Congressional Subpoena Power

[dilloduck]

Where exactly do they derive it from and who is in charge of enforcing their subpoena? Are we looking at a gap that the constitution doesn't cover?

 

[Annie]

Series of court cases and reviews:

http://www.usdoj.gov/olc/sine.htm

... The Constitution vests all legislative authority in Congress. U.S. Const., art. I, § 1. Although the Constitution does not expressly authorize Congress to issue subpoenas, the Supreme Court has stated that the authority to subpoena is an "indispensable ingredient" of Congress' legislative power. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 505 (1975). In McGrain v. Daugherty, 273 U.S. 135, 174 (1927), the Court declared that "the power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function." According to the Court:


A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information-which not infrequently is true-recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.

Id. at 175. Similarly, in Eastland, the Court said:


The power to investigate and to do so through compulsory process plainly falls within [the definition of Congress' legislative function]. This Court has often noted that the power to investigate is inherent in the power to make laws.

Eastland, 421 U.S. at 504.2

This understanding--that Congress' subpoena power inheres in and is ancillary to its power to legislate--leads logically to the conclusion that the legal obligation to comply with a congressional subpoena lapses upon the cessation of Congress' authority to legislate. Just as an adjournment sine die results in the death of all pending legislation, see Floyd M. Riddick, The United States Congress: Organization and Procedure 56 (1949), making passage and presentment to the President impossible, see U.S. Const. art. I, §§ 1, 7; The Pocket Veto Case, 279 U.S. 655, 681 (1929) (final adjournment of Congress "terminates the legislative existence of the Congress"), so too must it result in the cessation of the auxiliary power to compel witnesses to present testimony or information via subpoena. It follows that congressional subpoenas issued after an adjournment sine die but prior to the beginning of a new Congress have no legal effect.


The limitations the Court has placed upon Congress' use of its inherent authority to deal with contempts provide additional support for the view that congressional subpoenas issued after an adjournment sine die have no legal effect. The Court has held that Congress has implicit authority under the Constitution to deal with a contempt of its authority. See Anderson v. Dunn, 19 U.S. 204, 226-30 (1821). This power stems, according to the Court, from Congress' inherent authority to preserve its constitutionally-derived legislative power. See id.; Marshall v. Gordon, 243 U.S. 521, 541 (1917) ("n virtue of the grant of legislative authority there [is] a power implied to deal with contempt in so far as that authority [is] necessary to preserve and carry out the legislative authority given.").

The Court has made clear, however, that there are limits to Congress' use of this power. First, such power "rests only upon the right of self-preservation; that is, the right to prevent acts which, in and of themselves, inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is an inherent legislative power to compel in order that legislative functions may be performed." Id. at 542.3 Second, even where Congress properly exercises its authority to deal with a contempt, the punishment must cease upon the adjournment of Congress:


[T]he existence of the power that imprisons is indispensable to its continuance; and although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjournment or periodic dissolution. It follows, that imprisonment must terminate with that adjournment."

Anderson, 19 U.S. at 231 (emphasis added); accord, Marshall, 243 U.S. at 542 (Congress' contempt power, "even when applied to subjects which justified its exercise, is limited to imprisonment, and such imprisonment may not be extended beyond the session of the body in which the contempt occurred."). These limitations, which the Court concluded were justified in view of the nature of the authority upon which Congress' contempt power is based (i.e., self-preservation of legislative authority), see Anderson, 19 U.S. at 230-31,(4) provide additional support for the conclusion that Congress lacks the power of compulsory process after a sine die adjournment...

 

[dilloduck]

Series of court cases and reviews:

http://www.usdoj.gov/olc/sine.htm

Thanks--seems like basically the courts gave congress some power originally delegated to them by the constitution.
Interesting--Is the Attorney General the enforcer of this subpoena or the congressional Sgt. at Arms maybe?

 

[William Joyce]

Excellent question. The answer is that the Dept. of Justice -- i.e., the executive branch -- would enforce the subpoena. If a Congressional subpoena were ignored, Congress would sponsor a resolution or ad hoc piece of legislation empowering the DOJ or the U.S. Attorney to go get 'em. This information, I got by calling the House Government Reform Committee.

But you're right --- subpoena power is generally a mix of judicial and executive power. The judge signs the subpoena, and if it's ignored, sends the sheriff to go drag you out of bed. Legislative bodies like Congress are mostly "dead" branches, i.e., they don't have guys with guns. They just have rule-making power. The founders liked the idea of separating these roles, and Congressional subpoenas do create Constitutional fuzzy areas.

All of which is made even stupider when Congress subpoenas baseball players.

 

[USViking]

During the Senate Watergate hearings the White House said it might have presidential legal counsellor John Dean refuse to obey a Senate subpoena,
and the chairman of the commitee said the Sergeant at Arms would in that case be sent to White House to arrest Mr. Dean.

A serious constitutional crisis would have ensued. Fortunately the administration gave in, although Dean's testimony may not have been entirely forthcoming.

 

[Houston Allred]

William Joyce attempts to answer the question "Who acts for Congress when a Congressional subpoena is issued?" with "The answer is that the Dept. of Justice -- i.e., the executive branch -- would enforce the subpoena. If a Congressional subpoena were ignored, Congress would sponsor a resolution or ad hoc piece of legislation empowering the DOJ or the U.S. Attorney to go get 'em. This information, I got by calling the House Government Reform Committee." What about the U.S. House of Representatives Sergeant-at-arms? Who on the House Government Reform Committee gave Joyce that info?

 

[William Joyce]

The dude who answered the phone.

I also have an aged e-mail from my Con Law prof saying basically the same thing.

I would LOVE, LOVE, LOVE to have a client walk in and want to challenge a Congressional subpoena. I'd take that bee-hotch to the Supreme Court. But, I do insurance defense, so, fat chance!

 

[OohPooPahDoo]

What a current topic!

 

[LAfrique]

Series of court cases and reviews:

MEMORANDUM FOR JANET RENO ATTORNEY GENERAL

Thanks--seems like basically the courts gave congress some power originally delegated to them by the constitution.
Interesting--Is the Attorney General the enforcer of this subpoena or the congressional Sgt. at Arms maybe?

When it comes to those thugs in Washington DC, they will not hesitate to create some national military czar to execute whatever they assume needed in the name of homeland security.

 

[Sherry]

Hey, I miss dillo.