D.C. Circuit Takes McGahn Case En Banc (Again)

Unless President Trump is re-elected, it is not clear this will matter.

|The Volokh Conspiracy |

Today the U.S. Court of Appeals for the D.C. Circuit granted the House of Representatives' petition for rehearing en banc in Committee on the Judiciary v. McGahn.  This is the the second time en banc rehearing has been granted in this case, but it may not matter.

In February, a divided panel of the court concluded the House lacked standing to seek enforcement of a subpoena ordering the testimony of former White House Counsel Don McGahn. In August, this decision was reversed by the en banc court. On remand, the panel again ruled against the House, concluding the House lacked a cause of action to sue. Judge Griffith wrote both panel opinions, the latter of which was released on his last day on the court.

Today's order vacated the panel opinion and set a briefing schedule for the parties. Of note, the court directed the parties "to address in their briefs whether the case would become moot when the Committee's subpoena expires upon the conclusion of the 116th Congress." This would seem particularly relevant because the Court will not hear oral argument in the case until February 23, by which time there will be a new Congress (and perhaps a new President). Either way, the panel decision has been vacated and is no longer the law of the circuit.

If the court reaches the merits, it seems quite likely the House will prevail. Judge Griffith is no longer on the Court, and neither Judge Katsas nor Judge Rao is participating in the case (presumably because they both worked with McGahn in the White House). That said, a conclusion that the case is moot is certainly possible.

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NEXT: Judge Barrett: "For me to say, I am not willing to undertake it even though I think this is something important, would be a little cowardly and I would not be answering a call to serve my country."

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  1. From what I understand, at the termination of each sitting of Congress all their unfinished business is terminated. I don’t see a reason or a means by which the court might overturn this.

    Am I wrong or missing something?

  2. I thought the panel’s reasoning was pretty plausible. Congress passed a statute permitting judicially enforcing subpoenas under certain circumstances but not others. It chose to give an express cause of action to the Senate but not the House.

    Given the statute, I think the view that courts should defer to Congress and enforce subpoenas when Congress says so but not when it doesn’t is a very reasonable position. Surely Congress can regulate when it itself has a cause of action. While I might disagree with no cause of action in the absence of a statute, I think the presence of an on-point statute changes the analysis. Congress has spoken on the subject, so the court must endorce its will. Authorizing enforcement in some cases implies enforcement is not authorized in others. And that’s that. Otherwise the statute would be a nullity.

    Courts cannot presume that constitutional acts of Congress are nullities, nor interpret them in a way that makes them nullities. They must presume Congress knows what it is doing and means what it says.

    1. I thought the panel’s reasoning was pretty plausible. Congress passed a statute permitting judicially enforcing subpoenas under certain circumstances but not others. It chose to give an express cause of action to the Senate but not the House.

      Well, yes, but unless I’m misremembering it did not expressly deny the House an express cause of action. Rather, it was silent on the subject. That may be suggestive, but it’s certainly not binding. You cannot infer Congressional will from silence. (Well, you can try.) Maybe at the time the statute was enacted, the Senate and House disagreed on whether that power was obviously inherent. The senate wanted to be safe while the house didn’t think it necessary. Who knows?¹

      Courts cannot presume that constitutional acts of Congress are nullities, nor interpret them in a way that makes them nullities. They must presume Congress knows what it is doing and means what it says.

      You’re using the word “nullity” wrong. That the law is superfluous is not the same as being a nullity. And Congress didn’t say anything about the House’s power to enforce subpoenas, so the general notion of deference to Congress meaning what it says is irrelevant.

      ¹Admittedly, I think the statute is very strange. Why on earth would Congress have wanted to grant the power only to one of the two houses?

      1. Yet courts regularly treat an absence as binding. Yes, the court often treats an absence as non-binding when your talking about examples in a list. “… such as A, B or C” can be easily read to include D. But when the choices are binary and the law says A while leaving out B, courts regularly treat that as the rule. You caution us from inferring Congressional will from silence yet do the same yourself. We have no way to know what political deals were struck or logical considerations went into the decision to include A but omit B. Absent strong evidence to the contrary, we certainly ought not to assume that it was some sort of super-scrivener’s error that courts have the responsibility (or authority) to “fix”.

        I can think of a couple plausible reasons why Congress might grant the Senate powers that it withholds from the House. The two arms do have subtly different roles. See, for example, the jobs of the two arms during an impeachment. Maybe they thought that was an appropriate model for this new power.

        Regardless, if members of the House think the law is in error, they have all the authority they need to fix it themselves. Going to court to bend the wording of a law that they themselves passed is an unnecessary corruption of the process.

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