You Can Take this to the (En) Banc

If we can say one thing for certain in this crazy mixed up world, it is that the full D.C. Circuit will soon be considering whether or when a chamber of Congress may bring suit or otherwise seek assistance of a federal court. There are currently at least three cases before D.C. Circuit panels in which this issue is presented and they do not, to put it mildly, seem to be producing a consensus as to the proper approach or result.

McGahn

In Comm. on the Judiciary v. McGahn (which presented the question whether the Judiciary committee could sue a former White House counsel to require his compliance with a testimonial subpoena), three separate opinions were written. Judge Griffith wrote the “majority” opinion which held that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.” Griffith op. at 2.

Of critical importance to Griffith was that the lawsuit “has no bearing on the ‘rights of individuals’ or some entity beyond the federal government.” Griffith op. at 8. This assertion is puzzling because the case in fact revolves around whether an individual (McGahn) has the right to ignore a congressional subpoena and whether his failure to obey the subpoena would subject him to criminal penalties and coercive sanctions for contempt of Congress. As the court acknowledges, either a criminal proceeding against McGahn or a habeas proceeding brought by McGahn after the House imprisoned him for contempt would constitute a justiciable case or controversy under Article III. Griffith op. at 22. Presumably, moreover, McGahn would have standing to sue the committee for a declaratory judgment invalidating the subpoena (though such a suit would be barred by the Speech or Debate Clause). In Judge Griffith’s view, however, the committee’s lawsuit against McGahn constitutes an “interbranch information dispute” while these other proceedings, though presenting precisely the same legal issue (whether McGahn was required to comply with the subpoena), would not.

A major element of Griffith’s reasoning is that courts do not want to be dragged into disputes between the political branches. As he notes, if courts are routinely placed in this position, “we risk seeming less like neutral magistrates and more like pawns on politicians’ chess boards.” Griffith op. at 10. This is a reasonable concern, though its relevance to the legal question before the court is debatable. Moreover, courts would be in an even more difficult position if Congress begins arresting recalcitrant witnesses; Judge Griffith is just gambling this won’t happen.

Apart from the reluctance to become involved in politically charged interbranch disputes, Griffith’s decision is founded essentially on “historical analysis,” meaning his view that “[n]either interbranch disputes (in general) nor interbranch information disputes (in particular) have traditionally been resolved by federal courts.” Griffith op. at 14-15. This approach, he contends, is compelled by Raines v. Byrd, 521 U.S. 811 (1997), where the Court based its refusal to recognize standing for individual members of Congress in their challenge to the constitutionality of the Line Item Veto Act in part based on the fact analogous historical disputes had not given rise to lawsuits between the branches.

It is beyond the scope of this post to fully critique Judge Griffith’s opinion, but I will make two observations here. First, his reliance on Raines ignores the numerous distinctions between that case and McGahn, distinctions which are laid out by the dissent (as well as in a prior post here), any one of which, according to the Raines Court itself, could change the outcome.

Second, the historical approach is extremely vulnerable to “looking over a crowd and picking out your friends,” to use an expression often employed to show the uselessness of legislative history. For example, Griffith analogizes the McGahn suit to historical interbranch information disputes, but the latter overwhelmingly were disputes between Congress and the president about access to documents in the president’s control, not disputes over testimony by a private citizen who once was a government official. He observes that “we do not address whether a chamber of Congress may bring a civil suit against private citizens to enforce a subpoena,” Griffith op. at 35, but fails to explain why that is not precisely the case before the court. He also distinguishes United States v. Nixon, 418 U.S. 683 (1974), on the ground that it involved a judicial, not a congressional, subpoena, but prior to 1974 there was no historical precedent for a court ordering the president to comply with either type of subpoena (a point President Nixon unsuccessfully made in attempting to resist the subpoena in that case). In short, “historical analysis” seems to pretty much allow the court to pick out whatever analogy fits with the result it wishes to reach.

Finally, Judge Griffith states “we do not decide whether a congressional statute authorizing a suit like the Committee’s would be constitutional.” Griffith op. at 35. As the dissent points out, this statement seems entirely inconsistent with his claim that Article III bars courts from hearing this type of dispute. It makes one wonder whether Judge Griffith fully believes the rationale he has advanced for rejecting the committee’s standing.

This brings us to Judge Henderson’s unusual concurring opinion. She begins her opinion by rejecting the Justice Department’s position that would “foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute,” explaining that she “do[es] not believe . . . Supreme Court precedent supports a holding of that scope.” Henderson op. at 1. Since this is precisely the position that Judge Griffith accepts (apart from the possible caveat should a statute expressly authorize suit), it appears Judge Henderson does not agree with his reasoning.

Judge Henderson elaborates that existing Supreme Court precedent does not decide the question of whether the Judiciary committee has standing to enforce a subpoena. See Henderson op. at 1 (“[T]he issues [here] are far from being on all fours with Raines.”); id. at 7 (“[T]he Supreme Court’s post-Raines precedent does not categorically foreclose the possibility that the Committee’s asserted injury could support Article III standing.”). Nonetheless, she reads this precedent as being generally hostile to congressional standing. Therefore, rather than identifying which interbranch disputes Congress may bring to the federal courts, Judge Henderson says that task must be left to the Supreme Court. See Henderson op. at 8 (“judicial restraint counsels that we find the Committee lacks standing for want of a cognizable injury”); id. at 9 (“If federal legislative standing is to be given new life, it must be the Supreme Court– not an inferior court– that resuscitates it.”). This seems like an odd approach to take (the judicial equivalent of voting “present”) and leaves me wondering whether the judge might change her vote if the case is reheard en banc.

Judge Rogers issued a vigorous dissent which explains in detail why Raines does not control the case. See Rogers op. at 5 (“each factor that in Raines counseled against the existence of standing is absent here”); id. at 6-13; id. at 14 (“Raines does not support, much less dictate, that the Committee lacks standing here.”). As she points out, the committee’s standing is supported not only by the D.C. Circuit’s pre-Raines precedent, but every court to consider the issue since. See Rogers op. at 19 (“McGahn can point to no federal court that has accepted the argument that Congress lacks standing to file a subpoena-enforcement action in federal court against an Executive Branch official; to the contrary, every court to have taken up the question has determined that the is standing in such a case.”). Moreover, she argues, contrary to Judge Griffith, that rejecting the committee’s standing will reduce rather than increase the chances that the political branches will be able to work out information disputes through negotiation and accommodation. Id. at 24-25 (“Future Presidents may direct widescale noncompliance with lawful Congressional inquiries, secure in the knowledge that Congress can do little to enforce a subpoena short of directing a Sergeant at Arms to physically arrest an Executive Branch officer.”). Continue reading “You Can Take this to the (En) Banc”

Can McGahn be Prosecuted for Contempt of Congress?

In a fractured decision, a D.C. Circuit panel has held that the House lacks standing to civilly enforce a testimonial subpoena to former White House counsel Don McGahn. The lead opinion by Judge Griffith concludes, with some caveats, that “Article III of the Constitution forbids federal courts from resolving this kind of inter branch information dispute.” Griffith op. at 2. The problem, he explains, is not that the underlying legal issue (whether McGahn is absolutely immune from congressional subpoenas) is nonjusticiable; a court could resolve that issue in a proper proceeding, such as a prosecution for contempt of Congress or a habeas proceeding arising out of Congress’s exercise of the inherent contempt power. Id. at 22. This type of proceeding, however, does not present a case or controversy that may be adjudicated by a federal court. Id. at 8-9.

Judge Griffith denies that this holding would render Congress “powerless” in its disputes with the executive branch because Congress retains “a series of political tools to bring the Executive Branch to heel.” Griffith op. at 13. He explains that “Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, delay or derail the President’s legislative agenda, or impeach recalcitrant officers.” Id.

The conflation of purely political remedies, such as withholding appropriations or harnessing public opinion, with those founded on legal right is some confounding. True, Congress is often able to use such political leverage to obtain information needed to conduct routine oversight of executive agencies. But such tools are hardly adequate when the president is personally motivated to withhold information from Congress. One might as well argue that members of Congress suspected of criminal wrongdoing can be persuaded to turn over potentially incriminating evidence by the president’s threat to veto their pet projects.

Impeachment is also an inadequate remedy, particularly where the president is withholding evidence of impeachable offenses. Threats of impeaching the president for withholding information are unlikely to convince him to turn over incriminating evidence he believes will lead to his impeachment anyway. Moreover, as recent experience demonstrates, the Senate is unlikely to convict the president for withholding evidence, at least as long as his lawyers can advance any legal theory, no matter how tenuous, to support his action.

As Judge Griffith notes, Congress may hold executive officers in contempt if they fail to comply with subpoenas. This, however, constitutes a remedy only if some consequences flow (or at least potentially flow) from the finding of contempt. Otherwise Congress might as well send a strongly worded letter. Continue reading “Can McGahn be Prosecuted for Contempt of Congress?”

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

 

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”

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.

What Does the D.C. Circuit’s Order In Blumenthal v. Trump Tell Us?

For one thing, there is not likely to be any emoluments discovery in this case in the near future, if at all. For another, we are likely to get a significant legislative standing decision from the D.C. Circuit in the not too distant future.

On July 19, a panel of the D.C. Circuit (Judges Millettt, Pillard and Wilkins, all Obama appointees) issued an order which, while denying President Trump the immediate relief he sought, strongly agreed with the president’s view that the legal issues in the case should be resolved before discovery (or at least anything more than “limited discovery”) takes place. Specifically, the panel indicated that there are two open legal issues that are potentially fatal to the claims brought by the congressional plaintiffs. It states that “because either of those issues could be dispositive of this case, it appears to this court that the district court abused its discretion” by refusing to certify the case for immediate appeal.

The D.C. Circuit also indicated its concerns with “the separation of powers issues present in a lawsuit brought by members of the Legislative Branch against the President of the United States.” These concerns, it strongly suggested, counsel against moving forward with discovery if the case may be resolved on legal grounds alone. (The district judge, Judge Sullivan, took the hint and suspended discovery immediately after the D.C. Circuit issued its order.).

Although the panel remanded the case to Judge Sullivan to reconsider the certification issue, its directive seems pretty clear: certify immediately. There is one caveat, however. The panel suggested that the district court might wish to address “whether discovery is even necessary (or more limited discovery would suffice) to establish whether there is an entitlement to declaratory and injunctive relief of the type sought by plaintiffs.” This raises the possibility the plaintiffs could win a victory at the district court level (e.g., an order from Judge Sullivan declaring that President Trump is violating the Foreign Emoluments Clause), which would be politically useful even though unlikely to survive legally.

The two legal issues that will soon be before the D.C. Circuit are (1) whether there is a cause of action against the president for violations of the Foreign Emoluments Clause and (2) whether the congressional plaintiffs have standing to seek relief for violations of the clause. The latter question, as noted in my last post, has potentially broader significance for subpoena enforcement and other litigation by the House against the Trump administration. The panel made only one cryptic comment on the issue, noting the “standing question arises at the intersection of precedent” and citing Virginia House of Delegates v. Bethune-Hill, 139 S.Ct. 1945 (2019) and Coleman v. Miller, 307 U.S. 433 (1939).

Based on the current state of legislative standing precedent, I think the Blumenthal plaintiffs are likely to lose on standing. The question is whether or not they will lose on narrow grounds that otherwise leave untouched the ability of each house to enforce subpoenas and other information demands in court.

It’s (Probably Not) Complicated: The House Lacks Standing in Nagarwala

A commentator has observed that “[t]he Supreme Court’s and lower federal courts’ jurisprudence on legislative standing is complicated.” Bradford C. Mank, Does a House of Congress Have Standing Over Appropriations?: The House of Representatives Challenges the Affordable Care Act, 19 U. Pa. J. Const. L. 141, 143 (2016). Generally speaking, this is true. A series of Supreme Court decisions over the past two decades have produced mixed and often inconclusive results, which tell us something about the views of individual justices but provide little in the way of definitive answers from the Court as a whole.

We know, for example, that there are two current justices at the most liberal/permissive end of the spectrum on legislative standing. Justice Breyer would have held that individual federal legislators had standing to challenge the constitutionality of the Line Item Veto Act (he was joined in this view only by the now-retired Justice Stevens). See Raines v. Byrd, 521 U.S. 811, 838 (1997) (Breyer, J., dissenting). In subsequent cases that presented the question whether state or federal legislative bodies had institutional standing, Justice Breyer supported legislative standing in each case. See Va. House of Delegates v. Bethune-Hill, No. 18-281 (June 17, 2019) (Virginia house of delegates); Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. __ (2015) (both houses of Arizona legislature); United States v. Windsor, 570 U.S. 744 (2013) (U.S. House of Representatives); Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999) (U.S. House).

Justice Alito has also staked out what Professor Mank calls a “novel” and “broad” approach to legislative standing. See 19 U. Pa. J. Const. L. at 183, 189. In Windsor, although a majority of the Court found it unnecessary to  resolve the question of congressional standing, Justice Alito opined that “in the narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.” Similarly, in this term’s Bethune-Hill decision, Alito (writing for himself, the chief justice, and Justices Breyer and Kavanaugh) would have found that the Virginia house of delegates had standing to defend the constitutionality of a redistricting plan passed by the Virginia general assembly. The Bethune-Hill majority, however, held that the Virginia house, “as a single chamber of a bicameral legislature,” lacked standing to assert an injury (invalidation of the redistricting plan) which had been suffered by the legislature as a whole.

Which brings us to the pending motion of the U.S. House of Representatives to intervene in United States v. Nagarwala, No. 19-1015 (6th Cir.). Nagarwala involves a criminal prosecution of individuals in Michigan for practicing female genital mutilation in violation of a federal statute, 18 U.S.C. § 116(a). The district court dismissed these charges on the ground that the statute exceeded Congress’s enumerated powers. The Justice Department initially filed a notice of appeal, but subsequently informed Congress pursuant to 28 U.S.C. § 530D(a)(i)(B)(ii) that it lacked a reasonable basis to defend the constitutionality of the law and therefore would not pursue an appeal. The House, through the Bipartisan Legal Advisory Group (BLAG), moved to intervene in the case to defend the constitutionality of the statute. Unlike other issues of legislative standing that may present themselves in the coming months, this one is fairly straightforward.  Continue reading “It’s (Probably Not) Complicated: The House Lacks Standing in Nagarwala”

BLAG’s Authority to Represent the House in Court

 

See Update Here

On February 11, 2019, the new General Counsel of the House, Douglas N. Letter, filed an amicus brief in U.S. Dept of Commerce v. State of New York, the case that challenges the Trump administration’s decision to add a citizenship question to the 2020 census. A federal district court ruled that the addition of the question violated the Administrative Procedure Act, and the Solicitor General sought a writ of certiorari before judgment from the Supreme Court. Letter’s brief argues that the district court’s decision is correct and urges the Court, should it decide to hear the case, to do so promptly in order to avoid disruption or delay in the census. (The Court has now agreed to hear the case on an expedited basis, with argument scheduled for late April).

I have nothing to say, at least at the moment, about the merits of this dispute, but I do have an observation about the caption of the brief, which is styled “Brief of Amicus Curiae United States House of Representatives in Support of Respondents.” This caption took me by surprise because during my time in the House General Counsel’s Office amicus briefs reflecting House institutional positions were filed in the name of the Bipartisan Legal Advisory Group (BLAG), rather than in the name of the House itself (unless the House actually voted on the matter, which rarely if ever happened).

It turns out that I had somehow overlooked a small but potentially important change to House rules which took place in 2015 at the outset of the 114th Congress. House Rule II(8), which provides the authority for the House Office of General Counsel, was amended to include the following subparagraph (b):

There is established a Bipartisan Legal Advisory Group composed of the Speaker and the majority and minority leaderships. Unless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.

Continue reading “BLAG’s Authority to Represent the House in Court”

Court Rejects Justice Department Plan to Avoid the Merits of House’s Obamacare Lawsuit

Yesterday Judge Collyer rejected the Justice Department’s motion to certify for interlocutory appeal her ruling that the House has standing to pursue its claim that the Obama administration has illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the Affordable Care Act. The Justice Department had candidly admitted that it wanted an immediate appeal in part to avoid the “potential political ramifications” of an adverse judgment on the merits, which it seems to fully expect. See DOJ Reply Brief at 7.

The court, however, apparently did not think that saving the administration from the political embarrassment of a loss on the merits was a valid reason for certification. Instead, it emphasized that allowing an immediate appeal was unnecessary because the merits of the case can be resolved quickly. The “facts are not in dispute,” the court notes, and “[d]ispositive motions can be briefed and decided in a matter of months—likely before an interlocutory appeal could even be decided.”

The judge set an aggressive briefing schedule that will be complete by January 18. As much as the administration would like to avoid the question of where it got the legal authority to spend billions of taxpayer dollars, it better start thinking of its defense.

Congressional Standing to Protect the Power of the Purse

Do you remember how last summer I suggested the House’s odds of prevailing (in particular, with respect to standing) in a potential Obamacare lawsuit were in the vicinity of the proverbial snowball’s chance in hell? You don’t? Good, because that turns out to be not exactly correct.

To be fair (to myself), I was discussing a somewhat different lawsuit than the one the House ended up bringing. As originally explained by Speaker Boehner, the purpose of the suit was “to compel the president to follow his oath of office and faithfully execute the laws of our country.” Specifically, it was understood that the proposed lawsuit would “focus on the Obama administration’s implementation of the Affordable Care Act, particularly the failure to implement the employer mandate in accordance with the January 1, 2014 effective date set forth in the law.”

The House ultimately ended up bringing suit against the Secretaries of HHS and Treasury for disregarding the employer mandate deadline specified in the ACA and for reducing the statutory percentage of employees who are required to be offered insurance under that mandate. These are essentially the claims we anticipated before the suit was filed (although the House wisely decided to bring them against cabinet officials rather than the president).

In addition to these employer mandate claims, however, the House alleged that the defendants had illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the ACA. Such payments were made pursuant to section 1402 of the ACA in order to compensate insurance companies for reducing the out-of-pocket cost of insurance for lower income beneficiaries.

According to the House’s complaint, payments under section 1402 must be funded through the normal annual appropriations process. Although the administration initially recognized this by submitting an FY 2014 appropriations request for these payments, it changed its position after Congress refused to appropriate the funds. Beginning in January 2014, the administration drew and spent money from permanent appropriations to make the section 1402 payments. The House maintains that this was illegal and unconstitutional because there was no permanent appropriation that covered these payments.

Continue reading “Congressional Standing to Protect the Power of the Purse”

Congressional Standing to Sue: A Response to Grove and Devins on the History of Congressional Litigation

William and Mary law professors Tara Leigh Grove and Neal Devins have written this article arguing for “a limited congressional power to represent itself in court.” Specifically, they argue that while the House or Senate may enforce subpoenas (including subpoenas directed to the executive branch) in court, neither house may intervene in federal litigation to defend the constitutionality of federal statutes where the executive branch refuses to do so.

Professor Jack Beermann responds to Grove and Devins here. He disagrees with one of their conclusions, noting “there is no constitutional provision that can fairly be interpreted to prohibit Congress or one House of Congress from defending the constitutionality of a duly enacted federal statute.” Moreover, although Beermann agrees with Grove and Devins that the House or Senate may litigate in support of the investigatory power, he largely disagrees with their reasoning on this point also.

I think Beermann has by far the better of this argument, and it is tempting to let the matter rest there. But I think it worthwhile to correct at least one part of their thesis that Beermann accepts largely without challenge. Grove and Devins contend that the history of congressional involvement in litigation supports the distinction they draw between the investigatory power and other types of cases, including the defense of the constitutionality of federal law.  They say:

Historical practice supports our argument for a limited congressional power to represent itself in court. From 1789 until modern times, the House and the Senate asserted the power to conduct investigations and to litigate any disputes related to those investigations. By contrast, Congress historically delegated control over all other federal litigation to the executive. That was true even when the executive declined to defend a federal law. Although members of Congress occasionally participated as amici in such cases, neither Congress nor its components asserted the power to intervene on behalf of federal laws. This historical pattern remained unchanged until 1983, when the Supreme Court—with virtually no explanation—permitted intervention by the House and Senate counsel in INS v. Chadha.

This description, however, is misleading. To understand why, it is helpful to focus on Congress’s overall practices with regard to litigation in the pre-Watergate era. During the 1970s, particularly during Watergate itself, Congress became (somewhat) more litigious, reflecting factors such as (1) the increasing litigiousness of society itself, (2) an increasing tendency to see congressional-executive disputes as essentially legal in nature and (3) the development of institutional legal offices in both Houses. The intervention of the House and Senate counsel in the 1983 Chadha case must be seen against that background.

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