Waxman Power Play Imperils Rule of Law: Rep. Henry Waxman's Wily Use of an Obscure 1928 Law to Make an End Run around the Executive Branch Has the Potential to Trigger a Constitutional Crisis. (Congress: `Rule of Seven')

By Rodriguez, Paul M. | Insight on the News, March 11, 2002 | Go to article overview

Waxman Power Play Imperils Rule of Law: Rep. Henry Waxman's Wily Use of an Obscure 1928 Law to Make an End Run around the Executive Branch Has the Potential to Trigger a Constitutional Crisis. (Congress: `Rule of Seven')


Rodriguez, Paul M., Insight on the News


Rep. Henry Waxman's wily use of an obscure 1928 law end run around the executive branch has through the federal judiciary toward the U.S. Supreme Court has the potential to start a political wildfire, say constitutional authorities -- one that may alter dramatically the balance of power among the three branches of government. And on the way it could provide Democrats, led by Rep. Henry Waxman of California, with the cover of authority to pry loose documents long sought from the White House, among them details of the range of advice given Vice President Dick Cheney's energy task force.

The White House is mum on the issue but, according to INSIGHT'S sources at the Justice Department, many there are extremely nervous. So, too, are senior members of the House Republican leadership who are alarmed about upsetting constitutional balances and looking into ways to duck the court-approved authority recently won by Waxman.

Specifically, U.S. District Judge Lourdes G. Baird ruled on Jan. 18 that Waxman and 15 Democrat colleagues properly exercised a 73-year-old statute that allows any seven members of the House Government Reform Committee (or any five members of the Senate Governmental Affairs Committee) to make "on-demand" requests to government agencies for any materials within the jurisdiction of the two panels. This authority is spelled out in Section 2954 of Title 5 of the U.S. Code.

Constitutional scholars contacted by INSIGHT were surprised by both the on-demand authority contained in Title 5 and this first court case affirming the so-called "Rule of Seven" that Waxman, the ranking Democrat on the House Government Reform Committee, invoked. Robert Turner, associate director of the Center for National Security Law at the University of Virginia School of Law, says that if Baird's ruling is allowed to stand it will raise significant separation-of-powers issues. "Congress cannot delegate legal power to act on behalf of itself to a small group of members" without the active support and consent of the entire chamber, he says. "It challenges the principle that a statute can change the constitutional balance of powers."

Senior House Republican lawyers tell INSIGHT the same thing. "This not only upsets the apple cart between the branches of government," one says, "it undermines the authority of the majority internally as well because, if unchallenged, it raises the troubling issue that a minority group of renegade members can circumvent the rules of the House and force ill-advised constitutional clashes without approval by the bipartisan leadership or a vote of the House."

At issue is the virtually unknown authority long hidden in a statute passed in 1928. Although in the recent case the Justice Department argued strenuously that the law did not mean what it clearly said, Waxman and company argued that because the legislative history was muddled as to the exact meaning of the statute (or could not be found to contradict a plain reading of the statute) the court had no choice but to uphold the clear language -- a legal theory often relied upon by the Supreme Court.

The law in which Section 2954 is contained involved a decision by Congress to abolish more than 100 annual reports it deemed no longer necessary. At the same time, Congress said that notwithstanding the abolition of such reports it wanted its members to be able to access the data from federal agencies and departments. The history further indicates Congress also wanted members to retain the right it was establishing to obtain any detailed information from the executive branch generally.

Henry Mark Holzer, professor emeritus of the Brooklyn Law School and an internationally respected constitutional authority, warns that the Waxman victory could turn into a constitutional quagmire. "It certainly is a major constitutional matter that the Supreme Court will have to resolve" Holzer says. "It is a sleeper issue of great importance" because it involves conflict between the power of Congress and the power of the executive.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Waxman Power Play Imperils Rule of Law: Rep. Henry Waxman's Wily Use of an Obscure 1928 Law to Make an End Run around the Executive Branch Has the Potential to Trigger a Constitutional Crisis. (Congress: `Rule of Seven')
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.