On Wednesday, May 15th, the House Judiciary Committee is holding a long-overdue hearing on executive privilege and congressional oversight. As a political scientist who specializes in the powers of the president and Congress, I encourage Chairman Nadler and his colleagues on both sides of the aisle to take this topic very seriously.
Congress needs to stand up and fight executive overreach by this administration. Frankly, Congress should have fought the last administration as well. Over time, presidents have accumulated power at the expense of Congress. Below, I offer some simple but well-supported arguments that detail how the current Administration is badly misreading the Constitution and significantly – even dangerously – overreaching.
- Congress has the right to investigate the executive branch. Congress first investigated the George Washington administration for a military failure on the Western frontier (the St. Clair expedition). Congress asked the president for documents about the mission, and George Washington gave them to Congress, acknowledging and establishing Congress’ right to investigate. Congress has investigated during wartime and peacetime. Congress investigated and exposed wrongdoing by numerous administrations, including and especially Grant, Harding, Johnson, Nixon, Reagan, Bush, and Obama.
- The Courts have upheld that right. In McGrain v. Daugherty (1927), the court specifically upheld Congress’ right to enforce a subpoena. It said that “the power of inquiry—with the process to enforce it—is an essential and appropriate auxiliary to the legislative function.” In that case, the court said that an investigation need not be directly related to lawmaking in order to be constitutional.
- Executive privilege is a doctrine with vague roots and hard limits. Even in US v. Nixon, in which the court recognized a limited right to executive privilege, the court said that executive privilege applied most strongly to military, diplomatic, and national security secrets. Given Congress’ strong interests and rights in the area of national security, it could (and does, see the Intelligence Act of 1980) make strong claims to that information as well. If policy or presidential wrongdoing is at issue, there is no evidence that the executive has the right to keep information from Congress.
- The unitary executive theory is a flimsy argument about presidential power.
- Congress has always created, directed, and created rules for staffing the executive branch. Who created the State Department? The Defense Department? Congress. Who decides whether its employees are partisan appointees or merit-based civil servants? Congress. Who decides what laws are to be enforced by the bureaucracy? Congress. In 1789 Congress created the Attorney General to “prosecute and conduct all suits in the Supreme Court” and “give advice and opinion on questions of law.” As long as it has the power to do all of that, it has every right to investigate executive decision making in order to execute its lawmaking functions.
- The president isn’t the only executive branch official mentioned in the Constitution. It specifically mentions the cabinet, and says that the president has the fairly weak power to be able to request their cabinet members’ opinions in writing. Until the 20th Century it was common practice for the cabinet to deal directly with Congress for lawmaking and appropriations and leave the president out of the loop entirely.
- The president’s job is to see that the executive branch faithfully executes the laws of Congress, not to use executive personnel to subvert the will of Congress. Unitary executive theory seems to make the president into a lawmaking branch that is not accountable to Congress. Nothing could be more anathema to the framers of the Constitution, who felt that the combination of legislative and executive power in the same set of hands was the definition of tyranny.
- Proponents of the unitary executive theory sometimes refer to Federalist 70 as a justification for their argument, but that is a non–sequitur. In that argument, Hamilton argues in favor of energy, quick decision making, and secrecy as important characteristics of the executive. It’s important to not over-interpret Hamilton’s argument. If he personally favored a strong executive, he wasn’t the only or the most important voice at the Constitutional Convention, and he was not arguing for an imperial presidency here. He is arguing against Ben Franklin, who wanted a plural presidency like the old Roman triumvirates. He’s saying one president is good; he’s not, in a public letter, actually conferring any special authority on him.
- It is important that Congress put a stop to the executive overreach that presidents from both parties have engaged in. In our system, short-term practices have a way of becoming precedents that are set in stone for generations. Checks and balances don’t happen magically or automatically. Members of Congress have to act in the interests of their institution (and potentially against their own short term political interests) in order to prevent executive encroachment.
If Congress is unwilling to fight executive overreach, it is hard to say what “checks and balances” might look like a century from now.