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Trump era court battles weaken congressional power

By Todd Ruger, CQ-Roll Call on

Published in Political News

WASHINGTON — Congress will emerge from the Trump administration with weakened power to check a president or oversee the operation of the federal government, the most consequential fallout experts see for lawmakers after four years of nearly constant high-profile courtroom showdowns with a defiant president.

Democratic lawmakers often had no other recourse than to go to court because of President Donald Trump's approach. Once there, lawmakers fell short or didn't get what they sought — and it doesn't bode well for similar oversight efforts in administrations to come.

Democrats couldn't pursue their lawsuit accusing Trump of unconstitutionally benefiting financially from his presidency. They are still trying to force a White House lawyer to testify before the House Judiciary Committee. They haven't gotten grand jury materials from the special counsel report on Russian interference in the 2016 election. They are still trying to stop Trump's transfer of money to get around congressional appropriations and build a barrier along the U.S.-Mexico border.

It might take decades to reveal which Trump-era legal cases will be the most consequential for Congress, such as those on presidential power in immigration, a case about the 2020 census now at the Supreme Court or other policy areas. Sometimes a case that seems less important now might become consequential in unforeseen ways down the road, legal experts say.

But for now, experts point to the Supreme Court's decision in the House Democrats' effort to obtain Trump's personal business and tax records from an accounting firm and banks.

House committees first subpoenaed that information in April 2019. They still don't have it and the case is still working its way through the courts. Along the way, the Supreme Court for the first time put limits on congressional power to subpoena a sitting president's personal and business information.

 

Speaker Nancy Pelosi said at the time that the July decision — which meant Congress for now couldn't see the records — actually backed congressional oversight power, preserved the checks and balances between the legislative and executive branches, and kept the idea that a president is not above the law.

Outside experts aren't so rosy. Josh Chafetz, a professor at Georgetown University Law Center who wrote a book about legislative authority and separation of powers, said that the 7-2 decision in Trump v. Mazars was a new high-water mark for the Supreme Court's skepticism about congressional power.

Justices from both ideological wings in that decision "evinced a shocking level of disrespect for congressional oversight and Congress generally," Chafetz said. "That attitude, more than anything about the details of the case itself, suggests that Congress will face a skeptical Supreme Court across a range of issues for years to come."

And there are worries in the details as well. Thomas Hungar, a former House general counsel who left that role in January 2019, said he fears the decision will make it significantly more difficult for Congress to exercise its oversight powers. Much of the decision rests on broader separation-of-powers principles that arguably apply with even greater force when Congress seeks information from the executive branch, he said.

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