//  6/14/19  //  Commentary

Earlier this week, the House of Representatives passed a resolution that suggested that it may soon be going to court to enforce congressional subpoenas.  That prospect makes clear why a loss the House experienced last week in its challenge to President Trump’s so-called border wall wasn’t all bad news. 

Last week, a district court judge for the District of Columbia held that the House of Representatives doesn’t have standing to sue President Trump for diverting funds that Congress appropriated for other purposes to build his so-called border wall.  While that decision was certainly bad news in the short term for the House’s effort to stop the President’s border wall, the opinion actually contained some very good news for the House—and for everyone who thinks that congressional oversight is a critical component of our nation’s system of checks and balances.

When President Trump earlier this year declared a “national emergency” and announced that he was going to divert funds to build a wall along the Southern border, a number of parties quickly went to court to try to stop him, and the U.S. House of Representatives was among them, arguing that two of the statutes on which the President was relying for authority “do not authorize the use of funds for building a border wall and that the Administration’s planned spending therefore violates the Appropriations Clause of the Constitution.”  While one of the other border wall suits has already seen some success, this House effort to stop the wall hit a hurdle last week when Judge Trevor McFadden held that the House failed to allege the kind of “concrete and particularized” injury that it needs in order to sue. 

But this opinion may end up being less important for what it said about the House’s lack of standing to sue about the border wall, and more important for what it said about an entirely different topic.  Because while Judge McFadden, who was appointed to the bench by President Trump in 2017, made clear that he doesn’t think the House has standing to sue over this alleged violation of the Appropriations Clause, he went out of his way to distinguish this case from other ones that the House might be bringing soon: cases to enforce congressional subpoenas. 

Ever since leadership of the House changed at the beginning of this year, House Committees have begun to exercise their authority to engage in oversight of this President and his Administration, seeking information on a wide array of topics ranging from the President’s taxes to his use of national security clearances to the Mueller report.  And that’s a good thing: Congress’s power to investigate has deep roots in our nation’s political tradition, and congressional oversight is a critical component of our nation’s system of checks and balances. 

The Administration’s response to these requests for information has been uniform: obstruction.  Against the backdrop of presidential tweets about “[p]residential [h]arassment,” the President’s subordinates have been refusing to comply with even routine oversight requests.  As Representative Elijah Cummings, chair of a Committee explicitly tasked with government oversight, wrote in March, “I have sent 12 letters to the White House on a half-dozen topics — some routine and some relating to our core national security interests. . . .  The White House has not turned over a single piece of paper to our committee or made a single official available for testimony during the 116th Congress.”

Fortunately, there are things Congress can do in response to this obstruction—among them going to court.  As my colleagues and I have previously written, “the U.S. Court of Appeals for the D.C. Circuit has long recognized that the House of Representatives ‘has standing to assert its investigatory power’ in court by seeking to ensure compliance with its subpoenas,” and two relatively recent district court decisions have also recognized that the House can go into court to enforce subpoenas.

And that brings us back to Judge McFadden’s opinion, because the good news for the House is that Judge McFadden seems to agree.  According to Judge McFadden, “using the Judiciary to vindicate the House’s investigatory power is constitutionally distinct from seeking Article III standing for a supposed harm to Congress’s Appropriations power” because, unlike the Appropriations power, which requires both houses of Congress to pass a law and the President to sign it, “the investigatory power is one of the few under the Constitution that each House of Congress may exercise individually.”  As he later noted, “the House has, since the Founding era, exercised an independent power to conduct investigations and gather information.”

McFadden went on: “It is perhaps for this reason that the House’s power to investigate has been enforced with periodic help from federal courts.”  And he proceeded to cite two Supreme Court cases that discussed the breadth of Congress’s power to investigate and explained why this power is so important.  As the Supreme Court’s opinion in one of those cases put it, a “legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”

Although Judge McFadden made clear that he did not need to decide whether the House has standing to enforce subpoenas, what he said nonetheless strongly suggests that he would conclude that they do.  Against the backdrop of the Trump Administration’s repeated suggestions that the House’s efforts to engage in oversight are somehow illegitimate and arguments made by the President’s personal lawyers that would significantly shrink the scope of Congress’s oversight power, Judge McFadden’s comments are significant.

As Judge McFadden noted, congressional oversight is as old as the Congress itself.  It is also incredibly important.  The discussion of Congress’s oversight powers in this border wall opinion—again, written by a judge appointed by this President—underscores how uncontroversial it should be for Congress to ask the Administration for information and, if need be, to go into court to enforce that request.


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