Political Mootness

*Associate Professor, University of Virginia School of Law. For helpful conversations and feedback, I am grateful to Rachel Bayefsky, Danielle Citron, Seth Davis, Amanda Frost, Alison Gocke, Josh Levy, Julia Mahoney, Trevor Morrison, Jim Pfander, Sai Prakash, Rich Schragger, Paul Stephan, and Ari Waldman. This Article also benefitted from feedback at the 2024 Junior Faculty Federal Courts Workshop, Minnesota Public Law Workshop, Northwestern Public Law Colloquium, University of Chicago Public Law and Legal Theory Workshop, UVA Law Faculty Workshop, and Yale Public Law Workshop. Thank you to Anthony Valdez and the Virginia Law Review editorial team, with whom it was a pleasure to work on this Article.Show More

Congress and the executive have engaged in major clashes over the scope of their powers, particularly involving Congress’s subpoena power and power of the purse. In the last two decades, none of these disputes with the government represented on both sides of the “v” has ended in a final judgment on the merits. This Article develops the concept of “political mootness.” As elections take place and the parties in interest to litigation change, cases become politically moot. In the judiciary, political mootness manifests in three ways: legal mootness, separation-of-powers settlements conditional on vacatur of judicial opinions, or executive discretion in intra-branch prosecutions.

But political mootness also affects the coordinate branches. Through a series of original interviews,*** This Article draws in part on interviews conducted by the author with confidential sources. Out of respect to the confidential nature of these interviews, and to preserve promises of anonymity made to sources, the Virginia Law Review did not independently verify the content of these interviews. Representations concerning the substance of these interviews are the sole responsibility of the author.Show More** this Article shows that Congress self-constrains its authority preemptively to avoid litigation. Congress is aware that litigation threatens to drag out disputes beyond its electoral mandate and so pivots to use less than the full scope of its authority. These interviews also reveal a widespread practice of “friendly subpoenas,” requested by putative witnesses for legal, political, or other cover. Although Congress appears to have significant authority, when executive witnesses are truly recalcitrant, that authority is at its lowest potency.

With this broader context for inter-branch conflicts, this Article returns to take on the role of adjudication in those conflicts. Adjudication performs neither law declaration nor dispute resolution when the United States is represented on both sides. Instead, this Article argues, adjudication is a forum for tripartite dialogue about the structural constitution’s boundaries. In this frame, some aspects of political mootness are desirable, but other aspects have entrenched structural disadvantages that Congress faces. This Article offers some proposals to strengthen Congress’s position in disputes with the executive, while taking advantage of some of political mootness’s features.

Introduction

In times of divided government, high-stakes conflicts between the political branches erupt. Sometimes it’s constitutional hardball.¹ 1.Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523 (2004) (naming the phenomenon where “political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings”).Show More Other times, it’s a constitutional showdown.² 2.See generally Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, 991 (2008) (“Showdowns occur between the President and the courts, between Congress and the courts, as well as between the President and Congress. Indeed, some showdowns involve all three branches simultaneously, or threaten to do so.”).Show More And sometimes, it’s constitutional no-ball.³ 3.See Matthew Callahan & Reuben Fischer-Baum, Where the Trump Administration Is Thwarting House Oversight, Wash. Post (Oct. 11, 2019), https://www.washingtonpost.com/gr‌aphics/2019/politics/trump-blocking-congress (cataloguing Trump Administration refusals to comply with congressional subpoenas).Show More Since the George W. Bush Administration, the House has subpoenaed sitting cabinet officials and former White House Counsels; it has investigated a former President’s involvement with a riot on the Capitol; and it has sought to enforce its power of the purse through shutdowns. The executive branch has pushed back, using claims of executive privilege, enforcement discretion, or other tools.⁴ 4.See infra Part I.Show More In some, but importantly not all,⁵ 5.See infra Part II.Show More instances, the House has called on the federal judiciary to back its use of authority. What goes into the decision to initiate litigation? And what function does that litigation serve?

This Article examines the role of adjudication in apex separation-of-powers disputes: cases brought by Congress against the president and intra-branch prosecutions. I argue that these cases become “politically moot” when elections result in unified government and the interested parties to the case change. Political mootness, I will show, is a concept with legal and political dimensions. It has some positive features, but it can also entrench structural disadvantages that burden Congress when it takes on the executive.

The Article is focused on “apex powers” disputes.⁶ 6.See Aziz Z. Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design, 65 UCLA L. Rev. 1506, 1511–14 (2018) (embracing the looseness of the term “apex criminality” to describe offenses committed by high-level officials).Show More This includes a subset of separation-of-powers cases that implicate core constitutional powers: litigation between the political branches as parties and intra-branch prosecutions. I include, for example, when a House committee sues to enforce a subpoena against White House officials.⁷ 7.I exclude suits where government actors are not parties on both sides of the litigation, which would include challenges over whether congressional legislation impermissibly infringes on executive power. I draw this line because federal courts operate differently when adjudicating disputes between branches as parties to litigation. See Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360, 2363, 2365–66 (2023).Show More Critically, this set of cases includes power issues such as congressional subpoena power, the scope of governmental privileges and immunities, and the line between Congress’s appropriations power and the president’s enforcement discretion.

It turns out that in the last two decades, these cases have never reached a final judgment on the merits. As these cases take a protracted path through the judiciary, they do so against the backdrop of election cycles. With time, the parties in interest change. The House moves from Democratic to Republican control or the presidency changes hands. Scholarship has accounted for the ways elections change, for example, the positions that the Justice Department takes in litigation⁸ 8.See, e.g., Cristina M. Rodríguez, The Supreme Court, 2020 Term—Foreword: Regime Change, 135 Harv. L. Rev. 1, 4 (2021); Michael R. Dreeben, Stare Decisis in the Office of the Solicitor General, 130 Yale L.J.F. 541, 552 (2021); Margaret H. Lemos & Deborah A. Widiss, The Solicitor General, Consistency, and Credibility, 100 Notre Dame L. Rev. 621, 623–24 (2025) (examining multiple explanations for the Solicitor General’s changes in positions).Show More or the incentives that elected officials have in initiating or dropping litigation.⁹ 9.Zachary D. Clopton & Katherine Shaw, Public Law Litigation and Electoral Time, 2023 Wis. L. Rev. 1513, 1514.Show More But what about the cases that are already in federal court? How do they end?

Part I documents a concept I call “political mootness.” In the judiciary, political mootness takes three forms. First, and most straightforwardly, some of these cases are rendered legally moot when the parties in control change. The issue in the case is no longer “live,” thus precluding judicial review. For example, in an appropriations challenge, a new president may not continue to spend funds in the way the House alleged was ultra vires.¹⁰ 10.See, e.g., Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021) (vacating as legally moot the dispute over border wall funding initiated by the House during the first Trump Administration); Petition for a Writ of Certiorari at 11, Yellen, 142 S. Ct. 332 (No. 20-1738) (“Following the change in Administration, and consistent with the President’s discretion that ‘no more American taxpayer dollars be diverted to construct a border wall,’ [the Department of Defense] has canceled all border-wall projects and discontinued using any of the challenged funds for any further construction.” (quoting Proclamation No. 10142, 86 Fed. Reg. 7225 (Jan. 27, 2021))).Show More

Second, political mootness comes to fruition when the parties negotiate separation-of-powers settlements. When elections result in a rotation of power that puts the same political party in control of both the House and the White House, they often reach a settlement conditional on universal vacatur of every opinion in the case.¹¹ 11.This has one qualified exception. See infra Section I.B.Show More Although this separation-of-powers settlement has become the dominant resolution in modern apex litigation, this is the first Article to identify its existence and incorporate it into structural constitutional scholarship. It is somewhat surprising that cases that receive so much attention—from litigation over President Obama’s allegedly ultra vires funding of the Affordable Care Act (“ACA”)¹² 12.See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 63 (D.D.C. 2015).Show More to that over former White House Counsel Don McGahn’s categorical refusal to testify before Congress¹³ 13.See Comm. on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 153 (D.D.C. 2019).Show More—still have discoveries to be unearthed. This may be because too often, attention is focused on the Supreme Court (or, more accurately, on anticipation of the Supreme Court’s review). But these cases may never get there. Across cases, buried in dockets, is evidence of a separation-of-powers agreement between the branches of government that leaves much to be uncovered.

Third, political mootness manifests in intra-branch criminal cases. Almost from their inception, the prosecutions of then-former President Trump prompted commentary and anxiety about whether the cases could resolve before the November 2024 election.¹⁴ 14.See, e.g., James D. Zirin, Can Trump Conceivably Beat the Legal Clock—and the Rap?, The Hill (Oct. 9, 2023, 1:30 PM), https://thehill.com/opinion/judiciary/4244738-can-trump-c‌onceivably-beat-the-legal-clock-and-the-rap/ [https://perma.cc/LC75-KFQT] (“The D.C. claim of presidential immunity is unlikely to win dismissal of the case, but it may succeed in delaying his D.C. trial, now scheduled for March 4, to a date known only in Neverland.”); David A. Graham, The Cases Against Trump: A Guide, The Atlantic (Jan. 6, 2025), https://ww‌w.theatlantic.com/ideas/archive/2025/01/donald-trump-legal-cases-charges/675531.Show More Of course, they did not. And upon President Trump’s election, the Special Counsel consulted binding Department of Justice (“DOJ”) policy, which became binding on the courts: a sitting president cannot be prosecuted.¹⁵ 15.1 Jack Smith, Final Report on the Special Counsel’s Investigations and Prosecutions 1 (2025), https://www.justice.gov/storage/Report-of-Special-Counsel-Smith-Volume-1-Januar‌y-2025.pdf [https://perma.cc/3UAE-553F].Show More

Political mootness is borne of a design feature of American democracy: time. In the political branches, time plays a constraining role on authority. Through fixed and regular elections, the Constitution places a time limit on the power of any individual president or member of Congress. But time operates in a different direction (and more indirectly) in the judicial branch. It is not fixed and regular elections that constrain federal judges with life tenure. Instead, one constraining and fundamental feature of our democratic judicial system¹⁶ 16.See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 590 (2005) (“[B]eing a judge within democratic governments ought to entail a set of practices distinct from that of judging in nondemocratic polities.”).Show More is that every party is guaranteed process.¹⁷ 17.U.S. Const. amend. V.Show More But process takes time. When protracted judicial process converges with elections, the result is political mootness. As the parties in interest to litigation change, their political interests no longer align with the legal interests they sought to vindicate.

To understand the role adjudication plays in apex litigation, we must understand what it means for Congress to choose to go to court. Through a series of original interviews with individuals who conducted the investigation for the House Select Committee to Investigate the Attack on the Capitol (“the Committee”), Part II examines their investigatory strategy and legal decision-making.¹⁸ 18.I set out to understand the Select Committee’s investigative and legal decision-making and how, in particular, that decision-making was informed by the timeline of the investigation. I spoke with senior staffers who had worked for the Committee. Some individuals’ roles were exclusively for the Committee, others served broader roles in the House and had the Committee within their portfolios. Most individuals served in a legal capacity. I also spoke with senior staffers with experience in the Senate to understand the similarities and differences between House and Senate investigations and litigation. I recognize that the pool of individuals—generally related to the Committee’s work, serving in a legal role, and willing to speak with me—may suffer from selection bias. Although I used semi-structured interviews, I make no claims about interview design or comprehensiveness. I include them to add some context from congressional decision-makers, a contingent that is not often heard from directly in legal scholarship concerning the separation of powers. Cf. David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 520 n.21 (2013) (using interviews with sources inside the executive branch to add “texture” to an analysis of governmental leaks). I also assured the individuals anonymity.Show More Through these interviews, Part II shows that, first, familiar words like “subpoena” and “contempt” do not have the same meaning within Congress as they do in federal court. Second, there is a widespread use of so-called “friendly subpoenas” in congressional investigations. These are subpoenas that are requested by putative witnesses for legal, political, or social cover. On the outside, these subpoenas look no different from subpoenas of truly recalcitrant witnesses. But this means that the House is not as aggressive with its power as it appears to outside observers. Indeed, Part II further shows that the House self-constrains its authority in part because of the specter of political mootness. These interviews show some evidence of the structural disadvantage the House suffers from in disputes with the executive. They demonstrate the House’s need for an ally to back its use of power. But these interviews also show how recalcitrant witnesses can use courts and legal process (or the mere threat of them) to run out the clock on a congressional investigation.

With this richer understanding of what happens outside, before, and during apex litigation, Part III turns back to political mootness and what it means for the role of adjudication in apex disputes. Focusing on the special problem of separation-of-powers settlements, Part III argues that courts engage in neither law declaration nor dispute resolution when they are called on to adjudicate apex disputes. Rather than dismissing these cases as outside of the judicial role, Part III calls for recasting the role that courts play as a participant in tripartite constitutional dialogue and reframes the legal outputs of these cases in terms of constitutional dialogue. Part IV turns to the normative, arguing that within the frame of dialogue, some aspects of political mootness are desirable. But political mootness is also subject to abuse. Part IV suggests some ways to address its shortcomings, while capitalizing on its advantages.

Structural constitutional scholarship is in need of a conceptual frame and vocabulary to discuss structural constitutional litigation between the three branches of government. That conceptual frame cannot be sheared of its politics. Political mootness is one conceptual structure that helps us better understand the modern fractures, allocations, and distribution of power between our three branches of government.

1. ** This Article draws in part on interviews conducted by the author with confidential sources. Out of respect to the confidential nature of these interviews, and to preserve promises of anonymity made to sources, the Virginia Law Review did not independently verify the content of these interviews. Representations concerning the substance of these interviews are the sole responsibility of the author. ↑
2.  Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523 (2004) (naming the phenomenon where “political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings”). ↑
3.  See generally Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, 991 (2008) (“Showdowns occur between the President and the courts, between Congress and the courts, as well as between the President and Congress. Indeed, some showdowns involve all three branches simultaneously, or threaten to do so.”). ↑
4.  See Matthew Callahan & Reuben Fischer-Baum, Where the Trump Administration Is Thwarting House Oversight, Wash. Post (Oct. 11, 2019), https://www.washingtonpost.com/gr‌aphics/2019/politics/trump-blocking-congress (cataloguing Trump Administration refusals to comply with congressional subpoenas). ↑
5.  See infra Part I. ↑
6.  See infra Part II. ↑
7.  See Aziz Z. Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design, 65 UCLA L. Rev. 1506, 1511–14 (2018) (embracing the looseness of the term “apex criminality” to describe offenses committed by high-level officials). ↑
8.  I exclude suits where government actors are not parties on both sides of the litigation, which would include challenges over whether congressional legislation impermissibly infringes on executive power. I draw this line because federal courts operate differently when adjudicating disputes between branches as parties to litigation. See Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360, 2363, 2365–66 (2023). ↑
9.  See, e.g., Cristina M. Rodríguez, The Supreme Court, 2020 Term—Foreword: Regime Change, 135 Harv. L. Rev. 1, 4 (2021); Michael R. Dreeben, Stare Decisis in the Office of the Solicitor General, 130 Yale L.J.F. 541, 552 (2021); Margaret H. Lemos & Deborah A. Widiss, The Solicitor General, Consistency, and Credibility, 100 Notre Dame L. Rev. 621, 623–24 (2025) (examining multiple explanations for the Solicitor General’s changes in positions). ↑
10.  Zachary D. Clopton & Katherine Shaw, Public Law Litigation and Electoral Time, 2023 Wis. L. Rev. 1513, 1514. ↑
11.  See, e.g., Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021) (vacating as legally moot the dispute over border wall funding initiated by the House during the first Trump Administration); Petition for a Writ of Certiorari at 11, Yellen, 142 S. Ct. 332 (No. 20-1738) (“Following the change in Administration, and consistent with the President’s discretion that ‘no more American taxpayer dollars be diverted to construct a border wall,’ [the Department of Defense] has canceled all border-wall projects and discontinued using any of the challenged funds for any further construction.” (quoting Proclamation No. 10142, 86 Fed. Reg. 7225 (Jan. 27, 2021))). ↑
12.  This has one qualified exception. See infra Section I.B. ↑
13.  See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 63 (D.D.C. 2015). ↑
14.  See Comm. on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 153 (D.D.C. 2019). ↑
15.  See, e.g., James D. Zirin, Can Trump Conceivably Beat the Legal Clock—and the Rap?, The Hill (Oct. 9, 2023, 1:30 PM), https://thehill.com/opinion/judiciary/4244738-can-trump-c‌onceivably-beat-the-legal-clock-and-the-rap/ [https://perma.cc/LC75-KFQT] (“The D.C. claim of presidential immunity is unlikely to win dismissal of the case, but it may succeed in delaying his D.C. trial, now scheduled for March 4, to a date known only in Neverland.”); David A. Graham, The Cases Against Trump: A Guide, The Atlantic (Jan. 6, 2025), https://ww‌w.theatlantic.com/ideas/archive/2025/01/donald-trump-legal-cases-charges/675531. ↑
16.  1 Jack Smith, Final Report on the Special Counsel’s Investigations and Prosecutions 1 (2025), https://www.justice.gov/storage/Report-of-Special-Counsel-Smith-Volume-1-Januar‌y-2025.pdf [https://perma.cc/3UAE-553F]. ↑
17.  See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 590 (2005) (“[B]eing a judge within democratic governments ought to entail a set of practices distinct from that of judging in nondemocratic polities.”). ↑
18.  U.S. Const. amend. V. ↑

19.  I set out to understand the Select Committee’s investigative and legal decision-making and how, in particular, that decision-making was informed by the timeline of the investigation. I spoke with senior staffers who had worked for the Committee. Some individuals’ roles were exclusively for the Committee, others served broader roles in the House and had the Committee within their portfolios. Most individuals served in a legal capacity. I also spoke with senior staffers with experience in the Senate to understand the similarities and differences between House and Senate investigations and litigation. I recognize that the pool of individuals—generally related to the Committee’s work, serving in a legal role, and willing to speak with me—may suffer from selection bias. Although I used semi-structured interviews, I make no claims about interview design or comprehensiveness. I include them to add some context from congressional decision-makers, a contingent that is not often heard from directly in legal scholarship concerning the separation of powers. Cf. David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 520 n.21 (2013) (using interviews with sources inside the executive branch to add “texture” to an analysis of governmental leaks). I also assured the individuals anonymity. ↑