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En Banc D.C. Circuit Concludes House Has Standing to Enforce Subpoena in Court (Updated)

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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 inCommittee on the Judiciary v. McGahn. Judges Karen Henderson and Thomas Griffith each dissented. [Note that in the original panel decsion, Judge Griffith wrote the opinion for the court, Judge Henderson concurred, and Judge Rogers dissented.] Judges Greg Katsas and Neomi Rao did not participate.

In a separate order, the en banc court remandedU.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 inMcGahn 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’sMazarsopinion 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 theMcGahnlitigation. 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.

Judge Henderson dissents to reiterate the points she made in her concurrence to the original panel decision concluding the House Judiciary Committee lacks standing. Her brief dissent to today’s decision concludes:

By holding that the Committee has standing, the majority enlarges the Judiciary’s power to intervene in battles that should be waged between the Legislature and the Executive and opens the door to future disputes between the political branches. . . . Even if “the precise function” we perform in this casesubpoena enforcement”is a traditional feature of civil litigation in federal court,” Majority Op. at 27, “congressional subpoenas directed at” the Executive Branch “differ markedly” because they “unavoidably pit the political branches against one another,” Mazars, 140 S. Ct. at 2034. This distinction matters. If the interbranch character of the dispute was of no consequence, any President could presumably challenge in court laws that he believes infringe upon Article II powers. And statutory interpretation, like subpoena enforcement, is also a “familiar judicial exercise.” Majority Op. at 26 . . . Although “[t]here would be nothing irrational about a system that granted standing in” such a case, “it is obviously not the regime that has obtained under our Constitution to date.” Raines, 521 U.S. at 828. “In limiting the judicial power to ‘Cases’ and ‘Controversies,’ Article III of the Constitution restricts it to the traditional role of Anglo-American courts,” . . . which did not hear suits between coordinate branches of government. The majority’s broad conception of legislative standing, however, disregards this limitation. Accordingly, I respectfully dissent.

Judge Griffith, who wrote the original panel opinion, also dissented. His opinion begins:

Today the court relegates the separation of powers from a core component of Article III to an afterthought. The court severs the standing analysis from its separation-of-powers roots and treats a direct dispute between the Legislative and Executive Branches as if it were any old case. The result is an anemic Article III jurisprudence that flouts a long line of Supreme Court precedent, ignores the basic structure of the Constitution, and resuscitates long-discredited case law from this circuit.

And for what? Who benefits from today’s decision? Not Congress. The majority’s ruling will supplant negotiation with litigation, making it harder for Congress to secure the information it needs. And the Committee likely won’t even get what it wants in this case. Because the majority declines to decide whether the Committee has a cause of action and whether it should prevail on the merits, the chances that the Committee hears McGahn’s testimony anytime soon are vanishingly slim. The federal courts won’t benefit, either. The majority’s decision will compel us to referee an interminable series of interbranch disputes, politicizing the Judiciary by repeatedly forcing us to take sides between the branches. Most importantly, the decision does grave harm to the Constitution’s system of separated powers, which constrains federal courts to the narrow task of resolving concrete “Cases” and “Controversies” so that elected representatives call the political shots. I cannot join the court’s expedition into an area where we do not belong and can do no good.

TheMcGahn case was heard en banc in conjunction with theMnuchincase, in which the House argued that the Trump Administration unlawfully reallocated funds to pay for border wall construction. According to a separate order issued in Mnuchin, McGahnresolved the “common issue of Article III standing presented” in both cases, “by holding that there is no general bar against the House of Representatives’ standing in all cases involving purely interbranch disputes,” but did not decide whether this is sufficient to provide for standing in a case alleging the Executive branch is spending unappropriated funds. Thus, theMnuchin case is remanded back to the original panel for resolution of this question, over the dissent of Judges Griffith and Henderson, both arguing that this question should have been fully resolved by the en banc court.

Judge Griffith’sMnuchin dissent begins:

Today the en banc court issues an order remanding this case to the three-judge panel without deciding the sole issue we agreed to resolve: whether the House of Representatives has Article III standing to sue the Executive Branch for violating the Appropriations Clause. The parties have been litigating this case for well over a year, and the court’s remand of the matter to the panel will likely delay final judgment for at least that long again. Such delay not only deprives the parties of timely resolution of this dispute, but it leaves this circuit’s law on congressional standing uncertain. That confusion invites Congress to continue to litigate its political disputes with the Executive Branchto the detriment of both Congress and the Judiciary.

This is not a hard case. Even under the return to the discredited view of legislative standing that the court adopts today in McGahn, the House still lacks Article III standing to sue to enforce the Appropriations Clause. At bottom, the House’s lawsuit is indistinguishable from a claim that the Executive Branch has failed to follow the lawa “generalized grievance[]” that cannot confer Article III standing. . . . What’s more, the House alone cannot sue to protect Congress’s interest in enforcing the Appropriations Clause, as the Supreme Court made clear in Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953-54 (2019). The House’s lawsuit must be dismissed.

The Mnuchin order is is about as pure a judicial punt as I have ever seen. As the judges surely know, concluding that the House could sue alleging unlawful expenditures by the Executive Branch would almost certainly prompt Supreme Court review (and including such a holding in theMcGahndecision would have made that holding more vulnerable too).

In many respects, theMnuchin case is very similar to the lawsuit the then-Republican-controlled House filed against the Obama Administration over illegal payments to insurers under the Affordable Care Act. In both cases the House claim was that the Executive Branch was spending money the House expressly refused to appropriate. When the House sued the Obama Administration, however, most legal commentators argued that the case was absurd, and mocked the claim that the House might have standing. At the time of that case (House v. Burwell, which I blogged about here) I agreed that the House should not have standing to press such a claim, but I also argued that the claim was not as easily distinguishible from standing to sue to enforce a subpoena as many assumed. We shall see whether the D.C. Circuit ultimately agrees—unless, of course, the case is mooted by the election and a change in Administration.

 

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Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories – KTVZ

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Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories - KTVZ

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Sen. Bernie Sanders of Vermont and Senate Democratic Leader Chuck Schumer of New York are calling on Majority Leader Mitch McConnell to create a new bipartisan committee focused on election integrity and schedule hearings to reassure Americans over a process President Donald Trump has repeatedly sought to undermine.

There is growing anxiety among Democrats, and some Republicans, that Trump will not only continue to sow doubt over the legitimacy of the coming election but throw the subsequent count into chaos by declaring victory before all the votes can be tallied, including the millions that will arrive by mail.

In a letter to McConnell, Sanders and Schumer quote back the Kentucky senator’s own words, in which he attested to the reliability of mail-in voting by citing its successes in Oregon, Washington and Colorado, which have been using the system for years.

Trump has repeatedly questioned the validity of mail-in voting, promoted conspiracy theories questioning election security, called on supporters to act as unsanctioned “poll watchers,” and suggested that the absence of a clear result by the evening of November 3 would in some way cast doubt on the eventual outcome. Key allies in powerful positions, like Attorney General Bill Barr, have followed suit. Barr has persisted in puffing up a debunked claim that ballots received by mail would somehow strip the sender of their privacy — ignoring well-established safeguards.

By escalating the matter now, Sanders and Schumer are responding to growing concern, in partisan and nonpartisan spaces, that Americans are not adequately prepared for the potential of a longer-than-usual wait for results or Trump’s willingness to short-circuit the democratic process if he smells defeat.

“Democrats and Republicans in Congress must come together to ensure that we have a free and fair election where every vote is cast and counted without intimidation,” Sanders told CNN, “where no one has to put his or her health in danger to cast a ballot, and where we have full confidence in the results.”

The proposed hearings would invite a cross-section of election officials from across the country to testify to the security and reliability of mail-in, early- and in-person voting — subjects on which Sanders and Schumer, again, referenced McConnell’s own words.

“Despite the clear security of our vote-by-mail system, some have continued to undermine it with unsubstantiated claims of voter fraud,” they wrote. “As you have correctly said, people ‘can vote early, you can vote on Election Day, or you can drop it in the mail,’ and that voters should ‘not worry about your vote not counting.’”

The minority leader and Sanders, an independent who caucuses with the Democrats, also want more detailed discussion about the fraught hours, or days, after the polls close and a real-time watch of the election horse race potentially swings from one candidate to another.

“We know a number of states may well be counting ballots for a period of time after Election Day, and that those votes may be determinative in this election,” the senators wrote to McConnell. “To avoid disinformation, conspiracy theories, and suspicion about results, we must understand the likely timeline for this process.”

The letter goes on to reference the recent war games-style preparations conducted by a group called the Transition Integrity Project, a bipartisan gathering of operatives and academics that made headlines when some of the outcomes of their exercises — including “both street-level violence and political impasse” — were reported on in late July.

“A bipartisan group of experts and officials have studied multiple scenarios where the outcome of the election was not immediately known. Some of these scenarios resulted in unrest and even violence,” Sanders and Schumer wrote, suggesting the Senate should elevate similar discussions and familiarize the public with the uncertainties ahead. “We would like to hear from the most knowledgeable people in the country as to how we can do everything possible to make sure that the election and the period afterward is secure and peaceful.”

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HHS official sorry for conspiracy theory video

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HHS official sorry for conspiracy theory video

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HHS supported Caputo, with a statement that called him a critical, integral part of the presidents coronavirus response, leading on public messaging as Americans need public health information to defeat the COVID-19 pandemic.

There was no immediate statement from the White House.

Attempts to reach Caputo were unsuccessful.

On Capitol Hill, Sen. Patty Murray, D-Wash., called on Azar to fire Caputo, accusing the spokesman of trying to interfere with CDC reports to the medical and scientific community, as well as the public at large. And Senate Minority leader Chuck Schumer, D-N.Y., called on Azar himself to resign, citing interference with the CDC as one example of what he termed the administration’s failures.

Officials at CDC have privately complained of recent efforts by political appointees at main HHS to try to edit or press for changes in the agency’s weekly MMWR publications, a go-to resource for public health professionals.

MMWR articles are technical, but they reveal telling details. One published earlier this year noted that while Trump’s travel restrictions dramatically reduced travel from China in February, nothing was being done at that time to restrict travel from Italy and Europe, where the coronavirus was spreading widely and rapidly. Analysis of virus samples from hard-hit New York in March suggested it was introduced there from Europe and other parts of the U.S., the CDC article reported.

Caputo is an unswerving Trump loyalist. His recent book, The Ukraine Hoax, claims the presidents phony impeachment was rooted in a vast conspiracy.

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unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS…

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unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS...

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My RSS Feedunwinona:

This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS and Polio narrative (among others), only we’re seeing it escalated to weeks and months instead of years or decades.

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