Let the Investigations Begin

By STANLEY BRAND

Washington

THE Democrats’ victory has stoked the fire beneath an already brewing debate within the party regarding the need for investigations of the executive branch during the Bush administration’s two remaining years. Some Democratic members of Congress are reluctant to pursue investigations into war profiteering, detainee interrogation or other controversial issues, fearing that such scrutiny of the administration will make Democrats appear petty and partisan and cost them electoral support in 2008.

A vigorous examination of the administration’s conduct, however, is not only the appropriate action as a matter of constitutional prerogative, it is the politically necessary response to voters’ overwhelming rejection of the current Congress’s failure to assert itself in this area.

Nothing is better established in constitutional history and jurisprudence than Congress’s power to investigate the executive. Centuries of precedents in Parliament, colonial legislatures and United States law endorse it. In 1742, William Pitt the Elder summarized the powers of Parliament: “We are called the grand inquest of the nation, and as such it is our duty to inquire into every step of public management, either at home or abroad, in order to see that nothing has been done amiss.”

Indeed, the very first example of congressional oversight in our history was an inquiry into President George Washington’s deployment of the military. In that case, a committee appointed by the House in 1792 was authorized to investigate the disastrous defeat the year before of Gen. Arthur St. Clair by Indians in the Ohio Territory, with the power to issue subpoenas for “persons, papers and records as may be necessary to assist their inquiries.”

Congress is a coequal branch with explicit power to declare war, raise armies and navies and appropriate money for such activities. The Supreme Court has also repeatedly ratified Congressional authority to investigate executive departments. Congressional powers to probe “into departments of the federal government to expose corruption, inefficiency or waste,” the court has stated, are “as penetrating and far reaching as the potential power to enact and appropriate under the Constitution.”

For the past six years, Congress’s oversight function has atrophied in a unitary Republican landscape. To be sure, investigative power should be exercised carefully, thoughtfully and with due regard for the rights of a coordinate branch. But Congress should not shrink from its duty to investigate a reluctant or recalcitrant executive, especially one that, while cloaking itself in secrecy, has boldly asserted unprecedented powers in the initiation and conduct of war — with disastrous consequences that the electorate has now repudiated.

By performing their constitutional obligations, the new Democratic majorities in the House and Senate will surely do right by the Constitution and the country. But they will also no doubt do very well for themselves...http://tinyurl.com/v9prk

(Stanley Brand, a former general counsel to the House of Representatives under Speaker Tip O’Neill, teaches constitutional law at Penn State Dickinson School of Law.)

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