When Congress Comes Calling

I. Introduction: The Challenges to Effective Investigative Oversight
implementation of public policy, and disclose to the public how its government is performing. Oversight
conducted through authorization, appropriations, or confirmation exercises tends to be more routine, whereas
congressional investigations are often adversarial, confrontational, and sometimes high profile.
Beyond the traditional purposes of oversight, the inquisitorial process also sustains and vindicates Congress’
role in our constitutional scheme of separated powers and checks and balances. There is a rich history of congressional
investigations from the one examining the failed St. Clair expedition in 1792 through those assessing
the Teapot Dome scandal, Watergate, Iran-Contra, Whitewater, and most recently, the removal and replacement
of U.S. Attorneys. These investigations have established, in law and practice, the nature and scope of the
tools upon which Congress may rely to maintain its role in our constitutional scheme.
Congress’ right of access to executive branch information has been recognized by innumerable Supreme Court
and lower federal court decisions. These precedents establish a broad and encompassing power in the Congress
to engage in oversight investigations that reach all sources of information that enable it to carry out its legislative
functions.
Committees have been granted a formidable array of tools to ensure access. Committees can:
33 issue subpoenas;
33 grant immunity to force testimony of witnesses invoking their Fifth Amendment privilege against selfincrimination;
33 provide for staff deposition authority;
33 establish rules for the conduct of hearings with less protection for witness rights than is provided in court
proceedings; and
33 hold recalcitrant witnesses in contempt of Congress and subject them to criminal prosecution.
B. The Power of Congress Over Executive Branch Agencies
The Constitution is silent about the administrative bureaucracy and its operation. There is scant mention of
departments and agencies. It is apparent that Congress has the power to create agencies and offices and can
select the manner of appointment of officials, 2 but the Constitution says nothing on such issues as the removal
of officers or who controls the decision making of the agencies, the President or Congress.
In historical practice, Congress creates, locates, and abolishes agencies and offices. Congress also sets qualifications
for officeholders, as well as the terms of their tenure and compensation, and other incidents of office. In
short, Congress can tailor offices of government in virtually any way it wants. Congress is also the sole source
of agency powers, functions, and funding. In so doing, it defines the missions of agencies and provides the
authorities of the agencies to carry out those missions. Most often, the powers are given to agency heads not to
the President.
In historical practice, the President normally has authority to appoint and remove and to supervise and coordinate
the actions of executive branch officers. As a practical matter, the President has the power, in most
instances, to direct how they will carry out their missions. This derives from Article II’s investiture in the
President of all the “Executive Powers” and the duty to “Take Care” that the laws be faithfully executed. In addition,
several Supreme Court decisions forbid Congress from appointing executive branch officers or removing
them, or from granting the power to administer laws to legislative branch officers.
It is also clear from Supreme Court precedent, however, that Congress may limit the ability of the President
to remove executive officials at his or her pleasure, and may require that the President have substantial cause
for such removal. The Court has also held that the “Take Care” Clause does not provide the President with the
2 | The Constitution Project