by Louis Fisher
After the House held Attorney General Eric Holder Jr. in contempt on June 28, it filed a civil suit in federal district court on August 13. The purpose is to enforce a subpoena issued by the Committee on Oversight and Government Reform, which requested documents for its investigation of "Operation Fast and Furious." The House complaint charges obstruction by the Justice Department and a need to understand why it provided false information to Congress in a letter of February 4, 2011. Senator Charles Grassley (R-Iowa) had written to the acting director of the Bureau of Alcohol, Tobacco, and Firearms (ATF), asking whether the agency had allowed assault weapons to leave the United States and reach drug cartels in Mexico. The department told Grassley his allegations were "false." Ten months later, the department retracted the letter and admitted that its response to Grassley contained "inaccuracies." ATF had allowed approximately 2,000 guns to flow from the United States into Mexico.
On October 15, the Justice Department filed a memorandum in district court requesting that it dismiss the House action. DOJ's brief contemplates a remarkably reduced role for committee investigations. In doing so, it relies heavily on Raines v. Byrd (1997), which involved the effort of one lawmaker—Senator Robert C. Byrd (D-W. Va.)—to challenge a statute that gave the president a line-item veto. The Supreme Court properly rejected lawsuits by members of Congress who vote on the losing side. Raines has no application to the constitutional authority of Congress to conduct oversight by depending on committees and subcommittees to discharge that legislative duty.
Undercutting committee authority
According to DOJ's brief, the "Founders intended Congress to use the tools provided in the Constitution—rather than the federal courts—to obtain documents that Congress believes necessary to engage in oversight of the Executive Branch." Of course legislative oversight is not "provided in the Constitution," nor are committee subpoenas, the contempt power or even executive privilege. A legislative tool that is found in the Constitution is the power of the purse. Under the reasoning of the brief, a House committee seeking agency documents would have to work with the House and the Senate to add punitive language to an appropriations bill and have it enacted into law, perhaps by having to override a presidential veto.
Recourse to the full statutory process is reinforced throughout the brief, which warns about the difficulty of congressional demands from "its myriad committees." DOJ prefers not to honor oversight by committees but to insist on the full legislative process and statutory controls. The brief identifies several congressional remedies. "It can tie up nominations" (available to the Senate but not the House), it "can legislate change within the Department of Justice" and "slash the budget in the area of concern"—again requiring statutory action. DOJ admits that the House "can hold—and has held—the Attorney General in contempt." First, the contempt power is not expressly provided in the Constitution. Second, the administration attempted to nullify the Holder contempt action by not following a statute that requires the U.S. attorney in the District of Columbia to take a contempt action to grand jury.
No comments:
Post a Comment