WASHINGTON (July 20, 2017) – Congress has the absolute constitutional power and responsibility to make and enforce any demands to the executive branch for information it deems necessary to accomplish its legislative duties. However, a 15-year-long uncontested strategy by the executive branch of forcing Congress to enforce its documentary and testimonial subpoenas through civil litigation is obstructing Congress’ core constitutionally mandated legislative function.

A new policy study by R Street Institute Associate Fellow Mort Rosenberg, a former longtime analyst for the Congressional Research Service, highlights how Congress can reassert its investigatory authority.

“The constitutional basis of Congress’ nearly absolute oversight and investigatory powers is irrefutable,” Rosenberg writes. “The courts have consistently recognized that, in order to perform its fundamental responsibilities, Congress can and must be able to acquire information from the president and the departments and agencies of the executive branch.”

Recently, however, investigative oversight of executive branch officials has been limited, thanks to the adoption of a stance first enunciated by the DOJ’s Office of Legal Counsel (OLC) in 1984, which curtailed Congress’ ability to hold executive branch officers in contempt. The consequence has been to force committees to seek subpoena enforcement through civil litigation, obstructing Congress’ core constitutionally mandated legislative function.

“The Miers and Holder cases have unquestioningly shown that the DOJ’s strategy of forcing subpoena enforcement into the courts is crippling Congress’ essential information-gathering authority,” notes Rosenberg. “The uncertainty about whether committees can impose meaningful consequences for delays or outright refusals to comply has already fostered an environment of agency slow-walking and assertions of nonconstitutional privilege claims. We are at the point where failure to mount immediate constitutional challenges is an abdication of Congress’ vested responsibilities.”

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