Victoria Nourse devastates Neomi Rao's attack on Congressional oversight authority. Unfortunately Rao is on the D.C. Circuit and Nourse is still a law professor.
Symposium: Forget about taxes: Mazars is a big case - SCOTUSblog
by Victoria Nourse (Georgetown Law)
***The president’s lawyers argue that Congress cannot engage in what they term “law enforcement.” But that term is unbearably vague. If any law enforcement claim is outside Congress’ oversight jurisdiction, then congressional oversight is in serious trouble. Think about Enron. Think about the companies that sold mortgages to those who could not pay for them and precipitated the Great Recession. Investigations in these cases could all be characterized as law enforcement because fraud or obstruction of justice was involved. The president’s argument extends the idea of law enforcement to include information that might show criminal activity.
But if potential criminal activity is the standard, then many of the long-held precedents of the court are wrong: McGrain (involving fraud), for example, and many a company subpoenaed — from Apple to Enron, Microsoft to Caterpillar, all of which have been subject to investigation (see Elise Bean’s 2018 book “Financial Exposure”) — could claim that Congress was acting outside its authority because it was engaging in law enforcement.
The truth is that Congress cannot prosecute. It has no power to deprive any individual citizen of liberty; in that sense, it never “enforces” the law.***
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