The subpoenas issued by Rep. Lamar Smith of two state attorneys general investigating ExxonMobil over possible climate fraud are so out of the range of normal Congressional inquiries, their legal staffs had to go back 56 years to find a case that might qualify as a precedent.
In that case, the head of the Port Authority of New York, Austin J. Tobin, defiantly refused to knuckle under to the powerful House Judiciary Committee. His refusal to turn over documents landed him a citation for contempt of Congress. He was sentenced to 30 days in jail, but never served time because the U.S. Circuit Court of Appeals for the District of Columbia overturned the conviction.
The court ruled in harsh language that the federal government has no authority to meddle in the affairs of a state agency. The U.S. Supreme Court declined to consider an appeal, news that landed on the front page of the New York Times.
The current case is also a high-profile battle that seems to be escalating with no end. Smith, a Texas Republican and chair of the U.S. House Committee on Science, Space, and Technology, has subpoenaed two attorneys general, New York's Eric Schneiderman and Maura Healey of Massachusetts. Both, like Tobin, have refused to comply and are now using Tobin's case as a basis for their argument that Congress has no authority to investigate them.
A committee hearing is scheduled for Sept. 14, in which three of the four witnesses appear to be hand-picked by Smith to bolster his argument that the subpoenas are constitutional.
Both AGs, however, claim Smith is using the subpoenas to delay and distract attention from Exxon's actions regarding climate change and whether those actions violate consumer and investor protection laws. They believe their investigations are rooted in state statutes, and that Congress has no right to interfere.
To try to force their cooperation with contempt citations, Smith would have to get a majority of the 39-member Science, Space, and Technology Committee––which consists of 22 Republicans and 17 Democrats––to recommend that the House issue the citation. And then the entire 435-member House would have to vote to approve it.
Some legal experts said contempt citations are a longshot. In the Tobin case, they said, the Judiciary Committee believed it could scrutinize Tobin's activities because Congress had approved the compact authorizing the agency, which later became the New York-New Jersey Port Authority. But Congress doesn't have even that scant leverage in the Exxon investigation, according to Patrick Parenteau, a professor of environmental law at the Vermont Law School.
"If the court in Tobin was concerned about the breadth of Congress' use of subpoena power where there was some presumable connection, the courts are going to be even more concerned in this instance where there is the same demand but no connection," he said. "What the Tobin case says is, 'Your subpoena power is not a fishing license.'"
Smith did not respond to requests for comment, but he has said his subpoenas are a "legitimate and constitutionally authorized legislative investigation."
Ronald D. Rotunda, a law professor at Chapman University's Dale E. Fowler School of Law and one of the three witnesses Smith has called to testify at Wednesday's hearing, said Smith and Congress are well within their rights to subpoena the attorneys general.
"It is perfectly proper for Congress to investigate whether a state attorney general is part of a corrupt conspiracy," he said. "States' rights will never trump a federal investigation seeking answers to those kinds of questions."
The two sides have traded legal volleys since May, when Republicans from Smith's committee sent letters to 17 state attorneys general as well as eight environmental groups and nonprofits, demanding thousands of records since 2012 on whether the groups and the state attorneys general had worked together in coordinating probes of Exxon or other fossil fuel companies.
Their refusal to comply led to the subpoenas.
Back in 1960, the Judiciary Committee traveled that road when Tobin would not surrender internal documents related to the Port Authority's operation.
House members representing New York and New Jersey were accusing the Port Authority of overstepping its powers with a plan to build a new airport in Morris County, N.J., which is outside the boundary of the Port Authority's jurisdiction.
When Tobin refused, House Judiciary Chairman Emanuel Celler, a Brooklyn Democrat, persuaded Congress to cite Tobin for contempt. The vote was 190-60. After a seven-day trial in Washington in 1961, Tobin was convicted by U.S. District Judge Luther Youngdahl, who scolded both sides.
"It is regrettable that the difference between two members of our governmental family should have ripened into litigation such as this. Hostile lawsuits, like wars between nations, are a poor substitute for effective diplomacy where interacting governmental units are concerned," Youngdahl said.
When a three-judge panel of the D.C. Court of Appeals overturned the conviction, it said the judiciary subcommittee had exceeded its authorization from the House of Representatives.
"If Congress had intended the Judiciary Committee to conduct such a novel investigation it would have spelled out this intention in words more explicit," the panel wrote.
Citing Tobin in a July letter to Smith, a lawyer for Schneiderman wrote: "Even an express authorization by the House to conduct such a 'deep and penetrating' inquiry into the operations of a state-level agency (there, the Port Authority of New York and New Jersey) would of course present constitutional issues regarding the division of power in our federal system."
"Here, you have the attorneys general saying [to Smith] ... there doesn't seem to be a plain, express authority to the science committee over the internal decision-making of a state agency," and that "you are asking for things that are internal matters that should be protected—things that go beyond what you are authorized to seek," said Noah Perch-Ahern, a Los Angeles attorney experienced in administrative proceedings before Congress.
Parenteau interpreted the Tobin appeals court ruling as asserting that Congressional subpoenas must have a narrow focus to avoid a constitutional collision between states' rights and federal oversight.
Healey and Schneiderman have cited the separation of federal and state powers guaranteed in the 10th Amendment in their arguments.
"The Committee may not destroy state sovereignty by intruding into an ongoing state law enforcement investigation by an elected state official through use of a Congressional subpoena," according to the July 26 letter from Schneiderman's office to Smith.
Karl Manheim, a law professor at Loyola Law School in Los Angeles, said the 10th Amendment isn't absolute, but does give the two attorneys general grounds to argue that Smith is pushing federal power over states too far.
"They have an argument that they are being singled out for unique treatment that is barred by the 10th Amendment," he said. "The federal government cannot impose different obligations on different states."
But, Manheim said, "Congress has the power to conduct investigations...It's not a sure thing the states are going to win their argument."
To make his case, Smith has also reached into history to find a precedent supporting his investigation and subpoenas.
He recently referenced a 1961 U.S. Supreme Court decision upholding a contempt-of-Congress conviction of Frank Wilkinson, an administrator with the Los Angeles Public Housing Authority. Wilkinson had challenged his citation for refusing to answer questions from the House Un-American Activities Committee, whose mission was to investigate people and organizations suspected of communist ties.
Smith cited that case in a letter to Healey and Schneiderman on Aug. 24, as proof his subpoenas are a valid element of a "legitimate and constitutionally authorized legislative investigation."
Further, Smith said, the committee has authority to conduct an investigation because it has oversight responsibility for energy research and development.
"The Committee's goal is to maximize the efficient and effective use of federal tax dollars intended to advance the progress of science without regard to non-scientific considerations such as a fear that certain types of scientifically justified research may lead to costly state investigations and adverse political pressure," Smith said in the letter.