In re: Don McGahn
3-judge panel ruling and rehearing en banc
### 3\-judge panel ruling and rehearing en banc

On February 28, 2020, a divided panel of the [United States Court of Appeals for the District of Columbia Circuit](/wiki/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit "United States Court of Appeals for the District of Columbia Circuit") vacated the district court's judgment and ordered the House's lawsuit dismissed. Circuit Judge [Thomas B. Griffith](/wiki/Thomas_B._Griffith "Thomas B. Griffith"), joined by Circuit Judge [Karen LeCraft Henderson](/wiki/Karen_LeCraft_Henderson "Karen LeCraft Henderson"), determined that the [separation of powers under the United States Constitution](/wiki/Separation_of_powers_under_the_United_States_Constitution "Separation of powers under the United States Constitution") does not allow Congress to use the Courts to force Executive officials to testify. Judge Henderson wrote a concurrence in which she argued the House simply did not have [standing to sue](/wiki/Standing_%28law%29 "Standing (law)") in this instance. Judge [Judith W. Rogers](/wiki/Judith_W._Rogers "Judith W. Rogers") wrote a dissent. On March 13, 2020, the D.C. Court of Appeals granted an appeal for an en banc hearing and vacated the February 28, 2020 decision. The en banc hearing occurred on April 28, 2020\. On August 7, 2020, the full nine judge panel for the US Court of Appeals for the District of Columbia Circuit ruled 7–2 that the House of Representatives could sue to subpoena McGahn. However, on August 31, the appeals court ruled 2–1 that Congress had never passed a law empowering the House of Representatives to sue to enforce a subpoena, and that, until such a law exists, the House cannot sue for this purpose and therefore has no mechanism to force McGahn's compliance.


Does the separation of powers under the US Constitution allow Congress to sue in this instance?