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. Continue reading “When it Raines, it Pours: Congressional Standing and DOJ’s Ever Expanding Reading of Raines v. Byrd”