Opinion: Columnists

UPDATED II: Memo to Holder - Congress is the first branch

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Attorney Generals are expected to know the Constitution, so why does Eric Holder think the prerogatives of unelected political appointees override the authority of elected representatives of the people?

We know he does because it's right there in black and white in Holder's letter to President Obama endorsing his assertion of executive privilege to keep thousands of Department of Justice documents on the Fast and Furious scandal away from Congress.

Holder's incredible statement appears near the end of an eight-page letter that brims with case citations, advisory opinions, legislative counsel guidance, advisory opinions of previous attorneys general, and the like to justify refusing the congressional subpoena for the documents.

Holder approvingly cites this statement from one of those opinions: "Moreover, 'Congress's legislative function does not imply a freestanding authority to gather information for the sole purpose of informing 'the American people.''"

By citing that statement while essentially claiming that the president can unilaterally decide what documents Congress gets to see, Holder spits on the fact the Constitution makes Congress the "first branch" of the federal government.

Congress is literally the superior branch because its creation was the first order of business in the Constitution. It is also the first branch because nobody in the federal government can spend one dime of tax money without prior congressional approval.

Furthermore, the Constitution gives Congress all of the ultimate weapons in any showdown with either of the other two branches. So, for example, presidential appointees must be confirmed by the Senate and Congress controls how many federal courts there are and what their jurisdiction will be.

Back of Holder's sophistry about the nature and extent of congressional authority is the conventional wisdom about the federal government consisting of three co-equal branches, legislative, executive and judicial.

Holder says as much at the outset of his letter, claiming that giving Congress the subpoenaed documents would "raise substantial separation of powers concerns and potentially create an imbalance in the relationship between these two co-equal branches of the government."

But, as Articles I and II of the Constitution make clear, Congress and the executive branch are not co-equal and the Founders never intended them to be. As political theorist Willmoore Kendall argued, our "constitutional morality" from The Federalist Papers encourages us to think they are equal, even though we know they aren't when the chips are down.

Congress is the supreme branch because it is closest to and directly accountable to the people, and because it holds the purse strings. Political appointees in the executive branch answer only to the president who gave them their jobs.

What's really going on here is yet another illustration of the imperial presidency run amok, thanks in great part to decades of abuse of the deliberative process privilege.

Presidents and their minions have long claimed their pre-decisional deliberations must be kept private. Otherwise, they won't get candid advice and the public interest will be short-changed in the government's operations.

It's a common-sense argument that ought to carry great weight. But, as the federal government has grown bigger and more intrusive, protecting the deliberative process has eroded democratic accountability by shifting power away from Congress and to the executive branch.

Take the Freedom of Information Act (FOIA). The deliberative process privilege is embodied in the FOIA's exemption five. It's by far the reason most frequently cited by bureaucrats who refuse to make public documents sought by journalists and citizens.

Democratic accountability requires public exposure of the facts about who in government made what decisions when and why. So instead of fuzzing it up with a bunch of sophistic legalese, officials like Holder ought to just admit that they don't want to have to answer to the people's representatives.

Then it's up to Congress to do what the Constitution clearly intends it to do - stop funding programs run by officials who think they are above the law.

UPDATE: Madison on 'popular information'

James Madison was America's fourth president, but far more importantly he was known as the "Father of the Constitution" for his guiding role at the Constitutional Convention in Philadelphia and for his leading role in authoring The Federalist Papers. So he's an authority on the role of what Holder views as mere "information for the sole purpose of informing 'the American people.'"

Here's what Madison said on the importance of public information: "A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives."

UPDATE II: Kudos to Hoyer

One reason congressional oversight has declined in effectiveness so dramatically in recent decades is the hyper-partisanship that has surrounded it. Both parties have been guilty of attacking legitimate oversight activities when they were in the minority, and both have guilty of using oversight to advance political agendas when they were in the majority.

So it's rare to hear one of the leaders of the congressional minority defending the importance of oversight even when a highly visible investigation is creating problems for the presidential administration, which happens to be of the same party.

That's why House Minority Leader Steny Hoyer deserves high praise for his remarks earlier this week before the contempt vote by the House Oversight and Goverment Reform Committee against Attorney General Eric Holder.

Without denying "the political aspect of this," Hoyer insisted in response to a reporter's question that "the Congress of the United States, as a co-equal branch of government with responsibility for overseeing the executive department, has the authority and the responsibility to receive such information as it needs to make rational substantive judgements."

Hoyer added that "obviously, the Congress has authority to investigate, and under both Republican and Democratic administrations the executive departments are sometimes reluctant to provide documents. I'm hopeful that they'll get it resolved and that whatever documents that the committee seeks that are appropriate for release are in fact released."

Even with that careful hedge about which documents are "appropriate for release," Hoyer deserves praise for his comments, particularly in contrast to the spirit of former House Speaker Nancy Pelosi's remark that she could have had former Bush architect Karl Rove arrested and put in jail in the Capitol.

Mark Tapscott ( is executive editor of The Washington Examiner. Follow him on Twitter at @mtapscott

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