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Andy Barr goes to court to help defend Donald Trump’s border wall

Trump visits section of the border wall in California

President Donald Trump visited a section of the border wall in Calexico, CA on April 5, 2019.
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President Donald Trump visited a section of the border wall in Calexico, CA on April 5, 2019.

Kentucky isn’t a border state. But Rep. Andy Barr is giving unusually strong support to President Donald Trump’s bid to declare a national emergency to free up money for a wall along the U.S.-Mexico border.

Like Senate Majority Leader Mitch McConnell, Gov. Matt Bevin and every other Republican elected official in Kentucky, the Lexington Republican is lashing himself tightly to Trump. following a hard-fought election in 2018.

For Barr, that includes filing two friend-of-the-court briefs that support Trump’s emergency declaration that would allow the president to steer Department of Defense dollars toward border wall construction. Such legal arguments are filed by parties who aren’t directly involved the case, but support one side or the other.

The Democratic-led House, which has rejected money for the border wall, sued the White House in April, arguing that diverting the money violates Congress’s authority to appropriate funds.

Barr, who is an attorney, disagreed and said he thought it was important to demonstrate “there are members of Congress who fully support the president.” He said Kentucky has a keen interest in border security given the state’s opioid epidemic that he said is made worse by a porous border.

Barr, along with other members of the House’s conservative Republican Study Committee, met with Trump in the Oval Office soon after the president signed the border declaration in February. Barr said he offered to defend the measure in court, noting at the time that it was likely to end up there.

“Some members of Congress had expressed the view that he had taken an unconstitutional act and I disagreed with that,” Barr said he told Trump. An “animated” president expressed interest, Barr said.

“I told him that those of us who are with you on this, we need to file a friend-of-the-court brief in support of your position,” said Barr. “He loved that idea.”

Barr worked with Washington, D.C. attorneys Lawrence Joseph and Christopher Hajec, director of litigation at the Immigration Reform Law Institute, the legal arm of the Federation for American Immigration Reform, which advocates for stricter immigration restrictions.

In the friend-of-the-court brief opposing House Speaker Nancy Pelosi, Barr contends that Trump’s move did not violate the Constitution because although the House has a “special role” in allocating federal dollars, “the funds here have already been appropriated. That horse has left the barn.”

Instead, he charged that the Democratic House majority “seems equally motivated by open-border policies that created the crisis and a petulant, partisan unwillingness to work with the President.”

He charged that House Democrats were improperly asking the court to solve political differences with the president.

“Allowing the House’s gambit to succeed here would undermine our system of government, which requires the political branches to resolve political issues,” the brief reads.

A judge on Monday denied the House’s request for a preliminary injunction to block Trump’s declaration, saying the Constitution does not give Congress the ability to haul the White House into court over a funding fight.

U.S. District Judge Trevor McFadden did not rule on whether Trump could legally steer Department of Defense money toward a wall, writing that “the court declines to take sides in this fight between the House and the President.”

A spokesman for Pelosi said the House is reviewing the ruling and evaluating its options, which could include an appeal.

Barr also filed a friend-of-the-court brief in a case that remains in litigation. The Arizona-based Center for Biological Diversity sued the administration in U.S. District Court, arguing that Trump overstepped his executive authority and illegally invoked the National Emergencies Act.

In the brief challenging the environmental group, Barr argued the National Emergencies Act “provides the president with flexibility and Congress — not private parties — with oversight.” The congressman argued that Trump’s action was “taken pursuant to authority that Congress has delegated to the president and has not withdrawn.”

Barr said he said he sought to make sure that his legal argument did not give the executive branch unlimited power. But he said the National Emergencies Act gives “considerable discretion” to the president.

“I happen to believe that Congress has given away too much power over the years and I think Congress does need to reclaim more authority over the power of the purse,” he said. “But on this particular fact pattern, the president clearly has the constitutional authority because Congress has given it to him.”

Not all Republicans support Trump’s decision to sign an emergency declaration. Twelve Republican senators in March joined Democrats to rebuke Trump, voting to block the declaration. Those opposed included Sen. Rand Paul, R-Kentucky, who said at the time that he couldn’t “vote to give the president the power to spend money that hasn’t been appropriated by Congress.

“We may want more money for border security, but Congress didn’t authorize it,” Paul said. “If we take away those checks and balances, it’s a dangerous thing.”

Emily’s List, which backs Democratic women running for Congress, has named Barr as one of its top targets for 2020 and Democrats accused Barr of falling in “lockstep” with party leaders at the expense of his constituents.

“Andy Barr’s decision to double-down on an emergency declaration that takes billions of badly-needed dollars away from our men and women in uniform, but that does nothing to secure our border, underscores that Barr will always toe the party line instead of doing what’s right for Kentucky,” said Mike Gwin, a spokesman for the Democratic Congressional Campaign Committee.

Barr has at times differed with Trump. He told the Lexington Herald-Leader on Thursday that he’d back legislation to block Trump from imposing an escalating scale of tariffs on Mexican exports as a way of prodding the U.S. ally to do more to stem the flow of illegal immigration into the this country.

And Barr, who has authored legislation calling for tougher sanctions against North Korea, took issue in February when Trump asserted that North Korean dictator Kim Jong Un was not responsible for the death of American student Otto Warmbier.

“Where I agree with this administration, which admittedly is very frequent, I support the president,” he said. “And where I have a friendly disagreement with the administration, I’ll let them know. And I’ll fight like heck for my constituents.”

Barr does not have a 2020 challenger, but has raised more than $600,000 for his re-election. Trump delivered for Barr in 2018, holding rally in Kentucky weeks before election day during Barr’s campaign against Democrat Amy McGrath.

“In Kentucky, Trump’s views on immigration are mainstream and lining up with him on trying to control the southern border and stem the tide of immigration is a political winner,” said Scott Jennings, a Kentucky political strategist. “Among Republicans, Trump is 90 plus. He’s as rock solid as he’s ever been.”

McConnell used footage from Trump’s Kentucky rally for Barr to kick off his own re-election campaign in April, releasing a video that makes it clear the senator will run as closely tied to Trump as he can get.

C. Wesley Morgan, a former Kentucky state representative who plans to challenge McConnell in the Republican primary, cited Trump in defending himself and his conservative bonafides after McConnell’s campaign accused him of supporting Democrats. Morgan told the Herald-Leader he was “100 percent Trump supporter, a conservative Republican.”

Bevin, who faces a re-election challenge in November, has made it clear that Trump will play a major role in his campaign. “He will be here, he has made that clear,” Bevin told reporters after winning the primary last month. “I look forward to it, the people of Kentucky look forward to it. How many times, we’ll see. I couldn’t even begin to imagine.”

Lesley Clark works out of the McClatchy Washington bureau, covering all things Kentucky for McClatchy’s Lexington Herald-Leader. A former reporter for McClatchy’s Miami Herald, she also spent several years covering the White House.

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