Article by Michael Vitiello
Within the federal system, state legislatures and state courts retain broad powers respectively to legislate and to adjudicate. A congressional enactment may preempt a particular subject matter for legislation, or Congress may create exclusive federal court jurisdiction. Absent congressional intent to withdraw a subject matter from the state system, state legislatures and courts share concurrent authority with Congress and the federal courts. In those areas, at least in theory, federal and state authorities are considered fungible. For example, in Stone v. Powell the Court based its refusal to extend the exclusionary rule to federal habeas corpus proceedings in part on an assumption that state courts were “functionally interchangeable forums likely to provide equivalent protection for federal constitutional rights.”
Because of broad concurrent powers, state legislatures may frequently be aided by acquisition of information possessed by federal officials. The need for such information will become acute if President Reagan's “New Federalism” accomplishes its goal of shifting to the states programs currently administered by the federal government. The federal government can voluntarily relinquish such information, and state officials may be able to use federal courts to procure some information. The question discussed in this article is whether a state legislature may compel attendance of federal officials by use of its subpoena power.
The United States Supreme Court has never decided this question. There is only one federal district court decision on point. The district court in United States v. Owlett found that “complete immunity of a federal agency from state interference is well established” and that the Pennsylvania Legislature could not, therefore, subpoena federal officials. The related question of state courts' power over federal officials has been the subject of more frequent adjudication.
After consideration of the general investigative powers of legislative bodies and the limitation posed by the Owlett decision, this article will examine the cases involving state court, as opposed to state legislative, power over federal officials to determine the extent to which those decisions prohibit a legislature from compelling federal officials to appear and to testify before it. It is the conclusion of this writer that the rationale for disallowing state courts to summon federal officials does not apply with equal force to state legislatures—that is, that there is no justification for a complete prohibition against a state legislature's summoning of federal officials. It is the recommendation of this writer that Congress enact a statute clarifying a state's right to subpoena federal officials if the subject matter is otherwise within the legislature's competence. An alternative, though less certain, course would be for a state legislature to establish the same authority through litigation, up to the Supreme Court if necessary.
About the Author
Michael Vitiello. Associate Professor of Law, Loyola University School of Law; B.A. 1969, Swarthmore College; J.D. 1974, University of Pennsylvania.
Citation
58 Tul. L. Rev. 548 (1983)