KPWH Government Shutdown Lawsuit Dismissed Under Expanding ‘Political Question Doctrine’
The “political question doctrine” traditionally provided that courts should not get involved in certain kinds of matters that are more appropriately decided by the elected branches of government. The U.S. District Court decisions in a case about the 2018/2019 government shutdown, brought by Kator, Parks, Weiser & Harris, PLLC, demonstrate an expanding definition of the doctrine. The lawsuit about the shutdown was dismissed under an expanding political question doctrine, which seeks to avoid any matter that might have any implications for matters of partisan politics.
Kator, Parks, Weiser & Harris, PLLC, filed a lawsuit in U.S. District Court on behalf of four federal employees who were required to work without pay during the 35-day government shutdown during December 2018 to January 2019. The suit alleged, among other things, that the government requiring employees to work without pay under threat of discipline or removal violated the Thirteenth Amendment prohibition against involuntary servitude, and that limiting employees’ rights to seek outside work unconstitutionally violated their Fifth Amendment protections for individual liberty and property.
The Federal District Court denied a motion for an emergency temporary restraining order, making clear in its Order that “the Judiciary is not just another source of leverage to be tapped in the ongoing internal squabble between the political branches.” When the Government moved to dismiss the claims as moot after funding was restored and the government re-opened, it argued that if the Court decided the claims, “it would require this Court to effectively place itself in the middle of a political dispute—namely, a dispute over the federal budgetary process, and how the government should operate when that budgetary process fails.” The Court agreed, holding that judicial restraint is advised “where the underlying dispute arises from a budgetary dispute involving ‘complex political choices.’” The Court sought to avoid involvement in a matter that might affect the politics of decision making between the Congress and the President.
Throughout the litigation of the shutdown case, the Government warned the Court against intervening in a “squabble” between the two political branches. Despite the constitutional harms alleged, the Court agreed, and shied away from claims that sought resolution of constitutional questions that resulted in real harm to the claimants. The questions before the Court were not about who should win in a budget battle between the two ends of Pennsylvania Avenue—the questions were about what constitutional rights are afforded federal employees and how those rights should be respected during a lapse in appropriations.
This may happen again in the three cases before the United State Supreme Court regarding President Trump’s financial records. In the cases of Trump v. Mazars, Trump v. Deutsche Bank, and Trump v. Vance, President Trump has fought tooth and nail to immunize himself from congressional oversight seeking financial records, and prevent a New York prosecutor’s investigation into alleged criminal activity by the Trump Organization. The defendants in the Mazars and Deutsche Bank cases are set to produce Trump financial records in response to Congressional subpoenas. In Vance, President Trump seeks to avoid prosecution, and the attendant subpoenas seeking financial documents.
These cases present very important foundational questions about the presidency, certainly requiring a constitutional interpretation: should the presidency come with nearly total legal immunity from prosecution or oversight for the incumbent?
In this instance, if the Supreme Court decides to defer to lower court decisions, it would mean President Trump loses, because the Mazars and Deutsche Bank defendants would then be required to produce Trump’s financial records. Likewise, the New York state prosecution could continue with its efforts to secure his financial records. This would mean the Trump Administration’s broad assertions of total immunity from prosecution and oversight are not to be ratified at this point.
