In 'Stunning' 2-1 Decision, Appeals Court Says Congress Can't Enforce Subpoena Against Ex-WH Counsel
Source: Law & Crime
A federal appeals court in Washington, D.C. on Monday ruled that the U.S. House of Representatives does not have any legal authority to enforce a subpoena against former White House counsel Don McGahn. In a 2-1 decision penned by Judge Thomas B. Griffith, a George W. Bush appointee, the court reasoned that the Constitution does not grant a congressional committee the power to enforce its own subpoenas, dismissing the case in favor of McGahn.
Congress has no implied constitutional power to seek civil enforcement of its subpoenas. The Committee thus cannot identify an underlying judicial remedy that could authorize it to invoke the Declaratory Judgment Act, Griffith wrote. Because the Committee lacks a cause of action to enforce its subpoena, this lawsuit must be dismissed.
Judge Griffith stated, however, that while the committee does not currently have such enforcement power, that could be rectified if Congress passed a law granting such authority.
We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit, he wrote. If Congress (rather than a single committee in a single chamber thereof) determines that its current mechanisms leave it unable to adequately enforce its subpoenas, it remains free to enact a statute that makes the Houses requests for information judicially enforceable. Indeed, Congress has passed similar statutes before, authorizing criminal enforcement in 1857 and civil enforcement for the Senate in 1978.
Read more: https://lawandcrime.com/high-profile/in-stunning-2-1-decision-appeals-court-says-congress-cant-enforce-subpoena-against-ex-wh-counsel-don-mcgahn/
Miguelito Loveless
(4,465 posts)That said the DoJ can dismiss Flynn''s guilty please, only to be overturned by the full court?
CatWoman
(79,296 posts)ArizonaLib
(1,242 posts)With this, they managed to punt any action resulting from a possible overturn from the full court so that compliance with congress's subpoena(s) could be too late to make a difference in the election. I think when Dems take the senate there will be some reforms to reduce such delay tactics. These delays handicap Congress's oversight duty.
maxsolomon
(33,312 posts)McConnell (I'm assuming he wins and becomes Minority Leader) would never allow such a measure to come to the floor.
ArizonaLib
(1,242 posts)Also, the Dems are usually the ones who take executive oversight more seriously. They may change the filibuster rules to fix things. The nuclear option is always a viable option when McConnell wants something badly. Nancy will figure out what she needs to do if this is necessary to enable proper executive oversight.
liberalgunwilltravel
(326 posts)I suspect that if the Democrats take the Senate with less than a 60 vote majority that the filibuster will cease to exist or at least be greatly diminished. The Democrats are done allowing a minority stymie the will of a vast majority.
groundloop
(11,518 posts)Popular agenda will become law, people will have better healthcare, lower income people will have at least a livable wage, elections will become more fair which will mean Democrats will win more often. GOPers will have to pivot left or face extinction. I truly believe the nuclear option will be good for the country and good for the Democratic Party.
JohnQFunk
(409 posts)ALL FILIBUSTERS - not just judicial nominees but legislation. Along with ALL "blue slips", ALL stalling and obstruction "privileges".
That is by the way the number of days between President Obama's nomination of Merrick Garland and Joe Biden taking the Presidential oath of office.
NO FILIBUSTERS for the NEXT 1772 days of Democratic control of Congress.
On the 1773rd say, the Democratic majority will be open to negotiating filibuster rules - and saying, "No, we like a filibuster-free Senate. Bite me."
maxsolomon
(33,312 posts)Be careful what you wish for in a nation full of white people that could easily put the GOP back in charge if you hurt their feewings.
DeminPennswoods
(15,278 posts)Rs would eliminate it in a heartbeat if it helped their cause.
maxsolomon
(33,312 posts)It kept the worst ideas of the Trump/GOP House from ever coming to pass. They only got the tax cut the same way we got the ACA: through Reconciliation.
It stops progress from happening, but it also stops regress from happening. To a degree.
The Senate is the House of Lords, and it's job is to put its knee on the neck of change.
CatWoman
(79,296 posts)ArizonaLib
(1,242 posts)I just hope they can turn it around quicker.
former9thward
(31,984 posts)Congress can't tell them what to do.
ArizonaLib
(1,242 posts)Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the United States Supreme Court. For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional.
"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
Congress can regulate the supreme court.
former9thward
(31,984 posts)ArizonaLib
(1,242 posts)Vote for Biden/Harris
Good luck to you!
onenote
(42,700 posts)The Flynn panel was Rao, Henderson and Wilkins
This panel was Henderson, Griffith and Rogers.
ArizonaLib
(1,242 posts)Conservatives are rabidly hoping one of the older SCOTUS liberals has to be replaced by January.
groundloop
(11,518 posts)Oh wait-that's only when it suits McConnell'a purposes.
onenote
(42,700 posts)sl8
(13,748 posts)On edit:
The Flynn case was heard by Judges Henderson, Wilkins, and Rao.
DallasNE
(7,402 posts)The 3 judges representing the court rotate.
Miguelito Loveless
(4,465 posts)Thomas Hurt
(13,903 posts)If you can't enforce a subpoena in federal court isn't that saying there is no subpoena power?
They just turned subpoenas into "assertively asking".
scipan
(2,341 posts)maxsolomon
(33,312 posts)The House of Representatives is exposed as the weak sister of the Federal Government.
I think we'd better get the Supremes to rule on this one. Just to confirm that the Constitution is now a complete joke.
C_U_L8R
(44,999 posts)If they can't subpoena (for now), they should cut the Trump budget and payroll to zero until they cooperate.
Firestorm49
(4,032 posts)LiberalLovinLug
(14,173 posts)We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit,
maxsolomon
(33,312 posts)In other words, a non-starter.
theaocp
(4,236 posts)Social studies curriculum is going to take an interesting course through all this destruction.
GeorgeGist
(25,319 posts)that Republicans are in power.
DallasNE
(7,402 posts)I would think that Congress would have an implied constitutional power to seek civil enforcement deriving from its power to issue the subpoena in the first place. This ruling means that a congressional subpoena is not worth the paper it is written upon.
I think it is also noteworthy that the Judge does not cite case law to support this decision and that alone places it on shaky ground.
former9thward
(31,984 posts)You may not agree with the case law cited but the appeals court did cite plenty of it. This is the opinion in case you wish to read it.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6402FB14D0F73EDD852585D5005DA953/$file/19-5331-1859039.pdf
hatrack
(59,584 posts).
ananda
(28,858 posts)Where does it say that the committee can't enforce
its own subpoena?
sinkingfeeling
(51,446 posts)explicit authority to enforce judges' subpoenas?
Yeehah
(4,585 posts)In fact, the Constitution does not expressly grant the power of judicial review.
ancianita
(36,030 posts)the general election.
Subpoena's a judicial branch tool that the judicial branch shouldn't deny to the legislative branch's constitutional power of oversight. This is a hobbling of the balance of power, an undue burden on the people's branch, and the appeals court must know this.