Andrew McCanse Wright (Savannah Law School) has posted Constitutional Conflict and Congressional Oversight on SSRN. Here is the abstract:
This Article offers a novel explanation of divergent congressional and executive behavior and legal doctrine in oversight disputes. It constructs a unified theory of congressional oversight, but it is one that requires a degree of conflict, tension, and disagreement between the political branches to endure. This framework is particularly timely as the Judiciary is poised to make the most significant decision in an interbranch dispute since Watergate.
Practical, day-to-day congressional oversight disputes betray a deep canyon between Congress and the President that cuts to the very foundations of our constitutional structure. Hierarchy and entitlement characterize the congressional perspective, with Congress in the role of overseer with fixed substantive rights to obtain desired information. Congress cloaks itself in the language of criminal investigation and litigation. In contrast, equality and competing interests characterize the Executive Branch view, such that congressional oversight requests are the opening salvo in an iterative, negotiation process between co-equal branches. The Executive Branch sees no presumptive congressional right to define the manner, form, quantity, or messenger of the information to be provided.
Among the formal and informal remedies to enforce its oversight prerogatives, Congress prefers contempt. However, contempt is problematic when the resisting party is an Executive Branch official following Executive Branch policy. Because the constitutional scheme places a premium on good-faith negotiation between Congress and the Executive Branch, congressional self-help is more appropriate than litigation for interbranch oversight disputes. While abstention and restraint should be the hallmark of Article III courts presented with bickering political branches, there is an important role for the Judiciary. As such, this Article offers principles that should guide courts to facilitate, or approximate, accommodation and compromise.