Congressional investigatory power is deeply rooted in our political system and is embedded in our Constitution, which grants Congress the power to legislate. As the Supreme Court has explained, “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.” Given Congress’s need for information to fulfill its legislative function, the Supreme Court has held that the congressional power to investigate is broad and is “indeed co-extensive with the power to legislate.”

Despite this constitutional history and Supreme Court precedent, executive branch officials have repeatedly refused to comply with congressional requests for information. Accordingly, congressional committees have often been forced to engage in civil court proceedings, and resolution of these disputes has been protracted. For instance, it has been more than two years since President Trump filed a lawsuit to declare the House Committee on Oversight and Reform’s subpoena of his accounting firm, Mazars USA, LLP “invalid and unenforceable.” Significantly, the House won in substantial part in federal court, including at the Supreme Court level, where the Court reaffirmed the House’s subpoena authority. Yet the Supreme Court remanded the case, and the litigation continues, which means that the House Oversight Committee has still not gotten access to the materials it needs to legislate.

This example illustrates a serious problem, but one that Congress can address. Most significantly, Congress can put in place expedited review for oversight-related litigation, as it has done in several other areas of law.

Hearing Witness, CAC Vice President Praveen Fernandes