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limited recalcitrance of George the Second during the Walpole inquiry, which had "greatly surprized" the Select Committee, 101 and which was repudiated by the very Continental Congress provision upon which Attorney General Rogers relies-had never been questioned, so far as present day scholarship has disclosed.
Why indeed should former members of the Continental Congress have become more trusting with a new Department set up in a separate executive branch than with the old over which they had plenary control? The relations of the Continental Congress with the Secretary of the Department of Foreign Affairs, by the Attorney General's own testimony, closely resembled the intimate relations of Parliament with its ministers,102 and it yet jealously insisted on access to all "secrets" in that Department. The First Congress was not intent on surrendering cherished prerogatives to the newly created executive branch; on the contrary, the 1789 debate on the new Department is rife with distrust of the President and the new department heads.108 Moreover, the members of the 1789 Congress who had been members of the Continental Congress had earlier had access to all the information involved in the delicate treaty making with lirance, Ilolland and lingland. Such access militales strongly against the argument that thcy would by default cndorse the notion that cxecutive insulation of "sccrct" papers from the Congress was indispensable to the conduct of foreign affairs.
Any doubts that may cling to the omission of “information" provisions from the War Department and Foreign Affairs statutes, however, are set to rest by the advice Attorney General Cushing furnished in 1854 to the President:
By express provision of law, it is made the duty of the Secretary of the Treasury to communicate information to either House of Congress when desired; and it is practically and by legal implication the same with the other secretaries, and with the Postmaster and the Attorney General.104
101 For a discussion of this incident, sce text accompanying notes 205-10 infra. 102 Att'y Gen. Mem. 140-41.
103 For the First Congress' suspicion of cxecutive "intrusion,” sce text accompanying note 85 supra. Note also Gerry's remark: "If the doctrine of having prime and great ministers of state was once well established, he did not doubt but we should soon see them distinguished by a green or red ribbon, or other insignia of court favor and patronage." I ANNALS OF CONG. 624 (1789-1791). See also id. at 617. Cf. note 84 supra.
104 6 Ops. Atr'Y GEN. 326, 333 (1856). Both Wolkinson 247-48, and Attorney General Rogers, Att'y Gen. Memo. 48, quote in identical terms another Cushing extract of similar import, i.e., that the Treasury statute, subjecting the Secretary to "direct calls for information," "has come, by analogy or by usage, to be considered a
“Congress," summed up Cushing, "may at all times cal on them [the Departments] for information or explanation in j latters of official duty. . . ."105 In light of the foregoing, Attorney General Rogers' statement in 1958 that "the Executive privilege ... could be traced back to section 2 of the Act of July 27, 1789, 1 Stat. 28, establishing the Department of Foreign Affairs”106 is without merit.
The authoritative constitutional construction of "legislative power” by President and Congress embodied in the Act of 1789, which made it the "duty” of the Secretary of the Treasury to furnish information required by Congress, is the earliest illustration of the fact that both Houses, as the Supreme Court remarked, “early in their history” took the broad, colonial view of their power to inquire.107 Throughout the first hundred years of our history there was a constant stream of investigations of the civil and military operations of the executive branch.108 The instances are far too
part of their (the other Department's] official business." 6 Ops. ATT'Y Gen. at 332. Nonetheless, they conclude on the basis of Cushing's statement that "no Head of Department can lawfully perform an official act against the will of the President ... (otherwise) Congress might by statute so divide and transfer the executive power as utterly to subvert the Goverment ...," 7 Ops. Atr'y Gen. 469-70 (1856), and, promising a "suppositious" law which would compel department heads to furnish information to Congress, Icaving no discretion to withhold in the President, that: "According to Attorney General Cushing, such a law might well be subversive of our form of Government. . . ." Wolkinson 249; Att'y Gen. Mcmo. 48. That Cushing recognized the constitutionality of the 1789 law requiring the Treasury to furnish information, without any reservation for “discretion" is implicit in the quotation in the text accompanying notes 104-05 supra. Moreover, Cushing stated in the same opinion that: “To coerce the Head of the Department is to coerce the President. This can be accomplished in no other way but by a law, constitutional in its nature, cnacted in accordance with the forms of the Constitution." Quoted by Wolkinson 252; Att'y Gen. Memo. 51.
105 6 Ops. Att'Y GEN. 344 (1856).
108 TAYLOR 33. From the outset, members of Congress insisted that "an inquiry into the expenditure of all public money was the indispensable duty of this House." 3 ANNALS OF Cong. 491 (1792). Mr. Randolph, in proposing the investigation of the War Department in 1809, put the matter sharply: "Among the duties—and among the rights, too--of this House, there is perhaps none so important as the control which it constitutionally possesses over the public purse. To what purpose is that control? The more form of appropriating public money, unless this House rigorously examine into the application of the money thus appropriated; unless the House examinc ... if it be misapplied, that is, if money appropriated for one object be expended for another; unless we do this, sir, our control over the public purse is a mere name-an empty shadow.” 19 ANNALS OF CONG. 1330-31 (1809).
Congressman Macon said in 1810: "[T]he right to inquire into the state of the whole Army unquestionably gave the right to inquire into the conduct of the individuals composing it.” 21 ANNALS OF CONG. 1748 (1810). In sum, the “power of inquiry has been employed by Congress throughout our whole history ... in determining what
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numerous to chronicle here, and such investigations have continued uninterruptedly down to the present day.109 The Attorney General himself noted that the executive branch has failed to comply with Congressional demands for information in "relatively few instances."110 Because Congress did not clap such recusants in the Capitol guardroom or run to the courts, Attorney General Rogers has spelled out “150 years of legislative acquiescence” in the assertion of executive power to withhold information from Congress."11 It is a strange logic that would deduce from 175 years of persistent congressional demands for information and almost unfailing excoriation of executive refusals to furnish it112 an "acquiescence" in the withholding. Moreover, if the legislative power conferred by the Constitution indeed reflected parliamentary and colonial usage, as the Act of 1789 immediat ly demonstrated afresh, then subsequent "acquiescence” in resistance to its exercise is of no moment, for a constitutional power, as in the case of a statutory authority, "cannot evaporate through lack of . . . exercise."'118 But such "acquiescence” is in fact a figment of the executive imagination.
to appropriate .. .. or whether to appropriate. The scope of the power to inquiry, in short, is as penctrating and far reaching as the potential power to enact and appropriate under the Constitution.” Barenblatt v. United States, 360 U.S. 109, 111 (1959).
100 To cite only a few early examples, the House "scrutinized the Treasury Department (1800 and 1824), the territorial government of Mississippi (1800); the War Department (1809 and 1832); the conduct of General James Wilkinson (1810); gove ernment 'clerks' generally (1818), the Post Office (1820 ard 1522), the Bank of the United States (1832 and 1834), the New York Customs House (1839), the conduct of Captain J. D. Elliot commanding a naval squadron in the Mecliterranean (1839), the Commissioner of Indian Affairs (1849), the Secretary of the Interior (1850); the Smithsonian Institution (1855). In the mcantime the Senate hi.d looked into General Andrew Jackson's conduct of the Seminole Wars in Florida (1818), the Internal Revenue Burcau (1828), the Post Office (1530), and John Brown's raid at Harper's Ferry (1859)." TAYLOR 33-34. See also Potts 813-14, and a list compiled by Senator Edmunds in 1886, 17 Cong. Rec. 2216 et seq. (1886). It is now beyond dispute that the “power of Congress to conduct investigations is inherent in the legislative process. . . . It comprehends probes into departments of the Federal Government to expose corruption, inefficicncy or waste.” Watkins v. United States, 354 U.S. 178, 187 (1957).
110 Att'y Gen. Memo. 2.
112 See, e.8., Senator Edmunds' (chairman of the Senate Judiciary Committee) reply to President Cleveland in 1886. Collins 569-73. Cf. the House Report filed in 1843 after President Tyler furnished the desired information, accompanied by a claim of power to withhold. 3 Hinds 181-86.
113 FTC v. Bunte Bros., 312 U.S. 349, 352 (1941). Sec l'nited States v. Morton Salt Co., 338 U.S. 632, 647 (1950). In the Jay Treaty debate (1796), Mr. Havens "Jaid it down as an incontrovertible maxim, that neither of the branches of the Government could, rightfully or constitutionally, divest itself of any powers ... by a neglect to exercise those powers that were granted to it by the Constitution." 5 ANNALS OF Cong. 486 (1796). To the same effect, sce the statement of Mr. Nicholas, id. at 447.
II. THE "EXECUTIVE POWER" CONTAINS NO
Attorney General Rogers builds his fortress on the executive power, the argument being that the Constitution vests the executive power in the President and directs him to “take care thit the laws be faithfully executed." Since he "is supreme in the duties assigned to him by the Constitution," the argument runs, Congress cannot "compel heads of departments by law to give up papers and information involved” if the President concludes they should be withheld."14 The Congress, however, is equally “supreme in the duties assigned to [it] by the Constitution,” preeminent among which is the established power to investigate into executive conduct; and, in light of history it might be argued with greater force that the executive cannot withhold that which Congress is authorized to require. The Attorney General does not address himself to the accommodation of the two powers but rather assumes that some special attribute of the executive power gives the executive the last word, 115
If the executive power runs no further than the power to execute the laws, the claim of "uncontrolled discretion" to withhold information is truly in an awkward posture for it posits that effective execution of the laws requires that Congress be kept in the dark as to how its laws are being executed. Without details of performance a congressional determination whether to transfer, alter or abolish delegated functions is impeded; without such information inquiry into "corruption, inefficiency or waste" is shackled. There is not the slightest historical warrant to conclude that by conferring the power to execute the laws the framers intended the executive to limit legislative exercise of those established functions in order to shield executive conduct from traditional legislative inquiries.
No mention of the secrecy issue is to be found in the history of the executive power, but revealing light on the pre-1789 attitude toward governmental secrecy is shed by the history of Article I, section 5(3), of the Constitution which required Congress to keep and publish Journals, except "such parts as may in their [each House) judgment require secrecy." The lively fears that were stirred when the issue was brought into the open by an express grant to the legislature, then more trusted than the executive, 116 and the narrow
114 Att'y Gen. Memo. 3-4. See also id. at 46. This view is adopted by Kramer & Marcuse 899-903.
115 Id, at 898-902.
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reading whereby proponents sought to allay such fcars, rcpcl the inference that the Framers intended by implication to give the executive the limitless power that was withheld from the Congress.
The Article I provision was first voted by the Federal Convention by a very narrow margin aiter James Wilson's vigorous objcction: "The people have a right to know what their Agents are doing or have done, and it should not be in the option of the Legislature to conceal their proceedings."117 Later, when George Mason and Gerry pressed for publication of "all the proceedings of the House," the "other side" countered that "cases might arise where secrecy might be necessary in both Houses—Measures preparatory to a declaration of war, ...-18
Such fears and the attempts to quiet them by restrictive readings were echoed in the Ratification Conventions. In Virginia, Patrick Henry demanded an explanation "why Congress should keep their proceedings secret," and opined that "the liberties of a people never were . . . secure when the transactions of their rulers may be concealed from them." He recognized the need for temporary withholding of "such transaction as relate to military operations or affairs of great consequence, the immediate promulgation of which might defeat the interests of the country.” And he concluded that to "cover with the veil of secrecy the common routine of business, is an abomination. ...110 George Mason also argued that the provision "enables them to keep the negotiations about treaties secret. Under this veil they may conceal anything and everything."120 To set such fears at rest, John Marshall referred to the British practice invoked by Patrick Henry and asked:
When debating on the propriety of declaring war, or on military arrangements, do they deliberate in the open fields? No sir. ... In this plan, secrecy is only used when it would be fatal and pernicious to
publish the schemes of government.121 Not satisfied, Mason continued to press, "why not insert words that would exclude ambiguity and danger?"122
In the North Carolina Ratification Convention, Davie, a member of the Federal Convention, explained that under the provision
117 2 FARRAND, RECORDS 260.
120 Id. at 404. This was not a fleeting reaction. In 1846 President Polk wrote the House that: "I am fully aware of the strong and correct feeling which exists throughout the country against secrecy of any kind in the administration of the Government. ..." 4 RICHARDSON 434.
121 3 ELLIOT, op. cil. supra note 119, at 233, 170, 222. 123 Id. at 404.