The Volokh Conspiracy
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In Committee v. McGahn, There is no Equitable Cause of Action to Enjoin Unlawful Executive Action
This issue keeps popping up in litigation against the Trump Administration. The Supreme Court should resolve this question.
Today the en banc D.C. Circuit decided Committee on the Judiciary v. McGahn. (Jon Adler blogged about it earlier). The majority held that the House had standing to proceed, but declined to consider whether the Committee has an equitable cause of action. Judge Rogers wrote for the majority:
Consideration of McGahn's other contentions — including threshold pre-merits objections that there is no subject matter jurisdiction and no applicable cause of action, and potential consideration of the merits if reached — remain to be decided and are remanded to the panel to address in the first instance.
Was this the only way the court could have approached the jurisdictional issues in this case? Should a court decide whether the parties have standing, before deciding whether there is subject matter jurisdiction, or an appropriate cause of action? If there is no subject matter jurisdiction, or no cause of action, the case ends, even if there is an injury in fact. In other words, does standing have to come first. Sometimes standing is easy to decide. In this case, the standing analysis was quite elaborate, and presented an issue of first impression.
For example, let's say a case presents a really difficult injury-in-fact question. But it turns out the amount-in-controversy was only $75,000.00. A penny short of the amount in controversy for diversity jurisdiction. In that case, court the court avoid the injury-in-fact question, and dismiss the case for lack of subject matter jurisdiction? Any single jurisdictional ground warrants dismissal. Is there any obligation to start with standing?
In the McGahn case, wouldn't it have been simpler to find there was no cause of action, or there was no subject matter jurisdiction, to avoid deciding the congressional standing issue? Can a court select alternate jurisdictional grounds to dismiss a case? Is there an order of operations for Article III jurisdiction? Please excuse my dear Aunt Sally. [Update: In response to a reader, I am aware of Ruhrgas AG v. Marathon Oil Co., which allows a court to decide a case on any jurisdictional grounds it chooses. My question is whether there is any obligation, or even a preference, to start with injury-in-fact.]
In dissent, Judge Griffith found that the Committee lacked standing. He also found that the Committee lacked an equitable cause of action:
Even if the panel were not bound by this precedent on remand, the Committee would still lack a cause of action. The Committee argues that it has an implied cause of action under Article I, that it can invoke the traditional power of courts of equity to enjoin unlawful executive action, and that theDeclaratory Judgment Act provides a separate basis for this suit. None suffices.
Judge Griffith makes standard arguments based on Ziglar and Grupo Mexicano.
The Committee suggests that—even if Article I alone doesn't provide a cause of action—the court may exercise its"traditional equitable powers" to grant relief. Ziglar, 137 S. Ct.at 1856. But those powers remain "subject to express and implied statutory limitations," Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015), and are further limited to relief that was "traditionally accorded by courts of equity,"Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc.,527 U.S. 308, 319 (1999). Again, "implied statutory limitations" foreclose suits by the House and suits that implicate a governmental privilege; this one checks both boxes.Anyway, there's nothing "traditional" about theCommittee's claim. The Committee cannot point to a single example in which a chamber of Congress brought suit for injunctive relief against the Executive Branch prior to the 1970s. Interbranch suits "lie far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement." Raines, 521 U.S. at833 (Souter, J., concurring in the judgment). While equity maybe "flexible," "that flexibility is confined within the broad boundaries of traditional equitable relief." Grupo Mexicano,527 U.S. at 322. We cannot simply reference "equity" to justify a vast expansion of our authority to enforce congressional subpoenas.
The dissent reads Grupo Mexicano correctly. However, the correct answer runs far deeper. Indeed, this precise issue keeps arising in executive branch litigation. In the Emoluments Clauses litigation, the Plaintiffs have asserted an equitable cause of action to enjoin unlawful executive action. Likewise, the Plaintiffs in the "Wall" litigation have asserted the same cause of action.
I responded to this argument in three posts (1, 2, and 3), the first co-authored with Seth Barrett Tillman. Like in the Emoluments Clauses cases, plaintiff's mere allegation that the government is acting ultra vires is not enough to establish an equitable cause of action. Eventually, the Supreme Court will have to address these issues. These parties keep citing Youngstown and Free Enterprise Fund. And those cases simply do not support this erroneous conception of equitable jurisdiction.