The Illusory Precedent of McGrain v. Daugherty
UNT Dallas Law Review (On the Cusp)
On May 12, 2020, the Supreme Court heard arguments in the consolidated cases of Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, which concerned whether standing committees of Congress have constitutional and statutory authority to enforce subpoenas against private corporations to obtain the President’s non-government records. From the perspectives of the congressional plaintiffs and the respective lower courts agreeing with their arguments, this question is easily answered. In 1927, the Supreme Court held in McGrain v. Daugherty that the Necessary and Proper Clause of Article I, § 8 empowered Congress, through its committees, to conduct investigations and compel compliance with its subpoenas as a necessary auxiliary of Congress’s need for information to legislate effectively. Consistent with that approach, the House Oversight and Reform Committee (Mazars) and the House Intelligence and House Financial Services committees (Deutsche Bank) sought to enforce subpoenas consistent with their legislative jurisdiction. Even the Office of Legal Counsel at the Department of Justice concedes that McGrain empowers duly authorized congressional committees to enforce their oversight requests so long as those requests are for a legitimate legislative purpose. Given the Supreme Court's consideration of McGrain in both Mazars and Deutsche Bank, as well as the number of current interbranch disputes before the D.C. Circuit likely to percolate up before the Court, this essay seeks to dispel the notion that McGrain supports the doctrine of judicial enforcement of the congressional oversight power.
Daniel Epstein, "The Illusory Precedent of McGrain v. Daugherty", 2021 UNT Dallas L. REV. On The Cusp 1 (2021).