Reid Coleman1Rice University, B.A. 2017; Special Assistant to the White House Counsel, 2017–2018; J.D. Candidate, Class of 2021, The University of Texas School of Law. For helpful commentary and feedback, the author thanks Hugh Brady, Dan Epstein, Matthew Reade, and The University of Chicago Law Review. The author would also like to thank Don McGahn and Annie Donaldson for their role in an incredibly formative year at the White House. This Essay reflects the author’s views only.
* * *
After former White House Counsel Donald F. McGahn refused to comply with a congressional subpoena, the U.S. House of Representatives initiated a federal lawsuit. The House sought a declaratory judgment that McGahn’s noncompliance was without legal justification, as well as injunctive relief ordering compliance with the subpoena. Interbranch skirmishes over executive officials’ duty to answer Congress’s demands for information are legion.2See, e.g., Todd Garvey, Cong. Research Serv., RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure 74–81 (outlining congressional contempt resolutions since 1980, including many against executive officials resulting from noncompliance with Congress’s informational demands); History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress, 6 Op. O.L.C. 751 (1982). In many respects, the McGahn dispute is no different than President George Washington’s refusal to deliver correspondence relating to negotiations over the Jay Treaty to the House.31 A Compilation of the Messages and Papers of the Presidents, 1789‑1897, at 194–96 (James D. Richardson ed. 1897). But the McGahn dispute is part of a special, and recently emerging, subclass of those skirmishes defined by the House’s curious method of enforcement—a federal lawsuit. The courts have generally entertained these suits.4See Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 4 (D.D.C. 2013) (holding that court had jurisdiction to adjudicate the interbranch dispute); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 55–56 (D.D.C. 2008) (same). But see Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 60–61 (D.D.C. 1973) (dismissing for failure to satisfy the amount-in-controversy requirement under § 1331). Earlier this year, however, the D.C. Circuit issued an opinion—described by some as a “constitutional earthquake”—holding that it lacked jurisdiction to adjudicate the McGahn dispute. Even more revolutionary than the jurisdictional holding was the court’s suggestion that the suit’s jurisdictional defects, which seem rooted in separation-of-powers concerns, could be statutorily cured. This Essay examines that caveat in the D.C. Circuit’s opinion and argues that a statute cannot surmount the jurisdictional barriers to this type of interbranch lawsuit.
Part I describes the events that precipitated the McGahn litigation and the two court decisions issued thus far. Part II examines the various tools at Congress’s disposal to ensure compliance with congressional subpoenas. That foundation potentially explains why Congress has settled on civil enforcement as its preferred means in resolving interbranch information disputes. Part III analyzes the history of civil-enforcement proposals. Finally, Part IV addresses both the practical and constitutional concerns presented by a civil-enforcement proposal. I conclude that a civil-enforcement statute is both unconstitutional and ill-suited to Congress’s objectives.
I. The McGahn Litigation
A. The Facts of Committee on the Judiciary v. McGahn
The underlying dispute of Committee on the Judiciary v. McGahn is a textbook interbranch information power struggle and bears remarkable resemblance to previous interbranch disputes. In anticipation of Special Counsel Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election, the House Judiciary Committee opened its own investigation into allegations that President Trump and his associates had engaged in various forms of misconduct. As part of this investigation, the Committee sought certain documents from former White House Counsel Don McGahn relating to the president’s alleged obstruction of justice. When McGahn did not produce the desired documents, the Committee issued a subpoena ordering McGahn to produce the documents and testify.
The day before McGahn was due to testify, the White House Counsel, Pat Cipollone, sent a letter to Bill Burck—McGahn’s attorney—and Representative Jerrold Nadler, the chairman of the House Judiciary Committee. Cipollone’s letter stated that the president was instructing McGahn not to appear before the Committee, in defiance of the subpoena. The legal basis for the president’s instructions was a memorandum issued by the Department of Justice’s Office of Legal Counsel, which advised that “Congress may not constitutionally compel the President’s senior advisors to testify about their official duties.” Immediately after receiving Cipollone’s letter, Chairman Nadler sent a letter to Burck emphasizing that the Committee expected McGahn’s compliance and that noncompliance would result in a contempt citation. Despite these threats, McGahn did not comply with the Committee’s subpoena.
The House then passed a resolution authorizing the Committee to use “all necessary authority under Article I of the Constitution” to initiate judicial proceedings to enforce the subpoena. The Committee and the White House eventually reached a mutually agreeable resolution as to the requested documents, but negotiations regarding McGahn’s testimony reached an impasse. Acting on the resolution, the Committee filed suit seeking to compel McGahn’s testimony and challenging the executive’s absolute-immunity theory.5Complaint at 53, Comm. on Judiciary v. McGahn, 415 F. Supp. 3d 148 (2019) (No. 19-CV-2379).
B. The District Court Opinion
At the district court, the parties filed cross-motions for summary judgment. The Committee argued that McGahn, having received a duly authorized subpoena, was “legally obligated to testify” and that he had “no valid interest in defying” it.6Plaintiff’s Memorandum In Support Of Its Motion For Preliminary Injunction, Or, In The Alternative, For Expedited Partial Summary Judgment at 14, 54, Comm. on Judiciary v. McGahn, 415 F. Supp. 3d 148 (2019) (No. 19-CV-2379). The Department of Justice responded with several jurisdictional arguments.7Defendant’s Motion for Summary Judgment at 1, Comm. on Judiciary v. McGahn, 415 F. Supp. 3d 148 (2019) (No. 19-CV-2379). The court, relying extensively on Committee on the Judiciary v. Miers, granted the Committee’s motion and denied McGahn’s.
The court held that Article III permitted it to adjudicate the interbranch dispute, notwithstanding the separation-of-powers concerns, and characterized the suit as “not a ‘political’ battle at all’” but rather a “subpoena-enforcement dispute” that “raise[d] garden-variety legal questions that the federal courts address routinely and are well-equipped to handle.” Standing was no impediment, the court concluded, because “outright defiance of any duly issued subpoena . . . qualifies as a concrete, particularized, and actual injury for standing purposes.” Reaching the merits, the court rejected McGahn’s claims of absolute testimonial immunity. Altogether, the district court’s legal reasoning closely parallels that in Miers.
C. The D.C. Circuit Opinion
The D.C. Circuit, invoking notions of limited federal jurisdiction and separation of powers, held that it lacked jurisdiction to adjudicate the dispute. Noting that the court must determine “whether adjudicating the dispute is ‘consistent with a system of separated powers’ and whether the claim is ‘traditionally thought to be capable of resolution through the judicial process,’” the court concluded that “[t]his interbranch quarrel satisfies neither condition.” In reaching this conclusion, the court relied on (1) separation-of-powers principles, (2) history, and (3) congressional intent. Despite the decision’s seeming breadth, the court tempered it in an important respect: It suggested that the justiciability defects may be cured by a statute authorizing civil enforcement of subpoenas against executive branch officials.
The court first addressed the serious separation-of-powers implications that would follow from adjudicating this suit, which were inexplicably glossed over by the district court. The heart of the court’s argument lies in the important constitutional limitations on the “judicial power” imposed by Article III. These constitutional limitations serve the important purpose of maintaining the “proper—and properly limited—role of the courts in a democratic society.” That role, the court argued, does not include the “amorphous general supervision of the operations of government.” Instead, the role of the courts is “to decide on the rights of individuals.” This dispute, however, which involves only officials who serve or served in the national government, “lies far from . . . the conceptual core” of these Article III limitations. By extending Article III to cover this suit, the courts would be “forced to supervise the branches, scrutinize their asserted constitutional interests, and elaborate a common law of congressional investigations.”
The court then turned to the general history of interbranch disputes and the specific history of interbranch information disputes. It concluded that this historical background “cut[ ] decisively” against jurisdiction. The Supreme Court has generally refused to adjudicate interbranch disputes.8Indeed, in one stark example, the Court refused to adjudicate a pure interbranch suit only to go on to address the same questions in a suit between a private actor and the executive. Comm. on Judiciary v. McGahn, No. 19-5331, 2020 WL 1125837, at *1, *3 (D.C. Cir. Feb. 28, 2020), reh’g en banc granted, vacated, 2020 WL 1228477, at *1 (D.C. Cir. Mar. 13, 2020) (offering INS v. Chadha, 462 U.S. 919 (1983), as one such example). There is a similar dearth of historical antecedents supporting the justiciability of interbranch information suits. Interbranch information disputes are as old as the republic.9“For instance, in 1794, President Washington withheld papers that ‘in [his] judgment, for public considerations, ought not to be communicated.’” Id. at *7 (quoting History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress, 6 Op. O.L.C. 751, 752–53 (1982)). Yet, the earliest example of a lawsuit seeking to resolve such a dispute came during Watergate. Accordingly, the court concluded, interbranch information suits are not those “traditionally thought to be capable of resolution through the judicial process” and thus do not satisfy the case-or-controversy requirement.
The court also addressed the current statutory regime’s implications for civil enforcement of congressional subpoenas. That regime, which authorizes the Senate, but not the House, to seek civil enforcement of congressional subpoenas, carves out disputes involving the executive branch. This setup, the court concluded, suggests that Congress itself agrees that interbranch information disputes involving the House do not belong in court.
The justiciability barriers to this suit, the court recognized, are potentially surmountable. In some instances, Congress may “elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate at law.” In theory, a statute authorizing interbranch information suits would “reflect Congress’s (and perhaps the president’s) view that judicial resolution of interbranch disputes is ‘consistent with a system of separated powers’” and thus would cure the justiciability barriers identified by the court.
II. Non-Civil Congressional Enforcement Mechanisms
The Constitution vests “All legislative Powers” in Congress. Congress could not exercise that power without the power of inquiry, which includes Congress’s investigatory and oversight powers.10See, e.g., Nixon v. Administrator of General Services, 433 U.S. 425 (1977); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); McGrain v. Daugherty, 273 U.S. 135 (1927). The inquiry power is “as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Although people typically comply with congressional requests for information, experience teaches that “mere requests” are sometimes “unavailing, and also that information which is volunteered is not always accurate or complete.” Accordingly, no tool of inquiry is more important than the subpoena power.11See Eastland, 421 U.S. at 505 (noting that the subpoena power is an “indispensable ingredient” of the Article I legislative powers); McGrain, 273 U.S. at 174 (“[T]he power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function”). The inquiry power would be useless without any effective means to enforce it, “so some means of compulsion are essential to obtain what is needed.” Traditionally, Congress has wielded two formal means of compulsion against private persons to give effect to the subpoena power: the inherent contempt power and criminal contempt proceedings.12See Garvey at 4–22 (providing exhaustive historical outline of inherent and statutory contempt proceedings); see also James Hamilton & John C. Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas, 21 Harv. J. Legis. 145, 148–49 (1984) (explaining that the “traditional ‘means of compulsion’ used by Congress to ensure compliance with its subpoenas” was punishment for contempt via its inherent contempt power and later through criminal contempt proceedings). But, as is demonstrated below, these traditional means are ill-suited for use against executive officers. Something more is needed; and that something more, according to Congress, is the civil-enforcement mechanism.
A. The Inherent Contempt Power
Congress’s traditional means of compulsion to exact compliance with congressional subpoenas from private individuals is punishment for contempt.13See generally Josh Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev. 1083, 1093–43 (2009) (tracing the historical origins of Congress’s inherent contempt power from its parliamentarian roots through the pre- and post-constitutional republic) [hereinafter Executive Branch Contempt]; Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 152–201 (2017) (same) [hereinafter Congress’s Constitution]. Professor Chafetz argues that those historical precedents justify the use of Congress’s inherent contempt against executive officials—even in the face of an assertion of executive privilege. Executive privilege is the sword of Damocles hanging over these disputes. A careful analysis of the interplay between Congress’s powers and executive privilege is beyond the scope of this Essay, however, I commend Professor Todd David Peterson’s article, Contempt of Congress v. Executive Privilege, 14 U. Pa. J. Const. L. 22 (2011). Professor Peterson offers a damning refutation of Professor Chafetz’s historical argument that Congress can use its inherent contempt power against executive officials who have asserted executive privilege. See id. at 119–39 (dismissing each example proffered by Professor Chafetz in a systematic manner). The Constitution does not explicitly grant Congress the power to punish contemptuous persons; it is implied from Article I. But this power unquestionably exists; without this power, it would be “utterly impossible for either house to perform its constitutional functions.”14See, e.g., Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 233 (1821); Joseph Story, 1 Commentaries on the Constitution of the United States § 845 at 593 (Thomas M. Cooley, 4th ed. 1873). Under this self-help procedure, either House can dispatch the sergeant at arms to arrest and imprison the contemnor. The contemnor is held until she complies with Congress’s demands or is tried by Congress.15Hamilton & Grabow at 149; Garvey at 11; Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing, 49 Admin L. Rev. 116 (1996). See alsoExecutive Branch Contempt at 1135–39 (giving two examples where Congress’s sergeant at arms was dispatched to arrest contemnors). The term of imprisonment, however, is limited to the duration of the then‑pending congressional session.16Journey v. MacCraken, 294 U.S. 125, 151 (1935); Story, § 849 at 602.
The inherent contempt power is ill-suited to resolve interbranch informational disputes.17This, of course, presumes that the inherent contempt power can be wielded against executive officials, which many seem to accept. See Jennifer Bendery, Nancy Pelosi Slams Contempt Vote: ‘I Could Have Arrested Karl Rove . . . But We Didn’t’, Huffington Post (June 20, 2012, 2:58 PM) (quoting Nancy Pelosi saying that “I could have arrested Karl Rove on any given day. I’m not kidding. . . . There’s a prison here in the Capitol”). Josh Chafetz, among others, has offered extensive historical evidence supporting that proposition. Executive Branch Contempt at 1093–1143. But some have recently challenged that accepted view. See E. Garrett West, Revisiting Contempt of Congress, 2019 Wis. L. Rev. 1419, 1423 (arguing that, “the Constitution’s text and structure militate against the inherent contempt power”); Peterson at 130 (noting that “[t]he most significant constitutional precedents on the issue whether Congress may use its inherent contempt power in response to a claim of executive privilege are like Sir Arthur Conan Doyle’s famously non-barking dog; they involve the absence of what would be expected if Congress believed it had such a power”). Exercising the inherent contempt power against executive branch officials would precipitate a constitutional crisis by provoking a clash of co-equal branches. Routinizing such high-stakes clashes would destabilize our democracy.18Even Josh Chafetz, who is the most ardent supporter of Congress using its inherent contempt power to exact compliance with subpoenas, seems to agree that it is best for these interbranch disputes to be resolved by more amicable methods. See Executive Branch Contempt at 1132 (“Fortunately for the stability of our government, most disputes between the executive and legislative branches over information have historically been settled by negotiation and accommodation”). So did the judge who authored the Miers opinion. See Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 92 (D.D.C. 2008) (“imprisoning current (and even former) senior presidential advisors and prosecuting them before the House would only exacerbate the acrimony between the two branches and would present a grave risk of precipitating a constitutional crisis”). In addition, the inherent contempt power is hard to administer. Legislative responsibilities have increased such that it is now impracticable to hold full-scale congressional trials. This has caused the inherent contempt power to fall out of favor.19See S. Rept. 95-170, 95th Cong., at 97 (1977) (noting that the inherent contempt power “is generally considered to be time consuming and not very effective”); Hamilton & Grabow at 149 (noting that Congress has not wielded the inherent contempt power since 1945). Accordingly, the inherent contempt power is an unsuitable candidate for enforcing executive branch compliance with congressional subpoenas.
B. The Criminal Contempt Statute
Because recourse to the inherent contempt power became burdensome, Congress supplemented those powers with a law that made it a criminal offense to defy a congressional subpoena.20See Cong. Globe, 34th Cong., at 406 (1857) (Rep. Orr, in supporting the criminal contempt statute, remarking that “[t]his House cannot undertake to constitute itself a court to determine all these things, because it would consume too much of its time. Our entire session might be exhausted . . . if there were a series of contempts.”) When a witness defies a subpoena, the issuing authority can refer the matter to the District of Columbia U.S. attorney. The statute purports to impose an imperative duty on the U.S. attorney to bring the matter before the grand jury. Upon conviction, the witness is subject to a fine and imprisonment.
This power, too, is unsuitable to resolve interbranch disputes. As a practical matter, the executive branch is unlikely to pursue a contempt case against another executive branch official. On at least three occasions the U.S. attorney has refused to prosecute an executive branch official for contempt of Congress.21See Examining and Reviewing the Procedures That Were Taken by the Office of the U.S. Attorney for the District of Columbia in Their Implementation of a Contempt Citation that Was Voted by the Full House of Representatives against the Then-Administrator of the Environmental Protection Agency, Anne Gorsuch Buford, Hearing before the House Comm. on Public Works and Transportation, 98th Cong., at 2 (1983) (noting the U.S. Attorney’s failure to prosecute Anne Gorsuch Burford for contempt after the House’s certification); Letter from Attorney General Michael B. Mukasey to Speaker of the House Nancy Pelosi, February 29, 2008 (refusing to prosecute Joshua Bolton and Harriet Miers for contempt). Indeed, I am unable to find any case where the executive branch has prosecuted one of its own on the recommendation of Congress. Moreover, even if the legislature could actually force the executive to present the case before a grand jury, there is no question that it could not force the prosecutor to pursue the case beyond that.22Prosecutors have broad discretion to enter a nolle prosequi. See Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977) (noting that leave of court is denied only where the nolle prosequi motion is “prompted by considerations clearly contrary to the public interest”). Even if the court denied the nolle prosequi motion, the prosecutor could simply refuse to pursue the case vigorously. Finally, the prosecutor could simply refuse to try the case within the limits required by the Speedy Trial Act, which would warrant dismissal. 18 U.S.C. § 3161.
The criminal‑contempt statute also places a significant burden on the subpoenaed individual. The criminal‑contempt proceeding is designed to punish for past contumacious conduct—the contemnor is not exculpated with subsequent compliance. This puts the burden on the contemnor to guess “how a court will rule on difficult questions” at her own risk. When the contemnor is an executive branch official, these already difficult questions will involve notoriously ethereal constitutional questions, like the scope of executive privilege. Additionally, convictions are difficult because of the heightened protections afforded to criminal defendants.23See Watkins v. United States, 354 U.S. 178, 208 (1957) (noting that in contempt prosecutions “the courts must accord to the defendants every right which is guaranteed” to all other criminal defendants). Thus, this tool is too blunt to resolve these interbranch disputes.
III. Civil Enforcement of Congressional Subpoenas Against Executive Branch Officials
A. History of Civil-Enforcement Proposals
Proposals for civil-enforcement statutes have a long history. These proposals are typically the outgrowth of distinct congressional-executive disputes. The first civil-enforcement proposal was introduced in 1953 by Representative Kenneth Keating from New York.24H.R. 4975, 83d Cong. (1953). In Representative Keating’s eyes, a civil‑enforcement mechanism apparently struck an appropriate balance between Congress’s need for information and the need to protect a witness’s rights. Kenneth B. Keating, Proposed Remedial Legislation: Protection for Witnesses in Congressional Investigations, 29 Notre Dame L. Rev. 212, 223–24 (1954). Representative Keating, while commenting on the bill, identified the many flaws with the then-existing means of compulsion explained above. 100 Cong. Rec. 13,338–40 (1954). That bill authorized any committee or subcommittee to bring civil‑enforcement suits.25H.R. 4975, 83d Cong. (1953) (allowing any committee or subcommittee of either House to “invoke the aid of the United States district courts in requiring the attendance and testimony of witnesses and the production of evidence”). The bill passed the House with bipartisan support,26100 Cong. Rec. 13,340 (1954). but stalled out in the Senate. Keating introduced similar bills later, but none passed.27See, e.g., H.R. 780, 84th Cong. (1955); 101 Cong. Rec., 2934 (1955); S. 1515, 86th Cong. (1959); 105 Cong. Rec. 5024–25 (1959); S.2074, 87th Cong. (1961); 107 Cong. Rec. 10,221–22 (1961).
The next civil-enforcement proposals arose out of the Watergate scandal. After the Watergate Committee’s subpoena‑enforcement suit against President Nixon was dismissed for lack of jurisdiction,28119 Cong. Rec. 35,715 (1973). Senator Samuel Ervin introduced a bill that authorized all civil-enforcement suits.29S. 2641, 93d Cong. (1973); 119 Cong. Rec. 35,718 (1973). When another senator objected to the bill’s breadth, Senator Ervin introduced a substitute bill that limited its scope to only subpoenas issued by the Watergate Committee.30119 Cong. Rec. 36,472 (1973); James Hamilton, The Power to Probe 206 (1976). That narrower bill became law.31Act of Dec. 18, 1973, Pub. L. No. 93-190, 87 Stat. 736 (1973). When the Watergate Committee made recommendations in its final report, it suggested that “Congress enact legislation giving the United States District Court for the District of Columbia jurisdiction to enforce congressional subpoenas issued to members of the executive branch, including the President.” The Final Report of the Senate Select Committee on Presidential Campaign Activities, S. Rep. No. 93-781, at 1084 (1973). Congress considered legislation that incorporated many of the Committee’s suggestions, but the subpoena enforcement issue was considered separately. Hamilton & Grabow at 163. Two proposals for a civil-enforcement bill that would extend to executive officials were made, but no action was ever taken. S. 2073, 93d Cong., (1973); S. 2170, 94th Cong. (1975). See also 119 Cong. Rec. 21,435, 21,442–43 (1973) (explaining the need for S. 2073). Moreover, in Congress’s broader post-Watergate reforms, it passed a statute that granted limited civil-enforcement jurisdiction over Senate subpoenas.32Ethics in Government Act of 1978, Pub. L. No. 95-521, § 705, 92 Stat. 1824, 1878–80 (1978) (prior to 1984 amendment). It is not entirely clear why the Senate, and not the House, received the power to bring civil-enforcement suits. The only legislative history that touches on the matter suggests that it is because “[t]he appropriate committees in the House have not considered the Senate’s proposal.” H.R. Rep. No. 95-1756, at 80 (1978) (Conf. Rep.). But the statute explicitly carved out civil-enforcement suits against executive branch officials.33Ethics in Government Act of 1978 § 705 (“This section shall not apply to an action to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened refusal to comply with, any subp[o]ena or order issued to an officer or employee of the Federal Government acting within his official capacity”). Apparently, Congress carved out enforcement actions against executive officers because the Justice Department had raised objections against an earlier proposal that would have similarly applied to executive officers. See 123 Cong. Rec. 2970 (1977) (Sen. Abourzek remarking that “[d]ue to [the Justice Department’s] opposition” the provision allowing civil enforcement against executive officials “was deleted”). For instance, the Department argued that such a statute would be unconstitutional because civil enforcement suits would be nonjusticiable under the political question. Executive Privilege—Secrecy in Government: Hearings on S. 2170, S. 2378, S. 2420 Before the Subcomm. On Intergovernmental Relations of the S. Comm. on Gov’t Operations, 94th Cong. 116–17 (1975) (statement of Antonin Scalia, Assistant Attorney General for the Office of Legal Counsel) [hereinafter Executive Privilege Hearings].
The Senate Report was careful to note that the carve-out “is not intended to be a Congressional finding that the Federal courts do not now have the authority to hear a civil action to enforce a subpena [sic] against an officer or employee of the Federal Government.” S. Rep. No. 95-170, at 91–92 (1977). Moreover, the report specifically contemplated that “a future statute might specifically give the courts jurisdiction to hear a to hear a civil legal action brought by Congress to enforce a subpena [sic] against an executive branch official.” Id. at 89.
In the aftermath of the next congressional-executive information standoff, the Iran-Contra affair, a congressional committee proposed a review of the then‑existing Senate civil‑enforcement provision.34See H.R. Rep. No. 100-433, at 426 (1987) (recommending that “the Congressional contempt statutes be reviewed by the appropriate Committees,” noting that “[t]hese investigations raised questions about the adequacy of existing statutes”). Originally, the proposed remedy would have greatly augmented the Senate’s civil-enforcement authority against federal officials.35See S. 2350, 100th Cong. § 1 (as referred to the S. Comm. on Governmental Affairs, Apr. 28, 1988) (limiting federal-officer exception to only those instances in which “the President, in writing, has directed the officer or employee to assert a privilege of the President under the Constitution”). The Justice Department opposed a categorical expansion of the civil-enforcement provision. It argued that “the judicial branch should play a limited role in settling information access disputes since the Framers of the Constitution intended that these conflicts would be fought out predominately in the political arena.” Through negotiations, the Committee and the Justice Department reached a resolution whereby the federal-officer exception would be limited to only those instances where the officer refused compliance at the direction of an agency head with approval of the Attorney General.36S. 2350, 100th Cong. § 1 (as referred to the S. Comm. on the Judiciary, Aug. 11, 1988). Seealso 134 Cong. Rec. 21,233, 21,235 (1988) (debating the Department of Justice’s proposed amendment and then agreeing to it); 134 Cong. Rec. 28,592 (1988) (debating the Department of Justice’s amendment). But, for procedural reasons, this amendment to § 1365 did not pass at that time. In a later Congress, the False Statements Accountability Act of 1996 amended § 1365 to limit the federal‑officer exception to only those instances where the basis for noncompliance was governmental privilege.
B. Modern Civil-Enforcement Proposals
Interbranch standoffs over information disputes are not an artifact of an earlier era, nor are civil-enforcement proposals; whenever the branches clash, a proposal for a civil-enforcement mechanism follows. Over the past 15 years, interbranch standoffs—and subsequent litigation—have become more frequent. Congress’s investigatory objectives have been repeatedly frustrated by litigation-related delay. For instance, the Miers and Holder suits both lasted into new presidential administrations. This delay, coupled with worries about the validity of the court opinions, precipitated a modern proposal for civil-enforcement procedures: the “Congressional Subpoena Compliance and Enforcement Act of 2017.”37An identical bill has been introduced in the 116th Congress. Congressional Subpoena Compliance and Enforcement Act of 2019, H.R. 3732, 116th Cong. (2019). Like previous proposals, the modern proposal has garnered widespread bipartisan support but has not become law.
As an alternative to contempt, the Act provides a civil‑enforcement mechanism for congressional subpoenas issued to executive officials. The Act is designed to “enhance[ ] compliance with subpoenas issued by congressional committees and strengthen[ ] and clarif[y] the ability of the House and Senate to enforce subpoenas issued by their respective committees.” The Act was written in the shadow of frequent subpoena defiance and the various barriers Congress had encountered in those disputes. The implied nature of Congress’s power to enforce subpoenas left Congress exposed to the full force of jurisdictional doctrines. In every dispute, the Department of Justice had raised the full smorgasbord of jurisdictional obstacles.38See generally Memorandum in Support of Defendant’s Motion to Dismiss, Comm. on Oversight & Gov’t Reform, 979 F.Supp.2d 1 (D.D.C. 2013) (No. 12‑1332); 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, Comm. on the Judiciary v. Miers, 575 F.Supp.2d 201 (D.D.C. 2008) (No. 08-0409). As a result, judicial resolution of information disputes was drawn-out—sometimes surviving into new administrations. Finally, the non-statutory framework provided no schematic for resolving disputes that involved the assertion of legal privilege.
The Act addresses these barriers head on. First, the Act imposes a statutory duty to comply with congressional subpoenas and grants the D.C. district court jurisdiction over suits against noncompliant individuals. This shores up the court’s statutory jurisdiction to adjudicate these claims and preempts some of the Department’s justiciability arguments. Second, the Act provides for expedited proceedings. And, if the plaintiff so requests, the Act allows civil-enforcement actions to be brought before a three-judge panel with direct appeal to the Supreme Court. Finally, the Act requires a witness asserting privilege to produce a privilege log in a timely manner and suggests that the “failure to produce a privilege log in a timely manner may result in waiver” of that privilege.
When the Act was considered in Committee, it received unanimous support. Representatives Darrell Issa and Nadler jointly presented the Act to the full House. Representative Issa began by drawing attention to Congress’s experiences in the Miers and Holder proceedings and how the delay was “unfair to the body and unfair to the American people because it denied them in any reasonable period of time the effect of factfinding.” In the Miers and Holder cases, the committee chairman’s political party and the judge’s appointing party were different. This shows that “the independence of the judiciary has worked not once but twice.” The Act, he claimed, merely codifies what has already worked and speeds up the process. Representative Nadler emphasized the current challenges Committees faced and argued that “it is more important than ever for the House to conduct substantive oversight of the executive branch.” The bill passed the House but, like previous proposals, no action was taken in the Senate. The bill was reintroduced in the House in the 116th Congress, but no other action has been taken.
IV. Practical and Constitutional Limitations of a Civil-Enforcement Statute
Given the absolute nature of these interbranch clashes, it is unsurprising that Congress and scholars have repeatedly attempted to engineer away those confrontations. Piggybacking on the legitimacy of the judiciary has much curb appeal, especially because it allows Congress to avoid spending political capital to force the executive’s hand. But channeling interbranch disputes through the courts is short-sighted, practically limited, and perhaps ineffective. Moreover, the constitutionality of a civil-enforcement statute is dubious.
A. Practical Limitations of a Civil-Enforcement Scheme
Despite the Committee’s best efforts, its civil‑enforcement proposal still faces several practical limitations. Formalizing a process by which interbranch informational disputes are resolved would jeopardize the primary means of resolution, negotiation, and accommodation. Moreover, a formalized judicial procedure to enforce Congress’s own constitutional powers also weakens the legislative branch’s authority. Finally, it is uncertain whether the expedited-proceedings clause will result in expedited resolution.
Formalizing an alternative process of resolving interbranch informational disputes would limit the effectiveness of negotiation and accommodation. The Justice Department has opposed expanded judicial involvement in this area for this exact reason. Antonin Scalia, then serving in the Office of Legal Counsel, testified that adopting such a proposal is “bound to multiply the instances in which the executive . . . will be constrained to conclude it is his duty [to assert executive privilege and] to withhold the information.” Acting Assistant Attorney General Thomas Boyd raised similar concerns regarding the bill that amended § 1365 to resolve ambiguities in its application to federal officers. The original proposed amendment would have limited the federal-officer exception to circumstances when “the President, in writing, has directed the officer . . . to assert a privilege of the President under the Constitution.”39S. 2350, 100th Cong. § 1 (as referred to the S. Comm. on Gov’tl Affairs, Apr. 28, 1988). The Department opposed this language because it would require premature presidential invocation of executive privilege in disputes that ordinarily would be settled by committee members and other executive officials. In other words, formalizing the process would elevate every low-level interbranch dustup, which would normally be resolved by negotiation and accommodation, into a full-fledged winner-takes-all war between the president and the full Senate or House. Congress, apparently giving weight to these concerns, amended the language.40S. 2350, 100th Cong. § 1 (as referred to the S. Comm. on the Judiciary, Aug. 11, 1988).
A formalized procedure that invokes Article III powers to enforce Article I prerogatives also weakens Congress’s authority. Historically, the legislative branch has asserted its own dominance in judging infringements of its privileges. Until Watergate, no legislature ever considered invoking the judiciary as a mediator in interbranch disputes. The reason “is both very simply and very important: these [are] disputes over the relative balance of executive and legislative power.” Invoking the authority of the third branch is an expression of self-doubt. It is an admission “that one’s own authority is insufficient to get what one wants.” Admittedly, adopting a formalized procedure is not a formal delegation of Congress’s constitutional authority; but it is akin to delegating political authority because it weakens Congress’s negotiating position vis-à-vis the executive branch.
Moreover, a formalized process providing for “expedited” judicial review does not necessarily guarantee efficacious resolution of interbranch disputes, especially when assertions of executive privilege are afoot. Stanley Brand, a well-recognized congressional lawyer, once remarked before a subcommittee of the House of Representatives:
[I]f you allow me to set foot into a Federal district court to litigate a claim of privilege, I can guarantee you I will be there for at least 3 years.
Nothing indicates that a simple statutory expediting provision will actually produce timely resolution. “[U]nacceptable delays are inherent in the civil process,” and a statutory provision demanding expedited proceedings cannot fix that. In the early 1980s, the statute books were full of expediting provisions.41See H.R. Rep. No. 985, at 7 (1984), as reprinted in 1984 U.S.C.C.A.N. 5779, 5785 (indicating that there are at least “eighty priority or expediting provision relating to civil actions in” federal courts). Congress quickly recognized the futility of those provisions and repealed almost all of them in 1984. “Expeditious litigation” is an oxymoron; even the fastest litigation is still slow. Even the most expeditious litigation therefore cannot quench Congress’s I-need-this-yesterday thirst for information. The formalized process will also slow down the average time for compliance with congressional requests. By implementing a formal procedure, Congress would remove the executive’s incentive to cooperate with any congressional request for information.42See Theodore Sky, Judicial Review of Congressional Investigations: Is There an Alternative to Contempt?, 31 Geo. Wash. L. Rev. 399, 426–27 (1962)(suggesting that a civil-enforcement provision would encourage subpoenaed individuals to not comply with the subpoena and “wait for the committee to take the first step in seeking to enforce compliance”). Although expedited review may speed up the few instances where the procedure is actually necessary, it will slow down every other request, thus presenting an even more serious impediment to oversight than the occasional standoff.
Not only does Congress stand to gain little because of these limitations, it also exposes itself to the risks inherent in third‑party resolution—not getting the answer it wants. Courts are curious and sometimes irrational creatures. By submitting its disputes to the judiciary, Congress risks that a reviewing court will issue a decision adverse to its investigative and oversight interests. Civil enforcement is a high-stakes gamble—and in this game, the “House” does not always win.
B. Constitutional Concerns with a Civil-Enforcement Scheme
Even if Congress looks past the practical limitations described above, it is not out of the woods yet: it must still confront the justiciability doctrines. And on this front, its prospects are dim. Ordinarily, Congress cannot statutorily cure a justiciability impediment. But a cognizable-injury problem is exceptional because Congress has a limited power to statutorily define injuries. The constitutional validity of Congress’s civil-enforcement proposal turns on the scope of that power. Although the boundaries of this power are unclear, prior congressional grants of standing present constitutionally distinct questions. Moreover, there are other historical, textual, and precedential reasons that an interbranch dispute is nonjusticiable.
Our federal government is one of limited powers. The Constitution endows each branch with certain powers; the judiciary holds only “[t]he judicial Power of the United States.” Although the Constitution does not definitively articulate the boundaries of that power, “it does specify that this power extends only to ‘Cases’ and ‘Controversies.’”
Standing to sue gives effect to the case‑or‑controversy requirement by “limit[ing] the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Standing requires that the plaintiff have “suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” An intangible injury can satisfy the injury requirement. In determining an intangible harm’s sufficiency, “both history and the judgment of Congress play important roles.” The history of judicial resolution of interbranch disputes, or the lack thereof, is decidedly against recognizing standing, so we focus on Congress’s judgment. Institutionally, Congress is well suited “to identify intangible harms that meet minimum Article III requirements” and so “its judgment is . . . instructive and important.” The Court has repeatedly noted that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”43See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in judgment). But this power is not an unfettered power to dole out Article III standing. Indeed, “[i]t is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.”44Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997). For instance, the seven-member rule, which purports to require that an Executive agency “submit any information requested of it relating to any matter within” a committee’s jurisdiction when the request is made by a sufficient number of members, would not guarantee standing because the informational harm suffered by the relevant committee may not be sufficient for Article III purposes. 5 U.S.C. § 2954.
Prior congressional “grants” of standing have not involved the same institutional concerns as interbranch disputes and thus cannot affirmatively support the constitutional validity of a civil-enforcement statute. The canonical example of a congressional “grant” of standing is competitors’ standing. In the competitors’ standing context, the traditional rule was that a business lacked standing to challenge the government’s support of competing businesses because there was no common law right to freedom from competition.45Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal System 145–46 (7th ed. 2015). The Court, however, departed from this traditional rule in FCC v. Sanders Bros. Radio Station, in which a radio station filed suit challenging the FCC’s decision to grant a broadcast license to a competing station. The Court’s departure was justified by a statute that authorized suit. It is within Congress’s discretion, the Court reasoned, to “confer such standing.” Indeed, in another context, one justice went so far as noting that absent the authorizing statute he “would have great difficulty in concluding that petitioners’ complaint in this case presented a case or controversy . . . under Article III.”
This canonical example, and others, revolved around the rights of individuals.46See Massachusetts v. EPA, 549 U.S. 497, 522 (2007) (accepting Massachusetts’s alleged injury “in its capacity as a landowner” resulting from global warming); FEC v. Akins, 524 U.S. 11, 21 (1998) (“The ‘injury in fact’ that respondents have suffered consists of their inability to obtain information”). In Sanders, private plaintiffs identified a concrete harm resulting from the violation of a congressionally granted right. Without that congressionally granted right, there would be no infringement of a legally protected interest. But the private right’s existence did not obviate the need to inquire whether the injury independently satisfies Article III’s requirements. The Court still verified that the injury was sufficient for Article III purposes. These suits therefore differ from traditionally justiciable suits only in the origin of the legally protected interest; in every other way, these canonical examples are archetypal “Cases” and “Controversies.” The same cannot be said for the McGahn dispute. Interbranch information disputes are premised on institutional injuries. The Court has never wholeheartedly embraced institutional injuries as a basis for Article III standing, and there are many reasons it should not.47See generally Tara Leigh Grove, Government Standing and the Fallacy of Institutional Injury, 167 U. Pa. L. Rev. 611 (2019) (highlighting tension between allowing institutional injuries as a basis for Article III standing and our constitutional scheme). Accordingly, it is doubtful that a civil-enforcement statute falls within Congress’s limited powers to define injuries.
Moreover, the necessary presupposition for a civil-enforcement statute—that the legislative and executive branches can statutorily settle separation-of-powers disputes—is inconsistent with precedent. The theory underlying a civil-enforcement statute is that the statute “would reflect Congress’s (and perhaps the President’s) view that judicial resolution of interbranch disputes is ‘consistent with a system of separated powers.’” The proposed civil‑enforcement statute would hardly be the first attempt at such an interbranch resolution. The Court has resoundingly rejected those other attempts48See Free Enterprise Fund, 561 U.S. 477, 497 (“[T]he separation of powers does not depend on . . . whether ‘the encroached-upon branch approaches the encroachment’”) (quoting New York v. United States, 505 U.S. 144, 182 (1992)); Clinton, 524 U.S. 417, 447 (1998) (rejecting contention that interbranch agreement concerning the Line Item Veto Act could supersede the “‘finely wrought’ procedure commanded by the Constitution”) (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)); Chadha, 462 U.S. at 942 n.13 (“The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review”). and would similarly reject this attempt at interbranch settlement.
Finally, judicial resolution of interbranch disputes is antithetical to the history and text of Article III. On numerous occasions during the Constitutional Convention, various participants proposed that the legislative branch be regulated by a Council of Revision, which would wield veto power over legislation, constituted of the executive and “convenient number of the National Judiciary.”491 Max Farrand, The Records of the Federal Convention of 1787 21 (1st ed. 1911). The Council would be controlled by the judiciary, thus affording the judiciary an important role in controlling the executive-legislative relationship in much the same way that recognizing institutional injuries as a basis for standing does. But the Framers repeatedly rejected this proposal. Though their precise reasons are not clear, the rejection of the Council of Revision casts serious doubt on Congress’s power to statutorily create a modern-day equivalent by inviting the Judiciary to mediate executive-legislative relations.
Article III’s text further calls into question Congress’s power to statutorily permit judicial resolution of interbranch disputes. Article III extends the “judicial power” to several enumerated “Cases” and “Controversies,” terms which had familiar common-law signification. The party-based fonts of jurisdiction included “controversies” between states, “between a state and citizens of another state,” and so on. Conspicuously, this meticulous definition of the judicial power fails to include jurisdiction for controversies between the executive and legislative branches. The Framers also took care to place several particularly delicate areas of judicial power within the Supreme Court’s original jurisdiction. Few areas seem more delicate than interbranch disputes. If any type of controversy merited invocation of the Supreme Court’s original jurisdiction, certainly interbranch disputes would have. This is especially salient because Article III did not require the establishment of “inferior [federal] Courts.” Moreover, the federal courts, with a brief exception,50The Federalist Party, after losing the 1801 election, pushed through legislation granting federal courts general federal-question jurisdiction. Act of Feb. 13, 1801, § 11, 2 Stat. 89, 92. The Jeffersonians, however quickly repealed it. Act of Mar. 8, 1802, § 1, 2 Stat. 132. did not have federal-question jurisdiction until 1875. Before then, the state courts would have adjudicated these disputes. That cannot be what the Framer’s intended.
In sum, a civil-enforcement proposal faces constitutional difficulties on two fronts: First, it is doubtful whether a civil‑enforcement statute falls within Congress’s limited power to define Article III injuries such that statutory authorization would resolve the standing issues identified by the D.C. Circuit. Moreover, the necessary predicate, constitutional settlement, is likely prohibited under the Supreme Court’s precedent. Second and more generally, textual and historical evidence suggests that adjudication of information-access disputes between the branches exceeds the judicial power as defined in Article III. A court that wants to avoid being stuck in the middle of this red-hot political dispute can, and will, easily avoid it.
Interbranch information disputes are not going away. Most of them will be resolved by negotiation and accommodation. The branches will only reach an impasse in the most extreme cases. Perhaps because its other traditional means of compulsion are ill‑suited for use against executive officials, Congress has settled on using civil enforcement to resolve these exceptional cases. At almost every impasse in the last sixty years, Congress and scholars have expressed a desire to formalize this procedure. That impulse overlooks several significant practical concerns. A principled analysis of Supreme Court precedent and constitutional history suggests that efforts to formalize judicial resolution of interbranch conflicts will result in a devastating loss for Congress. And if Congress cannot run to the courthouse, it will have to wield its own powers, risking high political costs, to get its way in interbranch disputes. Enlisting the courts in these interbranch disputes is risky business.
* * *
Rice University, B.A. 2017; Special Assistant to the White House Counsel, 2017–2018; J.D. Candidate, Class of 2021, The University of Texas School of Law. For helpful commentary and feedback, the author thanks Hugh Brady, Dan Epstein, Matthew Reade, and The University of Chicago Law Review. The author would also like to thank Don McGahn and Annie Donaldson for their role in an incredibly formative year at the White House. This Essay reflects the author’s views only.
* * *
Photo credit: Gage Skidmore