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.

The power to conduct investigations and oversight has long been considered an essential attribute of legislative bodies. In England, Parliament’s protean investigatory powers first emerged in connection to its authority to protect the sanctity of the legislative body by punishing for contempt, a practice that can be traced back to at least 1548.1 Through a contempt proceeding, the legislative body can detain, imprison, and fine those that either obstruct Parliament’s operation, refuse to comply with its lawful orders, or threaten its prerogatives.2 These roots remain apparent today, as legal discussions of legislative investigatory powers in the United States are consistently and intimately intertwined with the contempt power.3

By the early seventeenth century, Parliament unmistakably recognized its power to investigate as the House of Commons began requiring, on a case by case basis, the attendance of witnesses or the production of documents in furtherance of the body’s “duty to inquire into every Step of publick management . . . .” 4 Eventually, as gathering information relating to both the passage of new laws and the administration of existing laws became an apparent and essential ingredient of the legislative process, compulsory investigatory powers were provided on a more general and permanent basis to established parliamentary committees of inquiry.5 This overarching historical notion of the power of inquiry as a necessary component part of the legislative power was transported to America, and incorporated into the practice of colonial governments, and, after independence, state governments.6

It is important to note that while the antecedent history of the English Parliament may be relevant to understanding the powers that the Framers of the U.S. Constitution understood the new national legislature to have, it is clear that there are limits to the usefulness of parliamentary precedents in defining Congress’s investigatory powers due to significant distinctions between the two legislative bodies. As the Supreme Court has repeatedly reaffirmed, Parliament’s investigatory and contempt powers were derived from the bodies’ authority to exercise a “blend[ ]” of both legislative and judicial powers.7 Congress, under the American system’s separation of powers among three branches of government, exercises no judicial power.8 Thus, unlike Parliament, any authority to investigate and subsequently enforce its orders must rest solely on legislative authority provided to the body by the Constitution.

The Constitutional Convention saw almost no discussion of Congress’s power to conduct oversight and investigations, although individual delegates to the Convention appear to have understood Congress to possess “inquisitorial” powers.9 A proposal to provide Congress explicitly with the power to punish for contempts—a power often used, and at times “abused,” by Parliament as a means to effectuate its investigatory powers—was made, but not acted upon.10 Nevertheless, it is likely that the general view of Convention delegates was that an express enumeration of the power of inquiry or the power to punish for contempt was unnecessary. The Framers’ conception of legislative power, based on centuries of consistent practice by both Parliament and colonial legislatures, included the ability to gather information relevant to the conduct of the House and Senate’s legislative functions.11 Congressional practice, executive acquiescence and acknowledgement, and judicial precedent all confirm the view that the power to investigate is implicit in the legislative power.

Footnotes

1

James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 157 n. 15 (1926).

2

For a broader discussion of the congressional contempt power see CRS Report RL 34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey.

3

See Watkins v. United States, 354 U.S. 178, 181–82 (1957); See, e.g., Comm. on the Judiciary of the United States House of Representatives v. McGahn, 968 F.3d 755, 762 (D.C. Cir. 2020) (House lawsuit to enforce a committee subpoena).

4

13 R. Chandler, History & Proceedings of the House of Commons 172 (1743). 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 Parliament viewed the subpoena power as “too serious a matter for general delegation” ).

5

Landis, supra note 1, at 161.

6

Id. at 165.

7

Marshall v. Gordon, 243 U.S. 521, 533, (1917) (concluding that the English contempt power “rested upon an assumed blending of legislative and judicial authority possessed by the Parliament” ).

8

Kilbourn, 103 U.S. at 192 (1880) (suggesting that “no judicial power is vested in the Congress” ).

9

See e.g., 2 Max Farrand, The Records of the Federal Convention of 1787 206 (1937) (remarks of George Mason) (Members of Congress “are not only Legislators but they possess inquisitorial powers. They must meet frequently to inspect the Conduct of the public offices” ); James Wilson, 3 The Works of the Honourable James Wilson 219 (1804) (noting the traditional power of legislators to act as “grand inquisitors of the realm” ).

10

See 2 Farrand, supra note 9, at 340; Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 171 (2017).

11

As one scholar has put it, the contemporary understanding of legislative power, at the time of the adoption of the Constitution, “possessed a content sufficiently broad to include the use of committees of inquiry with powers to send for persons and paper.” Landis, supra note 1, at 169.