Is a Lawsuit Really the House’s Only Remaining Option?

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, including the power to write new laws, repeal old laws, disapprove regulations and attach riders to appropriations bills. She also noted the specific powers invested in the Senate, such as its ability to “put nominees’ feet to the fire” during the advice and consent process. Finally, she cited the House’s constitutional authorities with respect to the executive: “we investigate, hold oversight hearings and we sometimes impeach.”

There is no question that these are powerful tools, potentially powerful anyway, and I think I have already made clear my view that a lawsuit is a very poor option for the House to employ. Nonetheless, it is difficult to see how the House could effectively use some of these methods to address the employer mandate delay. Obviously, it cannot use the Senate’s authorities. It is also hard to see how it could rewrite the law (even assuming the Senate and the President’s cooperation) to remedy the problem. After all, the House does not object to the policy embodied in the employer mandate delay; it objects to the fact that the administration adopted the policy without congressional authorization. Indeed, one of the House’s “injuries” is that the administration opposed any congressional effort to change the law so as to authorize the action it was taking.

Most of the discussion of alternative remedies at the Rules Committee hearing revolved around the power of the purse. But no one explained exactly how the House might use the power of the purse in this situation. In the first place, the spending power is just political leverage; it works the same for policy disputes and legal disagreements. But the political leverage only works to the extent it relates to something the public really cares about; abstract institutional disputes between the branches will hardly qualify. Indeed, even when the public supports Congress’s goal, using the spending power as leverage is tricky. Congress wasn’t too successful in using the power of the purse to control the executive’s conduct of an unpopular war in the last administration, as Slaughter may recall.

Now I do like the Scalia/Ginsberg suggestion that funds for White House staff be cut off, and I wonder why the House doesn’t at least try something like that. Presumably the public wouldn’t be outraged by a reduction of the White House travel budget or the like. Maybe Congress is worried that the White House would demand a reduction in leg branch appropriations in return. In any event, using the appropriations process in this way would require majority support in both chambers, if not a supermajority sufficient to overcome a veto. And even if that existed (which it obviously does not), I am not sure how exactly it would be linked to the employer mandate delay.

So as a practical matter, I think the House is left with the unilateral authorities of investigation, oversight and impeachment. Investigation and oversight seem like appropriate responses because, as discussed in a prior post, further information about the decision-making process is needed to determine whether the House’s disagreement with the IRS is simply a garden-variety dispute over administrative law or whether it reflects a true invasion of the House’s constitutional authority

However, an ordinary committee investigation will not suffice here for at least two reasons. First, the Speaker has already made a decision to elevate this matter beyond a routine oversight issue, and he wants the House as a body to weigh in. If it were sent to a committee for investigation, it would just become one of many ongoing investigations and would quickly become bogged down in the partisan muck. Second, it is very likely that the administration would refuse to produce all (or perhaps any) information regarding the decision-making process on grounds of deliberative process, attorney-client and/or presidential communications privilege.

There is another way, though. The House has a well-established and time-honored method of obtaining important information from the executive branch. The resolution of inquiry is a privileged resolution that seeks information from the president or a department head. Although it is not uncommon for such resolutions to be introduced (CRS counts 290 from 1947 to 2011), most often in recent years by members of the minority party, the House has not adopted such a resolution since 1995.

A resolution of inquiry is not a “legal” device like a subpoena, but an assertion of the House’s role in the constitutional structure, which would seem to be what is called for under the circumstances. As CRS notes, “compliance by the executive branch with the House’s request for factual information in such a resolution is voluntary, resting largely on a sense of comity between co-equal branches of government and a recognition of the necessity for Congress to be well-informed as it legislates.”

A resolution of inquiry could be addressed to Secretary Lew, directing him to produce all documents related to the decision to delay the employer mandate. (A similar resolution could be directed to President Obama, although it is traditional that resolutions to the president “request” rather than “direct” the production of information).

Would such a resolution work? Possibly, but only if the House were united in the resolution. The question then is whether Representative Slaughter and her colleagues would support such a resolution. If they are sincere about wanting to protect the House’s institutional prerogatives, I don’t see why they would not. And if they refuse, at least the Speaker would have tried to use more traditional methods before proceeding with his lawsuit.

Of course, there is no legal penalty for refusing to comply with a resolution of inquiry. But if Secretary Lew were to refuse to comply with the resolution, the House would logically proceed to use its last constitutional tool, one where it exercises judicial and not merely legislative authority, namely an investigation into whether the Secretary should be impeached.

 

Halbig/King and the House’s Lawsuit against the President

As you have no doubt heard, two circuit courts issued divergent opinions yesterday on the same administrative law question, namely the validity of an IRS rule extending tax subsidies to health insurance purchased on the federal exchange. These decisions nicely illustrate the point I was making in my last post regarding the nature of administrative law decisions and the extent to which a decision on the merits of the employer mandate delay would or would not vindicate the House’s constitutional interests.

In Halbig v. Burwell, the D.C. Circuit held the IRS rule invalid because it conflicts with the unambiguous language of the Affordable Care Act, particularly section 36B, which authorizes tax subsidies only for insurance purchased on “an Exchange established by the State.” The government argued that the statute taken as a whole reveals Congress’s intent that subsidies be available on both the federal and state exchanges. Any other conclusion, it contended, would generate an absurd result and be inconsistent with the ACA’s purpose and legislative history. Judge Griffith, writing for himself and Judge Randolph, found that the government’s arguments were insufficient to overcome the clear statutory text.

On the other hand, in King v. Burwell, the Fourth Circuit held that the language of the ACA, taken as a whole, was ambiguous on the question of whether tax subsidies applied to the federal exchange. The court acknowledged that the plaintiffs’ position made a “certain sense” and “accords more closely” with “a literal reading of the statute,” but after reviewing all relevant statutory provisions as well as the ACA’s structure, purpose and legislative history, it concluded that “we are unable to say definitively that Congress limited the premium tax credits to individuals living in states with state-run exchanges.” Instead, the court applied Chevron deference to the statutory interpretation adopted by the IRS in its regulation, thus upholding the agency’s decision to extend tax subsidies to insurance purchased on the federal exchange.

The two courts therefore reached different conclusions, but the various judges who have weighed in on the controversy (so far) reflect more than two views. The D.C. Circuit majority thought the ACA unambiguously prohibited the IRS from extending tax subsidies to insurance bought on the federal exchange. The Fourth Circuit majority, along with Judge Edwards dissenting in Halbig, thought that the ACA did not resolve the issue one way or the other and that the IRS was therefore free to determine whether or not tax subsidies should apply on the federal exchange. However, Judge Davis, concurring in King, found that Congress did resolve the question in the ACA and that the IRS was therefore required to adopt the interpretation that it did. And none of the judges appeared to agree with Judge Friedman, the lower court judge in Halbig, who found that the ACA unambiguously supported the IRS’s position.

In his Rules Committee testimony, Professor Turley cited the tax subsidy issue in Halbig as an example of Congress addressing an issue with a “lack of ambiguity” and the administration deciding to change Congress’s policy decision through a regulation. Turley expressed the hope that by bringing such cases to the courts, the House could obtain some sort of clear demarcation of congressional versus executive authority. Certainly the results in Halbig/King so far suggest this is a forlorn hope.

Even if a majority of the Supreme Court ultimately invalidates the IRS regulation, I don’t see that such a decision would expand or protect congressional power in some fundamental way. No one disputes that Congress could have resolved the issue through the ACA; the question is simply whether it did so. Indeed, it is arguable that the Halbig/King cases will expand executive authority by applying Chevron deference to an IRS determination that may not deserve it.

Just as importantly, even Judge Griffith’s opinion does not address, at least in any kind of direct way, the House’s constitutional concern that President Obama is failing to take care that the laws be faithfully executed. The D.C. Circuit concludes that the plaintiffs have the “better of the argument” as the tax subsidy issue, but it does not suggest that IRS (much less the President) promulgated the regulation in bad faith.

In sum, if the House were to sue regarding the employer mandate delay, the best it could hope for would be a court decision holding that delay to be invalid. But as I mentioned before, courts invalidate agency regulations all the time. How would one more such ruling change the balance of power between the branches?

The Employer Mandate Delay: A Question of Administrative Law or Constitutional Faithfulness?

With the background of the last two posts, let’s consider whether “the President acted beyond his authority to execute the laws” by delaying the employer mandate, to paraphrase the question asked at the House Rules Committee hearing. Or, rather, let’s separate this question into two.

The first is whether the delay of the employer mandate was “legal.” This is the question that a court would ask if the issue were properly before it. For example, suppose that an employee sued his employer, alleging that he is entitled to employer-provided health care in 2014. Like Professor Dellinger, I am unsure why an employee couldn’t bring such a suit in reality, but for present purposes just assume that such a suit would present a justiciable controversy.

The employer would argue that its obligation under the ACA is contingent upon regulatory action (implementation of the reporting requirement) that has not yet occurred and further that the Secretary of the Treasury has the authority under IRC Section 7805(a) to provide transition relief in the implementation of a law relating to taxation. Providing a full evaluation of the merits of this argument would require more time and research than I wish to devote to the matter. Suffice to say that I personally would not wager a significant sum on the outcome either way, but I would be particularly loath to bet on the administration’s theory that Section 7805(a), which makes no reference to “transition relief” at all, somehow gives the Secretary authority to provide such relief in contravention of specific statutory mandates.

Note that the issues in my hypothetical lawsuit might be slightly different than if there were a direct challenge to the legality of the Treasury Department’s regulatory action under the Administrative Procedures Act, in which case the court might be more inclined to defer to the agency’s interpretation of its obligations under the law. For example, it is possible, as Professor Bagley observes, that a court would conceptualize the action simply as an exercise of enforcement discretion, rather than an attempt to waive legal obligations set forth in law. In other words, the Treasury Department did not actually delay the employer mandate (the story would go), but merely announced its intention not use scarce resources to collect penalties against employers who violate the mandate in the first year. This may not ultimately be a persuasive argument (Bagley isn’t persuaded), but a court is unlikely to view it as frivolous either.

In short, the courts will likely view the question of the “legality” of the employer mandate delay as the type of routine administrative law issue they face every day. This, more than a full-throated defense of the administration’s legal position, was the point Simon Lazarus and Professor Dellinger were making at the Rules Committee hearing. After all, every administration must interpret and apply thousands of complex statutory provisions (often conflicting and/or poorly drafted, to boot) every day. Even if an administration were just “calling balls and strikes,” to use Chief Justice Roberts’ phrase, it would inevitably be judged to have violated the law on a fairly routine basis. So even if the courts were to declare the administration’s action with regard to the ACA illegal, what’s the big deal?

This merely underscores that the question the House wants answered is not the question the courts will answer, even if a justiciable case were to be brought by a plaintiff with standing. They will not issue a decision on whether the Secretary, much less the President, has “faithfully executed the laws.” They will decide (at most) whether a particular administrative regulatory action complies with the law. Indeed, they may not even decide that, but merely conclude that the action is of the kind where the court should defer to the agency’s judgment as to whether or not it complies with the law.

Continue reading “The Employer Mandate Delay: A Question of Administrative Law or Constitutional Faithfulness?”

Who is Responsible for the Employer Mandate Delay?

There were a couple of things missing from the testimony regarding the legal merits of the employer mandate delay at Wednesday’s Rules Committee hearing. The first was any reference to the legal authority claimed by the administration when it announced the initial delay of the employer mandate under the Affordable Care Act. This is surprising because Mark Mazur, Assistant Secretary of the Treasury for Tax Policy, was very specific in explaining the legal basis claimed for the administration’s action.

Mazur’s letter of July 9, 2013 to the Honorable Fred Upton, Chairman of the House Energy and Commerce Committee, explains the decision “to provide transition relief with respect to three provisions of the ACA: reporting by certain employers under section 6056 of the Internal Revenue Code (“the Code”); reporting by insurance companies, self-insuring employers, and other entities that provide health coverage under section 6055 of the Code; and the employer shared responsibility provisions under section 4980H of the Code.” This “transition relief” meant “no employer shared responsibility payments will be assessed for 2014,” although employers were “encouraged” to “maintain or expand health coverage for 2014.” IRS Notice 2013-45. In effect, the Treasury Department waived the legal obligation of the employer mandate, which under the ACA was to take effect January 1, 2014, for a one-year period.

Mazur’s letter is succinct with regard to the legal authority for this action: “The Notice is an exercise of the Treasury Department’s longstanding administrative authority to grant transition relief when implementing new legislation like the ACA. Administrative authority is granted by section 7805(a) of the Internal Revenue Code.”

That’s it. That’s the entire claimed legal justification for the employer mandate delay: section 7805(a) of the Internal Revenue Code. But I did not hear that code section mentioned once during all of the Wednesday’s testimony. Instead, there was a good deal of discussion, much of it in fairly vague terms, about general principles of administrative law that recognize some agency discretion to adjust statutory deadlines in a “reasonable” fashion. Whatever the merits of that legal position, it was not the justification offered by the Obama administration to Congress.

Section 7805(a) provides, in its entirety, as follows:

Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.

The one thing that is very clear from this language is the identity of the person empowered to prescribe the regulations referred to by the section. It is the Secretary of the Treasury. Not the President. Not the Assistant Secretary for Tax Policy. Not anyone the Secretary might care to designate. Indeed, one might plausibly read the section as not providing substantive regulatory authority at all, but simply as identifying the Secretary as the default authority for issuing all rules and regulations not expressly delegated to another official.

Yet during the entire Rules Committee hearing, I do not believe I heard a single reference to the Secretary, either by name or title. In contrast, there were many, many statements from both the majority and minority side ascribing the relevant decisions to the President.  See, e.g., Written Statement of Simon Lazarus (“[T]he President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration’s judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA’s framers. As a legal as well as a practical matter, that’s well within his job description.”).

This is very peculiar. Whatever the scope of the authority provided by Section 7805(a), that authority clearly falls within the Secretary’s job description, not the President’s. Constitutional scholars, of course, have long argued the extent to which department heads and other executive officials can be given legal duties and authorities insulated from presidential oversight (the “unitary executive” debate), but that is a far cry from treating the Secretary of the Treasury as if he were the Charlie McCarthy to the President’s Edgar Bergen (yeah, I know, I’m old).  Hamilton must be turning in his grave.

Moreover, there is no indication in Mazur’s letter to Chairman Upton that President Obama had anything to do with the decision to extend the employer mandate. The letter is rather sketchy on the details of the decision-making process, but it clearly indicates that the impetus for the decision were “concerns about complying with the reporting requirements and the time needed to implement them effectively.” The Treasury Department evidently felt that there was not enough time to implement the reporting obligations of the law in a way that would avoid imposing burdensome or impractical requirements on the business community.  Moreover, Mazur makes it clear that the decision to extend the employer mandate was simply a necessary result of delaying the reporting requirements. See 7-7-13 Letter at 2 (“We recognize that this transition relief will make it impractical to determine which employers owe shared responsibility payments (under section 4980H) for 2014.”).

If Mazur’s explanation is even close to being true, it is apparent that President Obama could not have played a prominent role in making the decision to extend the employer mandate. Surely no one thinks that Obama was involved in drafting or evaluating the reporting requirements for employers and insurance companies, any more than he was writing code for healthcare.gov. The idea of extending the reporting deadlines, and as a consequence the employer mandate, would have had to originate with the Treasury officials directly responsible for these aspects of the law, and those officials presumably conducted a policy and legal analysis of this alternative among others for consideration by the Secretary of the Treasury. No doubt, given the policy and political importance of the issue, the Secretary presented his decision or proposed decision to the White House for approval, but this should have occurred well after the Treasury Department had thoroughly vetted the issue.

From this it should be apparent that the official accountable to Congress, at least in the first instance, for the decision to delay the employer mandate is Jacob Lew, the Secretary of the Treasury. Any analysis of the House’s remedies with regard to this decision must begin with that understanding.

Some Preliminary Thoughts on the House Rules Hearing

Last Wednesday, July 16, 2014, the House Rules Committee held a five-hour hearing to consider a draft resolution “providing for authority to initiate litigation for actions by the President inconsistent with his duties under the Constitution of the United States.” It has been decided, although it is unclear whether this decision has yet been formalized in any way, that the potential litigation will 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.

Notwithstanding some media reports that focused on trivialities (see, for example, Dana Milbank’s snarky and unfair coverage of the hearing as “an amateur hour—or an amateur five hours”), there was a good deal of serious discussion and more agreement than might have been expected on some important points. One point in particular stands out: every witness and member who spoke to the issue seemed to agree that there has been a serious erosion of congressional power in recent decades and that Congress has failed to act in self defense when faced with presidents who seek to aggrandize their power at the expense of the legislative branch.

Not surprisingly, this was most evident from the majority members of the Committee, who repeatedly expressed concern about the increasing power of the executive branch, and the majority’s star witness, Professor Jonathan Turley, who testified that the rise of an “uber-presidency” is causing our constitutional system to change in a “dangerous and destabilizing way.” Turley said the executive branch has “bled away” a lot of congressional authority and argued that the House must “take a stand” to re-establish some degree of constitutional balance.

But these concerns were not limited to the Republican side. For example, when Turley said that the Framers expected that the House would stand up for its institutional prerogatives, Representative Louise Slaughter, the Ranking Member, nodded in agreement. Although Slaughter indicated in no uncertain terms that she would not be supporting the resolution, she also said there were “genuine issues of executive overreach” by “modern presidents,” a category from which she did not exempt the incumbent.

The minority witnesses also acknowledged the problem. Simon Lazarus of the Constitutional Accountability Center recognized the relative decline of Congress with respect to the other two branches as a development that “definitely has occurred” and is “regrettable.” Professor Walter Dellinger, who like Lazarus was called by the minority in opposition to the resolution, also acknowledged that there has in fact been an erosion of congressional power in recent years. At Dellinger’s words, Slaughter and Representative Jim McGovern both nodded in vigorous agreement, with McGovern expostulating “yes, yes” or something to that effect.

There was also a good deal of agreement on the difficulty that the House would face in trying to establish standing to bring such a lawsuit. Although Professor Elizabeth Foley gamely made the case that the courts ought to recognize the House’s standing under the circumstances presented, no one (with the possible exception of Foley herself) appeared to think this was a likely outcome. Turley, for example, acknowledged that the President “has the advantage on standing.” Lazarus suggested that while there was some possibility the courts might recognize the House’s standing, everyone would agree it would be an “uphill climb.” Meanwhile, Slaughter and Dellinger had a field day citing statements by conservatives hostile to legislative standing in general and to this lawsuit in particular. Slaughter, for example, quoted Andrew McCarthy’s description of the lawsuit as “feckless” and his warning that the House’s theory of standing would lead to “vexatious congressional lawsuits.” The Republican members of the committee didn’t so much take issue with these views as argue that they have no other viable options to contain the expansion of executive power.

But is it true that there are no other viable options? To answer that question, we must drill down on the legal issue presented by the extension of the employer mandate. Which I will take up in my next post.

 

The House All In on Sovereign Immunity

The House Ways & Means Committee has filed its response to the SEC’s enforcement action (see here and here). The House’s brief sheds some, though not much, light on its argument that the doctrine of sovereign immunity bars the subpoenas in question.

The House relies primarily on a Second Circuit case, In re SEC ex rel Glotzer, 374 F.3d 184 (2d Cir. 2004), which held that “a party seeking judicial review of an agency’s non-compliance with a subpoena must first exhaust his or her administrative remedies pursuant to APA § 704.” Glotzer involved two subpoenas issued by a party (specifically Martha Stewart) in a federal civil lawsuit to (ironically) SEC attorneys. An SEC official considered the subpoenas in accordance with the agency regulations and determined that the attorneys should not be authorized to testify. Rather than seeking further agency review, as required by the regulations, Stewart sought direct judicial enforcement by the district court in which the civil case was pending.

The Second Circuit found that the district court lacked jurisdiction to enforce the subpoenas. It relied on circuit precedent establishing that a motion to compel an agency to comply with a subpoena implicates the doctrine of sovereign immunity and therefore such compulsion may take place only in accordance with the federal government’s waiver of sovereign immunity in the APA. Because the APA requires exhaustion of administrative remedies before judicial review may occur, the Second Circuit concluded that the jurisdictional pre-requisite for judicial review had not been met.

The House’s application of this decision is straightforward. The doctrine of sovereign immunity applies to Congress (several circuits have so held) and therefore subpoenas cannot be enforced against Congress absent a waiver. The APA does not apply to Congress and so does not waive its sovereign immunity. The SEC having identified no other valid waiver, the House argues, the subpoenas cannot be enforced, period. Notably, the House brief does not discuss the possibility that Rule VIII constitutes a waiver and, in fact, does not mention the rule at all.

It seems to me unlikely that the Second Circuit, which purported to be addressing a narrow question of first impression, would take its decision as far as the House would. The court mostly seemed concerned that a litigant not be able to circumvent an agency’s established procedures for responding to subpoenas. This is not an issue with Rule VIII, where the administrative procedures have already been exhausted. Moreover, the Second Circuit construed Stewart’s motion as one to compel the agency itself, rather than merely the subpoena recipients, see footnote 7, which may provide a ground for distinguishing two cases. In any event, nothing in the Glotzer decision suggests that the court expected it to have the far-reaching implications that are entailed by the House’s interpretation.

If the House were correct, it would mean that no subpoena, administrative or judicial, could be enforced against any legislative entity or a legislative official acting in an official capacity. It would seem, for example, that the grand jury subpoena to a Senate aide in Gravel v. United States, 408 U.S. 606 (1972), would have been barred by sovereign immunity. The same would be true, presumably, of the civil subpoena in Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995), as well as the subpoenas in many of the other Speech or Debate cases discussed in the House’s brief. None of these cases even discuss sovereign immunity, which, if a substantial jurisdictional question, should have been considered by the courts even if not raised by the parties.

There are other implications of the House’s position which are, to put it mildly, surprising. What about subpoenas to executive branch officials not covered by the APA, such as the criminal trial subpoena to President Nixon? See United States v. Nixon, 418 U.S. 683 (1974). For that matter, what about congressional subpoenas to executive branch officials? Are they barred by sovereign immunity as well?

Perhaps there is a limiting principle in the House’s brief that is not apparent to me. For the moment, lets just say that nothing has changed my deep skepticism about this argument.

 

The House’s Sovereign Immunity Objection to the SEC Subpoenas

As discussed in my last post, the SEC is suing the House Committee on Ways & Means and Brian Sutter, a committee staffer, to enforce two administrative subpoenas, one to the committee seeking documents and one to Sutter seeking both documents and testimony.

A May 19 letter from the House General Counsel lays out 11 objections to the subpoenas. The first objection, which I want to address today, is that “[e]ach of the subpoenas is barred by the sovereign immunity, never waived, that attaches to the Committee and Mr. Sutter in their official capacities.”

If I understand this objection correctly, it means that the House is asserting that the SEC is barred from compelling the production of official House documents or testimony related to the official functions of the House, even if that information is not constitutionally privileged and no matter how relevant it might be to the SEC’s investigation.

What might be the basis of such an objection? Well, during my time in the House Counsel’s office, we dealt with administrative subpoenas from several different federal agencies. We objected to these subpoenas based on the fact that House Rule VIII, which authorized compliance with subpoenas issued by courts, did not apply to administrative subpoenas. One aspect of this argument (I think) was that Rule VIII’s silence meant the House had not waived its sovereign immunity with regard to administrative subpoenas.

Now frankly sovereign immunity never struck me as exactly the right rubric for this argument. Historically the House (like the Senate) has maintained that its consent is needed before another branch of government can obtain documents from its files or testimony regarding its official functions, but this position has been grounded in the separation of powers. Thus, Deschler explains that the attempt by “another coordinate and coequal branch of government” to exercise authority over the House by serving process upon it “has historically been perceived by the House as a matter intimately related to its dignity and the integrity of its proceedings, and as constituting an occasion for the raising of the question of the privilege of the House.” 3 Deschler’s Precedents § 14. This view held that each branch of government had the constitutional authority to make the final determination regarding the disposition of its own documents and information. See Nixon v. Sirica, 487 F.2d 700, 742 (D.C. Cir. 1973) (MacKinnon, J., concurring in part and dissenting in part) (“It thus appears that the judiciary, as well as the Congress and past Presidents, believes that a protected independence is vital to the proper performance of its specified constitutional duties.”)

Be that as it may, in 1977 the House first adopted the predecessor to Rule VIII, providing standing authority to comply with judicial subpoenas. This rule obviated the need for the House to authorize compliance with such subpoenas on a case-by-case basis (which remains the practice in the Senate to this day). To the extent that the doctrine of sovereign immunity applies, the rule also presumably acts as a waiver of this defense so long as a subpoena meets the criteria set forth in the rule.

As noted, there remained a problem with respect to administrative subpoenas because Rule VIII did not address them. Thus, whether viewed as a question of sovereign immunity, separation of powers, or both, administrative subpoenas to the House were arguably barred and could not be complied with absent a specific House resolution authorizing compliance. (The merit of this position was never tested in court, to my recollection).

In the 107th Congress, however, Rule VIII was broadened to cover administrative subpoenas. This was done at the suggestion of the House Counsel’s office precisely because there seemed to be little sense from a policy standpoint (as well as some legal risk) in maintaining that administrative subpoenas were categorically barred.

Given that Rule VIII now expressly authorizes (and indeed requires, if the rule’s prerequisites are satisfied) compliance with administrative subpoenas, it is a little difficult to understand how the House could sustain a sovereign immunity objection. Perhaps a clue is the citation in the May 19 letter to Lane v. Pena, 518 187, 192 (1996), which it describes as holding “any waiver of sovereign immunity must be ‘unequivocally expressed in statutory text.’” Rule VIII, of course, is not a “statute” and thus, it might be argued, its language does not count for determining whether sovereign immunity has been waived.

If that’s the argument, it does not strike me as a winner.

The Office of Compliance and a Mysterious Rule VIII Notice

In case you forgot, Rule VIII is the House rule that governs when a judicial or administrative subpoena is served on a member, officer or employee for documents or testimony relating to the official functions of the House.  The rule requires that notice be given to the House, through the Speaker, whenever such a subpoena is properly served. Under paragraph 3 of the rule, the subpoena recipient is required to make three determinations regarding the subpoena: (1) whether it is a proper exercise of jurisdiction; (2) whether it seeks information that is material and relevant; and (3) whether it is consistent with the rights and privileges of the House. These determinations are also supposed to be provided to the Speaker and spread upon the Congressional Record.

Sometime this spring a subpoena from the Office of Compliance was served upon the “House Office of Payroll and Benefits” in the Chief Administrative Officer’s office. The OOC is the entity established to administer and enforce the employment laws as they apply to Congress under the Congressional Accountability Act. OOC administrative proceedings are confidential so there is no publicly available information as to the case that precipitated this subpoena. Nor is there any publicly available information as to what documents were sought by the subpoena.

Although Rule VIII provides that the Speaker “shall generally describe the records or information sought” when informing the House of a subpoena, this provision is routinely ignored. Instead, when a subpoena is initially received, it is forwarded to the House Counsel’s office, which provides written notice to the Speaker, the Minority Leader and the Parliamentarian. When the subpoena was addressed to a House officer, the notice (known as a “3 amigos,” don’t ask me why) will attach a copy of the subpoena. Thus, while the bipartisan House leadership will be informed of the nature of the documents requested, the House at large is not.

We can surmise that the subpoena in question stemmed from an administrative proceeding brought against a House employing office under the CAA. Such proceedings are fairly rare. According to the most recent OOC report, for example, there were a total of 14 requests for administrative hearings in FY 2012. That total includes complaints filed against both House and Senate employing offices, as well as congressional support agencies like the Capitol Police and the Architect of the Capitol. There are probably only a handful of administrative complaints filed each year against a House employing office.

Continue reading “The Office of Compliance and a Mysterious Rule VIII Notice”

Should SCOTUSblog Get a Credential? (Or Everything You Always Wanted to Know About the Congressional Press Galleries But Were Afraid to Ask)

SCOTUSblog has filed this letter with the Standing Committee of Correspondents regarding the Standing Committee’s decision not to renew Lyle Denniston’s membership in the congressional Press Galleries. Although the Standing Committee only determines whether an applicant may be admitted to the House and Senate Press Galleries, such admission is apparently required before Denniston can obtain a Supreme Court credential, which is his main objective. For a thorough and interesting discussion of the background of this matter, see this article, which asks “Why Can’t SCOTUSblog Get a Credential?,” by Jonathan Peters in the Columbia Journalism Review.

To answer this question, we need to take a closer look at the rules governing the press galleries, such as they are. As Peters notes, there are actually four types of press galleries: (1) the Press Galleries (which we will refer to as the “Daily Press Galleries” for clarity’s sake); (2) the Periodical Press Galleries; (3) the Radio and Television Correspondents’ Galleries; and (4) the Press Photographers’ Gallery. The photographers’ gallery is different than the others because it is a single gallery, authorized only by the Senate Committee on Rules and Administration (hereinafter “the Senate Rules Committee”), with no counterpart in the House.

Denniston is applying for admission to the Daily Press Galleries, which are set aside for newspapers and other news organizations that publish daily. The Daily Press Galleries consist of a House Gallery and a Senate Gallery. Each is separately authorized under House and Senate Rules and each has a separate staff. However, they are jointly administered by the Standing Committee, and there is a single set of rules and a single admissions process for both galleries. The Standing Committee’s authority comes from the House and Senate Rules, and it is ultimately subject to the direction and control of the Speaker, with regard to the House Gallery, and the Senate Rules Committee, with regard to the Senate Gallery.

The Periodical Press Galleries and the Radio and Television Correspondents’ Galleries also consist of separate House and Senate Galleries, but, like the Daily Press Galleries, each has a single administrative body, a single set of rules and a single admissions process. The Periodical Press Galleries, for example, admit journalists employed by “periodicals that regularly publish a substantial volume of news material of either general, economic, industrial, technical, cultural, or trade character.” They are governed by the Periodical Press Gallery Rules and overseen by the Executive Committee of the Periodical Correspondents’ Association.

Why is it necessary to have four different types of press galleries, including a separate administrative body and rules for daily versus periodical reporters? Maybe there is a good reason, but I suspect the answer is the same one that explains why there is still a National Information Technology Service.

In any event, that is the overview of the congressional press galleries: seven galleries, seven sets of staff, four administrative bodies, four sets of rules, and two political overseers. All to govern a population the size of a large public high school. Welcome to Washington.

Now let’s examine the rules that govern Denniston’s application.

Continue reading “Should SCOTUSblog Get a Credential? (Or Everything You Always Wanted to Know About the Congressional Press Galleries But Were Afraid to Ask)”

Judge Bates Dismisses Rangel’s Lawsuit

Last week, as expected, Judge Bates dismissed Representative Rangel’s lawsuit against the Speaker, the Clerk and various former members and staff of the Ethics Committee. As the court notes in conclusion, “everything on Rangel’s wish list implicates insurmountable separation-of-powers barriers to the Court’s exercise of authority,” with the “most problematic [being] Rangel’s unprecedented view that this Court may order the House to, in effect, un-censure him.”

This is certainly correct, and I think the court’s 49-page opinion gives Rangel’s arguments rather more attention than they deserve. Dismissal was more than justified by the following points made in the opinion:

  1. Rangel sued the wrong party. The court points out that “Rangel’s reputational harm was not caused by any of the defendants but by the House as an independent body- and it is not a party to this action.” (slip op. at 11)
  2. An order against these defendants would not have redressed Rangel’s alleged injuries because the defendants have no power to alter the House’s Journal (the relief requested by Rangel) on their own. (slip op. at 35)
  3. Even if the House had been a party, the court lacks the power to order the House to take any action that would redress Rangel’s alleged injuries. “This Court has the same ability to order the House to edit its own Journal as it does to order the House to discipline one of its Members or to promulgate a particular Rule- none.” (slip op. at 35-36)
  4. All of the defendants were in any event immune under the Speech or Debate Clause. (slip op. at 36-44)

Unfortunately, Judge Bates was not content to rest his opinion on these points but also engaged in an extensive, unnecessary and rather confusing discussion of the political question doctrine. He concludes that Rangel’s claims are barred by the political question doctrine, but only because Rangel failed to state a viable constitutional claim in the first place. The political question doctrine, however, is designed to identify situations in which a non-judicial body has the final say on a constitutional issue. If it applies only because the court finds no constitutional issue to resolve, invoking the doctrine seems pointless. The court seems to think that directly reviewing Rangel’s claims on the merits, rather than as part of the political question analysis, would evince a “lack of disrespect” (I think it means lack of respect) for the House, but the price of this politeness is to make the political question doctrine even murkier than it is already.

On balance, though, this opinion should stand as a caution against challenging House disciplinary proceedings in court, and that’s a good thing. One final note—someone should bring to the court’s attention that Nixon v. United States, 506 U.S. 224 (1993) involved Judge Nixon, not former President Nixon. See slip op. at 33 (referring to “an ex-President challenging his impeachment in the courts.”).