Well, this is getting interesting. In a May 18th letter signed by the leaders of NASA’s Senate Authorization Committee and Subcommittee, the Senators requested not only twice monthly briefings on the Space Launch System and the Orion MPCV, but they also requested a long and detailed list of documents. On June 7th, NASA told the Senators that it will not release several drafts of one unreleased report mandated in Section 309 of the 2010 NASA Authorization Act. In response, the Senate Commerce, Science and Transportation Committee sent a letter, a copy of which was provided by the Orlando Sentinel, informing NASA that, absent delivery by NASA, the requested documents would be subpoenaed by this coming Monday, June 27th at 6 PM.
Some may wonder if Congress really can throw its weight around like this. The short answer is, “Absolutely!”. And refusal of a Congressional subpoena can result in up to a year in prison and a fine of up to $1,000.
For anyone seeking a more detailed version, see Congressional Powers: Subpoenas and Contempt Power.
Copies of both the June 22nd Senate letter and the Congressional Powers study are up in our Library section.
The summarized version is that, while not explicitly in the Constitution, as George Mason put in during the 1787 Philadelphia Convention that members of Congress “are not only Legislators but they possess inquisitorial powers. They must meet frequently to inspect the Conduct of the public offices”. In the 1821 Supreme Court ruling Anderson v. Dunn, the Supremes ruled that without the power to punish for contempt (by imprisonment), the House, really Congress, would be left “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy may mediate against it”. But the Supremes limited such imprisonment to the term of Congress, or no longer than 2 years. Then there was McGrain v. Daugherty (1927) in which the Supreme Court recognized that Congress could subpoena even private citizens to testify. The last big case of Congressional subpoena and contempt power was United States v. Nixon (1973) in which the Supremes limited the reach of Executive Privilege claims, forcing the Nixon Administration to turn over the White House tapes and…well, the rest is history.
This situation looks much like V-22 Redux. Back in the Bush I Administration, then Sec. Def. Cheney tried to kill the V-22. Congress kept saying no and instead funded it. At one point, Cheney said he wouldn’t spend the money. Turns out that the Executive Branch cannot refuse appropriated funds. Cheney very nearly ended up before a grand jury on Contempt of Congress charges, which I no doubt believe he had much contempt for.