For S.B. 8, AG Garland Reversed DOJ’s Longstanding Position About Equitable Causes of Action
During the prior administration, the House Judiciary Committee sought to compel WH Counsel Don McGahn to testify. District Court Judge Kentanji Brown Jackson ruled in favor of the House. There was not statutory cause of action. But the court found that the House had an equitable cause of action to compel McGahn’s testimony. The district court did not even cite Grupo Mexicano.
On appeal, DOJ argued that the plaintiffs lacked a cause of action, based on Grupo Mexicano:
Moreover, Congress’s grant of equity jurisdiction to the federal courts is limited to the relief that “was traditionally accorded by courts of equity,” and thus a “substantial expansion of past practice” is “incompatible with [the courts’] traditionally cautious approach to equitable powers, which leaves . . . to Congress” such policy judgments. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S.308, 318-19, 329 (1999). Given the manifest separation-of-powers concerns here, Congress must decide whether to provide the Committee with the unprecedented right to sue to enforce a congressional subpoena seeking testimony from an individual on matters related to his duties as an Executive Branch official serving as a close advisor to the President.
The D.C. circuit panel agreed with DOJ that the plaintiffs lacked an equitable cause of action:
The Committee next suggests that—even if Article I alone doesn’t provide a cause of action—the court may exercise its “traditional equitable powers” to grant relief. Ziglar , 137 S. Ct. at 1856. But even those equitable powers remain “subject to expr
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