Subpoena Power of the House or Senate ....

[seth tillman]

Shortly after the Supreme Court of the United States
announced its decision in INS v. Chadha (1983), an
article appeared in Harvard Law Review [it may have
been an unsigned student note or the annual Supreme
Court round up] suggesting that the holding in Chadha,
although not formally overruling the Supreme Court's
prior decision in Anderson v. Dunn (1821), put
Anderson in serious doubt.  

The basic thrust of the argument was that the Chadha
decision listed the only exceptions (appearing in the
text of the Constitution) to bicameralism and
presentment.  A subpoena power was not among them.  In
2005, Professor Gary S. Lawson, Boston University,
made a similar point.  See Lawson, Burning Down the
House (and Senate), 83 Texas Law Review 1373-87 (2005)
(responding to an article of mine, Tillman, 83 Texas
Law Review 1265-1372 (2005), but my article did not
focus on subpoenas); see also Maguire & Ors v Ardagh
(the "Abbeylara" judgment), [2002] 1 IR 447
(discussing subpoenas issued by legislative committees
in the context of a separation of powers regime much
like our own).  

Chadha is distinguishable from Anderson.  Anderson
relied on inherent (House) powers and enforcement by
House officers absent any statutory authorization or
enforcement mechanism.  However, the enforcement
mechanism used frequently today is one which is
authorized by statute, and, furthermore, it makes use
of Executive Branch officers (i.e., the U.S. attorney
and, presumably, federal marshals).  It seems to me
that a plausible argument could be made to the effect
that the current enforcement regime is more like
Chadha, than that at issue in Anderson.  If that is an
accurate portrayal, then the President really doesn't
need to plead executive privilege or any other
privilege (i.e., the Harriet Miers subpoena).  The
President or Miers' counsel could just argue, as
Lawson suggested in 2005, that subpoenas issued by a
single house (or its committees or its chairpersons
when such power is delegated to them by single house
orders or resolutions) are not valid absent
bicameralism and presentment.    

If anyone has any thoughts on this, I'd be very
interested.