Photo: Alex Wong/Getty

A federal judge appointed by President Trump in 2017 seems to be leaning towards siding with the administration, or not ruling at all, in a case brought by Democrats in the House of Representatives over Trump’s reallocation of Defense Department funds to pay for a border wall, according to Bloomberg.

The Democrats asked U.S. District Judge Trevor McFadden to stop Trump from reallocating $6.1 billion from DOD projects to use for constructing the wall. McFadden seemed to have reservations about intervening between the president and Congress.

The question of whether courts should intervene in such matters “strikes me as a significant issue in this case,” McFadden said, according to Bloomberg.

McFadden asked the Democrats’ lawyer, Douglas Letter, if the plaintiffs had pursued all possible methods of resolving the dispute.

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Trump turned to the DOD to get funding for his wall after Democrats refused to fund the project, leading to a 35-day partial government shutdown earlier this year. The shutdown ended with the Democrats giving Trump $1.4 billion to build new barriers on the border, and the president declaring a national emergency in order to secure funding from the DOD.

When the case was filed in early April, House Speaker Nancy Pelosi said the president was “stealing from appropriated funds.”

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“We cannot have the president appropriating money,” Letter told McFadden during a hearing on Thursday. He noted that Congress’ power to appropriate funds goes “to the very heart,” of our government’s system of checks and balances that’s enshrined in the constitution.

The administration’s lawyers, however, argued that Congress suing the executive branch was out of line.

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From Bloomberg:

Defending the administration’s plan for the second time in a week was Justice Department lawyer James Burnham, who told McFadden the Constitution made no provision for one branch of the federal government to sue another in a fight refereed by the third. Its framers would have found that notion “ridiculous,” he said.

Burnham asked the judge to rule that the House can’t sue the executive branch. “Congress has plenty of tools to deal with the problem,” he said. He also argued the administration was spending money that had already been allocated, even if originally intended for other purposes.

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Letter pointed out that “both branches do expect the courts to tell them what the Constitution means.”

Burnham argued for Trump’s allocation of money for the wall in another hearing this week as well. In Oakland, CA, he represented the administration in a case brought by 20 state attorneys general and the Sierra Club. Letter was also involved in that case.

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Bloomberg notes that the only similar case was decided by a D.C. federal judge in 2016, finding that the Obama administration couldn’t spend money on an Affordable Care Act subsidy program because there was no congressional appropriation. That decision, by Judge Rosemary Collyer, isn’t binding for McFadden because they are equals in the court system.

McFadden has yet to issue a ruling. The judge in the California case, Haywood Gilliam, hasn’t issued a ruling either. Let’s see what happens!