Constitution, Congress & Attorneys

George J. Terwilliger, III writes an interesting op-ed in the Wall Street Journal ($$) concerning the Constitution and the recent firings of several US Attorneys.

With subpoenas looming and Justice Department lawyer Monica Goodling taking the Fifth before Congress, the controversy over the firing of U.S. Attorneys grows closer to becoming not just a political fight, but a court battle. There seems little justification for a legal war, however, and the courts are not likely to enforce Congressional subpoenas to presidential aides.

What does the Constitution tell us about this recent political tussle in Washington? One thing the Constitution tells us is that Congress and the President are different branches of government with different powers:

Congressional powers are only those "herein granted" expressly by Article I the Constitution, which provides a long, explicit list of its authorities. In contrast, Article II of the Constitution provides that "[t]he executive power" is vested in the president and, while Article II contains enumerated powers of the president, it does not limit that authority to those expressed. Expansive executive authority reflects Alexander Hamilton's recognition that "[a] feeble executive implies a feeble execution of the government."

[ . . . ]

Congress has the exclusive power to legislate, but the power to execute the laws is entrusted to one person alone -- the president. The ability to appoint, retain or fire anybody to carry out these responsibilities is a core executive function, properly left to his unfettered discretion. This has been recognized by the Supreme Court. As the Court observed in a case growing out of the House Un-American Activities Committee investigations of the 1950s, "We have no doubt that there is no congressional power to expose for the sake of exposure."

Duh. Pretty basic. Pretty simple. The President has the executive power and Congress has the power to legislate.

Of course, in order to legislate the Congress needs information, and in order to understand how legislation is working it needs to learn about how the statutes it creates are being executed by the Executive Branch of government. So,

Since Congress does need to legislate with knowledge of the historical impact and efficacy of its prior legislation, courts have held that Congress has the power and authority to make inquiries in connection with its legislative function. But when it directs its inquiries to core functions of executive officials, the executive has the right to resist.

Congressional oversight, in other words, is specifically all about carrying out Congress's legislative function. Congressional oversight is not general oversight of the activities of the other branches of government, not even the Executive branch. Congressional oversight serves as a means for carrying out the legislative activities of Congress.

Mr. Terwilliger puts the general Constitutional framework into specifics with respect to the "issue" at hand:

The broad question currently being addressed is why the president fired some U.S. attorneys whom he had previously appointed. Congress seems poised to provoke a constitutional confrontation to get the answer. Congress should lose that battle because the answer, as to these specific cases, seems well outside the scope of anything Congress could legislate. Under the Constitution, it is solely within the president's prerogative to terminate the tenure of these officials. His decision to do so is not subject to oversight by Congress or review by the courts. Thus, on balance there is no compelling need for Congress to obtain information about his deliberations. And judiciary recognizes a privilege of privacy attaching to those executive deliberations.

Congress may ask the president why he fired these officials and its members may disagree or question the rationale for removal, and do so in a very public way. That is politics. But it does not follow that the president's aides can be forced to come to Congress and give information under oath. The check on a president's corrupt or otherwise wrongful exercise of this plenary power to remove is not legal, but political.

It seems to me that most of the time when the Supreme Court is asked to take up a conflict between the other branches of government it declines to get involved when the matter, as a bottom line, is fundamentally a political issue.

How can we decide if the issue at hand is a political issue? One thing I like to consider in this regard is where the Supreme Court would find power to enforce it's opinion, what ever that opinion might be. If the Supreme Court were to choose to engage this conflict between the other 2 branches of government, and if it were to decided the Congress was supposed to have the power to force members of the Executive branch to testify, how could the Court compel those employees of the Executive branch to go to Congress and speak? Most of the judicial power of the Supreme Court vis a vis the other branches of government is found in a negative way in that the Court can simply refuse to enforce a law it finds to be unconstitutional. But, the Court really has no direct way to compel another branch of government to act in ways the Court decides are constitutional ways they should act. In such cases, it seems to me that any power the Supreme Court would have vis a vis the other branches of governement would come from the political realm. That is, the Court's power would have to come, in such cases, from there being many citizens who would accept the Court's opinion on the Constitution and thereby express disapproval, even outrage, at the failure of another branch of government to agree to act as the Supreme Court has directed. So, when the Supreme Court would have to rely on citizens expressing their disapproval toward the President, or toward the Congress, to enforce it's opinion regarding another branch of government, the issue is, bottom line, a political issue. Most of the time the Supreme Court has chosen not to become engaged in such issues, and that is the proper choice for the Court to make.

This US Attorney issue seems, bottom line, to be fundamentally a political issue. The Court should stay away from the issue, and today's opposition Congress should take it's political efforts against today's President directly to the citizens. At least that's the way our constitutional system of government is structured.

Well, maybe there is another useful role the Supreme Court might play in matters such as these. It could choose to become engaged so that it could make it clear to Congress, the President, and the citizenry that issues such as these are purely political issues. If it chose this course of judicial action, do you suppose Congress might feel a little political pressue from we the people to refrain from such behavior in order to attend a bit more to it's legislative powers? Probably not. But, maybe the voters would be less likely to misunderstand the political nature many of the actions of an opposition Congress.