United States House of Representatives v. Steven Mnuchin (ORDER) ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 28, 2020 Decided August 7, 2020
No. 19-5176
UNITED STATES HOUSE OF REPRESENTATIVES,
APPELLANT
v.
STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF THE UNITED STATES DEPARTMENT OF THE
TREASURY, ET AL.,
APPELLEES
On Rehearing En Banc
Before: SRINIVASAN, Chief Judge, HENDERSON**,
ROGERS, TATEL, GARLAND, GRIFFITH**, MILLETT, PILLARD,
WILKINS, KATSAS* and RAO*, Circuit Judges.
ORDER
On March 13, 2020, a majority of the judges eligible to
participate voted to rehear this case en banc together with
Committee on the Judiciary of the U.S. House of Representatives
v. McGahn, No. 19-5331, to consider the “common issue of
Article III standing presented” in both cases. See Order at 1,
U.S. House of Representatives v. Mnuchin, No. 19-5176 (D.C.
Cir. Mar. 13, 2020). The en banc court’s decision in McGahn
resolves that common issue by holding that there is no general
2
bar against the House of Representatives’ standing in all cases
involving purely interbranch disputes. See Committee on the
Judiciary of the U.S. House of Representatives v. McGahn, No.
19-5331 (D.C. Cir. Aug. 7, 2020) (en banc). Accordingly, it is
ORDERED that this case be remanded to the original panel
for further consideration in light of McGahn. See Al Bahlul v.
United States, 767 F.3d 1, 31 (D.C. Cir. 2014) (en banc)
(remanding case to panel to consider outstanding questions);
United States v. McCoy, 313 F.3d 561, 562 (D.C. Cir. 2002) (en
banc) (same).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Michael C. McGrail
Deputy Clerk
* Circuit Judges Katsas and Rao did not participate in this
matter.
** A statement by Circuit Judge Henderson, with whom Circuit
Judge Griffith joins, dissenting from the order remanding the
case, is attached.
** A statement by Circuit Judge Griffith, with whom Circuit
Judge Henderson joins, dissenting from the order remanding the
case, is attached.
KAREN LECRAFT HENDERSON, Circuit Judge, with whom
Circuit Judge GRIFFITH joins, dissenting: After the Committee
on the Judiciary of the United States House of Representatives
timely petitioned for rehearing en banc in McGahn, the
Mnuchin panel sua sponte asked the full court to take up that
case as well to resolve “the common issue of Article III
standing.” Order at 1, U.S. House of Representatives v.
Mnuchin, No. 19-5176, 2020 WL 1228477 (D.C. Cir. Mar. 13,
2020). The court agreed to rehear both cases en banc, ordered
supplemental briefing to address Article III standing and
consolidated the cases for oral argument. Now, however, the
court has determined that only one of the two warrants
discussion, remanding Mnuchin to the panel for further
consideration in light of McGahn. Because I would resolve the
House’s standing in Mnuchin as an en banc court, I dissent
from the order remanding that case.
En banc rehearing is “not favored,” “rarely granted” and
usually ordered only “to secure or maintain uniformity of
decisions among the panels . . . or to decide questions of
exceptional importance.” D.C. Circuit Handbook of Practice
and Internal Procedures 58 (2019). As an initial matter, it is
not obvious that rehearing Mnuchin was necessary to achieve
uniformity. The Mnuchin panel had not issued an opinion
before sua sponte seeking rehearing en banc and, in line with
our precedent, could have simply “elect[ed] to withhold its
decision until the en banc court decide[d] the potentially
dispositive question” in McGahn. Nat’l Ass’n of Mfrs. v. SEC,
748 F.3d 359, 374 (D.C. Cir. 2014) (Srinivasan, J., concurring
in part) (providing examples), overruled on other grounds by
Am. Meat Inst. v. USDA, 760 F.3d 18 (D.C. Cir. 2014) (en
banc). Nevertheless, once the en banc court agreed to rehear
the Article III issue in Mnuchin, we committed, I thought, to
fully resolve the exceptionally important questions of
legislative standing therein. By reserving these matters for the
panel to consider in the first instance, the remand order
2
disserves the parties’ expectations and makes poor use of
scarce judicial resources.
First, the parties do not appear to have shared the
circumscribed view that the Article III standing question before
the en banc court concerned only whether interbranch suits are
generally barred. Both the House of Representatives and the
Department of Justice briefed the court on matters relevant to
whether Mnuchin could be resolved on narrower grounds, see,
e.g., Appellant’s Supp. Br. 13; Appellee’s Supp. Br. 5, and we
provided no notice that such important questions would remain
unanswered after consideration by the en banc court. On the
contrary, the precedent cited in the order granting rehearing en
banc belies this outcome, see Fields v. Office of Eddie Bernice
Johnson, 459 F.3d 1 (D.C. Cir. 2006) (en banc) (two appeals
heard together en banc and decided in a consolidated opinion);
United States v. Crowder, 87 F.3d 1405 (D.C. Cir. 1996) (en
banc) (same), cert. granted, judgment vacated, 519 U.S. 1087
(1997), and the remand order’s post hoc explanation falls short.
In United States v. McCoy, 313 F.3d 561, 567 (D.C. Cir. 2002)
(en banc), we remanded the merits question to the panel, rather
than to the district court, in order “to consume fewer judicial
resources.” But, as highlighted below, remanding has the
opposite effect here. And in Al Bahlul v. United States, 767
F.3d 1, 31 (D.C. Cir. 2014) (en banc), the appellant raised four
challenges that “[w]e intended neither the en banc briefing nor
argument to address” and “with the exception of a few passages
. . . , we received none from the parties.” Remand was therefore
necessary to dispose of the outstanding issues but, here, we
asked for and conducted a thorough airing of the House’s
Mnuchin standing. The majority points to no case—nor am I
aware of any—in which we sua sponte consolidated two
appeals for en banc rehearing and then addressed only one of
them in the resulting opinion.
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Second, although the remand is functionally equivalent to
holding Mnuchin in abeyance pending the resolution of
McGahn, that does not mean our procedural maneuverings can
be written off as “no harm, no foul.” To do so would overlook
“the time and energy required of this court every time it gathers
en banc,” Order Denying Rehearing En Banc, Edison Pharm.
Co. v. FDA, 517 F.2d 164, 165 (D.C. Cir. 1975) (statement by
Leventhal, J.), a concern that is especially pertinent given the
constraints imposed by the current pandemic. After two sets of
briefing, two merits arguments and months of consideration,
there is no reason that the parties should continue to languish
without a definitive answer from this court. I see no benefit in
prolonging the disposition of this important case and,
accordingly, I respectfully dissent.
GRIFFITH, Circuit Judge, with whom Circuit Judge
HENDERSON joins, dissenting: Today the en banc court issues
an order remanding this case to the three-judge panel without
deciding the sole issue we agreed to resolve: whether the House
of Representatives has Article III standing to sue the Executive
Branch for violating the Appropriations Clause. The parties
have been litigating this case for well over a year, and the
court’s remand of the matter to the panel will likely delay final
judgment for at least that long again. Such delay not only
deprives the parties of timely resolution of this dispute, but it
leaves this circuit’s law on congressional standing uncertain.
That confusion invites Congress to continue to litigate its
political disputes with the Executive Branch—to the detriment
of both Congress and the Judiciary.
This is not a hard case. Even under the return to the
discredited view of legislative standing that the court adopts
today in McGahn, the House still lacks Article III standing to
sue to enforce the Appropriations Clause. At bottom, the
House’s lawsuit is indistinguishable from a claim that the
Executive Branch has failed to follow the law—a “generalized
grievance[]” that cannot confer Article III standing. Allen v.
Wright, 468 U.S. 737, 751 (1984). What’s more, the House
alone cannot sue to protect Congress’s interest in enforcing the
Appropriations Clause, as the Supreme Court made clear in
Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945,
1953-54 (2019). The House’s lawsuit must be dismissed.
I
On February 14, 2019, after the longest-ever partial
shutdown of the federal government, Congress passed the
Consolidated Appropriations Act of 2019, Pub. L. No. 116-6,
133 Stat. 13, which appropriated $1.375 billion for
construction of a wall along the border with Mexico. That
amount was several billion dollars less than the President
sought. The same day the President signed the bill, the
2
Administration announced that it had “identified up to $8.1
billion” in appropriated funds from other congressional statutes
to build the wall. President Donald J. Trump’s Border Security
Victory, White House (Feb. 15, 2019), J.A. 151.
On April 5, 2019, the House filed suit in federal district
court, alleging that the Administration “flouted fundamental
separation-of-powers principles and usurped for itself the
legislative power specifically vested by the Constitution in
Congress.” Compl. at 2, J.A. 19. According to the House, the
appropriations statutes invoked by the Administration “d[id]
not authorize” the Executive Branch to expend funds “to
construct a wall along the southern border.” Id. ¶ 103, J.A. 58.
The House claimed that this unauthorized spending violated the
Administrative Procedure Act and the Appropriations Clause.
Id. ¶¶ 89-120, J.A. 56-60. The district court denied the House’s
motion for a preliminary injunction, concluding that the House
lacked standing. See U.S. House of Representatives v.
Mnuchin, 379 F. Supp. 3d 8 (D.D.C. 2019).
The House timely appealed, and the matter was fully
briefed and then argued before a three-judge panel on February
18, 2020. On February 28, our circuit decided Committee on
the Judiciary v. McGahn, 951 F.3d 510 (D.C. Cir. 2020)
(McGahn I), reh’g en banc granted sub nom. U.S. House of
Representatives v. Mnuchin, No. 19-5176, 2020 WL 1228477
(D.C. Cir. Mar. 13, 2020) [hereinafter Mnuchin Order]. In
McGahn I, a divided panel held that the Judiciary Committee’s
suit to enforce a congressional subpoena against the Executive
Branch did “not present an Article III case or controversy.” Id.
at 531.
After the Committee filed a petition for rehearing en banc,
“the panel [in Mnuchin] requested a vote of the en banc court
to determine whether to rehear Mnuchin en banc in light of the
3
common issue of Article III standing presented in that case and
McGahn.” Mnuchin Order at 1. A majority of eligible judges
voted to rehear both cases en banc. Id. at 2. We then ordered
the parties to file supplemental briefs in each case, and we
heard nearly four hours of oral argument in the two cases. In
the McGahn appeal, which is decided today, the en banc court
concludes that the Committee has Article III standing to
enforce its subpoena against McGahn. See Comm. on the
Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Aug. 7, 2020)
(en banc). But the court declines to resolve the similar question
presented here. Instead, it remands this case to the original
three-judge panel to resolve that issue in the first instance.
II
I cannot agree with the court’s refusal to decide this case.
When the court granted rehearing, it necessarily determined
that a “question of exceptional importance”—i.e., whether the
House has Article III standing to enforce the Appropriations
Clause against the Executive Branch—justified the full court’s
attention. FED. R. APP. P. 35(a)(2). Indeed, that question
seemed so exceptional that, acting on its own initiative, the
court voted to rehear the case before the three-judge panel had
issued an opinion. Rehearing en banc should be rare; sua
sponte rehearing even more so. Piling exception upon
exception, the full court now departs from regular order by
sending the case back to the panel without answering the
“question of exceptional importance” that triggered rehearing
in the first place.
What accounts for this extraordinary departure? The court
offers no explanation for this unusual move, and I can think of
none. We have more than enough information to resolve the
issue—a thorough district court opinion, three rounds of
briefing from the parties, a lengthy oral argument, and access
4
to the U.S. Reports. The House and the Department of Justice
have provided the “vigorous prosecution and [the] vigorous
defense of the issues” that “[s]ound judicial decisionmaking
requires.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 572 (1993) (Souter, J., concurring in
part and concurring in the judgment) (internal quotation marks
omitted). At the very least, we owe the parties an explanation
of why we’ve deprived them of timely resolution of their
dispute.
Resolving Mnuchin and McGahn together, which I
thought was the reason for hearing both cases en banc, makes
good sense. Both ask whether or when the Legislative Branch
may invoke the jurisdiction of the federal courts in a dispute
with the Executive Branch. By declining to resolve Mnuchin
today, the court leaves the limits of its newly revived theory of
congressional standing in McGahn undefined. That decision
not only robs Congress of a timely answer in this case, but also
leaves both Congress and the Executive Branch guessing about
how future litigation between the branches might play out,
inviting them to file further suits. Sometimes, “it is more
important that the applicable rule of law be settled than that it
be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U.S.
393, 406 (1932) (Brandeis, J., dissenting). I would not keep our
coordinate branches waiting for an answer to this “question of
exceptional importance.”
III
The question is easily answered. Even if a chamber of
Congress has Article III standing to enforce a legislative
subpoena against the Executive Branch (as the court wrongly
holds in McGahn), the House lacks standing to enforce the
Appropriations Clause for two further reasons. First, the
Supreme Court has repeatedly held that a “generalized
5
grievance” about the Executive Branch’s failure to comply
with the law cannot be an Article III injury, and the House’s
complaint reduces to an argument that the Administration lacks
statutory authority to spend money. Second, even setting aside
the generalized-grievance issue, a single chamber of Congress
cannot assert an injury to Congress as a whole. By its own
terms, the Appropriations Clause vests power in the House and
Senate—acting together through bicameralism and
presentment—to control appropriations. At the very least, the
House alone cannot invoke the court’s jurisdiction to vindicate
the full Congress’s interest in the appropriations process.
A
1
The irredeemable flaw in the House’s suit is that it alleges
only a “generalized grievance” that the Executive Branch has
failed to comply with the law, and that sort of grievance cannot
confer Article III standing.
The House “maintains that the Administration violated the
Appropriations Clause by ignoring the House’s decision to
limit fiscal year 2019 spending on border-wall construction to
$1.375 billion.” House Suppl. Br. 10. Though the House frames
its claim as an “Appropriations Clause violation,” its argument
is indistinguishable from a claim that the Executive Branch has
exceeded its statutory authority. The Appropriations Clause
demands that “the payment of money . . . must be authorized
by a statute.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414,
424 (1990). This is no different from any other action by the
Executive Branch that is not authorized by the Constitution
itself. The House’s grievance here thus collapses into an
argument that the Administration’s spending on the border wall
lacks statutory authorization, as the terms of the House’s
6
complaint confirm. E.g., Compl. ¶ 59, J.A. 44 (“But defendants
cannot satisfy the statutory requirements for transferring and
expending funds . . . .” (emphasis added)); id. ¶ 92, J.A. 56
(similar); id. ¶ 103, J.A. 58 (similar).
Over and over and over again, the Supreme Court has
reaffirmed that an “injury amounting only to the alleged
violation of a right to have the Government act in accordance
with law [is] not judicially cognizable.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 575 (1992); see also, e.g., FEC v. Akins,
524 U.S. 11, 23-24 (1998); Whitmore v. Arkansas, 495 U.S.
149, 160 (1990); Allen, 468 U.S. at 751; Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 219-20
(1974); United States v. Richardson, 418 U.S. 166, 176-78
(1974); Massachusetts v. Mellon, 262 U.S. 447, 488-89 (1923);
Fairchild v. Hughes, 258 U.S. 126, 129-130 (1922). That
fundamental principle imbues standing doctrine’s injury-in-
fact prong with the “separation-of-powers significance” that
the Court has “always said” it must have. Lujan, 504 U.S. at
577. As the Court has explained, “Vindicating the public
interest (including the public interest in Government
observance of the Constitution and laws) is the function of
Congress and the Chief Executive.” Id. at 576 (emphasis
omitted). If the “undifferentiated public interest in executive
officers’ compliance with the law” were “vindicable in the
courts,” then unelected judges would effectively perform “the
Chief Executive’s most important constitutional duty, to ‘take
Care that the Laws be faithfully executed.’” Id. at 577 (quoting
U.S. CONST. art. II, § 3).
Congressional plaintiffs must not be allowed to
circumvent this cardinal feature of the separation of powers. Cf.
Barnes v. Kline, 759 F.2d 21, 49-50 (D.C. Cir. 1984) (Bork, J.,
dissenting) (“It is well settled that citizens . . . would have no
standing to maintain this action. That being so, it is impossible
7
that these representatives should have standing that their
constituents lack.” (footnote omitted)), vacated sub nom. Burke
v. Barnes, 479 U.S. 361 (1987). Article III prevents courts from
“assum[ing] a position of authority over the governmental acts
of another and co-equal department,” whether at a private
citizen’s behest or at Congress’s. Lujan, 504 U.S. at 577
(internal quotation marks omitted). Indeed, substituting the
House for a private citizen doesn’t alleviate the separation-of-
powers problems; it compounds them. The Judiciary isn’t
Congress’s watchdog, and Congress may not enlist us to
“monitor[] . . . the wisdom and soundness of Executive
action.” Id. (internal quotation marks omitted). In Raines v.
Byrd, the Court declared it “obvious[]” that the Judiciary lacks
the power to engage in some “amorphous general supervision
of the operations of government.” 521 U.S. 811, 828-29 (1997)
(internal quotation marks omitted). Allowing the House to
dress up a generalized grievance as an “institutional injury”
would force the federal courts into a role that the Supreme
Court has repeatedly and emphatically refused to accept.
The House rightly reminds us that the Executive Branch is
not above the law. But neither is the Judiciary. The
Constitution—“the supreme Law of the Land,” U.S. CONST.
art. VI, cl. 2—confines each of the three branches to its proper
sphere. Article III empowers the federal courts to resolve
“Cases” and “Controversies,” not generalized disputes about
the “operations of government.” Raines, 521 U.S. at 829
(internal quotation marks omitted). And the law of Article III
standing constrains courts to policing the Executive Branch
only when necessary “to redress or prevent actual or
imminently threatened injury to persons caused by private or
official violation of law.” Summers v. Earth Island Inst., 555
U.S. 488, 492 (2009). Indeed, as this case languishes in our
circuit, other federal judges have been doing just that—
evaluating some of the very same spending decisions in suits
8
that allege actual injury to private citizens. See Sierra Club v.
Trump, 963 F.3d 874, 884 (9th Cir. 2020) (noting that the
border wall could injure the recreational and aesthetic interests
of thousands of people); see also id. at 902-03 (Collins, J.,
dissenting) (agreeing that the plaintiffs have standing).
I express no view on the reasoning in that decision, but it
illustrates the type of case in which a federal court may consider
whether the Executive Branch has violated the law: a case that
implicates the “rights and liberties of individual citizens [or]
minority groups against oppressive or discriminatory
government action.” Raines, 521 U.S. at 829 (internal
quotation marks omitted). Unless a party comes to court
alleging that sort of an injury, we have “no charter to review
and revise . . . executive action.” Summers, 555 U.S. at 492; see
also McGahn I, 951 F.3d at 516-17.
2
The House has no persuasive counterarguments. The
House concedes that a suit alleging that the President violated
a statute would “never or virtually never” be justiciable. Oral
Arg. Tr. 103:24. When a litigant brings a suit that is
conceptually indistinguishable from one that the litigant
concedes “never or virtually never” belongs in court, we should
dismiss that case.
Nevertheless, the House seeks to distinguish this case by
casting it as a suit to enforce the Constitution itself—and thus
more than an effort to stop the Executive Branch from
exceeding its statutory authority. But see, e.g., Compl. ¶ 59,
J.A. 44 (alleging that the Executive Branch “cannot satisfy the
statutory requirements for transferring and expending funds”);
id. ¶ 92, J.A. 56 (similar); id. ¶ 103, J.A. 58 (similar); id. ¶ 114,
J.A. 59 (similar). At oral argument, we probed the limits of the
9
House’s theory. Could Congress or the House sue to enforce
the Declare War Clause? The Bicameralism and Presentment
Clause? Counsel repeatedly declined to give definitive
answers, e.g., Oral Arg. Tr. 99:17-18 (“And I just don’t feel
able to answer your question with a definitive yes-no.”), but
insisted that “the Appropriations Clause [is] different from
almost every other [Clause] in the Constitution,” id. at
99:20-21.
Why? The House says that a harm to Congress’s
appropriations power is concrete because the Appropriations
Clause “operates as an express textual prohibition on Executive
Branch spending absent authorization by each House of
Congress.” House Suppl. Br. 5; see also Oral Arg. Tr.
99:10-15. That distinction won’t work. It is not enough that the
Clause imposes a “prohibition” on spending, because the
Constitution imposes other “prohibitions” on the Executive
Branch too. Unless given authority to do so by the Constitution,
the Executive Branch “literally has no power to act . . . unless
and until Congress confers power upon it.” La. Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 374 (1986); see also
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585
(1952) (“The President’s power, if any, to issue the order must
stem either from an act of Congress or from the Constitution
itself.”). That prohibition on Executive Branch action without
congressional authorization is just as fundamental as the
Appropriations Clause’s prohibition on spending without
authorization.
The House also emphasized the text of the Appropriations
Clause—specifically, that the Clause is an express limitation
on the Executive Branch’s conduct. See U.S. CONST. art. I, § 9,
cl. 7 (“No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law . . . .” (emphasis
added)). But that distinction cannot matter either, for it would
10
craft a rule both too narrow and too broad. Too narrow because
it fails to justify the Committee’s standing to sue in McGahn,
which involves an injury to the House’s implied power “to
conduct investigations or issue subpoenas.” Trump v. Mazars
USA, LLP, No. 19-715, slip op. at 11 (U.S. July 9, 2020). Too
broad because it would authorize Congress to sue under the
similarly worded Port Preferences Clause, Titles of Nobility
Clause, and Emoluments Clause—suits which the House
seems to concede it cannot bring. See, e.g., Oral Arg. Tr.
108:14-17; id. at 109:20-24.
When pressed at argument, the House eventually
abandoned its “express textual prohibition” distinction and
settled on arguing that the Appropriations Clause was “unique”
because of “a combination of . . . various factors,” including
“text,” “history,” and the “absence of any corollary power
under Article 2.” Id. at 110:1-19. In other words, it just so
happens that the only Clause in the Constitution that gives the
House standing is this one. That is not a theory of the case. It
is a doctrinal gerrymander.
B
Even were the House to discover a better explanation for
its contention that the Appropriations Clause is different from
the rest of the Constitution, it would not matter in this case
because the House’s claim has yet another fatal flaw. There is
a “mismatch between the body seeking to litigate and the body
to which the relevant constitutional provision” assigns the
institutional interest that the asserted injury impairs. Bethune-
Hill, 139 S. Ct. at 1953.
In Bethune-Hill, the Supreme Court considered whether
the Virginia House of Delegates—a single chamber of
Virginia’s bicameral legislature, the General Assembly—had
11
standing to appeal the invalidation of a redistricting plan drawn
by the General Assembly. The House of Delegates argued that
it had standing as “the legislative body that actually drew the
redistricting plan.” Id. at 1952-53 (internal quotation marks
omitted). But the Virginia Constitution stated that “members of
the Senate and of the House of Delegates of the General
Assembly shall be elected from electoral districts established
by the General Assembly.” Id. at 1953 (emphasis added)
(quoting VA. CONST. art. 2, § 6). The Court concluded that this
language “allocate[d] redistricting authority to the ‘General
Assembly,’ of which the House constitute[d] only a part.” Id.
And because “a single House of a bicameral legislature lacks
capacity to assert interests belonging to the legislature as a
whole,” the Supreme Court dismissed the case for want of
standing. Id. at 1953-54.
Bethune-Hill squarely controls. The Appropriations
Clause says: “No Money shall be drawn from the Treasury, but
in Consequence of Appropriations made by Law . . . .” U.S.
CONST. art. I, § 9, cl. 7 (emphasis added). That use of “by Law”
references the Bicameralism and Presentment Clause, see U.S.
CONST. art. I, § 7, cl. 2, which mandates that “no law [can] take
effect without the concurrence of the prescribed majority of the
Members of both Houses,” INS v. Chadha, 462 U.S. 919, 948
(1983). Like the Virginia constitutional provision in Bethune-
Hill, the Appropriations Clause assigns a prerogative to the
bicameral body: Congress.
Other constitutional provisions confirm that conclusion.
When the Framers sought to grant a unicameral power, they did
so explicitly. For instance, Article I, Section 5 states that
“[e]ach House shall be the Judge of the Elections, Returns and
Qualifications of its own Members,” and that “[e]ach House
may determine the Rules of its Proceedings.” U.S. CONST. art.
I, § 5, cls. 1, 2. Likewise, the Constitution vests certain
12
unicameral prerogatives in the House alone, see id. art I, § 2,
cl. 5 (“The House of Representatives . . . shall have the sole
Power of Impeachment.”), and others in the Senate alone, see
id. art. I, § 3, cl. 6 (“The Senate shall have the sole Power to try
all Impeachments.”); id. art. II, § 2, cl. 2 (“[The President] shall
have power, by and with the Advice and Consent of the Senate,
to make Treaties . . . .”). The Appropriations Clause refers not
to “each House,” nor to the “House of Representatives,” nor to
“the Senate,” but instead to Congress’s collective capacity to
make “Law[s].”
Without even engaging with the “by Law” requirement of
the Clause, the House insists that there’s no mismatch problem
because the Clause vests “each chamber of Congress [with] a
veto over both the Executive and each other with respect to
federal spending.” House Suppl. Br. 6. Quoting James Wilson,
the House says that “the federal purse has ‘two strings, one of
which [is] in the hands of the H. of Reps.,’ and ‘[b]oth houses
must concur in untying’ them.” Id. (alterations in original)
(quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF
1787, at 275 (Max Farrand ed., 1911) (James Wilson)).
That vivid metaphor has almost no argumentative content.
Undoubtedly, both chambers of Congress must agree to pass
an appropriations act, and that institutional reality sometimes
gives a single chamber—practically speaking—a “veto” over
federal spending. But that is true of any piece of legislation that
Congress wants to enact; indeed, it is a necessary feature of a
bicameral legislature. If the House’s practical “veto” argument
suffices to convert a bicameral power into a unicameral one,
Bethune-Hill has no force. There too, the Virginia House of
Delegates had a veto over the State’s redistricting plans. But
that practical fact did not overcome the text, which vested a
power in both houses of the Virginia legislature. Creative
metaphors aside, Bethune-Hill compels the conclusion that the
13
House alone lacks a cognizable institutional interest in
enforcing compliance with the Appropriations Clause.
III
Anyone who thinks that the federal courts should mediate
political disputes between the branches should watch this case
wend its way through the courts. Recall that in April 2019 the
House asked a district court to enjoin the Executive Branch
from spending money to build a border wall. Well over a year
later, the House is still waiting. Now the case goes back to the
three-judge panel for another round of briefing and perhaps
oral argument. That’s another couple months of waiting. If the
panel affirms the district court (as it should), the House might
ask the Supreme Court to intervene. Wait a couple more
months. If the panel reverses, the prospects for timely
resolution are even worse. Assuming the Department of Justice
petitions for certiorari, that’s a few more months—whatever
the Supreme Court does. And remember, even if the House has
standing, on remand the district court will need to address
whether it has a cause of action and whether it wins on the
merits. More appeals will follow those rulings. Careful
deliberation is a hallmark of the federal courts, but that virtue
comes at price: we can take a long time. The reality is that if
the House were to eventually prevail, it would not get its
injunction for well over a year.
Courts are not suited to helping the branches resolve their
differences. But in recent years, political actors seem to be
bringing more and more of these interbranch disputes to federal
court. As I’ve said, adjudicating these disputes risks giving the
impression that we’ve joined the political fray. See McGahn I,
951 F.3d at 517-18. That impression—deserved or not—will
erode public confidence in an institution that promises to
“judge by neutral principles.” Herbert Wechsler, Toward
14
Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1,
16 (1959). And all that so the House can wait years for a court
to possibly take its side against the Executive Branch?
I would put an end to all these lawsuits now. I would
definitively hold that disputes between the Legislative and
Executive Branches simply do not belong in the federal courts.
Barring that, I would dispense with the set of interbranch
disputes that arise out of bare disagreements about the scope of
the Executive Branch’s statutory authority. And barring that, I
would dispense with those cases in which the House or Senate,
by itself, seeks to assert the institutional interests of Congress
as a whole. But I cannot agree to delay resolution of the case
by remanding to the three-judge panel. That delay harms the
parties, and the uncertainty leaves two co-equal branches
guessing whether or when we will intervene in their political
disputes. The very least we can do is resolve the question we
agreed to answer, and I respectfully dissent from the order
declining to do so.