Standing

En Banc D.C. Circuit Concludes House Has Standing to Enforce Subpoena in Court (Updated)

At the same time, the court punts on whether the House has standing to challenge allegedly unlawful expenditure by Executive Branch.

|The Volokh Conspiracy |

Today, the U.S. Court of Appeals for the D.C. Circuit held 7-2 that the Committee on the Judiciary of the House of Representatives has Article III standing to sue to enforce a subpoena in federal court. Judge Judith Rogers wrote for the en banc court in Committee on the Judiciary v. McGahn. Judges Karen Henderson and Thomas Griffith each dissented. [Note that in the original panel decsion, Judge Griffith wrote the opinion for the court, Judge Henderson concurred, and Judge Rogers dissented.] Judges Greg Katsas and Neomi Rao did not participate.

In a separate order, the en banc court remanded U.S. House of Representatives v. Mnuchin, a congressional challenge to the Executive Branch's allegedly unlawful expenditure of funds for border wall construction, for reconsideration by the three judge panel in light of the court's decision in McGahn. Judges Henderson and Griffith dissented from that order as well, arguing the full court should have completely resolved the separate standing issue in Mnuchin.

Judge Rogers opinion for the en banc court in McGahn begins:

The question before the en banc court is whether the Committee on the Judiciary of the House of Representatives has standing under Article III of the Constitution to seek judicial enforcement of its duly issued subpoena. Upon applying the principles of Article III standing, we hold that it does.

The Constitution charges Congress with certain responsibilities, including to legislate, to conduct oversight of the federal government, and, when necessary, to impeach and remove a President or other Executive Branch official from office. Possession of relevant information is an essential precondition to the effective discharge of all of those duties. Congress cannot intelligently legislate without identifying national problems in need of legislative solution and relying on testimony and data that provide a deeper understanding of those problems, their origins, and potential solutions. It likewise cannot conduct effective oversight of the federal government without detailed information about the operations of its departments and agencies. And it cannot undertake impeachment proceedings without knowing how the official in question has discharged his or her constitutional responsibilities.

The Committee, acting on behalf of the full House of Representatives, has shown that it suffers a concrete and particularized injury when denied the opportunity to obtain
information necessary to the legislative, oversight, and impeachment functions of the House, and that its injury would be redressed by the order it seeks from the court. The separation of powers and historical practice objections presented here require no different result. Indeed, the ordinary and effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary.

In discussing why the Judiciary Committee has standing here, Judge Rogers writes:

The House, then, has a long-recognized right, based in the Constitution, to have McGahn appear to testify and produce documents. Because each House of Congress delegates its power of inquiry to its Committees, which are "endowed with the full power of Congress to compel testimony," . . . the Committee exercised the House's subpoena power when it issued a subpoena to McGahn. By refusing to testify in response to the Committee's concededly valid subpoena, McGahn has denied the Committee something to which it alleges it is entitled by law. And because the Committee has alleged the deprivation of testimony to which it is legally entitled, its asserted injury is concrete.

Of note, Judge Rogers' opinion repeatedly cites the Supreme Court's Mazars opinion in support of its conclusion that a refusal to comply with a congressional subpoena is a cognizable injury.

The alternative to suing in federal court would be for Congress to use its inherent contempt power, and order the seizure of any individual who refused to comply with a properly issued subpoena. According to Judge Rogers, forcing Congress to rely on its inherent contempt power would be impracticable. They also would not keep subpoena cases out of court, as any individual detained pursuant to the contempt power could challenge their detention.

This decision does not end the McGahn litigation. Far from it. As Judge Rogers opinion notes, there are other threshold issues yet to be decided by the D.C. Circuit, "including
threshold pre-merits objections that there is no subject matter jurisdiction and no applicable cause of action," in addition to the ultimate merits of the subpoena. These questions are remanded back to the three-judge D.C. Circuit panel "to address in the first instance." In other words, this case is along way from being over, and is unlikely to conclude prior to the election.

Judge Henderson dissents to reiterate the points she made in her concurrence to the original panel decision concluding the House Judiciary Committee lacks standing. Her brief dissent to today's decision concludes:

By holding that the Committee has standing, the majority enlarges the Judiciary's power to intervene in battles that should be waged between the Legislature and the Executive and opens the door to future disputes between the political branches. . . . Even if "the precise function" we perform in this case—subpoena enforcement—"is a traditional feature of civil litigation in federal court," Majority Op. at 27, "congressional subpoenas directed at" the Executive Branch "differ markedly" because they "unavoidably pit the political branches against one another," Mazars, 140 S. Ct. at 2034. This distinction matters. If the interbranch character of the dispute was of no consequence, any President could presumably challenge in court laws that he believes infringe upon Article II powers. And statutory interpretation, like subpoena enforcement, is also a "familiar judicial exercise." Majority Op. at 26 . . . Although "[t]here would be nothing irrational about a system that granted standing in" such a case, "it is obviously not the regime that has obtained under our Constitution to date." Raines, 521 U.S. at 828. "In limiting the judicial power to 'Cases' and 'Controversies,' Article III of the Constitution restricts it to the traditional role of Anglo-American courts," . . . which did not hear suits between coordinate branches of government. The majority's broad conception of legislative standing, however, disregards this limitation. Accordingly, I respectfully dissent.

Judge Griffith, who wrote the original panel opinion, also dissented. His opinion begins:

Today the court relegates the separation of powers from a core component of Article III to an afterthought. The court severs the standing analysis from its separation-of-powers roots and treats a direct dispute between the Legislative and Executive Branches as if it were any old case. The result is an anemic Article III jurisprudence that flouts a long line of Supreme Court precedent, ignores the basic structure of the Constitution, and resuscitates long-discredited case law from this circuit.

And for what? Who benefits from today's decision? Not Congress. The majority's ruling will supplant negotiation with litigation, making it harder for Congress to secure the information it needs. And the Committee likely won't even get what it wants in this case. Because the majority declines to decide whether the Committee has a cause of action and whether it should prevail on the merits, the chances that the Committee hears McGahn's testimony anytime soon are vanishingly slim. The federal courts won't benefit, either. The majority's decision will compel us to referee an interminable series of interbranch disputes, politicizing the Judiciary by repeatedly forcing us to take sides between the branches. Most importantly, the decision does grave harm to the Constitution's system of separated powers, which constrains federal courts to the narrow task of resolving concrete "Cases" and "Controversies" so that elected representatives call the political shots. I cannot join the court's expedition into an area where we do not belong and can do no good.

The McGahn case was heard en banc in conjunction with the Mnuchin case, in which the House argued that the Trump Administration unlawfully reallocated funds to pay for border wall construction. According to a separate order issued in Mnuchin, McGahn resolved the "common issue of Article III standing presented" in both cases, "by holding that there is no general bar against the House of Representatives' standing in all cases involving purely interbranch disputes," but did not decide whether this is sufficient to provide for standing in a case alleging the Executive branch is spending unappropriated funds. Thus, the Mnuchin case is remanded back to the original panel for resolution of this question, over the dissent of Judges Griffith and Henderson, both arguing that this question should have been fully resolved by the en banc court.

Judge Griffith's Mnuchin dissent begins:

Today the en banc court issues an order remanding this case to the three-judge panel without deciding the sole issue we agreed to resolve: whether the House of Representatives has Article III standing to sue the Executive Branch for violating the Appropriations Clause. The parties have been litigating this case for well over a year, and the court's remand of the matter to the panel will likely delay final judgment for at least that long again. Such delay not only deprives the parties of timely resolution of this dispute, but it leaves this circuit's law on congressional standing uncertain. That confusion invites Congress to continue to litigate its political disputes with the Executive Branch—to the detriment of both Congress and the Judiciary.

This is not a hard case. Even under the return to the discredited view of legislative standing that the court adopts today in McGahn, the House still lacks Article III standing to sue to enforce the Appropriations Clause. At bottom, the House's lawsuit is indistinguishable from a claim that the Executive Branch has failed to follow the law—a "generalized grievance[]" that cannot confer Article III standing. . . . What's more, the House alone cannot sue to protect Congress's interest in enforcing the Appropriations Clause, as the Supreme Court made clear in Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953-54 (2019). The House's lawsuit must be dismissed.

The Mnuchin order is is about as pure a judicial punt as I have ever seen. As the judges surely know, concluding that the House could sue alleging unlawful expenditures by the Executive Branch would almost certainly prompt Supreme Court review (and including such a holding in the McGahn decision would have made that holding more vulnerable too).

In many respects, the Mnuchin case is very similar to the lawsuit the then-Republican-controlled House filed against the Obama Administration over illegal payments to insurers under the Affordable Care Act. In both cases the House claim was that the Executive Branch was spending money the House expressly refused to appropriate. When the House sued the Obama Administration, however, most legal commentators argued that the case was absurd, and mocked the claim that the House might have standing. At the time of that case (House v. Burwell, which I blogged about here) I agreed that the House should not have standing to press such a claim, but I also argued that the claim was not as easily distinguishible from standing to sue to enforce a subpoena as many assumed. We shall see whether the D.C. Circuit ultimately agrees—unless, of course, the case is mooted by the election and a change in Administration.

 

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  1. Do the houses of Congress not have some kind of serjeant-at-arms that they can dispatch to forcibly recover whatever documents or persons they desire?

    1. They do. But given what the executive branch has in terms of protective and military forces, “we’ll just send the sergeant-at-arms out to enforce the subpoena” has never really been anything more than an anarchist fantasy in cases involving fights between the political branches.

      At the end of the day, they have to win court fights to get the information.

      1. You wouldn’t have enjoyed Barr leading a flying wedge of FBI to retrieve McGahn from the Capitol basement?

        1. I suspect you and I agree on this, that such scenes are associated with military coups in developing nations. The United States has to be above that.

      2. Be that as it may, it’s still odd for Congress to issue a legally binding order and then to ask another branch of government, one that also doesn’t have an army, to somehow make it even more binding. It’s like saying “this time we really mean it”, “or else!”

        1. Legally binding how?

          If Congress sent me a subpoena and I didn’t want to go I’d tell them to take a hike. Congress has no direct authority over me. I am subject to congress’s duly passed laws, not to their whims.

  2. Plenty of people told us that the House should have waited for this issue to be settled before completing the articles of impeachment. Had they done that of course the same people would have insisted that it was unfair and improper to hold an impeachment trial within 100 days before an election.

    Why not just argue that any Republican president with a Republican controlled Senate is totally immune from any checks and balances whatever? At least that would be honest about what it is you want.

    1. Plenty of people told us that the House should have waited for this issue to be settled before completing the articles of impeachment. Had they done that of course the same people would have insisted that it was unfair and improper to hold an impeachment trial within 100 days before an election.

      Right. And even the ones who generously acknowledged that it was fair would have said, “Well, in practical terms it’s too late; we’ll never be able to get this done in time so we might as well not try.”

    2. “any Republican president with a Republican controlled Senate is totally immune from any checks and balances ”

      Your side is bad, my side good.

      How many Dems voted to convict Clinton?

      Grow up. Neither side is going to “check” a president of its own party, this isn’t 1973 anymore.

      1. Whether Clinton deserved to be removed from office is debatable. Whether his wrongdoing came anywhere near equaling Trump’s is laughable.

        If you think both of them should have been removed, I may agree with you. If you neither should have, I disagree. If you supported Clinton’s removal and opposed Trump’s you’re a sad hack.

    3. Had they done that of course the same people would have insisted that it was unfair and improper to hold an impeachment trial within 100 days before an election.

      Unfair? No. But pointless? Sure.

      In practice, except in that rare situation where there’s bipartisan agreement that the President needs to leave right now, there’s little reason to do an impeachment right before the President stands for reelection. If the public thinks the grounds of impeachment have merit, they will vote the President out of office.

      In general, the reason why pious types get impeachment so wrong is they don’t understand how fundamentally political it is. If the President commits mass murder and 95 percent of the public supports him, it literally doesn’t matter if he violated 35 different laws doing it, he will not be impeached and convicted. On the other hand, if an incredibly unpopular President gets a parking ticket on the Ellipse, he might be. It literally has nothing to do with the facts and law as proven, except to the extent that bipartisan majorities of the public are so persuaded by those facts and that law that they want the President removed post haste.

      1. In practice, except in that rare situation where there’s bipartisan agreement that the President needs to leave right now, there’s little reason to do an impeachment right before the President stands for reelection. If the public thinks the grounds of impeachment have merit, they will vote the President out of office.

        There’s every reason to do so. There may not be much reason to do so right before he leaves office (either because of term limits or because he’s not running or because he was already voted out on Election Day). But before an election in which he’s running for reelection? Of course there is. Setting aside that without Congress pursuing impeachment there’s no way for the public to know whether his actions merit impeachment, the public is not the body charged with deciding whether impeachment has merit. Congress has the ethical and legal obligation to make that determination regardless of what the public thinks.

        1. 1. I didn’t say no impeachment inquiries. I said no impeachments. Fact finding is reasonable before an election.

          2. THE PUBLIC IS THE BODY CHARGED WITH DECIDING WHETHER IMPEACHMENT HAS MERIT. I know that isn’t what the Constitution says. But you know what? The Constitution is not enforceable on this point. There’s no “neutral” party that can apply “neutral” criteria to the removal of Presidents. ONLY public outcry can remove a President, no matter what the Constitution says about “high crimes and misdemeanors”.

          This is painful for lawyers to accept, but there are some things in life that law simply has nothing to contirbute to. This is one of them. Removals of politicians from office by elected officials are going to be based on political calculations- and ultimately, unless the public decides to be incredibly legalistic (which it generally isn’t), there’s no reason to go through a dog and pony show about whether something constitutes a “high crime or misdemeanor”. Just tell the public to throw the bum out and if they agree, they will.

        2. Impeaching a president because he might win reelection doesn’t merit the President’s party turning against him.

          But since you think it’s such a slam dunk impeaching Trump tell me just what the high crimes and misdemeanors were, and what was the threat to the republic?

          I never heard a coherent argument from the house, or an actual statute he broke, so maybe you can do better.

          1. 1) I didn’t mention Trump. I made general points about impeachment.

            2) I’m not rehashing the whole Ukraine thing again; we discussed it many times here. Impeachment is not criminal prosecution; it does not require the citation of a specific statute. He abused the authority of his office and harmed the country’s interests for personal gain. That’s plenty sufficient.

  3. unless, of course, the case is mooted by the election and a change in Administration

    We’re going to see a marked shift in judicial philosophy when Donald Trump leaves office.

    Orange Man Bad jurisprudence will become an interesting 8-year footnote when discussing legal history 20 years hence.

    1. Hopefully…

      Then again, there are a lot of doctrines in US (constitutional) legal doctrine that grew out of the South fighting tooth and nail against desegregation. Segregation is mostly gone, those doctrines are still here.

      1. Name a few.

  4. I don’t understand why “conservatives” think that judges can just pretend parts of the Constitution don’t exist?

    If the executive branch is spending money that is not appropriated by congress, that is not a “political” dispute, Judge Henderson and Griffith. By definition, it is a legal issue, since the Constitution explicitly reserves the spending power to the legislative branch; to hold otherwise is to hold that the executive can spend whatever money it wants without consideration to duly passed laws, which clearly cannot be the case. If the house doesn’t have standing, then no one does. Contrary to made-up, anti-American, Borkean nonsense, there is no part of the Constitution that has no effect.
    Scalia was wrong; all violations of the constitution have a remedy, and past decisions holding otherwise are manifestly irrational.

    The Constitution, by its clear terms, is not advisory; it is binding and controlling, and all parts of it must have effect. If the judiciary is the only way to give it effect, to do so is not judicial “activism.” In fact, the judiciary refusing to do its duty to the uphold the prescriptions of the Constitution is activism, not “restraint.” Indeed, the concept of judicial restraint itself, entirely made up by activist judges who hold to an anti-American concept of majoritarianism, is not found in the text and is not law.

  5. Orange Man Bad jurisprudence isn’t a thing; it’s just a manifestation of the omni-persecution narrative the right requires to continue to function these days.

  6. Is this related to the In re Flynn en banc that is to be argued Tuesday morning in front of the DC Circuit? One issue there is whether a district judge can petition his circuit court for an en banc hearing on a mandamus issued against him. This is unseemly because it requires the judge to criticize the three-judge panel that oversees him and to behave like a party, when both he and the panel and the entire circuit are supposed to be one legal person for the purposes of justice Or are they? Can they be adversaries?
    Seriously, these two cases might be interacting in the judges’ minds.

    1. Is this related to the In re Flynn en banc that is to be argued Tuesday morning in front of the DC Circuit?

      No.

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