The Justice Department’s Broad New Attack on Congressional Standing

Ever since the January 3 D.C. Circuit oral argument in Committee on the Judiciary v. McGahn (which you can listen to here), I have been puzzling over the Justice Department’s position with regard to the issue of congressional standing. (I mean, that’s not the only thing I’ve been doing, in case you were worrying about my mental health.)

The Justice Department lawyer, Hashim Mooppan, made a point of stressing DOJ’s view that Congress lacks standing to sue anybody for anything, including suing private parties to enforce subpoenas or redress other informational injuries. As an alternative to this broader position, he offered the “narrower” view that Congress lacks standing to bring suits against the executive branch, arguing that history establishes that such interbranch disputes are to be resolved through the political process.

Judge Griffith, in particular, seemed somewhat taken aback by the broad position. As he pointed out, the Senate has long had statutory authority specifically authorizing it to enforce its subpoenas in court (though there is an exception for federal executive officials asserting authorized governmental privileges). See 28 U.S.C. § 1365; 2 U.S.C. §§ 288b(b), 288d. Mooppan said the Justice Department believes that statute to be unconstitutional, though he added it would be “more unconstitutional” if there were no exception.

Judge Griffith, of course, is intimately familiar with the Senate statute, having served as Senate Legal Counsel from 1995-99. While the Senate infrequently exercises this statutory authority, it has done so  on at least seven occasions since the statute was enacted in 1978. See Morton Rosenberg, When Congress Comes Calling 27-28 (2017). It does not appear that on any of these occasions, the most recent of which occurred in 2016, was the Senate’s standing challenged. See Senate Perm. Subcomm. on Investigations v. Ferrer, No. 16-5232 (D.C. Cir. May 16, 2017). That might be one reason why Judge Griffith was surprised by DOJ’s broad position.

Another reason he might have been surprised is that the Justice Department has not, as far as I can tell, ever taken this position before. This includes the briefs submitted in the McGahn case itself, which appear to advance only the narrower theory that “the Committee lacks Article III standing to seek judicial resolution of this interbranch dispute.” Br. for Defendant-Appellant at 14 (Dec. 9, 2019); Reply Br. for Defendant-Appellant at 2 (Dec. 19, 2019), Comm. on the Judiciary v. McGahn (D.C. Cir.) (No. 19-5331). Although at least one element of DOJ’s argument (relating to the nature of the injury) would be applicable to any subpoena enforcement, the overwhelming focus is on the interbranch nature of the dispute. See Br. of Defendant-Appellant, supra, at 14-33; Reply Br. of Defendant-Appellant, supra, at 2-12. More importantly, nowhere in its McGahn papers does DOJ explicitly state that congressional committees lack standing to enforce subpoenas against parties other than the executive branch.

This surely was not an accident. For more than two decades, the Justice Department has danced around the question of congressional standing to enforce subpoenas,  and in particular whether Congress has standing to enforce subpoenas against private parties and other non-executive branch actors. For example, in 2008 the Justice Department discussed the Senate’s statutory authority to enforce subpoenas and observed in a footnote that “[w]hether the Senate would have Article III standing for an action brought pursuant to 2 U.S.C. § 288 is, of course, a separate question.” Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in Opposition to Plaintiff’s Motion for Partial Summary Judgment on Counts I and II (May 9, 2008), Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008). But as far as I know DOJ never attempted to answer this question in Miers or any other case up until January 3, 2020.

So why, then, has DOJ chosen this moment to take a definitive stand on this issue?

I have a theory. But, first, some history will be helpful. I will cover that in my next post.

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