There Is No Equitable Constitutional Cause Of Action To Challenge The Presidential Record Act Policy

Last month, I wrote about the Office of Legal Counsel’s opinion finding that the Presidential Records Act was inconsistent with Trump v. Mazars. Somewhat remarkably, several writers have attacked the opinion, but minimize, or even ignore, Mazars.

The American Historical Association filed suit, arguing that it is injured because at some point in the future, it will not be able to access certain presidential documents. Federal district court Judge Bates has found the new policy is likely unconstitutional. You know things are going south when the first sentence is a quote from 1984.

Again, even more remarkably, the court finds that Mazars has little bearing on the case.

Mazars is even less on point. There, the Supreme Court only concluded that the legislative subpoenas in question implicated the separation of powers, without determining how each factor panned out. And Mazars involved Congress’s implied investigative powers; it focused on the lack of authority to issue legislative subpoenas without any discernable legislative purpose. That discussion is not relevant here because Congress has independent, enumerated authority to enact the Records Act under the Property Clause and the Necessary and Proper Clause, without relying on any implied authority.

Mazars was a delicate compromise by the Supreme Court, with a different composition at a different time. I suspect that even the Chief will not be pleased with how his ruling is being cast aside.

Lets put aside the merits for now. The plaintiffs have no equitable constitutional cause of action. Yet Judge Bates finds a cause of action on two grounds.

First, the court invokes Youngstown:

Most importantly here, plaintiffs likely have an equitable constitutional cause of action 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 “[w]hen 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 icing on the cake, the government itself argues that the President has “conclusive and preclusive” power over presidential records, squarely placing this case within the Youngstown framework.

This analysis completely misunderstands 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 created a traditional cause of action. The court here conflates the merits analysis (“conclusive and preclusive”) with the threshold question of whether there is a cause of action that was recognized in 1787. Seth Barrett Tillman and I discuss this issue in our article on causes of action:

In Youngstown, the mill owners did not assert a free-floating equitable cause of action to challenge Secretary Sawyer’s illegal seizure. Rather, the mill owners’ brief explained that their cause of action was based on resolving “a simple cloud on title” of the mills.307 The cause of action to resolve a cloud on title, the mill owners argued, “has always moved equity to grant relief because no other remedy is complete or adequate.”308 The mill owners 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 Youngstown was decided half a century before Grupo Mexicano. Still, the mill owners used a Grupo Mexicano-like framework to establish equitable jurisdic-tion. They demonstrated that their cause of action was “analogous” to an equita-ble cause of action that would have been recognized by the High Court of Chancery in 1789.310 The government seized the mill owners’ property. That sei-zure, much like a taking or temporary taking, nullified their property rights. The plaintiffs did not rely on a generalized allegation of ultra vires conduct by the Secretary of Commerce; instead, they relied on a cause of action to quiet title— their title to their property. Here too, Youngstown was in the heartland of histori-cal equity jurisdiction involving disputed property rights.

Youngstown is completely inapposite. The government is not regulating any property the plaintiffs currently have. At most, they are asserting some future interest in property. The Plaintiffs fail to identify any analogous equitable cause of action.

Judge Bates invokes a second ground for an equitable cause of action: Armstrong v. Exceptional Child Center.

For similar reasons, plaintiffs likely also have an equitable cause of action under Armstrong v. Exceptional Child Center. There, the Supreme Court observed 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). As a result, where a statute implicitly precludes review, plaintiffs cannot circumvent that preclusion by relying on equity. Id . . . Here, in contrast, Armstrong I and Armstrong v. EOP, 1 F.3d 1274, 1294 (D.C. Cir. 1993) (Armstrong II), establish that certain kinds of review involving the Records Act are implicitly precluded by the statutory scheme while others are not.

It is remarkable that civil rights groups have been citing this case for more than a decade, even though the Court found there was no cause of action. Every single case that cites Armstrong has to distinguish the precedent.

In recent years, the Court has clawed back on implied and equitable causes of action. Should this case ever make it to the Supreme Court, I would predict five solid votes to find there is no cause of action, and in the process reject these free-floating claims based on perversions of Youngstown and Armstrong.