TalkLeft, The Congressional Subpoena Power: How It Is Enforced
As the Congress and the Executive Branch move inexorably towards a clash regarding the Executive Branch's refusal to accede to information requests from the Congress and the resulting subpoenas that have been issued, it is worthwhile to review the powers of the Congress in this regard. Fortunately, in 2003, the Congressional Research Service produced a handy report on the subject:
This post is intended to provide some factual background on this subject as there has been much bad information bandied about on this subject. I will be writing a subsequent post on the question of Congressional oversight powers related to its subpoena and information gathering powers.
….perhaps more interesting is how Congress ‘acquired’ its power of subpoena in the first place.
Such Congressional power is not mentioned in the Constitution. Subpoena is a judicial power– and resides only with the courts under our American federal system.
In the 1790’s Congress somehow invented its very own judicial authority to invoke a new infraction called “Contempt of Congress”.
To enforce this new crime, Congress soon began granting itself the judicial power of subpoena. There were strong objections to all this at the time, but in 1821 a friendly SCOTUS decision said it was all OK because Congress had mystical ‘implied’ powers far beyond the mere text of the Constitution.
Congress has used and expanded this phantom subpoena power ever since.
However, Congressional ‘subpoena’ power is a complete usurpation of Constitutional authority (law); it does not exist there.
Very small potatoes though, when we now have seen the Federal Executive eliminate Habeas Corpus (..also with the tacit approval of the other two Federal branches).
I’m not in a position to research this, but if I had to guess, I’d guess that the power was derived from the Parliamentary model.
Just within the four corners of the Constitution, there is no doubt that Congress has powers not evident from the text of the Constitution — that’s the ‘sweeping clause’ (the Necessary and Proper clause). And it’s not hard to say that the power to legislate (or impeach) implies the power to get information on which to base good decisions (would you really want it another way?). So this implied power, even if it comes without a British precedent, is hardly a stretch.