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Senate Republicans Are Helping Congress Lose Its Power of Checks and Balances Over the Executive Branch
The ideals of Founding Fathers, which conservatives consistently claim to defend (but don’t), included provisions in the Constitution that provide “checks and balances” between the three branches of government.
Over the past five or six decades the super-rich and Big Business spent many millions of dollars buying more and more influence in the federal, state, and local governments. But there has never been more danger to the rule of law and the system of checks and balances at the federal level than that being created by the current administration, with plenty of help from Senate Republicans.
Recently, the U.S. Court of Appeals for the DC Circuit heard arguments in a case exposing the efforts by the executive branch to curtail congressional oversight.
Also at issue is whether Congress can use the courts to enforce its subpoenas at all.
The Committee on the Judiciary v. McGahn, involves the ability of Congress to oversee actions taken by the executive branch. In particular the case deals with the House Judiciary Committee’s failure to bring former White House Counsel Don McGahn before its members to testify. The Justice Department stepped in and simply excused McGahn.
McGahn refused to appear before the Judiciary Committee after receiving a congressional subpoena that ordered him to testify. He asserted a lifetime immunity from testifying before Congress claim due to his status as a former presidential adviser. The committee then sued to force McGahn to obey the subpoena, and the district court rightly ordered him to appear, rejecting the notion of McGahn’s claim of immunity. However, on appeal, a three-judge panel of the DC Circuit unexpectedly threw out the case, arguing that the federal judiciary doesn’t have the power to weigh in on disputes between Congress and the executive branch.
But the specific claim in this case, whether presidential advisers are immune from congressional subpoenas, dates back to 1971.
Sadly, the Founders did not foresee the evolution and complexity that would exist in the executive branch as the centuries wore on, so failed to address testimonial immunity for presidential advisers when the Constitution was written. Adding to the vacuum in the law, there is no Supreme Court precedent.
So, to decide this issue, courts have relied on the information contained in a memo regarding presidential advisers’ immunity from congressional subpoenas, written in 1971 by the Justice Department’s Office of Legal Counsel. This organization is a small team of lawyers that interprets legal issues for the executive branch.
When the office first came up with its notion that presidential advisers are immune from congressional subpoenas, it described its conclusions as “necessarily tentative and sketchy”.
Over the decades, that team of lawyers based every updated opinion they issued on the subject on that original memo, the members’ confidence in the totality of immunity for presidential advisers grew, while the “necessarily tentative and sketchy” part of the original memo conveniently disappeared.
Unfortunately, for congress and the American people, the three-judge panel of the DC Circuit that threw out the Committee on the Judiciary v. McGahn case, also helps further entrench a decades-long campaign by the executive branch to cut off congressional oversight and make it harder, and in some cases essentially impossible, for Congress to get the information it needs to fulfill its constitutional duties.
The Committee on the Judiciary v. McGahn case could very well be the last chance in the decades-long battled to maintain congressional oversight of the executive branch. The DC Circuit must reaffirm the role of the judiciary in defining the separation of powers and prevent future instances of the executive branch keeping vital information from Congress and the public.
Congress’s power to investigate comes from the Constitution itself, something the Supreme Court has recognized for over a century. Courts must not be permitted to base any decision to defeat checks and balances on a brief memo concocted by a handful of federally employed lawyers. Congress must retain power to enforce a congressional subpoena, even against an executive branch official, Republican or Democrat.
Since the impeached president trump and his lies became the beacon that guides the thoughts of conservatives, it is a complete waste of time to return to one’s thread only to read the mindless prattle the conservatives spew when responding. Now, it’s post the OP, then move on and never look back.
Judiciary Committee says McGahn ruling leaves only extreme options — such as arrests — to get White House info
.
Senate Republicans Are Helping Congress Lose Its Power of Checks and Balances Over the Executive Branch
The ideals of Founding Fathers, which conservatives consistently claim to defend (but don’t), included provisions in the Constitution that provide “checks and balances” between the three branches of government.
Over the past five or six decades the super-rich and Big Business spent many millions of dollars buying more and more influence in the federal, state, and local governments. But there has never been more danger to the rule of law and the system of checks and balances at the federal level than that being created by the current administration, with plenty of help from Senate Republicans.
Recently, the U.S. Court of Appeals for the DC Circuit heard arguments in a case exposing the efforts by the executive branch to curtail congressional oversight.
Also at issue is whether Congress can use the courts to enforce its subpoenas at all.
The Committee on the Judiciary v. McGahn, involves the ability of Congress to oversee actions taken by the executive branch. In particular the case deals with the House Judiciary Committee’s failure to bring former White House Counsel Don McGahn before its members to testify. The Justice Department stepped in and simply excused McGahn.
McGahn refused to appear before the Judiciary Committee after receiving a congressional subpoena that ordered him to testify. He asserted a lifetime immunity from testifying before Congress claim due to his status as a former presidential adviser. The committee then sued to force McGahn to obey the subpoena, and the district court rightly ordered him to appear, rejecting the notion of McGahn’s claim of immunity. However, on appeal, a three-judge panel of the DC Circuit unexpectedly threw out the case, arguing that the federal judiciary doesn’t have the power to weigh in on disputes between Congress and the executive branch.
But the specific claim in this case, whether presidential advisers are immune from congressional subpoenas, dates back to 1971.
Sadly, the Founders did not foresee the evolution and complexity that would exist in the executive branch as the centuries wore on, so failed to address testimonial immunity for presidential advisers when the Constitution was written. Adding to the vacuum in the law, there is no Supreme Court precedent.
So, to decide this issue, courts have relied on the information contained in a memo regarding presidential advisers’ immunity from congressional subpoenas, written in 1971 by the Justice Department’s Office of Legal Counsel. This organization is a small team of lawyers that interprets legal issues for the executive branch.
When the office first came up with its notion that presidential advisers are immune from congressional subpoenas, it described its conclusions as “necessarily tentative and sketchy”.
Over the decades, that team of lawyers based every updated opinion they issued on the subject on that original memo, the members’ confidence in the totality of immunity for presidential advisers grew, while the “necessarily tentative and sketchy” part of the original memo conveniently disappeared.
Unfortunately, for congress and the American people, the three-judge panel of the DC Circuit that threw out the Committee on the Judiciary v. McGahn case, also helps further entrench a decades-long campaign by the executive branch to cut off congressional oversight and make it harder, and in some cases essentially impossible, for Congress to get the information it needs to fulfill its constitutional duties.
The Committee on the Judiciary v. McGahn case could very well be the last chance in the decades-long battled to maintain congressional oversight of the executive branch. The DC Circuit must reaffirm the role of the judiciary in defining the separation of powers and prevent future instances of the executive branch keeping vital information from Congress and the public.
Congress’s power to investigate comes from the Constitution itself, something the Supreme Court has recognized for over a century. Courts must not be permitted to base any decision to defeat checks and balances on a brief memo concocted by a handful of federally employed lawyers. Congress must retain power to enforce a congressional subpoena, even against an executive branch official, Republican or Democrat.
Since the impeached president trump and his lies became the beacon that guides the thoughts of conservatives, it is a complete waste of time to return to one’s thread only to read the mindless prattle the conservatives spew when responding. Now, it’s post the OP, then move on and never look back.
Judiciary Committee says McGahn ruling leaves only extreme options — such as arrests — to get White House info
.
