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CRS Annotated Constitution

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Investigatory Power

Source of the Power to Investigate

No provision of the Constitution expressly authorizes either House of Congress to make investigations and exact testimony to the end that it may exercise its legislative functions effectively and advisedly. But such a power had been frequently exercised by the British Parliament and by the Assemblies of the American Colonies prior to the adoption of the Constitution.161 It was asserted by the House of Representatives as early as 1792 when it appointed a committee to investigate the defeat of General St. Clair and his army by the Indians in the Northwest and empowered it to “call for such persons, papers, and records, as may be necessary to assist their inquiries.”162

The Court has long since accorded its agreement with Congress that the investigatory power is so essential to the legislative function as to be implied from the general vesting of legislative power in Congress. “We are of the opinion,” wrote Justice Van Devanter, for a unanimous Court, “that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function. . . . 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; and where the legislative body does not itself possess the requisite information— which not infrequently is true—recourse must be had to others who possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate— indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.”163

And in a 1957 opinion generally hostile to the exercise of the investigatory power in the post–War years, Chief Justice Warren[p.91]did not question the basic power. “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.”164 Justice Harlan summarized the matter in 1959. “The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far– reaching as the potential power to enact and appropriate under the Constitution.”165

Broad as the power of inquiry is, it is not unlimited. The power of investigation may properly be employed only “in aid of the legislative function.”166 Its outermost boundaries are marked, then, by the outermost boundaries of the power to legislate. In principle, the Court is clear on the limitations, clear “that neither house of Congress possesses a ‘general power of making inquiry into the private affairs of the citizen’; that the power actually possessed is limited to inquiries relating to matters of which the particular house ‘has jurisdiction’ and in respect of which it rightfully may take other action; that if the inquiry relates to ‘a matter wherein relief or redress could be had only by a judicial proceeding’ it is not within the range of this power, but must be left to the courts, conformably to the constitutional separation of governmental powers; and that for the purpose of determining the essential character of the inquiry recourse must be had to the resolution or order under which it is made.”167

In practice, much of the litigated dispute has been about the reach of the power to inquire into the activities of private citizens; inquiry into the administration of laws and departmental corruption, while of substantial political consequence, has given rise to fewer judicial precedents.[p.92]

Investigations of Conduct of Executive Department

For many years the investigating function of Congress was limited to inquiries into the administration of the Executive Department or of instrumentalities of the Government. Until the administration of Andrew Jackson, this power was not seriously challenged.168 During the controversy over renewal of the charter of the Bank of the United States, John Quincy Adams contended that an unlimited inquiry into the operations of the bank would be beyond the power of the House.169 Four years later, the legislative power of investigation was challenged by the President. A committee appointed by the House of Representatives “with power to send for persons and papers, and with instructions to inquire into the condition of the various executive departments, the ability and integrity with which they have been conducted, . . .”170 called upon the President and the heads of departments for lists of persons appointed without the consent of the Senate and the amounts paid to them. Resentful of this attempt “to invade the just rights of the Executive Departments,” the President refused to comply and the majority of the committee acquiesced.171 Nevertheless, congressional investigations of Executive Departments have continued to the present day. Shortly before the Civil War, contempt proceedings against a witness who refused to testify in an investigation of John Brown’s raid upon the arsenal at Harper’s Ferry occasioned a thorough consideration by the Senate of the basis of this power. After a protracted debate, which cut sharply across sectional and party lines, the Senate voted overwhelmingly to imprison the contumacious witness.172 Notwithstanding this firmly established legislative practice, the Supreme Court took a narrow view of the power in the case of Kilbourn v. Thompson.173 It held that the House of Representatives had overstepped its jurisdiction when it instituted an investigation of losses suffered by the United States as a creditor of Jay Cooke and Company, whose estate was being administered in bankruptcy by a federal court.174 But nearly half[p.93]a century later, in McGrain v. Daugherty,175 it ratified in sweeping terms, the power of Congress to inquire into the administration of an executive department and to sift charges of malfeasance in such administration.176


161 Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 159–166 (1926); M. Dimock, Congressional Investigating Committees (Baltimore: 1929), ch. 2.
162 3 Annals of Congress 490–494 (1792); 3 A. Hinds’ Precedents of the House of Representatives (Washington: 1907), 1725.
163 McGrain v. Daugherty, 273 U.S. 135, 174–175 (1927).
164 Watkins v. United States, 354 U.S. 178, 187 (1957).
165 Barenblatt v. United States, 360 U.S. 109, 111 (1959). See also Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503–507 (1975).
166 Kilbourn v. Thompson, 103 U.S. 168, 189 (1881).
167 McGrain v. Daugherty, 273 U.S. 135, 170 (1927). The internal quotations are from Kilbourn v. Thompson, 103 U.S. 168, 190, 193 (1881).
168 In 1800, Secretary of the Treasury, Oliver Wolcott, Jr., addressed a letter to the House of Representatives advising them of his resignation from office and inviting an investigation of his office. Such an inquiry was made. 10 Annals of Congress 786–788 (1800).
169 8Cong. Deb.2160 (1832).
170 13 Cong. Deb. 1057–1067 (1836).
171 H.R. Rep. No. 194, 24th Congress, 2d sess., 1, 12, 31 (1837).
172 Cong. Globe, 36th Congress, 1st sess., 1100–1109 (1860).
173 103 U.S. 168 (1881).
174 The Court held that inasmuch as the entire proceedings arising out of the bankruptcy were pending in court, as the authorizing resolution contained no suggestion of contemplated legislation, as in fact no valid legislation could be enacted on the subject, and as the only relief which the United States could seek was judicial relief in the bankruptcy proceeding, the House had exceeded its powers in authorizing the inquiry. But see Hutcheson v. United States, 369 U.S. 599 (1962).
175 273 U.S. 135, 177, 178 (1927).
176 We consider elsewhere the topic of executive privilege, the claimed right of the President and at least some of his executive branch officers to withhold from Congress information desired by it or by one of its committees. Although the issue has been one of contention between the two branches of Government since Washington’s refusal in 1796 to submit certain correspondence to the House of Representatives relating to treaty negotiations, it has only recently become a judicial issue.
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