What powers does Congress possess in the hands of a majority willing to check the powers of a president and the executive branch? News coverage has already highlighted numerous areas where Democrats in control of either chamber would launch investigations of the administration. No doubt these investigations will include subpoenas to administration officials, with the executive branch officials declining to abide by those subpoenas. The failure to abide by a congressional subpoena is a criminal offense under federal law, but no one reasonably should expect this administration’s Justice Department to advance such prosecutions, even if Congress sends it criminal referrals. To be sure, a future presidential administration could pursue charges, but any such help on that front would be belated and potentially forestalled by presidential pardons by President Donald Trump.
Beyond investigations, a new Congress might want to challenge what it likely would see as the administration’s flouting of statutory and constitutional legal requirements. For example, the administration has failed to spend funds that Congress authorized. Are those executive actions legal? What can Congress do about it?
Putting aside the merits or wisdom of compelling an executive branch officer to testify or to challenge the legality of various administration actions, a threshold question is whether Congress would have standing to vindicate its interests in federal courts. It’s a question that takes on added significance now that we have two years of knowledge about the speed by which district courts and appellate litigation can operate.
A settled requirement in federal litigation is that a plaintiff must have standing to sue before a court can proceed to hear a case on the merits. I have previously argued that Congress—including one of the two houses of Congress acting alone—should have standing to pursue relief in federal court if it is seeking vindication of one of two core congressional functions: first, the power to investigate and, second, the power to challenge executive action that substantially reduces Congress’s constitutional role in the lawmaking process.
I. Congressional Investigatory Powers and Standing
The Supreme Court has not yet spoken clearly to the question of whether Congress ever has standing to pursue investigative goals. However, in 2020, the District of Columbia Circuit held en banc that the House (actually a congressional committee, but with the imprimatur of the full House) had standing to subpoena testimony and obtain documents from former White House Counsel Don McGahn with respect to President Trump’s alleged efforts to stymie Special Counsel Robert Mueller’s investigation. Because Congress would likely bring cases in the District of Columbia, this en banc decision governs absent a clear holding from the Supreme Court.
Several issues surface on how Congress might seek to invoke standing to subpoena testimony and documents from members (and former members) of the current administration. For one thing, Congress might try to obtain information where private litigants have proven unable or confronted substantial obstacles in their efforts. For example, public interest organizations have for years tried to obtain information about the former Department of Government Efficiency (DOGE) using the Freedom of Information Act (FOIA). The Supreme Court recently granted certiorari to decide whether DOGE is subject to FOIA. If it is not, then it might make sense for Congress to use its investigative powers to do so; and, indeed, even if DOGE is subject to FOIA, Congress could presumably obtain more information about the organization and its activities than private actors limited by FOIA’s reach, in particular because Congress is not subject to FOIA’s nine exemptions. Shedding light on DOGE’s actions to curtail government agency functions would be a logical goal for congressional investigation, and Congress might see fit to restructure DOGE depending on what information it can glean.
For another example, consider President Trump’s efforts to undertake construction across Washington, DC and its environs—from the new East Wing of the White House to a proposed new arch near Arlington National Cemetery. Litigants have argued, and commentators speculate, that President Trump lacks the legal authority to undertake (at least some of) these projects absent congressional approval. Indeed, while lower courts and a Supreme Court majority found that the plaintiff in the East Wing litigation lacked standing, lower court judges and four dissenting Supreme Court Justices have opined that the White House East Wing construction rested on spending that Congress did not authorize. This setting provides an apt one, then, for Congress to exercise its investigative powers and, if need be, vindicate them in federal court. (I discuss below how Congress may vindicate its spending power in court as well.)
Congress also reasonably might seek information about the administration’s effort to develop, as part of a government settlement with the president, a fund dedicated to reimbursing people purportedly harmed by the weaponization of government. Congress might want to legislate on the subject, especially given what some see as a growing pattern of practice across administrations.
II. Congress’s Lawmaking Role and Standing: Spending Power and More
Beyond the issue of standing to enforce subpoenas in the service of investigation (and potentially impeachments), I have also argued that Congress should have standing to challenge executive branch actions in the limited circumstances where those actions would significantly undermine or alter Congress’s role in the lawmaking process. The Constitution makes clear that spending is a power that is unique to Congress. The seventh clause of section 9 of Article I of the Constitution directs that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” It is no accident that this provision falls within Article I (the constitutional article that lays out the powers of Congress), and, indeed, “an Appropriation made by Law” can only be made by Congress, since only a “Bill which shall have passed the House of Representatives and the Senate” can “become a Law” (Art. I, sec. 7. cl. 2). Thus, the Constitution makes crystal clear Congress’s core power to control and approve spending, and that this power is shared by the House and the Senate. Indeed, over time, Congress has pushed back on executive branch attempts to exert control over government spending: The Congressional Budget and Impoundment Control Act of 1974 (which I discuss in greater detail below) is one such example.
If the Constitution assures the House and Senate the power to vote on spending measures, then it stands to reason that either house of Congress should have standing in federal court to assert a claim that the executive branch has denied it an opportunity to exercise its spending power. And there is precedent supporting this conclusion, again out of the D.C. Circuit. In U.S. House of Representatives v. Mnuchin, the court applied its earlier holding in McGahn and concluded that the House of Representatives had standing to challenge an effort by President Trump in his first term to construct a border wall using funds without congressional authorization. While the Supreme Court ultimately vacated the court of appeals’ judgment as moot with the Biden administration in power, there is every reason to think that the D.C. Circuit would stick with this reasoning going forward. Moreover, the Mnuchin case also aligns with earlier precedent, such as the U.S. District Court for the District of Columbia’s 2015 decision in U.S. House of Representatives v. Burwell that the House had standing to challenge government spending allegedly beyond that which was appropriated by Congress. In that case, the House went to court to sue the Obama administration for how it spent congressional funds in implementing the Affordable Care Act.
Of course, it is possible that the Supreme Court could visit the issue and rule differently on standing. The Court has made clear, however, that legislative actors have standing to challenge situations when they allege that some constitutionally-assigned or institutional duty is being impinged. If that logic—logic that itself undergirds the lower court decisions just discussed—remains intact, then it is reasonable to expect that the Court would conclude that each chamber of Congress has standing to challenge alleged spending irregularities that go to Congress’s core constitutional powers.
It also is conceivable that courts could conclude that, while the Constitution may vest Congress with the sole power to authorize spending, it does not empower Congress to mandate that the executive branch in fact implement the spending that it has authorized. Indeed, President Trump and Russell Vought, the head of the White House Office of Management and Budget, have articulated the view that congressional limits on executive branch impoundment are unconstitutional. If so, Congress might lack standing to challenge executive branch impoundment, though it should still enjoy standing to challenge executive branch expenditures that it affirmatively did not authorize. All that said, even if courts were ultimately to conclude that the Constitution empowers Congress to authorize but not mandate spending, one would still expect courts to recognize congressional standing to advance a challenge on impoundments unless and until that conclusion were definitively reached.
Assuming Congress has standing to challenge unilateral executive branch spending decisions, perhaps the greatest opening for Congress to bring direct challenges in federal court centers on the Trump administration’s federal spending. Consider that the administration has in the past suspended, and even sought to claw back, funds that Congress authorized under the Inflation Reduction Act. And earlier this year, the administration relied upon the contested practice of pocket rescission to avoid spending funds that Congress explicitly directed to be spent. Pocket rescissions arise under the rubric of the Congressional Budget and Impoundment Control Act of 1974. Under that Act, Congress exercised its constitutional “power-of-the-purse” authority to allow the President to ask Congress to delay or rescind budget authority that Congress previously granted, and in so doing suspend payment of the funds in question for forty-five days. A rescission under the Act becomes a pocket rescission (similar to a pocket veto) when the President exercises that authority with fewer than forty-five days remaining in the current fiscal year. The argument then proceeds that, when Congress fails to respond to the President’s request within the allotted time, the suspension of payment becomes legally permanent. The legality of this procedure is dubious: The Government Accountability Office—an arm of the Congress—has consistently called pocket rescissions illegal and a breach of Congress’s constitutional budgetary powers. It seems that Congress should have standing to challenge pocket rescissions since such actions override the power of the purse that Congress affirmatively retained under the Congressional Budget and Impoundment Control Act. While one might object that the pocket rescission becomes final before a court decision could be entertained, the courts would probably allow a lawsuit to move forward based on the doctrine that a court can hear challenges to actions that are capable of repetition but evade judicial review because of their limited shelf-life.
One can identify other potential opportunities for Congress to bring challenges in federal court in some of the examples we have already seen under the rubric of subpoenas and investigations. Recall that lower courts and four dissenting Supreme Court Justices have concluded that President Trump’s East Wing construction violates Congress’s exclusive control over the District of Columbia. The result was an executive action that was likely clearly illegal, but an absence of any other person or organization with standing to sue and a Congress at the time unwilling to try its hand. Might Congress then have standing to challenge such a construction in federal court where private actors do not? Also, some have argued that the fund to compensate purported victims of government weaponization is not truly dead, Attorney General Todd Blanche’s assertions to the contrary. If it is not, then might Congress have standing itself to go to court to enjoin it?
Beyond spending, it seems that the chambers of Congress might have standing to challenge the president’s maintenance of armed hostilities, for example, if large-scale fighting with Iran resumes or if Congress wanted to assert that its war powers were being abridged by the ongoing military deployments. Down that litigation path lie some complicated questions concerning the scope of the War Powers Resolution as well as whether Congress’s own self-help remedies for cutting off funding suffice.
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It is important to note that the settings I have identified above for possible direct congressional challenge to executive branch action are those where I believe Congress would more likely than not have standing to proceed in federal court. Having standing and succeeding on the merits are two different things. Congress could have standing to proceed, yet lose cases. So, too, might Congress successfully obtain testimony and documents via court-ordered subpoenas, yet the information so gathered might not turn out to be valuable. Be that as it may, one can readily see that Congress’s ability to turn to the courts to aid in its investigations and to assert its constitutionally authorized powers could be strong tools in its efforts to challenge and rein in presidential claims to power.
