Congress is Litigating at a Historically Unprecedented Rate, as the Aberrational Trump Era Accelerates a Polarization-Driven Trend

It was once rare for Congress to go to court. But the number of cases House Democrats are now litigating is historically unprecedented — a Trump-era aberration that is accelerating a larger shift in governance whose seeds predate Trump. w/ @npfandos

The House v. Trump: Stymied Lawmakers Increasingly Battle in the Courts

It’s routine, of course, for the executive branch, via the Justice Department, to make arguments to the judicial branch. But it was once all but unheard of for the legislative branch. Congress had to pass a special law for a Senate committee to seek the Watergate tapes, for ex.

Then, in 2008, Congress broke new ground w/ a lawsuit to enforce subpoena re US attorney firings. It filed another in 2012, re Fast and Furious. Now, a deluge: 5 cases already (Mazars, Deutschebank, Mueller report, Trump taxes, McGahn) & more coming. (Twist: Trump filed 1st 2.)

Similarly, it was once weird for Congress to go into court to defend a law that DOJ abandoned. It happened in the 70s w/ legislative vetos, but that was a special topic: presidents saw them as unconstitutional intrusions on exec power (SCt agreed in 1983). This is changing too.

In 2011, the Obama administration abandoned the Defense of Marriage Act, not a separation-of-powers law but a matter of general governance. The House stepped in to defend it against constitutional challenges, until the SCt struck it down in 2013.

This year, that has happened twice already: the DOJ has abandoned the Affordable Care Act and a law against female genital mutilation, and the House has sought to intervene and provide lawyers to go to court to keep defending both laws against challenges.

Another category: the legitimacy of executive branch spending decisions. In 2014, the House GOP filed a lawsuit challenging Obamacare subsidies to insurers. This year, the House filed another, challenging Trump’s invocation of emergency powers to spend DOD money on a border wall.

The House is also increasingly filing amicus (friend of the court) briefs, and sometimes making arguments, in other cases to which it is not a party. 4 this year so far: the Census case, other border wall and ACA cases, & a lawsuit seeking voting rights for District of Columbia.

And of course Trump sued the House Ways and Means Committee to prevent it from asking the state of New York to provide his state tax returns. That’s another example where part of the spike in the numbers are is driven by the present abnormal moment.

But the surge in numbers is making clearer in hindsight that things were already starting to change in recent years before Trump, kind of like how Bush's unprecedented signing statement #s, and Obama's unprecedented leak case #s, had seeds in the actions of predecessors.

This deeper trend is likely a symptom of partisan polarization. As political negotiation and compromise becomes harder, litigation replaces it. Thus even if the #s drop some under Trump’s successor, it seems likely that this new practice will continue as part of our governance.

One thing that will be interesting to watch is how trans-branch partisan teams fuel it. In 2011, when House GOP decided to intervene and defend DOMA, it paid a couple million dollars to Paul Clement, a former Bush administration solicitor general, and his firm for the legal work.

Obama legal team veterans are similarly helping House Dems this year — but they & their firms/NGO are working for free. They include 2 former SGs, Don Verrilli & Neal Katyal, a former OLC head, Virginia Seitz, & two former senior nat-sec lawyers, Mary McCord & Josh Geltzer.

Originally tweeted by Charlie Savage (@charlie_savage) on August 13, 2019.