Congress May Be on Its Own

This is the second part in an occasional series on the legal fights over congressional oversight. Read part one.

A decision this week by the DC Circuit Court of Appeals poses an existential threat to congressional oversight. A three-judge panel ruled that the House of Representatives does not have the authority to go to court to force former White House counsel Don McGahn to comply with its subpoenas, undermining one of the most potent tools the House has to oversee an increasingly obstructionist executive branch. It’s time for Congress to bolster and use its own powers to get the information it needs.

The decision is the latest in a year of whiplash-inducing court rulings on congressional oversight. We’ll unpack the other major recent ruling in the next part of this series.

While all the cases this year show that the courts are not particularly good at handling cases on congressional oversight, the McGahn decision is a sign that some judges are increasingly willing to actually undercut Congress, aggrandizing the executive branch and the presidency at the legislature’s expense.

Congress’s power to investigate comes directly from the Constitution. Two of Congress’s core responsibilities are to legislate and to impeach when necessary, both of which require the ability to uncover information and compel people to divulge it if they do not provide it voluntarily.

As part of its investigation into possible abuses of power and other misconduct by the Trump administration in 2019, the House Judiciary Committee subpoenaed McGahn to testify. McGahn refused to show, claiming that as a former presidential adviser, he’s completely immune from congressional subpoenas. The House sued to force him to appear. The federal district court in Washington, DC, ruled last fall that McGahn had to comply.

When we last wrote about the case four months ago, a three-judge panel of the DC Circuit Court of Appeals had weighed in and come to the preposterous conclusion that the courts lacked the authority to hear the case in the first place—despite the fact that the courts have heard several similar cases since the 1970s. The case has continued to tie the DC Circuit in knots. In early August, the full court overturned that ruling and sent it back to the three-judge panel.

This week, the panel came up with a real gem: It said that although the courts could hear the case, the House hadn’t pointed to a specific law that authorized it to file the lawsuit. Stating that the House lacks a “cause of action,” the panel threw out the lawsuit a second time.

This decision diverges from rulings in multiple previous cases that have found that the House does have this authority. Among the reasons those judges found for approving the House’s lawsuits is that the authority to defend the House’s constitutional powers comes from the Constitution itself—meaning there should be no need to point to a specific statute. And while the McGahn panel supported its conclusion by pointing to the fact that there is a statute that authorizes the Senate to file lawsuits in some instances, there is good evidence that that statute merely made explicit powers that both houses of Congress already possessed, and still do.

An appeal is already in the works, and given how thoroughly the full circuit court rejected the panel’s first attempt to get rid of the case, it may do so again.

But in litigation, as in life, there are no guarantees. If the full circuit court allows this ruling to stand, the practical effect would be that the House of Representatives cannot go to court to force people to testify.

That would be a major blow to our already -fragile system of checks and balances. The Trump administration has perfected the practice of obstructing congressional oversight, but the executive branch’s attempts to avoid scrutiny began long before this administration, and will likely outlast it. As we’ve written, the Justice Department already refuses to prosecute executive branch officials for refusing to testify if they do so at the order of the president, and the department’s Office of Legal Counsel has been churning out theories about why many congressional subpoenas are invalid. And while Congress can do things like withhold funding or refuse to confirm nominees to punish the executive branch for blowing off subpoenas, a more targeted enforcement tool would be better for Congress and for the country.

If the ruling stands, it leaves Congress with two options. One is to pass legislation giving the House explicit authority to bring lawsuits to enforce its subpoenas. The problem is that presidents, who would typically prefer to avoid oversight in the first place, can veto bills before they become law. Indeed, when Congress passed a bill in the 1970s allowing a Senate committee to sue to enforce its subpoena for the Watergate tapes, President Richard Nixon refused to sign it. Nixon didn’t outright veto it, so it still became law, but another president might not be so restrained. In any case, the episode illustrates the conflict inherent in giving a president a say over Congress’s powers.

Fortunately, Congress’s second option sidesteps that problem. It is settled law that Congress can act on its own to punish people who refuse to comply with its subpoenas. It used to do this by arresting people, and could resume the practice. It has other avenues to bolster its powers as well. We support proposals for Congress to adopt rules allowing it to use its inherent contempt power to issue fines or hire its own lawyers to prosecute criminal cases against people who defy its subpoenas. The courts have practically been daring Congress to use its inherent contempt powers, and it should.

Even if this week’s ruling in the McGahn case gets overturned on appeal, it should be a wake-up call for Congress. Some courts may simply be inclined to diminish and limit Congress’s oversight powers, and, as we’ll examine in the next part of this series, even when rulings do go in Congress’s favor, it still faces serious disadvantages. Congress would be wise to enhance—and use—its contempt powers when it can.