U.S. Supreme Court building in Washington, D.C. (Photo: Diego M. Radzinschi / ALM)

The U.S. Supreme Court asked the U.S. House of Representatives, President Donald Trump's private attorneys and the solicitor general to brief the justices on the "political question" doctrine in relation to cases on subpoenas for the president's tax documents, suggesting the justices could find they can't rule on the cases.

In an order Monday, the justices asked the parties and Solicitor General Noel Francisco "to file supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court's adjudication of these cases."

The cases are tied to congressional subpoenas issued to the financial institutions Mazars, Deutsche Bank and Capital One for Trump's tax records. The justices are set to hear phone arguments in those cases, as well as another on a similar subpoena from the Manhattan district attorney, on May 12. The court hasn't requested supplemental briefing for the Manhattan case.

This is not the first time the justices have shown concerns over the justiciability of cases: The Supreme Court last year ruled 5-4, along partisan lines, that partisan gerrymandering cases cannot be resolved by federal courts. Chief Justice John Roberts wrote in the majority opinion the cases "present political questions beyond the reach of the federal courts."

The political question doctrine generally bars courts from ruling on matters that should be resolved by one of the political branches, or have outcomes that cannot be enforced by courts. Neither the panels on the U.S. Court of Appeals for the D.C. Circuit nor the Second Circuit explicitly discussed the political question doctrine in their opinions on the Trump subpoenas, which both went in favor of the House.

The House has historically gone to court to enforce congressional subpoenas and judges presiding over the Trump subpoena cases have recognized that precedent. But those judges have also shied away from ruling on the political motivations of Congress, as Trump's lawyers at Consovoy McCarthy argue that lawmakers lacked a "legitimate legislative purpose" in issuing the subpoenas and instead have a political agenda.

For example, in his opinion last year upholding the House subpoena for Trump's Mazars records, U.S. District Judge Amit Mehta wrote of lawmakers' motivations: "These are facially valid legislative purposes, and it is not for the court to question whether the committee's actions are truly motivated by political considerations."

In a post for JustSecurity last year, former Obama White House lawyer Andy Wright, now a partner with K&L Gates, predicted the political question doctrine could be raised by the congressional subpoena cases.

"An obligation to avoid judicial evaluations of inherently discretionary political choices made by Congress and the president will run headlong into an executive privilege doctrine that calls for courts to do just that," Wright wrote at the time.

Justice Department lawyers have repeatedly argued to judges that disputes over congressional subpoenas do not belong in court.

The nonjusticiability of House lawsuits against the executive branch was recently raised by Republican-appointed judges sitting on the U.S. Court of Appeals for the D.C. Circuit, over a subpoena issued by the House for testimony by former White House counsel Donald McGahn. 

In a majority opinion authored by Judge Thomas Griffith, a former Senate legal counsel appointed by President George W. Bush, the panel ruled 2-1 that the House lacked Article III standing to seek judicial enforcement of the subpoena. Judge Karen LeCraft Henderson, a George H.W. Bush appointee, joined Griffith's finding, while Judge Judith Rogers, a Clinton appointee, dissented.

The D.C. Circuit granted an en banc rehearing of the case—as well as one on the House's challenge to Trump's diversion of military funds for border wall construction—and will hear those arguments on Tuesday. Trump's two appointees to the circuit, Judges Gregory Katsas and Neomi Rao, are not sitting on the panel, meaning Henderson and Griffith will be the only two GOP-tapped judges hearing the case. 

The Supreme Court briefs will not be the first time the Department of Justice will weigh in on these tax subpoena cases, as both the Second and D.C. Circuits asked the Trump administration to file briefs in the lawsuits. In both circuits, DOJ lawyers sided with Trump's personal attorneys.

"It is imperative that the House—or at the very least the committee—provide a clearer and more particular statement of the potential legislative measures for which the subpoenaed materials are pertinent and necessary," the Justice Department told the D.C. Circuit last year in the Mazars case.

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