A divided three judge panel of the United States Court of Appeals for the D.C. Circuit has "hamstrung" the Judiciary Committee of the House of Representatives, argues House General Counsel Douglas N. Letter in a petition for en banc review. The panel is the latest decision in the "Roberts Court" era to place obstacles in the way of the House of Representatives to compel adherence to its orders.
Former White House Counsel refused to respond to a subpoena to testify before the House in its impeachment inquiry. The panel first held that the House lacked standing to sue. Reversed by the full court, the divided panel's majority now holds that the House has no legal basis in equity or statute to enforce its subpoenas. The Decision, Teller argues, is shocking - because in Trump v. Mazars the Supreme Court affirmed 7-2 the power of the House to gather information for legislative purposes. Surely an impeachment inquiry is an even stronger basis for the Congress to invoke the in personam enforcement power of a court of equity. But the two judges of the majority, Thomas Griffith [former Legal Counsel of the Senate] and Karen Henderson [a former South Carolina A.G.], (over the dissent of Judge Judith Rogers) held otherwise in an opinion issued on August 31, the day before Griffith's retirement:
[T]he en banc court held that the Committee on the Judiciary of the House of Representatives has Article III standing to seek judicial enforcement of a subpoena issued to former White House Counsel Donald F. McGahn, II. It remanded the case to this three-judge panel to consider the remaining issues, including whether the Committee has a cause of action to enforce its subpoena and, if so, whether McGahn must testify despite the Executive Branch's assertion of absolute testimonial immunity. We have no occasion to address the immunity argument because we conclude that the Committee lacks a cause of action. Accordingly, the case must be dismissed.
The en banc court held that the Committee has Article III standing, but the Committee "also need[s] a cause of action to prosecute" its case in federal court. Make the Road N.Y. v. Wolf, 962 F.3d 612, 631 (D.C. Cir. 2020). Here, the Committee argues that it has an implied cause of action under Article I, that it can invoke the traditional power of courts of equity to enjoin unlawful executive action, and that the Declaratory Judgment Act provides a separate basis for this suit. We disagree.
Start with Article I. The Committee argues that it is "entitled under Article I to seek equitable relief to enforce a subpoena . . . issued in furtherance of its constitutional power of inquiry." Committee Panel Br. 34 (internal quotation marks omitted). But time and again, the Supreme Court has warned federal courts to hesitate before finding implied causes of action—whether in a congressional statute or in the Constitution.
The Judiciary Committee draws on a long tradition: that courts have the power to do what is necessary to vindicate the necessary powers of government, such as legislative fact gathering:
Together, these cases lead to a straightforward conclusion: Equity is available to remedy the House’s constitutional injury, just as it is available to protect other rights under the Constitution. The Panel’s contrary conclusion demands en banc review. 1. The power to investigate depends on the power to enforce. The Supreme Court in Mazars recognized this point when it reaffirmed that Congress’s power to “obtain information” is both “‘broad’ and ‘indispensable,’” 140 S. Ct. at 2031(quoting Watkins v. United States, 354 U.S. 178, 187, 215 (1957))—even in the context of a case concerning Congressional subpoenas “directed at the President’s personal information”. A necessary part of each House’s “power of inquiry” is a corollary power “to enforce it.” I
If the courts are unavailable to the House of Representatives, the Speaker of the House will have no choice but to employ the long recognized but little used inherent contempt power of the Congress.
- GWC
No comments:
Post a Comment