Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Congress exhibited a robust view of its own investigatory powers from the very outset, especially in regard to the legislature’s obligation to oversee the Executive Branch.1 The first session of the First Congress saw the House establish a special committee to investigate Robert Morris’s conduct as Superintendent of Finance under the Articles of Confederation.2 The House then established an important special investigating committee in 1792 for the purpose of inquiring into Major General Arthur St. Clair’s disastrous military excursion into the Northwest Territory in which nearly 700 federal troops were killed by the Western Confederacy of American Indians.3 The mere act of authorizing such a committee set an important precedent, in that adoption of the resolution was preceded by a debate over whether it was appropriate, and indeed constitutional, for the House to investigate the matter, or whether it was preferable to urge the President to carry out the inquiry.4 Although it was asserted by some that the House lacked authority to inquire into Executive operations, that position was defeated and Congress established an investigating committee with clear authority to “call for such persons, papers and records as may be necessary to assist their inquiries.” 5 The investigation itself also established important precedents for Congress’s authority to gather information from the Executive Branch, including in relation to sensitive military matters. After some discussion within Washington’s cabinet of the President’s authority to withhold requested information from Congress, the special committee obtained documents from both the War Department and the Treasury Department as well as testimony from cabinet officials Henry Knox and Alexander Hamilton.6

Congress also acted swiftly to use federal law and internal rules to strengthen its investigatory powers. In 1798, Congress enacted a statute recognizing its powers not only to obtain evidence through testimony, but also to do so from witnesses under oath.7 The statute specifically authorized the President of the Senate, the Speaker of the House, and a chairman of a select committee to administer oaths to witnesses testifying before Congress.8 In addition, both the House and Senate delegated to ad hoc select committees the authority to call for papers or persons beginning as early as the late eighteenth century.9 However, those early years saw Congress use compulsory process sparingly, especially for purposes of informing itself when considering legislation.10

Congress’s relatively broad understanding of its own investigatory powers continued into the nineteenth century as both the House and Senate engaged in ongoing oversight of the Executive Branch. A variety of inquiries set important precedents establishing Congress’s authority to inquire into the expenditure of appropriated funds, activities of state officials, and operations of the military and post office.11

It was not until 1821 that the Supreme Court issued its first notable opinion in this area. That opinion, Anderson v. Dunn, dealt not with Congress’s power to conduct the type of oversight with which it had been engaged, but instead with the related question of whether the House possessed the power to punish a private citizen for attempting to bribe a Member.12 The Anderson opinion recognized the House’s authority to defend its own powers and prerogatives by punishing certain contemptuous acts committed against the body, despite the absence of a constitutional provision granting the body such power.13 The contempt power was “derived from implication” in Article I as essential to the self-preservation of all legislative bodies.14 The Court said nothing about Congress’s general investigatory or oversight powers, but Anderson marks the Court’s first clear acknowledgment of implied legislative powers. That Congress holds certain implied powers necessary to the functioning of a deliberative legislative body is a principle that would later lead to the judicial affirmation of the wider investigatory and oversight powers that Congress had already asserted in practice.15

In the meantime, the House and Senate continued to engage in major investigations of the Executive Branch without intervention or interference from the courts. In 1832, the House established a select committee to investigate the operations of the federally chartered, but privately owned Second Bank of the United States.16 The investigation, which inquired into both the operation of the Bank and whether the Bank’s soon-to-expire charter should be renewed, represents an example of an investigation that blended both the oversight and informing functions.17 The majority report, after taking testimony from a variety of former and current bank officers and employees and reviewing the Bank’s accounting books, found that the Bank had violated its charter on a number of occasions and specifically recommended that the Bank not be reauthorized.18

The House’s investigation was not undertaken without dissent. Former President and then-Representative John Quincy Adams disagreed with both the committee majority’s conclusion and the way in which it carried out its investigation. In his own minority report, Adams criticized the committee’s focus on the actions of specific officers and employees of the Bank rather than the Bank’s general operation—calling the investigation a “trial” that invaded both the “sanctuary of private life” and the judicial power.19

Adams’ concerns over Congress’s ability to inquire into personal conduct of private citizens were reflected in a Senate investigation into John Brown’s raid on Harpers Ferry. Brown, an ardent and at times violent abolitionist, had led an attack on a federal arsenal in an effort to stimulate an armed slave uprising.20 Following the failed attack, the Senate adopted a resolution establishing a select committee to investigate the facts of the raid, including whether Brown received financial support from other conspirators and whether legislation was necessary to prevent similar acts from occurring in the future.21 The committee attempted to compel testimony from a number of individuals who were suspected of criminal involvement in the raid, but was unable to acquire testimony in a number of instances. One witness, Thaddeeus Hyatt, refused to testify, asserting that he had no constitutional obligation to do so because the “inquisitorial” investigation represented an exercise of judicial rather than legislative power.22 Hyatt’s refusals sparked a debate in the Senate, with a vocal minority of members arguing that the committee’s assumption of judicial functions violated the separation of powers.23 Ultimately, it appears that concerns expressed in the Senate over congressional inquiry into private conduct gave shelter to witnesses who refused to comply with committee investigative demands, resulting in what has been characterized as a failed and highly partisan investigation.24

Footnotes

1

Ernest J. Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 33 (1928).

2

2 Annals of Cong. 1514 (1822).

3

Telford Taylor, Grand Inquest: The Story of Congressional Investigations 17–19 (1974).

4

See 3 Annals of Cong. 490–94 (1792).

5

Taylor, supra note 3, at 22.

6

Id. at 23–4

7

Act of May 3, 1798, ch. 36, 1 stat. 554.

8

Id. The power to administer oaths was expanded to all standing committee chairman in 1817. Act of Feb. 8, 1817, ch. 10, 3 stat. 345. See also, McGrain, 273 U.S. at 167.

9

Eberling, supra note 1, at 34–5.

10

Watkins v. United States, 354 U.S. 178, 193 (1957) ( “There was very little use of the power of compulsory process in early years to enable Congress to obtain facts pertinent to the enactment of new statutes or the administration of existing laws.” ); Eberling, supra note 1, at 34.

11

See James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 172–76 (1926).

12

Anderson v. Dunn, 19 U.S. 204, 224–25 (1821).

13

Id. at 229.

14

Id. at 225. The Supreme Court acknowledged fundamental structural concerns associated with finding the existence of implied powers in a Constitution of enumerated powers, noting that the “[g]enius and spirit of our institutions are hostile to the exercise of implied powers.” Id. But, the Court reasoned, to find no such power would “lead to the total annihilation of the Power of the House of Representatives.” Id. at 228.

15

See Barenblatt v. United States, 360 U.S. 109, 111 (1959) ( “The congressional power in question concerns the internal process of Congress in moving within its legislative domain; it involves the utilization of its committees to secure ‘testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.'[ ] The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and farreaching as the potential power to enact and appropriate under the Constitution.” ).

16

1 Congress Investigates: A Critical and Documentary History 71 [hereinafter Congress Investigates].

17

Id.

18

H. R. Rep. No. 22-460, at 1–2 (1832).

19

Id. at 370.

20

Congress Investigates, supra note 16, at 124–137.

21

Id. at 130.

22

Id. at 133–34

23

Cong. Globe, 36th Cong., 1st Sess. 1100–09 (1861).

24

McGrain v. Daugherty, 273 U.S. 135, 161–65 (1927).