Supreme Court

"Valid Legislative Purpose"

Do legislative subpoenas really need a limiting principle?

|The Volokh Conspiracy |

At today's oral arguments, as Jonathan notes, some Justices were looking earnestly for a limiting principle for the topics of legislative subpoenas. I'm not sure one is needed.

As Akhil Amar has pointed out, either House can propose constitutional amendments. Since 1808, amendments can address any topic under the sun. So the House might take an interest in constraining the President, or expanding his powers, or granting itself plenary power, or reallocating Senators (among consenting states), or establishing a church, or reopening final bankruptcy judgments, or regulating the private lives of celebrities, or whatever.

Right now, Congress's Article I powers are limited. The failure to respect those limits doomed the SG's argument in Lopez. But Congress has the 'horizontal' necessary and proper power, to make laws for carrying into execution the President's powers—and it has powers under Article V too. So it's hard to find a topic categorically beyond any joint resolution the House might adopt, or beyond its potential need for relevant information.

Of course, there might be limits other than topical limits. Maybe needing the information for something isn't enough. Maybe exploratory interest doesn't count, without specific plans or proposals under review. Maybe there are limits of good faith, or of executive privilege, or on judicial enforcement, or on the House's power to investigate in general, or on its capacity to appear in an Article III court, or …. But legislative topic seems the wrong place to look, for the parties and the Justices both.

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  1. The real question, IMO, is not whether Congress can subpoena something to investigate a possible new law or Constitutional amendment.
    The question is what does Congress have to show to connect the subpoena to the proposed new law/amendment. In civil litgation, this is called relevance.
    I don’t think it is enough to say, “Yeah, we are considering some kind of Constitutional amendment. Not sure what it is. Meanwhile, give us the president’s tax returns for the last 20 years, and then we’ll decide.”

  2. Trump should have cited Dept of Comerece v N Y. Does anybody really believe there is a legislative purpose- Adam Sciff. If it’s good enough for the executive branch why not the legislative branch. Justice Roberts should find “Unlike a typical case in which an LEGISLATURE may have both stated and unstated reasons for a decision, here CONGRESSES enforcement rationale—the sole stated reason—seems to have been con- trived. The reasoned explanation requirement of A SUBPEONA is meant to ensure that CONGRESS offer genuine justifications for im- portant decisions, reasons that can be scrutinized by courts and the interested public.

    Reply

  3. This reasoning appears to prove too much, it would put everything under the Sun within reach. Congress could be considering an amendment to repeal the 1st amendment’s religious liberty protections, and need detailed information on the religious beliefs of every citizen.

    Since Congress’s subpoena power isn’t constitutional in nature, but a product of statutes, it has to be restricted at the very least to the reach of statutes that would be constitutional. Not could be constitutional if the Constitution were amended.

    1. I don’t think your objection is valid as to Sachs’s argument, I think that was kind of his point. There are limits on Congress’ subpoena power, like violation of existing constitutional rights, but that limitation has nothing to do with “legislative purpose.”

      I understand him to say (and at least tentatively agree) that legitimate legislative purposes are, basically, limitless and, therefore, there are pretty much no subpoenas for which the objection “no proper legislative purpose” is valid. Objections based on executive privilege, good faith, constitutional rights of privacy/religion/etc., relevancy, etc. continue to be valid and enforceable in appropriate cases, but that has nothing to do with whether there is an underlying legitimate legislative purpose. Unless, by the latter term, you really mean “good faith.” But then we should just say good faith, it seems.

      In any case, I don’t think anybody is arguing that Congress’s subpoena power overrides the Bill of Rights.

  4. Once again I wonder why there is not equal concern over limiting the President’s power.

    The framing that we should be looking at limits on congressional subpoenas – Benghazi anyone? – is only half the picture.

    Immunity from subpoenas, from criminal investigation, etc. Are these the same conservatives who were outraged by Obama’s uses of executive power?

    1. There have been numerous challenges to various exercises of presidential power since Trump began office. Many succesful. So I don’t know what you mean by “equal concern.”

      Here there is an exercise of Congressional power. A subpoena is a command to produce documents (or a command to testify). Are there limits to that power? That is the issue in this case.

      We all know the reality is that Congress has no real reason to subpoena the president’s tax returns, other than to fish for something embarassing that can be used politically. There is no pending legislation or Constitutional amendment that they can point to and say, we need those returns to inform our decision. That is the reality, whatever the legal arguments. And that reality goes over the line.

      Could the president order the AG to convene a grand jury and issue a subpoena for a political rival’s tax returns? Any limiting principal there?

      1. bernard11 has a Trump fixation, commonly known as TDS. If an article doesn’t mention Trump, he will be sure to bring it up in a comment.

      2. There is a very good reason why the political norm for the past 40 years has been for presidential candidates to release their tax returns. Not least, because Nixon cheated on his taxes and that lack of character foreshadowed even greater ethical, legal, and moral lapses as the President. Lapses which resulted in his resignation. The reasons for the norm and the fact that it is now the case that a President will flout that norm, are equally valid reasons for Congress to consider what sort of legal rules can be put in place to accomplish what norms previously had accomplished.

        “Could the president order the AG to convene a grand jury and issue a subpoena for a political rival’s tax returns? Any limiting principal there?”

        There is, at the very least, a norm against the President giving such orders. Moreover, it is pretty clearly an abuse of power to initiate criminal process against one’s political rivals (notwithstanding that Republicans have shown a willingness to accept such behavior from the current occupant).

        Would the subpoena hold up in court? Maybe, but issues of good faith and malicious prosecution would arise and, it seems to me, a court would be justified in not enforcing it if the political purpose was openly stated.

  5. It seems Congress is willing to impeach the President for pushing an investigation of his political rival. If that was improper why isn’t Congress pushing an investigation of their political rival just as improper?

    1. Because what’s sauce for the goose isn’t sauce for the gander if YOU are the gander. There’s no particular principle here, they just want to be able to do what they want to be able to do, and don’t try generalizing it, they don’t care.

    2. Because Congress isn’t pushing a criminal investigation of its political rival?

  6. Without some limiting principle, what stops Congress from becoming the police state that we normally fear from Executive agencies? If there is no limiting principle, members of Congress could literally walk into your bedroom anytime they want. Without a limiting principle, they can get unlimited access to your email, financial records, even your personal diary.

    They already demand that CEOs, celebrities or anyone else unfortunate enough to catch the public eye travel to Washington for “hearings” that are little more than chances to pontificate, berate and abuse.

    1. Rossami, tone it down a bit. People will worry

    2. There are limits, but “legitimate legislative purpose” isn’t one of those limits. If Congress wants to look at an ordinary citizen’s diary, there are a legion of valid objections.

  7. I’m not endorsing this – because I think it’s wrong – but my understanding is that the Supreme Court empowered Congress to imprison people on its (Congress’s) own authority if they disregard subpoenas. Of course, they have to let the person out of detention as soon as Congress adjourns.

    1. That’s right, it’s called “inherent contempt”, and was last used during the Teapot Dome scandal. It would be interesting to see the House Sergeant-At-Arms shooting it out with the Secret Service in a desperate fight to take the Attorney General into custody.

  8. I think the idea that Congress can subpoena absolutely anything because they might make a law on something to be a horrifying police state image. This would give unfettered authority for Congress to access any private information of any person they choose for no actual rationale at all. I think Trump goes too far on his argument too, but the people trying to defend Congress having absolutely unlimited authority to get any private information they want just because they hate Trump are pretty terrifying.

  9. “Legislative subpoena” is an oxymoron, manufactured by congressional rules to skirt the protections of The Fourth Amendment against seizure of papers and effects without a sworn warrant based on probable cause of some offense.

    If the president gave himself the same subpoena power against members of Congress through an executive order, to aid him in more faithfully executing the laws, how loudly would you progressive professors be howling about it?

    1. Congress first exercised its inherent contempt authority in 1795 when the House detained two private citizens for
      attempted bribery of Members of the House.

      The Supreme Court first affirmed Congress’s use of the
      inherent contempt power in the 1821 decision of Anderson v. Dunn, 19 U.S. 204 (1821).

      https://crsreports.congress.gov/product/pdf/R/R45653

      1. And Trump is interfering with the legislative process how?

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