Late last week, in Committee on the Judiciary of the House of Representatives v. McGahn, a panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 that it lacked the power to enforce the House Judiciary Committee’s subpoena to former White House Counsel Don McGahn. Although the court invoked the Constitution’s Article III as an obstacle to adjudication, only a great fool could take seriously its claim to be staying out of an interbranch dispute. The ruling is a clear victory for Donald Trump and his vision of the President as King. And the clear loser is the constitutional system as a whole.
The Opinion’s Stunning Breadth
In the McGahn case, the appeals court concluded that the Constitution vests no power in federal courts to adjudicate interbranch disputes absent some direct impact on “the rights of individuals.” The court purported to derive this limit from Article III, which authorizes the federal courts to adjudicate “cases” and “controversies.” Because no private party has been harmed, the court asserted, the McGahn case was . . . not a case. The ruling is preposterous (which is not to say that five justices of the Trump-packed Supreme Court will not uphold it).
Consider disputes between the federal government and the states. They too involve what the appeals court termed mere “intramural” contests, as both state governments and the national government are part of one federal system. Yet federal courts routinely referee such cases. For example, in my last Verdict column I discussed an important doctrine of federalism announced in New York v. United States. Meanwhile, the Supreme Court currently has on its docket various cases pitting one or more states against the federal government, such as Pennsylvania v. Trump, which is a case against the President in his official capacity and thus one that does not implicate “the rights of individuals.”
Perhaps the D.C. Circuit forgot about the existence of the states, but was it nonetheless correct that federal courts do not resolve disputes between branches of the federal government? No, it was wrong about that too. The court acknowledged that it has in fact resolved such disputes, including one involving a Senate subpoena to President Nixon during Watergate, but then, quoting my colleague Josh Chafetz, decided to disregard those precedents on the ground that “courts have never offered a persuasive reason why a congressional subpoena to an executive branch official” gives rise to a proper case.
That is a truly stunning move. Just as a technical legal matter, federal appeals courts are bound by their prior applicable precedents absent an intervening precedent by the Supreme Court or an en banc decision of the circuit. Here there was neither. However persuasive a law professor might be, our books and articles do not set or supersede federal judicial precedents.
To be sure, the appeals court claimed that there was an intervening decision, the U.S. Supreme Court’s 1997 decision in Raines v. Byrd. Yet that case rejected standing for individual members of Congress to sue an executive official claiming an abstract interest in preventing the implementation of an unconstitutional law. It has virtually nothing to do with a case like McGahn, in which a committee of Congress sues to enforce a concrete subpoena. Thus, not surprisingly, cases that the appeals court itself cites post-date Raines and allow adjudication of interbranch disputes.
Negotiation and Self-Help
In any event, with due respect to Professor Chafetz, there is indeed a persuasive reason why courts should adjudicate the validity of a congressional subpoena: When push comes to shove, there is no practical alternative, except perhaps armed conflict.
To be sure, the appeals court was correct that in many past conflicts between the White House and Congress, resolution was achieved through negotiation. And courts have sometimes appropriately stayed their hand while the branches worked out a compromise. The question in a case like McGahn, however, is what happens when intransigence prevails—as it does here, given the President’s blanket prohibition on cooperation and claim to absolute immunity.
Professor Chafetz argues—and the appeals court agreed—that Congress has tools of its own to enforce its subpoenas. For example, the House, wielding the power of the purse, could refuse to fund various executive priorities. The problem with that approach, however, is that it invites a game of chicken that could have extreme collateral consequences, as we have seen repeatedly in recent years in standoffs between the parties over funding the government and raising the debt ceiling to pay existing obligations. The spending power is potent, but it is a blunderbuss that cannot be wielded effectively for the limited purpose of enforcing a subpoena.
Are there other tools? Congress could hold a recalcitrant executive official in contempt, but to what end when the Justice Department—these days acting essentially as the President’s personal agent—decides whether to enforce the contempt?
That leaves congressional enforcement itself. Professor Chafetz has pointed to long-ago practice, in which Congress enforced its sanctions by sending its Sergeant-at-Arms to arrest an executive official who refused to testify. Yet as Judge Rogers observed in dissent in McGahn, there is a “vanishingly slim” chance that Congress would do so here. And if it did, can anyone predict confidently that he would not be met by force exercised on Trump’s behalf? The very point of courts—indeed, of civil government—is to substitute peaceful resolution of disputes for armed confrontation.
How Democracies Die
In their insightful 2018 book How to Save a Constitutional Democracy, University of Chicago Law Professors Tom Ginsburg and Aziz Huq identify three key elements of liberal constitutional democracy as distinct from other kinds of regimes: (1) free and fair elections in which the losers concede to the winners; (2) freedom of speech, press, and association; and (3) “integrity of law and legal institutions.” Donald Trump and his enablers pose a threat to all three elements. To make matters worse, the McGahn ruling undermines the two institutions best suited to combat democratic erosion: Congress and the courts.
Pointing to a robust political science literature across many countries over many decades, Ginsburg and Huq observe that parliamentary democracies appear better able than presidential ones to resist backsliding into authoritarian or illiberal democratic regimes. The U.S., of course, has a presidential system, and that cannot be changed without a constitutional amendment. But given the risk our system poses that “a candidate hostile to democratic persistence” could “come to power” (ahem!), it would seem all the more important for courts—whose “democracy-protecting function . . . deserves celebration” for helping to “consolidate democracy in myriad environments” to reinforce those institutions “tasked with the questioning, investigation, and eventually punishment of unlawful or self-dealing uses of official responsibilities.” A court that took that responsibility seriously would see the enforcement of the McGahn subpoena as the very core of its function.
In one sense, the lesson I have drawn from Ginsburg and Huq echoes the view of the late Stanford Law School Dean John Hart Ely, whose influential 1980 book Democracy and Distrust justified the power of courts in our constitutional system by pointing to the “representation reinforcing” role of judicial review. I nonetheless cite Ginsburg and Huq in addition to Ely because their wider comparative lens enables us to see the danger more clearly. Liberal democracies can collapse or erode, and they call our attention to the urgent need to strengthen the institutions that act against collapse and erosion.
Judges with courage to stand up to populists and other would-be authoritarians have sometimes answered the bell. Ginsburg and Huq note how the Colombian Supreme Court almost single-handedly protected democracy in that country and how judges in the Weimar Republic failed to use powers they had.
The D.C. Circuit opinion in McGahn talks the talk of constitutional limits, but it allows the walk of constitutional descent. It calls to mind a recent poignant letter by Mirosław Wyrzykowski, a former judge of the Constitutional Tribunal of Poland, which, along with Hungary, has seen a vibrant liberal democracy transformed into an illiberal shadow of itself in the space of a few years.
As Wyrzykowski observes, the transformation need not occur via an overt coup or even come from self-professed enemies of the Constitution. On the contrary, he explains that “actions against constitutional democracy are carried out by the constitutional organs of th[e] country. . . . That [the courts] become a co-creator of actions violating the constitutional order of the state. That the brake pedals . . . become gas pedals. And the oath of fidelity to the constitution sounds like mockery.”
The lament for Poland should be a warning for the United States. How many more warnings will we ignore before it is too late?