The Supreme Court must bring clarity to this issue.
Last month I discussed the Office of Legal Counsel’s view that the Presidential Records Act clashes with the ruling in Trump v. Mazars. Quite strikingly, a number of writers criticized the view while downplaying, or even ignoring, Mazars.
The American Historical Association has filed suit, contending that it will suffer harm because, at some point in the future, access to certain presidential records could be blocked. U.S. District Judge Bates has concluded that the new policy is probably unconstitutional. It’s a bad sign when the opening sentence is a quotation from 1984.
Once again, it is even more striking that the court regards Mazars as largely irrelevant to the case.
Mazars is even less on point. In that decision, the Supreme Court merely held that the legislative subpoenas at issue touched on the separation of powers, without deciding how each factor would ultimately resolve. And Mazars dealt with Congress’s implied investigative powers; it emphasized the absence of authority to issue subpoenas without any discernible legislative purpose. That line of reasoning does not apply here, because Congress possesses independent, enumerated authority to enact the Records Act under the Property Clause and the Necessary and Proper Clause, without depending on any implied authority.
Mazars represented a careful compromise by the Supreme Court, crafted under a different lineup and at a different moment. I doubt the Chief Justice would be pleased with the way his decision is being discounted.
Let us set the merits aside for the moment. The plaintiffs do not have any equitable constitutional cause of action. Yet Judge Bates identifies a basis for relief on two grounds.
First, the court leans on Youngstown:
Most importantly here, the plaintiffs likely possess an equitable constitutional claim under Youngstown (Historian-Oversight Count I and Press-CREW Count IV) … In other words, and as in Youngstown, this case “involve[s] the conceded absence of any statutory authority, not a claim that the President acted in excess of such authority.” Dalton, 511 U.S. at 473. And “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution.” Id. at 638. As an added factor, the government itself contends that the President has “conclusive and preclusive” power over presidential records, placing this case squarely within the Youngstown framework.
This analysis completely misses why there was a cause of action in Youngstown. In the Steel Seizure case, the government seized the plaintiffs’ property. That control of private property gave rise to a traditional cause of action. The court here confuses the merits discussion (“conclusive and preclusive”) with the threshold question of whether a cause of action existed at the time of the Constitution. Seth Barrett Tillman and I explore this issue in our article on causes of action:
In Youngstown, the mill owners did not claim a free-floating equitable cause of action to challenge Secretary Sawyer’s unlawful seizure. Rather, their brief argued that their action rested on clearing “a simple cloud on title” of the mills.307 The corresponding remedy to quiet title—relieving the cloud—was, they argued, a classic equitable relief because no other remedy would suffice.308 They contended that “[t]he seizure of the properties and business of the plaintiffs, with its host of uncertainties and legal and practical problems arising from the ambiguous position in which the owners are left, should appeal to equity at least as strongly as a cloud on title.”309 Though decided more than fifty years before Grupo Mexicano, the mill owners pursued a framework akin to an equitable justification recognizable by the Court of Chancery in 1789.310 The government seized the mill owners’ property. That seizure, akin to a taking or temporary taking, nullified their property rights. The plaintiffs relied not on a broad claim of ultra vires misconduct by the Secretary of Commerce; instead, they sought equitable relief to quiet their title to the property. Here again, Youngstown lies at the core of historical equity jurisdiction over contested property rights.
Youngstown is entirely inapt. The government is not regulating any property the plaintiffs currently hold. At most, they assert a future interest in property. The plaintiffs fail to identify a comparable equitable cause of action.
Judge Bates also advances a second basis for an equitable action: Armstrong v. Exceptional Child Center.
For similar reasons, the plaintiffs likely also have an equitable claim under Armstrong v. Exceptional Child Center. There, the Supreme Court noted that the “power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations.” 575 U.S. at 327 (quotation omitted). Consequently, when a statute implicitly blocks review, plaintiffs cannot circumvent that bar by invoking equity. Id. … Here, by contrast, Armstrong I and Armstrong v. EOP, 1 F.3d 1274, 1294 (D.C. Cir. 1993) (Armstrong II), establish that certain forms of review under the Records Act are implicitly precluded by the statutory framework, while others are not.
It’s remarkable that civil rights groups have cited this case for more than a decade, even though the Court found there was no viable cause of action. Every single case that cites Armstrong must distinguish that precedent.
In recent years, the Court has begun to roll back on implied and equitable causes of action. If this matter ever reaches the Supreme Court, I would expect five votes to conclude that no cause of action exists, and, in the process, to repudiate these floating claims built on strained interpretations of Youngstown and Armstrong.
