A federal appeals court in Washington appeared poised Tuesday to allow the House to use the federal courts to enforce a committee subpoena or rein in a president who spent money without congressional appropriations.
The two House lawsuits at issue pit the chamber against the Trump administration over presidential decisions from more than a year ago: An order for former White House counsel Don McGahn to defy a subpoena to testify before the House Judiciary Committee, and February 2019 moves to spend money on construction of a wall on the U.S.-Mexico border.
Several judges on the full U.S. Court of Appeals for the District of Columbia Circuit used their questions during a three-hour telephonic oral argument to express concerns that rulings that stopped congressional lawsuits over these disputes would harm the checks and balances at the heart of the government’s three-branch structure.
The court is expected to issue an opinion at a later date. Tuesday’s discussion centered on how Congress could respond to a president who defies them without resorting to the courts.
The Justice Department’s Hashim Mooppan, early in the arguments, drew a hard line against allowing congressional lawsuits. He told the judges that the Congress should rely not on the courts but on its political tools, such as impeachment and removal from office.
“But at no point is the proper solution” to let Congress file lawsuits against a president, Mooppan said.
Mooppan stuck with that during a series of hypothetical situations during questioning from Judge Merrick Garland. He said that the House would not have the legal right to file a lawsuit to challenge the border wall spending even if the Senate joined in the lawsuit, and even if Congress had passed a law that forbid any spending on any wall.
Mooppan further said Congress would not have the right to sue a president who, after the failure of a health care bill, instructed the Treasury Department to pay for health care insurance for any American who cannot get private insurance.
Garland posed one more hypothetical situation: What if a new economic stimulus bill fails, so the president instructs the Treasury Department to send $1,000 to every American until the pandemic ends. The president also orders the attorney general not to prosecute any officials under the federal law that makes it a crime to spend money that isn’t authorized, and a pardon for any official who might be charged in the future.
“What’s the check now?” Garland said, part of what he called questions to test the scope of the Justice Department’s argument against allowing congressional lawsuits.
Mooppan responded that it’s hard for him to understand why a president who is recklessly violating all federal statutes and completely thumbing his nose at Congress “will be brought to heel by a district court judgment.”
“It's just not a very realistic hypothetical to assume that what's going to solve a constitutional crisis, of the type you’re hypothesizing, is a federal lawsuit,” Mooppan said.
House General Counsel Doug Letter told the judges that political options, such as a government shutdown, are not practical when it comes to enforcing a subpoena.
And those options “have simply failed to work” when it comes to the Trump administration, Letter said. A government shutdown over funding for the border wall was welcomed by Trump and was “a total disaster for the country.”
“If we can’t enforce subpoenas, then they really become like a joke,” Letter said. And when it comes to impeachment as a remedy for not complying with subpoenas, Letter said: “Been there done that.”
“By contrast, litigation has proven to be a tried and true mechanism by which the courts have resolved constitutional disputes between Congress and the president on many occasions,” Letter said. “There is no good reason to abandon it here.”
Letter also pointed out that Trump’s government lawyers told Senate over and over in impeachment trial that the House needed to go to court to enforce his subpoenas, “and president can ignore those subpoenas because you didn't.” That is the opposite of what the Justice Department is now arguing, Letter said.
Judge Nina Pillard asked Mooppan whether courts should look at how practical it is for Congress to use political remedies. Mooppan responded that it is up to Congress, not judges, to decide whether and how to use those political tools.
“But the question is,” Pillard said, “does it actually support the separation and balance of powers to leave the House to the sort of huge blunt disproportionate political nuclear option.”