Today the Supreme Court granted certiorari in Carnahan v. Maloney, which presents the question “whether individual Members of Congress have Article III standing to sue an executive agency to compel it to disclose information that the Members have requested under 5 U.S.C. 2954.” This case will likely produce an important ruling on the scope of Article III standing by members of Congress and (if I may dare a prediction) the ultimate decision will likely constrain the tendency of some members of Congress to litigate when they should legislate.
The case arises from a long-running effort of members of the House Committee on Government Operations to obtain information from the General Services Administration about its management of the Old Post Office building which was leased to the Trump Old Post Office LLC for purposes of operating the Trump Hotel. Members of Congress feared, with some justification, that the terms of the least may have violated federal law given Donald Trump’s financial interest in the hotel.
5 U.S.C. § 2954 provides that seven members of the House Government Operations Committee can demand information from a federal agency, even if not a majority of the Committee. Citing this provision, several members of the Committee sought information about the lease. After the GSA refused to comply, the member of Congress filed suit.
In December 2020, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the members of Congress had standing to sue the GSA. Judge Millett wrote for the panel, joined by Judge Tatel concluding that the members had suffered an informational injury that satisfies the requirements of Article III. Senior Judge Ginsburg dissented.
The GSA sought rehearing en banc, but that petition was denied last August. Judge Rao dissented, joined by Senior Judge Ginsburg and Judges Henderson, and Walker. Senior Judge Ginsburg also authored a solo dissent. Judge Millett concurred in the denial, joined by Judge Tatel.
I suspect Judge Rao’s dissent was influential in the Court’s decision to grant certiorari. It begins:
Disputes between Congress and the Executive over documents have occurred since the Founding but have seldom involved the Judiciary. In concluding that individual members of Congress have standing to sue when an executive agency rejects their requests for information, the panel majority clears the way for the federal courts to referee ordinary informational disputes between the political branches. The panel’s rationale has no logical stopping point and would permit standing to even a single member of Congress suing the Executive. To reach this unprecedented holding, the panel relies on a nearly 100-year-old statute that allows members to request information from executive branch agencies and finds that 5 U.S.C. § 2954 creates a personal “informational right” for members exercising their “professional” legislative duties. Maloney v. Murphy, 984 F.3d 50, 64–65 (D.C. Cir. 2020). The Members’ claim in this case, however, has no historical analogue. The panel’s recognition of a personal injury to legislative power clashes with the fundamental constitutional principles that limit congressional standing, upends the balance of power between Congress and the Executive, and drags courts into disputes wholly foreign to the Article III “judicial Power.”
Perhaps this is a logical culmination of this court’s recent decisions on congressional standing, which continue to invoke the Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811 (1997), while steadily moving away from its substantive foundation. By recognizing standing for members of Congress based on harms that are simultaneously personal and legislative, the panel decisively breaks with the structural constitutional limits articulated in Raines.
I would revisit the panel decision because, first, the text and structure of the Constitution, historical practice, and the Supreme Court’s decisions all establish that individual members of Congress cannot bring suit to assert injuries to the legislative power. The federal courts do not superintend disputes between the political branches because such disputes are outside the traditional understanding of an Article III “Case” or “Controversy.” Second, the power of members of Congress to investigate the Executive Branch stems exclusively from the legislative power. Section 2954 cannot convert that institutional legislative power into a personal “informational right” for members that is vindicable in federal court. Finally, allowing standing for members of Congress under Section 2954 not only expands the judicial power, but otherwise unbalances the Constitution’s separation of powers.
The novel questions presented here are of exceptional importance, particularly because the D.C. Circuit has an effective monopoly over lawsuits between Congress and the Executive Branch. These questions should be resolved by the full court to realign our decisions with the Constitution and longstanding Supreme Court precedent.
Her opinion concludes:
By holding that Section 2954 creates an informational right that may give rise to standing for members of Congress against the Executive Branch, this court has conscripted the Judiciary in an inter-branch dispute far afield of the traditional domain of the Article III courts. For the foregoing reasons, I respectfully dissent from the denial of rehearing en banc.