# COMMITTEE ON JUD., US HOUSE OF REPRES. v. Miers

> District Court, District of Columbia · July 31, 2008 · 558 F. Supp. 2d 53

URL: https://www.frixlaw.com/law-library/cases/1810993

## Case

- **Full name:** COMMITTEE ON the JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, Plaintiff, v. Harriet MIERS, Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** July 31, 2008
- **Citations:** 558 F. Supp. 2d 53; 2008 U.S. Dist. LEXIS 58050; 2008 WL 2923350
- **Precedential status:** Published
- **Opinion:** Opinion by Bates
- **Judges:** John D. Bates
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1810993

## How later opinions describe it (automated extraction)

- holding that “where the Constitution is the source of the right allegedly violated, no other source of a right — or independent cause of action' — -need be identified”
- concluding the House Committee on the Judiciary could bring civil action where the Committee "ha[d] been expressly authorized by House Resolution to proceed on behalf of the House of Representatives as an institution"
- noting that “negotiation and accommodation . . . most often leads to resolution of disputes between the political branches” and “strongly encourag[ing] the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively”
- holding that where the Constitution creates a right, a plaintiff can use the Declaratory Judgment Act to vindicate that right

## Opinion text

MEMORANDUM OPINION
JOHN D. BATES, District Judge.
This dispute pits the political branches of the federal government against one another in a case all agree presents issues of extraordinary constitutional significance. The heart of the controversy is whether senior presidential aides are absolutely immune from compelled congressional process. But as is often true of lawsuits that raise important separation of powers concerns, there are many obstacles to the invocation of the jurisdiction of the federal courts that must first be addressed.
The Committee on the Judiciary (“Committee”), acting on behalf of the entire House of Representatives, asks the Court to declare that former White House Counsel Harriet Miers must comply with a subpoena and appear before the Committee to testify regarding an investigation into the forced resignation of nine United States Attorneys in late 2006, and that current White House Chief of Staff Joshua Bolten must produce a privilege log in response to a congressional subpoena. Ms. Miers and Mr. Bolten (collectively “the Executive”)
1
have moved to dismiss this action in its entirety on the grounds that the Committee lacks standing and a proper cause of
*56
action, that disputes of this kind are non-justiciable, and that the Court should exercise its discretion to decline jurisdiction. On the merits, the Executive argues that sound principles of separation of powers and presidential autonomy dictate that the President’s closest advisors must be absolutely immune from compelled testimony before Congress, and that the Committee has no authority to demand a privilege log from the White House.
Notwithstanding that the opposing litigants in this case are co-equal branches of the federal government, at bottom this lawsuit involves a basic judicial task — subpoena enforcement — with which federal courts are very familiar. The executive privilege claims that form the foundation of the Executive’s resistance to the Committee’s subpoenas are not foreign to federal courts either. After all, from
Marbury v. Madison,
5 U.S. (1 Cranch) 137, 177 , 2 L.Ed. 60 (1803) (“[i]t is emphatically the province and duty of the judicial department to say what the law is”), through
United States v. Nixon,
418 U.S. 683, 705 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974) (the judiciary is the ultimate arbiter of claims of executive privilege), to
Boumediene v. Bush,
553 U.S. ---, 128 S.Ct. 2229, 2259 , 171 L.Ed.2d 41 (2008) (rejecting regime in which the political branches may “switch the Constitution on or off at will” and, rather than the judiciary, “say “what the law is’ ”), the Supreme Court has confirmed the fundamental role of the federal courts to resolve the most sensitive issues of separation of powers. In the thirty-four years since
United States v. Nixon
was decided, the courts have routinely considered questions of executive privilege or immunity, and those issues are now “of a type that are traditionally justiciable” in federal courts,
United States v. Nixon,
418 U.S. at 697 , 94 S.Ct. 3090 (citation omitted), and certainly not unprecedented, as the Executive contends.
Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Mi-ers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in
United States v. Nixon
itself
(id.
at 706, 94 S.Ct. 3090 ):
neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.
It is important to note that the decision today is very limited. To be sure, most of this lengthy opinion addresses, and ultimately rejects, the Executive’s several reasons why the Court should not entertain the Committee’s lawsuit, but on the merits of the Committee’s present claims the Court only resolves, and again rejects, the claim by the Executive to absolute immunity from compelled congressional process for senior presidential aides. The specific claims of executive privilege that Ms. Mi-ers and Mr. Bolten may assert are not addressed — and the Court expresses no view on such claims. Nor should this decision discourage the process of negotiation and accommodation that most often leads to resolution of disputes between the political branches. Although standing ready to fulfill the essential judicial role to “say what the law is” on specific assertions of executive privilege that may be presented,
*57
the Court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch’s essential role. To that end, the Court is reminded of Justice Jackson’s observations in his concurring opinion in
Youngstoum, Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 635 , 72 S.Ct. 863 , 96 L.Ed. 1153 (1952):
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.
BACKGROUND
2
At the outset, the Court recognizes that this case is in an odd procedural posture. For purposes of the Executive’s motion to dismiss, the Court must accept the Committee’s factual assertions as true, but that is not so for purposes of the Committee’s own motion for partial summary judgment. Fortunately, however, the operative facts are not significantly in dispute, notwithstanding each side’s attempt to put its own gloss on the relevant events.
In early December 2006, the Department of Justice (“DOJ”) requested and received resignations from seven U.S. Attorneys: Daniel Bogden (D.Nev.), Paul K. Charlton (DAriz.), Margaret Chiara (W.D.Mich.), David Iglesias (D.N.M.), Carol Lam (S.D.Cal.), John McKay (W.D.Wash.), and Kevin Ryan (N.D.Cal.).
See
Pl.’s Stmt, of Facts ¶ 7.
3
At some point earlier in the year, DOJ had also asked for and received resignations from two other U.S. Attorneys: H.E. “Bud” Cummins III (E.D.Ark.) and Todd Graves (W.D.Mo.).
Id.
The circumstances surrounding these forced resignations aroused almost immediate suspicion. Few of the U.S. Attorneys, for instance, were given any explanation for the sudden request for their resignations. Many had no reason to suspect that their superiors were dissatisfied with their professional performance; to the contrary, most had received favorable performance reviews.
Additional revelations further fueled speculation that improper criteria had motivated the dismissals. Carol Lam, for example, had successfully prosecuted Republican Congressman Randy “Duke” Cunningham for bribery following a high-
*58
profile investigation and was “in the midst” of pursuing additional high-ranking Republican officials when she was terminated.
See
Pl.’s Mot. at 8;
see also
Report of the Committee on the Judiciary, House of Representatives, H.R.Rep. No. 110-423 (2007) (hereinafter “Contempt Report”), at 17. John McKay had refused requests by Republican officials to pursue accusations of voter fraud during the 2004 Washington gubernatorial race.
Id.
Similarly, David Iglesias was contacted by two Republican Members of Congress from New Mexico (Senator Pete Domenici and Representative Heather Wilson) who were disappointed to learn that Iglesias had no plans to seek indictments against members of the opposing political party in the run-up to the 2006 congressional elections. Pl.’s Mot. at 8;
see also
Contempt Report at 25.
As these events came to light, the Committee on the Judiciary — a standing Committee of the House of Representatives— commenced an investigation into the forced resignations in early 2007.
See
Pl.’s Stmt, of Facts ¶ 8. Citing its authority under House Rule X, which provides that the Judiciary Committee’s oversight responsibilities extend to issues relating to judicial proceedings and criminal law enforcement, the Committee declared that it aimed to:
Id.
¶ 10 (quoting Contempt Report at 7). The Committee heard the testimony of six of the dismissed U.S. Attorneys during the first hearing held on March 6, 2007.
Id.
¶ 11. Shortly thereafter, Committee Chairman John Conyers, Jr., and Linda T. Sanchez, Chairwoman of the Subcommittee on Commercial and Administrative Law, wrote to officials at DOJ and the White House requesting that certain individuals, among them Ms. Miers, be made available for questioning by the Committee.
Id.
¶¶ 12-13.
(1) investigate] and expos[e] any possible malfeasance, abuse of authority, or violation of existing laws on the part of the Executive Branch related to these concerns, and (2) consider! ] whether the conduct uncovered may warrant additions or modifications to existing Federal Law, such as more clearly prohibiting the kinds of improper political interference with prosecutorial decisions as have been alleged here.
In response, the Executive, “[i]n order to accommodate the Committee’s interests ... [,] made available to Congress a very substantial number of witnesses and documents.”
See
Defi’s Mot. to Dismiss & Opp’n to Summ. J. (hereinafter “Def.’s Mot. & Opp’n”) at 11. Thus, the Executive made “then-Principal Associate Deputy Attorney General William Moschella available to Congress as a witness, and subsequently made available thirteen additional Executive Branch witnesses for testimony or interviews, including the Attorney General, the Chief of Staff to the Attorney General, incumbent and former Deputy Attorneys General, and serving U.S. Attorneys.”
Id.
Mr. Moschella testified that “the forced resignations were all performance related and that any White House involvement was minimal and occurred only at the end of the process.” PL’s Mot. at 9 (citing Contempt Report at 19). Similarly, then-Attorney General Alberto Gonzales initially indicated that he was not involved in the process at all but later testified that he had very little recollection of the entire matter.
4
On May 23, 2007, Monica Goodling, former Senior Counsel to Attorney General Gonzales and DOJ’s White House Liaison,
*59
testified before the Committee pursuant to limited use immunity.
See
Pl.’s Stmt, of Facts ¶ 24. Similarly, on July 11, 2007, former White House Political Director Sara M. Taylor testified before the Senate Committee on the Judiciary pursuant to a duly issued subpoena.
Id.
¶ 42. Ms. Taylor invoked executive privilege as necessary on a question-by-question basis.
Id.
Moreover, in addition to the live testimony provided, DOJ produced to Congress “over 7,850 pages of documents, including more than 2,200 pages from the Office of the Attorney General and 2,800 pages from the Office of the Deputy Attorney General.”
See
Def.’s Mot. & Opp’n at 12. DOJ made available another 3,750 pages of documents, bringing the total number of pages produced to Congress to “nearly 12,000.”
Id.
According to the Committee, however, “[s]ubsequent testimony and documents provided by Department officials ... suggested that the Gonzales and Moschella statements were false and misleading, thus still leaving unresolved precisely what the reasons were for the terminations and what role the White House played in them.”
See
PL’s Mot. at 9-10. Most importantly, none of the DOJ officials who testified before the Committee could identify
who
at DOJ had recommended the dismissal of the majority of the terminated U.S. Attorneys.
Id.
at 10 (citing Contempt Report at 43). Former Deputy Attorney General James B. Comey, who had supervised the dismissed U.S. Attorneys, had not recommended their removal — with the apparent exception of Kevin Ryan — and “could not credit the reasons offered for the terminations of the others.”
Id.
(citing Contempt Report at 45-46). The Committee concluded that it is ‘Veil established that, in the opening days of President Bush’s second term, then Senior Presidential Advisor Karl Rove raised the idea with officials in the White House Counsel’s office of replacing some or all U.S. Attorneys.”
See
Contempt Report at 43. The Committee has not been able to determine, however, “why Mr. Rove was interested in this issue.”
Id.
Similarly, the Committee determined that “[njewly installed White House Counsel Harriet Miers apparently took up Mr. Rove’s idea, and over the next two years received repeated drafts of the firing list.”
Id.
at 43-14. But likewise, “the Committee has learned very little as to why Ms. Miers believed that an effort to replace sitting U.S. Attorneys should be launched.”
Id.
at 44.
After deciding that Ms. Miers had played a significant personal role in the termination decision-making, the Committee intensified its efforts to obtain her testimony. Ms. Miers, however, had not responded to the initial letter from the Committee requesting a voluntary interview.
See
PL’s Stmt, of Facts ¶¶ 13-14. Hence, on March 9, 2007, Chairman Co-nyers and Chairwoman Sanchez wrote to Fred F. Fielding, Counsel to the President, requesting that the administration produce documents relating to the investigation and “make certain White House officials available for interviews and questioning.”
Id.
¶ 15.
Mr. Fielding responded by letter dated March 20, 2007. He indicated that the White House was willing to “make available for interviews the President’s former Counsel; current Deputy Chief of Staff and Senior Advisor; Deputy Counsel; and Special Assistant in the Office of Political Affairs.”
Id.
¶ 16 (quoting PL’s Mot. Ex. 5). That offer was conditioned, however, upon several terms and restrictions. To begin with, the interviews were to be limited to “the subject of (a) communications between the White House and persons outside the White House concerning the request for resignations of the U.S. Attorneys in question; and (b) communications
*60
between the White House and Members of Congress concerning those reports.” Pl.’s Mot. Ex. 5. Moreover, the Executive indicated that the interviews were to be “private and conducted without the need for an oath, transcript, subsequent testimony, or the subsequent issuance of subpoenas.”
Id.
The White House also offered to provide to the Committee two categories of documents: “(a) communications between the White House and the Department of Justice concerning the request for resignations for the U.S. Attorneys in question; and (b) communications on the same subject between White House staff and third parties, including Members of Congress or their staffs on the subject.”
Id.
The Committee did not receive Mr. Fielding’s offer warmly. In particular, the Committee viewed the proposal as “unreasonably restrictive” in part because “no matter what was revealed [through the document production or interviews], no other testimony or documents could be requested from the White House.”
See
Contempt Report at 61. Moreover, the documents the White House offered to produce “excluded all
internal
White House communications regarding the firing of the U.S. Attorneys, even though some documents reflecting such internal communications had already been provided by the Justice Department.”
Id.
(emphasis in original). Thus, pursuant to House rules, on March 21, 2007, the Subcommittee voted to authorize Chairman Conyers to “issue subpoenas for the testimony of former White House Counsel Harriet Mi-ers ... and other specified White House officials.”
Id.
at 61-62. In addition, the Subcommittee also authorized Chairman Conyers to issue “subpoenas for documents in the custody or control of ... White House Chief of Staff Joshua Bol-ten.”
Id.
at 62.
Chairman Conyers and Chairwoman Sanchez wrote to Mr. Fielding on March 22, 2007 to inform him that the Committee could not “accept your proposal for a number of reasons.”
Id.
Specifically, the letter stated that:
[T]he failure to permit any transcript of our interviews with White House officials is an invitation to confusion and will not permit us to obtain a straightforward and clear record. Also, limiting the questioning (and document production) to discussions by and between outside parties will further prevent our Members from learning the full picture concerning the reasons for the firings and related issues. As we are sure you are aware, limitations of this nature are completely unsupported by precedents applied to prior Administrations — both Democratic and Republican.
Id.
Nevertheless, the Committee indicated that it remained “committed to seeking a cooperative resolution to this matter on a voluntary basis.” PL’s Mot. Ex. 6. For that reason, Chairman Conyers refrained from immediately issuing subpoenas in the hope that a negotiated solution would obviate the need to rely upon compulsory process.
Id.
Chairman Conyers and Senator Leahy, Chairman of the Senate Committee on the Judiciary, wrote to Mr. Fielding again on March 28, 2007 in an effort to reach an agreeable accommodation. The Chairmen requested that the White House abandon its “all or nothing” approach and instead produce the documents that it had already offered to make available. PL’s Mot. Ex. 7. They also suggested that the parties narrow the dispute to “internal” White House documents and then focus on developing a process to deal with production.
Id.
Mr. Fielding responded by letter dated April 12, 2007. He asked the Committees to “reconsider [their] rejection of the Pres
*61
ident’s proposal.” Pl.’s Mot. Ex. 9. Mr. Fielding also “respectfully decline[d] [the Chairmen’s] suggestion to immediately produce the documents that we are prepared to release.”
Id.
In conclusion, he indicated that the Executive “continue[d] to believe that the accommodation we offered on March 20 ... will satisfy the Committees’ interests.”
Id.
Finally, Chairman Conyers and Chairwoman Sanchez wrote to Mr. Fielding on May 21, 2007 to “make one last appeal for ... voluntary cooperation.” PL’s Mot. Ex. 10. They indicated that the Committee had been “willing and able to meet to consider other means of resolving our dispute, but we have received no response to our letters or proposals to you.”
Id.
Explaining that “it is becoming increasingly clear that we will not be able to complete our investigation absent full and complete cooperation from the White House,” they emphasized the Committee’s willingness to work out a voluntary resolution to the dispute but noted that it would “be constitutionally irresponsible to accept your ‘all or nothing’ limitations that would completely preclude any access to on-the-record statements by current and former White House personnel or access to internal White House communications.”
Id.
Thus, they stated that absent an effort by the White House to accommodate the Committee’s request, “we will have no alternative but to begin to resort to compulsory process to carry out our oversight responsibilities.”
Id.
Mr. Fielding responded to Chairman Leahy, Chairman Conyers, and Chairwoman Sanchez on June 7, 2007. He noted that the Executive had “made efforts to resolve our differences on this issue in a mutually acceptable fashion” by meeting with members from both Committees to discuss proposals. PL’s Mot. Ex. 12. Moreover, he cited to various disclosures made by DOJ without objection from the White House. In addition, Mr. Fielding expressed his aspiration to “avoid the prospect of ‘subpoenas’ and ‘compulsory process’ referred to in your recent letters and statement.”
Id.
He concluded by reiterating, once again, the terms of the Executive’s initial proposal, explaining that “[i]t is difficult to see how this proposal will not provide your Committees with all information necessary to evaluate the White House’s connection to the Department’s request for U.S. Attorney resignations.”
Id.
Apparently viewing Mr. Fielding’s June 7, 2007 letter as evidence of the Executive’s intransigence, the Committee issued subpoenas to Mr. Bolten and Ms. Miers on June 13, 2007. PL’s Stmt, of Facts ¶¶ 26-27. Mr. Bolten was directed to produce responsive documents to the Committee by June 28, 2007 and to deliver a privilege log with respect to any documents withheld on the grounds of privilege.
Id.
¶ 26. Ms. Miers was directed to appear to testify before the Committee on July 12, 2007 and to produce relevant documents in her possession; she, too, was advised to supply a privilege log for any documents withheld as privileged.
Id.
¶ 27.
On June 27, 2007, Solicitor General and then-Acting Attorney General Paul Clement wrote to the President indicating that “[i]t is my considered legal judgment that you may assert executive privilege over the subpoenaed documents and testimony.” PL’s Mot. Ex. 15. Mr. Clement explained that the “Office of Legal Counsel of the Department of Justice ... reviewed the documents identified by the Counsel to the President as responsive to subpoenas.”
Id.
Those responsive documents fell into “three broad categories”: “(1) internal White House communications; (2) communications by White House officials with individuals outside the Executive Branch,
*62
including with individuals in the Legislative Branch; and (3) communications between White House officials and Department of Justice officials.”
Id.
Mr. Clement concurred with the conclusion of the Office of Legal Counsel (“OLC”) that the documents “fall within the scope of executive privilege ... [and] that Congress’s interests in the documents and related testimony would not be sufficient to override an executive privilege claim.”
Id.
Based upon Mr. Clement’s letter and OLC’s analysis, Mr. Fielding wrote to Chairmen Leahy and Conyers on June 28, 2007 advising them that the “President has decided to assert Executive Privilege and therefore the White House will not be making any production in response to these subpoenas for documents.” Pl.’s Stmt, of Facts ¶ 30. In addition, Mr. Fielding indicated that the President had also directed Ms. Miers not to produce any responsive documents to the Committee; George Manning, counsel for Ms. Miers, confirmed that instruction by letter dated June 28, 2007.
Id.
¶¶ 30-31.
Mr. Bolten did not provide any documents to the Committee when his response date came due on June 28, 2007. The next day, Chairmen Leahy and Conyers wrote to Mr. Fielding seeking to obtain the specific bases for the Executive’s assertion of privilege.
Id.
1133. They also requested that the White House provide a personal signed statement by the President confirming that he had decided to invoke executive privilege.
Id.
Mr. Fielding denied both requests on July 9, 2007.
Id.
¶ 34. On that same day, Mr. Fielding wrote to counsel for Ms. Miers informing him that the President had decided to assert executive privilege over the substance of Ms. Miers’s testimony, and hence she was instructed not to provide any testimony before the Committee. PL’s Mot. Ex. 20. In a July 10, 2007 letter to Mr. Manning, Mr. Fielding explained that OLC had concluded that Ms. Miers was absolutely immune from compelled congressional testimony. PL’s Mot. Ex. 23. He again directed Mr. Manning to ensure that Ms. Miers did not appear to testify before the Committee on July 12, 2007, and attached a copy of OLC’s opinion — also dated July 10, 2007— to his letter.
Id.
Mr. Manning promptly informed the Committee that Ms. Miers had been instructed not to provide any testimony in response to her subpoena. Chairman Co-nyers and Chairwoman Sanchez objected to this development, urging Mr. Manning that “[w]e are aware of absolutely no court decision that supports the notion that a former White House official has the option of refusing to even appear in response to a Congressional subpoena.” PL’s Mot. Ex. 25. They warned that Ms. Miers ran the risk of being held in contempt of Congress if she declined to appear.
Id.
By letter dated July 11, 2007, Mr. Manning confirmed that Ms. Miers would not appear to testify before the Committee on July 12, 2007. PL’s Mot. Ex. 26.
When Ms. Miers failed to appear on July 12th, Chairwoman Sanchez decided to reject “Ms. Miers’s privilege and immunity claims.” PL’s Stmt, of Facts ¶44. The Subcommittee sustained that determination by a vote of 7-5. Chairman Conyers then delivered a copy of that ruling to Mr. Manning, along with a letter again warning that Ms. Miers could face contempt of Congress charges if she did not comply with the substance of the subpoena.
Id.
¶ 45. In response, Mr. Manning restated that Ms. Miers would not appear to testify before the Committee or produce any responsive documents.
Id.
¶46. On July 19, 2007, Chairman Sanchez again rejected Mr. Bolten’s claims of executive privilege and his refusal to produce a privilege log.
Id.
¶ 48. That decision was also sustained
*63
by the Subcommittee. Chairman Conyers then provided Mr. Fielding with a copy of that ruling and inquired as to whether the White House would comply with the subpoena. Id. ¶49. On July 23, 2007, Mr. Fielding informed Chairman Conyers that “the President’s position remains unchanged.” Pl.’s Mot. Ex. 31.
Frustrated by the Executive’s actions, the full Committee met on July 25, 2007 and adopted a resolution “recommending that the House of Representatives find that former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten be cited for contempt of Congress for refusal to comply with subpoenas issued by the Committee.”
See
153 Cong. Rec. D1051-01 (2007). Chairman Conyers provided Mr. Fielding with a copy of the Committee’s report in the hope that it might prompt the White House voluntarily to change its position.
See
PL’s Stmt, of Facts ¶ 52. He received no response. So, on November 5, 2007, the Committee filed its report with the full House of Representatives.
Id.
¶ 54. Once
again,
Chairman Conyers wrote to Mr. Fielding to inform him of that development and to reiterate that the Committee still hoped “to resolve the issue on a cooperative basis”; Chairman Conyers even included “a proposal for resolving the dispute.” Id. ¶ 55. This time, Mr. Fielding responded by rejecting Chairman Co-nyers’s offer, explicitly noting that “[w]e are therefore at a most regrettable impasse.” PL’s Mot. Ex. 34. He urged the Committee to “reconsider its proposed actions” and to accept the President’s initial proposal. Id
With no negotiated solution in sight, the full House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress on February 14, 2008 by a vote of 223-32. PL’s Stmt, of Facts ¶ 57.
5
The House also passed three accompanying resolutions — H.Res. 979, 980, and 982 — that were meant to guide the next steps in the process. Resolution 979, for instance, provided that the Speaker of the House shall certify a copy of the Contempt Report “to the U.S. Attorney for the District of Columbia, ‘to the end that Ms. Miers be proceeded against in the manner and form provided by law.’ ” PL’s Stmt, of Facts ¶ 58 (quoting H. Res. 979, 110th Cong. (Feb. 14, 2008)). It also provided analogous treatment for Mr. Bolten. Resolution 980 authorized Chairman Conyers to initiate a civil action in federal court to seek declaratory and injunctive relief “affirming the duty of any individual to comply with any subpoena.” Id ¶ 59 (quoting H. Res. 980, 110th Cong. (Feb. 14, 2008)).
6
On February 28, 2008, Speaker of the House Nancy Pelosi certified the Contempt Report to Jeffrey A. Taylor, U.S. Attorney for the District of Columbia. Id. ¶ 60. Pursuant to the terms of 2 U.S.C. §§ 192 and 194, Mr. Taylor was directed to present the contempt charges against Ms. Miers and Mr. Bolten to a grand jury.
See
2 U.S.C. § 194 . On that same day, Speaker Pelosi wrote to Attorney General Michael B. Mukasey. PL’s Stmt, of Facts ¶ 62. The Attorney General had previously indicated that he would not permit Mr. Taylor to bring the contempt citations before a grand jury, and Speaker Pelosi “urged him to reconsider his position.”
Id.
The next day, however, the Attorney General responded that because Ms. Miers and Mr. Bolten were acting pursuant to the direct orders of the President, “the Department has determined that noncompliance ... with the Judiciary Committee
*64
subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers.” PL’s Mot. Ex. 40. With criminal enforcement of its subpoenas foreclosed, the Committee — invoking Resolution 980 — filed this action seeking a declaratory judgment and other injunctive relief.
See
PL’s Mot. at 14.
The undisputed factual record, then, establishes the following. Notwithstanding a prolonged period of negotiation,
7
the parties reached a self-declared impasse with respect to the document production and testimony at issue here. Faced with that reality, the full House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress and certified the Contempt Report to the U.S. Attorney for the District of Columbia to pursue criminal enforcement of the contempt citations. The Attorney General then directed the U.S. Attorney not to proceed against Ms. Miers and Mr. Bolten. The Committee, then, filed this suit seeking civil enforcement of its subpoena authority by way of declaratory and injunctive relief.
The only real factual “dispute” here is which party is responsible for the impasse. Unsurprisingly, each side blames the other. The Committee contends that the Executive proposed an untenable “take it or leave it” offer that would have significantly curtailed the Committee’s capacity to perform its oversight duties, and then would not budge from its initial position. The Executive insists that the Committee’s proposals “have been substantially the same and one-sided: they propose accommodations on the part of the White House without signaling any willingness on the part of the Committee to accommodate itself to the Presidential interests at stake.” PL’s Mot. Ex. 34. Hence, it is the Committee (in the Executive’s view) that has stonewalled the accommodation process by pressing unreasonable demands that, if accepted, would amount to “incremental Executive Branch abandonment of [the President’s] constitutional obligations.”
Id.
Although it is relevant that the political branches have reached an impasse, it is not important to assign blame for purposes of the motions now before the Court.
DISCUSSION
Because the Executive’s motion to dismiss raises threshold issues that may preclude the need to reach the merits of the Committee’s claims, the Court will address its motion first. There is one preliminary matter to discuss briefly however. Both sides concede, and the Court agrees, that 28 U.S.C. § 1331 provides subject matter jurisdiction over this lawsuit.
8
Because this dispute concerns an allegation that Ms. Miers and Mr. Bolten failed to comply with duly issued congressional subpoenas, and such subpoena power derives implicitly from Article I of the Constitution, this case arises under the Constitution for purposes of § 1331. In
Senate Select Comm. on Presidential Campaign Activities v. Nixon,
366 F.Supp. 51 (D.D.C.1973)
(“Senate Select Comm.
/”), the court indicated that federal question jurisdiction was properly invoked in a suit by a Senate committee to enforce a subpoena issued to President Nixon provided that the then-existing statutory amount in
*65
controversy requirement was satisfied.
Id.
at 59-61 . Although the court ultimately dismissed the case for failure to meet the monetary threshold, that requirement no longer exists and there is no other impediment to invoking § 1331 subject matter jurisdiction here.
9
Indeed, in
United States v. AT & T,
551 F.2d 384 (D.C.Cir.1976)
(“AT & T
/”), a case similar to this one, the D.C. Circuit found subject matter jurisdiction pursuant to § 1331 owing to the “fundamental constitutional rights involved.”
Id.
at 388-89.
I. The Executive’s Motion to Dismiss
The Executive launches three distinct attacks in its motion to dismiss, raising considerations of standing, cause of action, and equitable discretion. The Court will address each contention in turn, but none provides a basis to dismiss this action.
10
A. Standing
Standing is “ ‘an essential and unchanging’ predicate to any exercise of jurisdiction” by an Article III federal court.
See Am. Chemistry Council v. Dep’t of Transp.,
468 F.3d 810, 814 (D.C.Cir.2006) (quoting
Florida Audubon Soc. v. Bentsen,
94 F.3d 658, 663 (D.C.Cir.1996)). “[T]he irreducible constitutional minimum of standing contains three elements.”
Lujan
*66
v. Defenders of Wildlife,
504 U.S. 555, 560 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992). “First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.”
Id.
(internal quotations and citations omitted). “Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court.”
Id.
(internal quotations and alterations omitted). “Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Id.
(internal quotations omitted). Significantly, the Supreme Court has stressed that the standing inquiry is “especially rigorous” where — as here — important separation of powers concerns are implicated by a dispute.
See Raines v. Byrd,
521 U.S. 811, 819-20 , 117 S.Ct. 2312 , 138 L.Ed.2d 849 (1997). In this context, a plaintiff must demonstrate that “the dispute is ‘traditionally thought to be capable of resolution through the judicial process.’”
Id.
at 819 , 117 S.Ct. 2312 (quoting
Flast v. Cohen,
392 U.S. 83, 97 , 88 S.Ct. 1942 , 20 L.Ed.2d 947 (1968)).
Here, the principal debate concerns the injury-in-fact prong of the standing analysis.
11
The Executive’s argument has two constituent parts: first, that the Committee has not suffered a cognizable
personal
injury that is required for Article III standing; and second, that this is not the type of dispute traditionally capable of resolution before an Article III court.
“[T]he Committee lacks the traditional type of ‘personal injury’ required under Article III,” the Executive insists,
id.
at 29, and this Court held just that in
Walker v. Cheney,
230 F.Supp.2d 51 (D.D.C.2002). Here, the Committee’s injury is “governmental” rather than “personal,” the argument goes. The fact that the Committee speaks for the entire House of Representatives, rather than for only some Members in their individual capacity, does not transform the underlying nature of the Committee’s asserted injury into the appropriate “individual rights” action. That, the Executive says, is the upshot of the Supreme Court’s decision in
Raines ,
which jettisoned the concept of so-called “legislative” standing.
Raines,
521 U.S. at 820, 829 , 117 S.Ct. 2312 . Like the plaintiffs in
Raines ,
the Committee’s “institutional injury ... is wholly abstract and widely dispersed ... [and its] attempt to litigate this dispute at this time and in this form is contrary to historical experience.”
Id.
at 829 , 117 S.Ct. 2312 .
Nor can the Committee rely upon the notion of “informational injury” espoused in
FEC v. Akins,
524 U.S. 11 , 118 S.Ct. 1777 , 141 L.Ed.2d 10 (1998), and
Public Citizen v. U.S. Dep’t of Justice,
491 U.S. 440 , 109 S.Ct. 2558 , 105 L.Ed.2d 377 (1989).
In those cases Congress had enacted statutes providing private plaintiffs with unqualified legal rights to information— regardless of the need or the purpose for which information was sought — and ‘the invasion’ of those statutory rights was held to inflict a concrete and particular injury supportive of the plaintiffs’ standing.
See
Def.’s Mot.
&
Opp’n at 33. There is no such statutory grounding for the Committee’s informational injury here. And
*67
Article I supplies no “freestanding right to information” but rather merely establishes the general power to perform Congress’s legislative function.
Id.
Once again, the Executive maintains that this Court deemed precisely this asserted injury— impairment of Congress’s ability to legislate due to inability to access documents and testimony' — -as inadequate in
Walker .
The Executive urges the same result here.
The Executive also steadfastly maintains that this dispute is not one traditionally thought to be amenable to judicial resolution. Instead, historical experience demonstrates that the Article III judiciary has been concerned primarily with adjudication concerning individual rights rather than “ ‘some amorphous general supervision of the operations of government.’ ”
See
Def.’s Mot.
&
Opp’n at 26 (quoting
United States v. Richardson,
418 U.S. 166, 192 , 94 S.Ct. 2940 , 41 L.Ed.2d 678 (1974) (Powell, J., concurring)). The type of direct judicial intervention in a dispute between the two political branches requested by the Committee in this case, the Executive argues, “has been virtually unknown in American jurisprudence.”
Id.
As the Executive would have it, this controversy is “perhaps the paradigmatic example of [a] dispute that ha[s] been resolved without resort to judicial process.”
Id.
at 27. The political branches have instead traditionally resolved their differences by the process of negotiation and accommodation. To the Executive, this “200-plus years of constitutional tradition,”
id.
at 28, strongly suggests that the Committee’s case is not the type normally amenable to judicial resolution, which in turn implies that the Committee lacks standing to bring the action.
In response, the Committee argues that binding authority establishes that it has standing to enforce congressional subpoenas. In
AT & T I,
the Committee notes, the D.C. Circuit held that “[i]t is clear that the House as a whole has standing to assert its investigatory power, and can designate a member to act on its behalf.” 551 F.2d at 391 . That holding conclusively resolves the issue of standing, in the Committee’s view. More recently, a three-judge court reiterated that basic principle in
U.S. House of Representatives v. U.S. Dep’t of Commerce:
[I]t [is] well established that a legislative body suffers a redressable injury when that body cannot receive information necessary to carry out its constitutional responsibilities. This right to receive information arises primarily in subpoena enforcement cases, where a house of Congress or a congressional committee seeks to compel information in aid of its legislative function.
11 F.Supp.2d 76, 86 (D.D.C.1998).
Raines
and
Walker
are not to the contrary, the Committee contends, because both are distinguishable. In
Raines ,
the Supreme Court was reluctant to intervene in an intra-branch dispute, but the plaintiffs there were
individual
Members of Congress who were not authorized to sue on behalf of either House — indeed, both Houses opposed the lawsuit.
Raines,
521 U.S. at 829 , 117 S.Ct. 2312 (“We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.”). There is no such concern here, the Committee points out. The same goes for
Walker .
There, the Comptroller General sought information on behalf of certain individual Members of Congress; as in
Raines ,
neither House of Congress had authorized the Comptroller General to file a lawsuit.
Walker,
230 F.Supp.2d at 68 (“[I]t is of some importance that, like the plaintiffs in
Raines ,
the Comptroller General here has not
*68
been expressly authorized by Congress to represent its interests in this lawsuit.”) (internal citations omitted). Here, the argument goes, the asserted injury — “being denied access to information” that is the subject of a subpoena,
see
Pl.’s Reply at 26 — runs to the Committee and it, authorized by the full House, is suing to vindicate an injury that is concrete and personalized to the Committee.
Id.
The Court concludes that the Committee has standing. The Committee and several supporting amici are correct that
AT &T I
is on point and establishes that the Committee has standing to enforce its duly issued subpoena through a civil suit. Moreover,
Raines
and subsequent cases have not undercut either the precedential value of
AT & T I
or the force of its reasoning. Finally,
United States v. Nixon
and
Senate Select Comm, on Presidential Campaign Activities v. Nixon,
498 F.2d 725 (D.C.Cir.1974)
(“Senate Select Comm. Ill”),
illustrate that this sort of dispute is traditionally amenable to judicial resolution and consequently justiciable.
The starting point for this analysis is
AT & T I.
A House subcommittee issued a subpoena to AT & T demanding documents concerning warrantless wiretapping that had been undertaken by the company at the request of the FBI.
See
551 F.2d at 385 . The executive branch then interceded and engaged the subcommittee in a series of negotiations designed to obviate the need for compulsory process.
Id.
at 386-87 . When negotiations ultimately failed, President Ford directed AT & T— “as an agent of the United States” — to ignore the congressional subpoena, but the company indicated that it would comply because it believed that it was legally obligated to do so.
Id.
at 385-87 . “The Justice Department therefore brought an action in the name of the United States ... and obtained a temporary restraining order prohibiting AT & T from complying with the Subcommittee subpoena.”
Id.
at 387 . Thereafter, the chairman of the subcommittee intervened as a defendant.
Id.
The district court issued a permanent injunction against compliance with the subpoena, deferring to the President’s determination that execution of the subpoena would pose unacceptable risks of the disclosure of extremely sensitive intelligence information and would be detrimental to the national security.
Id.
at 387-88 .
On appeal, the D.C. Circuit found jurisdiction pursuant to § 1331, noting that “[although this suit was brought in the name of the United States against AT
&
T, AT & T has no interest in this case, except to determine its legal duty.”
Id.
at 388-89. Instead, the lawsuit was more properly viewed “as a clash of the powers of the legislative and executive branches of the United States.”
Id.
at 389. On the question of justiciability, the court reasoned that
Senate Select Comm,
and
United States v. Nixon
established that “the mere fact that there is a conflict between the legislative and executive branches over a congressional subpoena does not preclude judicial resolution of the conflict.”
Id.
at 390. Because the court remanded the case for further negotiations between the branches, however, it had no occasion to “balance the constitutional interests raised by the parties, including such factors as the strength of Congress’s need for the information in the request letters ... and the seriousness of the harm to national security” from the potential leak of that information.
Id.
at 391.
12
The court did
*69
conclude, however, that “[i]t is clear that the House as a whole has standing to assert its investigatory power, and can designate a member to act on its behalf.”
Id.
In the face of that clear statement, the Executive attempts both to distinguish
AT & T I
from this case and to argue that subsequent decisions have eviscerated its precedential weight. Neither attempt is persuasive. To begin with, the Executive argues that
AT & T1
is inapposite because it did not involve compelling executive branch officials to testify before Congress in response to a subpoena. That is technically true, but the Executive overlooks the court’s express conclusion that — in a contest between the executive and legislative branches over compliance with a duly issued congressional subpoena — the House has standing to invoke the federal judicial power to aid its investigative function. There is no suggestion whatsoever in
AT & T I
that the House’s standing in that capacity is limited to situations where the ultimate subpoena respondent is a private party. Moreover, the Executive ignores the fact that President Ford explicitly referred to AT & T as “an agent of the United States” in
AT & T I. Id.
at 387. That may not be precisely the same as a senior presidential aide, but AT & T was at the very least regarded as a constructive member of the executive branch for purposes of the D.C. Circuit’s analysis.
The Executive next argues that
Raines
undermines the holding of
AT & T I
and that this Court’s decision in
Walker
confirms as much. Contrary to the Executive’s contentions, however,
Raines
did not overrule or otherwise undermine
AT & T I,
and neither
Raines
nor
Walker
is inconsistent with
AT & TI.
The issue in
Raines
was whether the doctrine of “legislative standing” passed Article III muster. 521 U.S. at 820-21 , 117 S.Ct. 2312 . Six disgruntled Members of Congress who had voted against the Line Item Veto Act, which was enacted and signed into law, filed suit seeking a declaratory judgment that the Act was unconstitutional.
Id.
at 814-17 , 117 S.Ct. 2312 . Following the D.C. Circuit’s legislative standing doctrine, the district court concluded that the Members had “standing to challenge measures that affect their constitutionally prescribed lawmaking powers.”
Id.
at 816 , 117 S.Ct. 2312 (internal citations omitted). The Members’ claim that the Act “dilutefd] their Article I voting power was sufficient to confer Article III standing.”
Id.
at 817 , 117 S.Ct. 2312 .
On direct appeal, the Supreme Court reversed. The Members had declared that their injury was “a loss of a political power, not the loss of any private right.”
Id.
at 821 , 117 S.Ct. 2312 . Thus, the asserted injury actually ran to the
institution
of Congress, not to the individual Members who brought suit.
Id.
at 829 , 117 S.Ct. 2312 . Put another way, the Members had suffered no injury that granted them
individual
standing because the actual injury was incurred by the
institution.
Significantly, the Supreme Court noted that it “attach[ed] some importance to the fact that [plaintiffs] have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suits.”
Id.
Raines
and
AT & TI
are consistent. In
AT & T I,
the House intervened to defend its institutional interest in compliance with duly issued congressional subpoenas.
*70
Thus, the intervenor in
AT & T
I — the chairman of the subcommittee that had issued the subpoena — was authorized to act on behalf of the House to vindicate the House’s institutional right that had been challenged by the executive branch. The chairman, then, represented the
institution
and sought to remedy a potential
institutional
injury. That was not the case in
Raines .
There,
individual
Members sought to ameliorate Congress’s
institutional
injury without the consent of the institution itself — and the approach was rejected by the Supreme Court.
13
But the Court has never held that an institution, such as the House of Representatives, cannot file suit to address an institutional harm. Because the issues presented by
Raines
and
AT & T I
were not the same, one cannot conclude that
Raines
overruled or undermined
AT & T I. See U.S. House of Representatives,
11 F.Supp.2d at 86 (citing
AT & TI
with approval post-Raines).
Other factors also distinguish
Raines
from
AT & T I.
In
Raines ,
the asserted injury was to Congress’s vaguely defined “political power.” The harm was not tied to a specific instance of diffused voting power; rather, the injury was conceived of only in abstract, future terms. By contrast, in
AT & T I,
a House subcommittee had issued a valid subpoena in connection with a specific investigation and DOJ was attempting to invalidate it. The injury to the House was evident: the validity and efficacy of that particular subpoena was in jeopardy, as was the utility of the subcommittee’s investigation. So, too, in this case. Moreover, the fact that the House in
AT & T I
was engaged in a specific investigation of warrantless wiretapping made its asserted interest more concrete than the situation in
Raines ,
where the purported injury was wholly hypothetical. Likewise here.
Walker
and
AT & TI
are also consistent with one another. In
Walker ,
the Comptroller General requested certain information from the Vice President at the prompting of four Senators. 230 F.Supp.2d at 57-58 . The Comptroller General sought to enforce his right to acquire information to conduct an appropriate investigation in order to “aid Congress in considering proposed legislation.”
Id.
at 66-67 . Relying on
Raines ,
this Court indicated that the “general interests in legislating and oversight that are allegedly impaired by defendant’s failure to produce the requested records ... [are] too vague and amorphous to confer standing.”
Id.
at 67. The Court noted that “there is some authority in this Circuit indicating that a House of Congress or a committee of Congress would have standing to sue to retrieve information to which it is entitled.”
Id.
at 68. But Congress had “undertaken no effort to obtain the documents at issue, ... no committee had requested the documents, and no congressional subpoena ha[d] been issued.”
Id.
Hence, “an injury with respect to any congressional right to information remain[ed] wholly conjectural or hypothetical.”
Id.
(internal citations and quotations omitted).
This case stands in marked contrast to
Walker .
Indeed, all of the missing factors identified in
Walker
are present here: the Committee has plainly undertaken efforts to obtain the documents and testimony at issue pursuant to an official investigation, a congressional subpoena has been issued seeking precisely that information, and the full House has specifically authorized filing suit. Just as in
Raines ,
this Court in
Walker
attached significance to the fact
*71
that “the Comptroller General has not been expressly authorized by Congress to represent its interests in this lawsuit.”
Id.
at 68 . Although Congress may have suffered some form of institutional injury in
Walker ,
it had not designated the Comptroller General to vindicate that interest on Congress’s behalf. Because he was not authorized to proceed on the part of Congress, the Comptroller General was left with no personal injury to confer standing. In this case, of course, the Committee (through Chairman Conyers) has been expressly authorized by House Resolution to proceed on behalf of the House of Representatives
as an institution.
That is precisely the scenario that — -in
AT & TI
— -the D.C. Circuit stated would satisfy the standing requirement.
Contrary to the Executive’s suggestion, the fact that the House has issued a subpoena and explicitly authorized this suit does more than simply “remove[ ] any doubt that [the House] considers itself aggrieved.”
See
Defs.’ Reply at 15. It is the key factor that moves this case from the impermissible category of an individual plaintiff asserting an institutional injury
(Raines, Walker)
to the permissible category of an institutional plaintiff asserting an institutional injury
(AT & T I, Senate Select Comm.).
Simply put, the Executive’s position that the “Committee cannot predicate its standing on
United States v. AT & T
or other
pre-Raines
precedents,”
see
Defs.’ Reply at 16, is mistaken. The precedential value and force of
AT & T I
survive
Raines .
A House committee has issued a subpoena to certain members of the executive branch who have refused to comply with it, and the House has authorized the Committee to proceed to court. The injury incurred by the Committee, for Article III purposes, is both the loss of information to which it is entitled and the institutional diminution of its subpoena power. As one amicus aptly put it, that is “precisely the injury on which the standing of
any
governmental body rests when it seeks judicial enforcement of a subpoena it issued.”
See Brief of Senator Inouye, et al.
at 7.
The Executive also maintains that this dispute is not the sort that is traditionally amenable to judicial resolution. The Court disagrees for two primary reasons: (1) in essence, this lawsuit merely seeks enforcement of a subpoena, which is a routine and quintessential judicial task; and (2) the Supreme Court has held that the judiciary is the final arbiter of executive privilege, and the grounds asserted for the Executive’s refusal to comply with the subpoena are ultimately rooted in executive privilege. Whatever merit there once was to the contention that questions of executive privilege are inherently non-justiciable, it can no longer be maintained in light of
United States v. Nixon
and its progeny.
Courts, as the Committee points out, routinely enforce subpoenas, whether they are grand jury subpoenas, deposition or trial subpoenas to compel testimony or produce documents pursuant to Fed. R.Civ.P. 45, or subpoenas issued by administrative agencies of the United States pursuant to Fed.R.Civ.P. 81(a)(5). That enforcement authority is deeply rooted in the common law tradition, as first explained by Chief Justice Marshall in
United States v. Burr,
25 F. Cas. 30 (C.C.D.Va.1807). Moreover, courts have entertained subpoena enforcement actions (or motions to quash subpoenas) where the political branches have clashed over congressional subpoenas:
AT & T I
and
Senate Select Comm. Ill
are the prime examples.
14
*72
The mere fact that the President himself — let alone his advisors, as here — is the subject of the subpoena in question has not been viewed historically as an insurmountable obstacle to judicial resolution.
See United States v. Nixon,
418 U.S. at 686, 94 S.Ct. 3090 ;
Burr, 25
F. Cas. at 32 . Indeed, in
Burr ,
Chief Justice Marshall explained that “the obligation [to comply with a subpoena] ... is general; and it would seem that no person could claim an exemption from [it].”
Id.
at 34 . “The guard” that protects the Executive from “vexatious and unnecessary subpoenas,” in Chief Justice Marshall’s view, “is ... the conduct of a court
after
those subpoenas have issued; not in any circumstance which is to precede their being issued.”
Id.
(emphasis added). Any claim that compliance with a subpoena would jeopardize national security or privileged presidential information “will have its due consideration on the return of the subpoena,” Chief Justice Marshall noted.
Id.
at 37 . Thus, federal precedent dating back as far as 1807 contemplates that even the Executive is bound to comply with duly issued subpoenas. The Supreme Court emphatically reaffirmed that proposition in
United States v. Nixon
in 1974.
See Clinton v. Jones,
520 U.S. 681 , 696 n. 23, 117 S.Ct. 1636 , 137 L.Ed.2d 945 (1997) (“[T]he prerogative [President] Jefferson claimed [in
Burr
] was denied him by the Chief Justice in the very decision Jefferson was protesting, and this Court has subsequently reaffirmed that holding.”).
The Committee correctly points out that “courts have decided countless cases that involve the allocation of power
between
the political branches (not to mention between the political branches and the judiciary).” Pl.’s Opp’n & Reply at 31. The Committee cites a litany of cases in support of that proposition, all of which deal with important separation of powers concerns in their own right.
See, e.g., Morrison v. Olson,
487 U.S. 654 , 108 S.Ct. 2597 , 101 L.Ed.2d 569 (1988) (removal);
Bowsher v. Synar,
478 U.S. 714 , 106 S.Ct. 3181 , 92 L.Ed.2d 583 (1986) (execution of laws);
INS v. Chadha,
462 U.S. 919 , 103 S.Ct. 2764 , 77 L.Ed.2d 317 (1983) (legislative veto);
Humphrey’s Executor v. United States,
295 U.S. 602 , 55 S.Ct. 869 , 79 L.Ed. 1611 (1935) (removal);
Myers v. United States,
272 U.S. 52 , 47 S.Ct. 21 , 71 L.Ed. 160 (1926) (removal). Hence, in the Committee’s view, federal courts have a long history of resolving cases that involve significant (and often contentious) separation of powers disputes between the branches of the federal government, thus refuting the Executive’s assertion that this dispute is non-justiciable because it is not amenable to judicial resolution.
The Executive makes two arguments to rebut these points, neither of which is convincing. First, the Executive contends,
United States v. Nixon
is limited to the context of grand jury subpoenas and thus does not inform the present case. Grand jury proceedings, the argument goes, fall well within the traditional scope of an Article III court whereas this dispute does not. The Court disagrees. To be sure, the Supreme Court in
United States v. Nixon
explicitly cabined its opinion to the criminal arena.
See
418 U.S. at 711 n. 19, 94 S.Ct. 3090 (“We address only the conflict between the President’s assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials.”). But in identifying “the
*73
kind of controversy courts traditionally resolve,”
id.
at 696 , 94 S.Ct. 3090 , the Court focused on the issue of the production of specific evidence deemed to be relevant, and the resolution of a claim of executive privilege raised to resist production — noting that “these issues are ‘of a type which are traditionally justiciable.’ ”
Id.
at 697 , 94 S.Ct. 3090 (quoting
United States v. ICC,
337 U.S. 426, 430 , 69 S.Ct. 1410 , 93 L.Ed. 1451 (1949)). Although the setting here is a civil subpoena enforcement proceeding, the issues parallel those in
Nixon
and the setting is sufficient to ensure sharp presentation of the issues.
Id.
(citing
Baker v. Carr,
369 U.S. 186, 204 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962)). To paraphrase the Court in
United States v. Nixon,
“since the matter is one arising in the regular course of a federal [subpoena enforcement proceeding], it is within the traditional scope of Art. Ill power.”
Id.
A privilege claim raised to resist a subpoena is certainly “the kind of controversy courts traditionally resolve,” and the fact that the litigants are the political branches of our government is not a barrier to the Committee’s standing and a justiciable controversy.
Id.
Moreover, as the D.C. Circuit has observed, “the remaining
Nixon
cases ... address the scope of the presidential communications privilege in other contexts” beyond the grand jury.
In re Sealed Case, 121
F.3d 729, 743 (D.C.Cir.1997). Thus, the Court of Claims found that “the presidential communications privilege could be overcome by the evidentiary demands of a civil trial.”
Id.
at 744 (citing
Sun Oil Co. v. United States,
206 Ct.Cl. 742 , 514 F.2d 1020, 1024 (1975)). The D.C. Circuit reached the same conclusion in
Dellums v. Powell,
561 F.2d 242 (D.C.Cir.1977), where it held that “a formal claim of privilege based on the generalized interest of presidential confidentiality, without more” does not “work[] an absolute bar to discovery of presidential conversations in civil litigation.”
Id.
at 246 . Instead, there can often be “strong constitutional value in the need for disclosure in order to provide the kind of enforcement of constitutional rights” often implicated by civil litigation.
Id.
at 247 ;
see also In re Sealed Case, 121
F.3d at 744 (noting that
Dellums
stands for the proposition that “an adequate showing of need in a civil trial would also defeat the privilege”). And in
Nixon v. Adm’r of Gen. Services,
433 U.S. 425 , 97 S.Ct. 2777 , 53 L.Ed.2d 867 (1977), the Supreme Court addressed a clash between enacted congressional legislation and claims of presidential privilege. There, “substantial public interests ... led Congress to seek to preserve [President Nixon’s] materials ... to restore public confidence in our political processes by preserving the materials as a source for facilitating a full airing of the events leading to [his] resignation.”
Id.
at 453 , 97 S.Ct. 2777 . Congress also had a “need to understand how ... political processes had in fact operated in order to gauge the necessity for remedial legislation.”
Id.
“Thus by preserving [the President’s] materials,” Congress acted consistently with its “broad investigative power.”
Id.
Therefore, the Court held that “the claims of Presidential privilege clearly must yield to the important congressional purposes of preserving the materials and maintaining access to them for lawful governmental and historical purposes.”
Id.
at 454 , 97 S.Ct. 2777 .
It is readily apparent, then, that the justiciability principles underlying the Supreme Court’s decision in
United States v. Nixon
have been extended beyond the limited realm of grand jury subpoenas. Most significantly, of course, the D.C. Circuit has confronted this issue in
precisely
the context presented by the instant case. In
Senate Select Comm. Ill,
a Senate committee brought a civil action to enforce
*74
subpoenas that it had issued to President Nixon to produce certain taped recordings of conversations between President Nixon and his White House counsel. 498 F.2d at 727. President Nixon declined to comply with the subpoena, asserting absolute executive privilege.
Id.
Relying heavily upon
Nixon v. Sirica,
487 F.2d 700 (D.C.Cir.1973),
15
the court rejected President Nixon’s claim of absolute privilege and instead held that he was entitled only to a presumptive privilege. 498 F.2d at 729-31. The court ultimately concluded that the Select Committee had not satisfied the “demonstrably critical” showing required to overcome the presumptive privilege because: (1) the House Judiciary Committee, which had “begun an inquiry into presidential impeachment,” had already received copies of the tapes, thus rendering the Select Committee’s oversight investigation “merely cumulative”; and (2) the Select Committee had already received written transcripts of the recordings and its asserted interest in ensuring the accuracy of the transcripts was not powerful enough to overcome the President’s interest in confidentiality.
Id.
at 732-33.
Putting the outcome aside, the D.C. Circuit’s reasoning in
Senate Select Comm. Ill
is of relevance here. The court’s analysis addressed the
merits
of the Committee’s showing of need with respect to the presumptive privilege, which confirms that the D.C. Circuit viewed the dispute between the Committee and the President to be justiciable because the court would have had no occasion (or authority) to discuss the particulars of the Committee’s need for the subpoenaed recordings if the case was non-justiciable at the outset. Indeed, the district court expressly found that “[t]he reasoning of
[Nixon v. Sirica
] involving a grand jury subpoena is equally applicable to the subpoena of a congressional committee ... [and there is] no doubt that the issues presented in the instant controversy are justiciable.”
Senate Select Comm. on Presidential Campaign Activities v. Nixon,
370 F.Supp. 521, 522 (D.D.C.1974)
(“Senate Select Comm. II”).
The D.C. Circuit evidently agreed because it proceeded directly to the merits of the controversy. Indeed, both this Court in
Walker
and the three-judge court in
U.S. House of Representatives,
11 F.Supp.2d at 86 , cited to
Senate Select Comm. III
for the proposition that “a House of Congress or a committee of Congress would have standing to sue to retrieve information to which it is entitled.”
Walker,
230 F.Supp.2d at 68 . The Executive has no ready way to distinguish
Senate Select Comm. III.
The Executive also takes issue with the Committee’s assertion that the Executive’s standing to seek or challenge the enforcement of subpoenas is identical to the Committee’s standing here. That argument is mistaken, the Executive says, because the Constitution entrusts to the Executive alone the responsibility to “take Care that the Laws be faithfully executed,” U.S. Const., Art. II, § 3, a charge that implies that the Executive must be permitted to invoke the aid of the judicial process in order to carry out its constitutional mandate.
See
Defs.’ Reply at 10.
Although most certainly correct, this argument is beside the point. The salient fact here is that in
AT &T I
the Executive was
not
undertaking
enforcement
action. Instead, the executive branch filed a civil lawsuit in an effort to convince a federal
*75
court to declare that a congressional subpoena was invalid.
16
That suit was not brought pursuant to the Executive’s duty to execute the laws. The Executive’s posture in that case, then, mirrors that of the Committee here in asking the Court to declare its subpoena valid.
17
There may well be instances where “different rules,” so to speak, apply to enforcement actions brought before a federal court by the Executive than govern civil actions initiated by Congress. But this is not such a case.
In any event, although Congress does not have the authority to enforce the laws of the nation, it does have the “power of inquiry.”
See McGrain v. Daugherty,
273 U.S. 135, 174 , 47 S.Ct. 319 , 71 L.Ed. 580 (1927). And according to the Supreme Court, “the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function.”
Id.
Indeed, the Court has indicated that the “issuance of a subpoena pursuant to an authorized investigation is ... an indispensable ingredient of lawmaking.”
See Eastland v. United States Servicemen’s Fund,
421 U.S. 491, 505 , 95 S.Ct. 1813 , 44 L.Ed.2d 324 (1975). “Just as the power to issue subpoenas is a necessary part of the Executive Branch’s authority to execute federal laws,”
see Brief of Senator Inouye, et al.,
at 7, so too is Congress’s need to enforce its subpoenas a necessary part of its power of inquiry.
Two significant OLC opinions issued during the Reagan administration warrant examination at this point. In 1984, an opinion by Acting Assistant Attorney General Theodore Olson confirmed the viability of a federal civil suit brought by a House of Congress to enforce subpoenas issued to executive officials.
See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege,
8 U.S. Op. Off. Legal Counsel 101, 137 (1984) (hereinafter “Olson OLC Opinion”). As OLC opined, Congress has three options available to enforce a subpoena against a recalcitrant respondent: (1) referral to the U.S. Attorney for prosecution of a criminal contempt of Congress charge; (2) detention and prosecution pursuant to Congress’s inherent contempt authority; or (3) a civil action to enforce the subpoena in a federal district court. When the respondent is a member of the executive branch who refuses to comply on the basis of executive privilege, however, OLC stated that the “contempt of Congress statute does not require and
could not constitutionally
require a prosecution of that official, or even,
*76
we believe, a referral to a grand jury of the facts relating to the alleged contempt.”
Id.
at 142 (emphasis added). That conclusion is rooted in concerns over both the Executive’s traditional prosecutorial discretion,
see id.
at 140, as well as the “concomitant chilling effect” that might impair presidential advice if the possibility of criminal prosecution loomed over the President’s close advisors,
see id.
at 142. Significantly, OLC also determined that “the same reasoning that suggests that the statute could not constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well.”
Id.
at n. 42. Thus, neither criminal prosecution nor inherent contempt could be employed against a recalcitrant executive branch official, as OLC saw it.
Instead, “Congress [can] obtain a judicial resolution of the underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for enforcement of a congressional subpoena.”
Id.
at 137. As OLC put it, a civil action would be superior because:
Congress has a legitimate and powerful interest in obtaining any unprivileged documents necessary to assist it in its lawmaking function ... [and][a] civil suit to enforce the subpoena would be aimed at the congressional objective of obtaining the documents, not at inflicting punishment on an individual who failed to produce them. Thus, even if criminal sanctions were not available against an executive official who asserted the President’s claim of privilege, Congress would be able to vindicate its legitimate desire to obtain documents if it could establish that its need for the records outweighed the Executive’s interest in preserving confidentiality.
Id.
In fact, after examining
Senate Select Comm. Ill,
OLC concluded that “there is little doubt that, at the very least, Congress may authorize civil enforcement of its subpoenas and grant jurisdiction to the courts to entertain such cases.”
Id.
at 137 n. 36. There is no suggestion whatsoever in the Olson OLC Opinion that such a civil suit would encounter any Article III obstacles because Congress (or a committee) would lack standing or because the dispute would not be considered traditionally amenable to judicial resolution. To the contrary, OLC rather emphatically concluded that a civil action would be the
least
controversial way for Congress to vindicate its investigative authority.
A 1986 OLC opinion authored by Assistant Attorney General Charles Cooper reached the same conclusion.
See Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act,
10 U.S. Op. Off. Legal Counsel 68 (1986) (hereinafter “Cooper OLC Opinion”). In that opinion, OLC restated its position that Congress may institute “a civil suit seeking declaratory enforcement of [a] subpoena.”
Id.
at 83. Likewise, OLC indicated that although inherent contempt is theoretically available to Congress and could ultimately be challenged by the executive branch through a writ of habeas corpus brought by the detained official, “it seems most unlikely that Congress could dispatch the Sergeant at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege.”
Id.
at 86.
Ultimately, OLC concluded that “although the civil enforcement route has not been tried by the House, it would appear to be a viable option.”
Id.
at 88;
see also id.
at 88 n. 33 (“Any notion that the courts may not or should not review [subpoena enforcement disputes between the political branches] is dispelled by
United States v. Nixon
... in which the Court clearly asserted its role as ultimate arbiter of execu
*77
tive privilege questions.”). In fact, the Cooper OLC Opinion stated that the “rationale used by the Department [in
AT & T I]
would appear to
apply equally to suits filed by a House of Congress
seeking enforcement of its subpoena against executive privilege claims.”
Id.
at 88 (emphasis added). There can be no doubt, then, that at least one prior administration regarded a civil suit by Congress to enforce a subpoena as presenting a justiciable controversy — and, indeed, to be the preferred method for resolving such inter-branch disputes.
See id.
at 88 n. 33 (“[0]nly judicial intervention can prevent a stalemate between the other two branches that could result in a particular paralysis of government operations.”).
The Executive also insists that the Committee cannot rely on “informational standing” to satisfy the Article III threshold because informational standing can only arise where Congress has passed a law that specifically provides an unqualified right to receive certain information. There is no such law in this case. Moreover, the Executive argues, the Committee cannot rest on an implied right to investigate derived from Article I because the underlying subject matter here — removal of executive officials — is an issue on which Congress has no authority to legislate and thus no corresponding right to investigate.
See McGrain,
273 U.S. at 173-75 , 47 S.Ct. 319 (noting that the power of inquiry is limited to investigation “in aid of [the] legislative function”).
Once again, the Court disagrees. In
McGrain ,
the Supreme Court explained that the “power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function.”
Id.
at 174 , 47 S.Ct. 319 . Indeed, in
East-land
the Supreme Court further noted that the “[i]ssuance of subpoenas ... has long been held to be a legitimate use by Congress of its power to investigate.... The issuance of a subpoena pursuant to an authorized investigation is similarly an indispensable ingredient of lawmaking.” 421 U.S. at 504-05 , 95 S.Ct. 1813 . “The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”
Barenblatt v. United States,
360 U.S. 109, 111 , 79 S.Ct. 1081 , 3 L.Ed.2d 1115 (1959). So long as the Committee is investigating a matter on which Congress can ultimately propose and enact legislation, the Committee may issue subpoenas in furtherance of its power of inquiry.
Turning to the legitimacy of this investigation,
McGrain
itself is enlightening. There, the investigation at issue involved:
[T]the administration of the Department of Justice — whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers.
Id.
at 177 , 47 S.Ct. 319 . The Court held that such a “subject [is] one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit.”
Id.
So, too, here — in fact, it is nearly the identical subject matter that the Committee is investigating. Simply put, the Executive characterizes the Committee’s investigation far too narrowly. It is not merely an investigation into the Executive’s use of his removal power but rather a broader inquiry into whether improper partisan considerations have influenced prosecutorial discretion. Similarly, in
Nixon v. Adm’r Gen. Services,
the Supreme Court indicated that Congress’s “need to understand
*78
how ... political processes had in fact operated in order to gauge the necessity for remedial legislation” was a legitimate topic for investigation. 433 U.S. at 453 , 97 S.Ct. 2777 . Once again, the same can be said of the Committee’s investigation. It defies both reason and precedent to say that the Committee, which is charged with oversight of DOJ generally, cannot permissibly employ its investigative resources on this subject. Indeed, given its “unique ability to address improper partisan influence in the prosecutorial process ... [n]o other institution will fill the vacuum if Congress is unable to investigate and respond to this evil.”
Brief of Former United States Attorneys
at 10-11. With the legitimacy of its investigation established, there is no need to belabor the argument concerning informational standing — noncompliance with a duly issued subpoena is a quintessential informational injury.
To recap, the Committee has issued subpoenas to two high-ranking executive branch officials who have refused to comply, citing executive privilege. The Committee’s attempt to pursue criminal prosecution of its contempt of Congress citation was thwarted by the Executive. Exercise of Congress’s inherent contempt power through arrest and confinement of a senior executive official would provoke an unseemly constitutional confrontation that should be avoided.
Cf. United States v. Nixon,
418 U.S. at 691-92, 94 S.Ct. 3090 (concluding that forcing the President to disobey a court order to obtain appellate review would create an unseemly, unnecessary constitutional confrontation between the branches). Thus, the Committee filed this suit to vindicate both its right to the information that is the subject of the subpoena and its institutional prerogative to compel compliance with its subpoenas. A harm to either interest satisfies the injury-in-fact standing requirement. Clear judicial precedent, along with persuasive reasoning in OLC opinions, establishes that the Committee has standing to pursue this action and, moreover, that this type of dispute is justiciable in federal court. Consequently, the Executive’s motion to dismiss for lack of standing will be denied.
B. Cause of Action
Even if the Committee can satisfy the Article III prerequisites to bringing a case in federal court, the Executive argues, the complaint must nonetheless be dismissed because there is no cause of action that authorizes this lawsuit. Although the complaint identifies the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (“DJA” or “Act”), as the basis for the Committee’s requested relief,
see
Compl. ¶ 18, the Executive insists that the Act “does not create a cause of action.” Def.’s Mot. & Opp’n at 38. Moreover, the Executive urges, this Court should decline to recognize an implied cause of action in favor of the Committee derived from the Constitution.
(1) Declaratory Judgment Act
Relying on a series of cases that stand for the proposition that the Declaratory Judgment Act is merely procedural and does not create a free-standing cause of action, the Executive maintains that the Act cannot supply a basis to support the Committee’s requested relief. In relevant part, the Declaratory Judgment Act provides:
In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
See
28 U.S.C. § 2201 (a). To begin with, the Executive points out that the Supreme
*79
Court has explained that the Act is “ ‘procedural only.’ ”
Skelly Oil Co. v. Phillips Petroleum Co.,
339 U.S. 667, 671 , 70 S.Ct. 876 , 94 L.Ed. 1194 (1950) (quoting
Aetna Life Ins. Co. of Hartford, Conn. v. Haworth,
300 U.S. 227, 240 , 57 S.Ct. 461 , 81 L.Ed. 617 (1937)). The term “jurisdiction” used in the Act, according to the Supreme Court, “means the kinds of issues which give right of entrance to federal courts ... in the sense of a federal right or diversity.”
Id.
The Act did not “impliedly repeal ] or modify[ ] ... the requirements of jurisdiction” in federal court.
Id.
at 671-72, 70 S.Ct. 876 . In that sense, “the Declaratory Judgment Act ‘is not an independent source of federal jurisdiction.’ ”
C&E Servs., Inc. of Washington v. D.C. Water & Sewer Autho.,
310 F.3d 197, 201 (D.C.Cir.2002). Instead, “the availability of [Declaratory Judgment Act] relief presupposes the existence of a judicially remediable right.”
Schilling v. Rogers,
363 U.S. 666, 677 , 80 S.Ct. 1288 , 4 L.Ed.2d 1478 (1960).
Against that backdrop, the Executive’s argument on this point breaks down into two parts. First, the Executive contends, the DJA does not itself create an independent cause of action. Instead, it merely enables anticipatory review for existing causes of action. Second, even assuming that the DJA can be utilized as an independent cause of action, the Committee here has identified no “judicially remediable right” that entitles it to invoke the DJA — there is no statutory basis for such a right, nor can Article I fairly be said to create a judicially enforceable right accruing to Congress.
For its part, the Committee responds that the “plain language of the statute” reveals that “the Committee’s right to be in court is evident.” Pl.’s Opp’n & Reply at 34. Under that text, only three elements are required to satisfy the statutory threshold: (1) “a case of actual controversy”; (2) an independent basis for federal jurisdiction; and (3) an “appropriate pleading.”
Id.
at 34 (quoting 28 U.S.C. § 2201 (a)). Once those three conditions are met, the Committee contends, a party “may have [its] ‘legal relations’ declared ‘whether or not further relief is available.’ ”
Id.
(quoting 28 U.S.C. § 2201 (a)). And the Committee argues that it has established all three elements here. First, this is a “case of actual controversy” for the same reasons that the Committee has Article III standing to bring this suit. Second, both parties agree that federal jurisdiction exists pursuant to 28 U.S.C. § 1331 . Finally, the Committee’s complaint in this case is the requisite “appropriate pleading.” “Under the terms of the statute,
nothing else is necessary,” id.
at 36-37 (emphasis in original), and the Committee is now entitled to have its “legal relations” defined by this Court; and “[i]n this case, [those] ‘legal relations’ stem from the right granted to Congress under the Constitution, as definitively interpreted by the Supreme Court,”
id.
at 34 . Hence, the Court should decide whether Ms. Miers and Mr. Bolten are legally required to respond to Congress’s duly issued subpoenas or whether, as the Executive contends, they are absolutely immune from such process.
As the Committee would have it, the “Supreme Court, which has
never
held that the DJA does not create a right of action — and, in fact, has proceeded for more than sixty years under the basic premise that it does — has expressed only two limitations upon the DJA.”
Id.
at 34-35 . According to the Committee, those two limitations, which do not apply here, are: (1) the DJA cannot supply an independent basis for federal jurisdiction; and (2) it cannot be used as a vehicle to secure an advisory opinion.
Id.
at 35 .
*80
There is some force to the Committee’s textual argument on this point. After all, the wording of the statute does not indicate that any independent cause of action is required to invoke the DJA. Instead, the statute is framed in terms of declaring “rights” and “legal relations” in a justicia-ble case within federal jurisdiction.
See
28 U.S.C. § 2201 (a). Moreover, there is some support for the Committee’s position found in early case law analyzing the DJA in terms of “remediable rights.” In
Coff-man v. Breeze Corp.,
323 U.S. 316 , 65 S.Ct. 298 , 89 L.Ed. 264 (1945), the Supreme Court held that declaratory judgments are available in federal court: (1) in disputes involving an actual case or controversy; (2) where the issue is actual and adversarial; and (3) when the action is not merely a medium for securing an advisory opinion.
Id.
at 324 , 65 S.Ct. 298 . Those requirements are satisfied here.
18
In addition, in
Shelly
(and subsequent decisions), the Supreme Court emphasized that the DJA is not a substitute for proper federal jurisdiction.
See
339 U.S. at 671-72 , 70 S.Ct. 876 . Here, because jurisdiction exists pursuant to 28 U.S.C. § 1331 , there is no concern that the Committee is seeking to utilize the DJA to circumvent normal requirements of federal jurisdiction.
On the other hand, the Executive identifies authority that casts some doubt upon the Committee’s contentions. In
Buck v. Am. Airlines, Inc.,
476 F.3d 29 (1st Cir.2007), the First Circuit observed that the DJA “creates a remedy, not a cause of action.”
Id.
at 33 n. 3. For that proposition, the court in
Buck
cited to
Muirhead v. Mecham,
427 F.3d 14 (1st Cir.2005). But that case indicated only that the DJA does not provide a “
‘jurisdictional
basis for actions under federal law, but merely defines the scope of available declaratory relief.’ ”
Muirhead,
427 F.3d at 17 n. 1 (quoting
Progressive Consumers Fed. Credit Union v. United States,
79 F.3d 1228, 1230 (1st Cir.1996)) (emphasis added). The use of the term “jurisdictional” in
Muirhead ,
and its omission in
Buck ,
may suggest that the
Buck
court misread
Muirhead .
The focus in
Muirhead
is on the jurisdictional requirement of the DJA, not any cause of action requirement.
Similarly, in
Okpalobi v. Foster,
244 F.3d 405 (5th Cir.2001), a case also cited by the Executive, the Fifth Circuit stated that the “law makes clear that ... [the DJA] provides a
remedy
different from an injunction ... [but] it does not provide an additional cause of action with respect to the underlying claim.”
Id.
at 423 n. 31 (emphasis in original). The Fifth Circuit cited to
Earnest v. Lowentritt,
690 F.2d 1198 (5th Cir.1982), in support of that assertion. But
Earnest
merely held that the DJA “does not provide an independent cause of action for determination of the constitutionality of a statute, but rather is only an avenue for relief in a ‘case of actual controversy within (the court’s) jurisdiction.’ ”
Id.
at 1203 (citing 28 U.S.C. § 2201 ). Because “federal jurisdiction [was] lacking,” the only remaining issue in
Earnest
involved the application of a Louisiana statute.
Id.
That presented “an issue of state rather than federal law,” and there was thus no
federal
case or controversy with which to invoke federal jurisdiction and correspondingly the DJA. As in
Buck ,
then, the broad language in
Okpalo-bi
rests upon a somewhat more ambiguous statement from a prior case. Nevertheless, both
Buck
and
Okpalobi
do lend some support to the Executive’s proposed reading of the DJA.
*81
So, too, does a recent opinion by Magistrate Judge Kay. In
Seized Property Recovery Corp. v. U.S. Customs & Border Protection,
502 F.Supp.2d 50 (D.D.C.2007), the court held that the plaintiffs DJA action failed because the complaint did “not specify any cause of action
through which
the Court may exercise subject matter jurisdiction and grant declaratory relief.”
Id.
at 64 (emphasis in original). To reach that conclusion, Magistrate Judge Kay relied (in part) upon
C & E Servs.,
which held that the DJA is not an independent source of jurisdiction but rather “presuppose[s] the existence of a judicially remediable right.” 310 F.3d at 201 (citations omitted). In
Seized Property,
however, the plaintiff failed to identify any right to the requested relief — a declaration that United States Customs and Border Protection was required “by statute to include names and addresses ... when publishing forfeiture notices pursuant to ... 19 U.S.C. § 1607 .” 502 F.Supp.2d at 64 . Significantly, the plaintiff made “no reference to arguable sources of jurisdiction such as the Administrative Procedure Act ... or the Due Process Clause of the Fifth Amendment.”
Id.
Therefore, because the plaintiff had proffered neither any right to the relief it requested nor any source of jurisdiction, the DJA claim was deficient.
In this case, however, the Committee does not claim that the DJA is the basis for its asserted substantive
right.
It is the Constitution, according to the Committee, that is the source of that right. The question, then, is whether an independent
cause of action
must supply the underlying right for DJA purposes or whether, as the Committee contends, the Constitution may be that source. At oral argument, counsel for the Committee stated that courts have “misspoke[n]” when they have stated that the DJA does not create a separate cause of action.
See
Tr. at 42 (“I think they misspoke. I don’t think that’s an accurate statement of the law.”). What those courts actually meant instead, the Committee suggests, is that the DJA does not itself provide the underlying substantive right to be adjudicated.
Id.
at 43 (“[Tjhat’s what I think they’re meaning when they say it doesn’t create a cause of action. It doesn’t give you a substantive right that you have against a defendant that you name.”). Moreover, the Committee contends, the “cause of action” references from those opinions can also be interpreted as statements that the DJA cannot confer subject matter jurisdiction. There is some force to this position. It is conceivable that courts may at times employ the terms “cause of action” and “jurisdiction” interchangeably;
19
after all, the Supreme Court has stated that historically “ ‘[j]urisdiction ... is a word of many, too many, meanings.’ ”
Arbaugh v. Y & H Corp.,
546 U.S. 500, 510 , 126 S.Ct. 1235 , 163 L.Ed.2d 1097 (2006) (“This Court, no less than other courts, has sometimes been profligate in its use of the term [jurisdiction].”).
To be sure, in most cases a plaintiff would
need
to identify a statutory (or a common law) cause of action to proceed in federal court, as otherwise there would be no basis for the plaintiffs asserted right to relief. The Constitution itself does not confer in most settings the sort of affirmative right that the Committee is claiming exists here; instead, the asserted right arises from some other source of law. But where the Constitution is the source of the right allegedly violated, no other source of a right — or independent cause of action— need be identified. The parties point to no case — and the Court is aware of none — -in
*82
which a court declined to hear a case requesting declaratory relief where subject matter jurisdiction was present and a plaintiffs constitutional rights were arguably implicated simply because the plaintiff did not have an independent cause of action apart from the DJA. By contrast, there is at least one case where a court applied the DJA in circumstances nearly identical to those present here.
See United States v. House of Representatives,
556 F.Supp. at 153.
The Court is satisfied that the Committee’s case can proceed pursuant to the DJA, particularly in light of case law indicating that the Act “should be liberally construed to achieve the objectives of the declaratory remedy.”
See McDougald v. Jenson,
786 F.2d 1465, 1481 (11th Cir.1986);
see also
10B Wright, Miller & Kane,
Federal Practice & Procedure
§ 2754 (3d ed. 1998) (“The Declaratory Judgment Act and Rule 57 must be liberally construed to attain the objectives of the declaratory remedy.”). Given the ambiguity surrounding the applicable case law, the Court finds the plain text of the statute instructive. As explained above, the Committee has satisfied the conditions set out in the text of the Act itself: this is a “case of actual controversy within [the Court’s] jurisdiction” and the Committee has filed the “appropriate pleading” seeking a declaration relating to its “rights and other legal relations.”
See
28 U.S.C. § 2201 . Moreover, there is no reason to conclude that the Committee is seeking an advisory opinion here — indeed, the Committee seeks actual compliance with the subpoenas. Thus, the Committee’s claim also satisfies the criteria identified by the Supreme Court in
Coffman.
In the end, two key facts distinguish this case: there is an independent basis for federal subject matter jurisdiction and there is a constitutional right at stake. These factors alleviate most, if not all, of the concerns that some courts have identified with respect to utilizing the DJA.
Employing the DJA in this case would also further one of the Act’s primary purposes: enabling anticipatory review in order to eliminate the necessity of litigation in the defensive posture. As one commentator put it, an important goal of the DJA was to “sanction[] the trial of controversies before a conventional cause of action has accrued and another remedy has become available.”
Developments in the Law: Declaratory Judgments
— 1941-49, 62 Harv. L.Rev. 787, 808 (1949). That view was confirmed by Members of Congress in floor statements during the debates over the Act.
See
Pl.’s Opp’n & Reply at 37 (quoting 69 Cong. Rec. 1638 (1928) (noting that the DJA would enable a federal court to hear a case “even though ... there is no existing cause of action upon which a hearing could be had at the time; but there is a substantial controversy as to the [legal rights involved]”)). Indeed, the Executive apparently agrees with that assessment: in “anticipatory cases, [the Act] merely switches the posture of the parties in adjudicating a reasonably anticipated cause of action,”
see
Defs.’ Reply at 20. The Supreme Court has also endorsed this view of the Act.
See, e.g., Franchise Tax Bd. of State of Cal. v. Const. Laborers Vac. Trust for S. Cal.,
463 U.S. 1 , 19 n. 19, 103 S.Ct. 2841 , 77 L.Ed.2d 420 (1983) (noting that “the nature of the declaratory remedy itself ... was designed to permit adjudication of either party’s claims of right”) (citing E. Borchard,
Declaratory Judgments
15-18, 23-25 (1934)).
A frequent setting in which the DJA is put to use is potential patent infringement cases.
See, e.g., id.
(“For instance, federal courts have consistently adjudicated suits by alleged patent infringers to declare a patent invalid, on the theory that
*83
an infringement suit by the declaratory judgment defendant would raise a federal question over which the federal courts have exclusive jurisdiction.”). When a party looks to engage in a course of conduct that may conceivably incur patent infringement liability, there are two common paths to obtain judicial resolution of the patent’s validity. The traditional defensive option is to await an infringement suit and then defend that suit on the basis that the patent is invalid. But another option is made available by the DJA: a party may sue preemptively to test the validity of the patent in federal court.
See, e.g., Hanes Corp. v. Millard,
531 F.2d 585, 592 (D.C.Cir.1976),
superseded by statute on other grounds
(“Certainly one of the most common and indisputably appropriate uses of the declaratory judgment procedure is to enable one who. has been charged with patent infringement to secure a binding determination of whether proposed conduct will infringe a patent in question without waiting until he becomes the defendant in an actual infringement suit. The purpose of granting declaratory relief to one potentially liable for infringement is to allow him to know in advance whether he may legally pursue a particular course of conduct.”).
This case is somewhat analogous to an anticipatory patent infringement case. As noted above, one power that Congress has at its disposal is inherent contempt. Following a citation for congressional contempt, Congress could dispatch the Sergeant-at-Arms to detain Ms. Miers and Mr. Bolten in preparation for a trial before Congress.
See
Morton Rosenberg,
Cong. Research Serv., Congress’s Contempt Power: Law, History, Practice, and Procedure,
No. 34-097, at 15 (2008),
available at
http://www.au.af.mil/au/awv/awcgate/crs/rl 34097.pdf. In response to such action, both sides here appear to agree
(see
Tr. at 85) that Ms. Miers and Mr. Bolten would likely file a writ of habeas corpus with this Court to challenge the legality of their detention, raising the central issue of the scope and nature of Congress’s subpoena power — precisely the issue presented by the instant action.
20
By invoking the DJA to gain anticipatory review of that same question, the Committee can obtain judicial resolution regarding its subpoena power without the unseemly scenario of the arrest and detention of high-ranking executive branch officials, which would carry the possibility of precipitating a serious constitutional crisis. That would seem to be just the sort of process sanctioned by the DJA.
21
Although the Court concludes that the Committee need not identify a cause of
*84
action apart from the DJA, that does not end the matter. The Committee must still identify a judicially remediable right that may be enforced through the DJA. Fortunately, the Supreme Court has already spoken to whether Article I provides Congress with an implied right to issue subpoenas and enforce them judicially. To be sure, “there is no [constitutional] provision expressly investing either house with power to make investigations and exact testimony, to the end that it may exercise its legislative function advisedly and effectively.”
McGrain,
273 U.S. at 161 , 47 S.Ct. 319 . The question, then, is “whether this power is so far incidental to the legislative function as to be implied.”
Id.
In
McGrain ,
the Supreme Court answered that question in the affirmative, noting that the power of inquiry was well-established at the time of the founding:
We are of the opinion that the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American Legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history.
Id.
at 174 , 47 S.Ct. 319 . Indeed, the Necessary and Proper Clause gives rise to Congress’s implied right to issue and enforce subpoenas found in Article I: Congress must have “auxiliary powers as are necessary and appropriate to [the legislative] end.”
Id.
at 175 , 47 S.Ct. 319 . “A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information ... recourse must be had to others who do possess it.”
Id.
Moreover, when “mere requests for such information ... are unavailing ... some means of compulsion are essential to obtain what is needed.”
Id.
In short, there can be no question that Congress has a right — derived from its Article I legislative function — to issue and enforce subpoenas, and a corresponding right to the information that is the subject of such subpoenas.
22
Several Supreme Court decisions have confirmed that fact.
See, e.g., Eastland,
421 U.S. at 504-05 , 95 S.Ct. 1813 (“The power to investigate and to do so through compulsory process plainly falls within [the] definition [of Congress’s legislative function].”);
Barenblatt,
360 U.S. at 111 , 79 S.Ct. 1081 (“The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”);
Watkins v. United States,
354 U.S. 178, 187-88 , 77 S.Ct. 1173 , 1 L.Ed.2d 1273 (1957) (“It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees, and to testify fully with respect to matters within the province of proper investigations.”);
McGrain,
273 U.S. at 175 , 47 S.Ct. 319 (“[T]he constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.”).
The Court can identify no reason why that right cannot be vindicated by recourse to the federal courts through the DJA. After all, courts routinely enforce subpoe
*85
nas in favor of parties with rights to information. The mere fact that this case involves a dispute between the political branches — or that such disputes are normally settled through negotiation and accommodation — is not sufficient to render the Committee’s right non-judicially remedial. That argument is foreclosed by precedent dating back to
United States v. Nixon
including case law involving subpoena disputes between the two political branches.
For example,
United States v. House of Representatives
stands for the proposition that the DJA provides a ground for the Committee’s requested relief before this Court. There, the Administrator of the EPA brought a civil action pursuant to the DJA seeking a declaration that she lawfully refused to comply with a subpoena issued by a House subcommittee on the ground of executive privilege.
See
556 F.Supp. at 151. There is no additional cause of action mentioned in the opinion, and the court plainly contemplated that the DJA
could
supply the basis for hearing the claim notwithstanding the absence of an independent cause of action and the fact that the dispute concerned “the scope of the congressional investigatory power.”
Id.
at 152. Nevertheless, because the court concluded that the parties had not yet exhausted all “possibilities for settlement,”
id.,
it determined that “enter-tainfing] this declaratory judgment action would be an improper exercise of the discretion granted by the Declaratory Judgment Act,”
id.
at 153. The difference between that case and this one is that the parties are reversed; here, the House stands in the position of the plaintiff and the Executive is the defendant. This Court fails to see why that fact should alter the DJA analysis in any material respect.
23
The Executive presents a litany of contrary arguments, all of which are unavailing. Some relate to the scope and nature of any rights emanating from Article I, which are addressed in the implied cause of action section below. For present purposes, the Court will focus on two arguments raised specifically against the application of the DJA.
The Executive has asserted that the Committee’s interpretation of the DJA would circumvent the Supreme Court’s implied cause of action doctrine represented by cases such as
Alexander v. Sandoval,
532 U.S. 275 , 121 S.Ct. 1511 , 149 L.Ed.2d 517 (2001). The Court does not agree.
Sandoval
involved implying a cause of action from a statute rather than directly from the Constitution. There are important differences between those two contexts, most notably the fact that the former inquiry turns primarily on congressional intent whereas the latter does not. Furthermore, in
Sandoval
the Supreme Court held that the pertinent portion of Title VI relied upon by the plaintiffs did not contain any “rights-ereating” language and thus did not “ ‘confer rights on a particular class of persons.’ ”
Id.
at 288-89 , 121 S.Ct. 1511 (quoting
California v. Sierra Club,
451 U.S. 287, 294 , 101 S.Ct. 1775 , 68 L.Ed.2d 101 (1981)). Thus, even if the
Sandoval
plaintiffs had attempted to invoke the DJA — which they did not — their effort would have failed due to the lack of an underlying substantive right accruing to them. In this case, by contrast, the Committee has identified a substantive
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right that it has and that has been previously recognized by the Supreme Court. And at a higher level of generality, concluding that Congress may utilize the DJA to test the validity of its subpoena power suggests nothing whatsoever about whether private plaintiffs may imply a federal cause of action for damages or injunctive relief from various federal statutes.
The Executive also contends that 2 U.S.C. § 288d negates the notion that the DJA is a sufficient cause of action. That provision states that the Senate Counsel
[w]hen directed to do so ... shall bring a civil action under any statute conferring jurisdiction on any court of the United States ... to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened failure or refusal to comply with, any subpena or order issued by the Senate or a committee or a subcommittee of the Senate authorized to issue a subpena or order.
2 U.S.C. § 288d(a). The relevant committee must issue a report concerning “the comparative effectiveness of bringing a civil action under this section, certification of a criminal action for contempt of Congress, and initiating a contempt proceeding before the Senate.”
Id.
§ 288d(c)(2)(D). Those passages, according to the Executive, create a civil action by which the Senate may enforce or confirm the validity of issued subpoenas. Because the Senate saw fit to pass this statute to enable that civil action, the Executive argues, it must be the case that the DJA did not already provide an avenue to pursue a civil action on the basis of some other cause of action. Significantly, the House has no analog to § 288d.
For its part, the Committee contends that § 288d was passed specifically to respond to the district court’s decision in
Senate Select Comm. I,
which found that the Select Committee’s suit failed for lack of subject matter jurisdiction because it did not satisfy the then-existing amount in controversy requirement.
24
Thus, § 288d was enacted to confer such jurisdiction on the federal courts. Moreover, the Committee maintains, before § 288d became law, the Senate (unlike the House) did not have an Office of Legal Counsel. Consequently, the Committee urges the Court to read this provision as part of a larger statutory scheme that established the Office of Senate Legal Counsel and then merely specified when the Senate Counsel could bring suit.
The Court is not persuaded that § 288d suggests that the DJA is not a sufficient cause of action in this case. The Committee is correct that § 288d is one component of a larger statutory structure that establishes and outlines the responsibilities of the Office of Senate Legal Counsel.
See
2 U.S.C. § 288a-n. Although § 288d appears to create a cause of action to proceed in federal court, it does so in the context of instructing the Senate Counsel on the necessary conditions that must be satisfied prior to bringing suit.
See
2 U.S.C. § 288d(a). In any event, the fact that § 288d may create an independent cause of action for the Senate does not establish that the Senate (or the House) could not proceed under the DJA. Section 288d can simply be viewed as a more specific application of the general relief made available by the DJA. Moreover, the use of the term “enforce” suggests that § 288d(a) may authorize coercive relief beyond the declaratory measures provided by the DJA. Additionally, 28 U.S.C. § 1365 provides jurisdiction for actions that also
*87
likely fall within the scope of 28 U.S.C. § 1331 — hence, the Senate can likely proceed on either basis where appropriate. Thus, to the extent that they overlap, the possible presence of redundancy between § 288d and the DJA does not imply that the latter cannot be used by the Committee here. That conclusion is consistent with statements found in a contemporaneous Senate Report indicating that “the statute is not intended to be a congressional finding that the federal courts do not now have the authority to hear a civil action to enforce a subpena against an officer or employee of the federal government.”
See
S.Rep. No. 95-170, at 91-92
reprinted in
1978 U.S.C.C.A.N. 4216, 4307-08.
25
That brings us to the interesting matter of the Senate Select Committee disputes. After the district court dismissed the Senate’s claim in
Senate Select Comm. I
for lack of subject matter jurisdiction, Congress enacted Pub.L. No. 93-190. That provision conferred subject matter jurisdiction in this district court over “any civil action heretofore or hereafter brought by the Senate Select Committee on Presidential Campaign Activities ... to enforce or secure a declaration concerning the validity of any subpoena ... issued by said Committee to the President or the Vice President or any other officer of the United States.” Pub.L. No. 93-190. The phrasing of the statute is admittedly somewhat vague, but it is apparent that the Senate’s main concern was addressing a lack of jurisdiction rather than any cause of action defect. It is not clear, then, that the provision was meant to create an independent cause of action along with the special jurisdictional designation. Indeed, the fact that Pub.L. No. 93-190 applied to “any civil action
heretofore
or hereafter brought by the Senate Select Committee” suggests that Congress believed that the Select Committee had already utilized an appropriate cause of action.
In
Senate Select Comm. I,
the cause of action identified by the court was the DJA.
See
366 F.Supp. at 54-55 (“The case presents a battery of issues including ... invocation of the declaratory judgment statute.”). The court did not address the application of the DJA due to its jurisdictional holding. And in
Senate Select Comm. II,
the court noted that the jurisdictional defect had been cured by the “statute placing special jurisdiction in this Court,” and stated that the Committee “seeks a declaratory judgment clarifying its rights and an affirmative injunction directing compliance with the subpoena.” 370 F.Supp. at 522 . There is no further cause of action discussion in
Senate Select Comm. II.
However, the court ultimately exercised its equitable discretion to decline to hear the case, which is consistent with application of the DJA.
Id.
at 524 (“[Wjhen its equitable jurisdiction is invoked, [the Court] can and should exercise its discretion not to enforce a subpoena
*88
which would exacerbate the pretrial publicity in areas that are specifically identified with pending criminal charges”). That fact, coupled with the court’s explicit reference to the DJA in
Senate Select Comm. I,
supports the conclusion that the cause of action was the DJA. It is worth noting, then, that neither the district court nor the D.C. Circuit took issue with the sufficiency of that cause of action.
In any event, this Court concludes that the Committee may invoke the DJA because it has identified a sufficient right that is judicially remediable through the DJA. It is the Constitution, and not any independent cause of action, that supplies the basis for Congress’s right to invoke the DJA here. The Court therefore rejects the Executive’s argument that the DJA does not permit the Committee to have its day in court.
(2) Implied Cause of Action
In the alternative, the Committee also contends that it has an implied cause of action derived from Article I to seek a judicial declaration concerning the validity of its subpoena power. The Executive objects to that proposition on several grounds. To begin with, the Executive argues, Article I does not contain the sort of explicit “rights creating” language required to imply a cause of action from the Constitution. Instead, Article I deals primarily with “powers” of Congress rather than “rights” enforceable by the judiciary. Moreover, even assuming that Article I confers upon Congress a sufficient right, the Executive urges that special factors concerning the separation of powers counsel against fashioning a judicial remedy. As explained below, the Court is not persuaded by the Executive’s assertions.
A few preliminary points are in order before addressing the Executive’s contentions. Numerous Supreme Court decisions, such as
Alexander v. Sandoval,
establish that plaintiffs seeking to imply a cause of action from a federal statute bear the heavy burden of proving that Congress clearly meant for the statute to provide a private
right
to a class of individuals and that Congress also intended the statute to create a private federal
remedy. See
532 U.S. at 288-90 , 121 S.Ct. 1511 . The inquiry involved in implying a cause of action from the Constitution itself, however, is much different. In
Davis v. Passman,
442 U.S. 228 , 99 S.Ct. 2264 , 60 L.Ed.2d 846 (1979), the Supreme Court noted that “the question of who may enforce a
statutory
right is fundamentally different from the question of who may enforce a right that is protected by the Constitution.”
Id.
at 241 , 99 S.Ct. 2264 (emphasis in original). Whereas the question in the statutory arena revolves around determining Congress’s intent with respect to a specific legislative act, the Constitution “speaks ... in great outlines ... with majestic simplicity.”
Id.
(quotations omitted). It is the judiciary, rather than Congress, that is traditionally regarded as the arbiter of constitutional rights and it is self-evident why courts do not look to congressional intent when construing the Constitution. Thus, “the judiciary is clearly discernible as the primary means through which [constitutional] rights may be enforced,” and consequently “[a]t least in the absence of a ‘textually demonstrable constitutional commitment of [an] issue to a coordinate political department,’ ... we presume that justiciable constitutional rights are to be enforced through the courts.”
26
Id.
at 242 , 99 S.Ct. 2264 (citing
*89
Baker v. Carr,
369 U.S. at 217 , 82 S.Ct. 691 ). The Court went on to indicate that:
Traditionally, therefore, “it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do.” ... Indeed, this Court has already settled that a
came of action may be implied
directly under the equal protection component of the Due Process Clause of the Fifth Amendment in favor of those who seek to enforce this constitutional right.
Id.
at 242 , 99 S.Ct. 2264 (emphasis added) (quoting
Bell v. Hood,
327 U.S. 678, 684 , 66 S.Ct. 773 , 90 L.Ed. 939 (1946)).
In the context of implying a private cause of action for
damages
from the Constitution,
Bivens v. Six Unkoim Fed. Narcotics Agents,
403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), provides the starting point. As in the statutory context, a plaintiff must first identify a protected right that is violated by the defendant’s conduct. Once that is established, the Supreme Court has clarified that “on the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees, the decision whether to recognize a
Bivens
remedy may require two steps,”
Wilkie v. Robbins,
— U.S. ---, 127 S.Ct. 2588, 2598 , 168 L.Ed.2d 389 (2007):
In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages .... But even in the absence of an alternative, a
Bivens
remedy is a subject of judgment: the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.
Id.
(internal citations and quotations omitted).
This is not a damages action. Thus,
Bivens
and its progeny are not strictly on point. There is some direction to be gleaned from those cases, but they are not a close fit for the current controversy. The parties have not directed the Court to any significant case law pertaining to implied constitutional causes of action for injunctive or declaratory relief against federal officials, and the Court has not identified much authority on that subject.
Against that backdrop, the Committee’s argument is straightforward. Article I, the Committee asserts, provides Congress with an implied right to investigate in furtherance of its legislative function. That right has been recognized by the Supreme Court, which has also held that it carries with it a necessary corollary that Congress may rely upon compulsory process to enforce its investigative authority. Indeed, according to the Committee the Supreme Court has already “establishe[d] a framework for implying remedies pursuant to Congress’s powers under Article I.”
See
Pl.’s Opp’n
&
Reply at 39. In
Marshall v. Gordon,
243 U.S. 521 , 37 S.Ct. 448 , 61 L.Ed. 881 (1917), the Court explained that Congress’s implied inherent contempt au
*90
thority “rests solely upon the right of self-preservation to enable the public powers given to be exerted.”
Id.
at 541 , 37 S.Ct. 448 . This implied power derives “from the right to prevent acts which, in and of themselves, inherently obstruct or prevent the discharge of legislative duty.”
Id.
at 542 , 37 S.Ct. 448 . For the same reasons that the Supreme Court implied a power of inherent contempt in
Marshall ,
the Committee argues, this Court should imply a cause of action to vindicate the right of Congress to carry out its legislative duty.
27
In response, the Executive insists that the Supreme Court “has made clear that implied causes of action under the Constitution arise only where there is a constitutionally-explieit
right
to be vindicated.”
See
Defs.’ Reply at 26 (emphasis in original). Article I, the Executive says, creates no such explicit right. True enough, but the Executive overlooks the fact that the Supreme Court has already construed Article I in
McGrain, Eastland,
and other cases to find an implied right of investigation, and indeed an implied right to compel compliance with that investigative power, accruing to Congress.
See, e.g., Eastland,
421 U.S. at 504-05 , 95 S.Ct. 1813 (“The power to investigate and to do so through compulsory process plainly falls within [the] definition [of Congress’s legislative function].”). This Court is equally bound by constitutional constructions issued by the Supreme Court as it is by the text of Article I itself.
That Congress’s right may be implied rather than explicit under the Constitution does not defeat the Committee’s action. With respect to 42 U.S.C. § 1983 , the Supreme Court has observed that the fact “[t]hat the right at issue ... is an implied right under the Commerce Clause does not diminish its status as a ‘right, privilege, or immunity under § 1983.”
Dennis v. Higgins,
498 U.S. 439 , 448 n. 7, 111 S.Ct. 865 , 112 L.Ed.2d 969 (1991) (“Indeed, we have already rejected a distinction between express and implied rights under § 1983 in the statutory context.”). And the Court has also indicated that “[a] court’s role in discerning whether personal rights exist in the § 1983 context should ... not differ from its role in discerning whether personal rights exist in the implied right of action context.”
Gonzaga Univ. v. Doe,
536 U.S. 273, 284 , 122 S.Ct. 2268 , 153 L.Ed.2d 309 (2002). If an implied constitutional right suffices for purposes of § 1983, there is no reason it should not suffice here.
After undertaking an analogous examination of Article I, the Supreme Court has held that there is a judicially enforceable right implied in the Commerce Clause notwithstanding that there is no explicit textual basis for that right. In
Dennis ,
the Court rejected the argument that “the Commerce Clause merely allocates power between the Federal and State Governments and does not confer ‘rights.’ ” 498 U.S. at 447 , 111 S.Ct. 865 . Indeed, “[t]he Court has often described the Commerce Clause as conferring a ‘right’ to engage in interstate trade free from restrictive state regulation.”
Id.
at 448 , 111 S.Ct. 865 . No less is true of Congress’s right and power to investigate as part of its legislative function; indeed, in
Marshall
the Supreme Court pointed to Congress’s
“right
to ... discharge [its] legislative duty” as the source of its inherent contempt authority. 243 U.S. at 542 , 37 S.Ct. 448 . The existence of a judicially remediable right derived from the Commerce Clause, then,
*91
provides strong support for a similarly cognizable investigation right in Congress. Moreover, the Court has also indicated that “individuals injured by state action that violates ... the Commerce Clause may sue and obtain injunctive and declaratory relief.”
Dennis,
498 U.S. at 447 , 111 S.Ct. 865 (citing
McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, Dep’t of Bus. Regulation of Florida,
496 U.S. 18, 31 , 110 S.Ct. 2238 , 110 L.Ed.2d 17 (1990)). So, too, can the Committee sue for declaratory relief concerning its right to issue and enforce subpoenas to obtain testimony and documents.
The Executive next makes the related argument that “Article I is fundamentally the stuff of government
structure,
not ‘rights.’ ”
See
Defs.’ Reply at 27. That, however, is exactly the argument rejected by the Supreme Court in
Dennis
and the Court finds that decision instructive here as well. Undeterred, the Executive notes that Article I itself refers to the “powers” of Congress rather than to the “rights” of Congress. And to the extent that the Supreme Court has made various statements concerning Congress’s investigatory role, it has indicated that there is a “congressional
power
of inquiry (which itself is not expressly identified in the Constitution, but must be

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1810993. Public record. Not legal advice.