Darrell Issa does a bad Henry Waxman imitation.
Here's a recipe for political mischief: Hire a lawyer in the executive branch with an objective directly at odds with his agency, make him accountable to no one and have him report to Congress. Now give him subpoena power.
That's what would happen if California Republican Darrell Issa, the next House Oversight and Reform Chairman, gets his wish to increase the power of inspectors general within the executive branch. This is a terrible idea and one more way for Congress to set up a fifth column to cripple the Presidency.
Since Republicans won the House in November, Mr. Issa has been trumpeting his intention to beef up the Oversight Committee's investigative work. His latest brainstorm is to give the more than 70 Inspectors General more clout to ride herd over the growth and encroachment of the federal bureaucracy. We're all for aggressive oversight, but Mr. Issa's plan violates the Constitution's separation of powers.
Housed in the various executive agencies but really creatures of Congress, IGs have always been an odd constitutional hybrid. Like independent counsels, their role as licensed investigators predisposes them to err on the side of finding fault. They get no headlines for saying no one did anything wrong. And because they are funded by Congress and answer primarily to Congress, most of them do Congress's bidding. The alternative is being hauled to Capitol Hill for rough treatment at public hearings. If IGs are now going to be armed with the power to subpoena witness testimony, they'd create mayhem in the executive branch and become engines of Congress's political agenda.
There is no area of government in which executive authority is clearer than in law enforcement—where the power to investigate and prosecute is the power to destroy. Under current law, inspectors general have the power to subpoena documents and records but not witness testimony. If they identify a potential problem, they refer it to law enforcement authorities, and the Department of Justice is then responsible for making the decision on how to proceed.
By vesting an inspector general with the powers of a prosecutor, Mr. Issa would upset the balance of power that the Justice Department's involvement contributes. Aggrandizing their roles within their respective agencies also tips the scales internally, strengthening the wherewithal of the IG while weakening the Secretary appointed by the President to run the department. Political appointees are already weak enough given civil service laws that entrench the bureaucracy.
That may be exactly what Mr. Issa intends, but for a Republican to endorse this shows he's learned the wrong lesson from watching Democrats like fellow Californian Henry Waxman abuse their power by harassing GOP Presidents. Mr. Issa recently put the Oversight Committee on notice that he wants "seven hearings a week, times 40 weeks." That would well outstrip Mr. Waxman's breakneck pace of 203 hearings in two years.
For conservative appeal, Mr. Issa has suggested the IGs could add value by identifying wasteful spending in their departments, with an initial goal to cut $40 billion. But that is Congress's job. Mr. Issa also says that IGs need subpoena power so that they don't have to use it, presumably because the threat itself would encourage cooperation. "We need the IGs to get answers," he told CNN. "You bring it back to Congress and we fix it." Sure, IGs will show a restraint that no one else in the bureaucracy does.
Mr. Issa and Congress already have the legal authority and subpoena power to conduct oversight without trampling the separation of powers. Effective Congressional oversight requires hard work and political care, and Mr. Issa's unconstitutional lunge to expand his writ makes us wonder if he has the judgment for the job.
House Republicans have been trumpeting their fealty to the Constitution's limits on government, and voters can be forgiven for thinking that included limits on Congress. Mr. Issa might want to invite some Federalist Society lawyers to give him a Constitutional refresher course, and GOP leaders ought to cashier his destructive idea.
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