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The Constitutionality of Remote Voting

As you may have heard, there is a virus going around and as a consequence Congress, and everything else, is shut down. Some (such as @danielschuman) have advocated Congress establish a process for remote voting in the event that members are unable to return to Washington in the near future. One idea is to allow members to deliberate and vote by online video conference.

In a staff report on the subject, the House Rules Committee briefly considered the constitutionality of a remote voting procedure, observing that it would be a “novel question for a court and there is no guarantee of a favorable ruling affirming its constitutionality.” Majority Staff Report Examining Voting Options During the COVID-19 Pandemic (Mar. 23, 2020). To my knowledge there has been no in depth analysis of this question so I am posting a few thoughts.

The relevant constitutional provisions begin with the requirement for Congress annually to assemble and remain assembled until both houses agree to end the session. The Constitution provides that “Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January.” U.S. Const., amend. XX, § 2; see also id., art. I, § 4, cl. 2. The term “assemble” (according to Johnson’s Dictionary) means “to bring together in one place” or “to meet together.”

Further, Article I provides that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn . . . to any other Place than that in which the two Houses shall be sitting.” U.S. const., art. I, § 5, cl. 4. Thus each house must normally sit in the same “place” as the other while Congress is in “session.”

Although the Constitution does not expressly define the “place” at which both houses normally sit, longstanding interpretation and practice establishes it to be the seat of government. See 1 Deschler’s Precedents, ch. 1, § 4. Since November 17, 1800, Congress has assembled and sat in the District of Columbia, which it had designated as the permanent seat of government. Id.; see also U.S. const., art. I, § 8, cl. 17 (authorizing Congress to acquire a District to “become the Seat of the Government of the United States”). As long as each house continues to sit within the seat of government, it does not need the permission of the other body to meet in a different physical location. See 1 Deschler’s Precedents, ch. 1, § 4 (“a simple House resolution suffices to adjourn the House to meet in another structure at the seat of government”); see also id., ch. 1, § 4.1; House Rule I (12) (d) (“The Speaker may convene the House in a place at the seat of government other than the Hall of the House if, in the opinion of the Speaker, the public interest shall warrant it.”).

The Constitution does not have any express requirements for where or how members must vote, but it provides that “a Majority of each [house] shall constitute a Quorum to do Business” and “a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members.”  U.S. const., art. I, § 5, cl. 1. This empowers each house to require the attendance of absent members at a specific location for purposes of “doing business” (e.g., voting). See House Rule III (1) (“Every Member shall be present within the Hall of the House during its sittings, unless excused or necessarily prevented, and shall vote on each question put, unless having a direct personal or pecuniary interest in the event of such question.”).

As a general rule, the question of a quorum is an internal matter for each house and does not concern the other. However, at the commencement of a congressional session “Congress is not ‘assembled’ until a quorum is present in both Houses, and each House has been notified of the quorum in the other.” 1 Deschler’s Precedents, ch. 1, § 2. Furthermore, while each house can adjourn from day to day, for the duration of the congressional session neither may adjourn for more than three days without the consent of the other. U.S. const., art. I, § 5, cl. 4. This has given rise to the practice of each house conducting “pro forma sessions” (performed by a single member who conducts a brief ceremonial session in the House/Senate chamber) every three days when Congress is effectively in recess.

One final provision of note is the president’s authority on “extraordinary Occasions” to “convene both Houses or either of them.” U.S. const., art. II, § 3. The authority to “convene” (defined by Johnson as “to call together; to assemble”) empowers the president to require the assembly of either or both houses at the seat of government as at the commencement of an ordinary congressional session.

What do these various provisions mean for remote voting? My tentative thinking is that nothing in the Constitution prevents either house from determining that a quorum exists when, for example, a majority of members are gathered on the Capitol grounds, rather than in the House or Senate chamber. Similarly, if either house wanted to allow members to vote from their offices, rather than on the floor, it is hard to see what provision would be violated. So long as the house is assembled at the seat of government and there is a reasonable method for determining the existence of a quorum if its absence is suggested, such a procedure appears to violate no constitutional prohibition.

True, the longstanding tradition is for members to deliberate and vote in a single room (with some exceptions, such as proxy voting), but it is hard to see why the quorum clause would be read to prohibit a majority from doing business while they are acting in concert (say while connected by videoconference) at the seat of government, rather than independently voting in the same room at different times. Thus, for example, if during the pandemic either house wanted to keep its members physically separated in one or more structures in the District of Columbia, they should be able to debate and vote electronically. Members would retain the ability to physically congregate if they chose, to access the chamber, and, with the agreement of a sufficient number, to commence an in-person session.

It gets dicier if members (or at least a majority of members) are not physically located in the District of Columbia. One problem is that the house has arguably adjourned to “another place,” though this concern could be resolved by obtaining the consent of the other body. A more difficult issue is that the house may not be  “assembled” or “convened” at all because it has not come together in any particular place. This may seem like a technicality in the context of virtual meetings, but I am not (entirely) sure that it is. Not having at least a majority of the body present at the seat of government, with the option of congregating personally, arguably changes the nature of legislative deliberations in a way that violates the spirit, as well as the letter, of Article I.

There is a possible workaround, however. If members vote to approve a particular measure by videoconference, this could be treated not as final passage , but as an interim step in the legislative process (sort of like the House Committee of the Whole). Final passage would occur at the pro forma session, when the measure would be deemed to be passed without objection. The downside of this procedure is that any member could show up and object, but that is also what ensures the process does not become a permanent virtual Congress.

I have not considered here the likelihood that courts would intervene if these procedures were challenged (presumably by someone injured as a consequence of legislation passed pursuant to the new process). Even assuming a constitutionally defective process, it is likely that the courts would show their customary deference to Congress in these sorts of procedural matters. I assume, however, that members of Congress wish to adhere as closely as possible to the letter and spirit of the Constitution regardless of judicial intervention.

 

 

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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”

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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?”

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Questions about OLC’s Role in Responding to House Subpoenas in the Impeachment Inquiry

On Monday I am participating in a Transparency Caucus program entitled “Shedding Light on the DOJ’s Office of Legal Counsel Opinions.” (It will take place at 2pm in Longworth; email Hannah.Mansbach@mail.house.gov if you would like to attend). In that connection, I want to raise an issue regarding OLC’s role in the administration’s decision not to cooperate with the House’s Ukraine investigation and the president’s defense with regard to the second article of impeachment (obstruction of Congress) which resulted from that decision.

The president’s trial brief in the Senate impeachment trial attached an OLC memorandum on “House’s Committees’ Authority to Investigate for Impeachment.” This memorandum, dated January 19, 2020, purported to memorialize oral advice previously given to the White House counsel regarding whether House committees “could compel the production of documents in furtherance of an asserted impeachment inquiry.” OLC Memorandum of 1-19-20 at 2. OLC “advised that the committees lacked such authority because, at the time the subpoenas were issued, the House had not adopted any resolution authorizing the committees to conduct an impeachment inquiry.” Id.

The OLC memorandum is a little fuzzy, however, as to when this advice was given. It is clear that the request for advice came sometime after the issuance of a series of subpoenas issued by House committees in late September and early October 2019. See OLC Memorandum of 1-19-20 at 2 (“Upon the issuance of these subpoenas, you asked whether these committees could compel the production of documents and testimony in furtherance of an asserted impeachment inquiry”): id. at 8  (“Following service of these subpoenas, you and other officials within the Executive Branch requested our advice . . .). The earliest of the subpoenas specifically referenced was on September 27 (to the Secretary of State), the second was on October 4 (to the Acting White House Chief of Staff), and the latest was October 10 (to the Secretary of Energy). See OLC Memorandum of 1-19-20 at 1-2.

The most plausible reading of the OLC memorandum is that the request for advice was made on or after October 10 or, at the earliest, on or after October 4, when the second subpoena was issued. Of course, it is possible that the memorandum refers inaccurately to “subpoenas” when the request was actually made after the issuance of the first subpoena on September 27. This seems unlikely, however, because OLC was undoubtedly aware of the significance of this issue and had no reason to suggest that the request was made later than it actually was.

The OLC memorandum indicates that it provided its initial advice sometime on or before October 31, when the House adopted Resolution 660, formally authorizing an impeachment inquiry. See OLC Memorandum of 1-19-20 at 39. It does not, however, provide any greater specificity on when it first advised the White House counsel and/or other executive officials of its legal conclusion that the subpoenas were invalid.

Why does this matter? Because on October 8, the White House counsel sent a  letter to the House flatly refusing to cooperate with the House’s impeachment inquiry. This letter raises a number of objections, many of which are political rather than legal in nature, to the impeachment inquiry. One of those objections, stated in a single conclusory paragraph, is that the inquiry is “constitutionally invalid”  because of the lack of any formal House vote on the matter. See Letter of Oct. 8, 2019 at 2-3. There is nothing in the letter, however, to suggest that the administration would provide information to the House even if such a vote were to occur; to the contrary, it indicates that the only way the administration would even discuss the possibility of providing information is if the House dropped its impeachment inquiry  and agreed “to return to the regular order of oversight requests.” Id. at 8.

For at least three reasons it seems highly unlikely that OLC had provided even its initial advice to White House counsel as of October 8. First, as already noted OLC probably had not even received a request at that point. Second, even if OLC had received the request as early as September 27, it hardly seems possible that it could have formed a responsible legal opinion by October 8, given that it purported to rest that opinion on an exhaustive historical survey of judicial, executive and legislative statements and practice, including nearly 100 House impeachment inquiries. See OLC Memorandum of 1-19-20 at 13-39; id. at 21 (referring to the “weighty historical record, which involves nearly 100 authorized impeachment investigations”). Third, there is no reference in the October 8 letter to any OLC advice on this issue, though it refers to OLC opinions on other issues it raises.

If the October 8 letter was sent before OLC had advised on this issue, it certainly undercuts the White House’s argument that the president was acting in good faith to protect the legitimate confidentiality interests of the executive branch and that he was relying on legal advice from OLC in doing so. See Senate trial brief of Donald J. Trump at 36 (“the legal principles invoked by the President and other Administration officials are critical for preserving the separation of powers– and based on advice from the Department of Justice’s Office of Legal Counsel”). It also raises the question whether OLC could provide independent legal advice when the president had already formally asserted a position on the issue.

Even if OLC did weigh in before the October 8 letter, it would be important to know how long it spent formulating its opinion before providing that advice. It is also important to find out whether OLC reviewed and approved the October 8 letter. Did OLC advise the White House counsel that the House should be informed that its objection to the impeachment inquiry was curable through a properly worded resolution? Is it consistent with the executive branch’s obligation of negotiating in good faith over information requests to conceal or misrepresent objections that could otherwise have been easily satisfied by the House?

Ventilating these issues would be a great first step toward transparency for OLC.

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A Negotiated Resolution for the Second Article of Impeachment

Professor Jonathan Turley has been extremely critical of the second article of impeachment against President Trump. Turley claims that the charge of obstruction of Congress is improper because the House failed to pursue judicial relief for the president’s failure to comply with its subpoenas and requests for information. He asserts that by not giving the White House an opportunity to challenge subpoenas the House “effectively made the seeking of judicial review a ‘high crime and misdemeanor.'”

I think Turley is wrong for a number of reasons, but whether he is right or wrong is not so important at this juncture. My concern is that the Senate will acquit the president on the obstruction of Congress charge without first hearing from witnesses or obtaining documents that were withheld from the House. This action would be (reasonably) construed as standing for the proposition that the president can withhold any information he pleases from Congress, regardless of the reason or whether any privilege is invoked.

Here Turley has a suggestion which is worth considering. (I made a similar suggestion independently so I will share the blame.) Senators could offer a motion to dismiss the second article on the condition that the White House makes available the witnesses and documents the Senate needs to properly evaluate the first article, abuse of power. In essence, this would allow the president to purge his contempt by agreeing to provide the disputed information, something that Congress routinely allows contumacious witnesses to do.

On one point I am not in agreement with Turley, however. He suggests that the White House should still have the opportunity to litigate privilege claims. This is impractical and improper. Assuming the White House is allowed to raise privilege claims as to specific questions or documents, going to a federal district judge for a decision is (1) inconsistent with the constitutional design, which gives the Senate the sole power to try impeachments; (2) totally impractical (is the Senate going to wait while each objection is litigated to the Supreme Court?); and (3) downright silly in a presidential impeachment trial. You have the (expletive deleted) chief justice sitting right there! Let him rule.

This solution has something for everyone. The president and his defenders get half of the charges dismissed. The House managers get the evidence they have demanded. The Senate majority leader gets an assurance the trial will not drag on indefinitely. There is at least a measure of transparency and accountability for the president’s misconduct. And the House and Senate preserve at least a measure of their authority and dignity.

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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”

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The Justice Department’s Broad New Attack on Congressional Standing

Ever since the January 3 D.C. Circuit oral argument in Committee on the Judiciary v. McGahn (which you can listen to here), I have been puzzling over the Justice Department’s position with regard to the issue of congressional standing. (I mean, that’s not the only thing I’ve been doing, in case you were worrying about my mental health.)

The Justice Department lawyer, Hashim Mooppan, made a point of stressing DOJ’s view that Congress lacks standing to sue anybody for anything, including suing private parties to enforce subpoenas or redress other informational injuries. As an alternative to this broader position, he offered the “narrower” view that Congress lacks standing to bring suits against the executive branch, arguing that history establishes that such interbranch disputes are to be resolved through the political process.

Judge Griffith, in particular, seemed somewhat taken aback by the broad position. As he pointed out, the Senate has long had statutory authority specifically authorizing it to enforce its subpoenas in court (though there is an exception for federal executive officials asserting authorized governmental privileges). See 28 U.S.C. § 1365; 2 U.S.C. §§ 288b(b), 288d. Mooppan said the Justice Department believes that statute to be unconstitutional, though he added it would be “more unconstitutional” if there were no exception.

Judge Griffith, of course, is intimately familiar with the Senate statute, having served as Senate Legal Counsel from 1995-99. While the Senate infrequently exercises this statutory authority, it has done so  on at least seven occasions since the statute was enacted in 1978. See Morton Rosenberg, When Congress Comes Calling 27-28 (2017). It does not appear that on any of these occasions, the most recent of which occurred in 2016, was the Senate’s standing challenged. See Senate Perm. Subcomm. on Investigations v. Ferrer, No. 16-5232 (D.C. Cir. May 16, 2017). That might be one reason why Judge Griffith was surprised by DOJ’s broad position.

Another reason he might have been surprised is that the Justice Department has not, as far as I can tell, ever taken this position before. This includes the briefs submitted in the McGahn case itself, which appear to advance only the narrower theory that “the Committee lacks Article III standing to seek judicial resolution of this interbranch dispute.” Br. for Defendant-Appellant at 14 (Dec. 9, 2019); Reply Br. for Defendant-Appellant at 2 (Dec. 19, 2019), Comm. on the Judiciary v. McGahn (D.C. Cir.) (No. 19-5331). Although at least one element of DOJ’s argument (relating to the nature of the injury) would be applicable to any subpoena enforcement, the overwhelming focus is on the interbranch nature of the dispute. See Br. of Defendant-Appellant, supra, at 14-33; Reply Br. of Defendant-Appellant, supra, at 2-12. More importantly, nowhere in its McGahn papers does DOJ explicitly state that congressional committees lack standing to enforce subpoenas against parties other than the executive branch.

This surely was not an accident. For more than two decades, the Justice Department has danced around the question of congressional standing to enforce subpoenas,  and in particular whether Congress has standing to enforce subpoenas against private parties and other non-executive branch actors. For example, in 2008 the Justice Department discussed the Senate’s statutory authority to enforce subpoenas and observed in a footnote that “[w]hether the Senate would have Article III standing for an action brought pursuant to 2 U.S.C. § 288 is, of course, a separate question.” Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in Opposition to Plaintiff’s Motion for Partial Summary Judgment on Counts I and II (May 9, 2008), Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008). But as far as I know DOJ never attempted to answer this question in Miers or any other case up until January 3, 2020.

So why, then, has DOJ chosen this moment to take a definitive stand on this issue?

I have a theory. But, first, some history will be helpful. I will cover that in my next post.

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Who Decides When the Chief Justice Presides?

A few days ago I tweeted the following in regard to the debate over whether President Trump has actually been impeached:

There is a simple way to resolve this. @senatemajldr should send a note to the Chief Justice, notifying him of the House vote. If the CJ shows up at the Senate the next day, Trump is impeached. If not, six more weeks of winter.

This was intended to be a joke. (In case you were wondering whether I know the difference between the chief justice and a groundhog). On second thought, though, it raises a couple of interesting points. (Well, I think they’re interesting. You can decide for yourself.).

First, while the debate over whether Trump has been impeached is largely rhetorical, there is a substantive constitutional question underlying it. Has the House completed the actions required to allow the Senate to commence an impeachment trial? Or is it necessary for the House to take additional steps (such as providing formal notice, appointing managers, or exhibiting the articles of impeachment) before the Senate may constitutionally exercise the power to try impeachments?

I emphasize the question of constitutional power, as distinct from the operation of the Senate’s impeachment rules, which themselves may require the House to provide formal notice before a trial may begin. These rules are subject to amendment or reinterpretation by the Senate, but there is also a constitutional limitation on the Senate’s authority which is beyond the power of that body to change. The Constitution implicitly forbids the Senate from trying an impeachment until its jurisdiction has been invoked by action of the House. Cf. Jefferson’s Manual Sec. LIII (“The Lords can not impeach any to themselves, nor join in the accusation, because they are the judges.). The question is whether the House’s impeachment vote is sufficient as a constitutional matter to trigger the Senate’s jurisdiction.

This question is not answered by the fact that the Constitution gives the House the sole power of impeachment and the Senate the sole power to try impeachments. Each house has exclusive authority to determine how to exercise its own power, but this does not mean it has the exclusive authority to determine when the power exists in the first place (or what the courts would call “jurisdiction to determine jurisdiction”). Such an issue would arise if the House attempted to impeach or the Senate attempted to try a person who claimed not to be subject to the impeachment power at all (e.g., a private citizen). It similarly arises if there is a dispute whether an individual has been impeached such that the Senate’s power to try the impeachment is invoked.

Let’s imagine then in the current situation that the Senate attempts to act upon the House’s impeachment of President Trump. The House could take the position that the Senate has not yet acquired jurisdiction and lacks the power to act. For the reasons noted above, this dispute would be distinguishable from  questions relating to the Senate’s authority to determine how to “try” an impeachment, which were found to be nonjusticiable by the Supreme Court. See Nixon v. United States, 506 U.S. 224 (1993). Nonetheless, it is unlikely that a court could or would arbitrate such a dispute between the houses.

This, however, is where the second interesting point arises. The Senate cannot exercise its power to try this impeachment without summoning the chief justice to preside. See Nixon, 506 U.S. at 230 (noting there are “three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried.”). If the Senate’s jurisdiction is in controversy, the House could ask the chief justice not to appear. Arguably, the chief justice would have to resolve the jurisdictional question before appearing in the Senate.

It is perhaps more likely that the chief justice would conclude that this motion should be presented to him in his capacity as presiding officer (e.g., after he has appeared and taken the oath). Suppose then that the chief justice, as presiding officer, decides that the Senate lacks jurisdiction. Should this ruling be appealable to the Senate? If the Senate overrules the chief justice, is he obligated to preside over a trial he believes to be constitutionally invalid? These questions have no clear answer and, as far as I know, there is no precedent to provide guidance.

These questions illustrate the difficulty the Senate would face if it attempted to unilaterally dismiss the impeachment (for want of prosecution or for any other reason) without the chief justice’s acquiescence. Notwithstanding the Justice Department’s suggestion to the contrary, the chief justice’s role in an impeachment trial is far more than merely administrative.

One might say that confusing the chief justice with a parliamentarian is almost as bad as confusing him with a groundhog. (Ok, that would be an odd thing to say, but you get the point.).

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The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial

The Constitution mentions the chief justice for one purpose only, and apparently it is so he can serve as Charlie McCarthy to Liz McDonough’s Edgar Bergen. Or so one would understand from the Department of Justice’s brief in In re Application of the Committee on the Judiciary, United States House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, currently pending before the D.C. Circuit.

Continue reading “The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial”