Saturday, October 5, 2019

GateHouse: Congress’ unprecedented reliance on the courts

Matthew T. Mangino
GateHouse Media
October 4, 2019
For years Congress and state legislatures across the country have complained about litigiousness. Blasting lawyers for filing lawsuits on a whim just to generate a fee. Legislators on a state and federal level have sought to limit lawsuits alleging personal injury, medical malpractice and products liability.
Lawmakers lament questionable lawsuits that “compromise access to affordable health care, punish consumers by raising the cost of goods and services, chill innovation, and undermine the notion of personal responsibility.”
Yet, the House of Representatives has already become a party to nine separate lawsuits this year, while also filing briefs in support of a handful of other suits. More lawsuits are sure to come as the White House vows not to cooperate with the impeachment inquiry.
According to the New York Times, eight months into the 116th Congress, “the Democrat controlled House is going to court at a tempo never seen before.”
The increase in the litigiousness of Congress is not just a Democrat problem. In 2011, a Republican-led House filed suit to uphold the Defense of Marriage Act, that banned federal recognition of same-sex marriage.
Republican leaders had the opportunity to bring the issue straight to the American people by introducing a resolution on the House floor and allowing members to articulate their support for the Act. Instead they filed suit.
In 2014, the Republican controlled House filed suit over how the Obama administration was implementing the Affordable Care Act. This year, the Trump Administration has refused to defend the Affordable Care Act. In its place, the House has intervened and provided lawyers to argue against the challenge.
Where do the House lawyers come from?
In 1976, House Speaker Tip O’Neill sought to create a House counsel’s office. With O’Neill’s support the office became, as suggested by Tara Leigh Grove in the William & Mary Law Review, “in effect, ... the attorney general of the House.” Grove went on to write, “although the rule states that the House counsel should act ‘without regard to political affiliation,’ and that the Speaker ‘shall consult’ with both the majority and the minority party leaders the counsel’s role has largely been defined by the Speaker.’”
The partisan nature of the House Counsel’s Office explains how Congress, on one hand, could object to the implementation of the Affordable Care Act and, five years later, defended the Act against a legal challenge.
While this unprecedented wave of litigiousness preoccupies House members - right and left - Congress has the audacity to continue to consider legislation to curtail the ability of injured and mistreated individuals from seeking redress.
The House is considering legislation to cap noneconomic damages from a lawsuit at $250,000 and place limits on contingency fees that lawyers can charge in medical malpractice cases.
Federal lawmakers are also considering a measure that would require judges to impose monetary sanctions to reimburse the winning party for reasonable attorney fees and litigation costs attributable to a “frivolous” claim. Both bills will have a chilling effect on individuals pursuing potential claims.
What happens if the White House or other member of the president’s cabinet defy congressional subpoenas? The body that abhors abuse of litigation will, of course, file a lawsuit. Where will that litigation lead?
Charlie Savage, who has written about issues of congressional litigation for the New York Times, said recently, “If the House filed a lawsuit for the (subpoenaed) documents, it will join a long list of disputes that are slowly winding their way through the judicial system. It is not likely, therefore, that Congress will obtain these files anytime soon, if ever.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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