The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the Supreme Court heard oral argument in the tax return cases. Several Justices repeatedly asked Douglas Letter, counsel for the House, what limiting principle exists for Congress's subpoena power. He refused to give an answer. Jon Adler and Mike Dorf faulted Letter. I wrote that Letter may have deliberately refused to answer those questions.
Steve Sachs wrote that a limit may not be needed. Under Article V, Congress has the power to propose a constitutional amendment "on any topic under the sun." Therefore, Congress could request just about any information that could help the development of a proposed amendment.
Ilya Somin suggests that courts could apply something of a good-faith standard:"if the supposed amendment turns out to be a complete sham cooked up purely for purposes of subpoenaing information, that fact is likely to leak out, and courts should be able to take notice of it and rule accordingly." I'm not sure what a "complete sham" would mean in this context. There have been countless constitutional amendments proposed that had zero prospects of ratification. I suspect their authors would maintain they are not shams.
Let's consider an example. The House is considering a constitutional amendment that would allow Congress to alter, by law, the president's qualifications. Here, it may be reasonable to subpoena certain information from the President to determine how to properly structure that amendment. Does this amendment have any chance of ratification? Almost certainly not. Is it a sham? I wouldn't say so. Many people would genuinely support this amendment. Or maybe the House is considering an amendment that would create a maximum-age limit for the presidency. (Derek Muller proposed this amendment.) Would it be reasonable to request the health records of the President and his family members? I think so. It will always be possible to craft, in good faith, a proposed amendment that requires the specific information the House already wanted.
Perhaps the answer is that Congress's subpoena powers is unlimited because of Article V. So long as the House can draft up a possible constitutional amendment, it can seek any information to facilitate that process. But Article V would not provide the sort of limiting principle the Justices asked for.
Ilya also suggests that Article I may provide several limiting principles. For example, he cites Lopez and Morrison, which imposed some limitations on Congress's powers under the Commerce and Necessary and Proper Clauses. I wish these limitations were meaningful, but after Raich, these powers are still quite broad. NFIB put only the slightest crimp on federal power, and the Court has not show any willingness to expand that doctrine in the last decade. Ilya also mentions the commandeering doctrine. This doctrine, thankfully, has far more teeth. Congress cannot order states, or state officials, to take certain actions.
Ilya offers two examples:
For example, Congress could not subpoena information related to Trump's many affairs and his divorce settlements with his two previous wives. Marriage and divorce are matters largely left to state regulation, not federal. Similarly, Congress could not use its legislative authority to investigate whether it should force state or local governments to curtail possibly unethical business dealings by the Trump family. The anti-commandeering rule forbids such laws.
I agree. Congress's Commerce & Necessary and Proper powers could not support the first hypothetical statute. Domestic law is reserved to the states. And the second hypothetical statute would run afoul of the Commandeering Doctrine.
But there is there is another element of Article I that Ilya did not mention: the spending power. Congress cannot force states to take action directly; but it can condition funds on states taking those actions. Here, the leading precedent in South Dakota v. Dole. Randy and I offered this summary in An Introduction to Constitutional Law.
Chief Justice Rehnquist wrote the majority opinion. He explained that "[t] he spending power is of course not unlimited, but is instead subject to [four] general restrictions." First, "the exercise of the spending power must be in pursuit of 'the general welfare.'"… Second, Congress must place conditions on the funds "unambiguously." States need to know what they are getting into when they accept federal money…. Third, the conditions must relate to "the federal interest" for which the spending program was established. Chief Justice Rehnquist found that "[t] he condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended — safe interstate travel." The majority opinion did not define how closely "related" the condition must be to Congress's "purpose." Justice O'Connor's dissent provided a more narrow test for "relatedness," or "germaneness." Fourth, "[o]ther constitutional provisions may provide an independent bar to conditional grant of federal funds." … In addition to these four limitations, Chief Justice Rehnquist identified a fifth factor: A condition becomes unconstitutional when "the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'" Such coercion would, in effect, commandeer the state legislature to comply with the condition.
Congress could not force a state government to investigate possible corruption. But Congress could condition funds on the state performing that function. Congress could not regulate family law. But Congress could condition funds on states regulating family law in a specific fashion. And information could be requested to facilitate the drafting of such legislation.
Proposed legislation could be crafted in a very precise way to stick to the requirements of Dole. The statute would pursue the general welfare; the conditions would be unambiguous; the condition relates, broadly, to law enforcement concerns or domestic matters; no other provision (such as the Due Process Clause or the Bill of Attainder Clause) bars that condition; and the amount of funding is small, and non-coercive.
Any competent legislator can draft a bill to accomplish those goals. Such a bill need never become law. And courts would be loathe to call it a "sham." Justice O'Connor's dissent would have put some teeth into the "germaneness" requirement. Alas, the majority rejected that approach. But given the broad confines of Dole, Congress could investigate a virtually unlimited range of conduct, pursuant to the spending clause.
During oral argument, Doug Letter alluded to the spending power. Early in the argument, Chief Justice Roberts asked Letter about a limiting principle. Letter responded with a discussion of "bankruptcy proceedings." Roberts interjected, "do you think bankruptcy proceedings is a subject on which legislation could not be had?" Letter answered that "obviously, bankruptcy could be" subject for possible legislation. Letter than added, "Congress's legislative authority is extremely broad, especially because of its appropriations–." Roberts interrupted him, and cut him off. I think Letter was going to say "its appropriations power." That is, the Spending Clause.
Later, Letter gave the same answer to Justice Alito:
JUSTICE ALITO: But you were not able to give the Chief Justice even one example of a subpoena that would be --that would not be pertinent to some conceivable legislative purpose, were you?
MR. LETTER: As --as I said, Your Honor, the --that --that's correct, because this Court itself has said Congress's power is --to legislate is extremely broad, especially when you take into account appropriations.
Here, the House was hinting at a limit, that would not really limit at all.
At bottom, perhaps Congress's subpoena power has no meaningful limits. Maybe there doesn't need to be a limiting principle. Maybe Steve Sachs is right, as a matter of first principles. That may be the House's position, which explains Letter's strategy. I don't have a strong opinion on this question.
Generally, when a Justice asks for a limiting principle, you are probably going to lose. And efforts to manufacture limiting principles before conference–a form of armchair quarterbacking–will not work. (I wrote about this phenomenon in Unprecedented). Cases will be decided on the briefs. And Letter, who did not make any unnecessary concessions, will be happy to have the case decided on the briefs.