This is a followup to my last post (which is now back up).
In a recent post, which has somehow disappeared from the website, I discussed how during the January 3 oral argument in Committee on the Judiciary v. McGahn (which you can listen to here), the Justice Department advanced both a “narrow” and a “broad” position with respect to congressional standing. Under the narrow position, Congress (or either house or any member or committee of either house) lacks standing to sue the executive branch for any official or institutional injury, including informational injuries caused by defiance of a subpoena. Under the broad position, Congress lacks standing to sue anybody, including vendors who fail to deliver on contractual obligations or private parties who fail to comply with subpoenas.
As I discussed in the now vanished post, Judge Thomas Griffith (who formerly served as Senate Legal Counsel) seemed particularly taken aback by the Justice Department’s broad position, which would render unconstitutional the Senate’s longstanding statutory authority to civilly enforce subpoenas. See 28 U.S.C. § 1365; 2 U.S.C. §§ 288b(b) & 288d. This authority has been used on at least seven occasions since 1978, most recently in the Backpage case in 2016. See Mort Rosenberg, When Congress Comes Calling 27-28 (2017).
Below I discuss the history of DOJ’s gradually expanding positions against congressional standing and suggest why it might have chosen this moment to unveil its broadest attack yet.
Both the Justice Department’s narrow and broad positions on congressional standing purport to be founded on Raines v. Byrd, 521 U.S. 811 (1997), which held that individual representatives and senators lacked standing to challenge the constitutionality of the Line Item Veto Act. As we will see, however, even the narrow version of DOJ’s position reflects a gradual expansion of its reading of Raines over the more than two decades since that case was decided.
The Briefing in Raines
In Raines, Congress and the president were on the same side (the Line Item Veto Act was supported by President Clinton and a strong bipartisan majority in the Republican Congress). The Justice Department, representing the executive branch defendants, both defended the act’s constitutionality and challenged the standing of the congressional plaintiffs to bring the case at all. The House (through the Bipartisan Legal Advisory Group) and Senate filed a joint amicus brief in support of the act’s constitutionality, but did not take a position on standing.
In its jurisdictional statement, the Justice Department explained it had “two distinct objections” to the standing of individual members of Congress. First, “litigation on behalf of the United States is entrusted to the Executive rather than the Legislative Branch.” Citing Buckley v. Valeo, 424 U.S. 1, 138 (1976), it argued that “[a] lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.'” Jurisdictional Statement at 18-19 n.8 (Apr. 18, 1997), Raines v. Byrd, 521 U.S. 811 (1997). Second, it argued “a suit brought by an individual Member cannot properly be characterized as one filed on behalf of Congress (let alone the United States), particularly where (as here) the suit attacks the constitutionality of a federal statute.” Id.
In its main brief, the Justice Department reiterated these two arguments. See Br. for the Appellants at 25-27(May 9, 1997), Raines v. Byrd, 521 U.S. 811 (1997). However, it also acknowledged that “[d]ifferent considerations may be presented if Congress (or one House thereof) seeks judicial review in aid of its legislative functions.” Id. at 26-27 n.14. Citing specifically to the Senate Legal Counsel’s authority to bring civil enforcement actions for subpoenas as well as the Supreme Court’s recognition of the congressional power of inquiry “with process to enforce it” in McGrain v. Daugherty, 273 U.S.135, 174 (1927), DOJ suggested that such informational injuries would interfere with Congress’s performance of its lawmaking functions. In contrast, because constitutional or legal challenges to the execution of laws after enactment “would not prevent Congress from performing its own responsibilities,” Congress “has no judicially cognizable interest in the Line Item Veto Act’s constitutional status.” Id.
The congressional amicus brief took no position on the standing issue presented in Raines, a fact that the Court would expressly note. Raines, 521 U.S. at 818 n.2. We did, however, urge that “the Court should decide only the standing question necessarily presented by this case, as different separation of powers concerns may well predominate when an entire body of Congress is seeking to protect its rights.” Joint Br. of U.S. Senate and the Bipartisan Legal Advisory Group of the U.S. House of Representatives as Amici Curiae for Reversal at 2 n.2 (May 9, 1997), Raines v. Byrd, 521 U.S. 811 (1997). We explained that “[d]istinct and significant considerations could arise in a case in which either House, or the entire Congress, sought to invoke the courts’ jurisdiction to protect its constitutional prerogatives and duties against the Executive or a private party.” Id. In this regard we reminded the Court of a recent Senate subpoena enforcement action in which the Court had declined to intervene. See Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17 (D.D.C.) (enforcing Senate committee subpoena), emergency motion for stay pending appeal denied, No. 94-5023, Order (D.C. Cir. Feb. 18, 1994), application for stay denied, 510 U.S. 1319 (1994) (Rehnquist, C.J., in chambers).
In short, the congressional amici did not want the Court to reach or accept the Justice Department’s Buckley argument, which would have applied to lawsuits by either house or Congress as a whole. DOJ obviously did not agree with that, but it did agree with congressional amici that standing to enforce subpoenas and redress informational injuries presented distinct issues that were not involved in Raines.
It is noteworthy that counsel of record for congressional amici was then-Senate Legal Counsel Thomas Griffith (as you might have gathered, I was on the brief as well). Current House Counsel Doug Letter was on the briefs for the Justice Department.
The Raines Decision
The plaintiffs in Raines alleged that the Line Item Veto Act unconstitutionally diminished their legislative power and that of Congress by allowing the president to cancel individual items of spending in an appropriations bill that had been duly enacted into law. The Court held that they lacked standing to maintain this suit.
Consistent with the urging of congressional amici, the Court abstained from announcing a broad rule that would govern all congressional standing. Instead, it identified six factors or considerations that influenced its conclusion that the individual members lacked standing to challenge the Line Item Veto Act under the circumstances presented: (1) “reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional,” thus requiring an “especially rigorous” standing analysis; (2) the injury in question was official or institutional, not personal; (3) the institutional injury was “wholly abstract and widely dispersed,” not concrete and particularized; (4) the legislators were not authorized by Congress or either house to vindicate its institutional interests (and indeed their lawsuit was opposed by congressional amici); (5) historical experience showed that analogous confrontations between the legislative and executive branches had not been resolved by lawsuits “brought on the basis of claimed injury to official authority or power;” and (6) the Court’s conclusion neither deprived members of Congress of an adequate remedy (since they could repeal the law or exempt future appropriations from its reach) nor foreclosed a constitutional challenge to the Line Item Veto Act by other parties. Raines, 521 U.S. at 819-21, 826-29.
For at least three reasons, the Raines decision cannot reasonably be read to govern lawsuits brought or authorized by either house to enforce subpoenas (or otherwise redress informational injuries). Most obviously, the Court clearly limited its holding, as congressional amici had suggested, to claims by individual members of Congress. Raines, 521 U.S. at 830 (“We therefore hold that these individual members of Congress do not have a sufficient ‘personal stake’ in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing.”) (emphasis added). The Court went even beyond amici’s suggestion by noting “[w]e attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” Id. at 829.
Second, nothing in the Court’s decision endorses or supports DOJ’s Buckley-based argument regarding the executive branch’s (alleged) exclusive right to bring certain types of lawsuits. It simply ignores this argument entirely (Buckley is cited only once in an unrelated context). This does not prevent DOJ from continuing to make the Buckley argument, of course, but it does (or should) foreclose it from reading Raines as somehow supporting that argument.
Finally, the Court’s decision does not address congressional subpoena enforcement or informational injuries, which raise “different considerations” (to use DOJ’s words) or “distinct and significant considerations” (to use those of congressional amici) from those of the “abstract” injuries involved in Raines. Although the Court refers critically to certain D.C. Circuit precedent on congressional standing, 521 U.S. at 820 n.4, it makes no mention of that circuit’s precedent recognizing congressional informational standing. See, e.g., United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976) (the “House as a whole has standing to assert its investigatory power”). Moreover, the Court’s historical discussion makes no mention of informational disputes between the branches (much less such disputes between Congress and private parties). The only reference to informational standing in Raines appears in Justice Souter’s concurrence, in which he approvingly cites DOJ’s acknowledgement that such issues are not involved in the case before the Court. Raines, 521 U.S. at 831 n. 2 (Souter, J., concurring).
In short, it is absurd to read Raines as sub silentio deciding the question of congressional standing to enforce subpoenas or overruling D.C. Circuit precedent on point, particularly given that Congress and the executive branch agreed these informational injury issues were not involved in the case.
The 2000 Census Case
In the immediate aftermath of Raines, the Justice Department adopted a somewhat expansive view of the opinion, but stopped short of claiming that it applied to informational injuries. The first case to present congressional standing issues was the House’s challenge to the legality of the Clinton administration’s plan for conducting the 2000 census. The House cited two principal harms that entitled it to sue: (1) an informational injury resulting from the fact that it would not receive the results of an “actual enumeration” required by the Constitution and statute; and (2) a compositional injury resulting from the fact that an illegal census would affect the apportionment of seats in the House. See U.S. House of Representatives v. Dept of Commerce, 11 F. Supp.2d 76, 84-85 (D.D.C. 1998) (three judge panel).
The Justice Department offered a number of arguments why the House lacked standing and the court should not reach the merits of the dispute. See id. at 82-97. It did not, however, claim that Raines prevented Congress from bringing actions to enforce subpoenas nor that Raines overruled D.C. Circuit precedent recognizing informational standing. As noted in the House’s brief before the Supreme Court, DOJ “[did] not dispute that a House of Congress may ‘seek judicial redress in aid of its legislative functions'” under the proper circumstances, including enforcement of a subpoena. Br. for the U.S. House of Representatives at 13, Dept of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999) (No. 98-404).
DOJ argued instead that the House’s asserted injury did not constitute a judicially cognizable informational injury because it was not merely seeking to obtain existing information, but to control how the executive branch implemented the law. It contended that “[t]o treat that alleged harm as a judicially cognizable ‘informational injury’ would permit Congress to give itself a cognizable interest in the outcome of any Executive Branch decision, simply by requiring executive officials to report that decision to Congress.” Br. for the Appellants at 9, Dept of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999) (No. 98-404) (emphasis in original). However, it did not argue that Congress was prohibited from asserting all informational injuries or even all informational injuries suffered at the hands of the executive branch. See id. at 17-21. Furthermore, while DOJ argued that the historical analysis in Raines showed that the House could not assert general “institutional” injuries against the executive branch, it made this argument only in the section of the brief dealing with the House’s claim that its composition would be affected. See id. at 24. Notably, it did not make the argument that Raines or its historical analysis foreclosed congressional suits for informational injuries.
Although the Supreme Court never reached the House’s standing in the census case, the three-judge district court analyzed those issues in detail. The court reaffirmed the vitality of pre-Raines precedent regarding informational injuries, noting it is “well established that a legislative body suffers a redressable injury when that body cannot receive information necessary to carry out its constitutional responsibilities.” 11 F. Supp.2d at 86. It found Raines inapplicable and distinguishable on several grounds (including the fact that the individual members there had not been authorized to represent their houses), and it specifically noted that the House’s injury here was concrete and particularized in contrast to the injury in Raines. Id. at 89-90. The court also rejected DOJ’s argument based on Buckley, finding that the House’s suit was not an effort to execute the law, but “to prevent a legally cognizable injury to itself.” Id. at 96.
It should be noted that while the three-judge court rejected DOJ’s standing argument, it implicitly accepted its premise that Raines was applicable to lawsuits brought by a legislative body as a whole and would bar standing for some (indeed most) injuries such a body could assert. See 11 F. Supp.2d at 89-90 (emphasizing the case fell within “narrow area” of legislative standing left after Raines and that only in “and extremely rare case” would houses of Congress be able to sue the executive branch). From that perspective the Justice Department’s first “narrow” reading of Raines was somewhat successful.
“Unauthorized” Informational Lawsuits
In subsequent cases DOJ began to argue Raines should be read to prohibit standing based on informational injuries. The first case, I believe, was when members of the House oversight committee filed suit against the Secretary of Commerce in 2001 for the latter’s failure to provide them with census data requested under 5 U.S.C. § 2954 (the so-called “Rule of Seven” statutory provision that authorizes any seven members of specified committees to obtain information from executive agencies). This case might have been optimal from DOJ’s perspective because it involved individual members who had not been authorized to sue by the House and because it was filed outside of the D.C. Circuit. Even so, DOJ did not initially claim that the members lacked standing. It was only after the district court granted summary judgment for the plaintiffs that DOJ filed a motion for reconsideration in which it raised standing among other issues. The case was eventually dismissed by the court of appeals on other grounds. See Waxman v. Evans, No. 02-55825 (9th Cir. 2002) (Waxman I).
In 2002, when the Comptroller General brought suit to enforce a GAO subpoena to Vice President Cheney for records of his national energy task force, the Justice Department argued that the Comptroller General lacked standing under Raines. This argument required it to go one step beyond the argument in Waxman I because the Comptroller General, unlike the plaintiffs in § 2954 cases, had specific statutory authority to sue to enforce informational demands. However, DOJ contended that the suit should still be considered unauthorized under Raines because there was no specific authorization from either house of Congress for the particular subpoena or lawsuit in question.
DOJ, at least to date, has been successful in persuading courts to adopt its “Raines 2.0” and “Raines 3.0” theories. See Cummings v. Murphy, No. 17-cv-22308 (D.D.C. Aug. 14, 2008) (dismissing lawsuit under § 2954 for lack of standing), appeal pending sub nom. Maloney v. Murphy; Waxman v. Thompson, No. 04-03467 (C.D. Cal. July 24, 2006) (Waxman II) (same); Walker v. Cheney, 230 F. Supp.2d 51 (D.D.C. 2002) (dismissing the Comptroller General’s lawsuit for lack of standing). Each of these courts, however, was careful to stress the unauthorized nature of the suits and that its decision would not (necessarily) apply to authorized subpoena enforcement actions.
Of particular significance was Judge Bates’s decision in the Walker case. Relying on Raines, he stressed the following factors in his decision: (1) the injury in question was not personal to the Comptroller General, but was official or institutional; (2) the documents sought by the subpoena were simply for “general interests in lawmaking and oversight,” which were “too vague and amorphous to confer standing;” (3) the Comptroller General had not been specifically authorized by Congress to bring this suit; and (4) historical practice provided “at most, marginal support” for the lawsuit. Walker, 230 F. Supp.2d at 65-68, 70-73.
While Judge Bates placed a significant amount of emphasis on the fact the lawsuit did not involve a congressional subpoena and had not been authorized by Congress, some of his reasoning cast doubt on whether Congress itself would have standing to assert informational injuries. This was particularly true with respect to his discussion of historical practice, where he notes that “no court has ever ordered the Executive Branch to produce a document to Congress or its agents” and no Supreme Court decision had “recogniz[ed] standing for Congress or its agents to sue in such a setting.” 230 F. Supp.2d at 70.
Subpoena Enforcement Actions and Other Interbranch Lawsuits
As the above discussion indicates, DOJ’s current “narrow” reading is actually its “Raines 4.0” position. Building on the Walker case, DOJ argues that historical practice shows that all interbranch lawsuits, including subpoena enforcement actions, are barred under the reasoning of Raines. It was undoubtably encouraged to advance this position by the fact that the first subpoena enforcement action following Raines was assigned to Judge Bates.
Unfortunately for the Justice Department, Judge Bates had no difficulty in concluding that neither Raines nor his prior reading of Raines in Walker barred standing for a congressional committee that had been authorized by its house to enforce a subpoena. See Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008). In Miers the Judiciary committee was seeking to enforce a subpoena for testimony from two White House officials with information pertinent to an oversight investigation. The court concluded that the committee had standing to assert this informational injury.
While the discussion in Walker suggested pre-Raines precedents might be suspect, Bates in Miers flatly concluded that “Raines did not overrule or otherwise undermine AT&T I, and neither Raines nor Walker is inconsistent with AT&T I.” Miers, 558 F. Supp.2d at 26. The critical fact in Miers that distinguished it from Raines and Walker, the court stated, was that the committee had authorized the investigation and subpoena and the full house had specifically authorized the lawsuit. 558 F. Supp.2d at 70-71.
The injuries in Walker and Miers might seem to be identical as both were informational in nature. However, while in Miers the court was satisfied that the loss of information sought pursuant to an authorized investigation constituted a concrete and cognizable injury, in Walker it dismissed Congress’s “general interests in lawmaking and oversight that are allegedly impaired by [the vice president’s] failure to produce the requested records” as “too vague and amorphous to confer standing.” Compare Miers, 558 F. Supp.2d at 69-70 with Walker, 230 F. Supp.2d at 67. It is difficult to square these statements based on the nature of the injury (as opposed to the identity of the party suffering the injury); it seems more likely that in Miers Judge Bates reconsidered this aspect of his reasoning in Walker.
Following Miers, DOJ’s “narrow” reading of Raines as prohibiting all interbranch suits has been rejected in three additional cases. See Comm. on the Judiciary v. McGahn, slip op. at 68-77, No. 19-cv-2379 (D.D.C. Nov. 15, 2019) (Ketanji Brown Jackson, J.); U.S. House of Representatives v. Burwell, 130 F. Supp.3d 53, 81 (D.D.C. 2015) (Collyer, J.); Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp.2d 1, 9-17, 20-22 (D.D.C. 2013) (Amy Berman Jackson, J.). Including the three-judge panel in the census case, this means that seven different judges in the D.C. Circuit have rejected DOJ’s narrow reading of Raines. Not a single judge has accepted its reading.
The history above helps explain why DOJ has not previously advanced its “broad” position (Congress cannot sue anybody, including private parties) and why it has decided to do so now. Up until this point DOJ has faced a bit of a dilemma. Relying particularly on the historical practice discussion in the majority opinion, DOJ has had success in convincing courts that Raines establishes something of a presumption against interbranch lawsuits, but it has been able to convert this presumption into a winning argument only where at least one of the following is true: (1) the injury in question is abstract and dispersed, rather than concrete and particularized; or (2) the congressional plaintiffs have not been authorized to sue by Congress or either house.
The problem DOJ has faced is that it is difficult to argue that informational injuries are abstract and dispersed, particularly while (implicitly) acknowledging that they are sufficiently concrete to support standing against private parties. See Jonathan Remy Nash, A Functional Theory of Congressional Standing, 114 Mich. L. Rev. 339, 374 (2015) (“[T]he notion that Raines somehow draws into question congressional standing when a congressional committee enforces a subpoena against an executive branch actor, but not otherwise, is implausible.”). On the other hand, broadening its attack on congressional standing to suits against private parties tends to undermine its claims about the uniquely nonjusticiable nature of interbranch disputes. It is also easier to rely on the historical practice discussion in Raines, which dealt solely with interbranch disputes, if one advances DOJ’s narrow position. This is illustrated by the following colloquy between Judge Griffith and Hashim Mooppan, the Justice Department lawyer, in the January 3 oral argument:
Judge Griffith: after Raines, in your view when may Congress or a chamber of Congress assert an institutional injury?
Mooppan: we don’t think they ever can, your Honor, but certainly not in a case where its an injury against . . . an asserted injury against the executive branch. We think Raines reaffirmed the position that a dispute, an injury only gives rise to an Article III controversy when it is the type of dispute that has traditionally been resolved in federal court.
Judge Griffith: but I mean the Supreme Court has said there is such a thing as an institutional injury, right?
Mooppan: only . . .
Judge Griffith: You’ve got Coleman, you’ve got the Arizona State Legislature case.
Mooppan: only for state legislatures, and in both Raines . . .
Judge Griffith: why would that make a difference?
Mooppan: Because of the separation of powers problem. There’s serious separation of powers concerns with having a federal court resolve an inter branch dispute and this is laid out in great detail in Raines. Raines specifies that over history there have been countless disputes between Congress and the president, and in none of those disputes have they been resolved through inter branch litigation over a claimed injury to official authority or power.
Note that while Mooppan asserts the broad position (“we don’t think they ever can”), when questioned he quickly reverts to the issue of interbranch disputes.
In any event, DOJ has chosen to rely on the narrow reading of Raines up to this point, but now it sees little downside to advancing the broad reading as well. One reason might be that it has had no success with the narrow reading thus far, and it does not expect to prevail on standing in the D.C. Circuit. So its primary interest is in developing an argument for the Supreme Court (which is not bound by D.C. Circuit precedent).
It should also be noted that the facts of McGahn are particularly bad for a standing argument based on the narrow theory. For one thing, McGahn is a private citizen so it is not obvious that the narrow theory should even apply to a suit against him. DOJ bases the narrow theory almost entirely on the fact “countless disputes between Congress and the president” have been resolved without litigation, but these were overwhelmingly disputes about documents that were understood to be in the president’s custody and control. If DOJ has historical examples of disputes in which the president purported to prevent former executive branch officials from testifying before Congress, I am not aware of them.
In addition, McGahn is a stronger case for finding a concrete and particularized injury than either Walker or Miers. Both involved information sought for purposes of oversight and potential legislation. In McGahn, however, the information is also sought for purposes of impeachment. Unlike information sought for general legislative and oversight purposes, impeachment inquiries necessarily require resolving specific factual controversies in a timely manner. Cf. Walker, 230 F. Supp.2d at 73 n.19 (argument for standing stronger when suit relates to a “highly specific constitutional mandate”). There is no realistic alternative in which Congress can meet its needs by seeking different information, finding different sources, or employing different tools.
In short, DOJ likely realizes that it has ridden Raines as far as it can. Its hopes now depend on getting the Supreme Court to replace or dramatically modify Raines. From the executive branch perspective, the optimal result would be to get the Supreme Court to adopt a Buckley-type rationale that would say only the executive branch can initiate litigation. Not only would that prevent Congress from suing anyone for anything, but it would not preclude the executive branch from suing Congress (directly or indirectly). Here it is noteworthy that DOJ has declined to rule out the possibility that it might sue current or former executive branch officials to prevent them from testifying before Congress.
A second best alternative from the executive branch perspective would be to convince the Court to adopt a flat ban on any interbranch lawsuits, thereby transforming Raines into a type of political question doctrine by a different name. For reasons already discussed, Raines itself cannot and should not be read to require such a result, but this does not mean the Supreme Court will not adopt such a doctrine if and when the McGahn case reaches it.