Symposium: A better way to limit Congress’ subpoena power

Ilya Somin is a law professor at George Mason University, and author of “Free to Move: Foot Voting, Migration, and Political Freedom.” Some parts of this post have been adapted from a previous piece on the Volokh Conspiracy blog, hosted by Reason.

Today’s Supreme Court decision in Trump v. Mazars establishes a vague and unwieldy four-part test for determining when congressional committees can subpoena documents from the president. The court understandably and rightly rejected both the president’s extreme view that such subpoenas are almost never enforceable and the House of Representatives’ position that the subpoena power is virtually unlimited. To avoid these extremes, the court created a complex four-part balancing test. But it would have done better to adopt a much clearer and simpler rule: that Congress can only subpoena information related to issues over which it has legislative authority. In that event, the Supreme Court’s own decisions limiting the scope of congressional power would also limit the scope of Congress’ power to subpoena information.

During oral argument, House of Representatives lawyer Douglas Letter repeatedly failed to identify any limits to Congress’ powers to subpoena the president’s records. Commentators such as Michael Dorf and Jonathan Adler argued that this was a serious error. They compared it to Clinton administration Solicitor General Drew Days’ famous mistake in United States v. Lopez, when he was unable to articulate any limits to Congress’ power to regulate interstate commerce.

In his majority opinion for the court, Chief Justice John Roberts emphasizes that “the House’s approach aggravates [separation of powers concerns] by leaving essen­tially no limits on the congressional power to subpoena the President’s personal records” and notes that “at ar­gument, the House was unable to identify any type of infor­mation that lacks some relation to potential legislation.”

Instead, the court creates a four-part test for determining when Congress can subpoena information from the president. The four parts are vague in themselves, and the court offers no guidance on what to do if some of the four factors cut one way, while others support the other side. In addition, the test is not actually exhaustive. The court warns that other, unspecified considerations may also have to be weighed.

The first factor is “whether the asserted legislative purpose warrants the significant step of involv­ing the President and his papers.” Roberts cautions that “Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its par­ticular legislative objective.” It is not clear how courts are to determine whether “other sources” can “reasonably provide” the information Congress needs.

Second, “courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.” Here, too, reasonableness is a vague standard that will be difficult to apply in a clear and consistent way.

“Third,” Roberts continues, “courts should be attentive to the nature of the ev­idence offered by Congress to establish that a subpoena ad­vances a valid legislative purpose. The more detailed and substantial the evidence of Congress’s legislative purpose, the better.” It is not clear how much detail is enough or how close a connection there needs to be between the information requested and the legislative purpose.

The fourth factor is that “courts should be careful to assess the burdens im­posed on the President by a subpoena.” The court does not explain how the burdens should be measured or how much of a burden is too much. Roberts does note that “burdens on the President’s time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines.” But he also cautions that “burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has … incentives to use sub­poenas for institutional advantage.”

Finally, the court notes that the four factors are not exhaustive, because “[o]ther considerations may be pertinent as well.” It gives little or no indication what those other considerations might be. Such vague standards are almost guaranteed to heighten uncertainty and lead to further litigation in this case, and perhaps others as well.

Ironically, Days’ defeat in 1995 is a big part of the reason why Letter need not have had so much trouble identifying limits to Congress’ power, and the Supreme Court need not have adopted a complex, open-ended balancing test today. From the New Deal era to the 1990s, many legal commentators assumed there were no longer any structural limits to congressional legislative power. But beginning in the 90s, the Rehnquist and Roberts Courts decided a series of cases that reinvigorated such limits. Among other things, the Supreme Court ruled that the commerce clause cannot be used to regulate some types of “noneconomic” activity or impose mandates on “inactivity,” that the federal government may not commandeer state governments and that there are limits to Congress’ powers under the enforcement clauses of the 14th and 15th Amendments. Most recently, in Murphy v. NCAA, the court ruled that Congress cannot pressure states to ban sports gambling, a decision that imposed crucial constraints other assertions of federal power, including attempts to coerce sanctuary cities.

These decisions create meaningful limits on the scope of congressional legislative authority, and therefore on Congress’ subpoena power. For example, Congress could not subpoena information related to Trump’s many affairs and his divorce settlements with his two previous wives. Marriage and divorce are matters largely left to state, not federal, regulation. Similarly, Congress could not use its legislative authority to investigate whether it should force state or local governments to curtail possibly unethical business dealings by the Trump family. The anti-commandeering rule forbids such laws.

Despite the Supreme Court’s recent federalism decisions, congressional legislative power remains broad. Some subjects that Congress cannot regulate directly might nonetheless be subject to investigation, because they are relevant to other matters over which Congress does have authority. But if there is a problem here, it is not the lack of a limiting principle on Congress’ subpoena power, but inadequate enforcement of substantive limits on congressional authority.

In the case of Trump’s financial records, Congress surely has the power to legislate on conflicts of interest in the executive branch, of which Trump’s business activities create many. Trump’s records are also relevant to Congress’ power to legislate income tax laws, as there may be good reason to impose special restrictions on the president and other high-ranking officials.

Congress’ motives may not be pure, a concern referenced by the court in its invocation of the fact that this case is “a clash between rival branches of government over records of intense political in­terest.” But political self-interest is at the heart of most legislative activity, and does not make that activity unconstitutional. There is a crucial distinction between Congress’ likely political motives here and Trump’s anti-Muslim motives in the 2018 travel ban case. Discrimination on the basis of religion is unconstitutional (even if cloaked under supposedly neutral criteria). Seeking political advantage is not.

Some fear Congress could potentially use the subpoena power to investigate issues beyond the scope of its legislative authority because it has the power to initiate constitutional amendments. A proposed amendment can legitimately deal with issues that Congress cannot legislate about under the existing Constitution. But if the amendment power is the basis for a subpoena, Congress would at the very least have to be in the process of actually considering some potential amendment. And if the supposed amendment turns out to be a sham cooked up purely for purposes of subpoenaing information, that fact is likely to leak out, and courts should be able to take notice and rule accordingly.

Congress can often use the spending power to incentivize states to take actions that Congress could not mandate directly. But, as the Trump administration has learned in a series of sanctuary city cases, the spending power, too, has substantive limits, including, among other things, that it cannot be used to coerce states and that conditions imposed on states must be related to the purpose of the grant in question.

Even if almost any information might be relevant to some type of legislation Congress is allowed to enact under current precedent, there are nonetheless limits to the purposes for which Congress can seek out the information. We would not say that law enforcement agencies’ power to acquire information is unlimited merely because almost any type of information might potentially be relevant to some kind of investigation. The agencies still have to show that the information sought in any particular case will be used for a permissible purpose. The same applies to Congress’ subpoena power.

In a far-reaching dissent, Justice Clarence Thomas claims that Congress has no power at all to subpoena “private, nonofficial documents,” except perhaps for purposes of impeachment. If his approach were to be accepted, Congress could never subpoena such information for legislative purposes – “whether they belong to the President or not.” Thomas’ argument founders on the reality that seeking information is essential to the development of most legislation, and “private” and “unofficial” information is often particularly valuable in that regard. By his reasoning, a Congress considering a new law to constrain securities fraud could not subpoena “private” or “unofficial” information related to previous cases of fraud. Some private information may be protected by individual constitutional rights, such as the Fourth Amendment’s ban on “unreasonable” searches and seizures of “papers and effects.” But no structural limit on power categorically bars Congress from seeking such data.

If Congress’ power to subpoena information is too broad, the fault lies not in the scope of the subpoena power, but in the scope of the substantive legislative power the former is supposed to facilitate. It is the latter, not the former, that has too few limits. Those who fear there are too few constraints on Congress’ subpoena power should focus their efforts on constraining its power to regulate and spend, which remains far beyond what is permitted by the text and original meaning of the Constitution.