The federal government brings lawsuits as well as defending them, and the question of who inside it may start a case gets less attention. The answer depends on the branch. In the executive branch, statutes and Justice Department regulations supply it. In the House of Representatives, the chamber’s own rules do, and those rules have changed considerably in the past decade.
Ben Miller-Gootnick, a Washington, D.C.-based lawyer, has worked on both sides of that question. He has written about how the House authorizes lawsuits, and he has served as a Bristow Fellow in the Department of Justice’s Office of the Solicitor General, which oversees the federal government’s appeals.
When Congress Goes to Court
For most of its history, Congress enforced its demands for information through contempt proceedings rather than civil lawsuits. Lawsuits became more common in the 2000s, as the House went to court to enforce subpoenas against executive branch officials, including former White House Counsel Harriet Miers in 2008 and Attorney General Eric Holder in 2012. In both cases, the full House voted to authorize the suit.
The Senate has a statute governing its subpoena suits, though it excludes suits against executive officials who assert a governmental privilege. The House has no equivalent and relies on its own rules.
Standing matters too. Under Raines v. Byrd (1997), individual members of Congress generally cannot sue over injuries to the institution, but a chamber or committee acting on its behalf may, as the full D.C. Circuit held in a 2020 subpoena case. That makes the way the House authorizes a suit more than a procedural detail.
How the House Sues
That question is the subject of Miller-Gootnick’s article “How the House Sues,” published in the University of Illinois Law Review in 2021. The article examines the Bipartisan Legal Advisory Group, or BLAG, a five-member body made up of the Speaker and the majority and minority leaders and whips.
House leaders began appearing in litigation on the chamber’s behalf in the 1980s, and the House formally established BLAG in its rules in 1993. For years, BLAG’s role was mainly to state the House’s position in cases already underway. A 2015 rules change provided that BLAG “speaks for, and articulates the institutional position of, the House in all litigation matters.” In 2019, the House adopted a resolution treating a BLAG vote as the equivalent of a vote of the full House.
Under that framework, the House filed several suits against the executive branch in 2019, including cases involving border wall funding, the President’s tax returns and documents related to the census citizenship question. As the article notes, those suits were authorized by 3–2, party-line BLAG votes rather than by the full chamber.
The executive branch argued that a suit of this kind requires a vote of the whole House. Ben Miller-Gootnick’s article, which describes the subject as previously unstudied, reaches a different conclusion. It argues that BLAG is likely constitutional under the Rulemaking Clause, which lets each chamber determine its own procedures, and observes that the Constitution prescribes no procedure for the House to sue, as it does for passing legislation. It compares BLAG with the House’s other delegations of authority to the Speaker, committees and officers. And it concludes that courts may treat the question as a nonjusticiable political question. The article presents its analysis as a starting point for further discussion.
When the Executive Branch Goes to Court
By statute, litigation involving the United States or its agencies is reserved to the Justice Department, under the direction of the Attorney General, unless another law provides otherwise. Some agencies have their own litigating authority, but the Department handles most of the government’s cases.
The many U.S. Attorneys’ offices throughout the country conduct most of the government’s trial-level work, including criminal prosecutions and many civil cases. Litigating divisions in Washington, such as the Civil, Criminal and Civil Rights Divisions, handle specialized matters. When the government sues as a plaintiff, the case may be a civil enforcement action, a suit to recover money lost to fraud, or a challenge to a state law as preempted by federal law.
How Appeals Are Authorized
Losing in a trial court does not give a U.S. Attorney’s office or litigating division the authority to appeal. Under Justice Department regulations, that decision belongs to the Solicitor General, who must also approve requests for rehearing en banc, amicus curiae (“friend of the court”) briefs and interventions in appellate courts, and petitions to the Supreme Court.
If a trial court rules against the government, the trial lawyers must report it and evaluate whether to recommend appealing. The trial lawyers and the affected agency send a recommendation to the Solicitor General’s Office. A lawyer in the office reviews the record and recommendations and writes a memo. The Solicitor General ultimately decides whether to authorize appealing. In most civil cases involving the United States, the government has 60 days to file a notice of appeal. In criminal cases, a federal statute limits the government to appealing certain rulings, such as the dismissal of charges or the suppression of evidence.
The Justice Department memos consider more than whether the lower court erred, including whether the ruling affects an agency’s programs beyond the case at hand and whether the decision rests on more than one ground. Precedent matters too: a district court decision does not bind other courts, but an unsuccessful appeal can produce a ruling that binds every district court in the circuit. For Supreme Court petitions, the Solicitor General also considers whether a case is a good vehicle for the question presented. That selectivity is one reason the Court grants the government’s petitions at a much higher rate than those of other litigants.
Bristow Fellows assist office attorneys in preparing these recommendations and on Supreme Court filings, and may argue a case in a federal court of appeals. During his fellowship, Ben Miller-Gootnick briefed and argued a case for the government before a federal court of appeals and prevailed.
Where the Two Systems Meet
The two processes sometimes intersect. When the House sues the executive branch, the Justice Department defends the officials named in the suit, and the Solicitor General decides whether the government will appeal an adverse ruling. When the Department declines to defend a federal statute, the House may step in, as BLAG did in the Defense of Marriage Act litigation that reached the Supreme Court in United States v. Windsor in 2013.
About Ben Miller-Gootnick
Ben Miller-Gootnick is a Washington, D.C.-based lawyer whose experience spans the federal judiciary, the Department of Justice, private practice and Congress. He clerked in the federal courts, served as a Bristow Fellow in the Office of the Solicitor General, practiced appellate litigation and congressional investigations in private practice, and served as counsel on the Democratic staff of the House Judiciary Committee. He graduated magna cum laude from Harvard Law School, where he was an Executive Editor of the Harvard Law Review. Readers can learn more about Ben Miller-Gootnick through his personal website.