Article 1, Section 8, Clause 1 — Congresss Investigation And Oversight Powers 1865 1940

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Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The end of the nineteenth and first half of the twentieth centuries saw the Supreme Court consider the question of Congress’s power to investigate private conduct that the Adams report and Harpers Ferry investigation had placed into public view. In considering that question, seminal cases such as Kilbourn v. Thompson,[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn1art1 " Kilbourn v. Thompson, 103 U.S. 168, 199 (1880) (delineating Congress’s investigative powers as those that are “necessarily implied” from the Congress’s “constitutional functions and duties” ). ") In re Chapman,[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn2art1 " In re Chapman, 166 U.S. 661, 671 (1897). ") and Marshall v. Gordon[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn3art1 " Marshall v. Gordon, 243 U.S. 521, 541 (1917) (describing Congress’s implied power as that which is “necessary to preserve and carry out the legislative authority given” ). ") developed an enduring and essential limit on Congress’s investigatory authorities: the principle that Congress’s implied powers of investigation, being derived from the express delegation of legislative power to Congress, extend only to those inquiries that can be said to “aid the legislative function” or that serve a “legislative purpose.” [4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn4art1 " See McGrain v. Daugherty, 273 U.S. 135, 172, 175, 177 (1927). ")

The 1880 case of Kilbourn v. Thompson represents the Court’s first and arguably most restrictive assessment of Congress’s general investigatory powers. Kilbourn involved a contempt action arising from a private citizen’s refusal to testify before a special House committee established to investigate the bankruptcy of a company to which the government was a creditor.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn5art1 " Kilbourn, 103 U.S. at 193–94. ") In addition to placing certain limits on Congress’s exercise of its contempt power,[6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn6art1 " The Court held that the contempt power can “derive no support from the precedents and practices” of Parliament and any detention cannot extend beyond the end of the Congress. Id. at 189. ") the opinion also contained the Court’s first discussion of Congress’s authority to compel the attendance of witnesses during an investigation.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn7art1 " Id. at 190. ") The opinion connected that power to the exercise of other constitutional powers. The Court noted that the House and Senate had an “undoubted right to examine witnesses and inspect papers” and “the right to compel the attendance of witnesses, and their answer to proper questions,” either when exercising the powers of impeachment and removal or to judge the election and qualification of their own members.[8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn8art1 " Id. ")

Outside those areas, however, the Kilbourn Court held that Congress could only compel production of testimony or documents when “required in a matter into which that House has jurisdiction to inquire.” [9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn9art1 " Id. The Court left open the question of whether the House did, in fact, have that power. Id. at 189 (holding the proposition that the investigative power “exists as one necessary to enable either House of Congress to exercise successfully their function of legislation . . . is one which we do not propose to decide in the present case . . . )” . ") With regard to the bankruptcy investigation at issue, the Court ruled that the House lacked jurisdiction, as neither house “possesses the general power of making inquiry into the private affairs of the citizen.” [10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn10art1 " Id. ") The Court viewed the committee’s inquiry as a “fruitless investigation into the personal affairs of individuals” that could “result in no valid legislation on the subject to which the inquiry referred” and thus was not in aid of the legislative function.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn11art1 " Id. at 195. ") Further evidence that the investigation was not legislative in nature, the Court reasoned, lay in the fact that any congressional investigation into purely private affairs with implications for private rights “assumed a power” that was “in its nature clearly judicial.” [12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn12art1 " Kilbourn, 103 U.S. at 192. ")

Similarly, in Marshall v. Gordon, the Supreme Court held that a House committee had no legislative purpose in punishing, through contempt, a federal district attorney for writing and publishing a “defamatory and insulting” letter criticizing Congress.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn13art1 " Marshall v. Gordon, 243 U.S. 521, 532 (1917). ") The Court held that the contempt power extends only as far as is “necessary to preserve and carry out the legislative authority given.” [14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn14art1 " Id. at 541 ") This includes, the Court reasoned, responding to acts that “in and of themselves inherently obstruct or prevent the discharge of legislative duty” such as “refusing to obey orders to produce documents or give testimony which there was a right to compel.” [15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn15art1 " Id. at 543. ") An ill-tempered letter, on the other hand, did not sufficiently obstruct Congress’s ability to exercise its powers to trigger contempt.[16](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn16art1 " Id. at 546 (concluding that the contempt was “not intrinsic to the right of the House to preserve the means of discharging its legislative duties, but was extrinsic to the discharge of such duties and 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.” ). ")

The contempt actions that gave rise to Anderson, Kilbourn, and Marshall were undertaken pursuant to the House and Senate’s implied authority to unilaterally punish contemptuous conduct.[17](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn17art1 " For a discussion of the differences between the implied or inherent contempt power and criminal contempt of Congress under 2 U.S.C. § 192, 194, see CRS Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey. ") These contempt proceedings took place before the House or Senate.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn18art1 " Id. at 10. ") However, in order to enforce congressional investigatory powers “more effectually[,]” Congress had enacted a criminal provision in 1857 that made it a misdemeanor to willfully fail to comply with a congressional subpoena for testimony or documents.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn19art1 " Act of January 24, 1857, ch. 19, 11 stat. 155 (codified as amended at 2 U.S.C. §§ 192, 194). ") Violations were certified to the Executive Branch for prosecution, rather than proceeded against within the Legislative Branch.

The Supreme Court upheld the contempt statute against a constitutional challenge in In re Chapman as “necessary and proper for carrying into execution the powers vested in Congress and in each House thereof.” [20](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn20art1 " In re Chapman, 166 U.S. 661, 671 (1897). ") The Chapman decision also contributed to development of the “legislative purpose” concept by clarifying that though some connection to the legislative function is necessary to justify exercising compulsory investigative powers, Congress is not required to specifically “declare in advance” the purpose of an inquiry at the outset.[21](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn21art1 " Id at 670 (concluding that it is “not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation concluded” ). ")

The inquiry into the Teapot Dome scandal that arose during the Administration of Warren G. Harding was one of Congress’s most significant and wide ranging investigations.[22](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn22art1 " 1 Congress Investigates: A Critical and Documentary History 460–499. ") The investigation involved both private and governmental conduct and allowed Congress to display the full panoply of its investigative tools. The inquiry began as a result of accusations that the Secretary of the Interior, in return for some pecuniary benefits, had made a secret arrangement to lease the Teapot Dome oil reserves in Wyoming to personal friends who led major private oil companies, without required competitive bidding.[23](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn23art1 " Id. at 462–63. ") The subsequent Senate investigation—running from 1922 to 1923—uncovered pervasive corruption throughout the highest levels of the Executive Branch, ultimately leading to the downfall of a variety of government officials and oil executives.[24](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/congresss-investigation-and-oversight-powers-1865-1940#fn24art1 " Id. at 463–72. ") The Senate not only held hearings, issued subpoenas to co