One of the features of the modern failed or illiberal democracy is that what the autocrat does is normally within the bounds of legality set by the country’s courts, which have usually been stacked with sycophants or intimidated into submission. This is true for Orban in Hungary and for the Law and Justice Party in Poland. Even Putin sometimes feels a need to work within legal bounds which is why he is again trying to change the constitution in order to avoid being term-limited out of power in 2024. It appears that US courts may be heading in the same direction, the victim of years of out-of-the-mainstream conservative judicial appointments by Republican presidents combined with the massive obstruction of Obama’s judicial nominees, including the swing seat on the Supreme Court.
Late on Friday, a three judge panel from the DC Circuit Appeals Court effectively ended congressional oversight of the executive branch by refusing to enforce a valid legal subpoena from Congress for Don McGahn’s testimony. As the dissenting justice so eloquently put it, “Today the court reaches the extraordinary conclusion that the House of Representatives, in the exercise of its ‘sole Power of Impeachment,’…lacks standing under Article III of the Constitution to seek judicial enforcement of a subpoena in connection with an investigation into whether to impeach the President…The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties”.
The decision was by a 2–1 vote, with Bush I and II having appointed the justices in the majority. The majority ruled that the House had no standing to get the courts to enforce its subpoena of McGahn, writing that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute…The branches are thus locked in a bitter political showdown that raises a contentious constitutional issue: The Committee claims an absolute right to McGahn’s testimony, and the President claims an absolute right to refuse it. We cannot decide this case without declaring the actions of one or the other unconstitutional, and ‘occasions for constitutional confrontation. . . should be avoided whenever possible’”. In fact, the Court declined to uphold the President’s claim of testimonial immunity for McGahn, effectively negating the President’s claims, but refused to act upon that conclusion.
The absurdity of saying that the Court can not decide a case because that would mean determining that one side or the other was violating the Constitution is self-evident. That has been the function of the judicial branch since John Marshall declared that “It is emphatically the province and duty of the Judicial Department to say what the law is” in the seminal case of Marbury v. Madison in 1803. That interpretation of the role of the judicial branch was reiterated as recently as 2012 by Chief Justice John Roberts who declared that resolving disputes about the separation of powers is exactly what courts do. Of course, the Court also simply ignored the more recent precedent in which courts have interjected themselves into disputes between the legislative and executive branches, simply dismissing those decisions out of hand. The majority writes, “To be sure, as the Committee notes, courts in this circuit have agreed to resolve a handful of interbranch information disputes beginning in the 1970s”…but “the innovations of the 1970s shouldn’t displace the established practice of the 1790s”.
The majority’s absurdities continue as they expressed a fear that, if they decided this case, then, God forbid, they may have to decide other cases like it. They write, “Judicial entanglement in the branches’ political affairs would not end here. If the Committee can enforce this subpoena in the courts, chambers of Congress (and their duly authorized committees) can enforce any subpoena…We would be forced to supervise the branches, scrutinize their asserted constitutional interests, and elaborate a common law of congressional investigations…simply consider this case. If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions. The Committee finds those assertions baseless. In that case, the Committee assures us, it would come right back to court to make McGahn talk…The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often”.
In another remarkable statement, the majority restricts the breadth of its opinion, writing, “We conclude by noting a few limitations on the scope of this decision: First, we do not address whether a chamber of Congress may bring a civil suit against private citizens to enforce a subpoena”. Of course, McGahn is now a private citizen so it would seem remarkable that this case would not address the issue. The way the Court gets around this is by framing the case as the battle between the executive and legislative branches, rather than Congress simply subpoenaing a private citizen.
Lastly, the majority admits that Congress may not have the tools to full engage in their constitutional duty of executive oversight but that can always be solved at the ballot box. They write, “Nevertheless, the inevitable consequence of Article III’s case-or-controversy requirement is that Congress will obtain only the concessions it can wrest from the Executive Branch with the ample but imperfect tools at its disposal. Sometimes, those tools will yield fewer concessions than Congress might wish, but the remedy for that perceived wrong is in politics or at the ballot box. If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual ‘overseer[s]’ of our elected officials”. This, again, basically ignores the fact that the people did speak at the ballot box in 2018, installing a Democratic House in the belief they would provide effective oversight and restraint on the President. That oversight and restraint is being effectively denied by the President in what the Court admits may be an unconstitutional act based on a legal theory of testimonial immunity that the Court specifically rejected. And yet the Court refuses to intervene.
In fact, the Court’s refusal to act has the same immediate effect as having sided with the President in that Congress still will not be able to get McGahn to appear. But, from the beginning, the way the DC Circuit has handled this case has always redounded to Trump’s benefit. Their delay in adjudicating this case allowed Trump’s lawyers to argue during his impeachment trial that the House had not exhausted its efforts to enforce the various subpoenas that Trump and his administration were defying. At the same time that Trump’s lawyers were making that argument in US Senate, they were arguing in this case that the courts had no role to play in enforcing the House subpoenas. The DC Court’s delay effectively allowed Trump to have it both ways. Finally, it appears that the Court deliberately held back from releasing this decision until late in the day on Friday, the typical time for making news under the radar.
Thankfully, this case will not end with this decision. Presumably the House will appeal to the full DC Circuit Court and then on to the Supreme Court. But it is important to note that the DC Court of Appeals is the most important appeals court in the nation, second in importance only to the Supreme Court. This level of jurisprudence on such a court is concerning, to say the least. And it is not just in this case. In another case involving the House subpoena for Trump’s financial records that was actually upheld by a separate DC panel, the dissenting opinion claimed that “the [House] Committee’s specific investigation specifically the President, if it is to continue, may be pursued only through impeachment”. Taken together, the dissenting opinion in the financial records case says Congress can only use impeachment to get the courts to enforce its subpoenas, while the majority opinion in the McGahn case says the courts can’t enforce those subpoenas even if they are part of the impeachment process. It’s a nice catch-22 that remarkably protects the President in every instance.
Unfortunately, the Supreme Court has protected Trump in much the same way as the DC Court of Appeals. Steve Vladeck recently compiled statistics showing that the Trump administration has asked the Supreme Court stays of lower court decisions 24 times compared to just eight requests in total from the Bush and Obama administrations combined. The Court has fully granted eleven of those requests and partially granted three others, a nearly 60% success rate. Worse, many of those stays involved injunction that did “not have universal application”. The Court’s 24th stay involving the public charge rule that would allow the administration to deny immigration to those it felt might use public assistance highlighted just how much the Court allows the Trump administration to have it both ways. In January, the Court granted a stay that allowed the rule to go forward based in the administration’s claim that the lower court’s nationwide injunction against the rule created an unusual burden. That stay allowed the new public charge rule to go into effect in every state but Illinois where there was already pending litigation. Now, just over one month later, the administration was back at the Supreme Court arguing for and receiving a stay in the Illinois case, not because it is because of any real burden but because of its temporary inability to enforce the rule in that state.
As Sonia Sotomayor detailed in her strong dissent, “Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists-even though review in a court of appeals is imminent-that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields. But this application is perhaps even more concerning than past ones. Just weeks ago, this Court granted a stay of a different decision involving the same administrative rule at issue here, after the Government professed urgency because of the form of relief granted in the prior case-a nationwide injunction. The Government now uses that stay-of a nationwide injunction-to insist that it is entitled to one here. But the injunction in this case is limited to one State, Illinois. The Government cannot state with precision any of the supposed harm that would come from the Illinois-specific injunction, and the Court of Appeals for the Seventh Circuit has scheduled oral argument for next week. The Government’s professed harm, therefore, boils down to an inability to enforce its immigration goals, possibly in only the immediate term, in one of 50 States. It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it”.
Sotomayor then proceeded to rip her five conservative colleagues who provided the majority in both stay decisions. “this Court is partly to blame for the breakdown in the appellate process. That is because the Court-in this case, the New York cases, and many others-has been all too quick to grant the Government’s ‘reflexiv[e]’ requests…But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay…They demand extensive time and resources when the Court’s intervention may well be unnecessary-particularly when, as here, a court of appeals is poised to decide the issue for itself. Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions-where the risk of irreparable harm is the loss of life-to proceed, justifying many of those decisions on purported failures ‘to raise any potentially meritorious claims in a timely manner’…Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances- where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decision-making process that this Court must strive to protect”.
Sotomayor might have very well added that the willingness to “upend the normal appellate process” in order to benefit “one litigant over all others” contrasts quite sharply with their seeming approval of the rather languorous pace the courts have taken in hearing the cases regarding the defiance of House subpoenas that even involve Trump’s impeachment. That pace makes it unlikely that the House will get the materials and testimony they seek before the November election even if the Supreme Court rules on some of these cases later this Spring. It is remarkable to think that the Supreme Court took a little more than three months from when the House first subpoenaed the Nixon Watergate tapes to its fateful decision in July, 1974. That would seem impossible in today’s courts.
Relatedly, the Supreme Court recently ruled, with the conservatives once again providing the majority, that the US border guard who shot a Mexican national on the Mexican side of the border can not be sued in federal court. Currently, there is a federal law that allows state law enforcement officers to be sued in federal courts for constitutional violations. There is no such law for federal law enforcement officers but, since the Supreme Court’s 1971 case Bivens v. Six Unknown Named Agents, it has been understood that the Fourth Amendment’s prohibition against unreasonable search and seizures made implicit the right to sue federal officers for constitutional violations in federal court.
Justice Alito, writing for the majority, manages to ignore the precedent of Bivens by pretending that it has already been overturned. He writes, “We have stated that expansion of Bivens is ‘a “disfavored” judicial activity’…and have gone so far as to observe that if ‘the Court’s three Bivens cases [had] been…decided today,’ it is doubtful that we would have reached the same result”. As in the McGahn case, Alito claims that the separation of powers makes it impossible for the Court to render a judgement, saying, “In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern — respect for the separation of powers”. He adds “we came to appreciate more fully the tension between this practice and the Constitution’s separation of legislative and judicial power. The Constitution grants legislative power to Congress; this Court and the lower federal courts, by contrast, have only ‘judicial Power’…But when a court recognizes an implied claim for damages on the ground that doing so furthers the ‘purpose’ of the law, the court risks arrogating legislative power”. Again, Alito ignores the central purpose of the courts as defined in Marbury v. Madison to determine what the law is.
As Ian Millhiser notes, “The question in cases like Bivens is whether the Fourth Amendment means anything — especially in cases where the government refuses to discipline an officer who steps out of line — or whether the right to be free from unlawful searches and seizures necessarily implies that there must be some way to enforce that right. The Supreme Court’s decision in Hernández transforms the Bill of Rights into a paper tiger in many cases involving law enforcement overreach”. And turning the Bill of Rights into a paper tiger only benefits the already powerful executive branch and the current autocratically inclined President.
Finally, compare the difficulty that the House is having getting testimony from McGahn and the Hernandez family’s inability to bring the agent who shot their son to court with what Hillary Clinton is having to put up with. A federal judge has ordered that Clinton must now sit for a deposition involving the FOIA case brought by the legal harassment group Judicial Watch concerning, you guessed it, her email server. Despite an FBI probe, an internal State Department investigation, and investigation by the Benghazi Select Committee that all thoroughly explored this issue, the judge ruled that there were still unanswered questions that required Clinton’s deposition. The judge, a Reagan appointee who apparently has had a long grudge against the Clintons, wrote that “To argue that the Court now has enough information to determine whether State conducted an adequate search is preposterous…As extensive as the existing record is, it does not sufficiently explain Secretary Clinton’s state of mind when she decided it would be an acceptable practice to set up and use a private server to conduct State Department business”. It is a remarkable state of affairs when Hillary Clinton can be forced to testify about the bogus email scandal while the House can not get testimony from Don McGahn regarding possible perjury and obstruction of justice by the President in an impeachment inquiry.
Bill Barr has already destroyed the independence of the Department of Justice and turned into an instrument of the “unitary executive”, defending and extending the personal and political interests of the President, focused on protecting Trump and persecuting his political opponents. It seems that there are a number of judges, including perhaps a preponderance of the conservatives on the Supreme Court, who want to do the same with the judicial branch. And they are quietly laying the groundwork for a legal basis for autocracy.
Originally published at https://thesoundings.com on March 4, 2020.