Magazine article Insight on the News

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')

Magazine article Insight on the News

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')

Article excerpt

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. …

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