Two cases could restore constitutional equilibrium
WASHINGTON — The nation’s second-most important court, the U.S. Court of Appeals for the District of Columbia Circuit, sits at the foot of Capitol Hill, half a mile from where Congress sits and a mile from the White House. The court frequently referees disputes between the federal government’s political branches, and next Tuesday will be a portentous day there. The full court will hear oral arguments in two related and combined cases, the final resolution of which might occur on Capitol Hill, in the Supreme Court.
At issue is the already much-damaged equilibrium of the Constitution’s separation of powers. If both cases are decided correctly, the vitality of Congress will be enhanced and the pretensions of presidents will be chastened. Today’s column concerns the case involving
Congress’ investigative powers. A subsequent column will address the case concerning
Congress’s core power, that of controlling government’s purse strings. Tuesday’s arguments will concern standing — whether the House can seek a judicial remedy for its injuries. If it has standing, it should win on the merits. Both cases are, therefore, vital to what University of Virginia law professor Saikrishna Bangalore Prakash, in his just-published book “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,” calls the need to “recage the executive lion.”
A year ago, the House Judiciary Committee subpoenaed Don McGahn, who had been the White House Counsel, to testify concerning matters relating to oversight of the Trump administration and the possible impeachment of the president. McGahn refused to comply, arguing, as the president directed, that a close presidential adviser enjoys “absolute immunity” from such compulsion. The committee filed suit for enforcement, lest Congress’ oversight function be rendered anemic, even nugatory.
After a district court ruled in favor of the House committee, a three-judge panel of the D.C. Circuit, in a 2-1 decision, reversed the district court, holding that a congressional committee lacks standing to enforce subpoenas against executive branch officials. If this stands, it will place almost all of the government beyond Congress’ investigatory reach. In March, the D.C. Circuit agreed to Tuesday’s rehearing before nine of the court’s active judges.
The three-judge panel was influenced by the absence of such subpoena-enforcement suits by early congresses. It is, however, fallacious to reason that a power not exercised must be nonexistent. Furthermore, the panel ignored half a century of declining institutional civilities. The Framers anticipated wary, rivalrous and jealous relations between the political branches, but not the coarse aggressiveness of the past 50 years, of which McGahn’s claim, argued by the Justice Department, of “absolute immunity” is symptomatic.
The committee argues that beginning with George Washington and for nearly two centuries, presidents “overwhelmingly recognized Congress’ right to information and fully complied with requests or sought to accommodate Congress’ interests.” And, the committee says, beginning with suits pertaining to Richard Nixon’s Watergate scandal, until today, courts “have uniformly held that committees have standing” to seek judicial enforcement.
Perhaps the D.C. Circuit panel was being droll when it suggested that a congressional committee make “a polite request” for executive branch information. It certainly was being fanciful when saying committees could hold executive officials in contempt, a toothless gesture in an era of pandemic contempt. The panel also suggested what the Judiciary Committee properly calls the “constitutional brinkmanship” of impeachment. But as John Quincy Adams explained long ago, it would make a “mockery” of impeachment for the House to lack, as a D.C. Circuit panel would have it, the power to obtain pertinent evidence.
Given that the Supreme Court has acknowledged that Congress “cannot legislate wisely or effectively in the absence of information,” and given that private parties have standing to enforce compliance with subpoenas, there is, the committee says, no justification for treating a congressional committee less favorably than private parties. Courts have hitherto held that individual legislators or groups of them lack standing to assert an institutional injury. However, the House has, as an institution, authorized the committee’s suit. The committee says courts frequently resolve disputes about “the allocation of power between government entities.” If subpoenas cannot be enforced, this judicial abstention must mean that a president has no incentive to cooperate, or negotiate a compromise, with a Congress concerned about executive negligence or corruption.
McGahn’s argument, the committee says, reflects “a pattern of nonaccountability” by the modern executive branch. The next column, concerning the other case to be argued Tuesday, concerns an even more egregious abuse by the uncaged lion: the unconstitutional nullification of Congress’s control of spending.