The Significance of Reed

            While the novelty of the situation presented in Reed is apparent, neither the congressional nor the judicial response suggest that the specter of a congressional committee seeking judicial relief was viewed as a radical departure from historical practice or one that threatened established constitutional principles.  From the congressional perspective, the select committee viewed the action as a logical extension of the established law that authorized federal courts “to render assistance to the National Government by appropriate remedy in the exercise of a sovereign power or in the discharge of a sovereign duty” and to decide cases involving the exercise of the congressional investigatory and contempt powers.

This was not merely an idiosyncratic view on the part of the members of the select committee, nor a position concocted simply for purposes of the litigation. The Senate’s action in adopting a rule permitting its committees to sue, a rule which has remained in effect to the present day, demonstrates that the Senate as a whole saw no constitutional impediment.

With regard to the judicial reaction, the district court held that it lacked the constitutional power to hear the select committee’s suit, but only on the grounds that the suit required it to interpret ambiguous Senate resolutions and thus impinged on the Senate’s rulemaking authority. The Supreme Court did not even endorse this limited holding, resting its decision solely upon the absence of evidence that the Senate intended to authorize the select committee to sue.

This judicial reaction is not surprising in light of the law as it had developed in the United States prior to 1927. First, it was firmly established that in the United States, unlike in Britain, the courts had the power to hear actions brought by witnesses who had been imprisoned or sanctioned for contempt by either House of Congress and in so doing to determine the lawfulness of a particular congressional investigation or demand for information (see, eg, Kilbourn v. Thompson, 103 U.S. 168 (1880)). Second, the Congress had passed, and the Court had upheld, the congressional contempt statute which gave the courts an affirmative role in aiding congressional investigations (see In re Chapman, 166 U.S. 661 (1897)). Finally, it was established that other government entities had standing to seek judicial assistance in aid of their investigatory functions, and that authorizing the federal courts to provide such assistance did not violated constitutional limitations (see, e.g., ICC v. Brimson, 154 U.S. 447 (1897)).

In light of these precedents, there could be no serious question that the select committee’s claim for relief was one that could be judicially cognizable under the Constitution.