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.

Committee on the Judiciary v. Miers: Will the House Have a Leg to Stand on?

           The House’s contempt lawsuit has been assigned to Judge John Bates, who in 2002 dismissed the GAO’s suit against the Vice President in Walker v. Cheney, 230 F.Supp.2d 51 (D.D.C. 2002).  In that case the Comptroller General (who heads the GAO), sought a court order that the Vice President produce certain information relating to the energy task force.  Judge Bates dismissed the suit on the grounds that the Comptroller General lacked the personal, concrete, and particularized injury required to support standing under Article III.

             Many political commentators will no doubt assume that Judge Bates will rule the same way in the contempt case as he did in Walker.  Such commentators tend to believe that rulings in politically charged cases reflect the judge’s political leanings.  Charlie Savage thus described the Walker outcome in his 2007 book Takeover:  “A Republican, Bates had forged his political connections as deputy independent counsel in Kenneth Starr’s Whitewater investigation of President Clinton.  Bush appointed Bates to a federal judgeship in 2001, and now Bates sided with Cheney and dismissed the case.”

            Even from a legal standpoint, the Walker ruling looks like big trouble from the House’s perspective.  Although the opinion leaves open the possibility of a different outcome in this case, some of the reasoning strongly suggests that the House will lack standing for the same reasons as did the Comptroller General.  Set forth below is a summary of why the Walker case appears to pose serious problems for the House’s standing.


Raines v. Byrd

The standing analysis in Walker was guided principally by Raines v. Byrd, 521 U.S. 811 (1997), in which the Supreme Court addressed the standing of Members of Congress who sought to challenge the constitutionality of the Line Item Veto Act. The Court found that the Members lacked standing because they had suffered no personal injury (i.e., injury in their private as opposed to official capacities) and the institutional injury suffered (consisting of the diminished legislative power caused by the President’s ability to cancel particular items in spending bills) was too abstract and widely dispersed to support standing.

The Court attached considerable importance to the fact that historically analogous disputes between the legislative and executive branches had not been brought to court by either party. For example, the long-running and bitter dispute between the branches over the President’s authority to remove Senate-confirmed officials without Senate approval, which began in 1868 when President Andrew Johnson fired the Secretary of War, never caused either branch to bring suit against the other.

The Raines Court also noted two factors which provided additional support for its conclusion. First, it gave some importance to the fact that the plaintiffs were not authorized to represent either House of Congress in the lawsuit, and, to the contrary, the House and Senate had filed a joint amicus brief opposing the lawsuit and supporting the constitutionality of the Line Item Veto. (I was one of the attorneys on this brief).

Second, the Court noted that dismissal of the suit would not foreclose eventual judicial review of the constitutionality of the statute, which could still be challenged by parties directly injured by the President’s use of the line item veto. In fact, in 1998 the Court struck down the law in a case brought by the City of New York after President Clinton used the line item veto to cut funding for Medicaid in New York City hospitals. See Clinton v. City of New York, 524 U.S. 417 (1998). (During his recent unsuccessful presidential campaign, Rudy Giuliani endured considerable criticism from his Republican rivals for having authorized this lawsuit).

It should be noted that Raines addressed a situation that is really quite different from an information access dispute between the branches. The plaintiffs in Raines were essentially complaining that Congress had passed a law unconstitutionally augmenting the President’s power vis a vis that of Congress. If this complaint gave them standing, virtually every dispute about the proper allocation of power under the Constitution (eg, recess appointments, unconstitutional delegations, war powers, pocket vetoes, signing statements) could be said to “injure” Congress in a manner to support standing. Thus, in Raines the “injury” to the plaintiffs really consisted of the constitutional violation itself, which is an abstract injury compared to the loss of specific funds involved in Clinton v. City of New York. By contrast, a dispute over specific information that legislative branch has demanded and the executive branch has refused to provide presents a concrete and identifiable injury to Congress, one that is very similar to controversies that courts adjudicate every day.

Walker v. Cheney

Nevertheless, Judge Bates found that the reasoning of Raines required dismissal of the Comptroller General’s effort to obtain information from the executive branch. The court began its analysis by noting (correctly) that the Comptroller General had suffered no personal injury. His injury was “solely institutional, relating exclusively to his duties in his official capacity as Comptroller of the United States.”

With regard to the institutional injury, the court found this injury also insufficient. In reaching this conclusion, the court relied first on the fact that the institutional injury was not to the Comptroller General or to the GAO, but rather to the Congress as a whole. The court apparently believed that the Comptroller General, as a mere agent of the Congress, was not the appropriate person to seek redress of this injury. In this connection, Judge Bates repeatedly emphasized that neither House of Congress, nor any congressional committee, had issued a subpoena for or even requested the information that the Comptroller General was seeking. He also attached “some importance” to the fact that the Comptroller General “has not been expressly authorized by Congress to represent its interests in this lawsuit.” The court even pointed out that only a few Members of Congress, and no congressional committee, had expressed support for the investigation as a general matter.

As far as the House’s contempt suit is concerned, so far so good. The House Judiciary Committee issued subpoenas for the testimony and documents in question, the Committee and the House voted to hold the witnesses in contempt for failing to comply with the subpoenas, and the House by resolution authorized the lawsuit. Thus, there can be no doubt that the plaintiff has been properly authorized to represent the House and to seek redress of the institutional injury.

The problem for the House lies in Judge Bates’s observation that “[t]o the extent that the Court must look beyond the Comptroller General’s injury and consider the harm to his principal, Congress, such an examination is of little comfort to plaintiff.” While acknowledging that the violation of a statutory right to obtain information might appear, “[o]n a superficial level,” to present a concrete and particularized injury, the court chose to look beyond the actual information sought and consider the use to which the information would be put. The Comptroller General stated that the information was to be used to assist Congress in performing its legislative and oversight functions, causing the court to state “if it is these general interests in lawmaking and oversight that are allegedly impaired by defendant’s failure to produce the requested records, then the possible injury to Congress is too vague and amorphous to confer standing.”

Moreover, in discussing the historical evidence regarding the availability of judicial remedies for executive-legislative branch disputes over information access, the court seemed skeptical of authorities suggesting that such disputes could be heard, even where there was a congressional subpoena and proper authorization for the lawsuit. The court observed that cases like Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974), were of limited relevance to the historical analysis “because of their relatively recent vintage.” The court also dismissed the Office of Legal Counsel opinions that civil enforcement of congressional subpoenas were permissible, noting that “these pre-Raines OLC opinions from the 1980s are not evidence of a deeply-rooted, traditional view that the courts should entertain disputes between the political branches concerning congressional requests for information.”

Finally, the court gave short shrift to the post-Raines decision of the three judge panel in United States House of Representatives v. United States Dept of Commerce, 11 F. Supp.2d 76 (D.D.C. 1998) (a case in which I was intimately involved). The panel found that the House had standing to challenge the executive branch’s use of statistical sampling to conduct the census based on the information injury that the House would suffer as the result of lacking information needed to conduct the decennial apportionment of Representatives among the states. In a footnote, Judge Bates distinguished the census case on the grounds that “although the Comptroller General’s failure to obtain the documents may result in some generalized harm to legislative power, this injury does not pertain to a highly specific constitutional mandate (such as the duty to apportion Representatives) nor does it threaten the composition of Congress itself.”

There is thus ample language in Walker to suggest that Judge Bates was skeptical of whether Congress itself would suffer a judicially cognizable injury when the executive branch withholds information, at least in circumstances where the information is needed only for general legislative and oversight purposes. Here the information sought by the House Judiciary Committee is, according to the complaint, for the purpose of “investigating and exposing malfeasance, abuse of authority and possible violations of law by Executive Branch personnel” and “considering whether the conduct uncovered warrants additions or modifications to existing federal law.” Complaint ¶ 27. While it could be argued that there is a more specific purpose (or at least a more significant factual predicate) for the information sought in the U.S. Attorney investigation than in the Comptroller General’s investigation of the energy task force, it is doubtful that this distinction would be sufficient to support the Committee’s standing in the contempt suit.

Guess the Odds Don’t Always Favor the House

House General Counsel’s office files contempt lawsuit against Bolten and Miers on behalf of the Judiciary Committee.  The case is assigned (presumably randomly) to Judge Bates, who held in Walker v. Cheney that the Government Accountability Office lacked standing to sue the executive branch.  From the House’s perspective, the worst possible draw.