Subpoena Power of the House or Senate ....

[Michael Froomkin - U.Miami School of Law]

I think Chadha can't actually be quite as sweeping as it claims.

Other examples of unilateral action:

Each house can litigate on its own;

Members can declassify information by reading it on the floor of the 
house, which is a privileged action;

On the more general point, am I right in saying that you accept the idea 
that each house has inherent subpoena power, but argue that the only way 
to enforce it is the inherent contempt power?


On Tue, 24 Jul 2007, seth tillman wrote:

>
> 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.
>
>
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