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“Lawyer up,” incoming House Oversight Committee Chair Robert Garcia (D-Calif.) warned the Trump administration on election night.
Not exactly subtle!
Rep. Analilia Mejia (D-N.J.) dialed it up even further on X: “We’re going to toss out subpoenas like Mardi Gras beads.”
On the campaign trail before the electoral bloodbath, Democrats purported to prioritize affordability and cost-of-living issues.
The mask is slipping and the truth is coming out: All Democrats really seek to do with their incoming congressional majorities is to wreak as much havoc as possible.
The occasional mention of corruption aside, Democrats just want to make the administration’s life hell for the sake of making it hell.
It won’t be that easy for them. The Constitution would like a word, and White House counsel Will Scharf is here to offer it.
In a tour de force missive to Garcia, Scharf argued, “Congressional investigations must further a legitimate legislative task.” Failure to identify such a legitimate legislative end, Scharf warned, “represents a clear abuse of power and an affront to our constitutional system of government.”
The fact is, Scharf is right.
“The powers delegated by the proposed Constitution to the federal government are few and defined,” James Madison explained in The Federalist No. 45.
The executive branch has two primary defined powers: the executive power and the commander-in-chief power.
The former is the law enforcement power - to “take Care that the Laws be faithfully executed.” And the latter is the power to control the U.S. military, subject to congressional appropriations.
Congress has even more carefully circumscribed powers than the executive branch. It has 18 specific enumerated powers, found in Article I, Section 8 of the Constitution.
True, the final enumeration accords Congress the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Historically, some have taken an expansive view of this clause.
But that expansiveness has limits.
Chief Justice John Marshall, in one of the most-quoted lines in Supreme Court history, wrote in 1819: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate … are Constitutional.”
The most important point is the first five words: “Let the end be legitimate.”
Scharf’s point to Garcia is simple: Your end is not legitimate.
Tossing out subpoenas “like Mardi Gras beads” might be necessary and proper for boosting Democratic National Committee fundraising but it isn’t necessary and proper to what Congress is actually supposed to do: Write the nation’s laws.
The two political branches are supposed to be rivals. They are supposed to be zealous defenders of their own legitimate constitutional spheres.
This is the purpose of the separation of powers: to divide power, and thereby protect liberty, in a republic where we are governed by fallible men.
But there also exists a necessary level of baseline comity, without which the entire edifice collapses.
Historically, courts and Justice Departments have referred to the inevitable give-and-take that follows when Congress subpoenas executive branch testimony or document production as the “accommodation process.”
As a 1977 D.C. Circuit opinion put it, where there is such a conflict between the political branches, “a spirit of dynamic compromise” should “promote resolution of the dispute in the manner most likely to result in efficient and effective” governance.
But “dynamic compromise” requires all actors to operate in something at least resembling good faith.
That means Senate and House Democrats must focus on their actual constitutional job: legislate in the name of the common good.
They just won an election claiming to care about the economy. They’re about to wield real power. Maybe they can actually try to help ordinary Americans.