Cooperative Oversight and the Separation of Powers

Abstract

Congressional oversight provides a vital check on the executive branch and one of the only mechanisms for presidential accountability following the Supreme Court’s immunity decision in Trump v. United States. Congress is most likely to initiate contentious investigations of the executive branch when government is divided, including by issuing subpoenas and filing lawsuits to enforce them. But judicial review is not a realistic way to resolve the overwhelming majority of these disputes: litigation takes time, creates risks for Congress, and is often disfavored by the judiciary. Thus, even though interbranch oversight litigation has become more common in recent years, there is scant judicial precedent on core conflicts that arise during congressional-executive branch investigations. 

In the absence of case law, both branches rely on their own internal doctrine when negotiating oversight disputes. A growing body of scholarship warns that this empowers the executive branch to withhold information from Congress based on self-aggrandizing legal theories that have never been validated by the courts. Analyzing this dynamic through the lens of conflict, scholars argue Congress should litigate more aggressively, pass legislation to expedite judicial resolution of congressional subpoena enforcement litigation, and resort to self-help measures such as inherent congressional contempt. This article challenges the conventional wisdom that Congress can only gain leverage against the executive branch through conflict, revealing an overlooked way in which Congress can do so: through cooperative oversight of a prior administration when government is unified, when recent experience shows the executive branch is often willing to deviate from longstanding internal doctrine and give Congress what it wants. By pursuing cooperative oversight when political incentives align, Congress can amass precedents that strengthen its hand in future confrontations. 

Keywords: congressional oversight, separation of powers, congress, executive power, constitutional law