THE NECESSARY AND PROPER INVESTIGATORY POWER.

• Author: Raffish, Brett

INTRODUCTION

It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered. (1) Congressional investigatory power, or Congress's implied power to procure information from people through compulsory processes, (2) is broad and sweeping. While the power is not boundless, (3) few topics, people, and documents are ordinarily out of reach. (4) Congress has often leveraged its inquiry power for good--to understand and make informed decisions about pressing public issues and events. (5) But Congress has also, at times, abused it, needlessly costing many Americans their liberty and reputations. (6) Possible abuse has not thwarted the Supreme Court from recognizing an inquiry power. (7) In McGrain v. Daugherty, the Court held that the implied power to procure information complied with the Necessary and Proper Clause's commands, vesting Congress with wide authority to probe. (8)

Founding era concerns, early Congressional practices, and Necessary and Proper Clause jurisprudence suggest that the Court's present characterization of Congressional investigatory power is likely only one of myriad ways to characterize the implied investigatory power, and it may be the wrong one. (9) By superimposing characteristics from Congress's prior investigations over the Court's current characterization of Congressional investigatory power, different permutations of the power emerge. To ascertain each characterization's viability, courts must assess whether and to what extent each characterized power is "necessary and proper for carrying [an enumerated power] into Execution[.]" (10) This Note contends that the McGrain court's characterization and some inferior ones may not be viable when measured against the Necessary and Proper Clause's commands. In other words, Congress might lack power to investigate some people or things for purposes that may be advanced under the Court's controlling characterization.

The Court should thwart future abuse and recalibrate "the balance of" power between Congress and the people (11) by adopting the following three-part, Mazars-inspired doctrine that operationalizes Necessary and Proper Clause concepts. (12) First, to ascertain whether Congress has power to investigate, courts should determine whether the expression of (13) Congressional investigatory power is "Proper" to the extent that it: (1) is tethered to actual, legitimate ends; (14) (2) is closely connected to a specific enumerated power; (15) (3) does not acquire powers wholly allocated to other branches; (16) and (4) does not violate a witness's constitutional rights. (17) Second, courts should determine whether Congressional means are "Necessary" to the extent that they are "reasonably adapted" (18) to achieve Congress's proposed legislative end. (19) Finally, after examining Congressional ends and means, courts should holistically balance the parties' interests to assess whether Congressional ends are "Proper" to the extent that the exercise of compulsory power over an individual does not "upset the balance of" (20) power allocated between the people and Congress. (21) If adopted, the doctrine detailed in this Note will ground the investigatory power in constitutional text and stymie future abuse.

Part I details the investigatory power's origins, exercise, and judicial reception. Part II describes how the investigatory power presently operates and its costs. In Part III, this author suggests that, under Necessary and Proper Clause jurisprudence, Congress may lack power to reach certain people or objects. Finally, Part IV proposes the Mazars-inspired doctrine detailed above.

1. THE SWEEPING POWER

   Ratified on June 21, 1788, Article I of the United States Constitution established Congress, America's federal legislative branch. (22) Unlike Parliament, who enjoyed supremacy among governmental institutions, (23) Congress has finite powers. (24) While Article I does not expressly entrust Congress with an investigatory power, (25) this Part details how the Court and Congress have nevertheless recognized the power as integral to federal lawmaking. (26)

   1. Parliament's Investigatory Power

      English practice paved the way for Congressional compulsory power. (27) By 1604, Parliament had power, in one case, to summon "an Officer, and ... view and search any Record or other thing of that kind[.]" (28) Early on, Parliament had exercised punitive power to address bribery, threats, libels, and election-related issues. (29) And by the late seventeenth century, "Parliament had numerous committees in place investigating government operations." (30) All told, Parliament inquired into a range of matters, including "poor laws, prison administration, [and the] operations of the East India Company[.]" (31)

      By the mid-eighteenth century, Parliament was extraordinarily powerful. (32) In a 1742 address, William Pitt remarked that Parliament served as "[t]he Grand Inquest of the Nation[,]" meaning it had a "duty to inquire into every step of public management, both abroad and at home[.]" (33)

   2. Founding Attitudes Toward Legislative Power

      By the time of the Framing, however, unbounded legislative power, and governmental power more generally, had concerned some. (34) Thomas Jefferson remarked that "concentrat[ed]" legislative power exemplified "despotic government" and further contended that it was vitally important to stem abuse before one branch garnered too much power. (35) In a letter to Jefferson, John Jay also opined that "legislative, judicial, and executive Power[]" should not be concentrated in a single branch. (36) James Madison echoed Jay in Federalist 47, remarking that "the very definition of tyranny" concerned "[t]he accumulation of all powers" in a single entity. (37)

      Some contemplated the scope of legislative power in the Federalist Papers. In Federalist 52, for example, Alexander Hamilton or Madison made clear that Congress would have only some of Parliament's "supreme ... authority[.]" (38) In Federalist 78, Hamilton appeared to recognize that the people's power superseded legislative power. (39) Indeed, he suggested that a federal legislative body would be unable to police its own powers, and dismissed the idea that the Constitution could let legislators "substitute their will to that of their constituents." (40) If the people's will conflicted with the legislature's will, Hamilton suggested that courts prefer "the Constitution ... to the statute, the intention of the people to the intention of their agents." (41) Finally, Madison's remarks in Federalist 48 reflected a skepticism toward legislative power. (42) Madison held that Congress could surreptitiously usurp institutional power and run roughshod over the people it claimed to represent, opining that "it [wa]s against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions." (43)

      The Anti-Federalists were also skeptical of concentrated governmental power. (44) In Brutus No. 1, the author (likely Robert Yates) (45) remarked that "every body of men, invested with power, [is] ever disposed to increase it, and to acquire a superiority over every thing that stands in [its] way." (46) To the author, powerful elected officials would act in a self-interested manner, and correcting such abuse would be difficult. (47) The putative scope of the proposed Necessary and Proper Clause appeared to drive some of the author's concerns. To the author, the Clause was so sweeping that it would result in "an entire consolidation" of federal power. (48)

      During the Constitutional Convention, James Wilson emphasized the people's supremacy over their government, remarking "that the supreme, absolute and uncontrollable authority, remain[ed] with the people[,]" not the legislative branch. (49) Madison too had echoed his earlier remarks, adding that "[e]xperience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex[,]" which, at least to Madison, presented "the real source of danger to the American Constitutions[.]" (50)

   3. Early Congressional Investigations

      St. Clair Investigation. In 1792, Congress probed a military operation executed under President Washington. (51) Despite a failed first motion, (52) the House eventually approved a resolution broadly authorizing a committee "to call for such persons, papers, and records, as may be necessary[.]" (53)

      President Washington and several cabinet members discussed the investigation's implications. (54) The group believed that Congress had power to investigate the St. Clair operation, (55) but Hamilton thought Congress could not reach certain information. (56) On Jefferson's account, Hamilton appeared concerned that Congress would inappropriately seek private information concerning "how far their own members and other persons in the government had been dabbling in stocks ... [and] banks[.]" (57)

      Congress appeared to take the cabinet's concerns to heart. (58) On April 4, 1792, Congress resolved that Washington "cause the proper officers to lay before this House such papers of a public nature, in the Executive Department[.]" (59) The committee eventually sought participation from General St. Clair and others. (60)

      Post-St. Clair. The Supreme Court first addressed the legality of Congressional contempt processes in 1821 in connection with a bribe offered to a member. (61) Noting that Article I did not include a contempt power, the Court questioned whether such a power might be implied. (62) Although "the genius and spirit of ... [American] institutions [we]re hostile to the exercise of implied powers[,]" Congressional power was far more circumscribed than Parliamentary power, alleviating concerns that an implied authority might be abused. (63) Furthermore, the Court insisted that Congressional contempt power was itself rather circumscribed, explaining that it involved "the least possible power...