WASHINGTON — The Justice Department dug in Tuesday on its position that Congress, under no circumstances, can take the president and the executive branch to court.

The US Court of Appeals for the DC Circuit heard more than three hours of arguments in two cases that involve different power struggles between House Democrats and the Trump administration but ask the same big questions about when one branch of government can sue another.

In the first case, the House Judiciary Committee is suing to enforce a subpoena for testimony from former White House counsel Don McGahn. McGahn’s observations during the first years of President Donald Trump’s time in office became a central part of special counsel Robert Mueller’s report, and House Democrats argued his testimony was relevant for their long-since-concluded impeachment inquiry.

Mueller may be long gone and the impeachment trial over, but Congress still wants a ruling on the books that it has the legal right to go to court when the executive branch refuses to comply with a subpoena.

In the second case, House Democrats sued the administration over Trump’s decision to redirect money allocated for military spending to pay for border wall construction after Congress passed a budget with less funding than the president wanted. The House is arguing that given the importance of the appropriations clause of the US Constitution — which broadly says that agencies can’t spend money that Congress hasn’t approved — it should have the standing to bring a lawsuit.

The administration has a mixed record of wins and losses in these cases, and the DC Circuit grouped them together to consider the overarching issue of whether Congress can ever have the standing to sue the president and the executive branch.

The coronavirus pandemic hasn't stopped courts from hearing cases. The federal courthouse in Washington, DC, is largely closed to the public, so the court held Tuesday's hearing over the phone, with the judges and lawyers all calling in.



Judge Judith Rogers, who participated in an earlier round of the McGahn case and wrote a dissenting opinion that sided with House Democrats — "We meet again," she said to Justice Department lawyer Hashim Mooppan — questioned the government’s position that there was no role for the courts to play in preserving the separation of powers between the branches.

Mooppan, a senior official in the Justice Department’s Civil Division, replied that the Supreme Court had said that “history and tradition” should inform what counted as the type of “case or controversy” that courts could hear. Courts could hear cases about separation of powers, he said, but only in lawsuits that involved the rights of private parties.

There had been plenty of times in the history of the US when Congress asked for information from the executive branch and didn’t get it and wasn’t happy about it, Mooppan said. But for 200 years, he said, Congress hasn't tried to take the executive branch to court.

The Supreme Court is set to hear arguments next month in lawsuits that Trump filed challenging congressional subpoenas to financial institutions for his records. In those cases, the Justice Department has backed the president. Judge David Tatel asked Mooppan how the government’s argument that Trump could go to court to challenge a congressional subpoena was consistent with its position that Congress couldn’t go to court to enforce a subpoena.

Mooppan replied that in the cases before the Supreme Court, Trump was trying to “vindicate a personal interest” in his financial records. Tatel pushed back, noting that Trump was arguing that the congressional subpoenas should be tossed out because they would interfere with his official duties as president. Mooppan said that was true, but he maintained that the president’s standing to sue was still rooted in his personal interest in the documents.

Judge Merrick Garland presented a series of hypothetical scenarios of a president defying Congress, and he asked Mooppan if Congress could sue under those circumstances. Garland asked: What if Congress passed a law forbidding federal funds from being used to build a border wall, and the president did it anyway? No standing, Mooppan replied.

Garland asked: What if a president tried to get a health care law passed, and Congress voted it down, and the president ordered the Treasury Department to still pay for health care for any American who couldn’t afford it. No standing, Mooppan replied. Garland asked if anyone would have the standing to bring a lawsuit in that situation. Mooppan said it was hard to think of someone on the spot, but he added that sometimes “surprising” parties emerged to challenge actions by the federal government.

Several judges pressed Mooppan about Congress’s options to enforce its subpoena and appropriations powers if it couldn’t go to court, and whether it made sense to expect the House, for example, to block the president’s legislative agenda or hold people in contempt and order the sergeant-at-arms to arrest them in lieu of a lawsuit. Judge Nina Pillard questioned if it helped preserve separation of powers if Congress’s only choices were “huge, blunt, disproportionate political nuclear options.”

Rogers took the line of questioning even further, wondering if the only option until the next election cycle was a “revolution” if no private party had the standing to challenge an action by a president. Mooppan disputed that the stakes were that high, and added that in the case of the border wall fight, for instance, there were private parties who had filed suit.

Judge Thomas Griffith asked Mooppan about the president adopting a blanket policy of refusing to comply with congressional subpoenas; Trump spoke publicly about refusing to cooperate with Congress’s impeachment investigation, saying in April 2019 that the administration would fight “all” subpoenas. But Mooppan disputed that there was an across-the-board policy not to comply — he said there were categories of subpoenas that the administration determined were improper.

The judges spent much more time on Tuesday questioning Mooppan than House General Counsel Douglas Letter, a sign that the administration has the tougher path to convincing a majority of the judges to rule in its favor. If the administration loses, the Justice Department can petition the Supreme Court to take up the cases.

Rogers asked Letter why Congress couldn’t rely on other enforcement tools to get the executive branch to comply with subpoenas. Letter argued that nobody thought it was a good option for the House to arrest people instead of going to court; taking the scenario to its extreme, he joked that there could be gun battles between the sergeant-at-arms and the attorney general’s security detail. Trump had already demonstrated he was willing to shut down the government during a fight with Congress, Letter said.

As for impeachment as another way to force compliance, Letter — who led the House’s unsuccessful effort earlier this year to convict Trump in a Senate impeachment trial — said: “Been there, done that.”

In the border wall funding case, Griffith asked Letter why it wouldn’t open the door to more lawsuits by Congress to enforce other clauses of the Constitution if the court let Congress sue over the appropriations clause. Letter said the appropriations language was unique in barring the executive branch from spending money that Congress hadn’t approved.

Letter argued it wouldn’t open the “floodgates” to lawsuits from Congress over how agencies spend money, because it was “exceedingly rare” to have the kind of situation presented by the border wall case, where Trump said he would build the wall with or without Congress.

Although the cases are before the full DC Circuit, not all of the court’s active judges participated in arguments on Tuesday. Trump’s two appointees to date, Greg Katsas and Neomi Rao, are recused. Judges don’t have to explain why they recuse; Katsas and Rao did not, but both have ties to the Trump administration: Katsas served as McGahn’s deputy in the White House counsel’s office, and Rao previously led the administration’s regulatory review agency.