During the confirmation hearings for Judge (soon to be Justice) Ketanji Brown Jackson, she answered written questions for the record from a number of senators, including Senator Mike Lee. One of Senator Lee’s questions (hat tip: Ira Goldman) struck me as odd:
In Committee on the Judiciary v. McGahn, you took an extremely broad view of standing that all but ignored the previous elements of standing that you clung to in Federal Forest Resource Coalition (individualized injury). Setting aside the merits of the underlying controversy, your opinion never once mentions the phrase “political question.” Isn’t a case where the legislative branch is suing the executive branch a quintessential political question?
One problem with this question is that it was based on a false premise—as she pointed out in her answer, Jackson’s opinion in McGahn did in fact (more than once) use the phrase “political question” and it did so in the context of explaining why the political question doctrine was inapplicable to the case before her. See, e.g., Comm. on the Judiciary v. McGahn, 415 F. Supp.3d 148, 178 (D.D.C. 2019) (“[T]he Supreme Court has specifically confirmed that not all legal claims that impact the political branches are properly deemed non-justiciable political questions.”).
To be sure, Jackson’s discussion of this issue was somewhat in passing. Her primary point was that the Justice Department’s legal arguments on standing and separation of powers sounded like attempts to evoke the political question doctrine without grappling with well-established limits on that doctrine. See id. at 177-78. But because the Justice Department (representing McGahn) did not actually assert that the political question doctrine applied, the judge presumably thought it unnecessary to discuss the doctrine in depth. Perhaps Lee should ask the Justice Department why it did not think McGahn presented a “quintessential political question.”
I think I can save him the trouble, though. There was a time when legal scholars (to the extent they thought about the issue) very likely would have agreed with the sentiment expressed in Lee’s question. As one noted constitutional expert wrote long ago: “In 1958, when the reach of the political question doctrine was far broader than it is today, no lesser an authority than Judge Learned Hand expressed the view that such a dispute [over a congressional subpoena] between two branches of government was a clear example of a nonjusticiable constitutional question.” Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. Rev. 231, 266 (1978). For the last 60 years, though, the law has rejected such a broad view of political questions.
The narrowing of the political question doctrine referred to by then-Professor Rex Lee began with the landmark case of Baker v. Carr, 369 U.S. 186 (1962), which held that a constitutional challenge to state legislative apportionment did not present a nonjusticiable political question. Carr sets forth key factors to determine the existence of a political question, including “a textually demonstrable constitutional commitment of the issue to a coordinate political department,” “a lack of judicially discoverable and manageable standards for resolving it,” and “the impossibility of the deciding without an initial policy determination of a kind clearly for nonjudicial discretion.” Id. at 217. In addition to making clear that a dispute is not nonjusticiable simply because it involves political issues or political actors, Carr indicates that the determination of a political question turns on the nature of the dispute, not the identity of the parties.
To be sure, Professor Lee acknowledged that two of the Carr factors (relating to judicially manageable standards and the need for policy determinations requiring nonjudicial discretion) could plausibly apply to “executive privilege- congressional subpoena confrontations.” 1978 B.Y.U. L. Rev. at 268. However, this was because of the nature of executive privilege disputes, which often require the balancing of congressional and executive interests in a particular subject matter, not merely because the political branches are parties. In any event, he ultimately rejected the notion that such disputes should be considered nonjusticiable political questions, concluding instead:
Both the resolution of disputes and the declaration of constitutional doctrine are the traditional province of the judiciary. And whatever the difficulties or potential improprieties posed by the federal judiciary’s attempting to resolve such disputes and fashion an appropriate remedy, they are certainly no greater than in legislative apportionment or busing cases. Judicial resolution of interbranch disputes should be a last resort. But in those rare cases where judicial resolution is necessary, decision of such cases on the merits is not only consistent with the case or controversy limitation of article III, it is the most important thing federal courts do.
Id. at 288. Professor Lee’s conclusion, in other words, was the same as Judge Jackson’s. Compare McGahn, 415 F. Supp.3d at 186 (“[W]here, as here, the Executive branch and the Legislature are at loggerheads over an issue of law that the courts are well-equipped to decide, the notion that the Judiciary loses its established authority to say what the law is seems implausible. . . . [T]he better view of constitutional separation-of-powers principles is that they deem the exercise of judicial authority with respect to the dispute at issue even more important, if not crucial, for the continuing functioning of the government.”) (emphasis in original).
As Professor Lee pointed out, precedent at the time, though not extensive, supported his conclusion that informational disputes between the political branches were justiciable. Moreover, in the nearly half-century since his article was published, there have been a number of high-profile cases in which the legislative and executive branches have squared off against each other in court. These include the Reagan administration’s suit against a Democratic House of Representatives to enjoin enforcement of a subpoena to Anne Gorsuch, a Republican House’s suit against the Clinton administration with regard to the conduct of the 2000 census, a Democratic House’s suit to enforce a subpoena to former George W. Bush White House counsel Harriet Miers, and two Republican House suits against the Obama administration, one to enforce a subpoena regarding the Fast and Furious investigation and one regarding the implementation of the Affordable Care Act. None of these cases was found to present a political question. The same is true of the many cases, in addition to McGahn, spawned by the Trump administration.
Even if one thinks, contra Professor Lee, that executive privilege disputes should be viewed as nonjusticiable political questions, the McGahn case would hardly present a “quintessential political question.” McGahn did not involve claims of executive privilege, but rather a single straightforward question of law—are senior presidential advisors immune from compelled congressional testimony? Answering this question did not require the court to engage in the type of fact-specific interest balancing or discretionary policy judgments which, as Professor Lee noted, could arguably raise an issue under Baker v. Carr. It therefore should not be surprising that the Justice Department did not rely on the political question doctrine. See Comm. on the Judiciary v. McGahn, No. 19-5331, slip op. at 23 (D.C. Cir. Feb. 28, 2020) (Rogers, J., dissenting) (“Tellingly, McGahn does not argue that this dispute presents a political question within the meaning of Carr.”).
There have been other recently decided cases which present more significant political question concerns than McGahn. For example, in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), then-President Trump sued to prevent compliance with congressional subpoenas that sought to obtain his personal financial records. Although the executive branch was not formally a party to the case, as Trump sued in his personal capacity, the legal claims were founded on separation of powers concerns and the Supreme Court found that “congressional subpoenas for the President’s information unavoidably pit the political branches against one another.” Mazars, 591 U.S. at __, slip op. at 15. [Note: the executive branch was not formally a party in McGahn either because the defendant was a private citizen.] Recognizing that resolution of the case on the merits would likely involve balancing the interests of the political branches, the Supreme Court asked for supplemental briefs on whether the political question doctrine or “related justiciability principles” had a bearing on the Court’s consideration of the case. Both the parties (Trump and the House of Representatives) and the solicitor general as amicus curiae responded that the political question doctrine did not apply and that the case was justiciable. The solicitor general, for example, explained that although the resolution of the case “requires answering significant constitutional questions about the scope of legislative power under Article I and the protections afforded the Executive under Article II,” the case was justiciable because “those questions are amenable to judicially manageable standards and their resolution is not committed to the political branches.”
The Court evidently accepted these arguments because it decided the case on the merits and neither the majority nor the dissenters suggested that the political question doctrine applied. Indeed, unlike Judge Jackson’s McGahn opinion, the majority and dissenting opinions in Mazars actually do not mention the phrase “political question.” Perhaps Senator Lee would like to have a word.
An even stronger case for applying the political question doctrine would be the suit brought by former president Trump against the National Archives and the House January 6 select committee. In that suit Trump, who sued this time solely in his “official capacity,” not only asked the court to conduct a document by document review of presidential records requested by the committee to determine whether they were protected from disclosure by executive privilege, but to do in contravention of determinations made by both the legislative branch and the sitting president. In other words he wanted the court both to intervene in an “intrabranch dispute” (between the former and incumbent presidents) and then to intervene in an interbranch dispute between the former president and the select committee. If that case did not present a “quintessential political question,” it is hard to see how McGahn possibly could. Cf. 1978 B.Y.U. L. Rev. at 269 (“Other things being equal, the case for justiciability of an intrabranch dispute is harder than that of a dispute between coordinate branches of government.”). Although Judge Jackson did not write the D.C. Circuit opinion in that case, she was on the panel which reached the merits (against Trump) without suggesting that the political question doctrine applied. See Trump v. Thompson, No. 21-5254 (D.C. Cir. Dec. 9, 2021). Senator Lee, however, did not suggest that Trump’s suit presented a political question, quintessential or otherwise.
All of which shows that if Judge Jackson is mistaken in her views on the political question doctrine, she is in good and plentiful company—including both political branches and every federal judge to have considered the issue, not to mention at least one constitutional scholar in Senator Lee’s own family. If Lee is concerned about Jackson’s views on this subject, he should be equally concerned about every one of her soon to be colleagues on the Supreme Court.
But there is an even more important oddity about Lee’s question. Assuming he genuinely believes courts should not intervene in congressional-executive information disputes, how does he propose such disputes be resolved? As Professor Lee and many others have pointed out, the effect of concluding that such disputes are nonjusticiable is not neutral, but decidedly works in the favor of the executive branch, which ordinarily has possession of the information Congress seeks. See 1978 B.Y.U. L. Rev. at 287 (“A holding of nonjusticiability means victory for the defendant; in most executive privilege-subpoena cases this will be the President.”).
A common response to this problem is that Congress has adequate political tools (the power of the purse, the ability to block the president’s legislative agenda, the Senate’s advice and consent power, etc.) to obtain the information it needs for routine legislative and oversight purposes. For more extraordinary informational disputes the Constitution provides an extraordinary remedy—impeachment and removal.
For present purposes we need not explore whether this response is a persuasive rebuttal to those who argue that the courts must be able to decide congressional-executive information disputes in the last instance. Suffice to say that Senator Lee, a self-styled defender of legislative branch prerogatives, certainly must believe there are at least some instances in which impeachment is the appropriate remedy for executive stonewalling of congressional demands for information.
Let’s take a not so hypothetical example. Suppose the president orders the withholding of military aid appropriated by Congress for a foreign country threatened by its larger and more powerful neighbor. This action (at least according to GAO) exceeded the president’s lawful authority; more importantly, it was allegedly taken for an improper purpose, namely to pressure the foreign country to announce an investigation that would be damaging to the president’s political rival.
Suppose further that the House then commences an inquiry to determine, among other things, whether impeachment is warranted, but the president orders his administration to refuse all cooperation with the investigation. The White House counsel cites a variety of political and legal grounds to justify the executive’s blanket refusal to comply with the House’s subpoenas, but the House alleges that these grounds are legally baseless and have been advanced in bad faith for purposes of obstructing the investigation. Therefore, in addition to impeaching the president for underlying conduct, the House adopts an article of impeachment for obstruction of Congress.
If one believes, like Senator Lee, that the House’s dispute with the president is nonjusticiable, it follows that impeachment is the House’s only plausible remedy under these circumstances. One might say that the president’s defiance of the House’s investigatory authority presents the “quintessential” case for using impeachment to vindicate the legislative branch’s authority. Of course, there might be valid reasons for senators ultimately to refuse to convict on this article of impeachment—for example, if they concluded that the president’s objections were legally valid (or at least non-frivolous) and offered in good faith. It is difficult to see, however, how they could reach this conclusion without holding a full hearing on the matter.
Lee, on the other hand, took exactly that course when he voted in 2020 to reject the second article of impeachment against President Trump without hearing any evidence or witnesses. It is true that Lee was joined in this by all of his Republican colleagues (even Senator Romney, who voted to convict on the first article). But most of these senators explicitly or implicitly voted to acquit because they agreed with the primary defense offered by Trump’s lawyers, namely that the proper way to resolve informational disputes between the political branches is by recourse to the courts. Lee evidently did not.
If Lee has publicly explained his reasons for voting to acquit Trump on the second article of impeachment, I have not been able to find it. His floor speech announcing his intent to vote against both articles of impeachment only explains his reasons for voting against the first. See Cong. Rec. S888-90 (Feb. 5, 2020).
Maybe someone should ask him for an explanation.