A few preliminary thoughts on the complaint the U.S. House filed against Attorney General Holder in the Fast and Furious case.

I never really understood what authority Congress has to do something like this. The complaint cites some unspecified power.

24. The Constitution bestows upon the House, by itself and through its committees, the power to investigate matters and conditions relating to subjects within Congress’s legislative jurisdiction and to conduct oversight of the other branches of the federal government, including the Executive Branch which includes the Department. That power includes the constitutional authority to require the production of documentary evidence from Executive Branch officials and agencies, by way of subpoenas duces tecum.

There is no citation in that paragraph. They must be citing some inherent power of the House. I seem to recall reading somewhere that the Congress has a jail cell, and through some inherent contempt power, they locked people up in the 19th century. I know there is case law to support this, but I don’t think there is anything in the text of the Constitution that grants this power, short of some necessary and proper incidence of their law making powers, perhaps.

The Congress is one of enumerated powers. Inherent congressional powers to compel other branches of government to produce documents seems to broach the separation of powers, putting aside any issues of executive privilege.

The complaint goes on to cite a number of House Rules that permit Congress to subpoena and otherwise request information. But what authority did Congress have to pass these rules? Certainly the House may adopt various rules for its own proceedings. Const. art. I, § 5, cl. 2 (“Each House may determine the Rules of its Proceedings . . . .”). But where does the Constitution give Congress the power to conduct oversight of the other branches, and require that they produce documents? The rule-making provision seems, by its text, to apply to internal procedures. The complaint’s argument seems a bit circular. The power to pass rules for internal deliberations seem plenary, though I’m not sure what basis exists to guide rules affecting other branches.

Can the President haul in members of Congress who get in the way of his duty to take care that the laws are faithfully executed? Can the President haul in Judges who do likewise (oh I bet Obama would love to have a beer summit with Chief Justice Roberts!).

I recognize that the Justices do testify in front of Congress, presumably on budget matters affect the judiciary, though these questions frequently meander onto other topics–such as diversity among clerks and cameras in the court. Frankly, these visits always troubled me. Is the funding for the courts contingent on these meetings? If no Justice agreed to come, would the appropriation be cut off? Is that even constitutional? What other strings can Congress place on funding? Could congress make funding contingent on placing cameras in the Court? Opening the front doors up?