[00:00:01] Speaker 00:
Case number 18-5305, Carolyn Maloney, Ed Hall, appellants, Bannett Demings, versus Emily W. Murphy, Administrator, General Services Administration.

[00:00:14] Speaker 00:
Mr. Vladeck, for the appellants, Mr. Mopan, for the appellee.

[00:00:25] Speaker 05:
Good morning, Your Honors, and may it please the Court.

[00:00:27] Speaker 05:
Good morning.

[00:00:28] Speaker 05:
Our principal submission in this case is that the plaintiffs here, each of whom is a member of Congress, each of whom is a member of the House Committee on Oversight and Government Reform, and each of whom signed the seven-member rule request at issue here, have standing in this case because the injury they have sustained is personal to them.

[00:00:51] Speaker 05:
Now, the district court's ruling

[00:00:53] Speaker 05:
as we see it, is a sharp departure from the ordinary rules of standing.

[00:01:00] Speaker 05:
This court, the Supreme Court, have consistently ruled that an individual who has a statutory right to information, who is deprived of that right,

[00:01:11] Speaker 05:
not only suffers concrete and particularized injury, but that injury is personal to the right hold.

[00:01:17] Speaker 05:
The government, well, I'm sorry, not government.

[00:01:21] Speaker 03:
The agency argues that personal means private and that this is private because this is not private because it runs with the job, runs with the seat in Congress.

[00:01:40] Speaker 03:
That's the argument.

[00:01:42] Speaker 05:
That is that argument, Your Honor, and that argument.

[00:01:46] Speaker 05:
What's the answer to that?

[00:01:49] Speaker 05:
Well, there's several answers to it, Your Honor.

[00:01:51] Speaker 05:
Let me start with the key case, Raines versus Byrd, which although it involves an intra-branch dispute, it has been used as the template for standing in cases like this.

[00:02:03] Speaker 05:
The key problem in Raines is that the court refers to the standing

[00:02:09] Speaker 05:
in Coleman versus Miller, as if the plaintiffs there suffered only institutional harm.

[00:02:16] Speaker 05:
That's the way the government reads Reigns.

[00:02:20] Speaker 05:
That's the way the district court reads Reigns.

[00:02:22] Speaker 05:
But that leaves out an important factor.

[00:02:25] Speaker 05:
If you look at the beginning of the court's discussion of standing in Reigns, the court makes it clear that a fundamental requirement of Article III is that the plaintiffs suffer a personal injury.

[00:02:37] Speaker 05:
And therefore, it is inconceivable that the plaintiffs in Rain, excuse me, the plaintiffs in Coleman's, not only suffered an institutional injury, but that injury was personal and distinct to them.

[00:02:51] Speaker 05:
And we know that for a couple of reasons.

[00:02:53] Speaker 05:
One, only the 20 members of the Kansas legislature, whose vote was nullified by the allegedly illegal action by the lieutenant governor,

[00:03:04] Speaker 05:
Only they had standing, even though there were more plaintiffs than that.

[00:03:09] Speaker 05:
And certainly, the members of the legislator who voted in favor of the resolution would not have had standing.

[00:03:18] Speaker 05:
So that right, the right not to have their vote nullified, is a right that is both personal to them, no one else could have asserted it, and is also an institutional right in the words of Rain.

[00:03:33] Speaker 05:
Now, there are other arguments that I think also demonstrate that the right here is personal.

[00:03:40] Speaker 05:
For example, let's just look at the indicia of a personal right.

[00:03:45] Speaker 01:
A personal right is- Before you do that, I'm sorry.

[00:03:47] Speaker 01:
Could you just define personal for me in this context?

[00:03:51] Speaker 01:
Is it private?

[00:03:53] Speaker 01:
Is it individualized?

[00:03:55] Speaker 01:
What does it mean?

[00:03:56] Speaker 05:
It's an individual right conferred by Congress on a identifiable, discrete class of people

[00:04:03] Speaker 05:
who have a right of access that no one else has.

[00:04:07] Speaker 05:
So that right belongs to them.

[00:04:09] Speaker 02:
That makes it specific.

[00:04:10] Speaker 02:
In particular, I don't see how it makes it personal.

[00:04:14] Speaker 02:
Because personal in the sense that it was in Reines or McCormick, or it was used in Reines, or in Powell versus McCormick, or any case in which there's a personal benefit to the plaintiff from getting the relief.

[00:04:28] Speaker 05:
Well, in this case, the only...

[00:04:30] Speaker 05:
Let me try to answer this in several ways.

[00:04:33] Speaker 05:
First, that's the same argument in Coleman.

[00:04:36] Speaker 05:
The argument in Coleman was that the illegal action by the lieutenant governor harmed the legislature, not necessarily personally the individual members who objected.

[00:04:52] Speaker 05:
So you have a case like Coleman in which the injury has to be personal in one sense,

[00:05:00] Speaker 05:
under Article III or else they can't get into court.

[00:05:04] Speaker 05:
So in response to your question, the right is a personal right that carries with their official status.

[00:05:12] Speaker 05:
The right here is conferred by Congress, not to the House, but either to the committee or a discrete group, at least seven members of the committee, who join together collectively to file a request.

[00:05:26] Speaker 05:
That right belongs to them, no one else.

[00:05:29] Speaker 05:
The district court says they possess that right.

[00:05:33] Speaker 03:
As the GSA points out, that right that belongs to them under 2954 ends the moment they leave Congress.

[00:05:45] Speaker 03:
That is correct.

[00:05:46] Speaker 03:
It's connected to not only their position in Congress, but to their position on the Oversight Committee.

[00:05:52] Speaker 03:
That is correct.

[00:05:53] Speaker 03:
So they say, how can it be

[00:05:57] Speaker 03:
Isn't it just like Reigns?

[00:05:59] Speaker 03:
That's their argument.

[00:06:00] Speaker 05:
Well, it's not just like Reigns because Reigns upholds legislator standing when they're serving both a person, when they can show both a personal right and in Reigns an institutional right.

[00:06:15] Speaker 05:
Here, Congress did not delegate this power to Congress or the House of Representatives.

[00:06:19] Speaker 05:
It delegated this power to a discreet,

[00:06:23] Speaker 05:
group of individuals who serve on a committee or the committee.

[00:06:27] Speaker 05:
So there's no question that the statute is a rights-creating statute.

[00:06:32] Speaker 05:
It uses all the indicia of rights creation.

[00:06:35] Speaker 05:
The word shall is there, and it describes who is entitled to exercise that right.

[00:06:43] Speaker 02:
The members have a lot of rights of the sort that you're describing, don't they?

[00:06:49] Speaker 02:
I don't believe that's the case, Your Honor.

[00:06:51] Speaker 02:
The right to use the House of General?

[00:06:54] Speaker 05:
I don't believe that's a statutory right, Your Honor.

[00:06:57] Speaker 02:
So you're saying it's because of the statutory foundation?

[00:07:00] Speaker 02:
Yes, sir.

[00:07:01] Speaker 02:
Okay.

[00:07:02] Speaker 02:
They have a right to a pension.

[00:07:05] Speaker 02:
But that is again a statutory right.

[00:07:08] Speaker 02:
I didn't expect that would be your answer.

[00:07:10] Speaker 02:
It seems to me that would be a personal matter.

[00:07:12] Speaker 02:
Because it doesn't depend when they leave Congress.

[00:07:15] Speaker 05:
But Your Honor, my point is,

[00:07:18] Speaker 03:
is that the fact that it could be- Well, excuse me, it can't be that a congressman doesn't have standing to challenge the revocation of his retirement rights, right?

[00:07:27] Speaker 03:
But that's correct.

[00:07:28] Speaker 03:
Of course.

[00:07:29] Speaker 05:
No, I'm arguing the members of Congress have standing.

[00:07:33] Speaker 05:
Yeah.

[00:07:34] Speaker 01:
Or what about salary?

[00:07:35] Speaker 01:
Because that does end when you leave Congress.

[00:07:37] Speaker 01:
But I had taken from Powell that salary, which is something that runs with the seat, is still a personal right.

[00:07:44] Speaker 05:
Well, here's the problem.

[00:07:45] Speaker 05:
I think Powell would say it was both a personal and a private right.

[00:07:50] Speaker 05:
Partly, the word personal is used in two different contexts in Reins, which causes the confusion.

[00:07:58] Speaker 05:
Personal is used at the beginning of the opinion to describe the impact on an individual who has a right, and that right is deprived.

[00:08:06] Speaker 05:
So those are the plaintiffs in Coleman.

[00:08:09] Speaker 05:
They all had a personal right, but they were also advocating an institutional interest.

[00:08:15] Speaker 05:
Reins uses that.

[00:08:17] Speaker 05:
Reins then says that they had no personal right.

[00:08:21] Speaker 05:
Their right was institutional.

[00:08:23] Speaker 05:
And that may be true as a descriptive matter.

[00:08:26] Speaker 05:
It is not true for Article III purposes.

[00:08:29] Speaker 05:
My point is that for Article III purposes, Congress can confer a right.

[00:08:34] Speaker 05:
It can confer a right on members of Congress to engage in oversight.

[00:08:40] Speaker 05:
The Necessary and Proper Clause plainly gives Congress the power to do that.

[00:08:46] Speaker 05:
And once these members of Congress have that right, then courts ought to enforce it.

[00:08:54] Speaker 05:
This court has always made clear that when Congress expects that when it assigns a mandatory duty to the executive branch, the executive branch will obey it, and the courts will be ready to provide a remedy if they don't.

[00:09:13] Speaker 05:
That is this case.

[00:09:15] Speaker 03:
What about the agency's argument that unlike Reims, there's no cause of action in this statute?

[00:09:23] Speaker 05:
Where does that play in?

[00:09:26] Speaker 05:
So in order to sue you, you need two things.

[00:09:28] Speaker 05:
You need an underlying right, and you need a right of action.

[00:09:32] Speaker 05:
Our principal submission, because this is where we lost the law, is that we have a right.

[00:09:37] Speaker 05:
We have a personal right to these

[00:09:40] Speaker 05:
In terms of the right of action, there's no question that the plaintiffs here would have a right, back in 1928, under mandamus or ultra various acts.

[00:09:51] Speaker 05:
The government cites Armstrong to say that you need to show that there's a right of action.

[00:09:58] Speaker 05:
Well Armstrong reaffirms McNulty.

[00:10:02] Speaker 05:
That line of cases has recognized non-statutory rights of action that still exist.

[00:10:10] Speaker 03:
Do you have to win on this point to have standing?

[00:10:14] Speaker 03:
Isn't this unrelated to standing?

[00:10:18] Speaker 05:
Yes, Your Honor, under the Steel Company.

[00:10:19] Speaker 03:
You don't need to convince us that you have a cause of action to have Article III standing, right?

[00:10:24] Speaker 03:
That is absolutely correct.

[00:10:26] Speaker 03:
That's the Steel Company, Your Honor.

[00:10:28] Speaker 03:
Because I just want to be sure I'm right about that.

[00:10:31] Speaker 03:
You're right that there's a motion to dismiss also pending, correct, that the district court hasn't gotten to that raises this question, correct?

[00:10:40] Speaker 03:
That is correct, Your Honor.

[00:10:41] Speaker 03:
Okay.

[00:10:41] Speaker 03:
So we don't have to decide that question.

[00:10:43] Speaker 03:
That is correct, Your Honor.

[00:10:45] Speaker 03:
Let me ask you another question about whether we have to decide something.

[00:10:49] Speaker 03:
The government talks a lot in its brief about separation of powers.

[00:10:53] Speaker 03:
Where do you think that fits in here?

[00:10:55] Speaker 05:
Well, again, this is using Reins, which is an intra-branch dispute, to argue that an intra-branch dispute is somehow non-justiciable.

[00:11:06] Speaker 05:
But this court routinely entertains cases where there are these kinds of disputes, and at times the Justice Department invites these kinds of disputes.

[00:11:17] Speaker 05:
The irony here is, you know, when the Justice Department sued to enjoin

[00:11:23] Speaker 05:
AT&T from giving the records over in AT&T versus the US Department of Justice, there's no statutory right of action.

[00:11:34] Speaker 05:
They originally filed under 1345 claiming they could represent the United States.

[00:11:38] Speaker 05:
The district court rejected that argument.

[00:11:41] Speaker 05:
So my own view is that, to respond to your question, the right of action issue just doesn't apply here.

[00:11:53] Speaker 03:
No, but what about separation of powers?

[00:11:56] Speaker 03:
Where does that fit in?

[00:11:58] Speaker 03:
Is that a merits question?

[00:12:00] Speaker 03:
The agency argues that this is a critical element of standing.

[00:12:07] Speaker 05:
It may be a prudential concern, but this court has repeatedly rejected the argument that Article III courts are not available to referee these kinds of disputes.

[00:12:18] Speaker 05:
On these types of disputes, you mean what?

[00:12:20] Speaker 05:
Access.

[00:12:21] Speaker 05:
I'm sorry, Your Honor.

[00:12:23] Speaker 05:
congressional access to executive branch information.

[00:12:27] Speaker 02:
This is not an action by the Congress or even by the House.

[00:12:31] Speaker 02:
That is correct.

[00:12:33] Speaker 02:
So what cases do you have where this sort of dispute, where it's not the House, but a member has been adjudicated?

[00:12:41] Speaker 05:
Well, Your Honor, in AT&T, Mr. Moss, Representative Moss, was allowed to intervene on his own behalf in the district court.

[00:12:49] Speaker 05:
This court did not

[00:12:50] Speaker 05:
ever challenge that.

[00:12:52] Speaker 05:
There's a citation pointing that out in the case.

[00:12:57] Speaker 05:
And the citation is CF to Kennedy versus Sampson.

[00:13:00] Speaker 05:
Now, Kennedy versus Sampson is that case.

[00:13:03] Speaker 05:
Whether it is still good along the circuit is an issue that I don't think we need to get to here.

[00:13:10] Speaker 05:
But Kennedy versus Sampson

[00:13:13] Speaker 05:
Senator Kennedy brought the case pro se.

[00:13:16] Speaker 05:
There was no authorization.

[00:13:17] Speaker 05:
And authorization here... There was a subpoena, though.

[00:13:20] Speaker 02:
I'm sorry, sir?

[00:13:23] Speaker 02:
Yes, a subpoena had been issued.

[00:13:24] Speaker 02:
A subpoena had been issued, yes.

[00:13:26] Speaker 02:
So the House was involved in the case.

[00:13:29] Speaker 02:
The House ratified... The court said that, as I recall here, that the House can designate a member to act on its behalf.

[00:13:38] Speaker 02:
That's not what's happened here.

[00:13:40] Speaker 05:
Well, Your Honor, I believe it is.

[00:13:41] Speaker 05:
Even by statute?

[00:13:43] Speaker 05:
By statute, Your Honor.

[00:13:46] Speaker 02:
So this is where the separation of powers argument seems to be to come in.

[00:13:51] Speaker 02:
If it's true that the court has entertained many a case, several cases anyway, in which the House has sought information via subpoena, approved by the House by resolution, they've designated somebody, the House itself or a member, to pursue the matter for enforcement.

[00:14:12] Speaker 02:
Here we have a statute saying so many seven members who will change over time,

[00:14:18] Speaker 02:
on any occasion demanding whatever it is they want to demand under 2954, can go and seek a judicial resolution.

[00:14:27] Speaker 02:
There is no precedent for that, not one.

[00:14:30] Speaker 05:
Well, apart perhaps from Kennedy versus Samson, and once again, the beginning of the AT&T case where the House had not authorized Mr. Moss to represent it until after the House had ruled and the case went up to the Court of Appeals.

[00:14:46] Speaker 05:
It certainly came to this court.

[00:14:48] Speaker 02:
That may be, but once in the Court of Appeals and the issue was finally noticed and standing was addressed, they had standing.

[00:14:56] Speaker 02:
Right, but, I'm sorry.

[00:15:01] Speaker 02:
By the same token, the statute by realize could authorize any single member to seek enforcement of a demand.

[00:15:08] Speaker 05:
Yes, though, I think that would be unwise, and I don't think Congress would pass that statute.

[00:15:12] Speaker 02:
There's no reason why it might not happen.

[00:15:13] Speaker 02:
And even sticking with the current seven,

[00:15:16] Speaker 02:
seven-person rule.

[00:15:19] Speaker 02:
There's really no limitation on the degree to which a small group of members can create a dispute, an inter-branch dispute, and force the courts to resolve it.

[00:15:32] Speaker 05:
Right, and that was Congress's decision, signed by the President.

[00:15:36] Speaker 02:
Under those circumstances, and reading Reins, I think, fairly,

[00:15:40] Speaker 02:
It cautions, as a matter of separation of powers, that person will be understood in a fairly narrow sense, at least one that, as Judge Millett referred to, runs with the seat.

[00:15:55] Speaker 05:
Well, in this case, I agree that the right... I see my time is up.

[00:15:59] Speaker 05:
No, go ahead.

[00:16:01] Speaker 05:
In this case, it is true that the right runs to the seat.

[00:16:06] Speaker 05:
That doesn't mean it can't be personal.

[00:16:08] Speaker 05:
just the way it couldn't have been personal for Senator Kennedy or for Mr. Moss.

[00:16:13] Speaker 05:
What distinguishes this case from the subpoena cases, and what's important here is Congress, in 1928, following the grain, which took three years for the Supreme Court to sort out the enforceability of a congressional subpoena, gave its oversight committees a different way to seek information

[00:16:37] Speaker 05:
just to the oversight committees to seek information from the executive branch.

[00:16:41] Speaker 05:
To seek it, not necessarily to be able to enforce it in court.

[00:16:45] Speaker 05:
It says they can demand the information of the executive.

[00:16:49] Speaker 05:
With all respect, Your Honor, that renders the statute a dead letter.

[00:16:52] Speaker 05:
If the statute's unenforceable,

[00:16:54] Speaker 02:
Which is the point.

[00:16:55] Speaker 02:
It's impossible if the House majority back the seven members.

[00:17:00] Speaker 02:
Otherwise, they can create, any seven members can create disputes constantly between the branches and implicate the courts.

[00:17:07] Speaker 02:
It's extremely, it would be extremely imprudent to read the statute that way.

[00:17:12] Speaker 05:
Well, Your Honor, I think the text of the statute bears that reading.

[00:17:15] Speaker 02:
I think the history.

[00:17:16] Speaker 02:
By the way, here, maybe this is a case in point.

[00:17:19] Speaker 02:
The plaintiffs are now members of the majority in the House.

[00:17:23] Speaker 02:
they have not been given a resolution to enforce this demand.

[00:17:28] Speaker 05:
They don't, I mean, because they don't believe that a statute that is designed in large measure... We don't know what they believe, and it may be that they just can't get one, or they calculate that they can't get one.

[00:17:40] Speaker 02:
That the leadership doesn't want to stir up a dispute over this.

[00:17:46] Speaker 03:
Wasn't one of the purposes of this statute to vest the minority with the right to obtain information?

[00:17:52] Speaker 05:
Yes, and that is the way.

[00:17:53] Speaker 03:
And wouldn't that be eviscerated if they had to seek?

[00:17:58] Speaker 05:
That's our bottom line point.

[00:17:59] Speaker 05:
The argument that has been made would render the statute of analogy.

[00:18:05] Speaker 02:
Go ahead.

[00:18:08] Speaker 02:
Henry IV, when Hank says, I can summon beasties from the deep, Glenn Dower says, aye, but will they come?

[00:18:17] Speaker 02:
That's where we are.

[00:18:18] Speaker 02:
You can make the demand.

[00:18:20] Speaker 02:
Unions make demands.

[00:18:21] Speaker 02:
Students make demands.

[00:18:22] Speaker 02:
Protesters make demands.

[00:18:25] Speaker 05:
But the insight of McGrain, Your Honor, is that requests for access by Congress to the executive branch without, quote, enforcing process.

[00:18:35] Speaker 05:
This is not Congress.

[00:18:37] Speaker 05:
It is Congress.

[00:18:38] Speaker 05:
Well, Congress is active.

[00:18:40] Speaker 05:
I mean, again, the framework here is the statute enacted by Congress.

[00:18:46] Speaker 05:
that delegates authority both to a committee and to individual members of Congress.

[00:18:52] Speaker 05:
This was a carefully calibrated delegation to avoid what I think your concern is sort of the rogue actor problem.

[00:19:01] Speaker 05:
The dispute in this case makes it clear that the injury here is distinct and palpable to the plaintiffs because they, unlike their committee members, wanted to conduct oversight

[00:19:14] Speaker 05:
over the implementation of the Trump lease.

[00:19:17] Speaker 05:
And you say that you raise the specter of abuse.

[00:19:23] Speaker 05:
Well, the GSA is the one that suggested that the plaintiffs in this case invoke the seven member rule.

[00:19:30] Speaker 05:
I mean, the irony here is if you go back and look at the correspondence, the seven member rule request was filed in response to a request by four

[00:19:40] Speaker 05:
ranking members of the committees.

[00:19:42] Speaker 02:
Was GSA acting before or after it got advice from OLC?

[00:19:46] Speaker 05:
This is prior to advice from OLC.

[00:19:48] Speaker 05:
Yes, Your Honor.

[00:19:51] Speaker 01:
I just wanted to ask, I'm rather confused about the role of separation of powers.

[00:19:58] Speaker 01:
Article 3 outstanding is a separation of powers, inquiry, a limitation on courts to the case of controversy requirement.

[00:20:07] Speaker 01:
But there should be two separation of powers arguments here.

[00:20:11] Speaker 01:
One is going through the elements of traditional standing.

[00:20:14] Speaker 01:
And the other one is this, as Judge Ginsburg was saying, the sort of Congress versus the executive branch.

[00:20:22] Speaker 01:
And what I'm trying to understand is when does the action of a subset of Congress, a group of members or one member,

[00:20:36] Speaker 01:
start triggering that second category of separation of powers concerns.

[00:20:42] Speaker 01:
I assume that every individual member of Congress, maybe I'm wrong, can file FOIA requests.

[00:20:49] Speaker 01:
That is correct.

[00:20:51] Speaker 01:
And come to courts to enforce that demand for information from the executive branch without anybody having separation of powers qualms.

[00:21:03] Speaker 01:
That is correct, yes.

[00:21:06] Speaker 01:
So how do we, is it because it's seven members on a committee that we have separation of powers concerns here that are trying to get backfilled into the standing inquiry?

[00:21:19] Speaker 01:
Or, but I think you would acknowledge, you know, that we get concerned about separation of powers.

[00:21:25] Speaker 01:
It doesn't have to be the whole Congress.

[00:21:26] Speaker 01:
You can have one House of Congress, the House or the Senate versus the executive branch, or certainly versus the President, and you're gonna have separation of powers issues.

[00:21:36] Speaker 01:
How do we look at something that depends on being a committee member?

[00:21:40] Speaker 01:
It's a right you have as a committee member.

[00:21:43] Speaker 01:
But it's not individual like FOIA.

[00:21:46] Speaker 01:
Seven of you get together.

[00:21:48] Speaker 01:
How do I know whether that triggers a separation of powers problem?

[00:21:53] Speaker 01:
It wouldn't happen if they did it individually in a FOIA.

[00:21:55] Speaker 05:
Let me make a couple of points.

[00:21:57] Speaker 05:
If you look at the exhibits we put in, historically there is no separation of powers fight here.

[00:22:04] Speaker 05:
in large measure because this statute does not reach the president or the executive office of the president.

[00:22:11] Speaker 05:
The statute only empowers requests to executive agencies.

[00:22:15] Speaker 05:
So there is none of the sort of fighting over the president's records, those kinds of cases.

[00:22:21] Speaker 05:
So in some sense, the risk of getting into a wrangle over executive privilege is much less in this case than it would be when a subpoena is issued.

[00:22:33] Speaker 05:
The second thing I would say is there's been a history of collaboration between the Congress and the executive branch in which these matters have been resolved.

[00:22:43] Speaker 05:
It is a rare case where what happened in this case, which is GSA was perfectly willing to send the plaintiffs the information until OLC told them not to.

[00:22:54] Speaker 05:
That's the finding of the Inspector General.

[00:22:56] Speaker 01:
So, you know.

[00:22:59] Speaker 05:
None of the records that we are seeking are different, except for a couple of legal opinions, are different from records we were provided prior to the OLC opinion.

[00:23:11] Speaker 05:
And none of them raise questions of separation of powers.

[00:23:15] Speaker 01:
When you talk about the history of working this out, you said Congress

[00:23:23] Speaker 01:
the executive branch, but under 2954, we totally hear from no cases.

[00:23:26] Speaker 05:
I meant the requesters, Your Honor.

[00:23:28] Speaker 01:
So is there something somewhere that tells us that there's a long pattern of, or we just assume it because we don't see the cases, or is there, I just don't know, is there some record keeping somewhere that says 2954, generally they've been worked out and they get the information, is there a tradition, or?

[00:23:46] Speaker 05:
There are a number of pieces of correspondence in the joint appendix which reflect that pattern.

[00:23:52] Speaker 02:
That's true even aside from 2954.

[00:23:54] Speaker 02:
I'm sorry, sir?

[00:23:56] Speaker 02:
That's true aside from 2954.

[00:23:57] Speaker 02:
Yes.

[00:23:58] Speaker 02:
Committees routinely make requests.

[00:24:00] Speaker 02:
Sometimes they resist it.

[00:24:01] Speaker 02:
Sometimes they resist it only for a while.

[00:24:03] Speaker 02:
And then usually they work it out.

[00:24:05] Speaker 05:
Right.

[00:24:05] Speaker 05:
But that's why Congress passed 2954, because they wanted a statutory right that they could enforce.

[00:24:13] Speaker 05:
Not simply that repeated the opportunity any member of House has to just simply ask an agency for a record.

[00:24:22] Speaker 05:
They wanted to formalize this right.

[00:24:24] Speaker 05:
This comes in the wake of McGrane, where it took years to enforce a congressional subpoena.

[00:24:30] Speaker 05:
The Supreme Court, I think, took three years to decide McGrane.

[00:24:34] Speaker 05:
This was an alternative.

[00:24:36] Speaker 05:
It was an alternative for the committee, and it was a safeguard.

[00:24:39] Speaker 05:
The verdict shows it was an alternative to getting routine reports.

[00:24:42] Speaker 05:
Well, Your Honor, I think that is correct.

[00:24:46] Speaker 05:
But it was broad dissatisfaction with the reporting requirements.

[00:24:52] Speaker 05:
And the legends of history makes it clear that a request and response was a better way for both sides, better for the committee and better for the executive.

[00:25:04] Speaker 02:
Right, because it was specific and they didn't just have a deluge of reports coming in that nobody wanted.

[00:25:09] Speaker 02:
Exactly, Your Honor.

[00:25:10] Speaker 02:
But that works.

[00:25:11] Speaker 02:
That accomplished its purpose.

[00:25:13] Speaker 02:
There's no bearing on whether it can be enforced by these seven members.

[00:25:18] Speaker 05:
With all respect, Your Honor.

[00:25:20] Speaker 05:
I think it has enormous bearing because if the government, if the executive branch is allowed to say, we're simply not going to honor any seven member rule requests, the statute is largely dormant.

[00:25:33] Speaker 05:
If there are no further questions.

[00:25:34] Speaker 05:
Thank you.

[00:25:36] Speaker 05:
Thank you.

[00:25:45] Speaker 06:
May it please the court.

[00:25:47] Speaker 06:
This inter-branch dispute does not present a proper case for controversy under Article III, because members of Congress lack standing to seek judicial enforcement of their demands for information from the executive branch.

[00:25:59] Speaker 01:
Is it inter-branch any time an individual member, just one member of Congress asks for information?

[00:26:05] Speaker 01:
I'm really curious about this question.

[00:26:07] Speaker 06:
It's a great question, Your Honor, and I think the critical point is what capacity they're asking for the information.

[00:26:12] Speaker 01:
So one individual member files a FOIA request to take

[00:26:16] Speaker 01:
to deal with a constituent need, or because they want information as part of their committee work, and so because that capacity is tied to their legislative role.

[00:26:26] Speaker 06:
No, because critically, we're not disputing that.

[00:26:29] Speaker 06:
The plaintiffs can invoke FOIA.

[00:26:31] Speaker 06:
No, but I'm asking why that doesn't... Because FOIA is a right that vests on private parties wholly apart from whether they hold public office.

[00:26:38] Speaker 01:
How does that affect the member of Congress's Article III standing, whether the statute applies

[00:26:44] Speaker 01:
to other people as well.

[00:26:46] Speaker 01:
You just said it depends on the capacity in which they're asking.

[00:26:49] Speaker 06:
Because what Raines tells us is you have to figure out whether this is a personal, private injury or an institutional injury.

[00:26:55] Speaker 06:
When you invoke FOIA, even if you're a member of Congress, the fact that you're a member of Congress is completely irrelevant.

[00:27:01] Speaker 06:
You just happen to be a member of Congress that's invoking a right to information that Congress has provided to the public at large.

[00:27:07] Speaker 06:
The reason they're not invoking FOIA is because the statute they're invoking is a statute that only applies to members of Congress, gives members of Congress rights that members of the public do not have.

[00:27:18] Speaker 06:
2954, for example, doesn't have the exemptions for, among other things, privileged information.

[00:27:24] Speaker 06:
And they are asking for that information, not in their public.

[00:27:27] Speaker 01:
There will be a different issue whether

[00:27:30] Speaker 01:
that could get information, or they're trying to get information that implicates it.

[00:27:33] Speaker 01:
I think what I'm trying to make sure I understand, it's not that they don't have an informational injury, it's the nature of the statutory informational injury that's conferred.

[00:27:45] Speaker 06:
That you say that.

[00:27:47] Speaker 06:
If I could make the point most crisply, for a private party, FOIA gives them a right in their personal capacity to use the information however they wish.

[00:27:56] Speaker 06:
This statute does not confer that sort of right on Congressmen.

[00:27:59] Speaker 06:
It confers a right on Congressmen to request information for a legislative function, to engage in oversight.

[00:28:06] Speaker 06:
And we know this from just looking at their own complaint.

[00:28:09] Speaker 06:
If you look at their complaint and look at the allegations of injury.

[00:28:11] Speaker 01:
Well, I'd rather think about the statute a little bit.

[00:28:13] Speaker 01:
So if you had your Congress passed FOIA, and then it had another section of FOIA that said, for members of Congress, you get super FOIA, and that is

[00:28:27] Speaker 01:
You don't have to pay fees.

[00:28:29] Speaker 01:
You get faster action.

[00:28:30] Speaker 01:
Every member, individual member of Congress, faster action on these.

[00:28:34] Speaker 01:
You know, you have a tighter timeline.

[00:28:36] Speaker 01:
And it narrowed down the withholding privileges to things that would have constitutional implications but got rid of everything else.

[00:28:45] Speaker 01:
Would that be, would they be able to have an Article III injury there?

[00:28:50] Speaker 06:
So certainly I don't dispute that, the procedural part of what you said, that if, for example, out of respect for federal officers, Congress decided to say, look, you have the same private rights everyone else does, but you go to the front of the queue, their injury is still an injury in their private capacity.

[00:29:06] Speaker 06:
Their right to the information is the right that all other members of the public have.

[00:29:11] Speaker 01:
No, no, no.

[00:29:14] Speaker 01:
They have a greater right to information because you don't get as many withholdings as you would.

[00:29:19] Speaker 06:
And so on that aspect, that's why I said the procedural part of it, it's fine.

[00:29:23] Speaker 06:
The substantive part of what you said, I think that is important and the reason it's important

[00:29:28] Speaker 06:
is because at that point, the point of that statute, you can call it FOIA or you can label it however you want, but that statute is not conferring rights on congressmen in their private capacity.

[00:29:40] Speaker 06:
This is enabling federal legislative oversight.

[00:29:43] Speaker 06:
We know this because

[00:29:46] Speaker 06:
In the Supreme Court cases in like McGrain and this court's decision in Mazers, we know that Congress does not have the right to seek information for its own sake.

[00:29:56] Speaker 06:
It can only seek information necessary and proper to its legislative functions.

[00:30:01] Speaker 06:
Indeed, in Watkins, the Supreme Court squarely held that a- No, we're not talking about Congress acting here.

[00:30:07] Speaker 01:
It's- It's all the worst if it's an individual Congress.

[00:30:09] Speaker 01:
Do you have a statutory conferral?

[00:30:10] Speaker 01:
No, there's, put aside the group of seven thing here.

[00:30:13] Speaker 01:
Do you have a statutory conferral of an informational

[00:30:16] Speaker 01:
Right, I guess I'm having trouble, I mean I hear what you're saying about finding they can have better procedures, but I'm having trouble understanding how as a matter of the Article III elements, it doesn't, it's no longer a personal, as that term is used in Article III standing cases, not personal versus

[00:30:36] Speaker 06:
Right, so in Reins, the focus was on is it in their private capacity.

[00:30:42] Speaker 06:
He admitted both in his brief and his argument today that the relevant section of Reins that talks about whether this was personal or institutional repeatedly uses personal and private interchangeably.

[00:30:52] Speaker 01:
The distinction was between in Powell... It has to do with Powell because, look, getting your salary as a member of Congress, that's...

[00:30:59] Speaker 01:
an institutional paycheck for an institutional job that runs with the seat and ends when you leave the seat, and it's so that you can perform the job that your constituents sent you to Congress to perform.

[00:31:09] Speaker 06:
That's not true, Your Honor.

[00:31:10] Speaker 06:
You would have the right to your back pay even if your term ran out.

[00:31:13] Speaker 03:
And they were also seeking a declaratory judgment.

[00:31:16] Speaker 06:
Right, but they were seeking declaratory judgment because they had been deprived of their salary and their job.

[00:31:23] Speaker 03:
But that runs with the seat, just like Reign.

[00:31:26] Speaker 03:
They don't have that right, but for having been elected to Congress.

[00:31:29] Speaker 06:
No, Your Honor, just like if any private person is deprived of the job that they are legally entitled to, that is a personal injury.

[00:31:36] Speaker 01:
But any private person that's denied information that they're statutorily entitled to from the executive branch also has a personal injury.

[00:31:42] Speaker 06:
Again, but this is not a right to information in their personal capacities.

[00:31:46] Speaker 06:
Again, if I could just make one point on this.

[00:31:51] Speaker 06:
In the Watkins, the Supreme Court said that an investigation for personal aggrandizement of congressmen would be

[00:31:58] Speaker 06:
On your view, all of the Supreme Court's cases that say that subpoenas have to be for a legitimate legislative purpose are all irrelevant.

[00:32:07] Speaker 03:
Because all Congress has to do is pass a statute.

[00:32:10] Speaker 03:
You need to read the statute here.

[00:32:11] Speaker 03:
Take a look at the statute.

[00:32:13] Speaker 03:
It says, the statute says that they can only seek information related to the jurisdiction of the oversight committee.

[00:32:21] Speaker 03:
That's what the statute's for.

[00:32:23] Speaker 03:
Right.

[00:32:24] Speaker 03:
A legitimate legislative function.

[00:32:25] Speaker 03:
They can't use this power to ask GSA to get them information about a person who has nothing to do with anything that's within the jurisdiction of the oversight committee.

[00:32:36] Speaker 06:
There is a jurisdictional element, you're right.

[00:32:38] Speaker 03:
Well, isn't that a complete response?

[00:32:41] Speaker 06:
No, because if they're not exercising their oversight.

[00:32:45] Speaker 03:
Let's say, for example- Excuse me, Congress has authorized them to exercise their oversight

[00:32:51] Speaker 03:
responsibility in this way.

[00:32:53] Speaker 06:
No, but it has to be, let me put it this way, under the statute it has to be within the jurisdiction of the committee.

[00:33:01] Speaker 06:
Topics can be within the jurisdiction of the committee, even if the person who's requesting the information is not asking for it for that reason.

[00:33:09] Speaker 06:
Under the statute, if they just said, I want to know this information just to embarrass the head of the GSA, it would be covered by the text of the statute.

[00:33:17] Speaker 06:
But it would be totally unconstitutional under cases like Watkins.

[00:33:20] Speaker 01:
Unless they ask for it under FOIA.

[00:33:22] Speaker 06:
If they ask for it under FOIA, that's because any private party could ask for that information.

[00:33:27] Speaker 01:
They're doing it to pursue their legislative function.

[00:33:30] Speaker 06:
Your subjective motive for why you're asking for the information is utterly irrelevant under FOIA.

[00:33:34] Speaker 06:
It is constitutionally significant for a legislator.

[00:33:38] Speaker 06:
We know under all of the Supreme Court's cases that deal with congressmen asking for information, whether it's individual congressmen or the committee or the congress as a whole.

[00:33:48] Speaker 01:
Congress, individual congressmen asking for information from the Supreme Court?

[00:33:52] Speaker 06:
Sorry, not from the Supreme Court.

[00:33:54] Speaker 06:
But the point is, it'd be very strange if Congress came to ask for something in a subpoena.

[00:34:00] Speaker 06:
It would be unconstitutional.

[00:34:02] Speaker 06:
But if they just passed a statute putting the contents of that subpoena into a statute, all of a sudden it's a perfectly fine exercise.

[00:34:07] Speaker 01:
No, they might have standing, but the statute would be unconstitutional.

[00:34:10] Speaker 01:
I mean, there's a separate question whether a particular request in a particular case is seeking something that there's just

[00:34:17] Speaker 01:
distinct separation of powers barrier to receiving.

[00:34:20] Speaker 01:
That just strikes me as a totally different issue.

[00:34:21] Speaker 06:
Well, here's why it's not, Your Honor.

[00:34:23] Speaker 06:
I don't think you should read this statute in a way that would render it unconstitutional.

[00:34:29] Speaker 06:
And they can't have a private right to information.

[00:34:32] Speaker 03:
Let me give you, for example.

[00:34:34] Speaker 03:
Let me just, before we go into another, I just want to focus on this.

[00:34:37] Speaker 03:
It seems to me the argument you're making now about an individual member of the Oversight Committee using this power to embarrass the head of TSA or something, the statute says it has to relate to any matter within the jurisdiction of the committee.

[00:34:59] Speaker 03:
So obviously, if the agency doesn't turn over the information and the congressman desues,

[00:35:07] Speaker 03:
One of the answers that the agency may well argue is this isn't related to a legitimate legislative activity.

[00:35:14] Speaker 03:
It's personal.

[00:35:15] Speaker 03:
That's a merits question.

[00:35:17] Speaker 03:
Here we're talking about standing.

[00:35:20] Speaker 03:
That is whether the member of Congress can exercise the right that 2954 gives him or her to seek the information.

[00:35:28] Speaker 03:
Whether that information is covered by the statute is a merits question.

[00:35:32] Speaker 03:
Just like whether it's privileged is a merits question.

[00:35:34] Speaker 03:
Isn't that right?

[00:35:35] Speaker 06:
Yes, I totally agree with that.

[00:35:36] Speaker 03:
But the reason that you have to have... So everything you're saying about everything you've been arguing for the past five minutes in response to Judge Millett's questions don't relate to standing.

[00:35:48] Speaker 06:
I don't think that's right, Your Honor.

[00:35:50] Speaker 06:
The question you have to ask yourself is, is this statute conferring on these individuals a private right or an institutional right?

[00:35:57] Speaker 03:
That's the question.

[00:35:58] Speaker 03:
Let me ask you about that.

[00:36:00] Speaker 03:
Let's go back to just basic black literal

[00:36:04] Speaker 03:
standing principles, OK?

[00:36:07] Speaker 03:
Spokio, all these cases, they all stated the same way.

[00:36:11] Speaker 03:
They say to be, we're talking about injury must be particularized.

[00:36:15] Speaker 03:
That's one of the critical parts of standing, Article III standing, right?

[00:36:19] Speaker 03:
And the courts say to be particularized, particularized, injury must affect plaintiff in a personal and individual way.

[00:36:29] Speaker 03:
That's what personal means.

[00:36:30] Speaker 03:
It doesn't mean private.

[00:36:32] Speaker 03:
It means to be particularized, it just has to affect the plaintiff in a personal way, which that does here because these seven members have a statutory right to that information.

[00:36:45] Speaker 03:
So this is a particularized injury that affects them in a personal way.

[00:36:50] Speaker 03:
Why isn't the right analysis?

[00:36:51] Speaker 06:
So it might be particularized, but it is not personal in the way that Reins described it.

[00:36:56] Speaker 06:
Again, he acknowledges, and you cannot read Reins any other way, it uses personal and private repeatedly interchangeably.

[00:37:03] Speaker 06:
There is just no question about that.

[00:37:04] Speaker 01:
So there's a different article for retest from members of Congress than everybody else?

[00:37:09] Speaker 06:
The point is that

[00:37:11] Speaker 06:
To take a step back along the lines of from first principles, the point of Article III standing in the inquiry is to determine whether this is the type of dispute that is properly resolved in federal courts.

[00:37:21] Speaker 06:
And as Reigns emphasized, federal courts routinely adjudicate cases involving the rights and responsibilities of private parties, what they had never done historically

[00:37:31] Speaker 06:
is adjudicate disputes between members of Congress and the executive branch.

[00:37:35] Speaker 01:
That's just not true if they were filing a FOIA request.

[00:37:38] Speaker 01:
This is easy.

[00:37:39] Speaker 01:
We routinely adjudicate the duty of agencies to turn over information and we don't say

[00:37:44] Speaker 01:
We won't hear you if you're a member of Congress.

[00:37:47] Speaker 06:
I'll say two things.

[00:37:49] Speaker 06:
One is the point I've already made.

[00:37:50] Speaker 06:
The FOIA request has nothing.

[00:37:51] Speaker 01:
Article 3.

[00:37:52] Speaker 06:
It has nothing.

[00:37:53] Speaker 06:
A FOIA claim does not depend on the Congressman's capacity as an officer, whether they were a Congressman or not.

[00:38:00] Speaker 01:
The committee filed a FOIA request.

[00:38:02] Speaker 06:
I don't think committees actually can.

[00:38:04] Speaker 01:
Reporters Committee for Freedom of the Press files FOIA's actions all the time.

[00:38:08] Speaker 01:
You can file, as a group, can file persons under FOIA.

[00:38:12] Speaker 06:
Private groups can, because private groups can be... Does FOIA say private groups?

[00:38:16] Speaker 01:
The definition of persons?

[00:38:17] Speaker 06:
It says persons, and under the law we often recognize that corporations and things like that are persons.

[00:38:23] Speaker 06:
We do not normally apply that presumption to government entities.

[00:38:26] Speaker 01:
But if I can make the second- So a tribe, an Indian tribe or a city council can't file FOIA requests either?

[00:38:33] Speaker 06:
Look, so I'm not sure about that, Your Honor, but look, let me make another point in response to your question about the FOIA.

[00:38:39] Speaker 06:
On their theory that what matters here is that there's a statute that purports grant or personal right, reigns, ceases to be a landmark constitutional case, and becomes a pleading fault by Congress.

[00:38:51] Speaker 06:
Because all Congress had to do was say, section one, we confer on every member of Congress a personal right not to have their vote diluted by the Line Item Veto Act.

[00:39:03] Speaker 06:
Section two, you can suit enforce that personal right.

[00:39:06] Speaker 03:
That doesn't help you.

[00:39:07] Speaker 03:
I mean, you still have a vote dilution problem.

[00:39:09] Speaker 03:
This is not a vote dilution case.

[00:39:14] Speaker 03:
This is a case about an informational right granted by a statute.

[00:39:17] Speaker 06:
Right, but that cuts the other way, Your Honor, because we know vote dilution is a cognizable Article 3 injury for private parties.

[00:39:24] Speaker 06:
Every day of the week, people file Section 2 Voting Rights Act lawsuits where their Article 3 injury as private parties is vote dilution.

[00:39:32] Speaker 06:
So we know that vote dilution for a private party is Article III standing.

[00:39:36] Speaker 06:
And if the theory is, well, Congress passed a statute giving that so-called right to legislators, then reigns would have come out the other way if Congress had just drafted the statute differently.

[00:39:46] Speaker 03:
Let me try to ask you a question to put this in a bigger picture.

[00:39:50] Speaker 03:
Suppose when Congress creates a new executive branch agency.

[00:39:54] Speaker 03:
Well, take for example, suppose when it had created the Department of Education.

[00:39:59] Speaker 03:
It put a provision in the statute

[00:40:02] Speaker 03:
which said, because it wanted to ensure accountability, that any seven members of either education committee can ask for information and that they can go to court together.

[00:40:14] Speaker 03:
Does that be unconstitutional?

[00:40:17] Speaker 03:
I mean, no standing?

[00:40:18] Speaker 06:
I'm sorry, can you, sorry.

[00:40:19] Speaker 03:
Do they have no standing?

[00:40:21] Speaker 06:
Sorry, I missed the first part of your hypothetical.

[00:40:22] Speaker 03:
The first part is, Congress creates a new executive branch agency, like the Department of Education.

[00:40:28] Speaker 03:
Creates a brand new agency.

[00:40:30] Speaker 03:
And as part of the structure of that agency, when it's giving the agency its power and responsibility, it includes a provision which says any seven members of the education committees in either house can demand information from the department relating to the work of the jurisdiction of the education committee, and they can go to court to get it.

[00:40:51] Speaker 03:
No standing?

[00:40:53] Speaker 06:
Yeah, that's the same as this case.

[00:40:56] Speaker 03:
Even though Congress could turn around and abolish the Department of Education?

[00:41:00] Speaker 06:
The greater doesn't always include the lesser.

[00:41:01] Speaker 03:
I don't understand that.

[00:41:02] Speaker 03:
How can it be that if Congress can create and abolish the agency, it can't

[00:41:09] Speaker 03:
provide these kinds of procedures for obtaining information from the agency?

[00:41:14] Speaker 06:
For the same reason that Congress can create an abolishing agency, but it can't remove the head of the agency.

[00:41:19] Speaker 06:
We know under separation of powers principles, probably the most central separation of powers principle when it comes to Congress versus the executive is a concern about congressional aggrandizement.

[00:41:29] Speaker 06:
We know that in the removal context that Congress can't remove.

[00:41:32] Speaker 06:
We know that in the delegation context that Congress can't delegate to itself, even though it can delegate to executive agencies.

[00:41:38] Speaker 06:
There's just no reason why in the informational context it should be different.

[00:41:42] Speaker 06:
To the contrary, we know from the Supreme Court's cases about congressional information that they do not have a private right to information.

[00:41:51] Speaker 06:
They have a right in furtherance of their legislative functions.

[00:41:53] Speaker 01:
What if Congress passed an amended, or if 2954 originally enacted had said, look,

[00:42:01] Speaker 01:
Forget time issues.

[00:42:02] Speaker 01:
FOIA is out there, and we can think of no people more expert in ensuring the transparency of government agencies than people who are members of Congress who were members of Congress.

[00:42:14] Speaker 01:
They are the most involved citizens you can have.

[00:42:17] Speaker 01:
And so as a fringe benefit for being a member of Congress, you get FOIA a la 2954, and you get to keep it for the rest of your life.

[00:42:28] Speaker 01:
It doesn't run with your seat.

[00:42:32] Speaker 06:
So certainly for someone who is out of Congress, at that point, I think that's right.

[00:42:36] Speaker 06:
And I think the formulation you used is exactly the right one.

[00:42:39] Speaker 01:
No, no, no.

[00:42:39] Speaker 01:
Back up.

[00:42:40] Speaker 01:
I'm still in Congress when I ask.

[00:42:43] Speaker 01:
But it's going to stick with me for life.

[00:42:45] Speaker 06:
It no longer runs with the seat.

[00:42:49] Speaker 06:
That is exactly the right way to think about how they would have to have standing.

[00:42:53] Speaker 06:
You would have to view the stand statute as a fringe benefit of being Congress.

[00:42:57] Speaker 06:
You get your salary, you get your pensions, you get to send a female.

[00:43:00] Speaker 01:
I get that.

[00:43:00] Speaker 01:
That's my question.

[00:43:01] Speaker 01:
That's my question.

[00:43:02] Speaker 01:
Right.

[00:43:02] Speaker 01:
So this is now a fringe benefit of being.

[00:43:04] Speaker 01:
I'm repackaging it a little bit for you.

[00:43:06] Speaker 06:
That is just not a reasonable way of understanding the statute.

[00:43:09] Speaker 01:
No, no, no.

[00:43:10] Speaker 01:
I'm asking to be clear for a question as to my remodeled statute.

[00:43:18] Speaker 01:
while you're a member of Congress.

[00:43:21] Speaker 01:
Is that a personal right?

[00:43:23] Speaker 06:
Yeah.

[00:43:23] Speaker 06:
I think on your hypothetical statute where it was a fringe benefit of being in Congress, no different than your salary and your pension, I suppose at that point it would be a personal right.

[00:43:32] Speaker 01:
Even though it's limited to asking about things related to Oversight Committee, which I think is pretty much everything the executive branch does.

[00:43:39] Speaker 06:
Well, it's a weird hypothetical because you're giving them a fringe benefit, but on your hypothetical, yes, I would agree that that would at that point be a personal right, at least for standing purposes.

[00:43:48] Speaker 06:
There might be other issues with such a statute.

[00:43:50] Speaker 01:
So the key difference here is that once they're no longer, I guess, an oversight committee member, they could still be a member of Congress.

[00:43:57] Speaker 06:
It's not just the Fed.

[00:43:59] Speaker 06:
No, it's two points that are related.

[00:44:00] Speaker 06:
The overall point is you can't plausibly read this statute as that sort of fringe benefit.

[00:44:07] Speaker 06:
We know that for a couple of reasons.

[00:44:09] Speaker 06:
One is that it doesn't run.

[00:44:11] Speaker 06:
You don't have it after you're out of office.

[00:44:13] Speaker 06:
In fact, you don't even have it if you leave the committee.

[00:44:15] Speaker 06:
But the more fundamental point, and this is where I mentioned their complaint before,

[00:44:20] Speaker 06:
Everyone understands that this statute is an oversight statute.

[00:44:24] Speaker 06:
It is not a fringe benefit that Congress made.

[00:44:27] Speaker 06:
The statute was created when Congress eliminated a bunch of mandatory reporting statutes and said, we want to make sure Congress... Can you create fringe benefits for certain committee assignments?

[00:44:39] Speaker 01:
Committee X, no one likes to be on that committee.

[00:44:42] Speaker 01:
It's particularly oversight.

[00:44:44] Speaker 01:
It's the most boring committee on Congress.

[00:44:47] Speaker 01:
Only the people who really ticked off the leadership get stuck on that committee.

[00:44:51] Speaker 01:
It doesn't do anything for your constituents.

[00:44:53] Speaker 01:
But as a fringe benefit, when you're on that committee, you have an informational right.

[00:45:00] Speaker 01:
That's a fringe benefit that runs with the committee.

[00:45:05] Speaker 06:
If the argument is tied to your service on the committee, I have a very hard time understanding describing that as a fringe benefit.

[00:45:13] Speaker 01:
But again... When you got paid a little extra salary for being on the dog committee that no one wants, that would be a fringe benefit.

[00:45:19] Speaker 01:
And so and so they say you get...

[00:45:21] Speaker 01:
you get more information.

[00:45:22] Speaker 01:
Maybe you won't want it, it's a dog committee assignment, but you can have some extra information if you want it.

[00:45:28] Speaker 01:
All I would say is this statute, as opposed to your... No, I would, but as to that, would that be, could you have Article 3 standing as long as, under Powell's theory, as long as it's understood to be an aspect, a benefit that runs with being a member of Congress?

[00:45:41] Speaker 06:
I will grant that there may be hard questions on the margins about where the line is.

[00:45:46] Speaker 01:
Can an informational injury be a fringe benefit?

[00:45:48] Speaker 06:
Yeah, I think it is possible to conceive of it as such.

[00:45:51] Speaker 06:
I think that you could imagine statutes, very unlike this one, that could be there.

[00:45:56] Speaker 06:
And some of your hypotheticals probably push on the line of where you withdraw, where it ceases to be a French benefit, is instead an oversight statute.

[00:46:03] Speaker 06:
This statute isn't within a million miles of... Well, for you it's an oversight statute.

[00:46:06] Speaker 01:
No, it's not.

[00:46:08] Speaker 01:
Yes, it's oversight by people, transparency of your government.

[00:46:10] Speaker 01:
You get to know what your government is doing.

[00:46:13] Speaker 01:
That's oversight.

[00:46:13] Speaker 06:
That's true, but your subjective motive doesn't... You don't have to have any legitimate purpose when you file a court request.

[00:46:19] Speaker 01:
No, but motive doesn't matter at all under FOIA.

[00:46:21] Speaker 01:
It could be for an institutional purpose by a legislature.

[00:46:24] Speaker 06:
That's my point, Your Honor.

[00:46:26] Speaker 06:
FOIA, you have the right in your private capacity to do with it as you wish.

[00:46:31] Speaker 06:
That is not what this statute is.

[00:46:33] Speaker 06:
There is a reason that their complaint, when they articulate the injury, they don't say, I'm just curious about this information, I would like it.

[00:46:40] Speaker 06:
That's what many FOIA plaintiffs say in their complaint.

[00:46:43] Speaker 06:
Their complaint says, we need this information because it's interfering with our legislative oversight.

[00:46:49] Speaker 06:
That's not just an inexplicable footfall by my experienced colleague.

[00:46:52] Speaker 06:
He said that for a reason.

[00:46:54] Speaker 06:
He knows that this statute, unlike the hypothetical statutes you suggested, is an oversight statute.

[00:47:00] Speaker 06:
Its statutory context tells us it's an oversight statute.

[00:47:03] Speaker 06:
It's always been operated.

[00:47:05] Speaker 01:
And to take a step back... Is the right to the constitutional right not to be arrested, interfered with, on going to or from Congress within the Constitution itself, is that an institutional right?

[00:47:20] Speaker 01:
It certainly runs with the seat.

[00:47:21] Speaker 06:
So look, I think that would probably be best understood.

[00:47:24] Speaker 06:
This is another one where it's sort of close to the line, but I think your freedom of personal liberty, your right to actually move.

[00:47:31] Speaker 01:
No, it's not my personal ability.

[00:47:34] Speaker 01:
I can move as a person.

[00:47:35] Speaker 01:
What I can't do is move as a member of Congress.

[00:47:38] Speaker 06:
That's right, but it is a right that is tied to your office, much like your salary, but it benefits you in your private capacity.

[00:47:45] Speaker 06:
You have freedom of movement.

[00:47:46] Speaker 01:
What private capacity?

[00:47:47] Speaker 01:
No, your private capacity is only going to and from Congress.

[00:47:50] Speaker 01:
It's not going to the grocery store.

[00:47:52] Speaker 06:
That's fine, but even within that limited sphere, you're free to not be arrested.

[00:47:56] Speaker 06:
That is a benefit of being in Congress, but it is a benefit that is tied to your...

[00:48:02] Speaker 01:
The benefit of getting information would not have that same status.

[00:48:07] Speaker 06:
Again, no one thinks that this statute is giving congressmen the right to the information just for their own benefit.

[00:48:17] Speaker 01:
Because I find this looks like a perfect law school exam, sort of right down the middle of the standing case.

[00:48:22] Speaker 01:
It really is.

[00:48:24] Speaker 01:
So I'm really trying to understand when you start characterizing something that is an element, a constituent element of being a member of Congress.

[00:48:33] Speaker 01:
You don't get it unless you're a member of Congress.

[00:48:35] Speaker 01:
It ends as soon as you're no longer a member of Congress.

[00:48:38] Speaker 01:
I assume the reason that it's in the Constitution is to protect the institutional functioning of Congress.

[00:48:46] Speaker 01:
And so we would say their ability to get to Congress without the executive being able to arrest them and throw them all in jail is very much a structural institutional right that runs with the seat.

[00:49:01] Speaker 01:
That has got to be an institutional right.

[00:49:06] Speaker 06:
just as your salary is tied to your office, but it benefits you personally.

[00:49:11] Speaker 06:
It lines your pocket, whether or not you cease to be in Congress the day after you file that suit.

[00:49:17] Speaker 01:
I'm really and all honestly trying to understand why then my right to get information, to know more things in my head, I could use them personally, I can use them institutionally, isn't

[00:49:31] Speaker 01:
It doesn't have the same status.

[00:49:32] Speaker 01:
That's what I'm really saying.

[00:49:32] Speaker 06:
Because that's not right.

[00:49:33] Speaker 06:
Because what you just said, you could use it personally or you could use it institutionally, is not correct.

[00:49:38] Speaker 01:
Oh, does it say in the statute they have to use it institutionally?

[00:49:40] Speaker 01:
I thought it just defined the scope of what they could ask for.

[00:49:42] Speaker 06:
It would render the statute unconstitutional.

[00:49:46] Speaker 01:
What they're thinking in their hat?

[00:49:47] Speaker 01:
What they're thinking in their hat?

[00:49:49] Speaker 01:
Where does it say motive?

[00:49:50] Speaker 06:
Again, just to go back to Judge Tatel's question, imagine 2954 said, any member of Congress can ask for any information from the executive branch for any reason or no reason at all.

[00:50:00] Speaker 03:
I didn't ask that question.

[00:50:02] Speaker 06:
No, I know.

[00:50:04] Speaker 06:
You were trying to avoid that by emphasizing that there's a jurisdictional element.

[00:50:07] Speaker 06:
Yes.

[00:50:08] Speaker 06:
Exactly.

[00:50:09] Speaker 06:
And what I'm trying to say is that on your conception, imagine there wasn't a jurisdictional element.

[00:50:14] Speaker 06:
Imagine the statute that said.

[00:50:16] Speaker 06:
Imagine what?

[00:50:16] Speaker 01:
No, I'm not changing what the statute says.

[00:50:18] Speaker 01:
I'm just saying in my head, I don't think I'm going to use this in my committee work.

[00:50:22] Speaker 01:
I'm just curious to know how much money

[00:50:26] Speaker 01:
You all spent, you know, the leaders of the agency spent on airplane tickets to travel abroad.

[00:50:31] Speaker 01:
It's squarely within the tax.

[00:50:33] Speaker 06:
And what I'm suggesting, Your Honor, is that given that the Supreme Court has expressly stated that a congressional request for information just for the personal aggrandizement of the investigators and not to pursue a legitimate legislative function would not just be unconstitutional, but indefensible.

[00:50:50] Speaker 01:
That was how it was being used on the ground.

[00:50:51] Speaker 06:
It's a merits question.

[00:50:53] Speaker 06:
I understand.

[00:50:54] Speaker 03:
What I'm- What does that have to do with Article 3 standards?

[00:50:56] Speaker 06:
What I was trying to suggest, Your Honor, is you should not read this statute in a way to avoid the Article 3 problem that creates an Article 1 problem.

[00:51:07] Speaker 06:
You can, it is conceptually possible to think of a statute that provides fringe benefits to congressmen that they have a right to information regardless of how they use it.

[00:51:16] Speaker 06:
I don't disagree, you can theorize such a statute.

[00:51:18] Speaker 01:
We already have that right under FOIA, and there's no article one problem with a member of congress going, for institutional reasons, for personal aggrandized reasons, I want this information from the agency.

[00:51:29] Speaker 06:
But that's because it has nothing to do with them being congressmen.

[00:51:31] Speaker 06:
And you and I or anyone off the street can file that same thing.

[00:51:34] Speaker 06:
This statute gives a right only to congressmen.

[00:51:38] Speaker 06:
And you can view it in one of two ways.

[00:51:41] Speaker 06:
You can view it as everyone has always understood it, including them and their complaint, as a method of oversight.

[00:51:46] Speaker 06:
in which case it is not a fringe benefit, it is part of their legislative functions.

[00:51:51] Speaker 06:
Or you could, counter to its complete historical understanding, view it as the sort of fringe benefit hypothetical statute you articulated, where they could ask for this information, even if they don't really care at all for legislative purposes, they're just curious.

[00:52:05] Speaker 06:
If you hypothesize a statute like that, I agree that maybe there's not an Article III standing problem, but only by creating an Article I constitutional problem.

[00:52:12] Speaker 06:
And it would be very odd to read the statute that way.

[00:52:15] Speaker 01:
Article 1 constitutional problem, the members of Congress ask for information from an agency.

[00:52:22] Speaker 06:
for a nonlegitimate legislative function.

[00:52:25] Speaker 06:
That is the square holding of multiple Supreme Court cases.

[00:52:28] Speaker 06:
Which one?

[00:52:29] Speaker 06:
So among others, Watkins.

[00:52:31] Speaker 06:
The quote I keep reading to you is from page 187 of Watkins, where the Supreme Court said an investigation by Congress solely for the, quote, personal aggrandizement, close quote, of the investigators would be, quote, indefensible.

[00:52:45] Speaker 03:
I agree.

[00:52:45] Speaker 03:
Right?

[00:52:46] Speaker 03:
You have to be doing it for a legit.

[00:52:47] Speaker 03:
Yeah, but that's a merits question.

[00:52:50] Speaker 06:
Look, I agree.

[00:52:51] Speaker 06:
If you want to read the statute,

[00:52:53] Speaker 06:
to create a personal aggrandizement.

[00:52:55] Speaker 03:
No, no, I wasn't suggesting we do.

[00:52:57] Speaker 03:
I was suggesting the question of whether a particular request would run foul of Watkins or not is a merits question, that's all.

[00:53:05] Speaker 06:
That's true, but whether you view this statute as a whole at the wholesale level, whether you view it as conferring a fringe benefit on congressmen, or whether you view it as legislative oversight is quite relevant.

[00:53:17] Speaker 03:
Mr. Mupan, I want to ask you a question linked to your interesting comment about

[00:53:22] Speaker 03:
We shouldn't decide this case in a way that creates an Article 1 problem.

[00:53:28] Speaker 03:
Am I right that one of the reasons for this statute was to protect minority members of Congress, right?

[00:53:34] Speaker 06:
I don't think it's quite as clear as that, Your Honor.

[00:53:37] Speaker 06:
Well, the reason is, it is true that on the House side, when the statute was created, the number that was specified was a minority.

[00:53:43] Speaker 06:
That wasn't true on the Senate side.

[00:53:45] Speaker 06:
I believe the number was five, and at the time, the relevant committee, five was a majority.

[00:53:49] Speaker 06:
But I don't disagree that it does have that effect, whether or not it was their express purpose.

[00:53:53] Speaker 03:
Well, that sort of gets to my point.

[00:53:56] Speaker 03:
Assuming it is Congress's purpose,

[00:53:59] Speaker 03:
So Congress has made a judgment that the legislative process works best when minority member access to information is protected.

[00:54:10] Speaker 03:
That's one way to look at this statute.

[00:54:13] Speaker 03:
And wouldn't it create a serious Article I problem if an Article III court intruded into Congress's own procedures as to how to function by declaring that unconstitutional?

[00:54:29] Speaker 06:
So no, Your Honor, but I think one important thing to emphasize is the statute might create a right to the information.

[00:54:36] Speaker 06:
It doesn't create a right to sue.

[00:54:39] Speaker 06:
And this is very important.

[00:54:41] Speaker 06:
So the Supreme Court in Reed emphasized the difference between Congress authorizing a committee to ask for information and Congress authorizing the committee to then sue for it.

[00:54:51] Speaker 03:
But your motion to dismiss argues there's no cause of action, correct?

[00:54:55] Speaker 06:
So it does, but to answer your question from earlier, we don't think that that is just a cause of action issue.

[00:55:00] Speaker 06:
We think it is actually relevant to the Article III standing issue for two reasons.

[00:55:04] Speaker 06:
And how is that?

[00:55:05] Speaker 03:
So first of all, we know- And in fact, it's standing.

[00:55:07] Speaker 03:
We have to assume they're right that they have a cause of action.

[00:55:10] Speaker 03:
They don't have to be right.

[00:55:11] Speaker 03:
We just assume it, correct?

[00:55:14] Speaker 06:
Isn't that the way standing works?

[00:55:16] Speaker 06:
Look, I'll say two things, Your Honor.

[00:55:17] Speaker 06:
In Reigns, the Supreme Court mentioned, as part of its Article III standing analysis, expressly, that they hadn't been authorized to sue.

[00:55:24] Speaker 06:
So I think that whether they have a, whether they've been authorized by the House to sue is relevant to the argument.

[00:55:31] Speaker 03:
Wait, I'm sorry, in Reins they said what?

[00:55:33] Speaker 06:
One of the factors that the Court mentioned in the final paragraph of the opinion.

[00:55:36] Speaker 06:
In Reins.

[00:55:37] Speaker 06:
One of the factors mentioned in the final paragraph of the opinion as a consideration was that the House had not authorized those members to sue on behalf of Congress.

[00:55:48] Speaker 03:
You mean those particular members?

[00:55:49] Speaker 06:
Those particular members.

[00:55:50] Speaker 03:
But it had created a cause of action, right?

[00:55:52] Speaker 06:
Right, which is all the more reason why they should be in trouble, because they don't even have that.

[00:55:57] Speaker 06:
They don't even have the cause of action at all, let alone the cause of action to sue on behalf of the House.

[00:56:01] Speaker 06:
And this was discussed in a fair bit of detail in the brief that the bipartisan legal advisory group filed in the Waxman litigation.

[00:56:11] Speaker 06:
where they emphasize the problems with allowing individual members of Congress to file lawsuits that essentially force disputes over, you know, inter-branch disputes over information, including sensitive, you know, executive privilege disputes.

[00:56:25] Speaker 06:
That is something that has always been centralized in the House and for good reason.

[00:56:30] Speaker 06:
And so when you ask whether there would be a separation of powers problem and insisting on maintaining that,

[00:56:34] Speaker 06:
I think there's a very good reason why Congress has not authorized these individuals to sue at all, let alone on behalf of the House.

[00:56:43] Speaker 06:
And we know that matters for separation of powers purposes, and for standing purposes, because cases like Bethune Hill

[00:56:51] Speaker 06:
and Arizona legislature and Reigns all emphasize that even if an institution could ever sue with an absent personal injury, it's gotta be the institution itself, not a subcomponent of the institution.

[00:57:02] Speaker 02:
Council, before Reigns, we used to always take into account whether the congressional plaintiffs had potential relief through their colleagues rather than the courts.

[00:57:16] Speaker 02:
I'm trying to remember, but I think in Chenoweth, we said that was still relevant after Raines.

[00:57:23] Speaker 02:
And I think in Raines itself, that's also mentioned, isn't it?

[00:57:27] Speaker 06:
Not only that, in Campbell versus Clinton, which is after Chenoweth, it's the central factor that this court relied on to say why this wasn't a nullification case like Coleman.

[00:57:39] Speaker 02:
So now in your brief, I think you adduced several possible avenues of relief, some of which I frankly think are very far-fetched.

[00:57:47] Speaker 02:
such as impeachment over something like getting some GSA documents.

[00:57:51] Speaker 02:
It makes no sense.

[00:57:53] Speaker 02:
But getting a resolution from the House would seem to be the obvious available alternative.

[00:58:00] Speaker 06:
That's one alternative.

[00:58:01] Speaker 06:
Another alternative would be the use of the appropriations, which is what Campbell actually identified as one of the legislative tools.

[00:58:09] Speaker 06:
And I don't think that's at all far-fetched to say that if GSA isn't providing information, that the House as a whole thinks it's important, that the House would use its appropriations power over GSA to do something about it.

[00:58:19] Speaker 02:
Well, that's a little like saying you've got nuclear weapons, therefore you have to redress.

[00:58:26] Speaker 06:
Well, again, Your Honor, that was an argument that I believe Judge Randolph made in Campbell, but the majority in Campbell did point to those tools as relevant to the analysis.

[00:58:38] Speaker 06:
If I could make one last point about Coleman, because I do think it's important.

[00:58:42] Speaker 06:
My colleague repeatedly tried to suggest that Coleman proves that it must be possible for there to be a personal, private right on behalf of legislators.

[00:58:53] Speaker 06:
think that's just a misreading of Coleman as the way the rains described it if you look at how rains describe Coleman

[00:59:00] Speaker 06:
it described it as an institutional injury.

[00:59:03] Speaker 06:
And what the key point is, is that there you had 20 senators that were essentially the majority of the state senate.

[00:59:13] Speaker 06:
They were essentially functioning as the state senate.

[00:59:15] Speaker 06:
So it's really no different than Arizona legislature, which says, of course, an institution, qua institution, can in some circumstances sue.

[00:59:26] Speaker 06:
This court and the Supreme Court have never extended that to Congress.

[00:59:30] Speaker 06:
In Arizona, in Reines, in every such case, the Supreme Court has gone out of its way to say, we are not saying that the fact that the state legislature can sue means that a Congress or a subcomponent of Congress can sue, because that does present severe separation of powers problems, given the history that's described in Reines.

[00:59:49] Speaker 06:
Those sorts of lawsuits have never been brought.

[00:59:54] Speaker 06:
Thank you, Your Honor.

[00:59:55] Speaker 03:
I appreciate the time.

[00:59:56] Speaker 03:
Yeah, thank you.

[00:59:57] Speaker 03:
Mr. Vladeck, you are out of time, but you can have three minutes.

[01:00:01] Speaker 03:
Thank you.

[01:00:02] Speaker 05:
First of all, nothing in Reigns supports the idea that the court in Coleman thought that the legislatures were suing on behalf of the Kansas legislature.

[01:00:12] Speaker 05:
That is just not an accurate reading of Reigns.

[01:00:15] Speaker 05:
Second, let me just reemphasize that Coleman cannot be

[01:00:23] Speaker 05:
considered to be only an institutional injury.

[01:00:26] Speaker 05:
The injury that is required by Article 3 is a personal injury that is distinct to each plaintiff.

[01:00:33] Speaker 05:
The plaintiffs in Coleman would not have had standing, could not have pursued their claim in the United States Supreme Court unless they had also suffered personal injury.

[01:00:43] Speaker 05:
I'd like to address quickly

[01:00:47] Speaker 05:
Judge Millett's question about separation of powers.

[01:00:50] Speaker 05:
I would urge you to read 6, opinion of legal counsel.

[01:00:55] Speaker 05:
It's cited on page 7.

[01:00:58] Speaker 05:
The site there is to page 632.

[01:01:00] Speaker 05:
The jump site that I would refer you to is at 643.

[01:01:05] Speaker 05:
It's Ted Olson as the Assistant Attorney General for the Office of Legal Counsel pointing out that Congress is, speaking of the seven-member rule, Congress has enacted a provision that on its face requires any executive agency to submit to the Government Operations Committee, now the Oversight Committee.

[01:01:26] Speaker 05:
any information requested of it relating to any matter within the jurisdiction.

[01:01:32] Speaker 05:
This provision, however, has been narrowly construed, excuse me, narrowly interpreted by the executive branch to grant pertinent committees access to only the types of information that has traditionally been made available to Congress, and that is not subject to valid claims of executive privilege.

[01:01:51] Speaker 05:
So to the extent that there's a concern about this and there's further discussion about this, these cases have not ever yet, and there have been lots of requests under this, produced a response over executive privilege, which I think lessens the separation of powers.

[01:02:10] Speaker 05:
And the last thing is authorization.

[01:02:12] Speaker 01:
Did they say in this case that they turned over everything to you, you would get under FOIA?

[01:02:16] Speaker 01:
I think they said in district court.

[01:02:21] Speaker 01:
So they have... Quietly, then, whatever they've withheld, they would say falls within that language?

[01:02:26] Speaker 05:
I don't believe that is correct.

[01:02:28] Speaker 05:
I think there are all sorts of materials that... And also, the seven-member rule is not FOIA.

[01:02:36] Speaker 05:
It does not have the exemptions that FOIA has.

[01:02:40] Speaker 05:
And traditionally, the way these matters have been worked out, as they've been worked out here, is the committee simply

[01:02:46] Speaker 05:
pledges and puts in procedures to ensure that sensitive information is not shared beyond the confluence of the committee.

[01:02:54] Speaker 05:
So Congress and the executive branch exchange sensitive information all of the time.

[01:03:02] Speaker 05:
The last point I'd like to address is the authorization question.

[01:03:06] Speaker 05:
It is true that this group did not seek authorization.

[01:03:09] Speaker 05:
They were not suing, unlike in Reed, on behalf of the House of Representatives.

[01:03:14] Speaker 05:
They were suing in their own name.

[01:03:16] Speaker 05:
The statute doesn't require authorization because the right, as we emphasize, has to be personal to the members, or else there is no real right here.

[01:03:29] Speaker 05:
And it also would be anomalous to require these members to seek the House's approval when the House has nothing to do with the statute.

[01:03:37] Speaker 05:
The statute does not assign power to the House of Representatives.

[01:03:41] Speaker 05:
It assigns power to the committee and to members.

[01:03:44] Speaker 05:
There was no authorization in Coleman.

[01:03:46] Speaker 05:
Coleman did not, the 20 members of the legislature did not seek the authorization of the legislature there.

[01:03:57] Speaker 05:
There was none in AT&T until

[01:03:59] Speaker 05:
after the district court proceeding, when Mr. Moss was then authorized by the Senate, and there certainly was none in Kennedy versus Samson.

[01:04:07] Speaker 05:
This court spent a lot of time looking at the authorization there.

[01:04:11] Speaker 02:
And finally... Samson asked about it, but that tells us that the House could authorize this case tomorrow.

[01:04:17] Speaker 02:
I believe it could, Your Honor.

[01:04:19] Speaker 05:
But you don't believe it has to.

[01:04:21] Speaker 05:
Right, we do not believe it has to, and I think it would be for the House a bad precedent to ask the House to

[01:04:29] Speaker 05:
basically give some sort of authorization when the statute does not involve the House as a participant in making the decision about what information to seek.

[01:04:44] Speaker 03:
Am I right?

[01:04:46] Speaker 03:
What's your reaction to my question to Mr. Rupan about the purpose of the statute to protect minorities?

[01:04:55] Speaker 05:
How solid is that?

[01:04:57] Speaker 05:
So I think it's quite solid, Your Honor.

[01:04:59] Speaker 05:
The provision that is now Section 2954 was Section 2 of the Act of May 29th, 1928.

[01:05:08] Speaker 05:
It was written by the House.

[01:05:10] Speaker 05:
At the time it was written, the House had 21 members, 13 in the majority, 8 in the minority.

[01:05:19] Speaker 05:
It is quite clear that this was a deliberate selection on the House's part.

[01:05:24] Speaker 05:
My friend is right that the Senate,

[01:05:27] Speaker 05:
which then wrote its own provision about what number it wanted.

[01:05:31] Speaker 05:
It was only constituted of eight members, five in the majority, three in the minority.

[01:05:37] Speaker 05:
It shows five.

[01:05:38] Speaker 05:
There's no legislative history on why five was selected.

[01:05:43] Speaker 05:
I speculate and I say it's speculation in our opening brief that it was based on the Senate Select Committee that did the investigation into Valerie Doherty, the brother of

[01:05:54] Speaker 05:
than Attorney General Dougherty in the Teapot Dome scandal.

[01:06:00] Speaker 01:
So it sounds like the House wanted to protect the minority, but maybe the Senate didn't?

[01:06:05] Speaker 05:
I think that's right, though.

[01:06:06] Speaker 05:
The Senate was a tiny committee, and much of the oversight at that time was done by the House, which has, because it's far more numerous, had more resources to engage in that kind of oversight.

[01:06:20] Speaker 05:
Thank you, Your Honors.

[01:06:22] Speaker 03:
Mr. Vladeck, Mr. Lupin, thank you both for your helpful arguments and briefs.

[01:06:25] Speaker 03:
The case is submitted.