DOJ’s Brief in Miers–Right Without Remedy?

The Department of Justice brief in the Miers case argues that Congress has no judicial remedy when the executive branch refuses to provide it with information and, moreover, that the Constitution bars Congress, or either House thereof, from ever having a judicial remedy when such information is withheld.  Specifically, DOJ contends that the House Judiciary Committee lacks standing to enforce subpoenas to current and former executive officials.

            DOJ relies primarily on historical practice to support its position.  As it notes, “[f]or over two hundred years, inter-branch struggles have been resolved outside the scope of judicial review under Article III by the political branches exercising the political tools at their disposal to reach accommodation.”  From this history it concludes that Congress is limited to using “political tools,” such as the appropriations and advice and consent powers, in order to force the executive branch to provide information. 

While DOJ makes its argument well, its position is really quite radical and raises fundamental questions about the nature of Congress’s authority to demand information.


In general, of course, while Congress has the authority to oversee the executive branch’s execution of the law, Congress cannot direct the executive branch in that execution, except by passing a new law. Let’s say, for example, that Congress appropriates funds for homeland security grants to be distributed among different states and localities, and sets forth guidelines that the Department of Homeland Security is to use in making the distribution. If the congressional committees that oversee DHS disagree with how the department interprets or applies those guidelines, they cannot order DHS to change its decision. Nor would the committees have standing to seek judicial relief for such an order (as opposed to potential recipients of the grants, who likely would have standing).

Congress nonetheless has political tools that it can use to influence agency behavior. Thus, in the example above, the congressional committees could threaten to reduce the authorized level of funding for DHS or some program that DHS supports. Such a threat might very well cause DHS to decide, upon reflection, that it agrees with the committees about how the grants should be allocated. But this doesn’t change the fact that the committees have no right to direct the allocation of the grants. In short, neither the committees nor the Houses to which they belong suffer a judicially cognizable injury merely because the executive branch has violated either the law or the Constitution.

This, it seems to me, is the best way to understand the standing issue in Raines v. Byrd, 521 U.S. 811 (1997). Suppose Congress had passed an appropriations bill and the president, rather than vetoing it, had simply refused to spend some of the appropriated funds. No matter how blatantly illegal the president’s action might be, it is clear that neither House of Congress, nor individual members of either, could sue the president. In Raines, the situation was no different, except that the president’s action was explicitly authorized by the line item veto act, which purported to give him the authority to cancel individual spending items. In denying members of Congress standing, the Supreme Court simply found that the mere fact that this act created a greater likelihood of future unconstitutional cancellations of spending items did not cause a cognizable injury to the members. Moreover, as the Court suggested, allowing standing in Raines would require that standing be permitted whenever one of the political branches asserts an allegedly unconstitutional authority that diminishes the power of the other.

If DOJ’s position in Miers is correct, Congress’s ability to get information from the executive is really no different than its ability to demand that the executive comply with the law generally. That is to say, Congress may request information and may pressure the executive to comply with these requests through actual or threatened use of the political tools at its disposal, but, at the end of the day, Congress has, and can have, no legal remedy to force compliance.

This position is subtly, but significantly, different from the position that the executive and legislative branches have traditionally taken with regard to struggles over congressional access to executive information. It is true that the branches have generally treated these struggles as political, rather than legal. It is also true that the absence of a practical or readily available legal remedy has been a background fact, sometimes explicitly acknowledged, in these struggles.

For example, in 1909 the Senate demanded documents from the Attorney General and the head of the Bureau of Corporations regarding the reasons that antitrust proceedings had not been brought against a particular company. Senator Bacon offered a resolution to affirm the right of the Senate to obtain all documents in the files of the executive department, but acknowledged “there was no present or immediate remedy in case the head of a department or the President should refuse.”

The absence of a “present or immediate remedy,” however, is quite different than the absence of any possible remedy (of a legal nature), which is the position taken now by DOJ. Relying on a 1984 OLC opinion authored by Ted Olson (“Prosecutions for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101 (1984)), DOJ maintains that “the criminal contempt statute is inapplicable, and therefore that it will not pursue criminal contempt prosecutions, where an Executive Branch official in good faith relies on the President’s assertion of Executive Privilege and testimonial immunity.” In the same memo, OLC stated that “the same reasoning that suggests the statute could not be constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well.”

Critical to OLC’s conclusions (but unmentioned by DOJ in its brief) was the availability of an alternative civil remedy to obtain executive branch information. The Olson memo states that “[a]lthough Congress has a legitimate and powerful interest in obtaining any unprivileged documents necessary to assist it in its lawmaking function, Congress could obtain a judicial resolution of the underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for enforcement of a congressional subpoena.” Moreover, the memo denies any constitutional impediment to such an enforcement action, noting that “there is little doubt that . . . Congress may authorize civil enforcement of its subpoenas and grant jurisdiction to the courts to entertain such cases.”

The OLC, which was very familiar with the history of congressional efforts to obtain executive branch information (see “History of Refusals by Executive Branch to Provide Information Demanded by Congress,” 6 Op. O.L.C. 751 (1982)), understood that there was no inconsistency between that history and recognition of a civil remedy to enforce congressional subpoenas. On the contrary, that history shows a recognition by all three branches of the congressional power of inquiry and investigation, and the corresponding right of each House to demand information necessary to assist it in its lawmaking function.

This right is fundamentally different from the general congressional interest in ensuring executive branch compliance with the law. As discussed in previous posts, refusals to comply with congressional demands for information fall within the ambit of legislative privilege. Legislative privilege, as Chafetz defines it, consists of “those special rights that individual Members or Houses of the legislature possess in order to facilitate their legislative duties.” Unlike the interests advanced in Raines, which involved indirect impacts on the legislative process, legislative privilege protects rights that have historically been considered fundamental to maintaining legislative independence and integrity.

Traditionally, legislative privilege has been vindicated through the inherent contempt powers of each House. There are practical reasons why it is difficult to use this process against executive officers (and, as a matter of constitutional structure, it is probably impossible to use it against a sitting President). However, as OLC implicitly recognized in the 1984 Olson memo, this remedy would be available against subordinate executive officers unless there is an alternative mechanism by which the House or Senate can vindicate its rights.

Since DOJ has now repudiated the position of the 1984 OLC memo with respect to the availability of a civil remedy, the question remains whether it also repudiates the memo’s denial of an inherent contempt remedy. If so, then the effect of DOJ’s position would be to push the branches toward unseemly confrontations in which congressional agents would arrest current or former executive officers. Ultimately, such disputes would still have to be resolved by courts acting upon habeas petitions or other actions brought by the arrested officers. One wonders why this game would be worth the candle.

On the other hand, DOJ may now be claiming that there is no possible legal remedy for executive refusals to provide information to Congress. Such a position would be inconsistent with the historical understanding of a congressional right to obtain information from the executive. Without any potential remedy, the right would be illusory, the legislative privilege chimerical, and the congressional investigative power undermined.

Don’t Tape Me Bro!

According to The Hill, Congressman Renzi plans to raise Speech or Debate objections to the FBI’s interception of some of his telephone calls.  No doubt his attorneys will rely primarily on the DC Circuit’s decision in the Jefferson case.  As I noted previously: 

The extension of the DC Circuit’s decision to electronic surveillance also seems logical.  If the Speech or Debate Clause forbids the FBI from conducting a search that might cause it to see Speech or Debate privileged documents, it is not obvious why the same principle [would not] forbid[] it from listening in on conversations that might contain a Speech or Debate privileged discussion.  Of course, under the logic of the DC Circuit’s opinion, the FBI could record the conversations (without listening to them) and then send the tape to the Member to separate the privileged from the non-privileged portions, but the Justice Department might view this as a tad problematic from an investigative standpoint.  

Renzi’s case is in federal court in Arizona and one can expect that these issues might end up in the 9th Circuit (quite possibly before trial, since Renzi would have an immediate right of appeal with respect to any adverse decision).  There is very little Speech or Debate precedent in the 9th Circuit (the only case I can think of is Miller v. Transamerica Press, Inc., 709 F.2d 524, 528-29 (9th Cir. 1983), which denied a motion to compel testimony from a former congressmen), and it is anybody’s guess how that court might rule.

The Significance of Reed

            While the novelty of the situation presented in Reed is apparent, neither the congressional nor the judicial response suggest that the specter of a congressional committee seeking judicial relief was viewed as a radical departure from historical practice or one that threatened established constitutional principles.  From the congressional perspective, the select committee viewed the action as a logical extension of the established law that authorized federal courts “to render assistance to the National Government by appropriate remedy in the exercise of a sovereign power or in the discharge of a sovereign duty” and to decide cases involving the exercise of the congressional investigatory and contempt powers.

This was not merely an idiosyncratic view on the part of the members of the select committee, nor a position concocted simply for purposes of the litigation. The Senate’s action in adopting a rule permitting its committees to sue, a rule which has remained in effect to the present day, demonstrates that the Senate as a whole saw no constitutional impediment.

With regard to the judicial reaction, the district court held that it lacked the constitutional power to hear the select committee’s suit, but only on the grounds that the suit required it to interpret ambiguous Senate resolutions and thus impinged on the Senate’s rulemaking authority. The Supreme Court did not even endorse this limited holding, resting its decision solely upon the absence of evidence that the Senate intended to authorize the select committee to sue.

This judicial reaction is not surprising in light of the law as it had developed in the United States prior to 1927. First, it was firmly established that in the United States, unlike in Britain, the courts had the power to hear actions brought by witnesses who had been imprisoned or sanctioned for contempt by either House of Congress and in so doing to determine the lawfulness of a particular congressional investigation or demand for information (see, eg, Kilbourn v. Thompson, 103 U.S. 168 (1880)). Second, the Congress had passed, and the Court had upheld, the congressional contempt statute which gave the courts an affirmative role in aiding congressional investigations (see In re Chapman, 166 U.S. 661 (1897)). Finally, it was established that other government entities had standing to seek judicial assistance in aid of their investigatory functions, and that authorizing the federal courts to provide such assistance did not violated constitutional limitations (see, e.g., ICC v. Brimson, 154 U.S. 447 (1897)).

In light of these precedents, there could be no serious question that the select committee’s claim for relief was one that could be judicially cognizable under the Constitution.

The Supreme Court Decision in Reed

             After the Court of Appeals affirmed the district court, the select committee petitioned the Supreme Court for certiorari, emphasizing that the questions presented “are of such importance to the proper exercise by the Senate of the United States of its separate constitutional powers, that the petitioners, as a committee of the Senate, deem it their duty to present, for the first time in the history of this Government, on behalf of the Senate and in pursuance of the powers vested in them by the Senate, a petition to this Court for writ of certiorari in order to maintain and preserve the coordinate authority of the Senate and the Legislative branch of the Government.”

The first question that the select committee presented to the Court was “whether there is presented a case or controversy of which the Federal courts may under the Constitution be vested by the Congress with jurisdiction to determine.” The select committee argued that there was a “real conflict between the claims of these parties” with “each side claim[ing] to be entitled to the present possession of . . . the ballot boxes and election papers.” The select committee contended that the issue of entitlement to this evidence was a proper judicial question, and that the issue of its authority to act was merely an incidental question that the court could decide in the course of resolving the case.

The select committee’s argument sidesteps the central point of the district court’s decision, namely that the select committee’s authority to act should be determined by the Senate itself, not by the court. The district court’s ruling reflected a principle that would be explicitly adopted by the D.C. Circuit many years later: courts may not take it upon themselves to interpret ambiguous congressional rules because the Constitution gives each House the authority to determine its own rules.

By the time the case reached the Supreme Court, however, the Senate had already passed a resolution that explicitly provided that the select committee’s authority had continued after the March 4, 1927 adjournment, and reaffirmed the select committee’s continuing authority to act under Senate rules. Perhaps because this action mooted the district court’s reason for dismissing the case, the Supreme Court did not address the reasoning of the court below. The Court also did not directly address the question, raised by the select committee, of whether there was presented a “case or controversy” over which the federal courts could constitutionally exercise jurisdiction.

Instead, the Court issued a brief opinion, in which it ruled that the district court lacked jurisdiction because the select committee was not “authorized by law to sue,” as required by the jurisdictional statute under which it was proceeding. The Court noted that the “suit cannot be maintained unless the committee or its members were authorized to sue” by Senate resolutions, “even if it be assumed that the Senate alone may give that authority.” The resolutions in question, however, gave no such express authority.

The resolutions provided that the select committee could “do such other acts as may be necessary in the matter of said investigation.” However, the Court rejected the suggestion that this language provided implied authority to sue. It cited the custom of both the Senate and the House to rely on their own powers to compel the attendance of witnesses and production of evidence. It also noted that Congress had enacted the congressional contempt statute (providing for criminal prosecution of those who refuse information demanded by congressional committees) to facilitate its investigations. These were the traditional methods of enforcing congressional demands for information, and “[i]n the absence of some definite indication of that purpose, the Senate may reasonably be held to have intended to depart from its established usage.”

Nowhere did the Court suggest that there was any constitutional barrier to prevent a congressional committee from seeking judicial assistance. Indeed, the Court’s opinion implicitly invited Congress to authorize its committees to sue if it were so inclined, an invitation that caused the Senate, shortly after the Reed decision was issued, to pass a rule authorizing all of its committees to sue.

The Reed Case and Congressional Standing

            Because the analysis of congressional standing in the Miers case depends heavily on an understanding of the history of legislative privilege, attention must be paid to the case of Reed v. County Commissioners, 277 U.S. 376 (1928).  Reed involved a select Senate committee formed in the spring of 1926 to investigate alleged fraudulent and unlawful election practices.  After the November 1926 senatorial election in Pennsylvania was contested, the Senate authorized the select committee to take custody of the ballot boxes and to investigate allegations of fraud, illegal expenditures and other irregularities relating to that election.  However, when the Congress adjourned sine die on March 4, 1927, the select committee had not yet taken possession of the ballot boxes and the Senate had not voted on a resolution to continue the select committee’s existence after adjournment.


            Subsequently, the select committee demanded that county officials in Delaware County, Pennsylvania deliver to it all ballot boxes and certain other election records.  The county officials responded that they were under legal obligation to maintain custody of the records in question, and could not deliver them to the select committee in the absence of a court order establishing the select committee’s right to the records.  The select committee sought the assistance of the Senate sergeant at arms, who declined to intervene because of questions about the select committee’s authority following adjournment. The select committee then petitioned the federal court for an injunction directing the county officials to turn over the records.  To my knowledge, this was the first time that a congressional committee directly sought the assistance of a court.


The District Court Decision

The district court dismissed the case for lack of jurisdiction. It acknowledged the “broad doctrine of the right of the government as parens patriae in promoting the interest of the public, to have the assistance of its courts by injunctive remedy to promote the public interest and prevent injury to public welfare is sustained by ample authority cited by [the select committee]. Reed v. County Commissioners, 21 F.2d 144, 147 (E.D. Pa. 1927). Nevertheless, the court viewed the case before it as different because the select committee’s authority to act after the Senate’s adjournment was at issue. If the question of the select committee’s authority to direct the sergeant at arms had arisen while the Senate was still in session, the court noted, “the question of their authority to act and to have the sergeant at arms comply with their orders, would be determined by the Senate itself.” The court concluded that it lacked the power to make that determination in the Senate’s stead as “the determination of that question is, under the Constitution, conferred upon the Senate alone” and was therefore a legislative, not a judicial, question.

The court had some difficulty in reconciling its conclusion with the established principle, which had been reaffirmed by the Supreme Court earlier that year in McGrain v. Daugherty, 273 U.S. 135 (1927), that individuals imprisoned for contempt of Congress were entitled to judicial review through habeas proceedings. This precedent established, as the court recognized, that controversies regarding the exercise of congressional investigatory power are judicially cognizable. However, as the court noted, such cases were distinguishable on the grounds that the process came from the Senate as a whole, not a committee acting on its own. In these cases, any questions regarding the proper interpretation or application of Senate rules would have been resolved by the Senate itself in the course of holding the individual in contempt.

The court, however, seemed not to be entirely satisfied with this distinction. To bolster its conclusion, it pointed to the fact that a writ of habeas corpus is a right guaranteed by the Constitution and that therefore it is a proper judicial function to resolve habeas cases in which there are “questions of life, liberty, or property between the individual and one depriving him of those rights.” This language could be read to suggest that the nature of the action (i.e., a claim for habeas relief by an individual rather than a claim for injunctive relief by a congressional committee), rather than the question presented (the interpretation of ambiguous congressional rules), determines whether the matter is a judicial or a legislative issue.

To the extent that the court was going in this direction, it was mistaken. The fact that the writ of habeas corpus is mentioned in the Constitution has no bearing on whether the writ authorizes judicial review of congressional contempt proceedings. In Britain the courts consistently found that the right of habeas did not extend to individuals imprisoned by Parliament, and American courts could have taken the same view. Moreover, American courts have allowed actions other than habeas, such as false imprisonment suits, to challenge congressional contempt proceedings.

Ultimately, however, the court did not find that congressional committees were barred in all cases from seeking judicial relief in support of investigations. The court left open the possibility that such an action would be permitted where the committee’s authority to act was clear, noting that “[w]hether or not, if a remedy through the courts be open to them, it would be by proceeding in a court having jurisdiction over the person of the sergeant at arms, has not been considered or suggested by either party.” This interesting observation raises the question of whether the court’s ability to resolve the controversy requires jurisdiction over the congressional official with the power to arrest individuals who refuse congressional orders.

If the judicial power extends to a claim for relief by an individual who has been sanctioned by Congress for refusing to provide information, it must also extend to a congressional action alleging that the individual is subject to sanction for this refusal. The only distinction between the two actions is which party is the plaintiff and which is the defendant. This distinction might be significant if the court lacked the power to provide relief to the congressional plaintiff— but this could not be so once the declaratory judgment became an available remedy. It might also be argued that the sergeant at arms is a necessary party to the action, a possibility hinted at by the passage quoted above.

[My next post will analyze the Supreme Court decision]