In this final chapter, we examine two additional reforms that implicate the relationship between Congress and the president: a narrowing of congressional delegations of emergency powers, with special attention to the Insurrection Act; and an expedited process for the enforcement of congressional subpoenas.
The Insurrection Act: Background
In a “tradition, born in England and developed in the early years of our nation,” Americans have expected that the military will not be involved in domestic law enforcement. [591] The Constitution guarantees the states federal protection against “Invasion” and against outbreaks of “domestic Violence” upon “Application of the Legislature, or the Executive (when the Legislature cannot be convened).” [592] The Posse Comitatus Act bars the deployment of the U.S. Armed Forces “to execute the laws” except “in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” [593]
The Insurrection Act, enacted in 1807, is the core statutory authorization that defines those “cases” and “circumstances.” In brief, the law authorizes the president to order the armed forces and militia into action where states call upon federal assistance in quelling an “insurrection,” where unlawful activity or “rebellion” impedes the enforcement of federal law through “the ordinary course of judicial proceedings”; and where an outbreak of “domestic violence” infringes on the constitutional rights of citizens and the state’s authorities are “unable, fail, or refuse” to protect those rights. [594]
The act has been “plagued by both broad and undefined terms throughout its two-hundred year history.” [595] Even on a strict reading of its provisions, however, it is an extraordinarily broad delegation of power to the president. In more than 200 years, presidents have invoked the law to deploy the U.S. military and the National Guard, sometimes at the request of states and sometimes without such a request. The Supreme Court in Sterling v. Constantin suggested that the president should exercise this statute in “good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance.” [596] Sterling suggested further that the court would give the president some deference on this question. But the court has never resolved other questions about the Insurrection Act, including whether allegations of executive abuse of authority are political questions or justiciable, and, if justiciable, who has standing to bring such claims.
Congress has never interceded to block a president from ordering troops into service pursuant to this statute. Presidents have invoked the act to quell outbreaks of domestic violence, as President George H.W. Bush did in responding to the rioting that broke out in Los Angeles after the acquittal of police officers charged in the beating of Rodney King. President Eisenhower exercised this authority to enforce court-ordered desegregation of public schools in Arkansas, and President Kennedy did the same in Alabama and Mississippi.
However, on one recent occasion, Congress exhibited keen concern that presidents not be given license to overread the Insurrection Act. In the wake of the devastation in New Orleans caused by Hurricane Katrina, President George W. Bush encountered resistance from Louisiana Governor Kathleen Blanco to his offer to send troops and the National Guard to help restore order in a city in which basic public services had collapsed. The Bush administration then dawdled over whether it had the authority to send in troops without Blanco’s request or consent. The Justice Department eventually concluded that the Insurrection Act was available for this purpose, but in the end the Bush administration used different authorities and sent to Louisiana the “largest domestic deployment of troops since the Civil War,” but only for a defined humanitarian relief role, not a law enforcement role. [597]
In light of the fallout and confusion surrounding Bush’s authority under the Insurrection Act, Congress in 2006 quietly enacted an amendment, titled “Enforcement of the Laws to Restore Public Order,” to supply presidents with expanded flexibility under the act. The amended law authorized the president to “restore public order” if “the constituted authorities of the State ... are incapable of maintaining public order.” [598] The trigger for this authority was “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition.” This law had been tucked away in a large defense authorization measure and soon became controversial for conferring on the president dangerous additional discretion to inject the U.S. military into domestic law enforcement. Congress repealed the amendment in January 2008, restoring the previous version of the law.
The Insurrection Act: The Trump Era
In 2020, Donald Trump threatened to use the Insurrection Act in an aggressive way to quell protests that swept through a number of American cities after the death of George Floyd at the hands of Minneapolis police. From the Rose Garden, he announced on June 1 that if the nation’s governors did not call up National Guard troops to “dominate the streets,” he would “deploy the United States military and quickly solve the problem for them.” [599] Trump did not mention the Insurrection Act expressly, but everyone understood that it was the legal basis for the threat. Earlier that day, according to news reports, Chairman of the Joint Chiefs of Staff Mark A. Milley and the president had a “heated discussion in the Oval Office over whether to send troops into the streets.” [600] According to the New York Times , Milley persuaded Trump not to invoke the Insurrection Act at the time.
Trump took more aggressive action in the District of Columbia. Instead of invoking the Insurrection Act, the president exercised his authority over the D.C. National Guard and directed the mobilization of various components of federal law enforcement to establish a massive presence on the streets of the capital. [601] Just after Trump’s Rose Garden appearance, U.S. Park Police officers, assisted by the D.C. National Guard, used force to clear protesters from Lafayette Square, adjacent to the White House. The president then moved through the cleared area in the company of General Milley and Defense Secretary Mike Esper for a press photo opportunity, Bible in hand, in front of St. John’s Episcopal Church.
Against the background of these events, Trump’s threatened invocation of the Insurrection Act was met with criticism from former military leaders, including former Chairman of the Joint Chiefs of Staff Mike Mullen. Defense Secretary Esper also retreated from association with the president’s remarks and actions. Two days after the Lafayette Park episode, Esper declared his opposition to the use of the Insurrection Act in dealing with the unrest that broke out in major cities after Floyd’s death. [602] Esper expressed the view that active-duty troops should be deployed within the United States “only in the most urgent and dire of situations” and that “[w]e’re not in one of those situations now.” [603] That same day, however, Esper “overturned an earlier Pentagon decision to send a couple hundred active-duty soldiers home from the Washington, D.C., region” after he attended a meeting at the White House. [604]
By the evening of June 3, Trump appeared ready to tamp down the controversy. He announced that he would not have to invoke the Insurrection Act because “we have a very powerful National Guard, over 300,000 men and women, and we can do pretty much whatever we want as far as that.” [605] On June 7, Attorney General William Barr denied that Trump had directed that “10,000 active-duty troops ... help crack down on protests in D.C. and across the country.” [606] Barr then insisted that “[t]he president never asked or suggested that we needed to deploy regular troops at that point.”
Congressional leaders continued to press for clarification of the administration’s position on the use of the Insurrection Act and the basis for its use of force in the District of Columbia. The chairman of the House Armed Services Committee called for a hearing and dispatched a letter to explore essential questions “about the use of military forces in response to peaceful protestors in the District of Columbia, the movement of active duty troops to staging areas around the country’s capital, and plans to deploy active duty troops around the United States should the President invoke the Insurrection Act.” [607] Esper and Milley responded that at no time “were [active-duty troops] ever in the District for purposes of civilian law enforcement.” [608]
Milley also expressed regret that he had participated in the Lafayette Square events, which “created a perception of the military involve[ment] in domestic politics.” [609] “I should not have been there,” he told the graduating class of the National Defense University, and he declared that it had been “a mistake that I have learned from[.]” His predecessor, retired General James Mattis, joined the debate with the publication of an extraordinary letter. Mattis wrote that he never imagined that “troops ... would be ordered under any circumstance[s] to violate the Constitutional rights of their fellow citizens—much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.” [610] He stressed his commitment to the principles underlying the Posse Comitatus statute: “At home, we should use our military only when requested to do so, on very rare occasions, by state governors .... Keeping public order rests with civilian state and local leaders who best understand their communities and are answerable to them.”
Within days of the president’s Rose Garden threat to use troops and the Lafayette Park photo op, the norms of military noninvolvement in law enforcement had received powerful affirmation from the chairman of the Joint Chiefs of Staff and the president’s former defense secretary, with more unsteady but still remarkable support from the incumbent secretary. It was an unprecedented public rebuke of—and perhaps warning issued to—a sitting president.
But it also prompted reflection on the broad authority that the Insurrection Act confers on the president. The act’s multipronged structure, antiquated language, and lack of defined terms are an invitation to abuse by any president, like Trump, who has a weak understanding of and commitment to constitutional norms. Apart from the 2006 amendment, enacted and then quickly repealed, the Insurrection Act has not undergone a review for more than 200 years.
Reform: The Insurrection Act
As noted earlier, presidents have often used the Insurrection Act in contexts where a real breakdown of federal law enforcement in the states warranted such intervention. But the statute is old and vague, and the prospect in June 2020 of a president with Trump’s demeanor and impulsiveness exercising this authority raised the question of whether the law should be reviewed and clarified. We believe so.
One proposal for reform was introduced in the Senate in the immediate aftermath of the George Floyd protests and Lafayette Park episode. Senate bill 3902 would amend the Insurrection Act to limit presidential authority and provide for controls on potential abuse. It would require the president to consult with Congress before invoking his or her authority under the statute; require the president, the secretary of defense, and the attorney general to jointly certify to Congress that the state is unable or unwilling to enforce federal law; and “sunset” any deployment after fourteen days unless it is specifically extended by a joint congressional resolution. Active-duty troops deployed pursuant to the statute would participate in law enforcement activity only if expressly authorized by law. Governors would be authorized to request presidential invocation rather than act only if the legislature is unable to convene and call for assistance.
The Senate Armed Services Committee considered and rejected the bill. We believe that on the whole this reform proposal has merit, but our preferred approach, while consistent in some respects, differs in others. Specifically, we propose the following:
Reform: Emergency Powers Generally
The Insurrection Act confers a type of emergency power on the president in response to domestic disturbances. But it is usually not included in lists of presidential emergency powers since the triggering criterion for its use is not a presidential declaration of an “emergency” per se. However, the president possesses 123 statutory powers that become available when he or she declares a national emergency. [613] Trump has generated some controversy under these authorities, but in general Trump’s emergency power declarations have not been more outlandish than those of his predecessors going back to the 1970s. Still, there is a problem with excessive delegation of emergency powers that Trump highlighted, and that Congress should consider reforming.
The National Emergencies Act of 1976 (NEA) establishes procedures for the president to exercise these emergency powers. [614] They include a requirement of a public declaration for every emergency, reporting duties to Congress, and a self-executing termination of the emergency unless the president issues a notice of renewal in the Federal Register . Congress believed that the NEA would bring discipline and accountability to presidential emergency power declarations, but it has not. The main disciplining tool under the NEA was a legislative veto that the Supreme Court declared unconstitutional in INS v. Chadha . With that threat gone, presidents have declared and extended emergencies in a variety of contexts with little congressional or judicial pushback.
As of July 2020, thirty-eight declared national emergencies were in effect under the NEA. [615] Despite the termination provision in the NEA, it is easy for presidents to renew emergency powers and for emergencies to remain in effect for a long time. For example, the emergency declared by President Carter in 1979 in response to the Iran hostage situation has been renewed annually by every president since and is still in effect today . President George W. Bush over two terms declared fourteen national emergencies, eleven of which are still in effect today. President Obama over two terms declared twelve national emergencies, ten of which remain in effect today. As of July 2020, President Trump in his first term declared eleven new national emergencies.
The vast majority of the emergencies in effect today—including the one from the Carter era—were declared under the International Emergency Powers Act of 1977 (IEEPA). IEEPA gives presidents a wide array of economic powers on the basis of their unilateral declaration of an emergency with respect to “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.”
An “emergency” in ordinary language is a serious or dangerous situation that requires immediate redress. But that is not how presidents have understood their emergency powers as delegated by Congress. For example, President Obama in 2015 declared a national emergency relating to violence and political unrest in Burundi, President George W. Bush in 2003 declared a national emergency related to the sale of Iraqi oil, and President Clinton in 1996 declared a national emergency to address a Cuban military shootdown of unarmed American aircraft in international airspace. One can debate whether these were emergencies in the ordinary-language sense at the time they were declared. But they do not seem like emergencies today, in 2020, even though presidents in the intervening years have renewed all of them, and all remain in effect. As these examples suggest, presidents have extraordinary discretion to proclaim emergencies and (under the National Emergencies Act) to renew them in one-year intervals, thereby extending them indefinitely. And courts have typically upheld Congress’s broad delegations of emergency power.
The most controversial emergency declaration under Trump was one to allocate funding for a border wall with Mexico. [616] “The current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency” Trump proclaimed, as a predicate for invoking emergency construction authority under 10 U.S.C. § 2808. Many critics questioned whether the emergency at the border was genuine, and the validity of the emergency proclamation is currently being litigated. Presidents have often declared emergencies, whether real or not, in analogous situations in which they identify a threat of some kind.
An analogy is President Clinton’s emergency declaration to address the 1996 Cuban military shootdown of two Brothers to the Rescue aircraft. Presidents Bush, Obama, and Trump have modified and reaffirmed the national emergency first declared twenty-four years ago. The “emergency” is still in place. But it has morphed into a navigation policy with the aim—like the one Trump invokes for the wall—of preventing (among other things) “a mass migration from Cuba [that] would endanger our security by posing a disturbance or threatened disturbance of the international relations of the United States.” The “threat” posed today by a mass migration from Cuba is not a “real” emergency and is not obviously a greater “threat” than the one posed today by migration from Mexico.
Our point here is not to defend Trump’s southern border proclamation but, rather, to highlight how presidents have often used delegated emergency powers in ways that seem to fall short of true emergencies. What Harold Koh and John Yoo correctly said almost three decades ago remains true today: Presidents “have declared national emergencies with little regard to whether a real emergency has actually existed.” [617]
The most consequential impact from emergency powers during the Trump era, and the most revealing evidence about the scope of this power, came in international affairs. On May 19, 2019, Trump declared a national emergency under IEEPA that was entitled “Securing the Information and Communications Technology and Services Supply Chain.” This declaration, along with the Trump administration’s discretionary placement of Huawei, a global Chinese technology company, on a trade blacklist—another discretionary exercise of delegated power—made it hard for Huawei (and other China firms) to maintain its business, since it relied heavily on U.S. components. More broadly, the combined orders—all at Trump’s discretion, without any congressional consultation, much less approval—had a hugely disruptive effect on global technology supply chains generally. Trump has also declared emergencies related to (among other things) suspending preferential treatment to Hong Kong, blocking the property of certain persons associated with the International Criminal Court, and initiating various authorities to respond to the coronavirus pandemic.
Finally, Trump threatened to invoke IEEPA to order U.S. companies to leave China. This would be an aggressive use of the IEEPA power that no president has attempted, and Trump has not yet followed through. But it is one indication of IEEPA’s scope that Trump could easily declare an emergency and achieve this end, if he wished, in light of IEEPA’s extraordinarily weak trigger (“any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States”) and its extraordinarily broad powers (including, for example, to “regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States”).
We do not have space here to propose a comprehensive plan to rein in the 123 delegations of emergency power to the president. This is an area that obviously demands Congress’s serious and extended attention, since the accountability mechanisms that Congress sought to impose in the NEA have clearly failed. The foundation of any reform must be to try to re-create the limitations sought by the NEA but undermined by Chadha. The criteria for presidential renewal of emergencies after one year should be tighter and should tighten over time. And the executive branch should be required to explain and defend each renewal each year in written reports to Congress and in hearings before the renewal becomes effective. These two steps alone will bring significant discipline to the practically automatic renewals, and morphing emergency declarations that have become common practice. Congress should also commission a study of all 123 emergency authorizations on the books, with special attention to IEEPA, to ensure that they remain necessary in modern times as written.
Congressional Subpoena Enforcement Authority: Background
In 1791, the House of Representatives launched the “first parliamentary investigation of the executive branch” when it set up a committee of inquiry to examine Gen. Arthur St. Clair’s disastrous command of the Army in the Ohio country. [618] President Washington agreed that the House was entitled to some information but not any information “the disclosure of which would injure the public.” Later, when the question arose of whether a Cabinet secretary would appear before the House to provide testimony, James Madison expressed his opposition. For the executive to submit to such a demand would contravene the very “principles of government” under the constitutional plan for separated powers.
Ever since the Washington administration, Congress and the executive have periodically clashed over this tension between Congress’s investigative and oversight powers, and presidents’ concern with overreach and protecting the measure of confidentiality deemed essential to the conduct of government and exercise of executive power. In the extreme case, Congress has acted on its claimed “inherent” constitutional authority to arrest recalcitrant executive branch officials for contempt of its demands for testimony or materials. In 1916, for example, it arrested a U.S. Attorney for the Southern District of New York for issuing an incendiary letter assailing legislators’ motives in initiating an investigation of his alleged misconduct. The Supreme Court eventually ordered his release, judging the offense given by the letter to be unrelated to Congress’s legitimate legislative concerns. But it did affirm that the House possessed “a power implied to deal with contempt in so far as that authority was necessary to preserve and carry out the [House’s] legislative authority.” [619]
Congress also developed options other than physical arrest. In 1857, it enacted a law imposing criminal liability for failure to comply with a congressional subpoena. The speaker of the House or the president of the Senate could certify the refusal to the district attorney for the District of Columbia who would have the “duty” to prosecute. [620] Rejecting a challenge to the constitutionality of the law, the Supreme Court expressed sympathy for Congress’s frustrations in achieving compliance with its demands: “The history of Congressional investigations demonstrates the difficulties under which the two Houses have labored, respectively, in compelling unwilling witnesses to disclose facts deemed essential to taking definitive action.” [621]
The law today remains much as enacted in 1857. [622] But Congress has encountered significant limits on its efficacy. In the case of subpoenas issued to executive branch officials, the Office of Legal Counsel has for decades and across administrations of both parties taken the position that the executive has full discretion to decline prosecution under the 1857 law if the official refusing compliance has invoked executive privilege against the disclosure of the information sought by Congress. [623] The executive branch’s legal position is even broader. The Justice Department has suggested that it might refuse to enforce criminal contempt even in situations that do not involve a claim of executive privilege. [624] And the Office of Legal Counsel has questioned whether the House has the inherent authority to directly enforce its subpoenas.
In light of these positions, and the executive branch’s control over criminal actions, as a practical and legal matter the “most likely route” for Congress to challenge noncompliance is a “civil action seeking enforcement of the subpoena.” [625] Congress has conferred on the federal courts jurisdiction to order compliance with a civil action for enforcement. [626] In cases of this kind, Congress authorizes a committee to sue to demand compliance. The courts must determine whether the subpoena is valid and issued for a valid legislative purpose, and must rule on any claim of executive privilege that would excuse noncompliance. One of many complications presented by this option is the inevitable delay associated with any litigation. “[C]ourts tend to move at a pace that is poorly suited to Congress’s need for timely information.” [627] Congress thus faces a loss in “both the value of the disclosure and the committee’s ability to engage in effective, timely oversight.” [628]
The delays can be protracted. A relatively recent action to enforce a subpoena against the attorney general in the Obama administration remains on appeal before the U.S. Court of Appeals for the District of Columbia more than six years after the suit was filed. An earlier suit, to enforce a subpoena against senior aides in the George W. Bush White House, moved slowly and inconclusively through the judicial process for nineteen months before Congress and the executive settled the matter through negotiation.
For many years, negotiated settlement between Congress and the executive branch—as part of what is called an “accommodation process”—was the most common way to resolve these interbranch conflicts. The political branches would bargain over the balance to be struck between legislative need and executive concerns with confidentiality and respect for their co-equal spheres of operation. Courts have encouraged this process as an outcome superior to a resolution imposed by the judiciary and have gone so far as to state a preference that “judicial intervention ... be delayed until all possibilities for settlement have been exhausted.” [629] In 2008, a federal court could state with confidence that this “process of negotiation and accommodation ... most often leads to resolution of disputes between the political branches.” [630] The courts had reason to express confidence in the negotiation-and-accommodation process. The 2008 subpoena enforcement action against a George W. Bush administration official asserting privilege was only the second of this kind in the nation’s history.
The accommodation process operates on the strength of a norm governing the conduct of interparty and interbranch relations. In the conditions of an intensifying political polarization, the norm has increasingly come under strain. During the Trump presidency, the norm began to fall apart. It left a serious question of whether Congress has any meaningful tools available to vindicate legitimate requests for information for investigative or oversight purposes.
Congressional Subpoena Enforcement Authority: The Trump Era
Once the Democrats gained control of the House in the 2018 midterm elections, the relations between the president and the opposition party in the legislature became poisonous—even more so than has been typical in recent decades. The House Democrats had the congressional means to investigate all the controversies that had developed in the prior two years, and it proceeded accordingly. The conflicts escalated and reached their peak when the House undertook an impeachment inquiry in 2019. Trump eventually responded with a “‘we’re-fighting-all-the-subpoenas’ strategy,” [631] which lasted well beyond impeachment and represented the judgment that the House was acting systematically in bad faith and that its demands required all-out resistance.
Those defending the administration blamed the collapse of accommodation on Democratic hostility to Trump, arguing that “[n]ever before have so many congressional committees issued so many subpoenas demanding documents and testimony from so many executive-branch officials.” [632] A contrary view allocated more of the responsibility to Trump, whose defiance was “different not just in degree but in kind.” [633]
How far the administration was prepared to take this defiance was established during the impeachment process. In investigating the potential grounds for impeachment, Congress was presumably acting at the height of its constitutional authority to extract relevant information from the executive branch. The Trump administration refused all cooperation. The White House counsel advised the speaker of the House that the “[a]dministration cannot participate in your partisan and unconstitutional inquiry.” [634] Nine administration officials refused to testify; executive departments such as the departments of Defense and State rejected all requests for the production of documents.
The House responded to what it termed the president’s “complete defiance of every single impeachment-related subpoena served on the Executive Branch” [635] by fashioning and voting on an article of impeachment charging obstruction of Congress’s access to relevant information needed for the conduct of its constitutional responsibility. [636] The president’s allies responded by challenging the House to seek civil enforcement of its subpoenas before proceeding to an impeachment vote. With an eye on the calendar as 2019 drew to a close, the Democratic House majority concluded that court action would not be timely enough to allow for a fully litigated resolution of these conflicts. Months would be required for the lawsuits to work their way through the courts, for House investigators to receive and consider whatever information these enforcement actions would yield, and for the House to then vote on articles and transmit them to the Senate for trial before the 2020 presidential election campaign was in full swing. The House concluded formally that judicial review was “unnecessary and impractical.” [637]
It might have been true that the House discounted the prospects for successfully urging the courts to expedite review precisely because this was no ordinary case but, rather, a dispute “essential to the ongoing impeachment inquiry.” [638] The House was unprepared to take its chances. The administration dug in. Even after the impeachment process concluded, the administration made clear that it would not accommodate the House in any other aspects of its investigative or oversight functions.
By the fourth year of the Trump administration, it became apparent that the problem of delay undermined the utility of this avenue for relief in many circumstances. And as the impeachment episode illustrated, those circumstances could include ones of the greatest consequence. Yet with the accommodation process in tatters, the House unlikely to use its “inherent” authority to enforce by arresting or fining recalcitrant executive branch officers, and the executive branch declining to prosecute criminal enforcement cases referred to the U.S. attorney for the District of Columbia, preserving the role of the courts acquired some urgency.
And then, in 2020, a potential bar arose more fundamental than the slowness of subpoena enforcement. In a case involving the House Judiciary Committee’s attempt to enforce a subpoena against former White House Counsel Don McGahn, a divided panel of the D.C. Circuit held that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.” [639] Cutting through the legal niceties, the decision rests on the view that interbranch disputes are inherently political ones in which courts should not intervene. Each branch has political weapons it might use to gain the advantage in this struggle. Congress has many tools to penalize a noncooperative president and perhaps induce him or her to work harder toward accommodation—such as placing holds on nominations, or delaying or refusing to vote on appropriations for administration priorities. The president, in turn, has tools to fight back, including the “bully pulpit” from which congressional motives or reasonableness can be questioned and public opinion swayed, and discretionary authority over policy and programs it can deploy to recruit allies, reward supporters, and exact costs from adversaries.
The opposite view—again, cutting through legal niceties—is that while courts should encourage the other branches to resolve these disputes by accommodation, they retain an indispensable policing role. A deeply polarized politics diminishes the appetite and limits the room for compromise. If all that remains is “constitutional hardball,” an all-out war waged by political means, the risks are high that neither Congress nor the executive will come to the negotiating table in good faith. Each will seek total victory where it can, at considerable cost to the capacity of the branch on the losing end to discharge to some reasonable degree its core constitutional functions. These conflicts take very different shapes, and accommodation is more likely, if both Congress and the executive understand that the other can call on the courts to intervene.
As of this writing it is uncertain whether the D.C. Circuit’s view in the McGahn case will survive en banc or Supreme Court review. If it survives, it creates a high and perhaps insurmountable constitutional hurdle to Congress enforcing subpoenas against defiant executive branch officials, and there is no point to reform the subpoena enforcement process. The proposed reforms that follow thus assume that the decision will not stand and that Congress will retain the authority to enforce its subpoenas through civil processes in federal court against executive branch officials.
Reform: Congressional Subpoena Enforcement Authority
If Congress’s enforcement of its subpoenas through civil lawsuits survives constitutional scrutiny, the process should operate in a way that allows courts to intervene in a timely manner to resolve disputes and create normative expectations. In other words, Congress should craft its subpoena enforcement power in a way that is timely and efficacious. To achieve this end, a proposal for expedited, “fast-track” access to the courts in subpoena enforcement cases is needed. One such proposal passed the House by voice vote in 2017 and sets the broad terms for a potentially effective fast-track reform. The proposal would have amended the core jurisdictional statute governing congressional subpoena enforcement by imposing a “duty” on the courts to “advance on the docket and to expedite to the greatest possible extent the disposition of any” civil enforcement lawsuit. [640] Congress could request a three-judge panel with direct appeal to the Supreme Court.
We support this approach. It would provide the opportunity for at least some effectively expedited review. But we would not overstate its benefits. In particular, in legislative-executive conflicts, even an expedited procedure may be unable to yield a judicial decision on the timetable necessary to resolve the dispute. For example, in the impeachment of Donald Trump, the House initiated its investigation in mid-September 2019 and voted on impeachment three months later. The House apparently felt under pressure, as the 2020 election year neared, to complete its investigation, vote, and transmit the articles to the Senate for a trial as soon as possible. On this schedule, the House stood virtually no chance of litigating access to testimony that the administration, asserting immunity on behalf of senior White House aides, had directed that they not provide.
But in other circumstances, involving more protracted oversight and investigative activities, the availability of expedited review could matter. The mere prospect of more timely review could affect the executive’s strategic judgments in deciding whether to negotiate toward an accommodation. With expedited review, an administration could not count as confidently on “dragging out” the conflict and perhaps discouraging Congress from persisting in its demands.
Of course, the courts may well rule against Congress on the scope of its enforcement power, and on the attendant scope of executive and related privileges. Each time Congress resorts to the courts, it risks losing and setting an institutionally disadvantageous precedent. Depending on the case, this is a consideration for Congress in choosing between litigation and other means of inducing executive cooperation, such as the placing of holds on nominations or adverse action or delay on the administration’s policy priorities.
Still, we conclude that if courts will remain open for judicial resolution of these disputes, it is better to have more “teeth” in this alternative. Fast-track authority somewhat neutralizes the factor of extended delay and should prove useful—if not in all cases, at least in some. And it will have some effect on the branches’ weighing of the costs and benefits of various strategies, including a resolution by negotiation and accommodation.
The 2017 House-passed bill would also allow for the courts to impose monetary penalties on officials who “willfully” failed to comply with a subpoena. We doubt that this is a constructive element. It would serve only to encourage charges of willfulness and demands for penalties, and it may better serve the orderly resolution of these issues to relieve the courts of the responsibility of arbitrating these kinds of disputes.
Finally, it has been suggested that Congress revive the use of its inherent authority to vote contempt and arrest or fine offending officials. Neither the House nor the Senate has shown interest in resorting to these means, and in these times, when partisan conflict is at fever pitch, this seems a prudent act of self-restraint.