

Today, Nancy Pelosi announced that the House Democrats would file a lawsuit alleging that President Trump had violated the Appropriations Clause of the US Constitution.

“The president’s action clearly violates the appropriations clause by stealing from appropriated funds, an action that was not authorized by constitutional or statutory authority,” House Speaker Nancy Pelosi said in a statement Thursday.

Pelosi said members of the House’s Bipartisan Legal Advisory Group voted to go to court. House Minority Leader Kevin McCarthy said he and second-ranking House Republican Steve Scalise voted against the action.
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Congress refused to provide more than $1.3 billion for his wall in spending legislation earlier this year. Trump says the national emergency declaration allows him to divert $3.6 billion from unspecified military construction projects to pay for more of the wall.

This, ladies and gentlemen, is simply Failure Theater offered up to the low-brow left to amuse them and give them something to sent triumphant tweets about (haven’t seen a “BOOM!” tweet in a while) as they lick their wounds over the failure of the Mueller Report to do much of anything.

This exercise is doomed for a lot of reasons. The most salient one is that what they’re suing about hasn’t been done, and the White House or anyone else saying they plan to move funds that are otherwise appropriated to pay for the wall simply does not constitute grounds for a successful lawsuit. Back in February, I posted President Trump’s Emergency Declaration Is Much Less Radical Than TDS Sufferers Are Claiming. This was the main point:

https://twitter.com/conncarroll/status/1096507435257348096

Some quick notes on early coverage of President Trump’s announcement today that pretty much all reporters are missing 1/

The WH did not make one executive action today. In reality they made three, only one of which involved an emergency declaration. 2/

First the WH announced they would be funding $601 million in wall construction from the Treasury Forfeiture Fund, relying on 31 U.S.C. § 9705. This does not require an emergency declaration. 3/

Second, the WH announced they would be funding $2.5 billion in wall construction under 10 U.S.C. § 284 (this is MilCon $ for combating drug trafficking). This does not require an emergency declaration. 4/

Finally, the WH announced they would be funding $3.6 billion under 10 U.S.C. § 2808. This money does require an emergency declaration. 5/

According to the WH this money will be spent sequentially so the § 9705 money will be spent first then the § 284 money then the § 2808 money. 6/

So depending on how fast they can begin construction, they will have to spend over $5 billion (including the $1.3 billion in fencing appropriations) before any of the emergency money is ever tapped 7/

In short, no matter what President Trump intends to do, none of the money that requires an Emergency Declaration to reprogram has been obligated. The president has existing statutory authority to spend the first $5 billion.

This is a messaging activity not a legal attack on Trump’s wall. By making a big deal out of going to court they can crank up the fundraising emails. By the time the rubes realize there is no lawsuit, the election will be over.