Subpoena Power of the House or Senate ....

[Bernard Bell]

I have understood the holding of Chadha as addressing Congressional
exercise of its legislative powers, and only its legislative powers.  
Particularly with regard to presentment, the Court's discussion focuses
entirely on the lawmaking powers of Congress.  The issuance of subpoenas
is not an exercise of the legislative power, and indeed may often be
issued in aid of Congress' information function, finding out and
publicizing government action.  A house of Congress, or presumably a
committee, can surely issue a report without satisfying the bicameralism
ad presentment requirement.  In Buckley v. Valeo, the Court noted that
Congress could appoint members of a commission that merely exercised
powers of an investigative or informative nature, because Congress could
delegate such powers to one of its own committees.  Indeed, the
traditional oversight function of legislative bodies "to look diligently
into every affair of government" and "talk much about what it sees,"
Woodrow Wilson, would be undermined if engaging in such oversight
required the concurrence of the executive branch whose activities
Congress is seeking to oversee.
   Perhaps the President has the authority to direct Executive Branch
officials to refuse to take any action that would lead to the
enforcement of the subpoena's (because, even if the subpoena were
legitimately issued and enforceable, enforcement of the law can be
viewed as an inherently executive function).  But the exercise of that
power would seem to encroach upon the power of the legislative branch to
secure the testimony it needs to fulfill its basic functions, much like
the refusal to turn over the Watergate tapes precluded the Judiciary
from serving its essential functions.  Moreover, if the President has a
legitimate basis for directing a witness not to testify, he has an
opportunity to make that argument in any judicial proceeding to enforce
the subpoena.

Regards,

Bernard Bell

Bernard W. Bell
Associate Dean for Academic Affairs & Faculty
Professor & Herbert Hannoch Scholar
Rutgers Law School-Newark
123 Washington Street
Newark, NJ 07102
(973) 353-5464 (voice)
(973) 353-1445 (fax)
bbell at kinoy.rutgers.edu


>>> seth tillman <sbarretttillman at yahoo.com> 7/24/2007 2:23:11 pm >>>

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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