Separation of powers at stake in US House v. Trump

The U.S. Court of Appeals for the District of Columbia held arguments by phone on Tuesday in a case pitting the Trump administration against the House of Representatives over the latter’s power to enforce a subpoena for former White House Counsel Donald McGahn’s testimony.

Doug Kriner, professor in Cornell University’s Government Department and author of the book “Investigating the President: Congressional Checks on Presidential Power,” says that if the court rules in favor of the Trump administration in this case, the principle of separation of powers could be threatened:

“Oversight may not be the flashiest duty that Congress performs. But it is one of the most important. National emergencies all but demand the expansion of executive power. The Great Depression and World War II gave birth to the modern presidency and vastly expanded the reach of the executive branch at the expense of the legislative.  The COVID-19 pandemic will almost certainly do the same. Once power is delegated to the executive, it is hard if not impossible to claw it back. However, throughout American history investigative oversight has been a powerful weapon in Congress’ arsenal. Harry Truman, who catapulted to national prominence as chair of an eponymous committee investigating wartime waste, fraud, and abuse warned his colleagues that the strength of Congress’ investigative power ‘will largely determine the position and prestige of the Congress in the future.’

“Today, that power is under an unprecedented assault from President Trump. In recent weeks as the coronavirus has raged across the country, President Trump has fired the inspector general who reported the Ukraine whistleblower complaint to Congress; announced his intention not to comply with oversight provisions in the coronavirus relief bill; and removed the acting inspector general at the Defense Department, who would have chaired the committee ensuring vigorous oversight over the dispersal of hundreds of billions of dollars in coronavirus aid. This merely continues Trump’s war on oversight begun in 2019 when the administration vowed to fight ‘all subpoenas’ from congressional inquiries, even and especially those issued during the impeachment inquiry.

“The D.C. Circuit will soon decide whether the executive branch can defy Congress and essentially nullify this critical power with impunity. Writing in the aftermath of Watergate, the great historian Arthur Schlesinger Jr., who just two years earlier penned ‘The Imperial Presidency,’ wrote ‘the manner in which Congress exercises the investigative power will largely determine in years to come whether the problem posed in the 51st Federalist can be satisfactorily answered – whether the constitutional order will in the end oblige the American government to control itself.’  If the court upends hundred-year-old precedents firmly establishing investigative oversight as essential to Congress’ legislative function, it will remove one of the most effective checks Congress retains on executive aggrandizement. At stake is nothing less than the separation of powers.”

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