ministrator of the Wage and Hour Division of the Department of Labor had issued and served on the Oklahoma company a subpoena directing the production by the company of certain of its records, including records which would indicate whether or not the company had a sufficient relationship to interstate commerce to bring it within the jurisdiction and coverage of the Fair Labor Standards Act. The company, in opposing the subpoena, contended inter alia, that at least "probable cause" for jurisdiction over it must be shown before it could be lawfully required by subpoena to produce its records. The Court rejected this contention of the appellant company, holding that "probable cause" for jurisdiction did not have to be shown in order to validate the subpoena -that the Administrator had jurisdiction to compel the production of documents in order that he might determine whether the facts showed that a case existed within the jurisdiction of the Fair Labor Standards Act. The Court, then, proceeded to liken the powers of the Administrator, which were granted to him by the Congress, to the inquisitorial power of a grand jury or the discovery powers of a court of equity. In a footnote to its opinion the court stated that the investigating power of Congress, itself, was of the same character.109 It seems reasonable to conclude that if Congress can vest in the Administrator of the Wage and Hour Division such a power of investigations, limited only by the broad grant of authority in Section 11 (a) of the Fair Labor Standards Act 110 Congress itself may do the same in conducting its own investigations in aid of its own powers. From this, it seems reasonable to conclude further that the inquisitorial power of Congress extends to adducing facts which it can use as a basis for determining whether or not it has any power to legislate. From the above, it can be seen that the Supreme Court is cognizant of the unrealistic qualities of the decision in the Kilbourn case and that this is not an appropriate case to cite in support of any point in the general subject matter of congressional investigations. The distinction should be drawn, therefore, between information which an individual is demanding for his benefit in a civil or criminal trial and information which an investigating committee of the Congress should have in order to carry out the legislative intent of a statute or in order to aid it in its function of enacting appropriate and necessary legislation. There should, of course, be a spirit of cooperation between the executive and legislative branches when the information is to be given for a purpose good for the country as a whole. Furthermore. it seems reasonable to suppose that the framers of the Constitution wished to make that same spirit of cooperation a constitutional obligation incumbent upon the executive branch. It is the feeling of the writer that should a case, perhaps through a contempt proceeding involving the head of an exccutive department or agency, reach the courts, credence would be given to the requirements of the legislative branch and that the cases cited in the opinion of Attorney-General Jackson would not be deemed binding. Stated in another way, it is submitted that the aforementioned statement of the Attorney-General falls and with it falls the second or legal argument of the executive branch. CONCLUSION In summary, the foregoing discussion holds that the "precedent" argument of the executive can be countered by precedents favorable to the legislative, about as numerous and strong as those of the exccutive branch. Even if the reader feels that the argument from precedent does not favor the legislative as much as it favors the executive branch. the claim of Congress that it has the constitutional power to create a precedent in its favor by enactment of appropriate legislation, has not been successfully countered by the executive. It is further submitted that the second or legal argument of the executive branch, generally accepted as true by the public and the press, is not supported by the authorities cited. THE POWER OF THE EXECUTIVE TO WITHHOLD IN- INVESTIGATING COMMITTEES The power of congressional committees has become one of the most controversial subjects of our day. It has received widespread publicity in television, radio and the press, and the problems created by Congress' power to investigate are the object of increasing study by lawyers and by the courts.1 The functions of congressional committees include: the securing of information to enable Congress to legislate wisely; the examining of activities of administrative agencies in their implementation of the laws; and the scrutinizing of the expenditure of public funds. When engaged in one or more of these activities, a committee may summon witnesses and require their testimony under threat of contempt proceedings. Article I, Section I, of the Constitution placed "all legislative Powers" in a Congress consisting of a Senate and House of Representatives. The Constitution is silent as to the power of Congress to compel witnesses to testify or be cited for contempt. But, the power itself is one of the inherent rights of a legislature. If kept within proper bounds, it is "an attribute of the power to legislate." The effective contempt statute originated in 1857 and is very similar to the law in effect today. Considerable attention has been given to the Fifth Amendment as it relates to congressional investigations. Quite distinct problems arose during the Army-McCarthy hearings over the power of a committee to require members of the executive department to produce requested information. Basic to this issue is the effect of the doctrine of separation of powers on the investigative powers of Congress. 1 One of the better recent studies is represented in the Symposium on Congressional Hearings and Investigation in 14 Fed. B.J. 3-181 (1954). 2 McGrain v. Daugherty, 273 U.S. 135, 161 (1927). Cf. Kilbourn v. Thompson, 103 U.S. 168 (1880). 11 Stat. 155 (1880), 2 U.S.C. § 192 (1952). The provision presently reads: "Refusal of witness to testify. Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee... or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." 4 Huard, The Fifth Amendment—An Evaluation, 42 Georgetown L.J. 345 (1954). THE PROBLEM On January 21, 1954, John G. Adams, Counselor for the Department of the Army, participated in a meeting of persons from executive departments, relative to charges and countercharges between the Army and Senator Joseph R. McCarthy of Wisconsin. At a hearing of a Special Subcommittee-investigating the various accusations, Mr. Adams was questioned as to the nature of these discussions. His counsel, Mr. Welch, replied that he had been ordered not to testify concerning the meeting. Mr. Adams was instructed to furnish the Subcommittee with a written communication concerning this decision. In response, a letter from President Eisenhower to the Secretary of Defense was presented to the Subcommittee together with a memorandum from the Attorney General defending the President's action. In his letter, the President assumed direct responsibility for withholding the information sought. In doing so, he raised anew a persistent and perplexing problem. SEPARATION OF POWERS In separate Articles, the Constitution provides for three branches of government. The First Article gives to Congress "all legislative Powers herein granted"; the president, by the Second Article, is given "the executive Power"; and the Third Article states that "the judicial Power of the United States" shall be vested in the Supreme Court and such in Special Subcommittee on Investigations of the Committee on Government Operations United States Senate, 83d Cong., 2d Sess. (1954). • Hearings before Senate Special Subcommittee on Investigations of the Committee of Government Operations pursuant to S. Res. 189 (Army-McCarthy Hearings), 83d Cong., 2d Sess. 1173 (1954). 7100 Cong. Rec. 6621 (1954). The President's letter is a classic statement of the doctrine of separation of powers. In pertinent part it read: "Because it is essential to efficient and effective administration that employees of the executive branch be in a position to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations or communications or any documents or reproductions, concerning such advice be disclosed, you will instruct employees of your Department that in all their appearances before the subcommittee of the Senate Committee on Government Operations regarding the inquiry now before it they are not to testify to any such conversations or communications or to produce any such documents or reproductions. "I direct this action so as to maintain the proper separation of powers between the executive and legislative branches of the Government in accordance with the respo: illities and duties under the Constitution. This separation is vital to preclude the exercise of arbitrary power by any branch of the Government." ferior courts as Congress may establish. The doctrine of separation of powers has as its essential aim the maintenance, to the extent feasible, of independence of judgment and action within each branch of government. Except as authorized by the Constitution, no one of the three branches is to encroach upon another. In this manner a dangerous concentration of powers was sought to be avoided, and governmental functions were retained by those departments best qualified to exercise them. Madison states in The Federalist: ... The accumulation of all powers, Legislative Executive, and Judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the Federal Constitution, therefore, really chargeable with this accumulation of power . . . having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. In continuing, he demonstrated that the doctrine does not mean that each branch should be antagonistic to the others, but that cooperation between them was essential for successful government.10 It is interesting to note that Madison felt the legislative department had the easiest road to encroachment on the other branches of government. The Legislative department derives a superiority in our Governments from other circumstances. Its constitutional powers being at once more extensive and less susceptible of precise limits, it can, with the greater facility, mask, under complicated . . . and indirect measures, and the encroachments which it makes on the coordinate departments. It is not unfrequently a question of real nicety in Legislative bodies, whether the operation of a particular measure will, or will not extend beyond the Legislative sphere. On the other side, the Executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary, being described by landmarks, still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves.11 To legislate and to appropriate money for governmental expenditures, Congress must be informed of the activities of the executive branch. Comity and reasonableness on the part of the executive is necessary for orderly government. Yet, it would seem obvious that Congress may not 8 For a fascinating review of the doctrine as applied in the United States and abroad see Vanderbilt, the Doctrine of the Separation of Powers and its Present-Day Significance (1953). • Madison, The Federalist, No. 46, p. 334 (Dawson 1888). 10 Madison observed that none of the state governments in existence at that time applied the doctrine literally. 11 Madison, The Federalist, No. 47, p. 344 (Dawson 1888). |