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Aside from the particulars of the current executive privilege dispute, the DOJ is claiming that the House is attempting to assert “congressional control over the activities of the Executive Branch,” which runs counter to “the constitutional scheme.” This is a strained interpretation of the Constitution and a misguided view of how the federal government has functioned. All parts of the executive branch owe their existence to an act of Congress. All department actions or programs — including Fast and Furious — must trace their legitimacy back to law. As the law-making branch under the Constitution, it is Congress that does exert a measure of control over the executive branch in not only passing laws but providing oversight of government programs to ensure that public policy is being carried out for the public good.
By any reasonable measure, the Obama administration is preventing the disclosure of information in a congressional investigation using political and legal arguments that are specious at best. Simply put, without a clear showing of a need for secrecy, the president lacks a strong constitutional or legal argument in his favor. As a result, the president should call off the DOJ stonewalling and cooperate with the House in its investigation. Only then can Congress and the president together address the real public policy problem of Mexican gangs and gun violence along the U.S. borders.
Mitchel A. Sollenberger is associate provost at University of Michigan-Dearborn. Mark J. Rozell is acting dean of the School of Public Policy at George Mason University.