In matters of oversight, Congress and the President have fundamentally incompatible views of their institutional roles within the constitutional structure. This Article offers an explanation of divergent branch behavior and legal doctrine. Congress, much like a party to litigation, views itself as having fixed substantive rights to obtain desired information from the Executive and private parties. In contrast, the Executive views itself like a party to a business transaction, in which congressional oversight requests are the opening salvo in an iterative negotiation process to resolve competing interests between co-equal branches. In general, legislators want to litigate and executive officers want to negotiate.
Among the formal and informal remedies to enforce its oversight prerogatives, Congress prefers contempt. However, contempt is problematic when the resisting party is an executive branch official following executive branch policy. Because the constitutional scheme places a premium on good-faith negotiation between Congress and the Executive, congressional self-help is generally more appropriate than litigation for interbranch oversight disputes. While abstention and restraint should be the hallmark of Article III courts presented with bickering political branches, there is an important role for the judiciary. As such, this Article offers principles that guide courts to facilitate, or approximate, accommodation and compromise.
Andrew McCanse Wright,
Constitutional Conflict and Congressional Oversight,
98 Marq. L. Rev. 881
Available at: http://scholarship.law.marquette.edu/mulr/vol98/iss2/6