1965] WITHHOLDING INFORMATION 1059 "ordered the assessors and collectors of Lancaster County to appear before the audit committee and to bring with them their books and records for the preceding ten years." Such practices found specific expression in the Maryland Constitution of 1776, which by Article X empowered the house to "call for all public or official papers and records, and send for persons, whom they may judge necessary in the course of inquiries concerning affairs relating to the public interest. . . .' "70 And Taylor concurs with Potts that "similar powers were exercised quite as freely, and without objection, in the states with constitutions which were silent on the subject."" ... Finally, the Continental Congress, in creating a Department of Foreign Affairs presided over by a Secretary, provided that “any member of Congress shall have access [to 'all papers of his office']: provided that no copy shall be taken of matters of a secret nature without the special leave of Congress." Here we have a clear reflection of British and colonial practices, demonstrating that not even "secret" matters pertaining to foreign affairs could be withheld from the legislature. Far from being restricted to eliciting information from private persons, colonial history thus evinces a sweeping power to inquire into executive management and the application of public funds, to inquire into official conduct of the officials themselves and to require them to appear. McGrain v. Daugherty summarized this history as follows: The power of inquiry-with power to enforce it-is an essential and Against this background it is idle to dwell interminably on the separation of powers." Even Montesquieu, the Great Cham of separation, declared that the legislature should "have the means 69 Id. at 709. For still another instance where "the Pennsylvania body asserted its right to investigate a public official," see id. at 710-12. 70 Id. at 714. 71 TAYLOR 12; Potts 713, 715. 72 Wolkinson 328. (Emphasis added.) 73 273 U.S. at 174. This was deemed of such importance as to be reemphasized: "In that period ['Before and when the Constitution was framed and adopted'] the power of inquiry-with enforcing process-was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative functions to the two houses are intended to include this attribute to the end that the function may be effectively exercised." Id. at 175. 74 Younger Passim; Att'y Gen. memo. 3, 45-46; Kramer & Marcuse 906. 76 [Vol. 12: 1043 of examining in what manner its laws have been e: ecuted' by government officials."75 What underlies that separation is not to be discovered by resort to pure logic but by turning to history." History delineates a virtually unlimited legislative power to demand information from the executive branch. And if history, traditionally the index of constitutional construction, is to be our guide, it may be concluded that the federal executive power came into being subject to the established power of the legislature to demand information. It cannot therefore constitute an invasion of the traditional executive powers to demand information which Parliament and colonial legislatures had long been accustomed to require. B. Early Congressional Precedents Were confirmation of the investigatory power needed, we have the practical construction of the legislative power by the First Congress,78 forcibly expressed in a little noticed statute, the Act of September 2, 1789: [I]t shall be the duty of the Secretary of the Treasury. . . to make This provision was drafted by Alexander Hamilton himself, and whether or not he hoped that this "sweeping mandate . . . wholly without limitation" would "fasten onto every conceivable activity of the Administration" he yet knew well enough whether a duty to give information to either branch could be constitutionally imposed. Note that this statute makes no provision for executive dis 75 TAYLOR 50. 76 For example, Kramer and Marcuse argue that: "The same logic which holds that Congress has the power to investigate so that it may effectively exercise its legislative functions, supports the proposition that the President has the power to withhold information when use of the power is necessary to exercise his Executive powers effectively." Kramer & Marcuse 899. The Supreme Court did not derive the legislative power of inquiry from "logic" but from history. See notes 45 and 73 supra. Where is the historical evidence that the power to withhold was an "attribute" of executive power? In Anderson v. Dunn, 6 Wheat (19 U.S.) 204, 233-34 (1821), the Court met the argument that to imply a contempt power for the legislature is to make possible a similar executive claim by saying "neither analogy nor precedent would support the assertion of such powers in any other than a legislative or judicial body." 77 See note 10 supra. 78 McGrain v. Daugherty, 273 U.S. 135, 174 (1927), referring to early investigations. 79 1 Stat. 65-66 (1789) (now 5 U.S.C. § 242 (Supp. V, 1959-1963)). (Emphasis added.) 80 KOENIG 58. 1965] WITHHOLDING INFORMATION 1061 cretion to withhold. Not only was this a constitutional interpretation by the First Congress, of which Chief Justice Taft said that its "constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument,' "81 but it had the approval of President Washington. 88 The debate on this measure, in which James Madison and Roger Sherman, members of the Constitutional Convention, participated, picks up much that earlier history had made familiar. As originally proposed, the bill made it the duty of the Secretary to "digest and report plans for the improvement and management of the revenue and support of the public credit."82 The right of Congress to require information was repeatedly recognized; but opponents of the proposed duty to "report plans" strongly objected that it would give rise to an executive invasion of the House's exclusive prerogative to originate revenue matters, "an interference of the executive with the legislative powers." Objection was made to creation of "a legal right in an officer to obtrude his sentiments perpetually on this body."85 But the need for information was stressed, among others, by Roger Sherman: "[A]s we want information to act upon, we must procure it where it is to be had, consequently we must get it out of this officer, and the best way of doing so must be by making it his duty to bring it forward." Noting that "no gentlemen... had objected to his [the Secretary] preparing a plan, and giving it when it was called for," Mr. Fitzsimons 81 Myers v. United States, 272 U.S. 52, 174-75 (1926). For the effect to be given this act see note 186 infra. Further executive recognition of this legislative power is illustrated by Vice-President Calhoun's request to the House in 1826, to investigate charges against his prior administration of the War Department as "the grand inquest of the nation," saying that "the conduct of public servants is a fair subject of the closest scrutiny . . . ." 3 HINDS 97. Compare the invitation issued by Secretary of the Treasury Wolcott in 1800, Landis 171, and that of Secretary of War Crawford in 1850, id. at 184. 821 ANNALS OF CONG. 615 (1789-1791). (Emphasis added.) 83 See, e.g., remarks of Roger Sherman, accompanying note 86 infra; 1 ANNALS OF CONG. 619, 628, 630 (1789-1791). 84 Id. at 616-18, 621. As Mr. Gerry put it: "Do gentlemen . . . consider the importance of the power they give the officer by the clause? Is it not part of our legislative authority? And does not the Constitution expressly declare that the House solely shall exercise the power of originating revenue bills? Now what is meant by reporting plans? It surely includes the idea of originating money bills...." Id. at 625. 85 Id. at 624. (Emphasis added.) Mr. Tucker recapitulated: "However useful it may be to obtain information from this officer, I am by no means for making it a matter of right in him to intrude his advice." Id. at 630. (Emphasis added.) 80 Id. at 631. Mr. Ames had carlier said: "The Secretary is presumed to acquire the best knowledge of the subject of finance of any member of the community. Now, if this House is to act on the best knowledge of circumstances, it seems to follow logically, that the House must obtain evidence from that officer. . . .” Id. at 619. 1062 UCLA LAW REVIEW [Vol. 12: 1043 suggested that "harmony might be restored . . . by changing the word report into prepare," and he so moved."7 His motion was "carried by a great majority."88 90 91 87 This history in part explains the omissions of similar "information" provisions from the contemporary acts setting up the Department of Foreign Affairs,80 before long converted to the Department of State, and the Department of War. The "planning" problem was not mooted in setting up those departments and they were established in the most casual manner imaginable," without discussion but for the "removability" problem in Foreign Affairs. In contrast, Mr. Ames said, "the present situation of our finances presents... a deep, dark and dreary chaos. . . . It is with an intention to let a little sunshine into the business that the present arrangement is proposed." It was the felt need for planning to cope with these problems by a "clear and capacious" mind that was the source of the original mandatory submission of "report plans," later reduced, because of violent objection to executive "intrusion," to the familiar call for information when required. Hence the acts setting up the War and Foreign Affairs Departments do not lend themselves to a congressional disclaimer of power to require information. But Attorney General Rogers experiences no difficulty on this score; indeed, he states: One of the most powerful arguments to be found anywhere for the 87 Id. at 628. (Emphasis added.) 88 Id. at 631. 89 1 Stat. 28 (1789). 90 1 Stat. 68 (1789) (Enacted Sept. 15, 1789). 91 1 Stat. 49 (1789) (Eracted Aug. 7, 1789). 92 Cf. 1 ANNALS of Cong. 630 (1789-1791). An illuminating glimpse is afforded by the fact that when the name of the Department was changed about six weeks after its creation from Foreign Affairs to State, its duties were expanded to include the publication of enacted laws, keeping the Great Seal and affixing it to commissions of all civil officers. 1 Stat. 68 (1789). Again, the debate on the bill establishing the Department of War occupies less than a page, without any mention of information. 1 ANNALS OF CONG. 615 (1789-1791). 93 Id. at 619-20. (Emphasis added.) Mr. Gerry said that he was "in favor of the object of the clause; that was, to get all the information possible for the purpose of improving the revenue, because he thought this information would be much required, if he judged from the load of the public debt, and the present inability of the people to contribute largely to its reduction." Id. at 624. 94 Id. at 619. 95 Att'y Gen. Memo. 140. 1965] WITHHOLDING inforMATION 1063 Under that Congress, he properly states, "every Member thereof was entitled to see anything he wanted to see in the records of that Department." And because some members of the Continental Congress were later members of the First Congress, he concludes that: The Members who sat in the New Congress in 1789 could not have been unfamiliar with the fact that during the existence of the Continental Congress its Members had been entitled to see all kinds of secret data. The conclusion is therefore inescapable that the founders of our Government, and those who sat in the First Congress, meant to give no power to the Congress to see secret data in the executive departments against the wishes of the President. That was a power which the Continental Congress had and which the framers of the Constitution meant for the new Congress, created by the Constitution, not to have.97 This "powerful argument" and its "inescapable conclusion" simply will not stand up. 98 The stormy debate which swirled about the proposed Department of Foreign Affairs, and which dragged on for days and days," was exclusively devoted to a clause which would make the Secretary "removable from office by the President." Not a single word was uttered about the congressional right to require information, secret or otherwise." From this the Attorney General might with equal plausibility have concluded that the right to require information had gone by default. But such an argument was precluded by the debate on the Department of the Treasury, during which it was generally agreed that "information," as contrasted with the "intrusive" submission of plans could be required of the Secretary, as Roger Sherman had categorically asserted.100 And the ensuing Act of September 2, 1789, required information without any qualification whatsoever. The Attorney General's attempt to read an exception for "secret data" into this plain statutory provision, for so his argument must be tested, not only labors under the burden that such attempts must carry, but can be effectively countered. There was no need to single out for special mention "secret data" from other information which Congress felt empowered to "require," because the plenary parliamentary and colonial legislative power-but for the 96 Ibid. For the Continental Congress provision, see text accompanying note 72 supra. 97 Att'y Gen. Memo. 141. 98 1 ANNALS OF CONG. 473-672 (1789-1791). 99 Mr. Wolkinson, whose articles the Attorney General adopted almost in haec verba, himself tells us that he was unable "to find any reference to that [Continental Congress] provision in the debate in the New Congress on the Act creating the Department of Foreign Affairs." Wolkinson 329-30. 100 See text accompanying note 86 supra. |