By Marisa Taylor | McClatchy Newspapers

WASHINGTON — A federal appeals court is mulling whether it has the authority to step into a constitutional battle between Congress and the White House over legislative subpoena power.

Late Thursday, the U.S. Court of Appeals for the District of Columbia Circuit, in response to a Justice Department request, ordered lawyers for the House of Representatives and the White House to brief the appeals court by 4 p.m. Wednesday on whether it has jurisdiction to delay a lower court's order that former White House counsel Harriet Miers must appear before Congress to testify about the firing of nine U.S. attorneys in 2006.

In late July, U.S. District Judge John Bates ruled that Miers did not have the right to ignore a subpoena from Congress, but that she could cite executive privilege and refuse to answer specific questions once she was before a congressional committee. Congress has ordered Miers to appear Thursday.

Bates' 93-page ruling was seen as a significant setback for the administration, which had asserted a broad executive privilege claim that would have protected Miers from making an appearance.

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