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We have a SCOTUS thread but there are also developments on the appeals courts worth noting. Today the DC Circuit came out with a doozy of an opinion. Authored by Henderson, who has always been stupid and now she's stupid and really old. Katsas, who some people had imagined might be a reasonable conservative (I did not, knowing him), joined because reasons.
The gist of the case is impoundment. Everyone agreed that the administration illegally impounded funds -- in this case, USAID money. So the question was whether anyone has the ability to sue to force the administration to release the funds illegally impounded. The answer, apparently, is no. Only the GAO can sue to restore the money, which is quite obviously inadequate. If the money was appropriated by the other party, that act is a valid piece of legislation, and it must be followed by the executive. The president can't withhold it just because the new Congress doesn't like the appropriation and thus will not sue to vindicate it.
The reasoning was, shall we say, baffling. I'm used to it; it's a Henderson special. So everyone agrees that if Congress had not passed the Impoundment Control Act, there would be a private cause of action under the constitution. But Congress, in 1974, decided it didn't want to leave the matter to chance. So it passed that act, which is basically structured like: impoundment is illegal; the president can request impoundment if he follows certain procedures; and then also following certain procedures, Congress can let that go if it wants. This is common sense: why write a statute that irreversibly commits money to a cause if everyone agrees that the appropriation has lost its purpose.
I haven't read the legislative history, but to me it seems likely that the exception to the Impoundment Control Act was at least in part related to the war in Vietnam. War, of course, is the duh case in which "impoundment" would be appropriate. If the US gets into a war in 2030, perhaps Congress appropriates a bunch of money to wage the war in 2031 and 2032. But if we either win or surrender in 2030, that stuff would be unnecessary. The executive should be able to tell Congress, "um, war's over, so we don't need this stuff" (this is one of the procedures -- informing Congress) and Congress could say, "yeah, go ahead and cancel that spending." And if this is what Congress had in mind, allowing the GAO to sue the executive branch in the case that Congress doesn't agree would make sense. Private parties would lack standing in many cases.
But Judge Henderson sees this, and says that the Impoundment Control Act actually supplanted a private right of action. Now only the GAO can sue. The private parties -- the people who were promised money and then screwed over -- can't sue because the Impoundment Control Act was passed. So it's perverse to think that Congress, in exerting its constitutional authority over spending, actually weakened its authority. Before ICA, private parties can sue to force the president to spend money. After ICA, they can't. This was Congress' purpose? Note that Trump did not follow the prescribed procedures.
In case there was any doubt, Congress also included a section in the ICA stating that it does not "“affect in any way the claims or defenses of any party to litigation concerning any impoundment.” 2 U.S.C.§ 681(3). And here is the Henderson response. As I said, she's stupid: "But that does not mean that any aggrieved party may initiate litigation. Instead, the language disclaims any effect on the claims or defenses of any party that may bring litigation." Do we really need to explain that a ruling that the party can't bring litigation because of the ICA affects the claims or defenses of the parties, who were able to sue before and can no longer sue? I mean, maybe Ramrouser would need that sort of primer, but federal judges?
I really hope the plaintiffs take this case to the DC Circuit en banc, which I think will take the case and reverse.
Unfortunately, Pan's dissenting opinion was weak and disorganized. It doesn't affect the validity of her approach -- which is the right one -- but she wasn't very persuasive, in my view. That doesn't affect the availability or outcome of en banc review, but I should just note that. Dissents are sometimes way too long. Probably usually way too long. Three pages would have been enough, maybe five pages, to explain the obvious problems with the majority's position.
The gist of the case is impoundment. Everyone agreed that the administration illegally impounded funds -- in this case, USAID money. So the question was whether anyone has the ability to sue to force the administration to release the funds illegally impounded. The answer, apparently, is no. Only the GAO can sue to restore the money, which is quite obviously inadequate. If the money was appropriated by the other party, that act is a valid piece of legislation, and it must be followed by the executive. The president can't withhold it just because the new Congress doesn't like the appropriation and thus will not sue to vindicate it.
The reasoning was, shall we say, baffling. I'm used to it; it's a Henderson special. So everyone agrees that if Congress had not passed the Impoundment Control Act, there would be a private cause of action under the constitution. But Congress, in 1974, decided it didn't want to leave the matter to chance. So it passed that act, which is basically structured like: impoundment is illegal; the president can request impoundment if he follows certain procedures; and then also following certain procedures, Congress can let that go if it wants. This is common sense: why write a statute that irreversibly commits money to a cause if everyone agrees that the appropriation has lost its purpose.
I haven't read the legislative history, but to me it seems likely that the exception to the Impoundment Control Act was at least in part related to the war in Vietnam. War, of course, is the duh case in which "impoundment" would be appropriate. If the US gets into a war in 2030, perhaps Congress appropriates a bunch of money to wage the war in 2031 and 2032. But if we either win or surrender in 2030, that stuff would be unnecessary. The executive should be able to tell Congress, "um, war's over, so we don't need this stuff" (this is one of the procedures -- informing Congress) and Congress could say, "yeah, go ahead and cancel that spending." And if this is what Congress had in mind, allowing the GAO to sue the executive branch in the case that Congress doesn't agree would make sense. Private parties would lack standing in many cases.
But Judge Henderson sees this, and says that the Impoundment Control Act actually supplanted a private right of action. Now only the GAO can sue. The private parties -- the people who were promised money and then screwed over -- can't sue because the Impoundment Control Act was passed. So it's perverse to think that Congress, in exerting its constitutional authority over spending, actually weakened its authority. Before ICA, private parties can sue to force the president to spend money. After ICA, they can't. This was Congress' purpose? Note that Trump did not follow the prescribed procedures.
In case there was any doubt, Congress also included a section in the ICA stating that it does not "“affect in any way the claims or defenses of any party to litigation concerning any impoundment.” 2 U.S.C.§ 681(3). And here is the Henderson response. As I said, she's stupid: "But that does not mean that any aggrieved party may initiate litigation. Instead, the language disclaims any effect on the claims or defenses of any party that may bring litigation." Do we really need to explain that a ruling that the party can't bring litigation because of the ICA affects the claims or defenses of the parties, who were able to sue before and can no longer sue? I mean, maybe Ramrouser would need that sort of primer, but federal judges?
I really hope the plaintiffs take this case to the DC Circuit en banc, which I think will take the case and reverse.
Unfortunately, Pan's dissenting opinion was weak and disorganized. It doesn't affect the validity of her approach -- which is the right one -- but she wasn't very persuasive, in my view. That doesn't affect the availability or outcome of en banc review, but I should just note that. Dissents are sometimes way too long. Probably usually way too long. Three pages would have been enough, maybe five pages, to explain the obvious problems with the majority's position.