Photo: Alex Wong / Staff

Democrats in the House lost an appeal to force former White House counsel Don McGahn to comply with a subpoena, Politico was the first to report.

Why it matters: McGahn was seen as a crucial witness in the House investigation into whether President Trump tried to obstruct the Mueller inquiry into Russian interference in the 2016 presidential election . The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 on Friday that it did not have the authority to resolve the dispute between the executive and legislative branches.

The state of play: The decision overturns a district court ruling in November that compelled McGahn to testify before the House Judiciary Committee. But the Justice Department appealed that ruling and won in the higher court Friday.

Judge Thomas Griffith, in his majority opinion, cautioned that imposing the committee’s subpoena would amount to overreach by "unelected judges" — and risk politicizing the judicial branch.

“The Committee’s suit asks us to settle a dispute that we have no authority to resolve. The Constitution does not vest federal courts with some ‘amorphous general supervision of the operations of government,’”
"If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual 'overseer[s]' of our elected officials. That is not the role of judges in our democracy, and that is why Article III compels us to dismiss this case,"
— Judge Thomas Griffith in the majority opinion

Judge Judith Rogers, a Bill Clinton appointee, was the lone dissenter, arguing the majority's finding could set precedent for presidents to block oversight requests from the legislative branch with impunity.

What they're saying: “We are extremely pleased with today’s historic ruling from the D.C. Circuit recognizing that the House of Representatives cannot invoke the power of the courts in its political disputes with the Executive Branch," said Justice Department spokeswoman Brianna Herlihy.

"I strongly disagree with today's split decision. It is fundamentally hostile to reason and precedent, as the dissent recognized. If upheld, it would destroy the power of Congress to gather information and hold this or any future administration accountable ... Now more than ever, the courts cannot abandon their responsibility to resolve legal disputes involving the President. The Judiciary Committee will work in the coming days with House leadership and the Office of the General Counsel to pursue further review and to seek rehearing en banc before the full D.C. Circuit."
— House Judiciary Committee Chairman Jerry Nadler, in a statement

What's next: The ruling could still face additional appeals, including to the Supreme Court, per CNN.

Go deeper

Democrats' mail voting pivot

Illustration: Sarah Grillo/Axios

Democrats spent the early months of the coronavirus pandemic urging their base to vote absentee. But as threats of U.S. Postal Service delays, Team Trump litigation and higher ballot rejection rates become clearer, many are pivoting to promote more in-person voting as well.

Why it matters: Democrats are exponentially more likely to vote by mail than Republicans this year — and if enough mail-in ballots are lost, rejected on a technicality or undercounted, it could change the outcome of the presidential election or other key races.

New interactive tool shows Biden's mail voting danger

Data: SurveyMonkey; Chart: Danielle Alberti/Axios

Voters who disapprove of President Trump most strongly are by far the most likely to vote by mail in the presidential election, according to an Axios analysis of exclusive data from SurveyMonkey and Tableau.

Why it matters: The new data shows just how strongly the mail-in vote is likely to favor Joe Biden — with potentially enormous implications in the swing states due to the greater risk of rejection with mail ballots.

Caitlin Owens, author of Vitals
48 mins ago - Health

Reopening the ACA debate is politically risky for GOP

Data: Kaiser Family Foundation, The Cook Political Report; Notes: Those losing insurance includes 2020 ACA marketplace enrollment and 2019 Medicaid expansion enrollment among newly-eligible enrollees. Close races are those defined as "Toss up" or "Lean R/D"; Table: Andrew Witherspoon/Axios

The sudden uncertainty surrounding the future of the Affordable Care Act could be an enormous political liability for Republicans in key states come November.

Between the lines: Millions of people in crucial presidential and Senate battlegrounds would lose their health care coverage if the Supreme Court strikes down the law, as the Trump administration is urging it to.

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