The Constitution makes Congress the first branch among equals. But the past decade has witnessed a dangerous trend: a Supreme Court that expresses deep suspicion of Congress’s competence and motives. This distrust should be worrying for anyone who cares about the most democratic branch’s ability to serve as a check on presidential power and confront an ever-growing list of policy challenges.
Let’s begin with this past Supreme Court term. In Trump v. Mazars the Court evaluated subpoenas that three House committees issued to private corporations, asking for President Trump’s personal financial documents. The Court’s decision remanded the case to a lower court, with instructions that forged a middle path between the polar-opposite arguments advanced by Congress and Trump. But on its own terms, the Court’s opinion sets out a new rule calling for Congress’s motives to be closely scrutinized, asking lower courts to “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President” and be “attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.” In other words, the Court invites close scrutiny of congressional subpoenas. After Mazars, courts need not defer to Congress’s assertions of what documents it needs and why.
