The Justice Department has just taken the position that the executive branch may never be required to comply with a congressional subpoena.
If that view sounds outlandish and arrogant, that’s because it is.
The department’s assertion, which has escaped general notice since it was filed on Friday, came in its motion to dismiss the lawsuit brought by the House Ways and Means Committee to enforce its subpoena for President Trump’s tax returns. The motion contains several additional conventional arguments, but it leads with an absolutist assertion that the judiciary is powerless to address its noncompliance.
The committee’s lawsuit seeks to enforce the straightforward statutory command in federal law that “upon written request from the chairman of the Committee on Ways and Means of the House of Representatives . . . the Secretary [of the Treasury] shall furnish such committee with any return or return information specified in such request.”
Notwithstanding the clarity of the law here, Treasury Secretary Steven Mnuchin rebuffed the request on the spurious ground that the committee lacked any valid legislative purpose, prompting Congress’s lawsuit.
And, now, the Justice Department has gone all in. Its centerpiece argument in the motion to dismiss is that nothing can be done to remedy its refusal to comply with Congress’s request.
The Justice Department is arguing that, when the executive refuses for any reason to comply — no matter how clear the legal command — it sets up “an interbranch political dispute.” And, further, Congress may not “conscript the judiciary” on its side of such a dispute.
Thus, according to the Justice Department, there is no constitutional or statutory basis for a congressional committee to try to enforce its subpoenas in the federal courts “where the Executive Branch has decided not to do so” (emphasis added).
This position, by the way, has nothing to do with the fact that the subject of the committee’s request is the president. Congress has sued the treasury secretary for failing to comply with a clear congressional command; the Justice Department’s assertion that the secretary can just blow off Congress would apply even if a private individual’s tax returns were being sought. Or, indeed, to any command to any executive branch official.
It also goes well beyond the already aggressive positions taken by the Justice Department during previous administrations. Previous departments (both Democrat and Republican) have argued, unsuccessfully, that the courts should not interfere in subpoena battles over assertions of executive privilege. Here, the government argues for a right to ignore the plain statutory command that it “shall” furnish the tax records to the committee.
Thus, the basic outlandishness and arrogance: The department‘s position serves to convert the most rank legal noncompliance into one side of an august-sounding “interbranch political dispute,” which it then declares beyond the reach of the judiciary to resolve. The unitary executive becomes the lawless executive.
If accepted, the Justice Department’s reasoning would gut Congress’s well-recognized constitutional oversight functions. The executive could simply respond to any congressional demand with a two-move checkmate: (1) refuse to comply, for good, bad, or no reason, and (2) declare an “interbranch political dispute” that the courts could not address.
In fact, the motion to require Mnuchin to turn over Trump’s tax records falls in the dead center of the traditional scope of Article III power. Look no further than perhaps the most famous and important decision in the Supreme Court’s history, Marbury v. Madison.
Marbury, decided in 1803, held that the law provided no discretion for then-Secretary of State James Madison to withhold the judicial commission of William Marbury. Congress had passed a law, exactly like the statutory command at the center of the current dispute, that said the secretary “shall commission all the officers of the United States." Chief Justice John Marshall’s opinion explained “it is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws.”
Marshall relied on the fundamental distinction between discretionary powers of the executive, which are generally outside the power of the courts to examine, and nondiscretionary or ministerial responsibilities, which he evidently took as the province of the courts to enforce.
In determining that the judiciary clearly had power to remedy the executive branch’s breach of its nondiscretionary duty, Marshall stated, “the Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”
The Justice Department’s motion to dismiss didn’t discuss or even cite Marbury. But both of the previous decisions rejecting the department’s position did. Look for this case to produce a stern rebuke to the department’s absolutist position.