will begin after briefly setting out the format we've adopted for today's consolidated argument since we're conducting it remotely via teleconference rather than in person as counselor where each side will have three minutes to give an opening statement after each counsel's opening statement the court will proceed to questioning by the judges in order of seniority except that always to pose any questions i may have until my colleagues have finished their initial round of questions then any judge who wishes to do so will post follow up case please proceed when you're ready made please or disputes between the political branches about their institutional progressives have occurred since the founding but lawsuits between them are a novel an unsanctioned tactic it would be a radical break from historical tradition and controlling preston for the federal judiciary to adjudicate the claims in these cases fundamental in both cases is that a dispute solely between the political branches is not a proper case or controversy under article two a being whether the type of concrete injury that supports standing to sue federal courts must look to whether the dispute is traditionally thought to be capable of judicial resolution within our system of separated powers and in arrangements burd the supreme court emphasized that this is storable confrontations between one or both houses of congress and the executive branch no suit was brought on the bas injury because such suits obviously exceeded the restricted role contemplated for article three courts although raines involved individual members of congress alleging that their voting power had been diluted those facts were not material to the court's broader legal reasoning which this court is bound as the department of justice has consistently urged since raines in any event there are additional case specific reasons why each of these two suits is has consistently rejected attempts by federal legislators to bring such claims and the claim here is particularly defective because it's brought solely by a single chamber of congress even though the appropriations clause best authority in congress as a whole that is the type of mismatch that the supreme court that plate of tools to ensure that he does those tools are abundant and powerful judicial intervention in this political tug of war risk damaging public confidence in the impartiality of the courts of the circuit rogers good morning mr moviefone we need again considering both cases together judge roger so you're free to ask questions of both sides on either case as you wish i'd like to talk to you then just to move yan really about concepts and supreme court decision provided and i think we agree that in terms of article one three we must as the supreme court has pointed out your honor i think that the key language that you read from article three and sentence is the phrase case or controversy and what the supreme court has made repeatedly clear in cases not just brains but in cases like alan vs right and f e c versus akins and spokeo versus robbins again and again the court has made clear that the meaning of the phrase case or controversy has to be informed by history and tradition of the sort of disputes that would have been traditionally understood to be resolved through the judicial process and our fundamental submission here is that suits between the branches have never been understood to be that sort of case or controversy now to be sure the courts have an important role to play in preserving the separation of powers but that happens as has consistently and always happened in this country in suits involving the rights of private parties when private parties rights or an interest are implicated by a federal statute or a federal practice that separation of powers that is when courts get involved not when just the branches to each other that is never happened have to be assessed based on history and tradition of the types of disputes that have been traditionally resolved by courts and the type of dispute that has never been resolved by courts historically is a suit between components of the federal government asserting only their own official prerogatives and interests that is what range described in three pages history there have been many disputes between the branches of t honor is that the supreme court had reasoning in its opinion which i'll discuss the moment and then what is said is it left to itself the discretion to decide how the case would be decided and the different pattern but that is not a license for this court to ignore the clear import of the reasoning that the court did adopt in fact your honor wrote an opinion on exactly this issue in the older decision which we cited in our supplemental br whether or not the supreme court has left itself the ability to create an exception it is abundantly clear from the supreme court's reasoning that in that case the department of agency has to be an executive branch entity and so the house committee without time and in this form is contradicts priest absolutely true here as as i discussed earlier the history and tradition that the court talked about for three pages of opinion was not at all limited to individual members of congress they talk about how one or both houses of congress had never and they concluded the entire analysis with the following conclusion it is obviously not the regime that is obtained under our constitution to date our regime contemplate the more has left itself the ability to create some new exception based on reasoning that doesn't appear in the opinion but that is not open to this court as a lower federal court this court has to take the reasoning that the court is given as on view is the st factor that the court listed in writing the key problem here namely whether the way the court phrased it the institutional injury they allege mainly accommodation is irrelevant and that that far for now wasn't brought the branches were so i have two points in response to that question on air so the st is i think when you have to read that sentence in the reins in part for that's the conclusion of raines i think you should read it in light of what it's summarizing so when they say con think what they're referring to is the three page long discussion that starts on page eight hundred and twenty six of the opinion that says several episodes in our history and then analysis confirmations between one or both houses of congress and the executive branch no one was brought up on the basis of claimed injury to fishel authority or power that is what they're talking about that sentence and the reasoning that follows applies for square here as to the nd part of your question the suggestion that historically everything was fine because everything was handled through combinations and there's some new change now that is just simply not historically accurate it is certainly the case that the very  times where the brain just fundamentally disagree you did and at the end of the day congress did not get everything it wanted because the executive branch refused to provide it and what we know is for two hundred years congress did not show in those circumstances it is not because congress is happy every time or congress has persuaded the executive branch is right anyone who understands what ambition checking ambition is all about understands that we have two branches that use the tools that they have to accomplish the ends that they see to g d and many times that means that the executive branch said no to congress and congress don't we got through the political tools at hand but they never filed a lawsuit to get that information that is what the fundamental changes here is and it is for close by the reason the brain so in terms of the balance of power where the underlying allegations ar mainly the power of impeachment and the power of the purse that the courts are simply not available in your view accommodation does not work the tools that are left in this case the house viewed as abuse of power by the king and they were aware that certain limitations had been placed on the came in terms of me to acknowledge more than that the historical experience identify the raise is not disputed but  serially different here and critical to material factual difference between the historical examples given in raines and the situations that you have identified here so take for example two of the examples that were given in raines the fact that no president ever sued over the tenure of off and congress has the ability to veto the legislation those were alleged intrusion into the separation of powers but the point that ranges making is the fact that there might be a legal violation doesn't answer the question of who is the reason why to take a step back is it's inherent in the system the separated powers that each branch may have a conflict when it's at sizing some of its powers judges for example determine their own refusals they also determine that they  complied with or statutes aren't complied with it can just walk into court and file its own lawsuit morning i want to start by asking you about the order the supreme court issued yesterday where it asked the parties to address the question whether quote a political question political question doctrine which hasn't been raised so far in this case bears on our resolution of these two cases well of these two cases we are not asserting we haven't raised a political question question the question of whether there is statutory authorization for the spending there is a political question that a court is incapable of addressing if you had a proper plaintiff with article to be standing and within the zone of interests of the status they were seeking to enforce pure separation of separation of powers issues when as a private party so in this case which is titled committee versus again there is a private party but if you point masers the measures was was definitely was a private party just like madame but it's only role in the case was because congress was interested in obtaining the claim arises based on his government office but he is seeking to vindicate a personal interest because as you're well aware in masers what he's seeking to shield are his personal records that is that an us to empower versus mccormick the congressman's interest in his salary and in this job that was the personal injury that supported standing in that case and in the major like this unlike in circumstances like powell they are not seeking to start any personal interest of that airs they're seeking only to start an institutional injury in the fischel prerogative and that is the type of claim that has never been heard by federal courts with respect to federal legislators and then the nd step of ranges analysis is they had only ever once heard an institutional injury of that type it all involved only state legislatures and in a very narrow factual circumstance and so that's why this case doesn't bear any resemblance to the only times the court has ever heard institutional in drily by members by legislators and therefore his petition but his st claim in such a hideous petition would be that congress has no authority to arrest an executive branch official for complying with an executive branch in order not to comply with a legislative subpoena that is beyond the scope historical support for the notion that they can arrest an executive branch official for following executive branch directives and this happened twice after the founding and both of those cases were set aside on other ground new case even if the house and senate together agreed to bring this to it would make any difference they would not have standing is that right that's correct and that even if there were no other source of the appropriate appropriated funds for the president to claim that the money is coming from still no stand that's correct your honor that would just be a claim that the executive was acting illegally that the executive was acting in excess of any st utory or constitutional authority and that is the sort of generalized grievance that this court has long recognized even before reines even if congress had passed a law forbidding the expenditure of any money on with only me stating that circumstance if you could identify someone who could have article three injuries from that expenditure in that i'm trying to put this in the position of  only going to americans who cannot get private insurance in any other way can you imagine anyone else who would have standing off the top of my head on that hypothetical it's hard for me to think of one that said you know these things sometimes there are somewhat surprising people who would have article police standing i'm reminded for example of king versus burwell which this court on st a millionaire with where in that circumstance the government was allowing people on to the federal exchanges and it turned out that through complicated factual circumstances there were actually certain people who were injured by getting the money there is always some possibility that there would be someone who would have article three injury i just can't imagine literally no one who was article three standing because all you need to do is find someone who has the injury in fact and that sometimes can happen an injury in fact it can't be speculative it can't apply to everyone so let me ask another question the new proposed paycheck protection act fails the president simply instructs the treasury to send every american a one thousand dollars a month until the pandemic ends no standing right again your honor go ahead and speculate who do you think would have standing to challenge that everybody gets one thousand dollars a month if they want they don't want them to take who could possibly what individual could possibly be injured by that it's hard for me to say right now but for example i can imagine like that collectors and repo men might be worse off in that circumstance because people would be more able to comply with their debts but again i don't want to i'm willing to stipulate that you can think of hypotheticals where the government giving people free money means that no one is injured and my basic response to that point is involved through the political process you can think of lots of hypotheticals like this and these were won through in cases like richard pleasanter where it was hard to think of anyone who would be injured by violations of things like the statements  this seems more important respectfully than the statement of counts if appropriations power can never be checked in a situation where the government just gives money away either for health care or clear on i was answering your question directly which is what the article freestanding i don't agree at all with the proposition that there is no way to check such a thing so for example on your hypothetical i would assume if you were acting in direct con take the position that i assume if the president orders the payment a payment by the secretary of the treasury cannot be prosecuted isn't that the government's position i don't believe the department has ever taken that position with respect to a flagrant violation of a spending statute statute that was unambiguous on its terms and where the president just ordered a clearly illegal expenditure i do not believe the department is ever taking that position and more to the point the question that what's the check  now check in that circumstance i suppose your honor is to use all the other tools that congress has against the president with respect to what the president's doing so they can shut down his legislative agenda they could shut down all those nominations i suppose your hon ask me in response that well what if he violates all of that and i think at that point if you have a president in this hypothetical was ignoring all laws i suppose there's a pretty the final solution for that sort of problem is remov from office but not and no point is the proper solution for that to let congress come in in file lawsuits against the president because again your honor these extreme hypotheticals you're talking about it's a little hard for me to understand asked how is congress to conduct its constitutional duty of oversight in the face of the type of under disregard this administration honor it is not the case that across the board the administration is not complying with either legislative oversight subpoenas or even impeachment subpoenas what was the case was on gauging those investigations depositions without counsel present or they were trying to depose close presidential advisors but there was never a blanket edict that we would not comply with any and all has two pieces to it there was a document piece and there was the testimony piece on the testimony piece it is our position and it's been longstanding position of the department of justice going back across administrations back to the seventy's everyday ministr is there is no one is saying that we are in breach of the accommodation that procedures just been ongoing and i don't believe the house has reached out to either the white house or to us about receiving them again  specifically and only that individual members of congress will act out of group three standing and cook and if i were to conclude that that analysis was just feel like we're getting kind of conflicting messages well what i say a couple things drawn or if you want to focus on the arizona state legislature i would focus on footnote twelve arizona state legislature where the supreme court made abundantly clear that what it held in arizona  not extend to the federal contacts because of the separation of powers problems that would be created in the federal context earlier point out that if you look at footnote twelve and look at how with this phrase precisely the  where justice souter starts with opinion by saying look if you were going to analyze this case as to whether there was an injury that was personal and concrete he thinks it's debatable and you could go either way not a footnote is located  finding that there was standing in common versus miller so i think we could spend lots of time debating that but i think we definitely have to grapple with that that there certainly well with all due respect your honor and i look at all you concur and so you resolve the question under a more general separation of powers principles underlying our standing army and you don't think that it's a general i'm sorry you don't think that footnote is a qualification on this general observations no because it's two pages the president come to court and sue the committee to block the testimony i'm privileged and so we certainly don't think that the president quiet executive ten because doubt and the sort of the president as the president doesn't have an institutional injury for the always regard about there'd be a different question about whether the united states could bring a lawsuit like the suit in the united states versus eighteen t and the executive branch versus legislative branch the just like in powell the congressman salary was tied entirely to the fact that he was a congressman the the question is there's a distance difference between what your interest is for your injury in fact and what your legal claim is on the  the separation of powers it's one of the separation of powers in particular i mean a role of the court if in forcing a ban i was standing would change the balance of separation of powers that be grounds for not adopting with position i guess i'm having a little bit of difficulty understanding what you mean by that when article three standing has to be interpreted to enforce the separation of power propounded standing i guess my point is that the premise of your question is a little bit circular in the sense that i'm just asking i don't mean you may think it's circular or not i'm just i'm just trying to make the point i say me would agree i think your whole argument here that and your view enforcing the separation of powers here is necessary to make your standing position here is meant to enforce the balance in the separation of powers it is that's right and the that article three standing look to history and tradition so that the suggestion that you're making where an article three standing holding could disrupt the separation of powers can happen because the separation of powers in the article three standing are reflected on history in tradition they and that classic line it seems between those who think that just that the courts are open to the house and those who think the courts are just among those who think the courts are not open among congress setting that inherent contempt hour to rest am i reading you correctly that's in this setting we don't dispute as the supreme court is recognizing andersen versus don that the congress in general has inherent contempt thorney because to executive branch officials there is no history of congress ever doing it the supreme court has never of held it there's no need to do it because they have political tools that they can use that can branch on like private parties where they can't just pass laws also quote a passage of the panel opinion i think it's at page twenty of your brace and you say you talk about the panels point that congress in one of the chambers may hold officers in contempt withhold appropriations refused to confirm the president's nominees harnessed public opinion to large around the president's legislative agenda or impeach recalcitrant officers so you're not meaning to approve the panel's reference to holding officers in contempt or you would say yes they can hold them in contempt they can arrest i was slightly imprecise in that we don't think that it is these contend for an executive branch official to not comply with a legislative subpoena where as a valid executive branch hasn't been an executive privilege formally asserted here am i right that both those you're correct about about both that there has not been but there has been a direction to not testify based on the absolute immunity but the reason i meant made the point about ok that's what i thought you were in the end i mean as i take it the basic insight of the separation of powers argument again standing here that you're making french aggression is that the french should use their political powers the premises each branch's political power is sort of it's a reflection it's appropriate calibrated to the interests of the public and having their respective branches act or maybe not act because he didn't acting and whatever the partner ways are so given their respective stocks of political capital to fight for what's important  result resorted to cork that's based on history i get that but there's a historical record and i'm right that there is a fight to be had there but i'm just thinking about this this theoretical point about how what what are the separation of powers in areas where maybe the historical record is then and people have arguments on both sides and you know those can be assessed but but i'm just are going to see how that theory applies here in the context in th mcgann case where the house has a well established and undisputed ability to collect information including collect information from the executive in fulfilling its core legislative functions and my question for you is that when we evaluate what the tentative remedy for political remedies are that are available to the house does it matter at all how proportionate and practicable those available political remedies are i think that congress is able to make its own judgments about whether the tools that it has are worth deploying in order to enforce compliance with the individual subpoena and they can if you were a member of the house or if you were running the house committee and you're saying we really do care about this what would the political tool be that you would turn to the most obvious things for the house to do are to stop  either supporting either legislation or appropriations and they parted ways that focus on the president's legislative priorities obviously if they have if they can convince the senate they can then pass affirmative legislation in the same regards if they had the senate they could also stifle nominations and all that stuff can be done either in the targeted way or a more general way depending on how strongly they care and about what those are the sort of political judgement calls that congress should be making but no one has ever thought that if those tools just aren't good enough what they should do is instead just file a lawsuit and i think the easiest way to think about that is imagine all the other things that the executive branch does that congress might think is deleterious to what congress has wanted to do so imagine for example congress passes federal statutes that criminalize various things and the executive branch just isn't bringing enough prosecutions congress can do all sorts of things to try to separation balance of power is to leave the house to the sort of huge blunt disproportionate political nuclear option when what it is is the basic underlying information that everybody understands but i have to i think  can i want to talk to you about the structural protections in the constitution the supreme court has described those as being essential to protect individual liberty i take it  other cases as well do you agree with that and generally that so that being the case why is it that  there would be a requirement for both chambers of congress to bring a lawsuit to enforce a structural protection the other chamber ca waive that structural protection so why do you need both because there's a fundamental difference between the merits of a claim and who has standing to sue over that claim the questions you asked me clearly had article three standing to comply but the court said that congress could waive the structural protection as they had passing the law and issue it was challenged that's the merits point the point is that once there is a plaintiff with article three injuries to sue over the law the fact that some branch of government was ok with the violation of a structural provision is not an merits defense here we're dealing with the threshold question of who is a is i'm not making a waiver argument i'm making an injury argument the through the hill makes abundantly clear that there has to be a match between the institutional plaintiffs and the and the institutional body has the authority that is being invoked that's the holding of that through hell that's why the virginia house by itself was not allowed to sue and needed the virginia senate to come along the reason why the court structural protection yes well of the house has the sole power to impeach then why does it need the senate to come along to enforce that structural mcgann about the subpoena we are not making an argument to him again that the house by itself is a problem they need the senate also where an mcgann argument is that the house doesn't have an injury period the argument about the house versus the senate is only an argument we're making in the case where they are arguing about appropriation spending all right moving on to the other aspect of structural protection which is that they are intended to preserve individual liberty why isn't it appropriate for one of the other chambers of congress or both chambers of congress to prosecute a lawsuit because in doing so they are protecting and preserving individual liberty for the same reason you wouldn't let a law professor bring that lawsuit the fact that the lawsuit preserves individual liberty doesn't mean that the plaintiffs has an injury in fact the supreme court has made clear time and again that in order to bring a lawsuit the point is neither of them has the type of injury in fact that has been traditionally recognized by courts and the mere fact that the lawsuit vindicates structural protection of individual liberty is not sufficient so i'm not saying of course that congress is no different from a law professor i'm saying is that it is not sufficient that's a lawsuit in the case separation of powers you need to have a plaintiff who has the type of injury that the supreme court and this court has recognized is judicially cognizable and congress or the house simply does not have that type of injury and the reason why is because congress and the house are institutions they don't have respect your honor i think they basically did say that again if you look at the range has three basic section at the pain and they're not broken out by subsection but they mask the three sentences at the end that we discussed earlier the st part of the opinion says the plaintiff is not asserting a personal injury it's asserting only an institutional injury that's true here the nd part of the opinion we've only ever once allowed legislators state legislatures to certain institutions or injury and it's in this narrow coleman situation and this isn't that type of situation and the rd section of the pinions as history instead shows that these types of disputes between one or both houses of congress and the executive have so i i think the opinion is quite clear and i think justice souter's concurrence is even more clear that what they are saying is that federal legislators cannot sue over institutional arms my time my time a subpoena your answer would be the same that there be no standing and that's the i think i'm actually not sure i both the combination of the capacity of mr mcgann to sue and whether in some of the earlier questions government official sort of has two different interest they have their official interest and they have their personal i all he was trying to do was a sort of governmental profit of not testifying and he wasn't trying to protect his own personal liberty or property or anything like that that yes we think that that would be a take somebody into custody and then there's a b s petition that's brought that would be standing for that right because then he is starting his own personal interest in freedom of liberty right and  was of course adjudicated once it was applied in a way where once there was a private party dispute where the validity of the statute was relevant right but here you have the same party and it would be the same legal legal question here you do not have a plain difference was no private interest in the enforcement of the subpoena you have purely a congressional entity whose only interest are institutional and official and that type of interest that is not make someone a proper plaintiff and again we are talking it just seems well if you just speak to this briefly and then then i'm done and we'll get a follow up question and it just seems a little bit odd that we would create a regime in which in order to protect the separation of powers the incentive the impulse would be to go down a road that would create a greater separation of powers conflagration in the form who the plaintiff is the fundamental importance to article three standing but the nd point is i again i understand the judge might disagree with his position but i think it's a false hypothetical because we don't think that congress can arrest an executive branch of national and if a court has a clear once that would be the end of it there would be no interest and going around trying to arrest people to manufacture a lawsuit that would determine what the right now i think your point i take a position on on the merits thank you will proceed to any fall of questioning my colleagues might have start with judge henderson thank you i don't have any questions thank you judge rogers oh morning to her i'd like to follow up on a couple of things my colleagues were exploring with you generally when we're talking about article three standing there was no claim that the house had the inability to impeach in that case however did we not have the extraordinary that there were certain questions that the special counsel deferred to the impeachment process so that the house had information based on a multi year study that there were things if we wanted to explore so the fact that the house couldn't teach let's say hypothetically on ground one but could not and teach without that information on the ground do you see no harm there to the constitutional responsibility of the house considered decision about whether to impeach and b whether to impeach on which counts so i'm on clear why in that cont your point which is certainly what the argument that the plaintiffs are making is that they are being deprived of information that they would find useful in casting a vote on whether or not to impeach and my response to that and this is also my response to judge pillared in the fact that information is to sort the fact that an injury would be concrete for an individual doesn't mean that it's concrete for government officials so for example  dilution we all know is a cognizable injury when it's asserted by a private party that's every voting rights act case and one person one vote case that's ever been decided has been decided based on the vote that mission injury so to the inability to fire directly out of raines is to recognize that government officials that hold their offices trustees for the public they're not themselves suffering concrete injury when they can't exercise their power we know this from rains that if if you dilute the congressman's ability to actually vote to actually vote if that's not a concrete injury then impairing their ability to cast an informed vote is even more attenuated in the abstract congress doesn't even have a right to then diluting the information they need to cast that vote because nigel injury and all of this is confirmed by history and tradition which even the house and a long line of cases decided dreams tell us that at a minimum you have to look at history and tradition to determine whether a given injury is sufficiently concrete and what history and tradition tell us is that not giving information to congress doesn't create a concrete injury for congress and the reason why pass another statute restricting what the president can do regard to a wall but of course and just if the senate doesn't want to go along then where is the house left given that the language of the appropriation clause is quite different because it's a negative command as opposed to an affirmative command also rising legislative power so i'll say a couple of things about that as to justice souter and his rants concerns i think the key point he made is when he went to the broader separation of powers point the point he made was that  only official interests lie far from the traditional common law cause of action that's at the conceptual core of the case or controversy requirement that is equally true and it doesn't turn on what other political remedies are there his point is that the political process is how you resolve these and maybe congress has enough political tools and maybe it doesn't but that doesn't mean that the court should just allow a congressman to sue instead as to hear about that last resort that's what i'm trying to get you right but the last resort language that's a cool from valley forge if you look at valley forge they're talking about suits by private party and even if that means that there will be no plaintiff that has standing and that is for the reason that the court closes while the court has declined to lower standing requirements simply because no one would otherwise be able to get a clean at valley forge and house and the senate and the president to sign those laws but nevertheless the court said that those were the political rallies that the court the plaintiff had to invoke even though the plaintiff entire legal theory was that they didn't need to do those the same exact point that well that's not fair we don't have to get a pass a law he needs authorization and now we need to get the senate and all the rest of this court say no congressmen don't have the ability to file lawsuits just because the this court will be revolutionized because there's nothing different about the appropriations cause than any other claim that congress the present this exceeds asteroid authority indeed congress could pass a statute that says exemplifies exactly justice souter's point that it would be a severe problem for both the separation of powers and the politicization of the jury is exactly why you don't like congress to and you wait for private parties were actually harmed it is the separation of powers and the balance of power and that and white house counsel wrote a letter making it very clear that the president's position was no one in the executive branch should comply with any of the house redoes the separation of power want to make thing that americans are before us and i'm not indicating my position on the merits i'm simply focusing on the article three question given that you is nothing more and nothing less than we have misread a federal statute about the scope of our spending authority that is not a more fundamental separation of powers question than the question campbell versus clinton about whether the president clinton could at all between the claims in the new chain and the claims in any case where someone says that the president has exceeded his statutory authority and as for the nd piece of your question there are definitely who would have article three standing in the border wall case in fact there have been plaintiffs who have more than three standing now some of them don't then satisfy their separate zone of interest requirement that's not a constitutional requirement that's because it's the type of dispute that is committed to the political branches and again that doesn't mean we resort to revolution because congress in the political branches has an ample tools and cool tools it doesn't they don't have they can c statute classic take care clause function which seems to need to be very different from the situation we face here where congress is not exercising careful action but simply to vindicate  that have very different situation i don't think so for the following reason your honor which is the supreme court's decision in read this the one hundred and twenty eight case we have cited in the brain used where the court specifically said that there is a wide difference time subpoenas was criminal contempt which of course isn't forced by executive that is part and parcel of the separation of powers yes congress has a one billion issue the subpoena but he does not have the ability to bring lawsuits to enforce the subpoena that is vested in the executive but that's not a buckley versus you say well i think it's closely related to it because the point is there is no history judgment action and which is only argument was i'm just doing what the president said that is i'm asserting the absolute immunity claim your answer to that was he wouldn't have standing because he was asserting a governmental interest is that right plus i don't think there'd be a controversy given that the house can't sue him and he does not want that taint on his reputation of a house vote that he's in contempt of congress that's a personal change that he doesn't want and he doesn't want it because he's going to be arguing so only that he's the only reason he's not answering is because of some kind of quasi executive or absolute immunity claim doesn't the claim of personal reputation injury would that be enough then the question would be whether a declaration of contempt by itself without any ability to enforce it would be the pilot ensuring i would support article three standing that sort of intangible harm whether that would count or not would you have to address that the same way you address all of the article three standing questions you have to look at the weather under history and tradition that sort of sort of reputational harm in the air would be sufficient to support of the spending i private parties not based on their government office just the right that any person on the street would have then that is the type of injury that the court is how can support our standing cannot support article three standing is a right that is not benefiting any private interest it is benefiting only an official prerogative of congress unlike a private party can't just ask for information because it's curious if you look at all of the indefensible i understand that but that's again as america's question assume there is a legitimate legislative function here which we have to assume for purposes of standing your position with respect to the house is still but it can't that there's  lawsuits but only congress can file a suit and force a legislative subpoena that's why this is like rain not like powell thank you appreciate it thank you judge griffith head and i've got the subpoena from congress and it says turn it over come in to testify and turn it over and i've got this directive from the president says don't go and turn it over it's privileges privileged and would be a serious error problem for you to do it and so it comes to court much like masers and says i've got the subpoena i'm willing to comply with whoever the court tells me direction i should follow your standing here we don't think so as your auto may or may not be aware of that situation actually did happen d last year with someone latter i know you and mr barron both prepared to answer questions but i understand you will handle the opening statement please proceed when you're ready this absolutely this position even if the president as we are led sheer file aiding the constitution by disregarding congress's authority in a way that directly threatens the central contrast in the constitution so what would cause this court to use its inherent authority to define the boundaries of article three of the constitution by closing the courtroom doors absolutely to the house which most directly the people of the united states and to do so without house is trying to preserve two aspects of our constitutional scheme that helped prevent the executive from becoming a monarch there's no valid justification for doing so here normally the worst option bargaining conciliation a compromise between the branches will nearly always be the preferred course any suggestions have been made about alternative means the house is certainly has to protect its constitutional by which the courts have resolved constitutional disputes between congress and the president on many occasions there is no good reason to abandon this year mr barrow and i are now quite happy to  right thank you i prefer to listen to mr letters argument so i have no question thank you inform would not have reserved the questions at the end of the opinion which it did so even though grant itself made clear there was no history for such the nd d o j misunderstands why range resorted to history in the satisfy the traditional three standing elements to no similar history resort to this reason asserting here because the committee's injury is does have a long historical pedigree in the specially standing situation so the key here is this court has to fund what makes article three standing we need those standards and then the supreme court merely then went on in range to look at history i do want to emphasize mr repond said the court went on at great length several pages about history if you look virtually all of that history that the court discusses about presidents not suing congress is very interesting but it's irrelevant here we're not talking about this is not a suit about presidents or in congress at one point the at the l most at the end of that discussion the range court says you know we know that no member to president coolidge but again no member and the reason i think that the court said that was because range was just about mention that we agreed at one point there's a very simple reason why there is no history of this as i said before the framers specifically put in the constitution that you cannot sue congress for its legislative activities and so of course there is no history of that and of course mr mcgann can't do that but again a system of four there is no such parallel provision in the constitution it is left to this court and ultimately supreme court to decide what you think article three can and should cover yes you are that it's obviously a very key point here it's something we've been discussing at great length because clearly it's something that you as a court and judges need to be concerned about  congress says we think the president isn't following this properly that have to be a concrete injury to the institutional interests of say the house which again you have here in general you know some sort of the appropriations cause should just be ignored should be read out of the constitution because it's all just a question of it's the president violating statutes that is so misunderstands an absolute key part of our constitution and why the framers put that provision in as a result of their knowledge of the experience of you know the glorious revolution in england the need to limit a monarch from just spending freely and that's why that provision is there and then again the position of the just farted you should just ignore that provision congress should just pass more statutes the administration for information that is clearly not worked we can issue subpoenas issued numerous subpoenas and then we have a very large number of them have been ignored if we can't and then they become really like a joke we can refuse to we can put people in contempt we can use our inherent powers and i do want  with shootings i sat on the floor of the senate very long number of hours and i heard over and over again white house counsel not just the personal cases only with private individuals are bringing these suits can be resolved that's absolutely not true yes cases that the supreme court and this court have resolved that are states versus stage federal government of war could congress to him is a situation where it is possible that the framing of the constitutional cacs could make a difference and i just don't feel able to answer your question with a definitive yes no but i do think this is a question where the formal language of the constitution makes the appropriations cause different from almost every other one in the constitution and so i  understand your position and i have no f garland thank you i just want to follow up some on judge questions which i think get to the question of how you propose to narrow you said during your opening regular legislation your honor i think that they do would be much much more problematic for congress to have the ability to sue because that that definitely would raise a very almost every situation there would be no standing it is possible i don't want to close the door entirely it's possible that we can come up with some very strange case where congress would have the authority but i do think you could write a narrow opinion that says  it would be very constitutionally problematic to expand it as to appropriate appropriations cause because of its very special nature that we we can feel much more what is it that makes other than the wording of the appropriations clause what is it that makes it special the wording is is the key thing and its impact and what it means is it has to have some special impact because otherwise why why did the frame responded to put it in the constitution at spending and and again it's its language and its history shows why it was put in the constitution and the the d o j position reason i wrote the constitution point in your opening that the founders knew the importance of stopping a monarch from spending freely i assume the founders also know the importance of a chief executive not legislating by executive orders right into your honor if we have a situation where the president says i don't have any authority to do this i asked for it congress said no i set down the government for a long time to congress to agree they didn't so now i'm just doing it on my own and i'm spending money that would i believe thing that the house gets you about there must be any number of pieces of legislation that don't require the president to spend money exactly sure what question to ask in that regard but i imagine that the president wants a certain kind of power to do a certain kind of thing related to immigration or any other number of things that you could think of doesn't require spending money president asks for the approval of congress congress refuses case i'm i'm i don't think i i don't understand your insistence that the appropriations the presence of the appropriations clause here makes a difference i think  conceded that at the very least unlikely that congress would have standing to challenge a president who exceeded statutory authority and and any case in which the president sees a statutory authority why can't congress make the claim that that's a violation of the by cameras and presentment clauses and has therefore injured because again i'm coming back to the specific wording and i think we believe the framers had a very specific and different content with regard to newport ration because as opposed to any other legislation law house can't make law by itself that saying the institutional interest here belongs to the house and that's correct we think here that under the appropriation cause both the senate and the if the president proposes a deal the national labor relations act and one of the houses says we're not interested the government doesn't stop it just means a particular piece of legislation doesn't go forward that's what  and why it means that each house of each chamber of congress has its own individual coward because it has the ability to stop the government from operating whereas for everything the reason that i'm saying i think that would be extremely problematic because it's hard to see how that would be an injury to the house anywhere near as foundational as again i guess i'm an answer your question yes yes it's a combination of these various factors put together that make the appropriations situation and the absence of any any ordinarily evidence on the other hand we have the absence of evidence and then we have some supreme court discussions on cases that go in some point one direction something to point another direction even sometimes within the same opinion and so you have you will basically reforms change congressional oversight as it has been known for this country for years is going to change and be very very different the point is i don't think it makes that it shifts the the way the congress and the congress deal with each other because for most of its history it has been dealing with each other with lots an out and so the president would take that out and so congress would ensue about it clearly though there are any number of situations where prior presidents would say yes you're entitle this information  should impeach without necessary information and should pass statutes without nessun from nation how can that possibly be the right answer we need this information otherwise congress is passing appropriations violations is that i don't see that you're making any more modest claim that for example here there's really no arguable lawful basis for the kind  divert the funds i did notice in your complaint you explained how the twenty two of the different sources of funds emergency funds under ten u s c twenty eight i say only for military construction and then the counter drug measure in the and nineteen appropriations act seems to prohibit use for military constructions but but you don't make a explicitly an argument that this isn't sort of a subcategory of appropriations violations that are so p obviously building a border wall is not military construction that's just absolutely clear and in fact it's it's obvious that the president didn't think that this was a valid ground either because why did  shut down the government for the longest time and artistry and then agree to a legislative compromise and only then start doing this and moving money that would have been no reason for him about and again remember there have been almost no appropriations cause battles over the years this is definitely my gauge problem this is not a situation where we're suddenly going to have a whole lot of case about appropriation saying we're going to go to war with or without congress it's instead very technical and difficult issues about what was this appropriated for this purpose could just be moved the chatter to there really the clearly is no gauge practical problems here i i really appreciate that information but i thought you were saying you wouldn't you wouldn't make a distinction between this kind notoriously byzantine area of law and if if congress wanted to get into critiquing how the executive branch is money there it seems like there's some it would be a lot more complicated than a lot of other cases but you're not making a point i think you can still write an opinion here that says because of the extraordinary circumstances in disk case that shut down the clear denial have an institutional has shown that it has a concrete institutional injury i think you could then say as you just did i think very eloquently most appropriations disputes are going to involve byzantine  regulations and legislative practices cetera and therefore it is extremely unlikely that there will be all the other appropriations cases that would be could knowledgeable if this becomes a problem obviously the courts can then say article three is we do have a four digit problem here and therefore article three that's one of the concerns about which image is about article three and so we are quoting a stop to that so i think there is a way for you to rule here in a very narrow way based on the specific facts of the background of this case and the statutes involved with out opening up that  limit the institutional standing to those circumstances where there is a recognized structural protection that has been injured by the institution that is seeking to have standing in our courts and be the equivalent of exhaustion  political remedies why wouldn't that be a fair way of looking at this if we were inclined to agree with you that's very interesting your hon mubarak's make it sound like week we could have more discussions about an accommodation about the documents we reach an agreement about the white house documents the white house has to date produced not a single one of the documents because they were not complying with the accommodation that we reached and they started raising more conditions after we thought we had an agreement and there  nothing to talk about there is no accommodation of dawkins bottom line we have received no documents that we demand point your honor to say is i'm worried about how that would work in pract the propre a two against craft into this some consideration of either you know accommodation or exhaustion because we don't want to encourage court or if we rule against you you know want to have a situation where no one will try to cooperate because the other side can't go to court it seems like neither or neither one of those alternatives is is a good one and i'm sorry on right now fully understand your question i apologize before you know you you certainly you make a good point my response is one we do have to come to to try to accommodate that's already part of this circuits and we agree we have no problem with that the problem is just a executive whoever happened to be the president of the time know that ultimately we can go to court we should have much more success as we had for almost two hundred years of working lawsuits and one of the reasons why and so i still think it's a going to be extremely rare that we're going to get these kinds of suits because if we get accommodation and bargaining  compromise we in congress will get some watch the information that we need in order to legislate or impeach whereas if we have to go all through mitigation you know that that's just a that's we're going to run out of time with a geisha is in general not going to be a good option for the house counsel trying to think probably about four or five times discussions maybe even more but at a certain point it became clear that the president's position was  mccann has absolute immunity and therefore there won't be any testimony you know we talked about could there be st a deposition could there be a you know president can claim executive privilege as to various questions or subjects and then there would have been accommodation we could have said ok we won't ask about that subject but could we ask about this one my colleagues if they have fallen question judge henderson thank you i don't thank you judge rogers thank you judge title no i have none thank you judge garland no thank you chief thank you judge griffith no thank you judge millette no more questions thank you mr letter basically concede that virtually all statutory violation claims that house doesn't standing or even congress and the ability his attempt to distinguish all other cases from spending cases just doesn't really hold up for two reasons the wording of the appropriations clause can't possibly matter because that's the merits of whether there's a prohibition and also the reason the appropriation clause exists is because after that there might have been an argument that the president had independent article  authority to spend money to accomplish statutorily authorized projects that's what the appropriations clause does off the table that independent article two dollars authority but the nd point is i have no response repeal them that's all that shows you that what spending isn't any different than statutory authority question and all of it is dealt with through political tools that's how congress deals with it and here in particular where there is not a clear  we know that rains gave significant weight to that and we know that when rains talked about history it didn't talk about individual members of congress and talked about congress as a whole so to rule for the house you'll have to say that that in that part of the state legislature not a federal legislature and as a footnote express police emphasizing the importance of the difference so if you're going to give him full ways to the supreme court's opinions as you're required to do with a lower court the right way to handle it is say even if there's not a square holding about what to do with the full congress we know that the supreme court has emphasized history and tradition it is emphasized that even for congress as a whole and it is never backed away from that for congress as both for state legislatures that is the proper approach for a lower federal court to do and that's because history and tradition is what informs article three the words keizer controversy they don't have a dictionary definition meaning that you can apply here you look to history and tradition to determine what is the case or today is one for total executive not accountability no matter how long as its actions and nothing in law or logic justifies the darling position this is a government of laws and what the law is does not depend on have the rare case where the executive has violated the appropriations caused by deciding to send billions more on board while construction in congress appropriated nothing about their statutory defenses changes the fact that this is a rare constitutional violation of the appropriations squat the quanta expressly prohibits the executive from spending without authorization by each house of congress and give each chamber an independent veto power over the executive because of those special features  what specifically and only the individual legislators lack the standing to challenge the constitutionality of a statute that is not the type of challenge we have in either case here and d o j has oversold th it exactly backwards judicial resolutions of subpoena disputes and the rare case where the executive decides to spend money in violation of the constitution safeguards the separation of powers no one wants congress to have to resort to of recalcitrant executive officials and then be questioned about whether has authority to do so or to shut down the federal government only to have its appropriations limitations then ignored by the executive at bottom to the separation of powers to