Comm. on the Judiciary v. McGahn

Comm. on the Judiciary v. McGahn

Opinion

 [**370]   [*122]  Griffith, Circuit Judge: In Comm. on the Judiciary of the United States House of Representatives v. McGahn, 968 F.3d 755, 2020 U.S. App. LEXIS 24970, 2020 WL 4556761 (Aug. 7, 2020), the en banc court held that the Committee on the Judiciary of the House of Representatives has Article III standing to seek judicial enforcement of a subpoena issued to  [*123]   [**371]  former White House Counsel Donald F. McGahn, II. 2020 U.S. App. LEXIS 24970, [WL] at *15. It remanded [***2]  the case to this three-judge panel to consider the remaining issues, including whether the Committee has a cause of action to enforce its subpoena and, if so, whether McGahn must testify despite the Executive Branch's assertion of absolute testimonial immunity. Id. We have no occasion to address the immunity argument because we conclude that the Committee lacks a cause of action. Accordingly, the case must be dismissed.

The en banc court held that the Committee has Article III standing, but the Committee "also need[s] a cause of action to prosecute" its case in federal court. Make the Road N.Y. v. Wolf, 962 F.3d 612, 631 (D.C. Cir. 2020). Here, the Committee argues that it has an implied cause of action under Article I, that it can invoke the traditional power of courts of equity to enjoin unlawful executive action, and that the Declaratory Judgment Act provides a separate basis for this suit. We disagree.

Start with Article I. The Committee argues that it is "entitled under Article I to seek equitable relief to enforce a subpoena . . . issued in furtherance of its constitutional power of inquiry." Committee Panel Br. 34 (internal quotation marks omitted). ] But time and again, the Supreme Court has warned federal courts to hesitate before finding [***3]  implied causes of action—whether in a congressional statute or in the Constitution. See, e.g., Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S. Ct. 1009, 1015, 206 L. Ed. 2d 356 (2020); Hernandez v. Mesa, 140 S. Ct. 735, 741-43, 206 L. Ed. 2d 29 (2020); Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402, 200 L. Ed. 2d 612 (2018); Ziglar v. Abbasi, 137 S. Ct. 1843, 1857, 198 L. Ed. 2d 290 (2017); Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). "When a party seeks to assert an implied cause of action under the Constitution itself, . . . separation-of-powers principles are or should be central to the analysis," and usually Congress "should decide" whether to authorize a lawsuit. Ziglar, 137 S. Ct. at 1857 (internal quotation marks omitted).

In this case, Congress has declined to authorize lawsuits like the Committee's twice over. First, Congress has granted an express cause of action to the Senate—but not to the House. See 2 U.S.C. § 288d; 28 U.S.C. § 1365(b). Second, the Senate statute expressly excludes suits that involve executive-branch assertions of "governmental privilege." 28 U.S.C. § 1365(a). The expression of one thing implies the exclusion of the other, and authorizing the Committee to bring its lawsuit would conflict with two separate statutory limitations on civil suits to enforce congressional subpoenas. ] When determining whether to "recognize any causes of action not expressly created by Congress," "our watchword is caution," Hernandez, 140 S. Ct. at 742, and we should not ignore Congress's carefully drafted limitations on its authority to sue to enforce a subpoena.

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