Congress has a specific function within our constitutional framework—to make laws. But to a citizen observer, it may seem as if Congress’s investigative powers are no different than the Department of Justice’s. In this article, Samuel Dewey, former Senior Counsel to the U.S. House of Representatives Financial Services Committee, explains what Congress can and cannot do regarding investigations.
The short answer to the question, does Congress have the authority to investigate my company or me, is yes, they probably do. Even before the existence of Congress, the Founding Fathers understood that to make laws, Congress would need the power to discover facts. Congressional investigations have been a part of the American legal and political process since the colonial period.
It is rare for a court to find that Congress has overstepped its bounds when conducting investigations. That is not to say, however, that there are no limits—because there are.
The U.S. Constitution does not directly authorize Congressional investigations. It gives Congress the authority to make laws, and the Supreme Court has ruled that the power of inquiry is inherent in that function. The idea is that Congress couldn’t make appropriate laws if they cannot conduct investigations to find facts to inform contemplated legislation.
Congress has broad discretion regarding both the scope of its investigation and the relevance of the information it requests. The test is whether the investigation is related to a matter on which valid “legislation may be had.” This is a generous test. There is no requirement for a close nexus between Congress’s stated legislative purpose and the information is seeks. Loose relevancy will do. Moreover, Congress need not have specific legislation in mind—it can simply envision reforms in broad strokes. Finally, Congress may (generally) proceed to by a “case study” method—you may be “selectively” investigated.
As comprehensive as its authority to investigate is, this power is not unlimited. After affirming the right of Congress to investigate broadly, former Chief Justice Earl Warren said: “But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.”
Additionally, the doctrine of separation of powers places boundaries around congressional authority to investigate. Under the pretense of an investigation, Congress cannot aggrandize the power of another branch of government. For example, it can not initiate an investigation to determine a person’s entitlement to a presidential pardon because the Constitution grants the power to pardon to the President, not Congress. Nor can Congress use an investigation in lieu of a criminal proceeding. That said, it is not uncommon for congressional and criminal investigations to run parallel to each other.
Ultimately, nearly any matter could reasonably fall within Congress’s investigative authority if the conditions are right.
About Samuel Dewey
Samuel Dewey is a successful lawyer and former Senior Counsel to the US House of Representatives Financial Services Committee and Chief Investigator and Counsel to the US Senate Special Committee on Aging. Mr. Dewey specializes in: (1) white-collar investigations, compliance, and litigation; (2) regulatory compliance and litigation; and (3) complex public policy matters. Within these fields, Mr. Dewey is considered an expert in Congressional investigations and attendant matters. Mr. Dewey has a BA in Political Science, a JD from Harvard, and is admitted to practice law in Washington, DC, and Maryland.
This article cannot be re-published without permission.