As has been repeated several times on dKos today, Tony Snow is right that the Constitution of the United States does not directly number oversight among the powers of Congress. Diarists and others have presented different rationales for where this power should come from and why it should apply to the White House.
The reason there is confusion is because oversight is not a Constitutional power of Congress. The power of Congress to investigate is inherent in the grant to it in Article I, Section 1 of the Constitution of "all legislative powers herein granted." Follow me past the flip as I destroy the argument that Congress has no oversight authority over the Lunitary Executive.
Quite simply, the power to investigate is inherent in Congress's legislative role. While our federal government is a government of delegated powers, and no part of it has greater power than is conferred by the Constitution, the words of the Constitution have meaning that are steeped in over a thousand years of British legal history. The power of legislative bodies to conduct oversight through investigative means is a power that has evolved through the common law.
As the Supreme Court stated in McGrain v. Daugherty, 273 U.S. 135, 161 (1927):
[T]here is no provision [in the Constitution] expressly investing either house with power to make investigations and exact testimony, to the end that it may exercise its legislative function advisedly and effectively. So the question arises whether this power is so far incidental to the legislative function as to be implied. In actual legislative practice, power to secure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures.
The power to conduct an investigation is essentially the power to punish those who ignore a Congressional subpoena, because an investigation is nothing without the power to compel testimony. The power to punish contempt is ancient and deeply rooted in British legal history. As the Court stated in Watkins v. United States, 354 U.S. 178, 188-91 (1957):
The rudiments of the power to punish for ‘contempt of Congress' come to us from the pages of English history. The origin of privileges and contempts extends back into the period of the emergence of Parliament. The establishment of a legislative body which could challenge the absolute power of the monarch is a long and bitter story. In that struggle, Parliament made broad and varied use of the contempt power. Almost from the beginning, both the House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti. Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege.
There are limits on the power of Congress to investigate. Those limits, however, are not particularly stringent. As the Court stated in Watkins:
There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress . . . No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.
Id. at 187.
What is a legitimate task of Congress?
It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.
Id.
So the only question that needs to be asked is: in exercising its investigative function, is Congress gathering information that might be used in fashioning a remedy that Congress has the ability to enact? In the case of the U.S. Attorney scandal, the answer is clearly yes. Indeed, the Senate has already passed one bill, S.214, that would change the method of appointment of U.S. Attorneys. Congress has appropriations power over the White House staff. All of the subjects upon which Congress seeks the testimony of Karl Rove, Harriet Miers, and others are subjects upon which Congress has the ability to legislate.
To hold otherwise would be to overturn hundreds of years of precedent dating back to the establishment of representative democracy in the British Isles. The ability of Parliament to conduct investigations and exercise its contempt power was key in wresting absolute power from the Crown. Revoking that power at this critical juncture in our history risks reversion to a similar form of absolutism.