At the Trump tax records case argument justices repeatedly pressed House GC Douglas Letter to concede some limits on Congressional oversight power. Some commentators asserted he was unprepared for the barrage. Many faulted Letter for his failure to produce an example of Congressional subpoena power gone too far. Perhaps he should have been more blunt about why the House so mistrusts Donald Trump that its Committees issued a batch of subpoenas. Although it felt awkward to be so pressed on defense, I think much of the live blogging and following "the House blew it" commentary is overstated. Ian Millhiser is one in that camp. In his argument post-mortem at Vox (below) he accurately observes:
As the Supreme Court explained in Eastland v. United States Servicemen’s Fund (1975), “the power to investigate and to do so through compulsory process ... is inherent in the power to make laws.” Without such a power, “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.”
Eastland is one of many Supreme Court decisions emphasizing that Congress may conduct nearly any investigation, so long as that investigation is “intended to gather information about a subject on which legislation may be had.”
Courts, moreover, are forbidden to dig into the legislature’s reasons for conducting a particular investigation. “So long as Congress acts in pursuance of its constitutional power,” the Court held inBarenblatt v. United States(1959), “the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”
There are lots of reasons for the House to want Trump's records: mainly to determine if legislation is needed regarding disclosure, conflict of interest, and that special conflict of interest the foreign and domestic Emoluments clauses. I saw the Justices as pleading with Douglas Letter to solve their problem: define the limits of Congressional power. His“inability” come up with an example was a polite way of saying: my clients don't think it's any of your damn business.
If we want to be "originalist" ( not me- I don't grant even the Gospels as much deference as Clarence Thomas and Antonin Scalia give to the Federalist Papers ) Letter was expressing the basic underlying view of his client: the Speaker of the House is parliamentary sovereignty. In that view Congressional purpose is none of their damn business: laws are to be faithfully executed not sliced and diced.
No one seemed to embrace D.C. Circuit Judge Neomi Rao's dissenting view that `only the impeachment power expressly invoked' is authority for the issuance of a Congressional subpoena to the President. So there will be no sweeping vitiation of the oversight power. That would invite the probable Democratic majority in both houses with a Democratic President to declare war on the Supreme Court and expand it to fifteen (which I'm all in favor of).
But if Roberts wants to make peace he needs a majority larger than five. He is going to have to find a way to get Breyer and Kagan on board. That will mean a standard that identifies some sort of measure of bad faith of the McCarthyite wrecking crew variety as the limit on Congressional power. So I predict the subpoenae will be remanded with some minimal constraining instruction, perhaps along the lines of the bar on Bills of Attainder.
by Ian Millhiser