Payvand Ahdout (University of Virginia School of Law) has posted Political Mootness (111 Va. L. Rev. 841 (2025)) on SSRN. Here is the abstract:
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 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.
Highly recommended.