emptywheel: They Can't Legislate $hit

[babylonsister]

They Can't Legislate $hit

by emptywheel

Marty Lederman notes that Cheney's latest dodge includes a reference to the ruling that limits Congress' oversight over the Executive strictly to those areas where it pertains to legislation. From that, he argues that Cheney's response was premised on the belief that FISA itself is an illegal restriction on the Executive.

Finally, the letter lists numerous reasons why the VP's office might not release the requested documents. The second of those reasons is this:

The Office of the Vice President reserves the limitations on congressional inquiries set forth in Barenblatt v. United States, 360 U.S. 109 (1959), which makes clear that the power to inquire extends no further than the power to legislate.

Now, I happen to think that this so-called "limitation" on congressional inquiries is not nearly so clear: Many of the earliest legislative investigations were not for the purpose of designing statutory amendments, but were instead "only" to investigate wrongdoing or malfeasance in the Executive branch; and the better view is probably that Congress has at least some such broad investigative power, unrelated to its lawmaking functions. (The Court has even indicated that Congress has an important interest in Executive branch transparency simply in order to facilitate "the American people's ability to reconstruct and come to terms with their history." Nixon v. Administrator, 433 U.S. at 452-453.)

But even if it were the case that Congress can only investigate in areas where it can legislate, . . . so what? Such an objection would only be meaningful in the context of this subpoena if there were some question about Congress's power to legislate with respect to the relevant Executive branch conduct.

So think about what the VP's letter is suggesting -- that perhaps Congress can't legislate on the topic of the government's domestic electronic surveillance!

more...

http://thenexthurrah.typepad.com/the_next_hurrah/2007/08/they-cant-legis.html

[Bitwit1234]

1. So..how about this...

If he can't be impeached, why don't we file a law suit against cheney first and then bush...We can say he is illegally following the wishes of himself and the bush administration instead of doing the job he was elected to do...serve the people of this country. I am sure a good lawyer could word this better and start a lawsuit. I'd sign up for it. All we would need is someone to get it started.

[OnceUponTimeOnTheNet]

2. Taxation without Representation.

[damntexdem]

3. The Constitution gives the power to impeach, ...

so must give a corresponding power to investigate malfeasance.

But if there's any doubt about a wider power to investigate, Congress could make that moot by starting an impeachment process.

[Spinzonner]

4. Their arguments are sounding pretty desperate

Throw stuff at the wall and see if anything manages to stick