"A Better Way to Limit Congress' Subpoena Power"—My SCOTUSblog Symposium Article on Trump v. Mazars

The article critiques the majority decision, and outlines a better way to limit Congress' subpoena power.



My SCOTUSblog symposium article on the Supreme Court's decision in Trump v. Mazars is now up. The article criticizes some aspects of the majority opinion and Justice Thomas' dissent, and outlines a better way to limit Congress' power to subpoena documents.

Here is an excerpt:

Today's Supreme Court decision in Trump v. Mazars establishes a vague and unwieldy four-part test for determining when congressional committees can subpoena documents from the president. The court understandably and rightly rejected both the president's extreme view that such subpoenas are almost never enforceable and the House of Representatives' position that the subpoena power is virtually unlimited. To avoid these extremes, the court created a complex four-part balancing test. But it would have done better to adopt a much clearer and simpler rule: that Congress can only subpoena information related to issues over which it has legislative authority. In that event, the Supreme Court's own decisions limiting the scope of congressional power would also limit the scope of Congress' power to subpoena information….

The four parts are vague in themselves, and the court offers no guidance on what to do if some of the four factors cut one way, while others support the other side. In addition, the test is not actually exhaustive. The court warns that other, unspecified considerations may also have to be weighed….

From the New Deal era to the 1990s, many legal commentators assumed there were no longer any structural limits to congressional legislative power. But beginning in the 90s, the Rehnquist and Roberts Courts decided a series of cases that reinvigorated such limits…..

These decisions create meaningful limits on the scope of congressional legislative authority, and therefore on Congress' subpoena power…

If Congress' power to subpoena information is too broad, the fault lies not in the scope of the subpoena power, but in the scope of the substantive legislative power the former is supposed to facilitate. It is the latter, not the former, that has too few limits. Those who fear there are too few constraints on Congress' subpoena power should focus their efforts on constraining its power to regulate and spend, which remains far beyond what is permitted by the text and original meaning of the Constitution.

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  1. Section 6103(f) – covers tax returns and tax return information

    only ways and means committee and senate finance committee

    No other congressmen
    no congressional staff

    no disclosure since it is A) felony to disclose and B) since it is felony, the constitutional exception for acts as a congressmen doesnt apply

  2. Except nothing about this has anything to do with legislation.

    1. And …..?

  3. What puzzles me here is that, according to the court, if a religious organization merely peeps “ministerial exemption,” or “unreasonable burden,” there is little to no requirement that be remotely credible. Put if Congress says “legislative intent” they are subject to all sorts of inquiries and, most useful to the President, endless delays .

    1. Desperate, disaffected people generally focus on things other than consistency, principle, reputation, long-term perspective, and the like. They’re clinging to a subsistence level, focused myopically on the acute, struggling to address perceived emergency.

    2. See, these are protections of the people, by the people, to help preserve their freedom.

      Saying hands off to religion is one.

      Saying to those in power, “Thou shan’t use the power of government to investigate your political enemies” is another.

      There is no inconsistency here.

  4. The House will be better served in the future by having different counsel. Would it be that difficult to say that the House could not subpoena Trump’s divorce settlements because any policy questions they might generate are solely state law matters? Investigating and strengthening conflict of interest laws for federal officials is arguably a federal matter and could have also referenced the insider trading in the Senate demonstrated issues in that area.

  5. But Article V of the Constitution expressly gives Congress the power to propose amendments to the Constitution. It seems to me that this power implies that there are no limits on “the scope of permissible legislative authority.” Mr. Somin’s proposed test would in principle impose no constraint on Congress’s subpoena power. What am I missing?

    1. Congress has the power to propose amendments to the Constitution. I does not have the power to actually enact them.

      1. I think the suggestion is that in the process of deciding what amendments to propose, they could need to investigate anything.

  6. Odd that Congressional subpoena power never came up during the endless and exhaustive Republican investigations during the Clinton and Obama administrations.

    1. They mention that. Those were subpoenas directly to the president, who has massive power to fight back constitutionally, leading to negotiated results. So much so that very little has gotten anywhere near the Supreme Court over centuries. Rather these were to 3rd parties.

  7. Interesting.

    Prof. Somin says that “…The four parts are vague in themselves, and the court offers no guidance on what to do if some of the four factors cut one way, while others support the other side.”

    While Neal Katyal and Joshua A. Geltzer characterize it as “…all that’s left is for lower courts to apply a standard that’s now been clearly articulated by the Supreme Court. ” (See )

    I suppose what’s “clearly articulated” to one lawyer is “vague” to another. BTW, I’m siding with the “vague” reading – seems to me that the court’s unweildy four-part non-exhaustive test practically begs for more litigation.

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