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Legislative Privilege and Congressional Standing

      As discussed previously, the House appears to have a standing problem under the analysis adopted in Walker v. Cheney.  But it makes little sense to suggest that the House’s injury (or that in Walker itself) is not concrete and particularized.  The House Judiciary Committee subpoenaed Harriet Miers to appear for testimony on a particular day.  She didn’t show up.  What could be more concrete and particularized than that?  Certainly the informational injury here is just as concrete as when an administrative subpoena, ICC v. Brimson, 154 U.S. 447 (1894), or a private party’s demand for information, FEC v. Atkins, 524 U.S. 11 (1998), is ignored.

In Raines v. Byrd, however, the Court emphasized that the injury not only had to be concrete and particularized, but the dispute needed to be one “’traditionally thought to be capable of resolution through the judicial process.’” Raines, 521 U.S. at 818 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968). In his Raines dissent, Justice Breyer suggested that the majority was really adopting the reasoning of Justice Frankfurter’s dissent in Coleman v. Miller, 307 U.S. 433, 460 (1939), in which he argued that Article III standing should be limited to those types of “matters that were the traditional concern of the courts at Westminster.”

This must be the crux of Walker’s refusal to recognize standing for a congressional agent denied information from the executive branch. By finding that the Comptroller General lacked standing, Judge Bates in essence concluded that a dispute between a congressional agent and the executive branch was not one traditionally thought to be capable of resolution through the judicial process.

The House contempt suit is distinguishable from Walker because the former involves a question of legislative privilege. As Josh Chafetz defines it in his illuminating new book, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 3 (2007), legislative privilege consists of “those special rights that individual Members or Houses of the legislature possess in order to facilitate their legislative duties.” While the Comptroller General, as a mere congressional agent, had only a statutory right to obtain information, the House’s claim is based directly on the Constitution. See Complaint ¶ 20 (“The Constitution bestows upon the House, by itself and through its committees, the power to investigate matters and conditions relating to subjects within Congress’s legislative jurisdiction, and to conduct oversight of the other branches of the federal government, including the Executive Branch. This power includes the constitutional authority to require the production of evidence—through subpoenas for testimony and documents—from Executive Branch officials”).

Why is this relevant to the question of standing? The answer lies not in logic, but in history. While Judge Bates correctly noted in Walker that there was no historical precedent for the Comptroller General’s attempt to enforce a demand for information, the House’s authority to enforce its legislative privileges, including subpoenas and other demands for information, is deeply rooted in history. I will proceed to examine this history in my next post.

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