Rule of Law

OP-ED: Clyburn committee’s oversight could depend on court ruling

The House formally voted Thursday to establish a new select committee to be chaired by U.S. Rep. James Clyburn. With responsibility for overseeing the huge relief packages that Congress has passed to try to strengthen the economy as the nation fights the COVID-19 pandemic, this new committee has its work cut out for it.

Whether that committee can do its job effectively for the American people and ensure that the relief funds go to those who need them most may depend significantly on what happens in a case that is currently pending before the federal appeals court in Washington, D.C., called Committee on the Judiciary of the U.S. House of Representatives v. McGahn. In that case, the court is considering whether the House Judiciary Committee can ask the federal courts to enforce a subpoena it issued to former White House counsel Donald F. McGahn after McGahn refused to comply with the subpoena.

Earlier this year, a three-judge panel of that court held, by a 2-1 vote, that the House cannot go to court to enforce that subpoena, but the full court voted to reconsider that decision and will be holding oral argument, by telephone, on Tuesday.

Although this case is narrowly about a politically charged battle between House Democrats and President Trump, it could have much broader implications for Congress’ ability to engage in oversight, including the critically important oversight Rep. Clyburn’s committee is tasked with undertaking. Indeed, how the court rules in this case could affect how effectively not only this Congress, but future Congresses controlled by either political party can carry out their oversight power.

Oversight power has deep roots in our nation’s political tradition, and congressional investigations, including into the executive branch, date back to the nation’s very beginning. That’s why the Supreme Court has repeatedly recognized that Congress needs to be able to investigate to fulfill its other responsibilities under our Constitution and that its power to do so is “broad.”

And that’s why Congress needs to be able to go to the courts if it issues a subpoena seeking information as part of a valid investigation and the subject of that subpoena won’t comply. The courts help give congressional subpoenas teeth, ensuring that Congress can not only ask questions, but also get answers.

If the court concludes in the McGahn case that the House cannot enforce its subpoenas against Executive Branch officials in court, that would, as Judge Judith Rogers explained in her dissent from the panel’s earlier decision in McGahn, “all but assure[] future Presidential stonewalling of Congress.” That is a particularly alarming possibility now, given that this administration has engaged in unprecedented obstruction of congressional oversight efforts. Indeed, President Trump has already signaled that he does not intend to comply fully with the oversight provisions written into the first relief package Congress passed.

Given the amount of discretion this administration has to determine how to distribute hundreds of billions of dollars, it is critical that there be meaningful oversight to ensure that that money is going to the people who need it most. Rep. Clyburn and his colleagues on the select committee can and should robustly oversee this administration’s implementation of the relief package, but asking the right questions won’t be enough if the administration refuses to answer them.

If the executive branch refuses to provide answers, the House will need to be able to go to court to get those answers. Whether it can will likely depend on how the D.C. federal appeals court rules in the McGahn case. Fortunately, precedent and American history are on the House’s side.

South Carolina native Brianne Gorod is chief counsel of the Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text, history and values. She filed a brief in support of the House Judiciary Committee in the McGahn case. Follow her on Twitter @BrianneGorod.

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