The DC Circuit will hear two cases en banc on April 28--the McGahn case in which a panel recently held the House didn't have standing to sue, and the case involving the House's challenge to the transfer of funds to build the "Wall," which another panel hadn't yet decided. /1
The Court's order states that there's a "common issue of Article III standing" in the two cases. That's true in a very general sense: Both involve whether the House can sue. But in most other respects the cases raise very different questions. /2
cadc.uscourts.gov/internet/opini…
cadc.uscourts.gov/internet/opini…
The House's standing in McGahn is, I think, fairly clear-cut, b/c the House suffers a distinct, concrete injury (denial of testimonial information to which it's entitled). In the Mnuchin case, by contrast, ... /3
... the House is essentially complaining about the Executive's failure to comply with the law. The merits of the House's complaint are very strong, but I've serious doubts whether it has standing to sue, b/c its injury is only a "generalized" harm it shares w/the public ... /4
... in seeing that the Executive branch acts lawfully. In 2016 I helped write an amicus brief arguing that House standing in that circumstance is inconsistent with historical practice and w/the modern Court's (perhaps misguided) notion of Art. III. /5
justsecurity.org/wp-content/upl…
justsecurity.org/wp-content/upl…
In footnote 2 of that brief, we specifically distinguished cases such as McGahn, which, IMHO, raise a very different sort of Art. III question. /6
@walterdellinger
@walterdellinger
Whether I'm right about that or not, don't be surprised if some of the judges on the CTADC decide the standing question differently in the two cases. /7
#AppellateTwitter
#AppellateTwitter
