Congress in Court: Where Things Stand Today

Charlie Savage of the NY Times wrote an article over the summer which flagged the sheer volume of litigation in which the House has been involved this year. His count at the time was nine separate lawsuits in which the House was a party, plus four others in which it had filed amicus briefs. The cases in which the House is a party include three suits initiated by President Trump in his personal capacity to block Congress’s access to his financial records (Mazars, Deutsche Bank, and the effort to stop New York state authorities from providing his tax records to House committees), three initiated by the House to obtain information (the suit to require the Treasury Department to produce Trump’s tax records, the application for access to grand jury material, and the action to force Don McGahn to testify), plus the House’s effort to enjoin the border wall and its attempt to intervene in support of the constitutionality of the female genital mutilation statute.  The ninth, I think, would be the litigation over the Affordable Care Act. (I haven’t kept track of the cases in which the House has appeared as an amicus, but one was the census litigation).

Now the House is party to at least one more case (Kupperman), and it appears that Mick Mulvaney, his motion to intervene in the Kupperman case having been withdrawn, will be filing his own separate suit, which will bring the grand total of cases in which the House is a party to 11. In addition, there are several other ongoing cases that could affect the House’s institutional interests, including Blumenthal v. Trump, where members of Congress are suing the president for alleged violations of the emoluments clauses.

One of these cases has already produced a significant appellate court decision  (Mazars) and there are likely to be a number of important decisions coming out of the district and appellate courts in the next couple of months. The Supreme Court will be asked to weigh in and it seems very likely it will agree to hear at least one of these cases, if for no other reason than to decide questions of legislative standing. In the meantime, the House has decided, probably wisely, that further litigation is pointless in light of its determination to conclude impeachment proceedings in the near future (presumably by the end of the year).

We are therefore entering into a period in which there will be (1) a highly unusual amount of judicial precedent generated with potentially enormous impact on the balance of congressional and executive power and (2) an extremely difficult to predict interaction between these judicial opinions and ongoing impeachment proceedings (possibly including, if President Trump’s past statements are credited, an effort to directly challenge these proceedings in court). We cannot rule out the possibility that the chief justice of the United States will  be presiding over an impeachment trial in the Senate while the Supreme Court is being asked to consider directly or indirectly related issues at the same time.

In addition to all this, the very fact that Congress and the executive have taken so many of their disputes to court could itself have major effects on how our constitutional system functions in the future. As former House deputy general counsel Charlie Tiefer told Savage, “this is like nothing else in history.” It is probably not too early to start thinking about the consequences.

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