Today, the U.S. Court of Appeals for the D.C. Circuit held 7-2 that the Committee on the Judiciary of the House of Representatives has Article III standing to sue to enforce a subpoena in federal court. Judge Judith Rogers wrote for the en banc court in Committee on the Judiciary v. McGahn. Judges Karen Henderson and Thomas Griffith each dissented. Judges Greg Katsas and Neomi Rao did not participate.
In a separate order, the en banc court remanded U.S. House of Representatives v. Mnuchin, a congressional challenge to the Executive Branch's allegedly unlawful expenditure of funds for border wall construction, for reconsideration by the three judge panel in light of the court's decision in McGahn. Judges Henderson and Griffith dissented from that order as well, arguing the full court should have completely resolved the separate standing issue in Mnuchin.
Judge Rogers opinion for the en banc court in McGahn begins:
The question before the en banc court is whether the Committee on the Judiciary of the House of Representatives has standing under Article III of the Constitution to seek judicial enforcement of its duly issued subpoena. Upon applying the principles of Article III standing, we hold that it does.
The Constitution charges Congress with certain responsibilities, including to legislate, to conduct oversight of the federal government, and, when necessary, to impeach and remove a President or other Executive Branch official from office. Possession of relevant information is an essential precondition to the effective discharge of all of those duties. Congress cannot intelligently legislate without identifying national problems in need of legislative solution and relying on testimony and data that provide a deeper understanding of those problems, their origins, and potential solutions. It likewise cannot conduct effective oversight of the federal government without detailed information about the operations of its departments and agencies. And it cannot undertake impeachment proceedings without knowing how the official in question has discharged his or her constitutional responsibilities.
The Committee, acting on behalf of the full House of Representatives, has shown that it suffers a concrete and particularized injury when denied the opportunity to obtain
information necessary to the legislative, oversight, and impeachment functions of the House, and that its injury would be redressed by the order it seeks from the court. The separation of powers and historical practice objections presented here require no different result. Indeed, the ordinary and effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary.
In discussing why the Judiciary Committee has standing here, Judge Rogers writes:
The House, then, has a long-recognized right, based in the Constitution, to have McGahn appear to testify and produce documents. Because each House of Congress delegates its power of inquiry to its Committees, which are "endowed with the full power of Congress to compel testimony," . . . the Committee exercised the House's subpoena power when it issued a subpoena to McGahn. By refusing to testify in response to the Committee's concededly valid subpoena, McGahn has denied the Committee something to which it alleges it is entitled by law. And because the Committee has alleged the deprivation of testimony to which it is legally entitled, its asserted injury is concrete.
Of note, Judge Rogers' opinion repeatedly cites the Supreme Court's Mazars opinion in support of its conclusion that a refusal to comply with a congressional subpoena is a cognizable injury.
The alternative to suing in federal court would be for Congress to use its inherent contempt power, and order the seizure of any individual who refused to comply with a properly issued subpoena. According to Judge Rogers, forcing Congress to rely on its inherent contempt power would be impracticable. They also would not keep subpoena cases out of court, as any individual detained pursuant to the contempt power could challenge their detention.
This decision does not end the McGahn litigation. Far from it. As Judge Rogers opinion notes, there are other threshold issues yet to be decided by the D.C. Circuit, "including
threshold pre-merits objections that there is no subject matter jurisdiction and no applicable cause of action," in addition to the ultimate merits of the subpoena. These questions are remanded back to the three-judge D.C. Circuit panel "to address in the first instance." In other words, this case is along way from being over, and is unlikely to conclude prior to the election.
. . . this post is still being updated . . .
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