With predictions of divided government, the country faces an oversight storm

Opinion>Congress Blog>Congress Blog - Campaign The views expressed by contributors are their own and not the view of The Hill With predictions of divided government, the country faces an oversight storm Comments: by Richard Sauber, opinion contributor - 06/23/26 9:30 AM ET Comments: Link copied by Richard Sauber, opinion contributor - 06/23/26 9:30 AM ET Comments: Link copied

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After the midterms this fall, there is a distinct possibility of another episode of divided government in the U.S., with a Democratic Congress facing off against a Republican executive branch. The oversight process that will follow involving its need for documents and testimony is required, by law and tradition, to be characterized by “voluntary accommodation” and a “principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

Good luck with that.

So, in this time of hyperpartisanship, which is also characterized by profound disagreements about the extent of executive power, it seems likely that oversight efforts will necessitate actions by the House to enforce its subpoenas. The avenues available are limited, cumbersome and unlikely to be successful, and the clash between Congress and the executive runs the risk of spiraling into a full-blown constitutional crisis if lawmakers are essentially stymied from conducting oversight.

The first and most obvious enforcement method for the House is to resort to the courts, where both criminal and civil avenues are available. With divided government, criminal contempt for failure to comply with a congressional subpoena is completely unavailable: prosecution decisions are entirely in the hands of the attorney general, who is unlikely to pursue members of his own administration. The Republican criminal referral of Attorney General Merrick Garland in 2024, for example, went nowhere in Garland’s Justice Department.

Civil enforcement, whereby the House would file a complaint against a recalcitrant witness seeking an order forcing compliance, is the most likely avenue the House would choose. There too, the House would face obstacles. In the ultimately settled litigation involving a subpoena to former White House counsel Don McGahn, a panel of the Court of Appeals for the District of Columbia ruled that, without a specific statute, the House had no standing to sue to enforce its subpoenas. The issue was not resolved and never reached the Supreme Court, but it presents a hurdle that the House will surely face in any civil enforcement litigation.

More importantly, civil enforcement of a congressional subpoena normally takes two to three years before a final order to comply is issued. Even if Congress were to be successful in District Court, orders to comply are usually stayed pending appeals, which are uniformly lengthy. Involvement of the Supreme Court in these matters can cause an additional delay of six to 12 months. If a new Congress is sworn in January 2027, the next election, in 2028, could easily overtake resolution of any enforcement action brought by lawmakers.

Two other non-litigation options are available to Congress, neither of them easy or without legal obstacles. Congress could seek to impeach a recalcitrant official for failure to comply with a subpoena, though, as has been evident recently, impeachment is an unwieldy, unreliable and time-consuming process that has never succeeded up to now. It is hard to imagine that the House, controlled by either party, would consider impeachment an effective tool.

Finally there is historical support for Congress having its own inherent authority to imprison or fine anyone who refuses to comply with its efforts to gather documents and testimony.

The power was last exercised in 1934 when the Senate imprisoned an assistant secretary of Commerce, who served his 10 days in a room at the Willard Hotel, guarded by the Senate sergeant-at-arms. A recent attempt to use inherent powers occurred in 2024, when a resolution to fine Attorney General Merrick Garland $10,000 per day was narrowly defeated. The prospect of the House on its own trying to imprison or collect a fine from a federal official of the opposite party seems explosive enough to deter even the most aggressive partisan.

Given the difficulties addressed above, divided government in our current political climate might make any effective oversight of the executive branch utterly impossible. That clearly undermines an important aspect of the theory and practice of the separation of powers, and does not bode well for the smooth functioning of our constitutional system.

Richard Sauber is a lawyer in private practice in Washington. He served as special counsel to former former President Joe Biden.

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