On Monday, August 31, a panel of the U.S. Court of Appeals for the D.C. Circuit upended more than a decade of district court precedent and deprived—at least for the moment—the U.S. House of Representatives of its ability to seek civil enforcement of subpoenas. In Committee on the Judiciary v. McGahn, the court dismissed the case for lack of a cause of action, even though the full D.C. Circuit court, sitting en banc in an earlier appeal in the same case, overruled the same panel a few days earlier when it concluded that the House Judiciary Committee had standing to enforce a subpoena against former White House Counsel Donald McGahn as part of its impeachment inquiry earlier this year. Unless the en banc D.C. Circuit or the Supreme Court overturns the panel decision, the House is now limited to enforcing its subpoenas through criminal proceedings pursuant to 2 U.S.C. § 192, or exercising its own “inherent contempt” authority. This week, the House asked the full D.C. Circuit to review the decision en banc.

Until last week’s decision, the House relied on the U.S. District Court for the District of Columbia’s ruling in Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (2008), to seek civil enforcement for its subpoenas. Unlike the Senate, which has express statutory authority to bring a civil suit to enforce its subpoenas, see 2 U.S.C. §§ 288b, 288d and 28 U.S.C. § 1365, the House, according to the Miers court, “has an implied cause of action derived from Article I to seek a declaratory judgment concerning the exercise of its subpoena power.”

In the new panel decision, Judge Thomas Griffith rejected this reasoning outright. Without referencing Miers, he concluded that the House lacks any cause of action—under Article I, the “traditional rules of equity,” or the Declaratory Judgment Act—to seek civil enforcement of its subpoenas. Judge Karen Henderson joined with Judge Griffith and Judge Judith Rogers dissented.

First, the court rejected the argument that the House has inherent power under Article I to seek civil enforcement of a subpoena “in furtherance of its constitutional power of inquiry.” The majority explained that Congress’s decision to authorize only the Senate—and not the House—to seek civil enforcement of subpoenas, and to exclude suits that involve executive branch assertions of “governmental privilege,” 28 U.S.C. 1365(a), meant that “Congress has declined to authorize suits like the Committee’s twice over.”

Second, the court found that congressional subpoena enforcement was not an exercise of the court’s “traditional equitable powers.” According to the majority, upon adoption of the Federal Rules of Civil Procedure in 1938, federal courts no longer recognized a distinction between courts of law and equity. Because the House could not point to any subpoena enforcement case prior to the 1970s, the court found that could not “possibly have been traditionally available in courts of equity.” While “Congress may someday determine that the federal courts should stand ready to enforce legislative subpoenas against executive-branch officials, [] authorizing that remedy ourselves would be ‘incompatible with the democratic and self-depreciating judgment’ that we lack the ‘power to create remedies previously unknown to the equity jurisprudence.’”

Finally, the court rejected the House’s argument that the Declaratory Judgment Act permits it to bring suit to enforce its subpoenas. The majority explained that the Act “does not itself ‘provide a cause of action’ as the ‘availability of declaratory relief presupposes the existence of a judicially remediable right.’” Thus, because Article I and the rules of equity do not independently permit the House to enforce a subpoena, the Declaratory Judgment Act does not allow the House to “bootstrap its way into federal court.”

By depriving the House of its cause of action to seek civil enforcement of subpoenas for testimony and documents, the McGahn opinion relegates the House to two much more cumbersome, and much less politically palatable, options. First, if a witness refuses to testify before the House or a House committee pursuant to a subpoena, the Committee may cite the witness for contempt, and refer the matter to the full House. If the House issues a contempt citation, pursuant to 2 U.S.C. § 192, the matter is referred to the U.S. Attorney for the District of Columbia for prosecution. Although this option permits the House to seek to punish recalcitrant witnesses, it does little to compel testimony or document production. Moreover, the Justice Department has usually declined to prosecute such contempt when it is directed at officials within the executive branch.

Second, the House may exercise its “inherent contempt” power to jail or fine recalcitrant witnesses. While this option remains technically available, it has not be used since the 1930s, because, according to the Congressional Research Service, the arrest and detention of a witness by Congress is “cumbersome, inefficient, and unseemly.”

Although Congress could empower the House by statute to enforce subpoenas by civil action against any witness—including executive branch officials—that would require assent from the Republican Senate and Presidential approval (or veto override), which is not going to happen in this environment.

Like the earlier decision on standing, the case now seems headed to the full D.C. Circuit for consideration, where the full D.C. Circuit will have the opportunity to consider both the arguments presented here and the rationale advanced in Miers. Covington will continue to monitor these significant developments in congressional subpoena power.