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.

Whereas the Supreme Court’s early cases on Congress’s investigatory powers almost exclusively focused on the source and scope of Congress’s implied authorities by requiring that a legislative purpose exist in any congressional inquiry, the 1950s and 1960s saw the Court develop two additional categories of limits on Congress’s investigative powers. First, the Court began to enforce Congress’s own self-imposed internal constraints, for example by requiring committees to stay within their delegated jurisdiction and comply with their own committee rules.1 And second, the Court enforced constraints emanating from the personal rights of private citizens secured by the Bill of Rights.2

Many of the disputes that were ultimately heard by the Supreme Court during this time period stemmed from House and Senate investigations into “the threat of subversion of the United States Government,” especially from communist infiltration and influence.3 These investigations, and subsequent contempt actions, were generally initiated by the House Un-American Activities Committee (HUAC) or other committees targeting communist activity. Although the Court has characterized this period as a “new phase of legislative inquiry” involving “broad-scale intrusion into the lives and affairs of private citizens,” it is clear that congressional inquiry into private conduct was not in and of itself a new development.4 Nevertheless, perhaps because actions taken by Congress and its committees in this period clearly implicated individual constitutional rights such as the privilege against self-incrimination and free speech, the Court more heavily scrutinized Congress’s use of its investigatory powers.5

The uptick in Supreme Court review of congressional inquiries from earlier periods may also have been partly due to an overall increase in investigative activity following enactment of the Legislative Reorganization Act of 1946.6 The 1946 Act was the result of a report by the Joint Committee on the Reorganization of Congress that recommended that Congress abandon its long-standing practice of establishing special committees to carry out investigations and instead that all House and Senate standing committees “be directed and empowered to carry on continuing review and oversight of legislation and agencies within their jurisdiction” and be given subpoena power.7 The Act ultimately veered slightly from the Joint Committee’s recommendation, delegating subpoena power to all standing committees of the Senate, but only the Un-American Activities Committee in the House. The Act further mandated that each standing committee in both chambers “exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee.” 8

Footnotes

1

See, e.g., Yellin v. United States, 374 U.S. 109, 114 (1963); Gojack v. United States, 384 U.S. 702, 712 (1966); United States v. Rumely, 345 U.S. 41, 47 (1953).

2

See, e.g., Watkins v. United States, 354 U.S. 178, 195 (1957); Barenblatt v. United States, 360 U.S. 109, 112 (1959); Quinn v. United States, 349 U.S. 155, 161 (1955); Hutcheson v. United States, 369 U.S. 599, 607–13 (1962).

3

Watkins, 354 U.S. at 195.

4

Id.

5

It must also be noted that a party subject to a congressional subpoena for testimony or evidence bears the risk of any refusal to comply with congressional demands on the ground the committee had violated either rules based, or constitutional limitations. The risk is especially acute for a witness called to provide testimony who “must decide at the time the questions are propounded whether or not to answer.” Id. at 208. As the Court warned in Watkins, “an erroneous determination on his part, even if made in the utmost good faith, does not exculpate him if the court should later rule” that the claim was unfounded. Id.

6

Legislative Reorganization Act of 1946, Pub. Law No. 79-601, 60 Stat. 812, 823–831(1946).

7

S. Rep. No. 79-1011, at 5 (1946). Ernest J. Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 34 (1928) (noting that during its early history the House “sparingly . . . delegate[d] to its committees the right to send for persons and papers.” ).

8

60 Stat. at 830–31.