Limitless Limiting Principles

A limiting principle without limits does not limit.

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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.

NEXT: The Logistics of Testing and Contract Tracing on Campus

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  1. “At bottom, perhaps Congress’s subpoena power has no meaningful limits.”

    Or maybe meaningful limits on the exercise of other powers, such as the appropriations power, have already been blown through with the judiciary’s blessing, and the compromised constitutional structure causes lack of meaningful limits to just cascade through the system.

    And the whole thing can’t be fixed without recognizing the earlier mistakes, and correcting them.

  2. Interesting. Consider an amendment that requires any candidate for federal office to prove that they meet the qualifications and to provide tax returns and complete college records. In the interests of this proposed amendment, Congress now subpoenas the birth certificates of every currently living former President. Sounds like a plan.

    1. So, the very fact that Congress might consider such an amendment in effect allows Congress to enforce the not yet adopted amendment?

      I could see that general move being used pretty widely, if it worked even once.

      1. I think the theory is that Congress needs to get the birth certificates of every living former President to determine if it is even possible to get reliable copies and confirm that they are not altered. Congress, of course, would need this information to figure out how to craft the proposed Constitutional amendment and how/if it’s necessary to deal with cases where the document is not available.

    2. And what would you expect to find?

      Do you birther morons ever face facts?

    3. Congress isn’t doing research on legislation here, they are researching a Bill of Attainder.

      1. You think this is clever. It is not.

        1. you think you’ve rebutted something, you have not.

          1. It’s not a bill of attainder.

            Not much else to day.

  3. The limiting principle is orange man bad.

    1. LOL, did you think about this post carefully?

      Because yeah, that kind of knee-jerk blind assumption bad faith does indeed seem to be the only argument for a limiting principle y’all have.

      1. They actually pulled out the Logan act as a justification for going after Flynn. The Logan act! That’s like citing the Alien and Sedition acts to justify an investigation. In over 200 years nobody has ever been convicted under that act, only two people even got charged, and then the cases were dropped before they came to trial.

        The Logan act is enough justification to see bad faith.

        You know what’s going on with the Flynn case now? The judge is threatening Flynn with perjury charges for falsely pleading guilty… talk about a legal Catch 22!

        That judge desperately needs a date with some feathers and hot tar.

        1. So, my question here is…did Flynn actually lie?

          Remember, supposedly Flynn “lied” about the Russian sanctions. Here is the 302, as written up by Strzok…much later.

          Flynn: “Not really, I don’t remember, it wasn’t don’t do anything”.

          On the basis of that statement, to “friendly” FBI officials…it’s apparently lying to the FBI.

          1. Well, of course he lied. He lied about being guilty, because they’d moved on from bankrupting him, and were threatening to find something to prosecute his son for. So he agreed to take the fall to protect his family.

            But it’s unheard of for a judge to initiate a perjury case against somebody for having pled guilty, and then withdrawing their plea when the government admits to prosecutorial misconduct.

            1. That’s possible. But, could Flynn also not have remembered exactly what he said? Where in the face of all the evidence the FBI presented (without all the evidence that would help his evidence), Flynn thought “The FBI has a case here. I don’t remember EXACTLY what I said in that meeting, and the FBI has the notes and everything. If they say I lied, and they have the notes to prove it, I’m probably guilty”

              1. To be clear, I mean that he definitely lied when he pled guilty. During the initial interview, the agents concluded that he’d simply had a failure of memory. Which is NOT the same thing as a “lie”.

                I mean, can you recall every word from phone calls weeks or months ago?

                1. I can recall every word from my phone calls negotiating over sanctions and UN votes with the Russian ambassador.

                2. “I didn’t deliberately lie; I forgot” would be a perfectly valid defense argument at trial, just as “I didn’t want to kill him; it was self-defense” would be in another context.

                  But when you plead guilty and admit under oath that you actually did want to kill the person, you by definition forfeit that self-defense argument.

                  Flynn could have gone to trial and told a jury that he forgot, and hoped that they believed him. But presumably the fact that the WH didn’t believe him when he said that, and fired him for lying to Pence, colored his assessment of whether the jury would believe him.

            2. not only that but the judge initiated the whole change in plea by threatening to ignore the plea deal and sentence him to the max if he went forward with the guilty plea.

              1. This is false in every respect. The judge did not do that, and if he had, it would not be “ignoring the plea deal.” In federal court, you cannot plead to a sentence.

        2. Or a wood chipper.

          Can I say that here? Or is Preet Bahra still on the job?

        3. Brett, I don’t think you have a grasp on FBI tactics. I agree this is monstrously unfair, but also it’s not abnormal.

          As for the judge, lets wait and see if this Reagan/Bush appointee actually moves forwards with the contempt before we start weaving narratives.

          1. I agree that it’s not abnormal, but that doesn’t mean it isn’t monstrously, even criminally, unfair. The FBI’s normal conduct is criminal. We already knew that long before the Flynn case.

            1. So quit with the special pleading then.

              This is not bad faith; this is policy.

              You gotta change the policy, not argue for exceptions for Trump allies.

  4. I’m waiting for Bernard to post the obligatory anti-Trump and anti-Blackman troll-rant. I’m making popcorn.

    1. Make sure you have adult supervision so you don’t burn the house down.

      1. There you are! Thank you for showing up and responding to my provocation. I knew you would not be able to resist.

        1. You’re welcome, asshole.

  5. Or maybe the limit is what the framers intended – the people. If you think a party is being excessive with subpoenas of a President of the opposite party, vote the offending party out.

    1. Reasoning that could be applied to every single constitutional protection.

      1. But there is no Constitutional protection here. At least not in the text.

        1. Oh, I’m sorry, I thought the 4th amendment counted as part of the Constitution’s text.

          1. Unfortunately for your response, the 4th Amendment is not an issue in this case.

            1. It should be.

              You can’t argue those are not Trumps’
              “papers and effects“, and I’m not aware that Congress has any probable cause, and if they did have probable cause then a bill of attainder is not legitimate legislation.

              1. It’s not criminal, dude.

                1. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

                  Nope, doesn’t say anything about “criminal”, and doesn’t incorporate any exception for Congressional subpoenas, either.

                  1. So you’re arguing what the law ought to be, not the law as it operates now.

                  2. Why are you talking about a rule about searches and warrants, when we’re discussing subpoenas? They’re different things.

    2. I’m not sure the Framers anticipated that by the early 21st century, 90% (or more) of all incumbents would achieve re-election every election cycle.

      1. Ah, a bit of the old Living Constitutinalism, for ya, then?

  6. Now, many of the arguments about limits on congressional subpoena power are about the executive branch.

    Classically, I used the example of a Congressional Subcommittee using the subpoena power to obtain campaign strategy for an upcoming presidential nominee, under the heading of “campaign finance reform” legislation. Congressional Subpoenas have been used in the past for both trade secrets and attorney-client privileged communications, so there isn’t a bar here. But, let’s use an example closer to the SCOTUS’s proverbial home.

    Is there any reason why a Congressional Subpoena could not be utilized in order to obtain the internal SCOTUS deliberations on a series of controversial cases? What is the limiting principle that prevents this?

    1. Congress has lots of powers that can be abused. That doesn’t mean those powers are Constitutionally prohibited.

      1. So your opinion is that Congress can use its subpoena powers to legally acquire confidential internal discussions from the SCOTUS, on the pretext that they might think about an Amendment related to the SCOTUS, and the SCOTUS just needs to hand them over.

        Interesting. A horrible abuse of separation of powers, and abuse of power. But interesting you think that….

        1. Yes, that does seem will within Congressional oversight that the President is faithfully executing the laws.

          It’s also happened before. I recall such Congressional document requests both during Benghazi and the ACA. Not even subpoenas, just complied with doc requests.

          Interesting you suddenly think otherwise.

          1. Really? Congress has used its subpoena power before on internal deliberation documents from the SCOTUS? Do tell…

            1. It’s gotten things that the current admin now argues fall under deliberative privilege.

              What do you think goes on at the hearings not open to the public, chief? Do you think it’s always classified stuff?

        2. Moreover, you are making a functional as-applied argument about what is a formal structural question.

          That table pounding may have worked on Kennedy, but otherwise it’s just table pounding.

  7. Funny . . . under current jurisprudence there is no limit to the right to keep and bear arms, but despite this unlimited principal, Heller and other decisions allow “reasonable restrictions”.

    1. “current jurisprudence”
      “no limit to the right to keep and bear arms”

      There is literally no jurisdiction in the country that allows a “no limit” right to keep and bear arms. Not sure why you feel the need to set up this particular straw man argument, but it is absolutely a straw man.

      1. My point there would be that the 2nd Amdt says no limits, but the courts have found some.

        1. The Second Amendment limited the federal government. People are always trying to read more into it than was originally intended.

          1. Why would you say it just limits the federal government? Obviously the first amendment shows that congress knew how to craft an amendment that narrowly limits just the federal government: “Congress shall make no law…”, but they used much more expansive language in the second amendment.

            But in any case the 14th amendment foreclosed that argument.

  8. I agree with Josh that questions about limiting principles often predict a loss. I would think that that is because the Court doesn’t want to open the door to unlimited power. Instead, at least the conservative members prefer to see that precedents not get away from what they intended.

    1. I would think that that is because the Court doesn’t want to open the door to unlimited power.

      Unlimited power of who? The Executive, or Congress?

  9. 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.

    Why should information about the current President be even slightly relevant to the qualifications which ought to be required of any President ? This is on a par with “take down your panties, my dear, I need to check if you have a snake bite.”

    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.

    Then you’re nuts. The health of the current President tells you literally nothing about the capabilities of humans at particular ages that you couldn’t have got from published medical data about the other seven billion of us.

    The more of this sort of argumentation that I see, the ore obvious the answer to “what’s the limit ?” becomes. The limit is nada.

    Congress does not need to compel the production of any information from the unwilling in order to exercise its legisative functions. Nor its constitutional amendment proposing functions.

  10. 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.

    Requesting is not the same as demanding with menaces.

    But if Congress can base a claim to subpoena power on its role in amending the constitution, why should State legisatures not claim the same thing, for the same reason ?

  11. “I agree. Congress’s Commerce & Necessary and Proper powers could not support the first hypothetical statute. Domestic law is reserved to the states.”

    Only until there is a proposed constitutional amendment to make it a federal issue!

  12. Even if it is easy to find a pretext, requiring a pretext is useful adn importnt, because it does increase the transaction cost of bad behavior. True, Congress can always propose a constittuional amendment for the secret purpose of issuing a subpoena. But they’d have to propose it. That means writing up a proposed amendment, sending it to committee,taking it out of committee, etc.. All taht stuff takes timea nd effort.

  13. The limiting principle is whether laws have been passed appropriately.

    If Congress passes a bill based on its enumerated powers, and that bill is signed into law by a President, there is no further need for discussion about a ‘limiting principle’ because the only condition limiting the scope of Congressional power was already met, unless one wants to argue that the authorizing bill/statute/law is itself unconstitutional.

    1. Well the limiting principle may not apply to some of congresses powers, but it certainly applies to some. That’s why Citizens United struck down McCain Feingold, because the government couldn’t come up with a limiting principle that forbid them from banning books or movies based on their content.

      In this case I want to see a limiting principle that restricts Congress from violating “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      In this case Congress has no warrants, only a subpoena, and no probable cause. We know the first amendment limits Congress’ power, I have never heard it argued the 4th amendment doesn’t apply to Congress.

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