Legal Effectiveness of Congressional Subpoenas Issued After an Adjournment Sine Die of Congress ( 1996 )

Legal Effectiveness of Congressional Subpoenas Issued After an
Adjournment Sine Die of Congress
A congressional subpoena issued after an adjournment sine die o f Congress lacks any legal force
and effect and does not impose any legal obligation to comply with the subpoena.
N o v e m b er 12, 1996
M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l
Y o u have asked this Office to analyze the legal effectiveness of a congressional
subpoena issued after a sine d ie adjournment of Congress. In a 1982 opinion,
this Office concluded that a congressional subpoena issued during a session of
Congress lacks present force and effect after the adjournment sine die of Congress.
See Continuing Effect o f a Congressional Subpoena Following the Adjournment
o f C ongress, 6 Op. O.L.C. 744 (1982). According to that opinion, the lapse in
legal effectiveness “ results from the same factors that produce, at the same time,
the death of all pending legislation not enacted . . . and the termination of con­
gressional authority to hold a contumacious witness in custody.” Id. at 745 (inter­
nal citations omitted). It would necessarily follow from the analysis contained
in that opinion that a subpoena issued after an adjournment sine die lacks any
force and effect ab initio. After revisiting the issue, we continue to adhere the
analytical framework used in this Office’s 1982 opinion. Therefore, for the reasons
set forth below, we conclude that a congressional subpoena issued after a sine
d ie adjournment has no legal effect.1
I. LEGAL DISCUSSION
The Constitution vests all legislative authority in Congress. U.S. Const, art. I,
§ 1. Although the Constitution does not expressly authorize Congress to issue sub­
poenas, the Supreme Court has stated that the authority to subpoena is an “ indis­
pensable ingredient” of Congress’ legislative power. Eastland v. United States
Servicem en’s Fund, 421 U.S. 491, 505 (1975). In McGrain v. Daugherty, 273
U.S. 135, 174 (1927), the Court declared that “ the power of inquiry — with proc­
ess to enforce it— is an essential and appropriate auxiliary to the legislative func­
tion.” According to the Court:
A legislative body cannot legislate wisely or effectively in the ab­
sence of information respecting the conditions which the legislation
1 Several rules o f the H ouse and Senate apply to the authorization and issuance of congressional subpoenas. See,
e.g.. H ouse Rule XI(2)(m )(l)(B); Senate Rule X X V I(l). See also House Rule XI(2)(m)(2)(A); Senate Rule
X X V I(7)(a)(l). For purposes o f analysis, this memorandum assumes that a post-fine die adjournment congressional
subpoena can be issued in a manner consistent with the relevant House and Senate rules.
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is intended to affect or change; and where the legislative body does
not itself possess the requisite information — which not infrequently
is true — recourse must be had to others who do possess it. Experi­
ence has taught that mere requests for such information often are
unavailing, and also that information which is volunteered is not
always accurate or complete; so some means of compulsion are es­
sential to obtain what is needed.
Id. at 175. Similarly, in Eastland, the Court said:
The power to investigate and to do so through compulsory process
plainly falls within [the definition of Congress’s legislative func­
tion], This Court has often noted that the power to investigate is
inherent in the power to make laws.
Eastland, 421 U.S. at 504.2
This understanding — that Congress’s subpoena power inheres in and is ancil­
lary to its power to legislate— leads logically to the conclusion that the legal
obligation to comply with a congressional subpoena lapses upon the cessation
of Congress’s authority to legislate. Just as an adjournment sine die results in
the death of all pending legislation, see Floyd M. Riddick, The United States Con­
gress: Organization and Procedure 56 (1949), making passage and presentment
to the President impossible, see U.S. Const, art. I, §§1, 7; The Pocket Veto Case,
279 U.S. 655, 681 (1929) (final adjournment of Congress “ terminates the legisla­
tive existence of the Congress” ), so too must it result in the cessation of the
auxiliary power to compel witnesses to present testimony or information via sub­
poena. It follows that congressional subpoenas issued after an adjournment sine
die but prior to the beginning of a new Congress have no legal effect.
The limitations the Court has placed upon Congress’s use of its inherent author­
ity to deal with contempts provide additional support for the view that congres­
sional subpoenas issued after an adjournment sine die have no legal effect. The
Court has held that Congress has implicit authority under the Constitution to deal
with a contempt of its authority. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204,
226-30 (1821). This power stems, according to the Court, from Congress’s inher­
ent authority to preserve its constitutionally-derived legislative power. See id.;
Marshall v. Gordon, 243 U.S. 521, 541 (1917) (“ [I]n virtue of the grant of legisla­
tive authority there [is] a power implied to deal with contempt in so far as that
authority [is] necessary to preserve and carry out the legislative authority given.” ).
2 The Court emphasized in Eastland that “ whether particular activities . . . fall within the ‘legitimate legislative
sphere’ [depends upon] whether the activities took place ‘in a session o f the [house o f Congress at issue] by one
of its members in relation to the business before it.’ ” Id. at 503-04 (quoting Kilbourn v. Thompson, 103 U.S.
168,204(1881)).
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The Court has made clear, however, that there are limits to Congress’s use of
this power. First, such power “ rests only upon the right of self-preservation; that
is, the right to prevent acts which, in and of themselves, inherently obstruct or
prevent the discharge of legislative duty or the refusal to do that which there
is an inherent legislative power to compel in order that legislative functions may
be performed.” Id. at 542.3 Second, even where Congress properly exercises its
authority to deal with a contempt, the punishment must cease upon the adjourn­
ment of Congress:
[T]he existence of the power that imprisons is indispensable to its
continuance; and although the legislative power continues per­
petual, the legislative b o d y ceases to exist on the moment o f its
adjournm ent o r periodic dissolution. It follow s, that imprisonment
must terminate with that adjournment.
Anderson, 19 U.S. at 231 (emphasis added); accord M arshall, 243 U.S. at 542(Congress’s contempt power, “ even when applied to subjects which justified its
exercise, is limited to imprisonment, and such imprisonment may not be extended
beyond the session of the body in which the contempt occurred.” ). These limita­
tions, which the Court concluded were justified in view of the nature of the author­
ity upon which Congress’s contempt power is based (i.e., self-preservation of leg­
islative authority), see Anderson, 19 U.S. at 230-31,4 provide additional support
for the conclusion that Congress lacks the power of compulsory process after a
sine die adjournment.
Because this conclusion rests upon the cessation of Congress’s legislative exist­
ence, it applies equally to House and Senate subpoenas. However, the case of
the Senate merits some separate discussion, because the Court, noting certain inter­
nal and structural differences between the House and the Senate, has occasionally
referred to the Senate as a “ continuing body.” See Eastland, 421 U.S. at 512;
M cG rain, 273 U.S. at 181; cf. Gojack v. United States, 384 U.S. 702, 706 n.4
3 A pplying this standard, the Court in Marshall invalidated an attempt by the House to respond to a contempt
in the form o f “ irritating and ill-tempered statements made in [a] letter [addressed to the chairman o f a House
subcom m ittee],” id. at 546, where “ the contem pt relied upon was not intrinsic to the right of the House to preserve
the m eans o f discharging its legislative duties/* id., but was, instead, “ related only to the presumed operation which
the letter might have upon the public mind and the indignation naturally felt by members of the committee on
the subject.” Id.
4 The Court in Anderson stated*
The present question is, what is the extent o f the punishing power which the deliberative assemblies of
the Union may assume and exercise on the principle o f self-preservation?
A nalogy, and the nature o f the case, furnish the answ er— “ the least possible power adequate to the
end proposed;” which is the power o f imprisonment. . . . And even to the duration of imprisonment
a period is imposed by the nature o f things, since the existence o f the pow er that imprisons is indispensable
to its continuance; and although the legislative power continues perpetual, the legislative body ceases to
exist on the moment o f its adjournment o r periodic dissolution. It follows, that imprisonment must terminate
with that adjournment.
Id.
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(1966). In M cGrain, the Court suggested that the Senate’s status as a continuing
body might prevent a controversy over an attempt by the Senate to compel compli­
ance with one of its subpoenas from becoming moot upon the adjournment of
the Congress during which the Senate action was initially taken. See M cGrain,
273 U.S. at 181; see also Eastland, 421 U.S. at 512. The continuing existence
of a case and controversy with respect to enforcement of a subpoena might seem
to imply that the subpoena had a continuing legal effect beyond a sine die
adjournment.
The Court’s discussion of mootness in McGrain does not alter our conclusion
regarding the legal effect of a Senate subpoena issued after an adjournment sine
die, for two reasons. First, in addressing the mootness issue, the Court in McGrain
relied upon an interpretation of a passage in Jefferson’s Manual that appears to
have misunderstood that passage’s actual import. The Court quoted the following
passage from Jefferson’s Manual:
Neither House can continue any portion of itself in any parliamen­
tary function beyond the end of the session without the consent
of the other two branches. When done, it is by a bill constituting
them commissioners for the particular purpose.
McGrain, 273 U.S. at 181 (quoting Senate Rules and Manual, 1925, p. 303). Re­
ferring t6 that language, the Court concluded that “ the context shows that the
reference is to the two houses of Parliament when adjourned by prorogation or
dissolution by the king.” Id.The larger passage of which this quotation is a part, and which we have set
out in a footnote,5 indicates that Jefferson is drawing upon the practices of Par­
3 The larger passage from Jefferson's Manual is as follows:
Parliament have three modes o f separation, to wit: by adjournment, by prorogation or dissolution by
the King, o r by the efflux o f the term for which they were elected. Prorogation or dissolution constitutes
there what is called a session; provided some act was passed. In this case all matters depending before
them are discontinued, and at their next meeting are to be taken up de novo, if taken up at all. Adjournment,
which is by themselves, is no more than a continuance o f the session from one day to another, of for
a fortnight, a month, &c., ad libitum. All matters depending remain in statu quo, and when they meet
again, be the term ever so distant, are resumed, without any fresh commencement, at the point at which
* they were left. Their whole session is considered in law but as one day, and has relation to the first
day thereof.
Committees may be appointed to sit during a recess by adjournment, but not by prorogation. Neither
House can continue any portion o f itself in any parliamentary function beyond the end o f the session
without the consent o f the other two branches. When done, it is by a bill constituting them commissioners
for the particular purpose.
Congress separate in two ways only, to wit, by adjournment, or dissolution by the efflux o f their time.
What, then, constitutes a session with them? A dissolution certainly closes one session, and the meeting
o f the new Congress begins another. The Constitution authorizes the President, “ on extraordinary occasions
to convene both Houses, or either o f th em ." If convened by the President’s proclamation, this m ust begin
a new session, and o f course determine the preceding one to have been a session. So if it m eets under
the clause o f the Constitution which says, “ the Congress shall assemble at least once in every year, and
such meeting shall be on the first Monday in December, unless they shall appoint a different d a y ." This
must begin a new session, for even if the last adjournment was to this day the act of adjournment is
Continued
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liament to propound analogous principles to guide the newly established Congress.
Where differences in the English and American systems of governance necessitate
explication of the analogies, Jefferson does so. Where the analogy between the
English and American systems applies without modification, however, there is
no need for further discussion. Thus, in the quotation repeated in M cGrain, Jeffer­
son notes that upon the end of the session, all pending matters are discontinued
and all parliamentary functions cease, unless special provisions, requiring the con­
sent of the other two branches, have been made. The larger passage reveals that
this assertion has been preceded by a discussion of the three modes by which
Parliament “ separates,” only two of which amount to the end of a legislative
session. So Jefferson has stated the ways in which Parliament can be separated
so as to result in the termination of all parliamentary functions. He then continues
on in the passage to note that Congress is unlike the Parliament, in the specific
respect that it has only two modes of separation. This prompts Jefferson to ask,
“ [w]hat, then, constitutes a session [of Congress]?” Jefferson’s Manual at 292.
An answer to that question is necessary in order to apply the principle that all
pending matters are discontinued and all parliamentary functions cease upon termi­
nation of the legislative session, but a repetition of the principle itself is unneces­
sary, because Jefferson is taking it as understood that this fundamental principle
applies to the American legislature just as it applies to the British legislature.6
Reading this passage to suggest that Jefferson meant not to apply the principle
to Congress would be most peculiar. Such a reading would need to explain why
Jefferson had so carefully noted the differences with respect to what constitutes
a session of Congress, as compared to Parliament, and yet kept so completely
hidden his belief that entirely different consequences flowed from the end of a
congressional session as compared to the end of a parliamentary session.
Nor can this passage be read to treat the Senate differently from the House.
Throughout the passage, Jefferson refers consistently to “ Congress,” suggesting
that both houses of Congress are subject to the same analysis. Elsewhere, he shows
full awareness of the fact that because the Constitution makes numerous distinc­
tions between the two bodies, it is conceivable that different rules would apply
to each of them. Where that is true, however, he explicitly distinguishes between
the House and the Senate, as he does in a subsequent passage that refers back
to the passage quoted in footnote 5, and that states an important qualification
to the principle that the end of a session terminates all business before the legisla­
tive body:
m erged in the higher authority of the Constitution, and the m eeting will be under that, and not under
their adjournment. So far we have fixed landmarks for determining sessions.
W illiam H olm es Brown, Constitution, Jefferson's Manual and Rules o f the House o f Representatives, H.R. Doc.
No. 101-256, at 2 9 1 -9 2 (1991) ( “ Jefferson’s A/o/w«z/” )(citations omitted).
6 As suggested above, Jefferson’s reference to the “ end o f the session” is satisfied by a sine die adjournment.
See The Pocket Veto Case, 279 U.S. at 681; Riddick, supra , at 56.
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When it was said above that all matters depending before the
Parliament were discontinued by the determination of the session,
it was not meant for judiciary cases depending before the House
of Lords, such as impeachments, appeals, and writs of error. These
stand continued, of course, to the next session. . . .
Impeachments stand, in like manner, continued before the Senate
of the United States.
Jefferson’s Manual at 294. This passage confirms the view that in the earlier pas­
sage Jefferson was relying upon Parliamentary rules to develop rules applicable
to both houses of Congress because it shows that he did not hesitate to point
out cases where a rule applied to only one house of the legislature in particular.
In addition, and quite separately, by calling attention to the Senate’s post-adjourn­
ment authority to exercise its constitutionally-derived judicial powers to try im­
peachments as a special exception, the passage confirms that Jefferson did not
believe that the Senate could exercise its constitutionally-derived legislative pow­
ers after an adjournment sine die. Because Congress’s authority to coerce by sub­
poena the production of information derives from its constitutionally-delegated
authority to legislate, Jefferson must have intended to convey that such authority
ceases upon an adjournment sine d ie .1
Second, even assuming with M cGrain that the Senate’s status as a continuing
body dictates that a legal controversy relating to an action taken by the Senate
of a previous Congress (i.e., before the adjournment sine die of that Congress)
under a then-existing Senate subpoena cannot be mooted merely by the adjourn­
ment sine die of the previous Congress,8 such fact does not compel the conclusion
that the legal effectiveness of compulsory Senate process extends beyond a sine
die adjournment. A case will become moot when the relief sought by the plaintiff
would, if granted, confer no tangible benefit. See P reiser v. Newkirk, 422 U.S.
395, 401 (1975). The Court’s discussion of mootness in McGrain thus centered
on whether the Senate, having initially exercised its constitutionally-based con­
tempt authority during the session in which it had issued the subpoena, was capa­
ble of repeating such action. See McGrain, 273 U.S. at 181-82. As demonstrated
by the Court’s discussion in McGrain, a mootness determination entails a different
analysis than that required to resolve whether a party is empowered in the first
instance to bring a suit or take a specified action.
For these reasons, the Court’s mootness discussion in McGrain does not, in
our view, resolve the legal status of a Senate subpoena issued after a sine die
7 The House Parliamentarian appears to agree with this view. In the annotation to the Parliamentarian’s presentation
o f Jefferson's Manual, he refers to the passage cited in McGrain as “ Sitting o f committees in recess, and creation
o f commissions to sit after Congress adjourns.” Jefferson’s Manual §589 (annotation) at 291 (emphasis added).
8 In McGrain, the Senate took action to enforce its subpoena prior to its adjournment. McGrain, 273 U.S. at
153-54.
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adjournment, and the passage from Jefferson’s Manual relied upon in McGrain
to distinguish the Senate from the House actually equates the two bodies for pur­
poses relevant to this analysis.9 In fact, we believe that the Court’s previous anal­
yses of Congress’s subpoena and contempt power support the view that a congres­
sional subpoena issued after an adjournment sine die has no legal effect.10
II. CONCLUSION
For the reasons discussed above, we conclude, consistent with our 1982 opinion,
that a congressional subpoena issued after an adjournment sine die lacks any legal
force and effect and does not impose any legal obligation to comply with the
subpoena.
CHRISTOPHER SCHROEDER
Acting A ssistant Attorney General
Office o f L egal Counsel
9 As stated above, our analysis concludes, consistent with Anderson , 19 U.S. at 231, The Pocket Veto Case, 279
U.S. at 6 8 !, and Jefferson's Manual, that the legislative pow er o f a house o f Congress ends upon the end of a
session and that its adjournment sine die constitutes the end o f a session. See text at note 4, and note 6, above.
Therefore, we reject as untenable the apparent suggestion o f the court in Harris v. Board o f Governors, 938 F.2d
720, 723 (7th Cir. 1991) that Congress's ability to exert legislative power may continue beyond that point. In any
event, because the court in Harris determined that the case became moot upon appeal, see id. at 720, such dicta
has no binding effect. See id. at 725 (Ripple, J., concurring in the court’s decision that the case became moot
on appeal and noting that the court’s dicta “ does not constitute the law o f the circuit.” ).
10O ur conclusion that C ongress’s constitutional authority to coerce by subpoena the tendering o f requested informa­
tion lapses upon an adjournment sine die is not intended to call into question the executive branch’s longstanding
practice o f responding voluntarily to information requests from congressional committees (whether by letter or sub­
poena) during adjournment sine die periods. The conclusion that as a m atter of law Congress lacks authority after
adjournment sine die to impose obligations o r sanctions outside the legislative branch— w hether by legislation, sub­
poena or contempt o rd e r— does not mean that Congress cannot make a request for information or that the executive
branch cannot, as a m atter o f policy (based on the comity afforded another branch of government), respond voluntarily
to such a request.
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