The House of Representatives is suing, more than ever before. Consider three of its recent claims:

• On April 5, 2019, the House sued Treasury Secretary Steven Mnuchin to prevent various executive departments from spending money to build a border wall.
• On July 2, 2019, the House sued the Treasury Department and the IRS to enforce subpoenas for President Trump’s tax returns.
• And on November 26, 2019, the House sued Attorney General William Barr and Secretary of Commerce Wilbur Ross for refusing to produce documents regarding the Administration’s effort to add a citizenship question to the 2020 Census.

These cases are hardly alone. The House is filing suit “at a tempo never seen before,” which experts have called “like nothing else in history.” And with impeachment proceedings underway, the litigation blitz is only poised to continue.

But how does the House actually initiate a lawsuit? Until 2015, the House sued by voting as a full chamber to authorize a claim. But that year the House changed its rules to allow a five-member group called the Bipartisan Legal Advisory Committee—BLAG for short—to initiate lawsuits on the chamber’s behalf. Composed of the Speaker, Majority Leader and Whip, and the Minority Leader and Minority Whip, BLAG today “speaks for, and articulates the institutional position of, the House in all litigation matters.” Indeed, pursuant to a recent House resolution, the House maintains that a vote of BLAG to authorize suit “is the equivalent of a vote of the full House of Representatives” for the purposes of initiating litigation. As a result, in none of the three cases mentioned above did the full House actually vote to sue: BLAG launched each lawsuit on the House’s behalf with 3–2 votes.

But is the House’s delegation of litigating authority constitutional? And is the question even justiciable? The Executive contests the delegation’s legality. It argues that a vote of BLAG “is not adequate for constitutional purposes” because “[j]ust as the House could not by resolution delegate to a subset of its members the authority to pass legislation,” so too “it cannot provide the BLAG blanket, pre-emptive authority to file whatever litigation it might devise.” The House responds, arguing that the Article I, Section 5 Rulemaking Clause allows the House to empower BLAG to make litigation decisions, just as it allows the House to create other committees and assign them duties. To hold otherwise, argues the House, would “undermine the House’s constitutionally mandated right to create its own Rules.”

The question of whether BLAG may constitutionally authorize lawsuits on behalf of the House raises novel issues at the intersection of Articles I and III. It is foundational to every active lawsuit the House is currently pursuing. And it is to date entirely unstudied.

My new draft Article, just posted on SSRN, is the first to identify and examine these questions. First, it asks, can the House constitutionally allow BLAG to initiate litigation on the chamber’s behalf? And second, is that delegation justiciable? The Article first finds the delegation likely represents a proper exercise of the House’s Article I, Section 5 power to “determine the Rules of its Proceedings.” And on similar analysis, it concludes courts should in the alternative find the delegation poses an unreviewable political question. The Article rebuts charges that BLAG may not constitutionally authorize suit on behalf of the chamber: the practice both passes constitutional muster and lies outside the province of the courts. In so doing, it aims to open a conversation over this powerful, unexamined actor in American public law.

The Article proceeds in three Parts. Part I charts BLAG’s history and discusses the legal stakes. It begins by exploring the untold history of the group’s development, illuminating the rise of this powerful, under-analyzed entity in American public law.  It then discusses the legal importance of BLAG authorization. In nearly all legislative suits, including all the House’s current claims, plaintiffs need authorization from the House in order to maintain standing—leaving vitally important the mechanism by which the House authorizes suit.

Part II tackles the substantive question itself. It maps the legal landscape within which BLAG operates, and explores the range of other, comparable ways the modern House delegates authority to sub-components inside and outside the chamber. In so doing, it concludes BLAG likely represents a proper delegation within the mainstream of current House practice. And normatively, that makes sense: despite separation of powers concerns, the House should be able to structure itself to provide for expeditious, representative decision-making. 

Part III considers whether courts are constitutionally authorized to pass judgment on the House’s internal delegation in any event. It charts the modern development of the political question doctrine, and finds that the BLAG delegation issue falls within the doctrine’s sweep. Finally, the conclusion raises broader implications. 

The draft can be found here; I eagerly welcome thoughts at bmillergootnick@jd21.law.harvard.edu. Hope you enjoy!

Tags: