I’ve posted my forthcoming article, Congressional Subpoenas in Court, 98 N.C. L. Rev — (2020), on SSRN. Comments are welcome, and the abstract is here:
The ongoing political battles between President Trump and House Democrats have sparked substantial debates over the legislature’s authority to oversee the executive branch. The House has not been discouraged by Trump Administration resistance and has conducted several headline-making investigations. The judiciary has also been pulled into the fray through various lawsuits seeking to enforce House-issued subpoenas. Yet courts cannot address the validity of those subpoenas until they address a threshold question: Does Congress have standing to judicially enforce a subpoena against the executive branch?
The Supreme Court has never held that Congress, its houses, or its members enjoy standing to sue the executive branch, whether through a subpoena or otherwise. Raines v. Byrd rebuffs most congressional lawsuits initiated by individual legislators, but the Court has not formally rejected lawsuits initiated by the House or Senate. For those, the Court has vaguely warned that separation of powers problems would arise, saying little else.
This Article, prepared for the North Carolina Law Review Symposium, Exploring Legal Ethics in the Era of Trump, wrestles with the complex standing issues that arise when the legislature sues the executive. It shows that under one key conceptual approach – and possibly the one that the Supreme Court will adopt – Congress can never sue the executive branch to enforce a subpoena.
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