Thursday, May 18, 2023
Can Minority Members on a Congressional Committee Sue to Get Agency Material?
The Supreme Court this week agreed to hear a case testing whether minority members on a congressional committee can sue to enforce their statutory right to obtain material from an agency.
But this isn't just any minority, and it's not just any agency material. The dispute arises out of congressional Democrats' efforts to obtain material from the General Services Administration about the Trump organization's lease with the Old Post Office for the Trump International Hotel.
In February 2017, the then-House Oversight Committee ranking member and seven other Democrats (but not a majority of the Committee, because Dems were in the minority) asked GSA for material related to GSA's 2013 lease of the Old Post Office building to Trump Old Post Office LLC. The members cited 5 U.S.C. Sec. 2954, which provides
An Executive agency, on request of the [Committee on Oversight and Reform] of the House of Representatives, or of any seven members thereof, or on request of the Committee on [Homeland Security and] Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.
GSA declined; the members sued; and GSA argued that the members lacked standing.
The case, Maloney v. Murphy, now pits two theories of standing against each other. On the one hand, the members say that they have standing based on an informational harm--that they have a right to information (under Section 2954), and that the GSA denied them that information. This is a little like you or me seeking to enforce a FOIA request in court: a statute grants us a right to information, an agency declines to provide it, and we can sue. But the theory depends on members suffering an informational harm that is personal and individual to them (even if as members of Congress), and not a harm on behalf of Congress (or a committee of Congress) as a body. They point to Powell v. McCormack, among other cases, where the Court has held that a member of Congress has standing based on an injury that is particular to them as a legislator. The D.C. Circuit adopted this theory when it ruled that the members have standing.
On the other hand, GSA (then and now) says that individual members lack standing based on a harm to Congress, the House, or their committee. GSA points to Raines v. Byrd, where the Court held that individual members of Congress can't sue to challenge the Line Item Veto Act, because the harm went to Congress, not to the individual members.
The difference will likely turn on how the Court interprets Section 2954. If the Court reads the statute to authorize individual members to obtain agency material as individual legislators, to serve their individual legislative functions, then the Court will likely say that the members have standing. But if the Court reads the statute to protect the right of the committees to obtain information, it'll likely say they don't.