Jonathan Turley: Why Trump will win the wall fight

The Hill has the article of the day from Professor Jonathan Turley:

Congress has continued to give the executive branch billions of dollars with few conditions or limitations. That is why President Obama was able not only to go to war in Libya without a declaration but to fund the entire war from billions of undedicated funds. At the time, neither House Speaker Nancy Pelosi (D-Calif.) nor most of the current Democratic leadership made a peep of objection. Democrats have indicated they will rely on the ruling in House of Representatives versus Sylvia Burwell, in which a court not only ruled that the House of Representatives had standing to sue over executive overreach but that Obama violated the Constitution in ordering the payment of billions to insurance companies without authorization from Congress.

I was the lead counsel for the House of Representatives in that case. Ironically, Pelosi vehemently opposed the litigation as a frivolous and unfounded challenge to presidential authority. We won. Superficially, the Burwell case may look like the current controversy. Obama sought funds from Congress and, when unsuccessful, acted unilaterally. The difference is that Obama ordered the money directly from the Treasury as a permanent appropriation, like the money used annually to pay tax refunds. Congress never approved such payments.

Conversely, Trump is using appropriated funds. Like the authority under the National Emergencies Act, Congress gave this money to the executive branch without meaningful limits. Trump now has more than $1.3 billion in newly approved funds for border protection. He has identified about $8 billion in loosely dedicated funds for military construction, drug interdiction and forfeitures. Even if a court disagreed with the use of some of this money, Trump has the authority and funds to start major construction of the wall.

Kind of like President Obama "creating" DACA via pen.