Home > Journals > WMLR > Vol. 66 (2024-2025) > Iss. 2 (2024)
William & Mary Law Review
Abstract
To fulfill its constitutional functions, Congress must have access to information from within the executive branch. Whether it is assessing the need to amend the authorities of administrative agencies, determining whether to fund executive branch programs, or investigating allegations of waste, fraud, and abuse, Congress can act responsibly only if it is able to compile an accurate picture of executive branch activities. When executive branch officials resist these requests—for either legitimate or problematic reasons—the resulting conflict is traditionally resolved amicably through interbranch negotiations, not inter-branch litigation. Indeed, courts heard a total of four congressional-executive information disputes in the nation’s first two hundred and forty years. Depending on how you count, however, the Trump administration alone generated at least five.
This Article argues that Congress’s recent litigiousness is the culmination of a long-term trend. Over the past half-century, the executive branch has unilaterally developed numerous legal doctrines that aggrandize its own bargaining power at Congress’s expense, enable it to circumvent the checks and balances established by the Constitution, and justify rebuffing valid congressional information requests. The Article uses the Trump-era cases to explore this evolution, and its consequences, in the context of executive branch doctrine surrounding three issues—the claim that presidential advisors are absolutely immune from testifying before Congress, the claim that Congress must clear a high bar to request information from the executive branch, and the claim that congressional lawsuits to enforce subpoenas are not justiciable in federal court. It demonstrates the extravagance of the executive branch’s claims and explores the significance of the courts’ nearly universal rejection of them in the Trump-era suits. It concludes that the cases’ impact will not be as significant as the courts’ decisive rejections of the executive’s theories might suggest, and that both Congress and the courts must act more aggressively to recalibrate the branches’ bargaining power to bring the executive back to the bargaining table, where such disputes should be resolved.