Notice & Comment

D.C. Circuit Review – Reviewed: Pretext and the Separation of Powers

Today was a first. I’ve been reading D.C. Circuit opinions every week for more than four years. And today, for the first time, at least for me, the Court’s servers were not able to keep up with demand.* It seems that Trump v. Mazars USA, LLP — which perhaps really should be called Committee on Oversight and Reform of the U.S. House of Representatives v. Trump — for a while broke the internet, at least the D.C. Circuit’s corner of the internet.

You should definitely read the opinion yourself; both the majority (per Judge Tatel, joined by Judge Millett) and dissent (per Judge Rao) are well written, and you’ll learn a lot of interesting things. I didn’t know, for instance, that George Washington once butted heads with the House of Representatives. So I’m tempted to just post the link and call it a day. I’ve decided to fight that temptation, however. But be warned. For purposes of this post, I will assume that you know the general background of the case and have at least given the majority and dissent a quick skim.

There is a lot going in Mazars. But one thing that stood out to me is that both the majority and the dissent are confronting a difficult problem that isn’t limited to this case: What to do about the possibility of pretext in separations-of-powers litigation? Questions of subjective intent create problems in all contexts. Yet subjective intent presents special problems when it comes to the separation of powers where many of the tools that exist in ordinary litigation to sniff out pretext — such as depositions or a jury — aren’t available, or at least aren’t always available in the same way. The possibility of pretext also creates problems because pretext itself isn’t a binary concept. It can be a spectrum. On one end of the spectrum are cases where the proffered reason is entirely false. But it isn’t always like that; sometimes the proffered reason actually did play a role in the decision, but absent other reasons that themselves that would have been sufficient, that proffered reason would not have been enough. And at the other end of the spectrum, there are cases where the proffered reason actually did play a contributing role in the decision (indeed, it may even have played more of a contributing role than any other reason), but that reason would not have been enough by itself to prompt action, but the other reasons also would not have been enough by themselves to prompt action. Even if a court had perfect knowledge about motivations, what is the appropriate test for each of these different points on the spectrum? And then what should a court do given that, in reality, it does not have perfect knowledge about motivations and has no great way of gaining that knowledge?

We shouldn’t kid ourselves; these are tricky questions. They matter, however, because Congress could almost always offer a reason relevant to possible legislation. So does that mean that Congress should always win? As I read Mazars, no one on the panel would go that far. But if there is a line between legislative purposes (which are okay) and non-legislative purposes (which aren’t okay), where should that line be drawn, and how should that line be enforced given the spectrum of pretext and lack of perfect knowledge? Put another way, would the Committee have issued this subpoena if the only thing it could do with the resulting information was consider legislation? But is that the test? And how would we know if the test is met? At first blush, it seems to me that the Supreme Court’s cases (which play a significant role in today’s majority and dissent) don’t do a great job of addressing the hard problems. If the Supreme Court takes this case, I hope it spends some time on these issues, including (as Judge Rao attempted to do) trying to figure out what the right answer should be as a matter of first principles.

Oh, one more question. How does all of this relate to Trump v. Hawaii and Commerce Department v. New York?

Enjoy the weekend. And read the opinion!

*Aaron Nielson (@Aaron_L_Nielson) October 11, 2019

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