VermontGriz hit the mojo jackpot with today’s post on Snowjob’s latest constitutional pronouncement (maybe Snow is jockeying for that soon to be available position at Justice). Several commentors, however, picked up on what continues to be the real issue at stake in this debate: Congress’ enforcement power.
Of course Snow is wrong when he says that Congress has no oversight power with respect to the Executive Branch (and all those executive agencies). And although the Constitutional sources of Congressional authority are largely implied, that authority has been recognized by the federal courts for quite some time. It is no longer subject to reasonable question that Congress can conduct investigative hearings to aid it in proposing or reviewing legislation, as well as to investigate such issues as public waste, fraud or corruption.
But now that we’ve settled that, the problem remains: how does Congress exercise its oversight authority when the executive refuses to be 'overseen'? And this question, unfortunately, gets us back to where we have been since this whole thing began. The ultimate oversight enforcement sanction, of course, is impeachment. We are all familiar with that one.
The next one is the Subpoena and Contempt power. As everyone here knows, this one gets us squarely into the much discussed subject of Executive Privilege. Before going further with this, however, I would urge all Kossacks to at least glance at a recent report by Congressional Research Service ("CRS") on the topic of "Congressional Subpoenas and Contempt Power"(April 2, 2003), the Conclusion of which states:
"Committee subpoenas and contempt citations have been effective instruments
for gaining access to executive branch documents that are initially withheld. The
pressure that builds from these two techniques generally results in the Administration
offering new accommodations to satisfy legislative needs. Although both branches
at times seek assistance from the courts, the general message from federal judges is
that an agreement hammered out between the two branches is better than a directive
handed down by a court.
The executive-legislative conflicts described in this report offer several lessons
about access to information. Congress has as much right to agency documents for
oversight purposes as it does for legislation. Executive claims of "deliberative
process," "enforcement sensitive," "ongoing investigation," or "foreign policy
considerations" have not been, in themselves, adequate grounds for keeping
documents from Congress. On the issue of withholding information from Congress,
there are often sharp differences within an Administration, especially between the
Justice Department and the agencies.
Further, these case studies show that statutory language that authorizes
withholding information from the public is not a legitimate reason for withholding
information from Congress. Sharing sensitive information with congressional
committees is not the same as sharing information with the public. Courts assume
that congressional committees will exercise their powers responsibly. Legislative
committees have demonstrated that they have reliable procedures for protecting
confidentiality. Finally, congressional capacity to subpoena agency documents from
private organizations is not an adequate substitute for receiving them directly from
the agency."
If you take the time to read this report, you will see a number of things. First, fights over the subpoena and the contempt power have recurred just about since the ink was dry on the Constitution. Second, Presidents claiming a broad executive privilege have included some of our heroes, as well as our villains. Third, although some of these fights have ended up in the federal courts, few have been resolved there, but instead have generally been resolved through some form of compromise. In recent years, true, it seems that it has been the democrats – whether in Congress or the White House – who have been willing to compromise. See, for example, this diary by Gary Norton. But the point is important: Neither branch has been particularly willing to force a showdown in the Supreme Court with respect to the ultimate question of how far Congress or the executive can go in this fight over disclosure to Congress of executive deliberation.
The glaring exception would appear to United States v. Nixon. But I would urge readers to read the majority opinion in that case very carefully, because it provides no clear answers as to the scope of the executive privilege. The Nixon case involved the judicial enforcement of a subpoena for executive information in the context of an ongoing criminal adjudication. We are not nearly at that stage in the U.S. Attorney purge controversy (which I prefer to call "Purge-apaloosa"). Whether the present SCOTUS would recognize any limits on executive privilege is pure speculation. And this assumes that the Department of Justice would even allow a U.S. Attorney to proceed with a criminal enforcement action, a dubious prospect under the "unitary executive" theory.
Is there another way for Congress to enforce its oversight? There is, and it is also very familiar to Kossacks, albeit in a different context. It is the power of the purse.
In our zeal to find ways to work some Congressional will on an out-of-control executive, perhaps we have overlooked that Congress’ authority with respect to funding the federal government is broader than simply the power to appropriate money for our armed forces to fight our wars. It bears remembering that virtually all of the machinery of the executive branch was created by and continues to be funded from Congressional enactments. And this is most certainly well-explained in the Constitution, without resort to interpretation or implication. That the executive machinery has become so vast is, perhaps, the unfortunate by-product of the liberal state (back when it was). But perhaps we can start doing some paring back.
The Attorney General’s particular part of the machinery is probably not the best place to start. Even this Department of Justice is responsible for enforcing an awful lot of important federal statutes. However, I can think of one executive entity that we could start with. It is one of the few offices actually named in and required by the Constitution, but its legitimate powers and responsibilities under that document are so limited and so rarely used that I am sure it could suffer some severe budget cut-backs, in the name of deficit reduction. I am referring, of course, to the office of the Vice President.
The last time I looked, the federal budget does not actually have a line item in it that sets out the budget for the Vice President and his staff. I believe it is simply part of the ‘bulk’ appropriation for the executive office of the President. Perhaps some enterprising person could look more closely at this.
But we know that in recent years the VP’s staff has grown to an alarming size, and that its burgeoning size has little to do with the Constitutional responsibilities of breaking ties in the Senate and waiting around for the President to expire. It seems that a good deal could be saved by cutting out some of the travel expenses. And I doubt that there would be much political opposition in the country to cutting back on the electric bill, so long as there is plenty of power to run a good sized pacemaker. Congress will have to let him keep his salary and his office, but he could do with a much smaller conference room.
So that is my proposal for some meaningful oversight, that would avoid the need for unwieldy subpoenas, criminal prosecutions, and impeachment proceedings. But I think it would get our point across. And if not, then we can look at some other executive offices, as well.