ArtI.S8.C18.7.4 Congress's Investigation and Oversight Powers (1865–1940)

Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The end of the nineteenth and first half of the twentieth centuries saw the Supreme Court consider the question of Congress’s power to investigate private conduct that the Adams report and Harpers Ferry investigation had placed into public view. In considering that question, seminal cases such as Kilbourn v. Thompson,1 In re Chapman,2 and Marshall v. Gordon3 developed an enduring and essential limit on Congress’s investigatory authorities: the principle that Congress’s implied powers of investigation, being derived from the express delegation of legislative power to Congress, extend only to those inquiries that can be said to “aid the legislative function” or that serve a “legislative purpose.” 4

The 1880 case of Kilbourn v. Thompson represents the Court’s first and arguably most restrictive assessment of Congress’s general investigatory powers. Kilbourn involved a contempt action arising from a private citizen’s refusal to testify before a special House committee established to investigate the bankruptcy of a company to which the government was a creditor.5 In addition to placing certain limits on Congress’s exercise of its contempt power,6 the opinion also contained the Court’s first discussion of Congress’s authority to compel the attendance of witnesses during an investigation.7 The opinion connected that power to the exercise of other constitutional powers. The Court noted that the House and Senate had an “undoubted right to examine witnesses and inspect papers” and “the right to compel the attendance of witnesses, and their answer to proper questions,” either when exercising the powers of impeachment and removal or to judge the election and qualification of their own members.8

Outside those areas, however, the Kilbourn Court held that Congress could only compel production of testimony or documents when “required in a matter into which that House has jurisdiction to inquire.” 9 With regard to the bankruptcy investigation at issue, the Court ruled that the House lacked jurisdiction, as neither house “possesses the general power of making inquiry into the private affairs of the citizen.” 10 The Court viewed the committee’s inquiry as a “fruitless investigation into the personal affairs of individuals” that could “result in no valid legislation on the subject to which the inquiry referred” and thus was not in aid of the legislative function.11 Further evidence that the investigation was not legislative in nature, the Court reasoned, lay in the fact that any congressional investigation into purely private affairs with implications for private rights “assumed a power” that was “in its nature clearly judicial.” 12

Similarly, in Marshall v. Gordon, the Supreme Court held that a House committee had no legislative purpose in punishing, through contempt, a federal district attorney for writing and publishing a “defamatory and insulting” letter criticizing Congress.13 The Court held that the contempt power extends only as far as is “necessary to preserve and carry out the legislative authority given.” 14 This includes, the Court reasoned, responding to acts that “in and of themselves inherently obstruct or prevent the discharge of legislative duty” such as “refusing to obey orders to produce documents or give testimony which there was a right to compel.” 15 An ill-tempered letter, on the other hand, did not sufficiently obstruct Congress’s ability to exercise its powers to trigger contempt.16

The contempt actions that gave rise to Anderson, Kilbourn, and Marshall were undertaken pursuant to the House and Senate’s implied authority to unilaterally punish contemptuous conduct.17 These contempt proceedings took place before the House or Senate.18 However, in order to enforce congressional investigatory powers “more effectually[,]” Congress had enacted a criminal provision in 1857 that made it a misdemeanor to willfully fail to comply with a congressional subpoena for testimony or documents.19 Violations were certified to the Executive Branch for prosecution, rather than proceeded against within the Legislative Branch.

The Supreme Court upheld the contempt statute against a constitutional challenge in In re Chapman as “necessary and proper for carrying into execution the powers vested in Congress and in each House thereof.” 20 The Chapman decision also contributed to development of the “legislative purpose” concept by clarifying that though some connection to the legislative function is necessary to justify exercising compulsory investigative powers, Congress is not required to specifically “declare in advance” the purpose of an inquiry at the outset.21

The inquiry into the Teapot Dome scandal that arose during the Administration of Warren G. Harding was one of Congress’s most significant and wide ranging investigations.22 The investigation involved both private and governmental conduct and allowed Congress to display the full panoply of its investigative tools. The inquiry began as a result of accusations that the Secretary of the Interior, in return for some pecuniary benefits, had made a secret arrangement to lease the Teapot Dome oil reserves in Wyoming to personal friends who led major private oil companies, without required competitive bidding.23 The subsequent Senate investigation—running from 1922 to 1923—uncovered pervasive corruption throughout the highest levels of the Executive Branch, ultimately leading to the downfall of a variety of government officials and oil executives.24 The Senate not only held hearings, issued subpoenas to compel the production of testimony and documents, and published reports, but also approved resolutions calling for the President to remove certain officials; confirmed the appointment of a special counsel to investigate criminal wrongdoing independently; and referred matters to the Executive Branch for criminal prosecution.25

The Teapot Dome investigation also gave rise to the important decisions of McGrain v. Daugherty and Sinclair v. United States.26 McGrain represents one of the Supreme Court’s most significant and detailed discussions of the scope of Congress’s investigatory powers and is likely the historical high-water mark of the judicial vision of Congress’s power.27 The decision was also the first time that the Court explicitly recognized each house’s ability to compel testimony.28 The case arose from a Senate investigation into the alleged failure of the Attorney General to prosecute certain federal violations uncovered by the preceding Teapot Dome investigation.29 After Mallie Daugherty, the brother of the Attorney General and president of an Ohio bank, refused to comply with a subpoena for testimony, the Senate ordered him detained pursuant to its own contempt power. Daugherty’s challenge to his detention ultimately was rejected by the Supreme Court, which upheld the chamber’s authority to arrest and detain a witness in order to obtain information for legislative purposes. The McGrain opinion found “[t]he power of inquiry—with process to enforce it is an essential and appropriate auxiliary to the legislative function.” 30 In support of its conclusion, the Court noted that such a power had been recognized by legislative bodies consistently through American history, from colonial and state legislatures before adoption of the Constitution to both the House and Senate after.31 In an oft quoted passage, the Court reasoned that the practicalities of investigative inquiries sometimes require compulsion:

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 do 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.32

The McGrain opinion also clearly established that Congress’s oversight and informing functions are employed in aid of its legislative function, and thus represent legitimate justification for the exercise of compulsory investigative powers.33 With regard to the informing function, the Court suggested there existed a “presumption” that an investigation is undertaken to aid the Congress in legislating, and also reaffirmed that an “express avowal” of the legislative goal “was not indispensable.” 34 With regard to the oversight function, the Court gave its imprimatur to the general purpose of the committee investigation, that of overseeing “the administration of the Department of Justice,” because the activities of Executive Branch agencies “are all subject to regulation by congressional legislation.” 35 McGrain firmly and explicitly entrenched the investigatory powers that had been recognized and employed by the House and Senate since at least 1792.

The second opinion arising from the Teapot Dome investigation was Sinclair v. United States.36 That case involved a prosecution for criminal contempt of Congress against an oil executive, who had received an illegal lease from the government, for his refusal to comply with a committee subpoena for testimony.37 Like previous decisions, the case again centered on whether an investigation into private conduct could be “in aid of legislation.” 38 Although the Court reaffirmed that neither house “possesses the general power of making inquiry into the private affairs of the citizen,” it nevertheless upheld the contempt conviction and the Senate’s exercise of its investigatory powers, holding that the authority to investigate extends to “matters affecting the United States . . . as well as to those having relation to the legislative function.” 39 It was clear, the Court reasoned, that Congress had power to investigate how and to whom the Executive Branch leased oil reserves. The opinion distinguished Kilbourn, observing that Congress’s inability to inquire into private conduct applies only when an investigation is not a matter of federal concern, but rather relates “merely or principally [a] personal or private affair.” 40

The Supreme Court’s subsequent opinions further refined the legislative purpose requirement, generally in the direction of expanding Congress’s realm of interest. For example, in Barenblatt v. United States, the Court observed that the legislative role requires attention to a “whole range of national interests,” reflecting a corresponding power of inquiry that “is as penetrating and as far reaching as the potential power to enact and appropriate under the Constitution.” 41 The Court has also generally deferred to Congress’s articulated purpose, effectively creating a presumption in favor of congressional authority when an investigation is related to a constitutional purpose.42 The Court, for example, will not inquire into “the motives which spurred the exercise of” the investigative power.43 Even the existence of bad intent will not “vitiate” an otherwise valid investigation.44 But, the Court has warned that because the exercise of investigative powers by a committee is based upon authority delegated to it by the parent body, the parent body should clarify those committee powers by articulating the committee’s jurisdiction and purpose “with sufficient particularity.” 45 As the Court has noted “the more vague the committee’s charter, the greater becomes the possibility” that the committee will act outside the confines of a legislative purpose.46

Kilbourn v. Thompson, 103 U.S. 168, 199 (1880) (delineating Congress’s investigative powers as those that are “necessarily implied” from the Congress’s “constitutional functions and duties” ). back
In re Chapman, 166 U.S. 661, 671 (1897). back
Marshall v. Gordon, 243 U.S. 521, 541 (1917) (describing Congress’s implied power as that which is “necessary to preserve and carry out the legislative authority given” ). back
See McGrain v. Daugherty, 273 U.S. 135, 172, 175, 177 (1927). back
Kilbourn, 103 U.S. at 193–94. back
The Court held that the contempt power can “derive no support from the precedents and practices” of Parliament and any detention cannot extend beyond the end of the Congress. Id. at 189. back
Id. at 190. back
Id. back
Id. The Court left open the question of whether the House did, in fact, have that power. Id. at 189 (holding the proposition that the investigative power “exists as one necessary to enable either House of Congress to exercise successfully their function of legislation . . . is one which we do not propose to decide in the present case . . . )” . back
Id. back
Id. at 195. back
Kilbourn, 103 U.S. at 192. back
Marshall v. Gordon, 243 U.S. 521, 532 (1917). back
Id. at 541 back
Id. at 543. back
Id. at 546 (concluding that the contempt was “not intrinsic to the right of the House to preserve the means of discharging its legislative duties, but was extrinsic to the discharge of such duties and related only to the presumed operation which the letter might have upon the public mind and the indignation naturally felt by members of the committee on the subject.” ). back
For a discussion of the differences between the implied or inherent contempt power and criminal contempt of Congress under 2 U.S.C. § 192, 194, see CRS Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey. back
Id. at 10. back
Act of January 24, 1857, ch. 19, 11 stat. 155 (codified as amended at 2 U.S.C. §§ 192, 194). back
In re Chapman, 166 U.S. 661, 671 (1897). back
Id at 670 (concluding that it is “not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation concluded” ). back
1 Congress Investigates: A Critical and Documentary History 460–499. back
Id. at 462–63. back
Id. at 463–72. back
Id. at 473–74. back
273 U.S. 135 (1927); 279 U.S. 263 (1929). back
See McGrain, 273 U.S. at 177–78 (articulating the scope of Congress’s investigatory power as extending to any “subject . . . on which legislation could be had . . . .” ). back
Id. at 160–75 back
Id. at 152–53. back
Id. at 174. back
Id. at 160–68. back
Id. at 175. back
McGrain, 273 U.S. at 177–78. back
Id. at 178 ( “The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating; and we think the subject-matter was such that the presumption should be indulged that this was the real object.” ). back
Id. back
279 U.S. 263 (1929). back
Id. at 284–85. back
Id. at 291, 295. back
Id. at 294, 297 (noting that the “transaction purporting to lease to it the lands within the reserve cannot be said to be merely or principally the personal or private affair of appellant. It was a matter of concern to the United States” ). back
Id. at 294. back
Barenblatt v. United States, 360 U.S. 109, 111 (1959). back
See McGrain, 273 U.S. at 178. back
Id. at 132 ( “So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.)” ; Watkins, 354 U.S. at 200 ( “Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly’s legislative purpose is being served.” ); Wilkinson v. United States, 365 U.S. 399, 412 (1961) ( “[I]t is not for us to speculate as to the motivations that may have prompted the decision of individual members of the subcommittee to summon the [witness].” ). back
Watkins v. United States, 354 U.S. 178, 200 (1957) back
Id. at 201 (noting that “instructions” to an investigating committee should “spell out that group’s jurisdiction and purpose with sufficient particularity” ). back
Id. at 206 ( “It is impossible in such a situation to ascertain whether any legislative purpose justifies the disclosures sought and, if so, the importance of that information to the Congress in furtherance of its legislative function.” ). back