Thủ Thuật Hướng dẫn What is the authority that the federal bureaucracy uses to make the best choices to implement policies? Mới Nhất
Khoa Minh Hoàng đang tìm kiếm từ khóa What is the authority that the federal bureaucracy uses to make the best choices to implement policies? được Cập Nhật vào lúc : 2022-10-05 21:56:25 . Với phương châm chia sẻ Mẹo về trong nội dung bài viết một cách Chi Tiết Mới Nhất. Nếu sau khi Read tài liệu vẫn ko hiểu thì hoàn toàn có thể lại Comments ở cuối bài để Admin lý giải và hướng dẫn lại nha.Congress’s Authority to Influence and Control
May 12, 2022
Executive Branch Agencies
Todd Garvey
The Constitution neither establishes administrative agencies nor explicitly prescribes the manner
Legislative Attorney
by which they may be created. Even so, the Supreme Court has generally recognized that
- How does the bureaucracy implement government policy?What is the source of power for the federal bureaucracy?How does the bureaucracy implement policy quizlet?Who has the power and responsibility to provide oversight of the federal bureaucracy?
Congress has broad constitutional authority to establish and shape the federal bureaucracy.
Daniel J.
Sheffner
Congress may use its Article I lawmaking powers to create federal agencies and individual
Legislative Attorney
offices within those agencies, design agencies’ basic structures and operations, and prescribe,
subject to certain constitutional limitations, how those holding agency offices are appointed and
removed. Congress also may enumerate the powers, duties, and functions to be exercised by
For a copy of the full report,
agencies, as well as
directly counteract, through later legislation, certain agency actions
please call 7-5700 or visit
implementing delegated authority.
www.crs.gov.
The most potent tools of congressional control over agencies, including those addressing the structuring, empowering,
regulating, and funding of agencies, typically require enactment of legislation. Such legislation must comport with
constitutional requirements related to bicameralism (i.e., it must be approved by both
houses of Congress) and presentment
(i.e., it must be presented to the President for signature). The constitutional process to enact effective legislation requires the
support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President’s
veto.
There also are many non-statutory tools (i.e., tools not requiring legislative enactment to exercise) that may be used by the
House, Senate, congressional committees, or individual
Members of Congress to influence and control agency action. In
some cases, non-statutory measures, such as impeachment and removal, Senate advice and consent to appointments or the
ratification of treaties, and committee issuance of subpoenas, can impose legal consequences. Others, however, such as
House resolutions of inquiry, may not be used to bind agencies or agency officials and rely for their effectiveness on their
ability to persuade or influence.
Congressional
Research Service
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Control Executive Branch Agencies
Contents
Statutory Control of Executive Branch Agencies ............................................................................ 2
Four Pillars of Statutory
Control ............................................................................................... 4
Structural Design ................................................................................................................ 4
Delegation of Authority ...................................................................................................... 9
Procedural Controls on Decisionmaking
........................................................................... 11
Agency Funding ................................................................................................................ 14
Non-statutory Tools to Influence Executive Branch Agencies ...................................................... 15
Constitutional Limits on Non-statutory Legislative Actions ...................................................
15
Significant Tools Available to Both the House and Senate ..................................................... 17
Censure and Other Expressions of Disapproval
............................................................... 17
Criminal Contempt of Congress ....................................................................................... 19
Inherent Contempt
............................................................................................................ 21
Tools Available to the House ................................................................................................... 22
Resolutions of Inquiry....................................................................................................... 23
Impeachment ..................................................................................................................... 23
House Lawsuits ................................................................................................................. 26
Tools Available to the Senate
.................................................................................................. 27
Senate Civil Enforcement of Subpoenas ........................................................................... 28
Advice and Consent: Nominations and Treaties ............................................................... 28
The Senate’s Role in Impeachment: Trial and Removal ................................................... 31
Tools for Congressional Committees
...................................................................................... 32
Committee Investigative Oversight .................................................................................. 32
Informal
Committee Controls: Report Language ............................................................. 36
Tools for Individual Members ................................................................................................. 38
Conclusion ..................................................................................................................................... 42
Contacts
Author Information
........................................................................................................................ 43
Congressional Research Service
Congress’s Authority to Influence and Control Executive Branch Agencies
he Constitution neither establishes administrative agencies nor explicitly prescribes the
manner by which they may be created. Even so, the Supreme Court has generally
recognized that Congress has
broad constitutional authority over the establishment and
T shape of the federal bureaucracy.1 This power stems principally from the combination of
Congress’s enumerated powers under Article I of the Constitution to legislate on various
matters; 2 language in Article II, Section 2, which authorizes the appointment of “officers” to
positions “which shall be established by law”;3 and Article I, Section 8, which authorizes
Congress to “make all laws which shall be necessary
and proper for carrying into execution” not
only Congress’s own enumerated powers, but “all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.”4 Acting pursuant to
its broad constitutional authority, Congress may create federal agencies and individual offices
within those agencies, design agencies’ basic structures and operations, and prescribe, subject to
certain constitutional limitations, how those
holding such offices are appointed and removed.5
Congress also may enumerate the powers, duties, and functions to be exercised by agencies, as
well as directly counteract, through later legislation, certain agency actions implementing
delegated authority.6
The most potent tools of congressional control over executive branch agencies, including
structuring, empowering, regulating, and funding agencies, typically require enactment of
legislation.7 Such legislation must
comport with the constitutional requirements of bicameralism
(i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented
to the President for signature).8 For legislation to take effect, that constitutional process requires
the support of the House, Senate, and the President, unless the support in both houses is sufficient
to override the President’s veto.9
1 See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 500 (2010) (“Congress has plenary control
over the salary, duties, and even existence of executive offices.”); Myers v. United States, 272 U.S. 52, 129 (1926)
(“To Congress under its legislative power is given the establishment of offices, the determination of their functions and
jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the
fixing of the term for which they are to be appointed and their
compensation.”).
2 See, e.g., U.S. CONST. art. I, § 8, cl. 3 (conferring Congress with power to regulate foreign and interstate commerce),
cl. 11-16 (defining Congress’s power to declare war and to raise, support, and regulate the military and militia).
3 Id. art. II, § 2, cl. 2.
4 Id. art. I, § 8, cl. 18.
5 See, e.g., Buckley v. Valeo, 424 U.S. 1, 138–39 (1976) (per curiam) (“Congress may undoubtedly under the
Necessary and Proper
Clause create ‘offices’ in the generic sense and provide such method of appointment to those
‘offices’ as it chooses.”); Humphrey’s Ex’r v. United States, 295 U.S. 602, 631 (1935) (“Whether the power of the
President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite
term and precluding a removal except for cause, will depend upon the character of the office . . . .”).
6 See Mistretta v. United States, 488 U.S.
361, 372 (1989) (“So long as Congress ‘shall lay down by legislative act an
intelligible principle to which the person or body toàn thân authorized to [exercise the delegated authority] is directed to conform,
such legislative action is not a forbidden delegation of legislative power.’” (quoting J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928))); La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally
has no power to act . . . unless and until
Congress confers power upon it.”). See, e.g., Disapproving the Rule Submitted
by the Department of the Interior known as the Stream Protection Rule, Pub. L. No. 115-5, 131 Stat. 10 (2022);
Disapproving the Rule Submitted by the Department of Labor Relating to Drug Testing of Unemployment
Compensation Applicants, Pub. L. No. 115-17, 131 Stat. 81 (2022).
7 See Immigration & Naturalization Servs. v. Chadha, 462 U.S. 919, 951 (1983).
8 U.S. CONST. art. I, § 7
(“Every Bill which shall have passed the House of Representatives and the Senate, shall, before
it become a Law, be presented to the President of the United States . . . .”).
9 Id. (requiring the approval of two-thirds of each house to override a presidential veto).
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But Congress does not always need to act through legislation to impact agency decisionmaking.
Several tools available to the House, Senate, congressional committees, and even individual
Members of Congress may be employed to influence agency action. Some tools are explicitly
enumerated in the Constitution, such as impeachment and subsequent removal from office, and
Senate advice and consent to the ratification of treaties and the appointment of certain executive
officers,
ambassadors, and judges.10 Under these provisions, the Constitution has explicitly
authorized an individual house of Congress to act unilaterally with binding legal effect. Other
tools, however, are both non-constitutional (i.e., they are not explicitly established in the
Constitution) and non-statutory (i.e., they do not require enactment of legislation). Most of these
non-constitutional, non-statutory tools, while capable of influencing agency decisionmaking,
cannot
themselves legally compel agency action.11 This distinction between the compulsory
nature of statutory enactments and the non-binding nature of most (though not all)12 non-statutory
legislative actions is essential to understanding the scope of congressional authority over federal
agencies.
Statutory Control of Executive Branch Agencies
Congress’s power to create agencies is well established. Members of the First Congress viewed
the Constitution as contemplating
the creation of “departments of an executive nature” to “aid”
the President in the execution of law.13 Toward this end, the First Congress enacted measures
creating the Departments of Foreign Affairs, Treasury, and War.14 At this early stage, Congress
sought to ensure it retained some degree of influence and control over the new departments. The
Secretary of the Treasury, for example, had to report directly to Congress, either “in person or in
writing,” on “all matters
referred to him by the Senate or the House.”15
Yet the debates of the First Congress also provide evidence of Congress’s acknowledgment of
what would become the delicate, and times uneasy, balance between congressional creation and
control of agencies and the President’s authority to supervise executive officials pursuant to his
constitutional obligation to “Take Care that the laws be faithfully executed.”16 From the very
outset, Congress wrestled with defining the scope
of both presidential and congressional control
of executive agencies. For example, in 1789 Congress engaged in a historically significant debate
on the President’s authority to remove the Secretary of Foreign Affairs.17 Although Members’
views differed, ultimately the prevailing position was “in favor of declaring the power of removal
to be in the President,” rather than in the Congress.18 Similarly, a proposal to structure the
10 Id. § 2 (“The House of
Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of
Impeachment.”); id. § 3 (“The Senate shall have the sole Power to try all Impeachments.”); id. art. II, § 2.
11 Immigration & Naturalization Servs. v. Chadha, 462 U.S. 919, 951–59 (1983).
12 Exceptions include certain committee oversight actions, such as the issuance of subpoenas, which do impose legal
obligations on witnesses without compliance with bicameralism and
presentment. See infra “Committee Investigative
Oversight.”
13 1 ANNALS OF CONG. 383 (1789) (statement of Rep. Elias Boudinot) (noting that the Constitution “contemplates
departments of an executive nature in aid of the President”).
14 See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801,
36-47 (1997).
15 An Act to Establish the Treasury Department, ch. 12, 1 Stat. 65, 66 (1789).
16 U.S. CONST. art. II, § 3.
17 Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021, 1022 (2006) (describing the 1789
debate as “one of the most significant yet less-well-known constitutional law decisions”).
18 Myers v. United States, 272 U.S. 52, 112 (1926). But see CURRIE, supra
note 14, 41 (noting that “there was no
consensus as to whether the [President] got [the removal] authority from Congress or from the Constitution itself”).
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Department of the
Treasury as a multi-thành viên commission, partly to insulate the agency from
presidential control, was debated and eventually rejected out of concern that such a body toàn thân would
not be able to administer effectively the finances of the new government.19
As reflected in the debates of the First Congress and confirmed by later Supreme Court decisions,
Congress’s power over the administrative state, though broad, is not unlimited. In particular,
constraints on congressional power over
executive agencies flow from the foundational
constitutional doctrine of the separation of powers. Although the text of the Constitution
distributes the legislative, executive, and judicial powers among the three branches of
government,20 the Supreme Court has not endorsed any absolute separation. The allocation of
powers was never intended to cause the branches to be “hermetically sealed,”21 or, in the words of
Justice Oliver Wendell Holmes, divided into “fields of black and
white.”22 Instead, observed
Justice Robert Jackson, the separation of powers “enjoins upon [the] branches separateness but
interdependence, autonomy but reciprocity.”23 It is a doctrine generally characterized by
ambiguity and overlap rather than bright-line rules. Yet some well-established principles govern
the relationship between Congress and the administrative state. For example, Congress may
neither displace executive authority by directly implementing the law itself,24
nor appoint or
reserve for itself the power to remove (except through impeachment) executive officers engaged
in the execution of law.25 On the other end of the spectrum, the separation of powers is not
violated merely by Congress directing, prohibiting, or otherwise legislating on most forms of
agency action.26
It would appear that the chief substantive limitations on Congress’s ability to control the
executive branch arise from specific constitutional provisions and
implied principles—intimately
connected to the separation of powers—that buttress the general division of power among the
branches. These provisions and principles, which include the Appointments Clause, the Take Care
Clause, and the President’s authority to supervise the executive branch, are addressed below in
conjunction with Congress’s statutory powers.
19 See Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary
Executive, 51
DUKE L.J. 963, 975 (2001).
20 See U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States
. . . .”); id. art. II, § 1 (“The executive Power shall be vested in a President of the United States of America.”); id. art.
III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as
the Congress may from time to time ordain
and establish.”).
21 Immigration & Naturalization Servs. v. Chadha, 462 U.S. 919, 951 (1983).
22 Springer v. Gov’t of Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J., dissenting); see also Trump v. Mazars
USA, LLP, 140 S. Ct. 2022, 2035 (2022) (“Congressional subpoenas for the President’s personal information implicate
weighty concerns regarding the separation of powers . . . . A balanced approach is necessary, one that takes a
considerable impression
from the practice of the government, and resists the pressure inherent within each of the
separate Branches to exceed the outer limits of its power.”) (citations, brackets, and internal quotation marks omitted).
23 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
24 See Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265–77 (1991).
25 See Buckley v. Valeo, 424 U.S. 1, 132
(1976) (per curiam); Bowsher v. Synar, 478 U.S. 714, 733–34 (1986). See
infra “Limitations Imposed by the Appointments Clause.”
26 The separation of powers may, however, be violated when that direction or prohibition infringes upon other core
presidential powers, such as the exclusive power of the President to recognize foreign states.
See Zivotofsky v. Kerry,
135 S. Ct. 2076, 2096 (2015) (holding that a statute directing the State Department, upon request, to designate the place
of birth of a U.S. citizen born in Jerusalem as “Israel,” in contravention of long-standing executive policy, infringed
upon the President’s foreign recognition power).
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Four Pillars of Statutory Control
Congress’s ability to control administrative agencies through the exercise of legislative power is a
holistic endeavor perhaps best understood as built upon four basic pillars: structural design,
delegation of authority, procedural controls on agency decisionmaking, and agency funding.
Reliance on each pillar, however, is informed by separation-of-powers principles.
Structural Design
How an agency is structured
invariably affects how it operates, and what sort of relationship it
has with the Congress and the President.27 In creating a federal agency, Congress may structure or
design the agency in several ways. Many of Congress’s structural choices affect the independence
of agencies by shaping the degree to which the President can assert control over them. These
structural choices are wide-ranging, but generally relate to agency leadership, appointment and
removal of officers, and
presidential supervision. For example, subject to constitutional
considerations explained below, Congress may
structure agency leadership in the form of a multi-thành viên commission or a
single head;28
create agency offices, which may be filled by persons appointed by the President
with the advice and consent of the Senate, or in the case of “inferior” offices, vest
the power of appointment in the President, the head of a department, or the
“Courts of Law”;29
establish certain statutory qualifications for appointees, often based on political
affiliation or substantive experience, or dictate the length of an official’s term of
office;30
choose to make an agency freestanding, or place it within an existing department
or agency;31
27 “Structure” as Justice Antonin Scalia said, “is destiny,” meaning that an agency’s defining structural characteristics
often have a substantial impact on the agency’s future actions
and operation. See Gregory M. Jones, Proper Judicial
Activism, 14 REGENT U. L. REV. 141, 145 (2001) (quoting Justice Antonin Scalia, Address Regent University (Fall
1998)). See also, Brian D. Feinstein, Designing Executive Agencies for Congressional Influence, 69 ADMIN. L. REV.
259, 278–88 (2022) (studying the impact agency design features have on congressional oversight).
28 Compare 15 U.S.C. § 78d(a) (creating “a Securities and
Exchange Commission . . . composed of five commissioners
to be appointed by the President by and with the advice and consent of the Senate”), with 42 U.S.C. § 7131 (“There
shall be the head of the Department a Secretary of Energy . . . who shall be appointed by the President by and with
the advice and consent of the Senate. The Department shall be administered, in accordance with the provisions of this
chapter, under the supervision and direction of the Secretary.”).
29 U.S. CONST. art. II, § 2, cl. 2.
30 See, e.g., 52 U.S.C. § 30106(a)(1)–(2) (providing that the members of the Federal Election Commission shall serve
single six-year terms, “[n]o more than 3 [of whom] . . . may be affiliated with the same political party”); 5 U.S.C.
§ 1201 (establishing background and political affiliation requirements for members of the Merit Systems Protection
Board); 12 U.S.C. § 4512(b)(1) (establishing that the Director of the Federal Housing
Finance Agency “have a
demonstrated understanding of financial management or oversight, and have a demonstrated understanding of capital
markets”). For a broader discussion of statutory qualifications see CRS Report RL33886, Statutory Qualifications for
Executive Branch Positions, by Henry B. Hogue.
31 Compare 5 U.S.C. § 1211 (establishing the freestanding Office of Special Counsel), with 50 U.S.C. § 2401
(establishing the National Nuclear Security
Administration within the Department of Energy).
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provide that an agency official serve the pleasure of the President, or, in certain
situations,32 be protected from removal except in cases of “inefficiency, neglect
of duty, or malfeasance in office”;33 or
choose to exempt an agency from
certain aspects of presidential supervision—for
example by excusing the agency from complying with generally applicable
executive branch requirements that agency rules, legislative submissions, and
budget requests be reviewed and cleared by the White House.34
Although Congress may wish to insulate an agency from presidential control through these
structural choices, fundamental constitutional requirements must be complied with in designing
federal agencies. These
limits, two of which are discussed below, generally exist to ensure that
executive branch officials remain accountable to the President, and ultimately the public, for their
actions.35
Limitations Imposed by the Appointments Clause
The Appointments Clause imposes significant limitations on the structural choices that Congress
may make in determining how executive agency officials are appointed.36 Under the Clause,
principal officers must be appointed by the
President, “with the Advice and Consent of the
Senate,” while Congress may vest the appointment of “inferior Officers” “in the President alone,
in the Courts of Law, or in the Heads of Departments.”37 Non-officers—that is, “mere
employees”—are not subject to any constitutionally required method of appointment.38
The breadth of authority that an executive branch official exercises typically determines the
official’s classification as either an officer or non-officer for
Appointments Clause purposes.39
Generally, if an executive official holds a “continuing position established by law” and
“exercis[es] significant authority pursuant to the laws of the United States,” he is an “Officer of
the United States.”40 The applicable standard for distinguishing between principal officers—who
must be appointed with the advice and consent of the Senate—and inferior officers—whose
32 See infra
note 67.
33 See, e.g., 42 U.S.C. §7171(b) (providing that commissioners on the Federal Energy Regulatory Commission “may be
removed by the President only for inefficiency, neglect of duty, or malfeasance in office”).
34 See 12 U.S.C. § 250 (excusing financial regulators from review of “legislative recommendations, or testimony, or
comments on legislation”).
35 See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 498 (2010) (noting the role an “effective
chain of command” plays in ensuring accountability); Edmond v. United States, 520 U.S. 651, 660 (1997) (“By
requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public
accountability for both the making of a bad appointment and the rejection of a good one.”).
36
U.S. CONST. art. II, § 2, cl. 2.
37 Id.
38 Lucia v. SEC, 138 S. Ct. 2044, 2049 (2022) (explaining that officers constitute “a class of government officials
distinct from mere employees”); see Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976) (per curiam) (stating that
“[e]mployees are lesser functionaries subordinate to officers of the United States”). Congress exercises significant
authority over the hiring and separation of “employees.” See, e.g., 5 U.S.C.
§§ 2101–11001 (governing members of the
civil service and other federal employees).
39 See, e.g., Edmond, 520 U.S. 662 (acknowledging that military appellate judges exercise “significant authority”);
Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 881–82 (1991) (holding that special trial judges of an Article I
tax court are “Officers of the United States” based on the degree of authority they exercise); Buckley, 424 U.S. 138
(concluding that
members of the Federal Election Commission exercised “significant authority”).
40 Lucia, 138 S. Ct. 2051 (citing United States v. Germaine, 99 U.S. 508, 511 (1879); Buckley, 424 U.S. 126
(internal quotation marks omitted)).
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Congress’s Authority to Influence and Control Executive Branch Agencies
appointment Congress may vest elsewhere—is arguably less clear.41 At times, the
Supreme Court
has adopted an approach that suggests the distinction between a principal and inferior officer
hinges mainly on whether the officer is subject to supervision by some higher official, and not on
the amount of overall authority exercised.42 Under this approach, principal officers are generally
subject only to supervision by the President, while inferior officers are generally subject to
supervision by a higher-ranking, Senate-confirmed official.43
Thus, in
designing agencies, Congress generally has little discretion in directing the method of
appointment for most agency heads. If an agency head exercises significant authority on a
continuing basis and is supervised only by the President, he or she qualifies as a principal officer
and must be appointed by the President with the advice and consent of the Senate.44 However,
Congress has some discretion in choosing the appointing official for inferior officers. For
example,
Congress can vest the appointment of an “inferior” agency official in the head of a
department or in the “Courts of Law” to either provide an official with some independence from
the President or to prevent the President from nominating an official of his own choosing.45 That
said, Congress may not reserve for itself the authority to appoint any officer, whether principal or
inferior.46
Limitations Imposed by Principles of Presidential Control
The
President’s general authority to supervise and oversee the executive branch also limits the
structural choices Congress may make in designing agencies. These limits are often implicated by
statutory provisions that seek to insulate an agency from presidential control by providing agency
leaders with removal protections. For example, “for cause” removal protections generally prevent
the President from removing an identified official except in cases of “inefficiency, neglect of
duty,
or malfeasance in office.”47 Generally, these and other removal provisions cannot be used to
deprive the President of his constitutional duty to “oversee the faithfulness of the officers who
execute” the law.48
41 Edmond, 520 U.S. 661 (“Our cases have not set forth an exclusive criterion for distinguishing between principal
and inferior officers for Appointment Clause purposes.”).
42 Id. 663; Free Enter. Fund v. Pub. Co. Accounting Oversight
Bd., 561 U.S. 477, 510 (2010). At times, the Court has
employed a functional analysis that would suggest that the principal/inferior distinction is governed by a linear
evaluation of the degree of authority exercised. See Morrison v. Olson, 487 U.S. 654, 671–72 (1988) (deciding that
“[s]everal factors lead to th[e] conclusion” that the independent counsel is an inferior officer); accord Seila Law LLC
v. Consumer Fin. Prot. Bd., 140 S. Ct. 2183, 2199 n.3 (2022)
(explaining that, in the past, the Court has “examined
factors such as the nature, scope, and duration of an officer’s duties” to determine whether an official is an inferior
officer, and that, “[m]ore recently, [it has] focused on whether the officer’s work is directed and supervised by a
principal officer” in making such a determination) (internal quotation marks omitted).
43 Edmond, 520 U.S. 663.
44 Cf. id. (“[W]e think it evident that ‘inferior officers’
are officers whose work is directed and supervised some level
by others who were appointed by presidential nomination with the advice and consent of the Senate.”).
45 U.S. CONST. art. II, § 2, cl. 2. Congress’s discretion to vest the appointment of an inferior executive branch official in
the courts is not unlimited. For example, in Morrison v. Olson, the Court stated that such “interbranch appointments”
may be improper if the judicial appointment “had the potential to
impair the constitutional functions assigned to one of
the branches,” or “if there was some ‘incongruity’ between the functions normally performed by the courts and the
performance of their duty to appoint.” 487 U.S. 676.
46 Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam).
47 See, e.g., 42 U.S.C. § 7171(b) (providing that commissioners on the Federal Energy Regulatory Commission “may
be removed by the President only for inefficiency, neglect of duty, or
malfeasance in office”).
48 Free Enter. Fund, 561 U.S. 484.
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Congress’s Authority to Influence and Control Executive Branch Agencies
The Supreme Court has established that by vesting the President with both “the executive Power”
and the personal responsibility to ensure the faithful execution of the laws, Article II confers upon
the presidency the “administrative control” of the
executive branch.49 The President’s ability to
ensure accountability through removal of executive branch officials has long been viewed as an
essential aspect of this ability to oversee the enforcement and execution of the law, as “the power
to remove is the power to control.”50
The Supreme Court has outlined the extent of the President’s authority to oversee the executive
branch through removal in a series of seminal cases. The 1926 decision of Myers v. United States
invalidated a statutory provision that prohibited the President from removing an executive official
without first obtaining the advice and consent of the Senate and established the general
proposition that Article II grants the President “the general administrative control of those
executing the laws, including the power of appointment and removal of executive officers.”51
Myers was curtailed shortly thereafter in the 1935 decision of Humphrey’s Executor v. United
States,52where the Court held that Congress could limit the President’s ability to remove
members of the multi-thành viên Federal Trade Commission (FTC) by providing its commissioners
with “for cause” removal protections.53 The Court again approved of statutorily imposed for cause
removal protections in Morrison v. Olson, this time as applied to the independent counsel, an
officer who was authorized to conduct independent investigations and prosecutions of
high-level
executive officials.54 Focusing on whether “the removal restrictions are of such a nature that they
impede the President’s ability to perform his constitutional duty,”55 the Court held that Congress
had afforded the President adequate authority to oversee the independent counsel and ensure that
the official faithfully executed and enforced the law.56 In Free Enterprise Fund v. Public
Company Accounting Oversight Board (PCAOB),57 the Court invalidated
statutory provisions
providing that members of the PCAOB could be removed only for cause by the Securities and
Exchange Commission, whose members were, in turn, also protected from removal by for cause
removal protections.58 By insulating PCAOB members from presidential control with dual layers
of for cause removal protections, the law had “impaired” the President’s necessary authority to
“hold[] his subordinates accountable for their conduct” and “subvert[ed] the President’s
ability to
49 Id. 492–93 (quoting Myers v. United States, 272 U.S. 52, 164 (1926)).
50 Id. 497 (“The diffusion of power carries with it a diffusion of accountability.”); In re Aiken Cty., 645 F.3d 428,
442 (D.C. Cir. 2011) (Kavanaugh, J., concurring).
51 Myers, 272 U.S. 164.
52 295 U.S. 602 (1935). See Wiener v. United States, 357 U.S. 349, 352 (1958) (“The assumption was short-lived that
the Myers case
recognized the President’s inherent constitutional power to remove officials no matter what the relation
of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding
the nature of their tenure.”).
53 Humphrey’s Ex’r,295 U.S. 619–20.
54 The independent counsel was removable by the Attorney General “only for good cause, physical or mental disability
(if not prohibited by law protecting persons from
discrimination on the basis of such a disability) or any other condition
that substantially impairs the performance of such independent counsel’s duties.” 28 U.S.C. § 596. The independent
counsel provisions have since sunset. See id. § 599 (authorizing the Independent Counsel for five years).
55 Morrison, 487 U.S. 693–96.
56 Id. 696 (“Notwithstanding the fact that the counsel is to some degree ‘independent’ and không lấy phí from executive
supervision to a
greater extent than other federal prosecutors, in our view . . . the Act give[s] the Executive Branch
sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally
assigned duties.”).
57 561 U.S. 477 (2010).
58 Id. 491-98.
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ensure that the laws are
faithfully executed.”59 The Court most recently assessed the constitutional
dimensions of presidential control in Seila Law LLC v. Consumer Financial Protection Bureau
(CFPB).60 In Seila Law, the Court held that the structure of the CFPB violated the constitutional
separation of powers.61 The CFPB, an independent agency, is led by a single Director who wields
substantial executive powers and until Seila Law, was removable by the President only for
cause.62 The Court reasoned that there was scant historical precedent for imbuing a principal
officer who was solely in charge of an agency with for cause removal protection, a result that
itself indicated a constitutional infirmity in the Court’s view.63 The Court also based its decision
on the Constitution’s structure, which places the executive power in one person, the President,
who is the only government official (with the exception of the Vice President) accountable to
the
entire country through national elections.64 “The CFPB’s single-Director structure,” wrote the
Court, “contravenes this carefully calibrated system by vesting significant governmental power in
the hands of a single individual” who, because of his for cause removal protection, is
“accountable to no one.”65
These removal cases impose significant, if somewhat undefined, limitations on Congress’s
authority to structure an agency to insulate certain officials from
presidential control.66 For
example, the Court has suggested that there are certain “purely executive” officials,67 and these
persons “must be removable by the President will if he is to be able to accomplish his
constitutional role.”68 For this reason it is likely that congressional attempts to provide a
traditional Cabinet official with “for cause” removal protections would be viewed as placing an
impermissible obstruction on the President’s ability to carry out his
executive functions.69 In any
59 Id. 496–98.
60 140 S. Ct. 2183 (2022).
61 Id. 2197.
62 Id. 2193.
63 Id. 2201-02.
64 Id. 2203.
65 Id. In Collins v Mnuchin, No. 19-422 (consolidated with Mnuchin v. Collins, No. 19-563), the Supreme Court is
tasked with determining whether the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional. The
FHFA is led by a single Director
who is only removal “for cause.” See 12 U.S.C. § 4512(a), (b)(2). The U.S. Court of
Appeals for the Fifth Circuit had held that the structure of the FHFA was constitutionally invalid. See Collins v.
Mnuchin, 938 F.3d 553, 587-88 (5th Cir. 2022) (en banc). Oral argument before the Supreme Court was held in
December 2022. See Docket, No. 19-422, https://www.supremecourt.gov/docket/docketfiles/html/public/19-422.html.
66 See Free Enter. Fund v.
Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 516 (2010) (Breyer, J., dissenting) (“The
Necessary and Proper Clause does not grant Congress power to không lấy phí all Executive Branch officials from dismissal the
will of the President. Nor does the separation-of-powers principle grant the President an absolute authority to remove
any and all Executive Branch officials will. Rather, depending on, say, the nature of the office, its function, or its
subject matter,
Congress sometimes may, consistent with the Constitution, limit the President’s authority to remove an
officer from his post.”) (citations omitted).
67 See Myers v. United States, 272 U.S. 52, 132 (1926) (“The degree of guidance in the discharge of their duties that the
President may exercise over executive officers varies with the character of their service as prescribed in the law under
which they act.”).
68 Morrison, 487 U.S. 690.
69Id.;
PHH Corp. v. CFPB, 881 F.3d 75, 107 (D.C. Cir. 2022) (en banc) (holding that “there are executive officials
whom the President must be able to fire will . . . . Those would surely include Cabinet members—prominently, the
Secretaries of Defense and State—who have open-ended and sweeping portfolios to assist with the President’s core
constitutional responsibilities . . . . Executive functions specifically identified in Article II would be a good place to
start in understanding
the scope of that executive core: It includes, least, the President’s role as Commander in Chief,
and the foreign-affairs and pardon powers”) (citations omitted).
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sự kiện, providing certain officials with removal protections remains a useful tool for encouraging
independence from the President and, possibly, greater
responsiveness to Congress.70
Delegation of Authority
In general, an agency has only that authority which has been delegated to it by Congress.71 Thus,
Congress can control a federal agency by detailing its jurisdiction and authority, setting policy
goals for the agency to accomplish in the exercise of that authority, and choosing whether it may
regulate the public.72 Similarly, Congress may choose to grant an agency the authority to issue
legislative rules,
enforce violations of law, or adjudicate claims made to the agency.73 The more
precise a delegation, the less discretion is afforded to the agency in its execution of its delegated
authority.74
Congress’s control over agency authority is not limited to initial decisions made when the agency
was established. Instead, the authority delegated to an agency can generally be enlarged,
narrowed, or altered any time by Congress.75 Nor does delegated authority need to be
permanent. Congress often uses sunset provisions to terminate a delegation on a specified date.76
Congress may also reject an agency’s specific exercise of delegated power through legislation.77
Congress is not, however, unconstrained in its ability to empower agencies. One limitation on
Congress’s ability to delegate authority to a federal agency is the non-delegation doctrine. As
opposed to the appointment and removal doctrines, which limit Congress’s ability to encroach
upon or restrict executive authority, the non-delegation doctrine limits the extent to which
Congress may bestow legislative authority on other entities, including the executive branch.78
70 See, e.g., CRS Report R46762, Congress’s Authority to Limit the Removal of Inspectors General, by Todd Garvey.
71 See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It is axiomatic that an administrative agency’s
power to promulgate legislative
regulations is limited to the authority delegated by Congress.”).
72 See J.R. Deshazo & Jody Freeman, The Congressional Competition to Control Delegated Power, 81 TEX. L. REV.
1443, 1456 (2003) (noting that one of Congress’s “primary mechanisms to control delegated power” is the use of
“statutory language that circumscribes the scope of agency authority” by establishing “substantive standards or limits
that the agency must implement”).
73 See, e.g.,
12 U.S.C. § 5512(a) (granting CFPB the authority to “administer, enforce, and otherwise implement”
delegated authority); 42 U.S.C. § 405(b)(1) (granting the Commissioner of the Social Security Administration the
authority to “make findings of fact, and decisions as to the rights of any individual applying for a [benefits] payment”).
74 See Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 77–78 (2006) (“A key formal
method Congress employs
to control executive discretion is to nip discretion in the bud by legislating with precision.”).
75 See Ctr. for Biological Diversity v. Zinke, 313 F. Supp. 3d 976, 989 (D. Alaska 2022) (“The authority of an
executive agency comes from Congress and is subject to modification by Congress.” (citing Food & Drug Admin. v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000))).
76 See, e.g., 16 U.S.C. § 6809 (“The authority of the Secretary to carry out
this Act shall terminate September 30,
2022.”); 54 U.S.C. § 101938 (“The authority given to the Secretary under this subchapter shall expire 7 years after the
date of the enactment of this subchapter.”).
77 Congress can reverse agency decisions through the enactment of ordinary legislation, but it has also created certain
procedural mechanisms to fast-track its disapproval of some agency actions. See, e.g., 5 U.S.C. §§ 801–808 (providing
for the rejection of an agency
rule through enactment of a joint resolution of disapproval); 42 U.S.C. § 2153(d)
(providing for the enactment of a joint resolution of disapproval relating to nuclear cooperation agreements).
78 Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). The delegation of authority to private entities can also raise
constitutional concerns. See CRS Recorded Event WRE00214, Privatization and the Constitution: Limits on
Congress’s Power to Privatize, by Linda Tsang; CRS
Report R44965, Privatization and the Constitution: Selected
Legal Issues, by Linda Tsang and Jared P. Cole.
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This doctrine is based in the separation of powers and works to prevent Congress from abdicating
the core legislative function assigned to it by Article I of the Constitution.79
In practice, the
non-delegation doctrine does not, by itself, generally function as a substantial
limitation on the powers that Congress may provide to a federal agency.80 Although the Supreme
Court has declared categorically that “the legislative power of Congress cannot be delegated,”81
the standard for determining whether Congress has in fact delegated “legislative authority” is
more lenient than this statement might suggest.82 For a delegation to survive scrutiny, Congress
need only
establish an “intelligible principle” to govern the exercise of the delegated power.83 The
“intelligible principle” test requires that Congress delineate reasonable legal standards for when
that power may be exercised.84 According to the Court’s doctrine, when a delegation is
accompanied by an “intelligible principle,” Congress confines the degree of discretion that an
79 Mistretta v. United States, 488 U.S. 361, 371 (1989) (“The nondelegation doctrine is rooted in the
principle of
separation of powers that underlies our tripartite system of Government.”); Panama Refining Co., 293 U.S. 421
(“The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with
which it is thus vested.”).
80 The Supreme Court has not invalidated a law for violation of the doctrine since 1935. See A.L.A. Schechter Poultry
Corp. v. United States, 295 U.S. 495, 527–38 (1935) (concluding
that authorizing the Federal Trade Commission to
establish “codes of fair competition” constituted an unconstitutional delegation “to the President to exercise an
unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion
of trade or industry.”). The Supreme Court has previously found broad delegations authorizing an agency to regulate in
the “public interest” or in a “fair and equitable” manner to satisfy the
intelligible principle test. Nat’l Broad. Co. v.
United States, 319 U.S. 190, 216 (1940); Yakus v. United States, 321 U.S. 414, 420 (1944). There have, however, been
recent developments in non-delegation doctrine jurisprudence. In Association of American Railroads v. Department of
Transportation, for example, the U.S. Court of Appeals for the D.C. Circuit invalidated a delegation not on the grounds
that Congress had failed to provide the agency with an intelligible
principle, but because Congress violates due process
when it provides a “self-interested entity with regulatory authority over its competitors.” 896 F.3d 539, 553 (D.C. Cir.
2022).
In its most recent treatment of the non-delegation doctrine, see Gundy v. United States, 139 S. Ct. 2116 (2022), a four-
Justice plurality, in an opinion authored by Justice Kagan and joined by Justices Breyer, Ginsburg, and Sotomayor,
applied the intelligible principle test to uphold the
congressional delegation of authority issue in that case. Id.
2129-30 (plurality opinion). Justice Alito concurred in the judgment, but explained that he would support reconsidering
the intelligible principle test if a majority of the Court was inclined to do so in the future. Id. 2131 (Alito, J.,
concurring). Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, would have reconsidered the Court’s
modern approach to non-delegation questions.
Id. 2131 (Gorsuch, J., dissenting); see id. 2139 (arguing that, in the
late 1940s, courts began to apply a “mutated version of the ‘intelligible principle’ remark” first expressed by the Court
in its 1928 decision of J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928), that had “no basis in the
original meaning of the Constitution, in history, or even in the decision from which it was plucked”). Justice
Kavanaugh, who joined the
Court after oral arguments in Gundy, did not participate in the decision. See id. 2120
(plurality opinion). And since the Court considered Gundy, Justice Barrett has joined the High Court, having been
nominated to fill the vacancy left by the death of Justice Ginsburg. See CRS Report R46562, Judge Amy Coney
Barrett: Her Jurisprudence and Potential Impact on the Supreme Court, coordinated by Valerie C. Brannon, Michael
John Garcia, and
Caitlain Devereaux Lewis, 1.
81 United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932).
82 See, e.g., Panama Refining Co., 293 U.S. 340 (invalidating delegation of authority to the President to regulate the
interstate transport of oil under the National Industrial Recovery Act); Schechter Poultry, 295 U.S. 542 (invalidating
delegation of authority to the President to approve fair competition codes).
83 J.W. Hampton, Jr.,
& Co. v. United States, 276 U.S. 394, 409 (1928) (“If Congress shall lay down by legislative act
an intelligible principle to which the person or body toàn thân authorized . . . is directed to conform, such legislative action is not
a forbidden delegation of legislative power.”).
84 See, e.g., Panama Refining Co., 293 U.S. 421 (“The Constitution has never been regarded as denying to the
Congress the necessary resources of flexibility and practicality, which will
enable it to perform its function in laying
down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules
within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.”).
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agency possesses in the exercise of
that delegation, such that the delegation does not offend the
separation of powers.85
Congress may also condition an agency’s exercise of its delegated authority in various ways. For
example, Congress can craft legislation establishing that delegated agency authority is triggered
only after a specific sự kiện occurs, or after a factual determination made by an executive branch
official.86 Congress sometimes enacts “report and wait” provisions that require an agency to
report to Congress on a proposed use of delegated authority, and then wait a specific time period
before implementing or finalizing that action.87 The report and wait framework is designed to
give Congress the opportunity to enact legislation rejecting the agency’s proposed action if
desired. Congress has also repeatedly established internal expedited procedures for the rejection
of specific agency actions.88 This approach typically establishes special procedures in each
house
of Congress for consideration of a joint resolution of disapproval that would overturn agency
actions.89 Under such a review mechanism, the agency has authority to act unless Congress
affirmatively rejects or blocks the action through legislative enactment.90 Congress can also
authorize an agency to make proposals to Congress that only become effective when approved
through legislation.91 Under this framework, the agency has no authority to act until a proposal is
given legal effect through the enactment of implementing legislation.92
Procedural Controls on Decisionmaking
Congress can also exert substantial control over administrative agencies by prescribing the
procedures agencies must employ when exercising delegated powers. The Administrative
Procedure Act (APA),93 enacted in 1946, is perhaps the most prominent federal administrative
85 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (“Article I,
§ 1, of the Constitution vests ‘all
legislative Powers herein granted . . . in a Congress of the United States.’ This text permits no delegation of those
powers . . . .”) (internal citations omitted); Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (“[T]his Court has
deemed it ‘constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to
apply it, and the boundaries of . . . delegated authority.’” (quoting American Power
& Light Co. v. Sec. & Exch.
Comm’n, 329 U.S. 90, 105 (1946))).
86 See J.W. Hampton, 276 U.S. 407 (“Congress may feel itself unable conveniently to determine exactly when its
exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the
determination of such time to the decision of an Executive.”).
87 See Sibbach v. Wilson & Co., 312 U.S. 1, 8 (1941) (upholding “report and
wait” provision). See, e.g., 42 U.S.C. §
10134 (establishing a report and wait framework for the selection of a nuclear waste repository); 28 U.S.C. § 2074(a)
(requiring that the proposed amendments to the procedural and evidentiary rules of the federal courts be submitted to
Congress before taking effect).
88 See, e.g., 42 U.S.C. § 2160e(b) (providing for a joint resolution of disapproval relating to nuclear agreements with
the Islamic Republic of Iran).
See also CRS Report RS20234, Expedited or “Fast-Track” Legislative Procedures, by
Christopher M. Davis.
89 See Michael J. Cole, Interpreting the Congressional Review Act: Why the Courts Should Assert Judicial Review,
Narrowly Construe “Substantially the Same,” and Decline to Defer to Agencies Under Chevron, 70 ADMIN L. REV. 53,
55 (2022) (describing the Congressional Review Act, 5 U.S.C. §§ 801–808, as a “regulatory oversight statute
that
provides a shortcut mechanism for Congress to overturn agency rules”).
90 The Congressional Review Act, for example, establishes a process by which Congress can reject specific agency
rules through a joint resolution of disapproval. See 5 U.S.C. §§ 801–808.
91 For example, under the now-expired Reorganization Act Amendments of 1984, Congress authorized the President to
submit a proposed executive branch reorganization plan to Congress, which would take effect
upon the enactment of a
joint resolution approving the plan. See 5 U.S.C. §§ 901–912.
92 See 2 U.S.C. §§ 681–688 (authorizing the President to propose budget rescissions that take effect only when
approved by legislation).
93 5 U.S.C. §§ 551–559, 701–706.
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procedure statute. The APA sets forth the default procedural requirements with which federal
agencies94 generally must comply when conducting rulemaking or administrative adjudication
proceedings.95 Other statutes may supplement or even supersede the APA’s procedural
requirements.96
The power to issue binding law through notice-and-comment rulemaking97 or administrative
adjudication (or both)98 is one of the most consequential powers with which many agencies are
imbued. The APA’s procedural requirements are intended to safeguard the rights of the public and
entities affected by agency decisions, while also ensuring that agencies retain that degree of
flexibility necessary to achieve their delegated responsibilities.99 For example, before an agency
may issue a rule with the force of law, the APA generally requires that it first publish a notice of
proposed rulemaking in the Federal Register100 and afford members of the public
an opportunity
to submit comments on the proposal.101 An agency’s final rule must contain “a concise general
statement of [its] basis and purpose” and may generally take effect no earlier than thirty days after
issuance.102 Agencies ordinarily must follow these same procedures when amending or repealing
such rules, as well.103 In the case of agency adjudications that are required (by another statute) to
“be determined on the record after opportunity for an agency
hearing”104—often referred to as
94 The APA defines “agency” as “each authority of the Government of the United States, whether or not it is within or
subject to review by another agency.” Id. § 551(1). Among other things, this definition does not apply to Congress, the
judiciary, the District of Columbia, or the military. Id. § 551(1)(A)–(B), (D), (F)–(G).
95 See id. §§ 551–559. Courts may not impose procedural requirements on agencies that
exceed those prescribed by the
APA or other statutes. See generally Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519
(1978); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990); see also Beermann, supra note 74, 102.
However, agencies are generally không lấy phí to adopt additional procedures
themselves. See Vt. Yankee, 496 U.S. 524
(explaining that “the formulation of procedures [is] basically to be left within the discretion of the agencies to which
Congress had confided the responsibility for substantive judgments”).
96 See infra text accompanying notes 107–113.
97 Notice-and-comment, or “informal,” rulemaking is
the most common type of rulemaking used by agencies. See
David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 YALE L.J. 276, 282
(2010) (noting that informal rulemaking is “far more common” than formal rulemaking). Agencies may also, however,
be authorized to issue rules the culmination of trial-type evidentiary proceedings. See 5 U.S.C. §§ 553(c), 556–557.
98 See SEC v. Chenery Corp., 332 U.S. 194, 203
(1947) (“[T]he choice made between proceeding by general rule or by
individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”).
99 Cf. George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics,
90 NW. U. L. REV. 1557, 1558 (1996) (writing that the APA struck a balance “between promoting individuals’ rights
and maintaining agencies’ policy-making
flexibility”).
100 5 U.S.C. § 553(b). An agency need not provide public notice of interpretive rules, general policy statements, or
“rules of agency organization, procedure, or practice,” nor “when [it] for good cause finds . . . that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Id. § 553(b)(A)–(B). None of the
informal rulemaking provisions of the APA apply when “there is involved” “a military or foreign affairs
function of the
United States” or “a matter relating to agency management or personnel or to public property, loans, grants, benefits, or
contracts.” Id. § 553(a)(1)–(2).
101 Id. § 553(c).
102 Id. § 553(c)–(d). The thirty-days or more effective date does not apply, among other things, “as otherwise provided
by the agency for good cause found.” Id. § 553(d)(3). For more information on agency rulemaking, see CRS Report
R41546, A Brief Overview
of Rulemaking and Judicial Review, by Todd Garvey.
103 See 5 U.S.C. § 551(5) (defining “rule making” for purposes of the APA as the “agency process for formulating,
amending, or repealing a rule”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101 (2015) (explaining that the definition
of “rule making” in the APA “mandate[s] that agencies use the same procedures when they amend or repeal a rule as
they used to issue the rule in the first instance”). For an overview of
agency rescissions and alterations of rules with the
force of law, see CRS Report R46673, Agency Rescissions of Legislative Rules, by Kate R. Bowers and Daniel J.
Sheffner.
104 5 U.S.C. § 554(a). While the APA prescribes relatively extensive procedures for such adjudications, the majority of
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“formal” adjudications—the APA prescribes formalized, trial-like procedures105 and provides that
impartial adjudicators shall preside over such proceedings.106
The APA is not the only statute that governs administrative procedure. Many other statutes
impose requirements on the procedural governance of large swaths of the executive branch,
including the Congressional Review Act,107 Regulatory Flexibility Act,108 Freedom of Information
Act (FOIA),109
Federal Records Act,110 and Paperwork Reduction Act.111 Through these and
similar statutes, Congress can impact agency action by, among other things, requiring or
authorizing the use of alternative or substitute procedural mechanisms to subject agencies’ actions
to increased transparency and public accountability, and ensuring that agencies engage in certain
substantive considerations during the decisionmaking process.112 In addition, some statutes may
impose procedural
requirements on specific agencies on top of or instead of those required by the
APA.113
agency adjudication proceedings are primarily governed by other statutes. See ABA, SEC. OF ADMIN. L. & REG. PRAC.,
A GUIDE TO FEDERAL AGENCY ADJUDICATION 176 (2d ed. 2012) (“Perhaps 90 percent of federal agency adjudication is
informal rather than formal. With the exception of a few provisions set forth in [5 U.S.C.] §§ 555 and 558, the APA
does not spell out the procedures
that an agency must follow when engaging in informal adjudication”). Adjudication
proceedings that are not regulated by the APA are often collectively known as “informal” adjudication, but informal
proceedings can be more procedurally formal than APA adjudications. MICHAEL ASIMOW, ADMIN. CONF. OF THE U.S.,
EVIDENTIARY HEARINGS OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT 3 (2022). “External sources of law, generally
an agency’s organic statute, determine the procedural requirements
of non-APA adjudicatory proceedings, subject to
certain baseline requirements imposed by 5 U.S.C. §§ 555 and 558 and due process.” Daniel J. Sheffner, Access to
Adjudication Materials on Federal Agency Websites, 51 AKRON L. REV. 447, 450 (2022) [hereinafter Sheffner,
Adjudication Materials]. Section 555 pertains to “ancillary matters” and Section 558 concerns sanctions and licensing.
5 U.S.C. §§ 555, 558.
105 5 U.S.C. §§ 554, 556–557. For example, parties to
formal proceedings may offer oral or documentary evidence, id.
§ 556(d), cross-examine opposing parties, id, and submit proposed findings of fact and conclusions of law, id.
§ 557(c)(1). The agency may receive “[a]ny oral or documentary evidence,” but “shall provide for the exclusion of
[evidence that is] irrelevant, immaterial, or unduly repetitious . . . .” Id. § 556(d). At the conclusion of a formal hearing,
the presiding adjudicator issues a
decision that contains “a statement of . . . findings and conclusions” similar to a
judicial opinion. Id. § 557(c)(A). See Sheffner, Adjudication Materials, supra note 104, 450.
106 5 U.S.C. § 556(b) (providing that “[t]he functions of presiding employees and of employees participating in
decisions in accordance with
[5 U.S.C. § 557] shall be conducted in an impartial manner”). In formal adjudications
under the APA, the “presiding employee” must be either “the agency,” “one or more members of the body toàn thân which
comprises the agency,” or “one or more administrative law judges.” Id. § 556(b)(1)–(3).
107 Id. §§ 801–808(authorizing Congress to overturn agency rules through joint resolutions of disapproval).
108 Id. §§ 601–612(directing agencies to consider the
effects of regulations on small businesses and other small
entities).
109 Id. § 552 (mandating disclosure of wide range of agency records proactively and by request, subject to specific
exemptions). FOIA was enacted as an amendment to the APA. For more information on FOIA, see CRS Report
R46238, The Freedom of Information Act (FOIA): A Legal Overview, by Daniel J. Sheffner [hereinafter, Sheffner,
FOIA].
110 44 U.S.C. §§ 3101–3107(creating
records management responsibilities for federal agencies).
111 Id. §§ 3501–3521(establishing responsibilities for agencies engaged in information collection).
112 See Beermann, supra note 74, 103–05.
113 See, e.g., 42 U.S.C. § 7607(d)(1) (listing rulemakings to which the Clean Air Act rulemaking provisions—rather
than the APA’s—apply). See also 5 U.S.C. § 559 (providing that a “[s]ubsequent statute may not be held to supersede
or modify [the APA], except to the extent that it does so expressly”).
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Agency Funding
Finally, and perhaps most significantly, Congress exercises virtually plenary control over
agency
funding.114 This power to determine agency appropriations can be used to control agency
priorities, prohibit agency action by denying funds for a specific action, or force agency action by
either explicitly appropriating funds for a program or activity or withholding agency funding until
Congress’s wishes are complied with.115
Article I of the Constitution gives Congress the power to tax and spend in order to provide for the
“Common Defence and general Welfare of
the United States,”116 and provides explicitly that
“[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by
Law.”117 Thus, Congress controls the funding levels for agency operations and programs through
enactment of appropriations.118 A typical appropriation measure contains limits on the amount of
funding available to an entity and specifies the purposes and duration for which the funding can
be used.119 Agencies may neither spend
appropriated funds in excess of an amount authorized, nor
withhold appropriated funds from expenditure in a manner that violates the intent of the
appropriation.120 Moreover, several federal statutes, such as the Antideficiency Act, reinforce
Congress’s power of the purse by making it unlawful to spend in excess of appropriations.121
Along with the power to determine general funding levels for agencies and programs, Congress
may also prohibit or condition the use of funds to
control agency activity or achieve certain policy
goals. Given the legislative branch’s clear constitutional power over the purse,122 the Supreme
Court has recognized that “Congress may always circumscribe agency discretion to allocate
resources by putting restrictions in the operative statutes.”123 These so-called “appropriations
riders” are a common tool for guiding an agency, especially when Congress seeks to prevent an
agency from acting. A typical rider prohibits an
agency from using funds to implement a certain
action and potentially can transform how a federal agency implements the law. For example,
114 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) (“[N]o money can be paid out of the Treasury unless
it has been appropriated by an act of Congress.”).
115 Congress has used restrictions on the payment of salaries to buttress its legislative prerogatives. See, e.g., 5 U.S.C.
§ 5503(a) (prohibiting salary
payments for certain recess appointments); Consolidated Appropriations Act, 2004, Pub.
L. No. 108-199, div. F, tit. VI, § 618, 188 Stat. 3, 354 (2004) (prohibiting the use of funds to pay the salary of a federal
official or employee who prevents another federal official or employee from communicating with Congress).
116 U.S. CONST. art. I, § 8, cl. 1 (Taxing and Spending Clause).
117 Id. § 9, cl. 7. For an overview of Congress’s appropriations power, see CRS Report R46417,
Congress’s Power
Over Appropriations: Constitutional and Statutory Provisions, by Sean M. Stiff.
118 For discussion about the relationship between the Taxing and Spending Clause and the Appropriation Clause, see
CRS Report R44729, Constitutional Authority Statements and the Powers of Congress: An Overview, by Andrew
Nolan, 15-17 (discussing the Taxing and Spending Clause as a source of legislative power to provide money for a
particular project and
the Appropriations Clause as a restriction on the power of federal entities to use money in a
manner not authorized by Congress).
119 U.S. GOV’T ACCOUNTABILITY OFF., OFF. OF THE GEN. COUNS., PRINCIPLES OF FEDERAL APPROPRIATIONS LAW 1-8
(4th ed. 2022).
120 See Train v. City of Tp New York, 420 U.S. 35, 42–49 (1975). Congress has granted agencies limited authority to defer
or rescind funds under the Impoundment Control Act. 2 U.S.C. §§ 683–684.
121 See, e.g.,
31 U.S.C. § 1341(a)(1)(A) (prohibiting federal employees from “mak[ing] or authoriz[ing] an expenditure
or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation”).
122 See U.S. CONST. art. I, § 9, cl. 7.
123 Lincoln v. Vigil, 508 U.S. 182, 192–93 (1993) (upholding the decision to discontinue the Indian Children’s Program
by the Indian Health Service, where funding for the program was provided in an annual lump sum
appropriation to the
agency).
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Congress has used appropriations riders to limit agency action on issues ranging from the
enforcement of federal marijuana laws to the transfer of detainees from the U.S. Naval Station
Guantanamo Bay.124
But while Congress’s power of the purse is almost plenary, it cannot be
used to achieve
unconstitutional purposes.125 For example, in Lovett v. United States, the Supreme Court held that
Congress cannot wield its appropriations power to punish specific government officials in
violation of the Bill of Attainder Clause.126 The executive branch has consistently contended that
Congress may not use its appropriations power to infringe upon the President’s constitutional
authority.127
Non-statutory Tools to Influence Executive Branch
Agencies
The above discussion establishes Congress’s broad authority to control federal agencies by
enacting legislation. These statutory tools, however, may be exercised only under Congress’s
lawmaking power, which requires the participation and agreement of the House, Senate, and,
absent a veto override, the President.128 But there are also many non-statutory tools (i.e., tools not
requiring legislative enactment to exercise) that may be used unilaterally and
independently by
the House, Senate, congressional committees, or individual Members of Congress to influence
and control agency action.
Constitutional Limits on Non-statutory Legislative Actions
The Constitution’s required lawmaking procedures impose significant limitations on how
Congress and its component parts (i.e., the House, Senate, committees, and individual Members)
may wield power over agencies. The Supreme Court has made clear that Congress must exercise
its legislative power in compliance with the “finely wrought and exhaustively considered[]
procedure”129 set forth in Article I, Section 7, which provides that “every Bill which shall have
124 See, e.g., Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat.
2130, 2217 (2014) (preventing the Department of Justice from using funds to “prevent” certain states “from
implementing their own State laws that authorize the use,
distribution, possession, or cultivation of medical
marijuana”); Consolidated Appropriations Act of 2014, Pub. L. No. 113-76, div. C, tit. VIII, § 8111, 128 Stat. 5
(prohibiting the Department of Defense from “using appropriated funds to transfer any individuals detained
Guantanamo Bay unless the Secretary of Defense notifies certain congressional committees least 30 days before the
transfer”).
125 United States v. Klein, 80 U.S. (8 Wall.) 128 (1872) (holding invalid an
appropriations proviso that effectively
nullified some effects of a presidential pardon and that appeared to prescribe a rule of decision in court cases); United
States v. Lovett, 328 U.S. 303, 316–18 (1946) (invalidating as a bill of attainder an appropriations provision denying
money to pay salaries of named officials). In addition, it would appear that the most prevalent restriction on the use of
the appropriations power is self-imposed and stems from an internal House rule
limiting the use of substantive
legislative language in appropriations bills. HOUSE RULE XXI.
126 Lovett, 328 U.S. 316–18.
127 See Presidential Certification Regarding the Provision of Documents to the House of Representatives Under the
Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 266 (1996) (“Broad as the spending power of the legislative
branch undoubtedly is, . . . . Congress may not use the spending power to infringe on the President’s
constitutional
authority.”).
128 U.S. CONST.art. I, § 7. However, each chamber can wield unilateral power by refusing its consent to legislative
measures.
129 Immigration & Naturalization Servs. v. Chadha, 462 U.S. 919, 951 (1983).
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Congress’s Authority to Influence and Control Executive Branch Agencies
passed the House of Representatives and the Senate, shall, before it
become a Law, be presented
to the President of the United States.”130 This provision establishes the bedrock constitutional
principle that before legislation is given the force and effect of statutory law, it must first satisfy
the requirements of bicameralism (approval by both houses of Congress) and presentment
(submission to the President for his signature or veto).131
Immigration & Naturalization Service v. Chadha is the seminal case on the limits bicameralism
and presentment place on the ability of Congress’s component parts to act alone.132 In Chadha,
the Court struck down a provision of the Immigration and Nationality Act (INA) that had
authorized either house of Congress, by simple resolution, to “veto” an exercise of statutory
deportation authority that had been delegated to the Attorney General.133 In invalidating this
“legislative veto,” the Court determined that “legislative acts” having the force of law are subject
to the requirements of bicameralism and presentment, and held that the INA’s one-house veto
procedure did not comply with these constitutional requirements.134 The Court defined a
legislative act as any action “properly . . . regarded as legislative in its character and effect” or
taken with “the purpose and effect of altering the legal rights, duties and relations of persons . . .
outside the legislative branch.”135
The Chadha opinion identified specific
exceptions to the bicameralism and presentment
requirement, noting that “[c]learly, when the [Constitution’s] Draftsmen sought to confer special
powers on one House, independent of the other House, or of the President, they did so in explicit,
unambiguous terms.”136 The Constitution’s impeachment provisions and those relating to Senate
advice and consent to treaty ratification and the appointment of judges, ambassadors, and public
officials are examples of such provisions.137
The Court also noted that “[e]ach House has the
power to act alone in determining specified internal matters.”138 These express exceptions to the
bicameralism and presentment requirements in the Constitution, the Court noted, “further
indicate[] the Framers’ intent that Congress not act in any legally binding manner outside a
closely circumscribed legislative arena, except in specific and enumerated instances.”139
As a result of the Chadha decision, if Congress seeks
to legally compel or prohibit agency action,
or otherwise alter an agency’s underlying authority, the House and Senate generally must act in
concert with each other, and absent a veto override, in concert with the President.140 Chadha,
130 U.S. CONST. art. I, § 7.
131 Clinton v. City of Tp New York, 524 U.S. 417, 439–40 (1998) (“The procedures governing the enactment of statutes set
forth in the text of Article I were the product of the great debates and compromises
that produced the Constitution
itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may
only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’” (citing Chadha,
462 U.S. 951)).
132 Chadha, 462 U.S. 944–59.
133 Id. 952–55.
134 Id. 952.
135 Id.
136 Id. 955–56.
137 Id. 955.
138 Id.
955 n.21 (referencing U.S. CONST. art. I, § 5, cl. 2 and § 7, cls. 2, 3).
139 Id.
140 U.S. CONST. art. I, § 7. One exception is the subpoena, which can be issued by a single congressional committee and
carries with it the legal obligation to respond. Watkins v. United States, 354 U.S. 178, 187–88 (noting the existence of
an “unremitting obligation to respond to subpoenas”).
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Congress’s Authority to Influence and Control Executive Branch Agencies
therefore, represents a key limitation on the ability of an individual house, committee, or Member
to directly and unilaterally control federal agencies.141
Yet a distinction must be made between Congress’s authority to mandate or prohibit agency
activity through the enactment of legislation, and the ability of Congress, legislative committees,
and individual Members
to influence agency conduct through the use of other tools. As discussed
in the remainder of the report, there are many non-statutory tools that congressional actors may
use to influence agencies without compliance with bicameralism and presentment. These tools
may inhere to the House, Senate, congressional committees, or individual Members and can
generally be used to either obtain information necessary for informed congressional involvement
in administrative decisionmaking,
or pressure an agency into pursuing a certain course of conduct
by harnessing and focusing public attention on an agency’s or an official’s action or inaction.142
Significant Tools Available to Both the House and Senate143
Some of the most significant non-statutory tools are available to both houses of Congress. Three
tools have particular practical or legal significance to Congress: expressions of disapproval,
including censure; criminal contempt of Congress; and
each house’s inherent power to arrest and
jail individuals for obstructive conduct.144
Censure and Other Expressions of Disapproval
Either house of Congress may seek to influence agency action through formal disapproval of
executive branch officials. Formal declarations of disapproval take different forms. They can be
expressions of censure or condemnation,145 declarations of a loss of or no confidence in an
official, or expressions of the belief that an official
should resign or be removed from office.146
141 See Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982) (en banc) (per curiam), aff’d, 463 U.S. 1216 (1983)
(invalidating use of two-house veto through concurrent resolution); Chadha, 462 U.S. 959 (Powell, J., concurring)
(“The Court’s decision, based on the Presentment Clauses, Art. I, § 7, cls. 2 and 3, apparently will invalidate every use
of the legislative veto.”). The Supreme Court has
consistently interpreted Chadha as limiting the legal impact of non-
statutory legislative actions. For example, in Bowsher v. Synar, the Court reaffirmed that “once Congress makes its
choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only
indirectly—by passing new legislation.” 478 U.S. 714, 733–34 (1986).
142 See John C. Roberts, Are Congressional Committees Constitutional?: Radical
Textualism, Separation of Powers,
and the Enactment Process, 52 CASE W. RES. 489, 520 (2001) (writing that “[t]he Framers contemplated that Congress
would participate in the administration of the laws in many ways, including confirmation of executive branch
appointments and withholding funds”).
143 This overview is not exhaustive in terms of the universe of non-statutory tools available to Congress to influence
and control administrative agencies. The tools included were
selected due to their particular significance to Congress’s
oversight and investigative responsibilities.
144 The House and Senate have also instituted civil proceedings to enforce compliance with valid congressional
subpoenas. Because each house typically relies upon a different source of law to maintain civil enforcement lawsuits—
that is, via a simple resolution (House) or civil enforcement statute (Senate)—each house’s civil enforcement power is
discussed in the
respective sections covering the exclusive tools available to the House and to the Senate individually.
See infra “Tools Available to the House” & “Tools Available to the Senate.”
145 Rather than targeting an
individual, a resolution can condemn agency action generally. See, e.g., H. Res. 271, 116th
Cong. (2022) (describing “actions taken by the Trump Administration seeking the invalidation of the ACA’s
protections for people with pre-existing conditions” as “an unacceptable assault on the health care of the American
people” and calling on the DOJ to reverse its litigating position in a specific case); H. RES. 644, 113th Cong. (2014)
(condemning and disapproving “the failure of
the Obama administration” to notify Congress of a prisoner exchange
involving “five senior members of the Taliban from detention . . . Guantanamo Bay, Cuba”).
146 See CRS Report RL34037, Congressional Censure and “No Confidence” Votes Regarding Public Officials,
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These expressions are generally contained in simple resolutions if issued by one house or
concurrent resolutions if issued by Congress as a whole.147 Although censure resolutions and
other expressions of disapproval generally have no legal effect, they might still influence the
actions of agency officials who wish to avoid the political consequences of such measures.148
Congress has proposed resolutions condemning or censuring executive branch officials since as
early as 1793, when Congress considered resolutions censuring Secretary of the Treasury
Alexander Hamilton.149 As a matter of historical practice, censure and similar resolutions have
been adopted against various executive officials.150 Still, some have argued that congressional
censure of executive officials is unconstitutional.151 For example, it has been argued that the
impeachment provisions of the Constitution provide the exclusive means by which Congress may
punish
executive branch officials, and that censure is an unconstitutional bill of attainder by
imposing legislative punishment on a named official.152 These arguments appear to be grounded
in an understanding of the relationship between censure, impeachment, and bills of attainder that
is not widely shared. Impeachment is exclusive only in that it is the sole tool available to
Congress to remove an official from office and that Congress is constitutionally prohibited from
imposing any additional punishment following impeachment and conviction beyond removal and
disqualification from holding future federal office.153 Censure and other expressions of
disapprobation in simple or concurrent resolutions, however, do not seek to legally compel
removal from office, nor are they punishments following impeachment and conviction.154
As for the Constitution’s prohibition on bills of attainder, a censure resolution would violate that
constitutional
prohibition only if it imposed a “punishment” as envisioned by the Bill of Attainder
Clause.155 The Supreme Court has identified a bill of attainder as “a law that legislatively
determines guilt and inflicts punishment upon an identifiable individual without provision of the
coordinated by Cynthia Brown, 1, 8.
147 Brown, supra note
146, 5.
148 Cf. Michael J. Gerhardt, The Historical and Constitutional Significance of the Impeachment and Trial of President
Clinton, 28 HOFSTRA L. REV. 349, 377 (1999) (describing censure as a tool for “collective[] . . . condemnation”).
149 None of the resolutions passed. Brown, supra note 146, 6 & n.20.
150
See, e.g., id. 6–7 (discussing the House’s condemnation of President Buchanan and his Secretary of the Navy in
1860 and the House and Senate’s respective resolutions of disapprobation directed Attorney General A.H. Garland in
1886 and Ambassador Thomas Bayard in 1896).
151 See Gerhardt, supra note 148, 376
(explaining that those who opposed censure over impeachment proceedings for
President Clinton “claimed, inter alia, that [censure] constituted either a bill of attainder or an illegitimate bypass of the
only constitutionally authorized means—impeachment—for dealing with a President’s misconduct”).
152 For example, the House report underlying President Bill Clinton’s impeachment argued that,
for the President or any other civil officer, censure as a shaming punishment by
the legislature is
precluded by the Constitution, since the impeachment provisions permit Congress only to remove an
officer of another branch of government and disqualify him from office. Not only would such a
punishment undermine the separation of powers by punishing the President or other civil officers of
the government in a manner other than expressly provided for in the Constitution, but it would violate
the Constitution’s prohibition on Bills of Attainder.
H.R.
REP. NO. 105-830, 137 (1998) (citing U.S. CONST. art. I, § 9, cl. 3). See also James C. Ho, Misunderstood
Precedent: Andrew Jackson and the Real Case Against Censure, 24 HARV. J. L. & PUB. POL’Y 283, 290 (2000) (arguing
that, “not only is there no textual defense for interbranch censure ( least not outside of the impeachment process), the
Constitution expressly forbids it through its prohibition against bills of attainder”).
153 See U.S. CONST. art.
I, § 3, cls. 6, 7; id. art. II, § 4.
154 CRS Legal Sidebar LSB10096, The Constitutionality of Censuring the President, by Todd Garvey.
155 U.S. CONST. art. I, § 9, cl. 3.
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protections of a judicial trial.”156 The Court has explained that “the historical meaning of
legislative punishment” includes
“imprisonment, banishment, . . . the punitive confiscation of
property[,] . . . . [and] legislative bars to participation by individuals or groups in specific
employments or professions.”157 A non-tangible injury—such as the reputational harm that might
result from a censure resolution—is not the category of injury generally viewed as implicated by
the Bill of Attainder Clause.158 Given that censure resolutions do not carry a direct legal
consequence, it would appear
difficult to argue that such measures impose the type of punishment
prohibited by the Clause.
Criminal Contempt of Congress
While expressions of disapproval through censure or similar mechanisms do not carry direct legal
consequences, legal penalties potentially attach to an individual’s refusal to comply with a valid
congressional subpoena.159 If an agency official (or any other individual) refuses to appear before
a committee to provide testimony or produce
documents in response to a congressional subpoena,
the relevant house of Congress may seek to punish the witness for failure to comply with the
subpoena by certifying the case to a United States Attorney for criminal prosecution in federal
court.160 Generally speaking, the threat of such a referral can encourage agency compliance with
congressional oversight requests.161
Under federal statute, a person “summoned as a witness” to provide testimony or produce
documents
upon the request of either house of Congress and who is found to have “willfully”
refused to provide “pertinent” documents or testimony is guilty of a misdemeanor and may be
subject to a fine and imprisonment.162 Under both federal law and House and Senate practice, if
156 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977); see Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323
(1867) (declaring that “[a] bill of attainder is a legislative act which inflicts
punishment without a judicial trial”).
157 Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 852 (1984) (citing Nixon, 433 U.S. 473–
74).
158 A court’s “inquiry is not ended by the determination that [a bill] imposes no punishment traditionally judged to be
prohibited by the Bill of Attainder Clause.” Nixon, 433 U.S. 475. The Supreme Court “recognize[s] [two other]
necessary inquiries”: “whether the [bill in question], viewed in
terms of the type and severity of burdens imposed,
reasonably can be said to further nonpunitive legislative purposes” and “whether the legislative record evinces a
congressional intent to punish.” Selective Serv. Sys., 468 U.S. 852 (internal quotation marks and citation omitted). If
a legitimate, nonpunitive reason for a censure resolution is articulated by one or both houses—such as to ensure that
Congress’s position is known or to dissuade the official to whom the
resolution is directed from engaging in similar
conduct in the future—then the resolution likely would not qualify as a bill of attainder. Cf. Nixon, 433 U.S. 476
(“Where [nonpunitive] legislative purposes do not appear, it is reasonable to conclude that punishment of individuals
disadvantaged by the enactment was the purpose of the decisionmakers.”).
159 See 2 U.S.C. § 192.
160 For a comprehensive examination of congressional contempt and enforcement of
congressional subpoenas, see CRS
Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History,
Practice, and Procedure, by Todd Garvey [hereinafter Garvey, Congress’s Contempt Power].
161 See, e.g., H.R. REP. NO. 104-849, 9 (1996) (explaining that the White House delivered one thousand documents in
connection with the investigation into the White House’s dismissal of members of the White House Travel Office staff
on the same day the House was scheduled to vote on a contempt resolution regarding White House Counsel John
Michael Quinn); see also Mary Clare Jalonick, Justice Department Gives Congress New Classified Documents on
Russia Probe, CHI. TRIB., June 23, 2022 (reporting that the Department of Justice provided Congress with classified
information after “lawmakers had threatened to hold officials in contempt of Congress”).
162 2 U.S.C. § 192. Although Section 192
actually states that violations are punishable by a fine of up to $1,000, the
maximum fine for contempt under the statute was increased to $100,000 due to Congress’s subsequent classification of
offenses. See 18 U.S.C. § 3559(6) (“An offense that is not specifically classified by a letter grade in the section defining
it” is a Class A misdemeanor “if the maximum term of imprisonment authorized is . . . one year or less but more than
six months”); id. § 3571(b) (A
person found guilty of “a Class A misdemeanor that does not result in death” may be
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the House or Senate approves a criminal contempt citation, a report shall be certified “to the
appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury
for its action.”163
There are several legal limitations on Congress’s use of the criminal contempt statute. Like other
criminal provisions, the criminal contempt of Congress statute cannot be used to prosecute
constitutionally protected conduct.164 In addition, the subpoena that forms the basis for the
criminal contempt statute must be valid.165 In general, this means the subpoena must seek
information relevant to an investigation that is both within the issuing committee’s jurisdiction
and for
which the committee can articulate a legislative purpose.166 These subpoena-related
limitations are detailed later in this report in reference to the use of subpoenas by congressional
committees.167
There are additional limits on the use of the criminal contempt statute that arise from the manner
in which the criminal contempt of Congress provision is enforced. The executive branch has
taken the position—based on both statutory interpretation and the constitutional
separation of
powers—that federal prosecutors retain discretion in deciding whether to begin a criminal
contempt of Congress prosecution.168 That discretion, it has been asserted, extends to the decision
to present the matter to a grand jury.169 The executive branch has also asserted that “the contempt
of Congress statute was not intended to apply and could not constitutionally be applied to an
Executive Branch official who asserts the President’s claim of executive
privilege.”170 As a result,
there have been recent instances in which use of the criminal contempt of Congress provision
against an agency official has proven unavailing.171 For example, when the President directs or
fined no more than $100,000); see also id. § 3571(e) (If a statute imposes no fine or one that is lower than that
authorized by Section 3571 and “exempts the offense from the applicability of the fine otherwise applicable”
thereunder, the fine
or lack thereof set forth in the specific statute controls.).
163 2 U.S.C. § 194. See also Examining and Reviewing the Procedures That Were Taken by the Office of the U.S.
Attorney for the District of Columbia in Their Implementation of a Contempt Citation that Was Voted by the Full
House of Representatives against the Then-Administrator of the Environmental Protection Agency, Anne Gorsuch
Burford: Hearing Before the H. Comm. on Pub. Works and Transp., 98th Cong.,
30 (1983).
164 See e.g., Watkins v. United States, 354 U.S. 178, 215 (1957) (Fifth Amendment due process); Quinn v. United
States, 349 U.S. 155, 161–65 (1955) (Fifth Amendment privilege against self-incrimination); Barenblatt v. United
States, 360 U.S. 109, 125–34 (1959) (First Amendment).
165 2 U.S.C. § 192.
166 See, e.g., Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17, 20–21 (D.D.C. 1994) (holding that courts
“may only inquire as to
whether the documents sought by the subpoena are ‘not plainly incompetent or irrelevant to
any lawful purpose [of the Subcommittee] in the discharge of [its] duties,’” (quoting McPhaul v. United States, 364
U.S. 372, 381 (1960) (alterations in original)).
167 See infra “Committee Investigative Oversight.”
168 See, e.g.,
Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of
Executive Privilege, 8 Op. O.L.C. 101, 102 (1984) (asserting that the criminal contempt statute cannot be interpreted as
imposing a legal obligation on the executive branch).
169 See, e.g., Letter from Ronald C. Machen, Jr., United States Att’y, U.S. Dep’t of Justice, to John A. Boehner,
Speaker, U.S. House of Representatives (Mar. 31, 2015) (declining to present criminal
contempt citation to a grand
jury).
170 Prosecution for Contempt, 8 Op. O.L.C. 102. Specifically, the Office of Legal Counsel has asserted that
interpreting 2 U.S.C. § 194 as requiring the executive branch to initiate a criminal contempt prosecution under these
circumstances would “burden” and “nullif[y]” the President’s exercise of executive privilege and impermissibly
interfere with the “prosecutorial discretion of the Executive by directing the executive branch
to prosecute particular
individuals.” Id. 115.
171 The last such instance occurred in 2022 when the House approved a criminal contempt resolution against Attorney
General William Barr and Secretary of Commerce Wilbur Ross. H. Res 497, 116th Cong. (2022). The DOJ informed
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endorses non-compliance with a
subpoena, such as where the official refuses to disclose
information pursuant to the President’s decision that the information is protected by executive
privilege, past practice suggests that the Department of Justice (DOJ) is unlikely to pursue a
prosecution for criminal contempt.172 Even when the official is not acting the direction of the
President, the executive branch has argued that in deciding whether to pursue the case it retains
authority to make an independent
assessment of whether the official has violated the criminal
contempt statute.173
Inherent Contempt
The inherent contempt power is a constitutionally based power given to each house to arrest and
detain an individual found to be “obstruct[ing] the performance of the duties of the legislature.”174
Because the power extends to conduct that generally obstructs the exercise of legislative powers
by either the House or the Senate, the inherent contempt power can be
more broadly applied than
the criminal contempt statute.175 Despite its title, “inherent” contempt should perhaps more
accurately be characterized as an implied constitutional power.176 The Supreme Court has
repeatedly held that although the contempt power is not specifically granted by the Constitution,
it is nonetheless “incidental” to the legislative function and therefore implied from the general
vesting of legislative powers in Congress.177
the House it would not
take action on the contempt resolution, reasoning that the Department “will not prosecute an
official for contempt of Congress for declining to provide information subject to a presidential assertion of executive
privilege.” See Andrew Desidierio, DOJ Won't Charge William Barr, Wilbur Ross After Contempt Vote, POLITICO (July
24, 2022, 5:50PM), https://www.politico.com/story/2022/07/24/justice-william-barr-wilbur-ross-1432595.). For a
discussion of other times the
DOJ has refused to take action on criminal contempt of congress resolutions see CRS
Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey.
172 See Letter from James M. Cole, Deputy Att’y Gen’l, U.S. Dep’t of Justice, to John Boehner, Speaker of the House
(June 28, 2012); Prosecution for Contempt, 8 Op. O.L.C. 102.
173 See Letter from Ronald C. Machen, Jr., United States Att’y, U.S. Dep’t of Justice,
to John A. Boehner, Speaker,
U.S. House of Representatives (Mar. 31, 2015).
174 Jurney v. MacCracken, 294 U.S. 125, 147–48 (1935). The action that forms the basis for contempt must threaten the
ability of “the respective bodies to discharge their legitimate functions.” In re Chapman, 166 U.S. 661, 671 (1897)
(internal quotation marks omitted).
175 See J. Richard Broughton, Congressional Law Enforcement, 64 WAYNE L. REV. 95, 122 (2022) (opining that “the
inherent contempt remedy is available for conduct that offends the prerogatives or integrity of the legislative body toàn thân
broadly, beyond what would be prosecutable merely pursuant to the criminal contempt statute”). Like criminal
contempt, however, DOJ has asserted that Congress’s inherent contempt power cannot be used against “an executive
official who asserted a Presidential claim of executive privilege.” Prosecution for Contempt, 8 Op. O.L.C. 140 n.42;
see
also Response to Congressional Requests for Information Regarding Decisions made Under the Independent
Counsel Act, 10 Op. O.L.C. 68, 86 (1986) (opining that “the same considerations that inform the analysis of the
applicability of [2 U.S.C.] §§ 192 and 194 to Executive Branch officials are relevant to an exercise of Congress’
inherent contempt power”).
176 The contempt power is an implied aspect of the legislative power. Marshall v. Gordon, 243 U.S. 521, 537 (1917)
(noting that “it was yet explicitly decided that from the power to legislate given by the Constitution to Congress there
was to be implied the right of Congress to preserve itself, that is, to giảm giá by way of contempt with direct obstructions to
its legislative duties.”). As opposed to an inherent power, which is not tethered to a textual grant of authority, an
implied power is derived by implication from an enumerated power. See Scott C. Idleman, The Emergence of
Jurisdictional Resequencing in the Federal Courts, 87 CORNELL L. REV. 1, 42–43 (2001).
177 U.S. CONST. art. I, § 1. See generally Nixon v. Adm’r of Gen. Servs., 433 U.S. 435 (1977); Eastland v. United States
Servicemen’s Fund, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States,
354 U.S. 178 (1957); McGrain v. Daugherty, 273 U.S. 135, 174 (1927); see also Comm. on the Judiciary v. Miers, 558
F. Supp. 2d 53, 84
(D.D.C. 2008) (“[T]here can be no question that Congress has a right—derived from its Article I
legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of
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In an inherent contempt proceeding, the House or Senate can
authorize the arrest of a suspected
contemnor by the body toàn thân’s Sergeant Arms.178 If the individual is found in contempt, the body toàn thân
(either the House or the Senate) is empowered to imprison or otherwise detain the individual until
he or she complies with the congressional request or until the end of the legislative session.179
Despite its potential reach, the inherent contempt power has been described by some observers as
cumbersome, inefficient, and “unseemly.”180 Presumably
for these reasons, neither house of
Congress has initiated an inherent contempt proceeding since 1935.181
Tools Available to the House
Several non-statutory tools inhere exclusively to the House of Representatives. Some of these
tools have limited legal effect. For example, through resolutions of inquiry, the House may make
non-binding requests for information from certain executive branch officials. Other non-statutory
tools have weighty and, potentially, legally
consequential effects. The House may impeach
federal government officials for “high Crimes and Misdemeanors.”182 Moreover, it may initiate
certain types of civil actions in federal court, including to enforce compliance with congressional
such subpoenas.”).
178 See Thomas L. Shriner, Jr., Note, Legislative Contempt and Due Process: The Groppi Cases, 46 IND. L.J. 480. 490–
91 (1971). Historical evidence suggests “that the inherent contempt process can be
supported and facilitated by the
conduct of evidentiary proceedings and the development of recommendations the committee level.” Garvey,
Congress’s Contempt Power, supra note 160, 13.
179 Watkins, 354 U.S. 207 n.45. Arguably, Congress could jail or detain contemnors in facilities operated by the
Metropolitan Police
Department of the District of Columbia, as Congress has plenary authority over the District of
Columbia. See Garvey, Congress’s Contempt Power, supra note 160, 10 n.79 (citing U.S. CONST. art. I, § 8). There
is a question as to whether the Senate must release a contemnor from custody before the end of the legislative session,
as, unlike the House of Representatives—whose seats are up for election every two years—the Senate—which holds
elections for only one-third of its membership every two years—is considered to be a “continuing body toàn thân.” Id. 8 &
n.61.
180 See Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three
Powers, and Some Relationships, 1978 BYU L. REV. 231, 254 (writing that “[t]here is something unseemly about
a
House of Congress getting into the business of trial and punishment”); S. REP. NO. 95-170, 97 (1977) (describing
Congress’s inherent contempt, which requires a trial in the House or the Senate, as “time consuming and not very
effective”). Congress has arrested two executive branch officials in the exercise of its inherent contempt power. In
1879, the House of Representatives’s Sergeant Arms arrested and brought before the bar of the House George F.
Seward, United
States Minister to China. The House ordered Seward’s arrest due to his refusal to produce or testify
about books in his possession that allegedly contained evidence that he had stolen money from the Shanghai consulate
while serving as Consul General there. Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083,
1135–37 (2009). And in 1916, the House’s Sergeant Arms arrested H. Snowden Marshall, United States District
Attorney for the Southern
District of Tp New York, after Marshall wrote and publicly disclosed a “defamatory and
insulting” letter directed to the House subcommittee investigating him for misconduct. Id. 1137–38 (quoting
Marshall v. Gordon, 243 U.S. 521, 532 (1917)) (internal quotation marks omitted). The Supreme Court later ordered
Marshall’s release, holding that his letter “was not intrinsic to the right of the House to preserve the means of
discharging its legislative duties” and, therefore,
was outside the scope of the inherent contempt power. Marshall, 243
U.S. 546, 548.
181 Garvey, Congress’s Contempt Power, supra note 160, 12 (writing that, because of its drawbacks (e.g.,
inefficiency and unseemliness), “the inherent contempt process has not been used by either [house of Congress] since
1935”) (citing
4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, § 17, 139 n.7 (1977)).
H.R. Res. 1029, introduced in the 116th Congress, would have amended House rules to create a process by which the
inherent contempt power could be used to impose fines on those that refuse to comply with a committee subpoena.
182 U.S. CONST. art. I, § 2, cl. 5 (“The House of Representatives . . . shall have the sole Power of Impeachment.”); id.
art. II, § 4 (“The President,
Vice President and all civil Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”).
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subpoenas.183 (The Senate’s role in the impeachment
process and its ability to enforce
congressional subpoenas through civil litigation is covered separately in this report.184)
Resolutions of Inquiry
Under House Rule XIII, the House may request certain information from executive branch
officials through resolutions of inquiry.185 Resolutions of inquiry are simple resolutions that seek
factual information in the possession of the executive branch. They are limited in their effect,
however, given that they are
neither legally binding on the agency nor judicially enforceable;
instead, “[t]he effectiveness of such a resolution derives from comity between the branches of
government rather than from any elements of compulsion.”186 Resolutions of inquiry are given
privileged status on the House floor if they are directed toward the head of a department187 and
seek available facts, rather than opinions.188
Resolutions of inquiry are most typically used to request documents or
information that pertains
to foreign affairs, defense, or intelligence matters.189 They traditionally “request” information
from the President, while other officials are usually “directed” to provide the sought-after
information.190 Although resolutions of inquiry are not legally enforceable, they are often phrased
in mandatory terms when directed to persons other than the President.
Impeachment
The Constitution establishes a bifurcated process for impeachment
and removal, with the House
of Representatives accorded the “sole Power” to impeach federal government officials,191 and the
Senate given “the sole Power to try all Impeachments,”192 with the immediate consequence of
183 See, e.g., Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 64 (D.D.C. 2008) (holding that the court had
jurisdiction to hear action to enforce congressional subpoenas because Congress’s “subpoena power derives implicitly
from Article I of the
Constitution”). The Senate’s role in the impeachment process and its ability to enforce
congressional subpoenas through civil litigation are covered separately in this report.
184 See infra “Tools Available to the Senate.”
185 HOUSE RULE XIII, cl. 7. While the Senate is not prohibited from passing resolutions of inquiry, modern Senate
parliamentary practice does not provide for their use. The tool was last used by the Senate in 1926. See CRS Report
R40879, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2022, by Christopher M. Davis, 1 n.2
(noting that resolutions of inquiry are not common in the Senate, and that one was last used by that body toàn thân in 1926)
[hereinafter Davis, Resolutions of Inquiry] (citing RIDDICK’S SENATE PROCEDURE: PRECEDENTS AND PRACTICES 799,
1205 (1992)).
186 4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, § 2, 2304 (2d ed. 1994)
[hereinafter 4 DESCHLER’S PRECEDENTS].
187 HOUSE RULE XIII, cl. 7; see CHARLES W. JOHNSON ET AL., HOUSE PRACTICE, ch. 49, § 4, 847 (2022); Davis,
Resolutions of Inquiry, supra note 185, 6.
188
JOHNSON ET AL., supra note 187, Ch. 49, § 4, 847.
189 See, e.g., H.R. Res. 243, 116th Cong. (2022); CRS Report RL30240, Congressional Oversight Manual, coordinated
by Christopher M. Davis, Todd Garvey, and Ben Wilhelm [hereinafter Davis et al., Congressional Oversight Manual]
81-2; Davis, Resolutions of
Inquiry, supra note 185, 4.
190 4 DESCHLER’S PRECEDENTS, supra note 186, ch. 15, § 2, 2304. See, e.g., H.R. Res. 80, 104th Cong. (1995)
(requesting that the President supply the House with
documents pertaining to the Mexican economy “if not inconsistent
with the public interest”). On June 28, 2022, the House agreed to a resolution “insist[ing] that . . . the Department of
Justice fully comply with” subpoenas and other requests of the House Permanent Select Committee and Committee on
the Judiciary concerning “potential violations of the Foreign Intelligence Surveillance Act by personnel of the
Department of Justice and related matters.” H.R. Res. 970, 115th Cong.
(2022).
191 U.S. CONST. art. I, § 2, cl. 5.
192 Id. § 3, cl. 6.
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Senate conviction being an official’s removal from office.193 (The Senate’s power to try
impeachments is discussed below.194) The purpose underlying the impeachment process “is not
punishment;
rather, its function is primarily to maintain constitutional government.”195
The Constitution defines who may be impeached and stipulates the types of misconduct that rise
to the level of impeachable offenses. First, Article II, Section 4 permits only the impeachment of
“[t]he President, Vice President and all civil Officers of the United States.”196 While the
Constitution does not define the term “civil Officers,” past practice signifies that Congress
understands the term
to embrace federal judges and Cabinet-level executive branch officials.197
Congress has never impeached a non-Cabinet level official in the executive branch, so there is
some question whether such officials are “civil Officers.”198 While untested, non-officer
employees of the federal government (i.e., most individuals employed in the federal bureaucracy
who are not subject to appointment by the President or departmental heads) probably are not
193 Id. art. II, § 4.
194 See infra “The Senate’s Role in Impeachment: Trial and Removal.”
195 WM. HOLMES BROWN ET AL., A GUIDE TO THE RULES, PRECEDENTS, AND PROCEDURES OF THE HOUSE, ch. 27, § 1,
591 (2011).
196 Id. art. II, § 4.
197 See BROWN ET AL., supra
note 195, ch. 27, § 2, 593.
198 In determining who is a “civil Officer of the United States,” it is sometimes helpful to draw from Appointments
Clause jurisprudence. See CRS Report R44260, Impeachment and Removal, by Jared P. Cole and Todd Garvey, 5.
As discussed above, see supra
“Limitations Imposed by the Appointments Clause,” the Appointments Clause
establishes the methods for appointing “Officers of the United States,” U.S. CONST. art. II, § 2, cl. 2. It is likely that
principal “Officers of the United States”—those who must be appointed by the President with the advice and consent of
the Senate and who are generally
subject only to the President’s supervision—are impeachable, whether or not they
occupy a Cabinet-level position. “[I]nferior Officers”—those “Officers of the United States” whose appointments
Congress may vest in the President alone, a department head, or “the Courts of Law,” U.S. CONST. art. II, § 2, cl. 3, and
who are generally subject to supervision by principal officers, Edmond v. United States, 520 U.S. 651, 663 (1997)—
may also qualify as “civil Officers of the United
States.” Cf. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES § 790 (1833) (opining that “all officers of the United states [] who hold their appointments under
the national government, whether their duties are executive or judicial, in the highest or in the lowest departments, with
the exception of officers in the army and navy, are properly civil officers within the meaning of the constitution, and
liable to impeachment”) (emphasis added).
However, this proposition is far from certain, and some historical evidence
may suggest the contrary. See, e.g., Statement of Archibald Maclaine, North Carolina Convention on the Adoption of
the U.S. Constitution, cited in Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 YALE L.J. 1475,
1510 (1970) (remarking that “[i]t appears to me . . . the most horrid ignorance to suppose that every officer, however
trifling his office, is to be
impeached for every petty offense . . . . I hope every gentleman . . . must see plainly that
impeachments cannot extend to inferior officers of the United States”). For more information on who is subject to
impeachment, see Cole & Garvey, supra, 3-7.
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subject to impeachment.199 Nor have Members of Congress200 or military officers201 been
considered “civil Officers of the United States” under Article II, Section 4.
Second, the Constitution specifies the types of behavior that justify impeachment. A “civil
Officer” is not subject to impeachment (and removal) unless the officer has committed “Treason,
Bribery, or other high Crimes and Misdemeanors.”202 Treason
and bribery are well-defined
actions,203 but there is no definition of “high Crimes and Misdemeanors” in the Constitution or
statute. Congress has afforded the term a broad reading. For example, the House has described
“high Crimes and Misdemeanors” as embracing “misconduct that damages the state and the
operations of government institutions.”204 While grounds for impeachment “do not all fit neatly
and logically into categories,”205 there are least three general categories
of conduct that, based
on past congressional practice, are thought to constitute grounds for impeachment:206 (1)
exceeding or abusing the powers of office;207 (2) behavior incompatible with the functions and
purpose of office;208 and (3) misuse of office for improper purpose or for personal gain.209
While a powerful tool to influence executive branch action—and one that requires only a simple
majority voting in favor—decisions by the House to impeach executive officials have
been rare.
In total, only three Presidents and one thành viên of the Cabinet have been impeached by the
House.210 None of those officials were convicted in the Senate.
199 The Supreme Court, in interpreting the Appointments Clause, has distinguished between officers (both principal and
inferior), who exercise “significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U.S. 1,
126 (1976) (per curiam), and employees, or non-officers who are “lesser
functionaries subordinate to the officers of the
United States,” id. 126 n.162. See supra “Limitations Imposed by the Appointments Clause.” Assuming, just as the
previous footnote does, that Appointments Clause jurisprudence serves as a guide in deciding who is a civil officer
subject to impeachment, it would appear that “employees,”
as non-officers, are not subject to impeachment.
200 While the House did impeach Senator William Blount in 1797, the Senate ultimately determined that it lacked
jurisdiction to try him. BROWN ET AL., supra note 195, ch. 27, § 4, 596. Blount’s impeachment stemmed from his
plan “to launch a military expedition that would wrest Florida and
Louisiana from Spain and deliver it to England a
time when both were war and the United States was neutral.” RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL
PROBLEMS 214 (1973). The House has never again voted to impeach a Member of Congress; accordingly, the Blount
impeachment appears to stand for the proposition that Members of Congress are not “civil Officers of the United
States” subject to impeachment. CURRIE, supra
note 14, 281.
201 BROWN ET AL., supra note 195, ch. 27, § 2, 592.
202 U.S. CONST. art. II, § 4.
203 See id. art. III, § 3, cl. 1 (treason); 18 U.S.C. §§ 201 (bribery of public officials and
witnesses), 2381 (treason).
204 H.R. REP. NO. 100-810, 6 (1988).
205 See STAFF OF H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT
21 (Comm. Print 1974) [hereinafter CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT].
206 Id. 18.
207 For example, President Andrew Johnson was impeached in 1868 for, among other things, removing Secretary of
War Edwin Stanton from office in violation of the Tenure of Office Act,
which prohibited the President from removing
Members of his Cabinet without Senate approval. Id. Such removal restrictions were later declared unconstitutional by
the Supreme Court in Myers v. United States. 272 U.S. 52 (1926); see supra “Limitations Imposed by Principles of
Presidential Control.”
208 Judge John Pickering’s
impeachment is an example of this category. Judge Pickering was impeached in 1803 for,
among other things, “appearing on the bench during [a] trial in a state of intoxication and using profane language.”
BROWN ET AL., supra note 195, ch. 27, § 4, 597.
209 See infra
note 210 (discussing Secretary of War William Belknap’s impeachment in 1876 for appointing a trader to
a position a military post in return for payment.)
210 Andrew Johnson, William Clinton, and Donald Trump have been the only Presidents to be impeached. William W.
Belknap, Secretary of War under President Ulysses S. Grant, was the only
Cabinet thành viên to be impeached. In 1876,
the House impeached Belknap for accepting payments in return for granting an appointment to a trading post. See
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House Lawsuits
The House has also used the federal courts as a way to direct agency action.211 That
said, because
of standing and other justiciability issues, the House’s use of the courts as a conduit for
controlling agencies appears principally related to subpoena enforcement, and possibly a limited
class of executive expenditures, rather than to broader disagreements over the Executive’s
implementation of the law.212
As a threshold matter, House subpoena enforcement lawsuits generally must be authorized in one
form or another.213 That authorization has often been
provided through a simple House resolution
granting the committee that issued the subpoena the authority to seek a court order declaring that
the subpoena recipient is legally required to comply with the demand for information.214
However, the House has authorized subpoena enforcement suits in other ways, including through
the Bipartisan Legal Advocacy Group.215
CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT, supra
note 205, 20. Belknap retired two hours before
he was impeached. Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49
DUKE L.J. 1, 53 (1999). After a five-month trial, the Senate voted to acquit the former Secretary of War. 3 HIND’S
PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§
2444–2468, 902–947 (1907); Turley,
supra, 54.
211 For a more thorough discussion of Congress’s ability to participate in litigation see CRS Report R45636,
Congressional Participation in Litigation: Article III and Legislative Standing, by Kevin M. Lewis.
212 See, e.g., Comm. on the Judiciary of the United States House of Representatives v. McGahn, 968 F.3d 755, 760
(D.C. Cir. 2022) (holding that the House has standing to seek judicial enforcement
of its subpoenas); Comm. See, e.g.,
Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 3 (D.D.C. 2013) (exercising jurisdiction over a
civil suit filed by a House committee and ordering compliance with the committee subpoena); Comm. on the Judiciary
v. Miers, 558 F. Supp. 2d 53, 65–99 (D.D.C. 2008) (same). But see U.S. House of Representatives v. Burwell, 130 F.
Supp. 3d 53, 58 (D.D.C. 2015) (exercising jurisdiction over a civil suit filed by the
House of Representatives to enforce
a violation of the Appropriations Clause). The D.C. Circuit has been wrestling with the House’s authority to judicially
enforce its subpoenas in the pending case of Committee on the Judiciary v. McGahn. In McGahn, the House initiated a
suit to enforce a committee subpoena for testimony from former White House Counsel Don McGahn. A three-judge
panel initially dismissed the case. Breaking from prior district court decisions, the
circuit panel held that the judiciary
“lack[ed] authority to resolve disputes between the Legislative and Executive Branches until their actions harm an
entity ‘beyond the [Federal] Government.’” Comm. on the Judiciary of the United States House of Representatives v.
McGahn, 951 F.3d 510, 516 (D.C. Cir. 2022). That opinion, however, was reversed by an en banc panel of the D.C.
Circuit, which held that neither separation of powers considerations nor principles of standing barred
the courts from
hearing the House's lawsuit. 968 F.3d 755, 760-61 (D.C. Cir. 2022). On remand, however, the three-judge panel again
rejected the House's lawsuit, this time holding that the House lacked a cause of action. 973 F.3d 121, 123 (D.C. Cir.
2022). That opinion has been vacated and is pending appeal back to the en banc D.C. Circuit. No. 19-5331, 2022 U.S.
App. LEXIS 32573 (D.C. Cir. Oct. 15, 2022). On May 11, 2022, the parties announced that they had reached an
“agreement in principle on an accommodation” and will ask the circuit court to remove the case from the oral argument
calendar. Joint Status Report 1, Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. May, 5, 2022).
213 See McGahn, 968 F.3d 775-77; Holder, 979 F. Supp. 2d 17; Miers, 558 F. Supp. 2d 64. See also Lewis,
supra
note 211 24 (“Courts have routinely concluded that congressional plaintiffs who obtain authorization to sue
before initiating litigation are significantly more likely to have standing.”). One court has described the presence of
authorization as a “key factor” in determining whether a congressional plaintiff has standing to assert an institutional
injury. Miers, 558 F. Supp. 2d 71. In Raines v. Byrd, the Supreme Court severely limited the ability of individual
Member to use lawsuits to challenge agency action absent authorization from their parent body toàn thân. 521 U.S. 811, 829–30
(1997). See infra “Tools for Individual Members.”
214 See, e.g., H.R. Res.
706, 112th Cong. (2012); H.R. Res. 980 110th Cong. (2008).
215 See H.R. Res. 430, 116th Cong. (2022) (resolving that “the chair of each standing and permanent select committee,
when authorized by the Bipartisan Legal Advisory Group, retains the ability to initiate or intervene in any judicial
proceeding before a Federal court on behalf of such committee, to seek declaratory judgments and any and all ancillary
relief, including injunctive relief, affirming the duty of the
recipient of any subpoena duly issued by that committee to
comply with that subpoena”).
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Congress’s Authority to Influence and Control Executive Branch Agencies
Civil enforcement cases brought by an authorized committee, especially if triggered by an agency
official’s refusal to produce documents or testimony, generally require a court to evaluate both
Congress’s oversight powers and the
official’s articulated justification for non-compliance with
the subpoena.216 This typically will include an evaluation of whether the subpoena was validly
issued and whether the witness has asserted a defense—such as a constitutionally based right or
privilege—that would excuse compliance with the subpoena.217 If the lawsuit succeeds, the court
will generally order compliance with the subpoena and disclosure of the information. For
example, in 2022, the D.C. federal district
court issued an opinion in Committee on Oversight and
Government Reform v. Lynch instructing DOJ to comply with a House committee subpoena.218
In addition to subpoena enforcement lawsuits, a federal district court has held that the House has
standing to challenge expenditures of funds made without an appropriation from Congress.219 In
United States House of Representatives v. Burwell, the district court held that if an agency’s
expenditure of funds is taken in
violation of the “specific proscription” in Article I that “[n]o
Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,”
then the House has standing to remedy that constitutional violation.220 However, that same
opinion also held that the House does not suffer an injury adequate to obtain standing when it
challenges an agency’s “implementation, interpretation, or execution” of the law.221
Tools Available to the Senate
Some
oversight tools are available exclusively to the Senate. Through its “advice and consent”
responsibility, the Senate plays an integral role in the performance of two constitutionally
prescribed executive functions—the appointment of important government officials and
completion of treaties between the United States and foreign nations or international bodies.222 In
addition, if an official is impeached by the House, the Senate has the exclusive power to try and,
upon
conviction, remove the official from office.223 And like the House, the Senate may seek to
enforce congressional subpoenas through civil actions in federal court, but unlike the House, the
Senate practice is authorized and shaped by federal statute.
216 See Miers, 558 F. Supp. 2d 56 (noting that a court must stand “ready to fulfill the essential judicial role to ‘say
what the law is’ on specific assertions of [] privilege that may be presented”).
217
See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974)
(focusing on the “sufficiency of the Committee’s showing of need”); Comm. on Oversight & Gov’t Reform v. Lynch,
156 F. Supp. 3d 101, 104 (D.D.C. 2022) (focusing on the various privileges asserted by the agency).
218 Lynch, 156 F. Supp. 3d 104, 107 (holding that the agency’s arguments for confidentiality must yield to the
committee’s need for the
information).
219 United States House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015). Although the court’s
holding does not explicitly apply to the Senate, the court’s reasoning potentially could extend to lawsuits authorized by
that body toàn thân, given the court’s characterization of any injury stemming from an Appropriations Clause violation being
“arguably suffered by the House and Senate alike,” as they each share in the power of the purse. Id. 71
n.21.
220 Id.; U.S. CONST. art. I, § 9, cl. 7.
221 Burwell, 130 F. Supp. 3d 58. After finding that the House had standing, id. 81, the district court held that the
agency in question had, in fact, spent funds without an authorization of appropriations, United States House of
Representatives v. Burwell, 185 F. Supp. 3d 165, 168 (D.D.C. 2022), appeal dismissed, United States House of
Representatives v. Azar, No. 16-5202 (D.C. Cir. May 16, 2022)
(per curiam) (dismissing appeal and remanding case to
the district court for a ruling on parties’ motion for relief under Federal Rule of Civil Procedure 60(b) (Grounds for
Relief from a Final Judgment, Order, or Proceeding)).
222 U.S. CONST. art. II, § 2, cl. 2.
223 Id. art. I, § 3, cl. 6.
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Senate
Civil Enforcement of Subpoenas
Like the House, the Senate may seek to enforce a subpoena by instituting civil proceedings in
federal court. While the House’s civil enforcement of subpoenas may occur on an ad hoc basis, a
federal statute provides procedures for subpoena enforcement by the Senate.224 That statute is
severely limited with regard to its application against an agency official. By statute, the U.S.
District Court for the District of Columbia is granted
jurisdiction to hear claims “to secure a
declaratory judgment concerning the validity of, or to prevent a threatened refusal or failure to
comply with, any subp[o]ena or order issued by the Senate or committee or subcommittee”
thereof.225 Filing such a lawsuit requires authorization from the Senate as a whole.226 The Senate
provision, however, does not apply to federal officials or employees who refuse to comply with a
subpoena based on an assertion of a properly authorized
governmental privilege.227 Despite the
limiting terms of the statute, it would appear arguable that, the Senate may retain the authority to
seek enforcement of a subpoena on an ad hoc basis through approval of a Senate resolution
authorizing such a lawsuit.228
Advice and Consent: Nominations and Treaties
The Constitution conditions the full performance of two essential executive branch functions on
the assent of the Senate. The Appointments Clause and the Treaty
Clause respectively authorize
the President to make certain appointments to important governmental positions and to finalize
treaties with foreign nations or international bodies on behalf of the United States only after
receiving the “advice and consent” of the Senate.229 “Advice and consent” in both contexts has
been understood in practice to require senatorial approval, but not necessarily consultation.230
224 Ethics in Government Act, Pub. L. No. 95-521, §§ 703, 705,
92 Stat. 1877–80 (1978) (codified 2 U.S.C. §§
288b(b), 288d; 28 U.S.C. § 1365).
225 28 U.S.C. § 1365(a). The Senate may designate any attorney to represent it in such proceedings, id. § 1365(d), but
civil actions are generally brought by the Senate Legal Counsel. See 2 U.S.C. § 288b(b). Like subpoena enforcement
lawsuits filed by the House, a reviewing court would likely have to assess the validity of a Senate-issued subpoena and
balance Congress’s interest
in obtaining the information sought with the agency official’s justification for non-
compliance.
226 2 U.S.C. § 288b. See, e.g., S. Res. 377, 114th Cong. (2022) (authorizing a subpoena enforcement action).
227 28 U.S.C. § 1365(a) (“This section shall not apply to an action to enforce, to secure a declaratory judgment
concerning the validity of, or to prevent a threatened refusal to comply with, any subpoena or order issued to an officer
or employee of the
executive branch of the Federal Government acting within his or her official capacity, except that
this section shall apply if the refusal to comply is based on the assertion of a personal privilege or objection and is not
based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of
the Federal Government.”).
228 See Tara Leigh Grove & Neal Devins, Congress’s (Limited) Power to Represent Itself in Court, 99
CORNELL L. REV.
571, 631 n.377 (noting that there is “some doubt” as to the limitations worked by the Senate statute). In a 2013 decision
regarding a House subpoena, the U.S. District Court for the District of Columbia noted that the Senate statute
“specifically states that it does not have anything to do with cases involving a legislative effort to enforce a subpoena
against an official of the executive branch withholding records on the grounds of a governmental privilege.”
Comm. on
Oversight & Gov't Reform v. Holder, 979 F. Supp. 2d 1, 18 (D.D.C. 2013). As such, the court suggested that it could
look to the general federal question statute for jurisdiction. Id. (citing 28 U.S.C. § 1331, which provides that “[t]he
[U.S.] district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States”). But see Comm. on the Judiciary v. McGahn, 973 F.3d 121, 123 (D.C. Cir.
2022) vacated by
Comm. on the Judiciary of the United States House of Representatives v. McGahn, No. 19-5331, 2022 U.S. App.
LEXIS 32573, *6 (D.C. Cir. Oct. 15, 2022) (suggesting that “the Senate statute expressly excludes suits that involve
executive-branch assertions of ‘governmental privilege’”).
229 U.S. CONST. art. II, § 2, cl. 2.
230While the Framers may have intended for the Senate to serve in a consultative role during treaty negotiations (as
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Both Clauses, therefore, afford the Senate unique opportunities to influence and exert control
over the execution of important executive branch powers, especially by conditioning or
withholding consent in order to obtain executive branch compliance with
congressional desires.
As noted, the Appointments Clause establishes that principal “Officers of the United States,” and
those “inferior Officers” whose appointments have not been vested in the President alone,
department heads, or “the Courts of Law,” must be appointed by the President with the advice and
consent of the Senate.231 Because of recent changes in Senate rules, presidential nominations are
not subject to filibuster, and so as a practical matter, the support of a
simple majority of Senators
is enough to confirm a presidential nomination.232 There are more than 1,200 executive branch
positions that, by law, require Senate approval.233 When an officer holding an advice-and-consent
position leaves office before his or her successor is chosen, an acting official may temporarily
perform the duties of the vacant office without receiving senatorial approval. The ability of
government officials to perform the duties of a vacant office is
generally governed by the Federal
Vacancies Reform Act of 1998 (Vacancies Act),234 although other statutes may supplement or
supersede that statute.235
The Senate’s advice-and-consent function under the Appointments Clause serves as a significant
check on the executive branch, one which the Senate may use not only to approve or reject
presidential nominees, but also to influence who is nominated for certain important offices and
what a nominee will do in office if
confirmed. For example, the threat that a simple majority of
Senators will block a presidential nominee can be used by the Senate to persuade the President to
nominate an individual agreeable to most Senators.236 In addition, during the confirmation
opposed to merely supplying or withholding its consent once negotiations had completed), the Senate has not served in
such a capacity since the early days of George Washington’s presidency. See CRS Report RL32528,
International Law
and Agreements: Their Effect upon U.S. Law, by Stephen P. Mulligan, 3–4 (explaining that “advice and consent”
may have been “intended . . . to be separate aspects of the treaty-making process,” but that President Washington and
subsequent Presidents “soon declined to seek the Senate’s input during the [treaty] negotiation process”). See also
Beermann, supra
note 74, 110 (writing that, in the context of presidential appointments, “[a]dvice and consent is
understood as majority approval in the Senate”); Howard R. Sklamberg, The Meaning of “Advice and Consent”: The
Senate’s Constitutional Role in Treaty Making, 18 MICH. J. INT’L L. 445, 446 (1997) (writing that ‘“[a]dvice and
consent’ [in
relation to the President’s treaty-making power] has come to mean [approval of] ‘ratification’”).
231 U.S. CONST. art. II, § 2, cl. 2.
232 Beermann, supra note 74, 110.
233 CRS Report R41872, Presidential Appointments, the Senate’s Confirmation Process, and Changes Made in the
112th Congress, by Maeve P. Carey, 1
(noting that as of 2012 “there were approximately 1,200–1,400 positions in
the executive branch requiring the Senate’s advice and consent”); see STAFF OF S. COMM. ON HOMELAND SEC. & GOV’T
AFFAIRS, 114TH CONG., POLICY AND SUPPORTING POSITIONS (PLUM BOOK) (Comm. Print. 2022).
234 5 U.S.C. §§ 3345–3349d. For more information on the Vacancies Act, see CRS Report R44997, The Vacancies Act:
A Legal Overview, by Valerie C. Brannon. In addition to the Vacancies Act, the
Recess Appointments Clause allows
the President to make a temporary appointment to a vacant advice-and-consent office without the consent of the Senate
while the Senate is in recess. See U.S. CONST. art. II, § 2, cl. 3 (authorizing the President to “fill up all Vacancies that
may happen during the Recess of the Senate, by granting Commissions which shall expire the End of their next
Session”); Nat’l Labor Relations Bd. v. Noel Canning, 134 S. Ct. 2550 (2014).
235
See 5 U.S.C. § 3347(a)(1) (providing that the Vacancies Act is “the exclusive means for temporarily authorizing an
acting official to perform the functions and duties of any [advice-and-consent] office of an Executive agency (including
the Executive Office of the President, and other than the Government Accountability Office) . . . unless” another statute
“expressly” allows “an officer or employee to perform the functions and duties of a specified office temporarily in an
acting capacity”). But see id. § 3347(b) (providing that subsection (a)(1) does not apply where a “statutory provision
provid[es] general authority to the head of an Executive agency . . . to delegate duties statutorily vested in that agency
head to, or to reassign duties among, officers or employees of such Executive agency”) (emphasis added). See
generally Brannon, supra
note 234.
236 See Beermann, supra note 74, 110–11.
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process, the Senate can seek to elicit commitments from a nominee that he or she will seek to
achieve certain policies or abide by certain principles if confirmed.237 The power of this latter tool
was perhaps most dramatically exemplified in connection with the so-called “Saturday Night
Massacre” of 1973, in which the Attorney General and Deputy Attorney General under President
Richard Nixon resigned, successively, after being directed by the
President to fire the Watergate
special prosecutor, Archibald Cox. In his resignation letter, Attorney General Elliot Richardson
asserted that his decision to resign was based not only on the fact that he had empowered the
special prosecutor with a large measure of independence and imposed limitations on his removal,
but also because, “[a]t many points throughout the confirmation hearings [for Attorney General],
[he had] reaffirmed [his] intentions to assure the independence
of the special prosecutor.”238
Similarly, the Treaty Clause of the Constitution stipulates that the President may not ratify a treaty
between the United States and a foreign nation or international body toàn thân without senatorial consent.
The Clause states that the President “shall have the Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two-thirds of the Senators present concur.”239 In requiring
that the President secure the consent of two-thirds
of available Senators, the Clause may pose a
steeper obstacle to the effectuation of executive branch responsibilities than does the
Appointments Clause, which requires only the approval of a majority of Senators to a presidential
nomination.240
The advice-and-consent function in connection with the President’s treaty-making power enables
the Senate to serve as a substantial check on the execution of the President’s foreign relations
power.241 The Senate, for example,
may withhold its consent and therefore prevent the President
from ratifying a treaty. It may also supply its consent subject to certain conditions (e.g.,
specifying that implementing legislation is needed to give domestic legal effect to the treaty’s
237 See id. 111 (writing that “approval of appointments can be used as leverage over related and even completely
unrelated areas in which the Senate has an interest in the execution of the laws”). For example, prior to
his confirmation
as Assistant Attorney General in charge of OLC, Steven Engel agreed to review after taking office an OLC opinion—
Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. 1 (2022)—
which asserts that individual Members of Congress donot, absent specific authorization, have authority to engage in
“oversight” of the executive branch. See 163 CONG. REC. S4077, S4079 (daily ed. July 19, 2022).
238
See Letter from Elliot Richardson, Att’y Gen’l, U.S. Dep’t of Justice, to Richard M. Nixon, President, United States
of America (Oct. 20, 1973), reprinted in Ziegler Statement and Texts of Letters, N.Y. TIMES, Oct. 21, 1973, 61.
Those “intentions” may have been given even greater weight by the fact that during his confirmation hearings,
Richardson worked directly with the Senate Judiciary Committee to develop a document that ultimately formed the
basis for
Richardson’s establishment, by regulation, of the Office of Watergate Special Prosecutor. See Nomination of
Elliot L. Richardson to be Attorney General, Before the Senate Committee on the Judiciary, 93d Cong., 1st Sess. 144-
46 (1973).
239 U.S. CONST. art. II, § 2, cl. 2.
240 Notably, however, while the finalization of a treaty requires Senate consent, it is the Executive who negotiates and
ultimately ratifies the treaty. See Zivotofsky v. Kerry, 135 S. Ct.
2076, 2086 (2015) (“The President has the sole power
to negotiate treaties, . . . and the Senate may not conclude or ratify a treaty without Presidential action.”).
241 The advice-and-consent requirements of the Treaty Clause are not constitutionally required to effectuate
international agreements that take the form of executive agreements under U.S. law. However, legislation may be
required to authorize or implement many executive agreements. Moreover, Congress through
legislation could
potentially modify or abrogate the domestic legal effect of any agreement addressing matters which do not fall within
the President’s exclusive constitutional purview. For further discussion, see Mulligan, supra note 230, 6–7. Congress
may employ other tools to conduct oversight over non-treaty international agreements,
including legislation that
requires that the executive branch consult with Congress before or during negotiations, as well as oversight hearings.
CONG. RESEARCH SERV., 106TH CONG., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED
STATES SENATE 242–43 (Comm. Print 2001). For more information, see id. 209–43.
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provisions, or making Senate approval conditional upon the reservation that the United States
does not agree to be legally bound by a particular treaty provision).242
The Senate’s Role in Impeachment: Trial and Removal
As stated above,243 the impeachment and removal process involves distinct roles for both houses
of Congress. If the House votes to impeach an official, it is the Senate that then has “the sole
Power to try all
Impeachments.”244 The Vice President, as President of the Senate, or the Senate
Pro Tempore generally presides over impeachment trials, although the Chief Justice of the United
States presides when the President has been impeached.245 If, after the trial, two-thirds of the
Senate votes to convict the official based on any of the articles of impeachment, the official will
be removed from office.246 After the vote to convict and remove, the Senate may, in its discretion,
hold another vote to disqualify the official from “hold[ing] and enjoy[ing] any Office of honor,
Trust or Profit under the United States.”247 Unlike conviction and removal, however, which
requires the approval of two-thirds of the Senators present, a later vote to disqualify an official
from holding future federal office requires only a majority in favor.248 The Senate may not impose
any punishment other than removal and disqualification from holding future federal office.249
While the full Senate votes on whether to convict an impeached official, under Impeachment
Rule XI, the Senate may order the Presiding Officer of the Senate to establish a committee of
Senators to receive evidence and take testimony prior to the vote.250 This procedure was
challenged in Nixon v. United States, which concerned the impeachment and conviction in the
Senate of Walter L. Nixon, Jr., former Chief Judge of the U.S. District Court for the Southern
District of Mississippi.251 After a criminal trial, Nixon was found guilty of making false
statements to a grand jury and was sentenced to prison.252 He was then impeached by the House
and tried and convicted by the Senate. During the proceedings in the Senate, the Senate
established a committee under Impeachment Rule XI to receive evidence.253 Following his
senatorial conviction, Nixon brought suit in federal court, arguing that Rule XI violated the
constitutional
prescription that the Senate “try” impeachments because, when it is invoked, the
full Senate does not take part in evidentiary hearings.254
The Supreme Court held that the former judge’s claim posed a nonjusticiable political question
and was therefore not subject to judicial review.255 The Court decided that “the sole Power” to try
242 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 303 cmt. d, 314(1).
243 See supra
“Impeachment.”
244 U.S. CONST. art. I, § 3, cl. 6.
245 Id.
246 Id. cls. 6, 7.
247 Id. cl. 7.
248 See 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 512, 708 (1936).
249 U.S. CONST. art. I, § 3, cl. 7.An individual convicted by the Senate, however, may be criminally prosecuted for the
same
facts underlying his impeachment and conviction. See id. (providing that “the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”).
250 S. MANUAL: IMPEACHMENT RULES, RULE XI.
251 506 U.S. 224, 226 (1993).
252 Id.; see United States v. Nixon, 816 F.2d 1022, 1023 (5th Cir. 1987).
253 Nixon, 506 U.S. 227.
254 Id. 228.
255 Id. 237–38.
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impeachments “is reposed in the Senate and nowhere else” and concluded that the word “try”
“lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s
action.”256 Instead, the responsibility and authority for interpreting “try” lay with the Senate.257
The Supreme Court expressed concern with the
uncertainty “and the difficulty of fashioning
relief” posed by allowing judicial challenges to the Senate’s impeachment procedures.258 In
holding that such challenges could not be entertained on judicial review, Nixon stands for the
practical proposition that the Senate has significant discretion over the procedures it employs
during impeachment trials.
Tools for Congressional Committees
Among the tools to influence agency action available to congressional
committees of both houses
are the power of investigative oversight and the use of committee report language. The efficacy of
these tools, which provide committees with “enormous influence over executive branch doings,”
reflects both committees’ substantial role in the legislative system and their unique relationship
with the agencies they oversee.259 As one court has aptly described, “[o]fficials in the executive
branch have to take . . . committees into account and keep them
informed, respond to their
inquiries, and it may be, flatter and please them when necessary.”260
Committee Investigative Oversight
Congressional committees can significantly influence agency action through investigative
oversight. These investigations may uncover and publicize agency abuse of authority or
maladministration, prompting a legislative response or immediate change in policies by the
investigated agency itself. 261 Hearings may also provide a committee
the opportunity to give an
agency guidance on how the committee believes an agency should carry out its functions.
Congress’s power to conduct investigations complements its more prominent power to legislate
and appropriate funds.262 Although the “power of inquiry” was not expressly provided for in the
Constitution, it has been acknowledged as “an essential and appropriate auxiliary to the
legislative function” derived implicitly from Article I’s vesting of “legislative
Powers” in the
256 Id. 229–30 (quoting U.S. CONST. art. I, § 3, cl. 6).
257 Id. 237.
258 Id. 236.
259 Alexandria v. United States, 737 F.2d 1022, 1026 (Fed. Cir. 1984).
260 Id.
261 For example, one study has found that agency “infractions that are the subject of hearings are approximately 22%
less likely to reoccur than similar infractions for which congressional committees and subcommittees choose not to
hold hearings.”
Brian D. Feinstein, Avoiding Oversight: Legislator Preferences and Congressional Monitoring of the
Administrative State, 8 J.L. ECON. & POL’Y 23, 28 (2011). Committee investigations of the Teapot Dome scandal
provide a forceful example of the investigative power’s potential impact. See JAMES BURNHAM, CONGRESS AND THE
AMERICAN TRADITION 232 (1965) (“As a traceable result of the Teapot Dome investigations in the 1920’s, three
Cabinet members were compelled to
resign, of whom one went later to jail and one died while awaiting trial; two
witnesses committed suicide; four oil millionaires skipped the country, and numerous other individuals were jailed or
fined sums up to several million dollars.”).
262 Barenblatt v. United States, 360 U.S. 109, 111 (1959); WOODROW WILSON, CONGRESSIONAL GOVERNMENT 303
(15th ed. 1913) (asserting that the “informing function of Congress should be preferred even to its legislative
function”). See
also J. William Fulbright, Congressional Investigations: Significance for the Legislative Process, 18 U.
CHI. L. REV. 440, 441 (1951) (describing the power of investigation as “perhaps the most necessary of all the powers
underlying the legislative function”).
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Congress.263 The prerogative to
gather information related to legislative activity is critical in
purpose, as Congress “cannot legislate wisely or effectively in the absence of information,” and
extensive in scope, as Congress is empowered to obtain pertinent testimony and documents
through investigations into a wide array of matters that relate to the legislative function.264
Specifically, acting within relevant constitutional and jurisdictional constraints,265 a committee
may initiate investigations, hold
hearings, request testimony or documents from witnesses, and,
when either a government or private party is not forthcoming, compel compliance with the
committee’s requests through the issuance and enforcement of subpoenas.266
Because each house of Congress has largely delegated its constitutional oversight powers to its
standing committees, congressional oversight investigations typically are carried out by
congressional committees and subcommittees.267 House and Senate
rules provide each committee
with a specific jurisdiction, the authority to hold hearings, and the power to require compliance
with requests for information through subpoena.268 In the House, most standing committees have
also been vested with the authority to take sworn testimony through staff depositions.269 Although
hearings, subpoenas, and depositions are available tools, most investigative oversight into
executive agencies is conducted through informal staff-to-staff
contacts between committees and
agencies.270
Congress has also enacted a series of laws that buttress committee investigative powers. Along
with the criminal contempt statute already discussed,271 the federal perjury, false statements, and
obstruction of congressional proceeding statutes also criminalize conduct that may inhibit a
congressional committee’s ability to exercise its oversight power.272 That said, congressional
committees are not empowered to enforce, or
even trigger enforcement of these provisions.
263 See McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (“We are of opinion that the power of inquiry—with process
to enforce it—is an essential and appropriate auxiliary to the legislative function.”).
264 Id. 175 (“A legislative body toàn thân cannot legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the legislative body toàn thân
does not itself possess
the requisite information—which not infrequently is true— recourse must be had to others who do possess it.”).
Congress’s oversight function is subject to a variety of legal limitations. See Eastland v. U.S. Servicemen’s Fund, 421
U.S. 491, 504 n.15 (1975) (“Although the power to investigate is necessarily broad it is not unlimited . . . . We have
made it clear [] that Congress is not invested with a ‘“general” power to inquire into private
affairs.’ The subject of any
inquiry always must be one ‘on which legislation could be had.’” (citations omitted)).
265 See Watkins v. United States, 354 U.S. 178, 206 (1957) (“Plainly these committees are restricted to the missions
delegated to them”).
266 See McGrain v. Daugherty, 373 U.S. 135, 174 (1927) (recognizing that “[t]he power of inquiry—with process to
enforce it is an essential and appropriate auxiliary to the legislative function”).
267
See SENATE RULE XXVI; HOUSE RULE XI. In addition, both the House and Senate have times established
temporary select committees to carry out specific investigations. A select committee’s authorizing resolution often
provides the committee with investigative powers such as the power to issue subpoenas. See H.R. Res. 567, 113th
Cong. (2014) (establishing a select committee to investigate the 2012 attacks on U.S. facilities in Benghazi, Libya).
268 SENATE RULE
XXVI(1) (“Each standing committee, including any subcommittee of any such committee, is
authorized to hold such hearings . . . to require by subpoena or otherwise the attendance of such witnesses and the
production of such correspondence, books, papers, and documents, to take such testimony . . . . Each such committee
may make investigations into any matter within its jurisdiction . . . .”); HOUSE RULE XI(m)(1) (authorizing committees
“to require, by subpoena or otherwise, the
attendance and testimony of such witnesses and the production of such
books, records, correspondence, memoranda, papers, and documents as it considers necessary”).
269 See H.R. Res. 8, 117th Cong. §3(b) (2022) (committee deposition authority).
270 Beermann, supra note 74, 122 (“Oversight is the public face of a vast network of
contacts between members of
Congress (and their staffs) and agency officials, including agency heads (and their staffs).”).
271 2 U.S.C. § 192.
272 18 U.S.C. § 1621 (perjury); id. § 1001 (false statements); id. § 1505 (obstruction of a congressional proceeding).
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Instead, enforcement—as with all
criminal provisions—is carried out by the executive branch.
With regard to perjury, false statements, and obstruction, a committee may refer a possible
offense to DOJ with a recommendation that an investigation be initiated, but the ultimate decision
on prosecution is retained by the executive branch.273
Federal law does, however, directly empower committees to obtain an immunity order from a
federal court to compel a witness who has asserted the Fifth Amendment privilege
against self-
incrimination to testify.274 Under federal law, a court order can be obtained from a United States
district court following a two-thirds affirmative vote in the committee conducting the
investigation.275 So long as the committee complies with certain procedural requirements, the
district court “shall grant” the immunity order when petitioned, although the Attorney General
can request to delay the order.276 While an order requires a witness to testify, the Fifth
Amendment’s protections prohibit the compelled testimony and any evidence derived from that
testimony from being used against the witness “in any respect” in a later criminal prosecution,
except one for perjury, false statement, or contempt relating to the testimony.277
While Congress’s oversight and investigatory powers are broad, they are not unlimited. Besides
jurisdictional limitations and other procedural requirements imposed by each house or a particular
committee’s rules,278 other constitutional principles restrict committee investigations. Because the
authority to conduct oversight and investigations is implicit in the Constitution’s vesting of
legislative power in Congress, any inquiry must be undertaken “in aid of the legislative
function.”279 This “legislative purpose” requirement is relatively generous, and generally
authorizes an investigation into any topic on which legislation could be had, including
investigations undertaken to inform Congress or its committees for purposes of determining how
laws function, whether new laws are necessary, whether old laws should be repealed or altered, or
to conduct oversight to ensure compliance with existing law.280 No committee, however,
“possesses the general power of making inquiry into the private affairs of the citizen.”281
Moreover, the Supreme Court has determined that committee subpoenas for the President’s
273
See CRS Legal Sidebar, Prosecutions of Offenses Against Congress, by Todd Garvey.
274 18 U.S.C. § 6005.
275 Id.
276 Id.
277 See Kastigar v. United States, 406 U.S. 441, 453 (1972). While the witness may still be convicted of a crime based
on other evidence “wholly independent of the compelled testimony,” the existence of immunized testimony can make
such prosecutions more challenging. Id. 460.
278 These limits generally
include ensuring that the inquiry is within the jurisdiction of the investigating committee, and
undertaken in compliance with the committee’s own rules. See, e.g., Yellin v. United States, 374 U.S. 109, 114 (1963);
United States v, Rumely, 345 U.S. 41, 47 (1953).
279 Kilbourn v. Thompson, 103 U.S. 168, 204 (1881). See also Barenblatt v. United States, 360 U.S. 109, 111 (1959)
(“The power of inquiry has been employed by Congress throughout our history, over the
whole range of the national
interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly
been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the
power of inquiry, in short, is as penetrating and far reaching as the potential power to enact and appropriate under the
Constitution.”); Watkins v. United States, 354 U.S. 178, 187 (1957) (concluding that the
investigative power “is broad .
. . encompass[ing] inquiries concerning the administration of existing laws as well as proposed or possibly needed
statutes”).
280 Watkins, 354 U.S. 187.
281 Id.
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personal records involve significant separation of powers concerns that trigger a different, more
scrutinizing approach to the scope of Congress's power.282
In addition, because a congressional inquiry is part of “lawmaking,” a congressional committee
engaged in an investigation generally must observe applicable constitutional restrictions and
respect validly asserted constitutionally based privileges.283 Most, though not all, provisions of
the Bill of Rights addressing the rights of individuals apply to a congressional investigation.284
For example, the First
Amendment prevents a committee from interfering with a witness’s không lấy phí
speech or associational rights without an adequate legislative interest;285 the Fourth Amendment
prevents the enforcement of an unreasonably broad subpoena;286 and the Fifth Amendment may
be asserted in response to a congressional subpoena when compliance would tend to incriminate
the witness.287
Assertions of executive privilege may be invoked to limit a committee’s authority to obtain
information
from executive branch agencies.288 Executive privilege is generally viewed as having
two components: the deliberative process privilege, which protects the decisionmaking process of
the entire executive branch;289 and the presidential communications privilege, which preserves the
confidentiality of direct decision making of the President.290 Both privileges are grounded in the
notion that the executive branch must be able to discuss different options and approaches
candidly
without fear that its communications will become public.291
The deliberative process privilege is often implicated during committee investigations into
agency decisionmaking, and as a result, may prompt conflict between committees and agencies.
While the Supreme Court has found the presidential communications privilege to be implied in
the Constitution,292 the legal source from which the deliberative process privilege stems is less
282 Trump v. Mazars USA, LLP, 140 S.
Ct. 2022, 2032-36 (2022). In Mazars, the Court identified least four “special
considerations” to help lower courts to appropriately balance the “legislative interests of Congress” with “the ‘unique
position’ of the President” when a committee subpoena seeks the President’s private papers. Id. 2035.
283 Id. 197 (“While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless
an investigation is part of
lawmaking. It is justified solely as an adjunct to the legislative process.”).
284 For example, the D.C. Circuit has held that because of the “investigative” rather than “criminal” nature of
committee hearings, the Sixth Amendment’s individual criminal procedural guarantees, including a party’s right to
“present evidence on one’s own behalf and to confront and cross examine one’s accusers,” do not apply. United States
v. Fort, 443 F.2d 670, 678–81 (D.C Cir. 1970).
285
Watkins, 345 U.S. 197 (“Clearly, an investigation is subject to the command that the Congress shall make no law
abridging freedom of speech or press or assembly.”).
286 McPhaul v. United States, 364 U.S. 372, 282–83 (1960).
287 Quinn v. United States, 349 U.S. 155, 161 (1955); Emspak v. United States, 349 U.S. 190, 194 (1955).
288 See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).
289 A document is only
protected under the privilege if it is (1) “predecisional” (i.e., communications made prior to
reaching an agency decision) and (2) “deliberative” (i.e., communications relating to the thought process of executive
officials that are not “purely factual”). See In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
290 See id. 745 (“While the presidential communications privilege and the deliberative process privilege are closely
affiliated, the two
privileges are distinct and have different scopes.”). For a thorough discussion of executive privilege,
see CRS Report R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent
Developments, by Todd Garvey.
291 See United States v. Nixon, 418 U.S. 683, 708 (1974) (describing the “public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making”); Lynch, 156 F. Supp. 3d 111 (noting that the
purpose of the
deliberative process privilege “is to protect the decision-making process within government agencies and to encourage
‘the frank discussion of legal and policy issues’ by ensuring that agencies are not ‘forced to operate in a fishbowl’”)
(citations omitted).
292 Nixon, 418 U.S. 708 (concluding that the presidential communications privilege is “inextricably rooted in the
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clear. Whereas one court has suggested that the privilege “is primarily a common law
privilege,”293 another has held that it has “constitutional dimension[s].”294 Yet because
congressional committees have generally claimed discretion in whether to recognize common law
privileges asserted by a witness,295 the legal source of the deliberative process privilege may
affect
the degree to which the privilege limits congressional investigations.296
Informal Committee Controls: Report Language
While legislative enactments have the force and effect of law, committees may also use non-
binding report language associated with passed legislation to influence agency action.297 Report
language draws its ability to influence not from the law, but from the committee’s relationship
with the agencies it oversees.298 This tool may be used to direct
the use of appropriated funds, as
well as to guide an agency in implementing delegated authority.299
In general, committee report language refers to any information provided in a report that
accompanies legislation approved by the committee.300 When directed toward agencies,
committee report language generally is used to communicate committee preferences to the agency
tasked with carrying out the measure once it becomes law. The purpose of committee report
language can
range from explaining the committee’s interpretation of certain provisions of the
bill to directly articulating a requirement or prohibition on the agency which may not be directly
referenced in the bill’s text.301 Although report language itself is not legally binding in the same
separation of powers under the Constitution”)
293 In re Sealed Case, 121 F. 3d 729, 737 (D.C. Cir. 1997) (opining that, while the “privilege is most commonly
encountered in [FOIA]
litigation, it originated as a common law privilege”).
294 Lynch, 156 F. Supp. 3d 104 (concluding that “the privilege could be properly invoked in response to a legislative
demand”).
295 But see Trump v. Mazars USA, LLP, 140 S. Ct. 2022, 2032 (2022) (suggesting that recipients of a subpoena “have
long been understood to retain common law … privileges”). For a discussion of the application of common law
privileges in congressional investigations, see Davis et
al., Congressional Oversight Manual, supra note 189, 61-64.
296 See H. COMM. ON NAT. RES. RULE 4(g) (“Claims of common-law privileges made by witnesses in hearings, or by
interviewees or deponents in investigations or inquiries, are applicable only the discretion of the Chairman, subject to
appeal to the Committee.”).
297 See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (holding that “where Congress merely appropriates lump-sum
amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend
to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds
should or are expected to be spent do not establish any legal requirements on the agency”) (internal quotation marks
omitted). Committee report language, in addition to other forms of legislative history, can also impact how a court
interprets ambiguous statutory language. See Garcia v. United States, 469 U.S. 70, 76 (1984) (noting that committee
reports are an “authoritative source for finding the Legislature’s intent”).
298 See Vigil, 508 U.S. 193 (reasoning that although report language cannot impose legally binding restrictions, “an
agency’s decision to ignore
congressional expectations” as articulated in congressional reports “may expose it to grave
political consequences”).
299 See CONGRESSIONAL QUARTERLY, GUIDE TO CONGRESS 485 (5th ed. 2000) (“It has been common practice for
committees, including House-Senate conference committees, to write in their reports instructions directing government
agencies on interpretation and enforcement of the law.”).
300 Report language is also commonly included in the joint explanatory
statement accompanying the conference report
issued by a conference committee of the House and Senate. In recent years, it has become common for the chambers,
when resolving their legislative differences in a manner other than by conference committee, to publish an
“Explanatory Statement” or “Statement of Managers” which serves the same purpose. See CRS Report R44124,
Appropriations Report Language: Overview of Development, Components, and Issues for Congress, by
Jessica
Tollestrup.
301 See John C. Roberts, Are Congressional Committees Constitutional?: Radical Textualism, Separation of Powers,
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manner as statutory text,302 agencies usually seek to comply with any directives contained within
a committee report.303
If an agency ignores report language, it runs the risk of offending its
appropriating committee or another committee with jurisdiction over it, increasing the likelihood
of future informal committee-imposed consequences or more formal legislative consequences
imposed by Congress the behest of the committee.304
In the appropriations context, report language has been used as a non-binding alternative to the
types of committee controls held unconstitutional in
Chadha.305 For example, committees have
inserted language into committee reports that purport to require an agency to obtain the
committee’s approval before reprogramming funds.306 In other instances, agencies have reached
informal agreements in which the agency accedes to some form of limited committee control over
agency decisionmaking.307 Because report language and other informal arrangements between an
and the Enactment Process, 52 CASE W. RES. 489,
561–63 (2001). See, e.g., H.R. REP. NO. 456, 75 (2022) (“The
Committee believes [the General Services Administration (GSA)] has the authority and discretion to upgrade GSA-
controlled buildings containing child care centers to meet minimum security standards. The Committee directs GSA to
pursue implementation of these countermeasures by either gaining tenant agency approvals and amortizing the costs
into their occupancy agreements or incorporating the upgrades necessary
into existing building repairs and alterations
projects.”).
302 See Clinton Mem’l Hosp. v. Shalala,10 F.3d 854, 858 (D.C. Cir. 1993) (questioning the force of a committee report
that was “neither adopted by the House nor presented to the President”). Committee report language can become
binding if it is incorporated by reference into the enacted law. See 64 COMP. GEN. 359 (1985) (“It is a general principle
of appropriation law that directions in committee
reports, floor debates and hearings, or statements in agency budget
justifications are not legally binding on an agency unless they are incorporated, either expressly or by reference, in an
appropriation act itself or in some other statute.”).
303 RICHARD FENNO, THE POWER OF THE PURSE: APPROPRIATIONS POLITICS IN CONGRESS 18 (1966) (“[T]he criticisms
and suggestions carried in the reports accompanying each bill are expected to influence the subsequent behavior of the
agency.
Committee reports are not the law, but it is expected that they be regarded almost as seriously.”).
304 Roberts, supra note 301, 562–63 (noting that “agencies make special efforts to catalogue and track” report
language that interprets ambiguous statutory language, and arguing that “[t]hey do so not because committee report
language
is ‘law’ in the same sense as the statute is law, but rather because committee direction is part of the
complicated system of communication between Congress and the agencies, involving authorization of new programs,
appropriation of funds, and general oversight of agency operations”); In re LTV Aerospace Corp., 55 Comp. Gen. 307,
324–25 (1975) (“This does not mean agencies are không lấy phí to ignore clearly expressed legislative history applicable to the
use of appropriated funds.
They ignore such expressions of intent the peril of strained relations with the Congress.
The Executive Branch . . . has a practical duty to abide by such expressions. This duty, however, must be understood to
fall short of a statutory requirement giving rise to a legal infraction where there is a failure to carry out that duty.”).
305 See Richard J. Lazarus, Congressional Descent: The Demise of Deliberative Democracy in Environmental Law, 94
GEO. L.J. 619, 651
(2006) (“The obvious question raised is why federal agencies comply with these directives when it
is clear that they formally lack the force of law. The answer lies in the agency’s working assumption that an agency
cannot afford to risk angering the legislative committee that is primarily responsible for its current and future
appropriations.”).
306 See Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CALIF. L. REV. 595,
613
(1998) (“Many federal agencies and their congressional appropriation subcommittees routinely agree to a set of
reprogramming procedures. Most commonly, the agency agrees to obtain subcommittee approval before departing
substantially from—that is, ‘reprogramming’—the expenditure breakdown that the agency advanced in its budget
justifications or that committee adopted in the report accompanying the agency's appropriations. There is a general
agency practice of adhering to
reprogramming agreements–a practice so well established that in most cases the
agreements are treated as ‘binding’ by all concerned.”). For additional examples of “directives” contained in committee
reports see Lazarus, supra note 305, 649–52 (discussing committee report language pertaining to the obligations of
Environmental
Protection Agency, the Fish and Wildlife Service, and the Forest Service).
307 See Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 LAW & CONTEMP. PROBS. 273, 289–90 (1993)
(describing an informal agreement between the National Aeronautics and Space Administration and congressional
committees in which the agency pledged to comply with spending caps found in a conference report); FENNO, supra
note 303, 21–24.
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agency and a committee do not have the force and effect of law, these tools do not violate
constitutional
principles of presentment and bicameralism laid out by the Supreme Court in
Chadha.308 If agencies comply with committee report language, they do so voluntarily. As one
appellate court has noted, “there is nothing unconstitutional about . . . such informal
cooperation.”309
Tools for Individual Members
Individual Members also have several tools their disposal to influence agency action. Members
may seek the disclosure of information from agency officials
through voluntary cooperation. And
procedural rules and customary practices of the House, Senate, or committees may accord
specific powers to individual Members that enable them to exert some level of influence over
matters affecting administrative agencies.310 For example, committee rules typically provide
committee chairs significant authority to compel disclosure of information from administrative
agencies or engage in other oversight activities on behalf of their
committees on matters within
those committees’ jurisdiction.311 And if an individual Member is authorized by a committee,
house, or Congress as a whole, the Member may be “endowed with the full power of the
Congress to compel testimony,”312 for, as the Supreme Court has recognized, “each Member of
Congress is ‘an officer of the union, deriving his powers and qualifications from the
[C]onstitution.’”313
Individual Members may also avail themselves of certain
statutes to obtain information from
administrative agencies. For instance, 5 U.S.C. § 2954 (also known as the “Seven Member
Rule”314 or “Rule of Seven” statute315) provides that, upon receipt of a request for information
from any seven Members of the House Oversight and Government Reform Committee or five
Members of the Senate Committee on Homeland Security and Governmental Affairs, an
executive agency “shall submit any information requested of it relating to any matter
within the
jurisdiction of the committee.”316 Other statutes authorize or require agencies to disclose records
308 See supra “Constitutional Limits on Non-statutory Legislative Actions” (discussing Immigration & Naturalization
Servs. v. Chadha, 462 U.S. 919 (1983)); cf. Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d
668, 684 (9th
Cir. 2007) (“Members of Congress cannot use committee report language to make an end run around the requirements
of Article I. If Congress wishes to alter the legal duties of persons outside the legislative branch, including
administrative agencies, it must use the process outlined in Article I.”).
309 Alexandria v. United States, 737 F.2d 1022, 1026 (Fed. Cir. 1984).
310 For example, as a matter of institutional practice, individual Senators can delay
consideration of executive branch
nominees by placing “holds” on nominations and delay or even prevent consideration of legislation affecting
administrative agencies via the filibuster. See Charles Tiefer, Congressional Oversight of the Clinton Administration
and Congressional Procedure, 50 ADMIN. L. REV. 199, 202, 205–06 (1998); CRS Report 96-548, The Legislative
Process on the Senate Floor: An Introduction, by Valerie Heitshusen, 3. And individual
Members of the House can
introduce resolutions of inquiry. See supra “Resolutions of Inquiry.” Procedural rules, however, may also prohibit
individual Members from engaging in certain actions, such as issuing subpoenas. See HOUSE RULE XI 2(m)(1), (3);
SENATE RULE XXVI(1).
311 Some committees, for instance, authorize their chair to
issue subpoenas. See, e.g., S. COMM. ON THE JUDICIARY RULE
IX.
312 Watkins v. United States, 354 U.S. 178, 200–01 (1957).
313 United States Term Limits v. Thornton, 514 U.S. 779, 803 (1995) (quoting 1 JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES § 627 (1833)).
314 Cummings v. Murphy, 321 F. Supp. 3d 92, 95 (D.D.C. 2022).
315 See Davis et al., Congressional Oversight Manual, supra
note 189, 72.
316 5 U.S.C. § 2954. While the agency’s responsibility to provide the requested information is drafted in mandatory
terms, courts have, in certain instances, refused to assert jurisdiction over suits concerning agency non-compliance with
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that are otherwise exempt from disclosure specifically to an individual Member of Congress.317
Individual Members may also secure information through reliance on the statutory authority
granted certain investigative agencies—such as the Government Accountability Office—to
investigate and oversee administrative agencies.318 In addition, individual Members may submit
requests for agency records under FOIA.319
Individual Members may also seek to influence or control the executive branch through the
initiation of lawsuits challenging executive branch action. However, an individual Member who
wishes to institute such a lawsuit faces a significant obstacle unrelated to the merits of his or her
case. After the Supreme Court’s 1997 decision in Raines v. Byrd,320 an individual Member
Section 2954. See, e.g.,
Cummings, 321 F. Supp. 3d 92. However, in Maloney v. Murphy, 984 F.3d 50 (D.C. Cir. 2022),
the D.C. Circuit held that the ranking and seven other Members of the House Oversight Committee had standing to
challenge the General Services Administration’s (GSA’s) refusal to provide information to the Members pursuant to
their request under Section 2954. Id. 54. The Court explained that GSA’s “failure to provide information to which
the [Members] are statutorily
entitled is a quintessential form of concrete and particularized injury within the meaning
of Article III” of the Constitution. Id. 59. The court remanded the case to the district court, however, so the lower
court could determine the remaining questions in the case, including whether Section 2954 provides a cause of action
and, even so, whether it applies to the information issue. Id. 58, 70.
317 See, e.g., 6 U.S.C. § 623(f) (providing that
“[n]othing in this section shall prohibit the Secretary [of the Department
of Homeland Security] from disclosing [security related information developed under the Chemical Facility Anti-
Terrorism Standards Program] to a Member of Congress in response to a request by a Member of Congress”); 19
U.S.C. § 4203(a)(1)(B) (providing that, “[i]n the course of negotiations conducted under this chapter, the United States
Trade Representatives shall . . . upon request of any Member of
Congress, provide access to pertinent documents
relating to the negotiations, including classified materials”). Many statutes authorize or direct agencies to disclose
certain records to Congress or congressional committees, but do not specifically include a reference to individual
Members. For example, under the Privacy Act, an agency may disclose otherwise protected information about an
individual “to either House of Congress, or, to the extent of matter within its jurisdiction,
any committee or
subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee.” Id.
§ 552a(b)(9). Similarly, FOIA’s “special- access” provision states that FOIA does not enable agencies “to withhold
information from Congress.” Id. § 552(d) (emphasis added). DOJ has concluded that generally committee chairs are the
only individual Members authorized to obtain records on behalf of committees under the
congressional-disclosure
provision of the Privacy Act and FOIA’s special- access provision. Under DOJ’s interpretation, even ranking minority
members are unable to obtain records pursuant to these provisions, absent authorization. See Authority of Individual
Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. 1, 1 (2022) (opining that “the
constitutional authority to conduct oversight . . . may be exercised only by each house of Congress or,
under existing
delegations, by committees and subcommittees (or their chairmen)”) (internal citation and quotation marks omitted);
Application of Privacy Act Congressional-Disclosure Exception to Disclosures to Ranking Minority Members, 25 Op.
O.L.C. 289, 289–90 (2001) (asserting that “the Privacy Act’s congressional-disclosure exception does not generally
apply to disclosures to ranking minority members”); DEP’T OF JUSTICE, OFFICE OF INFO. POL’Y, FOIA UPDATE: OIP
GUIDANCE:
CONGRESSIONAL ACCESS UNDER FOIA 1–2 (1984) (stating that disclosure under FOIA’s special-access rule
to an individual Member is only appropriate where the request is made “by a committee or subcommittee chairman, or
otherwise under the authority of a committee or subcommittee”). For an overview of FOIA’s special access provision,
see Sheffner, FOIA, supra
note 109, 49-51. DOJ’s interpretation, however, is not universally held. See, e.g., Murphy
v. Dep’t of the Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979) (writing, in dicta, that “[i]t would be an inappropriate
intrusion into the legislative sphere for the courts to decide without congressional direction that, for example, only the
chairman of
a committee shall be regarded as the official voice of the Congress for purposes of receiving such
information, as distinguished from its ranking minority thành viên, other committee members, or other members of the
Congress”).
318 See, e.g., Nat’l Ass’n of Chain Drug Stores v. HHS, 631 F. Supp. 2d 17, 22 (D.D.C. 2009) (holding that “it is
irrelevant that [the Government Accountability Office (GAO)] exercises [its statutory authority under 31 U.S.C. §
717(b)(1) to
investigate the disbursement, receipt, and use of public money] the request of an individual thành viên of
Congress” and ordering the Department of Health and Human Services to disclose information to GAO).
319 5 U.S.C. § 552. See Sheffner, FOIA, supra note 109, for more information on FOIA.
320 521 U.S. 811 (1997). In
Raines, the Supreme Court held that individual Members of Congress who had voted
against the Line Item Veto Act of 1996, Pub. L. No. 104-130, 110 Stat. 1200, did not have standing to sue. 521 U.S.
829. The Member-plaintiffs alleged that the Act (1) “alter[ed] the legal and practical effect” of their votes on bills
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generally will have standing321 to sue an executive branch agency or official in federal court only
if his or her complaint alleges a personal injury (e.g., the loss of a congressional seat).322 The only
institutional injury the Supreme Court has recognized as sufficient to confer standing upon
individual legislators occurs when legislators’ votes have been nullified by executive action,323 a
narrow category of injury that individual Members have struggled
to allege successfully.324 After
Raines, few legislators who lack authorization from their relevant house of Congress have been
granted standing to pursue a civil action against the executive branch.325
covered by the Act, (2) “divest[ed them] of their constitutional role in the repeal of legislation,” and (3) “alter[ed] the
constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures
containing separately vetoable
items and with respect to other matters coming before Congress.” Id. 816. The
Supreme Court, however, held that the plaintiffs were without standing to pursue their claim because they did not
allege a personal injury to themselves and the institutional injury they asserted “was wholly abstract and widely
dispersed.” Id. 829.
321 To pursue a lawsuit in federal court, a plaintiff must have “standing.” The standing doctrine is derived from Article
III of the
Constitution, which limits federal courts’ jurisdiction to “cases” and “controversies.” U.S. CONST. art. III, § 2,
cl. 1. Under Article III, a plaintiff has standing only if he alleges “that he ‘(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.’” Gill v. Whitford, 138 S. Ct. 1916, 1929 (2022) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2022)).
322 Raines, 521 U.S. 829 (citing Powell v. McCormack, 395 U.S. 486 (1969)). In Powell, the Supreme Court
concluded that it had jurisdiction to entertain Representative Adam Clayton Powell, Jr.’s challenge to his exclusion
from the House. 395 U.S. 549–50. In Raines, the Supreme Court distinguished the plaintiffs’ challenge therein from
that raised in Powell, reasoning that Representative Powell’s injury amounted to the “loss of
[a] private right”—the
Representative’s loss of his seat and concomitant congressional salary—which was a personal and far more concrete
injury than the abstract “loss of political power” that characterized the plaintiffs’ injury in Raines. 521 U.S. 820–21.
323 See Coleman v. Miller, 307 U.S. 433 (1939). In Coleman, the Kansas state senate had been evenly divided on a
proposed amendment to the U.S. Constitution, with twenty senators voting in favor and
twenty against the amendment.
The lieutenant governor cast the deciding vote in favor. Id. 435–36. The twenty senators who opposed the
amendment (as well as an additional senator and three members of the state’s lower chamber) brought suit, challenging
the lieutenant governor’s authority to cast the tie-breaking vote. Id. 436. The Supreme Court held that the legislators
had standing to sue, reasoning that they “have a plain, direct and adequate interest in
maintaining the effectiveness of
their votes,” and emphasizing that “if they are right in their contentions their votes would have been sufficient to defeat
ratification.” Id. 438. The Raines Court later clarified that “our holding in Coleman stands ( most []) for the
proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have
standing to sue if that legislative action goes into effect (or does
not go into effect) on the ground that their votes have
been completely nullified.” 521 U.S. 823. Courts often hold that vote nullification is not present where legislative
remedies (e.g., the ability to pass corrective legislation) are available to Member-plaintiffs. See Campbell v. Clinton,
203 F.3d 19, 23 (D.C. Cir. 2000); Kucinich v. Obama, 821 F. Supp. 2d 110, 120 (D.D.C. 2011); see also Raines, 521
U.S. 829 (“We also note that our conclusion [does
not] deprive[] Members of Congress of an adequate remedy (since
they may repeal the Act or exempt appropriations bills from its reach)”).
In Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2022), the Supreme Court summarized Raines as standing
for the principle that “individual members lack standing to assert the institutional interests of a legislature.” Id. 1953.
However, the Court did not overrule Coleman in Bethune-Hill.
Instead, it distinguished Coleman from the case before
it, writing that, “[u]nlike Coleman, this case does not concern the results of a legislative chamber’s poll or the validity
of any counted or uncounted vote.” Id. 1954.
324 See, e.g., Chenowith v. Clinton, 181 F.3d 112, 116–17 (D.C. Cir. 1999) (holding that individual Members’ alleged
institutional injuries did not constitute vote nullification); Campbell, 203 F.3d 22–23 (same);
Kucinich, 821 F. Supp.
2d 120 (same).
325 See Common Cause v. Biden, 909 F. Supp. 2d 9, 26 (D.D.C. 2012) (remarking the time that “the Court is not
aware of any case in this Circuit where a court has recognized legislative standing after Raines”). In Blumenthal v.
Trump, 949 F.3d 14 (D.C. Cir. 2022) (per curiam), the D.C. Circuit held that 215 individual Members of Congress—
who did not represent the House of Representatives or Senate—lacked
standing to sue former President Donald Trump
for allegedly violating the Foreign Emoluments Clause of the Constitution, see id. 16, 20 n.4.
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Individual Members may also participate in litigation against the executive branch—albeit not as
parties—by appearing as amici curiae (“friends of the court”) in pending
proceedings.326 An
amicus curiae is “[a] person who is not a party to a lawsuit but who petitions the court or is
requested by the court to file a brief in the action because that person has a strong interest in the
subject matter.”327 Members of Congress may file amicus briefs in judicial proceedings for a
variety of reasons, including to articulate specific policy views, assert the purported meaning of
statutory provisions issue in the litigation in question, or defend
the prerogatives or interests of
the legislative branch.328 While they certainly cannot be used to control agency action, amicus
briefs filed by Members of Congress in proceedings involving the executive branch may be useful
in alerting executive branch components or officials to the views of certain Members on matters
central to executive branch programs and powers.
As has been shown, individual Members of Congress may exert some measure of influence over
administrative
agencies. But courts have imposed important limitations on their ability to do so.
Chief among these limits is the prohibition—grounded in procedural due process—against
legislator-interference with agency adjudications in certain contexts.329 In the seminal 1966
decision of Pillsbury Co. v. FTC,330 the Fifth Circuit invalidated an FTC decision that the agency
had issued after the FTC Chair and other Commissioners had faced congressional questioning
during a Senate
subcommittee hearing that focused “directly” and “substantially” on the agency’s
decisionmaking process in a pending case.331 The court explained that when Congress interferes
with the “judicial function” of an agency proceeding, “we become concerned with the right of
private litigants to a fair trial and . . . the appearance of impartiality.”332 Later, in D.C. Federation
of Civic Associations v. Volpe, the D.C. Circuit explained that Pillsbury applies to
“judicial or
quasi-judicial” administrative proceedings, not informal proceedings.333 The court defined
judicial or quasi-judicial proceedings as those in which the agency’s decision must be based
326 See, e.g., Brief of Amici Curiae Members of Congress in Support of Respondents, Sebelius v. Hobby Lobby Stores,
Inc., No. 13-354, 2014 WL 466855 (Jan. 28, 2014); Amicus Curiae Brief of the Speaker of the United States House of
Representatives, John Boehner, in Support
of Respondent, Nat’l Labor Relations Bd. v. Noel Canning, No. 12-1281,
2013 WL 6173789 (Nov. 25, 2013); Brief of Members of the U.S. House of Representatives—Including Objecting
Members of the Bipartisan Legal Advisory Group, Representatives Nancy Pelosi and Steny Hoyer—as Amici Curiae in
Support of Plaintiffs—Appellees and Urging Affirmance, Massachusetts v. HHS, Nos. 10-2204, 10-2207, 10-2214,
2011 WL 5833107 (1st. Cir. Nov. 3, 2011).
327 Amicus Curiae, BLACK’S LAW
DICTIONARY (4th pocket ed. 2011).
328 Amanda Frost, Congress in Court, 59 UCLA L. REV. 914, 946 (2012); see also Neal Devins, Measuring Party
Polarization in Congress: Lessons from Congressional Participation as Amicus Curiae, 65 CASE W. RES. 933, 940
(2015) (opining that “amicus filings are an easy, low-cost mechanism for lawmakers to stake out policy positions”).
329 See, e.g., ATX, Inc. v. Dep’t of Transp., 41 F.3d 1522, 1527 (D.C. Cir. 1994)
(declaring that “[a]n administrative
adjudication is ‘invalid if based in whole or in part on [congressional] pressures’”) (second alteration in original)
(quoting Dist. of Columbia Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231, 1246 (D.C. Cir. 1971))); ))). Pillsbury Co.
v. FTC, 354 F.2d 952, 964 (5th Cir. 1966) (holding that “when . . . [a congressional] investigation focuses directly and
substantially upon the mental decisional processes of a Commission[er] in a case which
is pending before it . . . we
become concerned with the right of private litigants to a fair trial and . . . with their right to the appearance of
impartiality”); see also Jamelle C. Sharpe, Judging Congressional Oversight, 65 ADMIN. L. REV. 183, 197–202 (2013);
Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 409 (D. Conn. 2008) (asserting that “[c]ongressional
interference in the administrative process is of particular concern in a quasi-judicial
proceeding”).
330 354 F.2d 952 (5th Cir. 1966).
331 Id. 964.
332 Id. The type of interference experienced by the agency officials, declared the court, “sacrifices the appearance of
impartiality—the sine qua non of American judicial justice.” Id.
333 D.C. Fed’n, 459 F.2d 1246 & n.75; id. 1247.
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“solely on a formal record established a public hearing,”334 which is very similar to the APA’s
definition of formal adjudication.335 The mere appearance of impartiality can indicate improper
congressional interference in regard to such proceedings.336 However, the D.C. Circuit held that,
for informal proceedings, more is needed to render an official’s decision invalid—it must be
shown that he “took into
account considerations that Congress could not have intended to make
relevant.”337 Based on D.C. Federation, the D.C. Circuit later held that an agency’s regulation
will be held invalid because of legislator pressure only if (1) the intent of the interference is to
compel the agency “to decide upon factors not made relevant by Congress in the applicable
statute,” and (2) the agency’s decision is “affected by those extraneous considerations.”338
Conclusion
Congress has an array of tools its disposal to influence and control executive branch agencies.
Through the exercise of its legislative power and subject to certain limitations rooted mainly in
the separation of powers, Congress may not only establish federal agencies and individual agency
offices, but also shape agencies’ basic structures and operations, set the manner in which those
holding agency offices are appointed and removed, and delegate lawmaking authority to
agencies.
In addition, Congress may directly reverse certain agency actions and decisions through later
legislation. But Congress need not confine itself to the legislative process to exert control or
influence over executive branch agencies or officials. Many non-statutory tools that inhere to
Congress as a whole, the House or Senate exclusively, committees, or even individual Members
of Congress may be used to influence or, in some cases, control agencies or officials. Some
of
334 Id. 1247.
335 Ronald M. Levin, Congressional Ethics and Constituent Advocacy in an Age of Mistrust, 95 MICH. L. REV. 1, 44
(1996) (explaining that “[t]he APA uses virtually the same criterion in delimiting the realm of formal adjudication” as
D.C. Federation used in defining “judicial” and “quasi-judicial” proceedings); cf. id. (“While the contours of the Due
Process Clause may not depend directly on the APA’s definition of formal
proceedings, adjudications have not been
considered ‘judicial’ within the meaning of Pillsbury unless they involve highly structured, adversary litigation.”). As
discussed above, when an “adjudication [is] required by statute to be determined on the record after opportunity for an
agency hearing,” formal, trial-like procedures govern proceedings. 5 U.S.C. § 554(a). These adjudications are known as
“formal” adjudications. See supra
“Procedural Controls on Decisionmaking.”
The APA generally prohibits “interested person[s] from outside the [relevant] agency” from making “ex parte
communication[s] relevant to the merits of [a] proceeding” to the decisionmaker in a formal adjudication proceeding,
or to another “employee who is or may reasonably be expected to be involved in the
decisional process of the
proceeding.” 5 U.S.C. § 557(d)(1)(A). An “ex parte communication” is “an oral or written communication not on the
public record with respect to which reasonable prior notice to all parties is not given.” Id. § 551(14). Legislative history
indicates that the prohibition applies to Members of Congress. See H.R. REP NO. 880, pt. 1, 21-22 (1976). It does not,
however, cover “requests for status reports.” 5 U.S.C. § 551(14).
336 D.C.
Fed’n, 459 F.2dat 1246-47; see DCP Farms v. Yeutter, 957 F.2d 1183, 1187 (5th Cir. 1992) (“Pillsbury holds
that the appearance of bias caused by congressional interference violates the due process rights of parties involved
in judicial or quasi-judicial agency proceedings.”); Peter Kiewit Sons’ Co. v. U.S. Army Corps of Engineers, 714 F.2d
163, 169 (D.C. Cir. 1983) (“The [D.C. Federation] court indicated that if the decision had been
judicial or quasi-
judicial, it could be invalidated by ‘the appearance of bias or pressure.’”) (quoting D.C. Fed’n, 459 F.2d 1246).
337 D.C. Fed’n, 459 F.2d 1247 (internal quotation marks and citation omitted); accord id. 1248 (explaining that the
Secretary of Transportation “must reach his decision strictly on the merits and in the manner prescribed by statute,
without reference to irrelevant or extraneous considerations”); Peter Kiewit Sons’
Co., 714 F.2d 169 (writing that the
D.C. Federation “court noted that the test for improper interference [for non-judicial or -quasi-judicial proceedings]
was whether the congressional action actually affected the decision”).
338 Sierra Club. v. Costle, 657 F.2d 298, 310 (D.C. Cir. 1981) (citing Dist. of Columbia D.C. Fed’n of Civic Ass’ns v.
Volpe, 459 F.2d 1231at 1246–47 (D.C. Cir. 1971)).). See State v. Dep’t of the Interior, 363 F. Supp. 3d
45, 63 n.15
(D.D.C. 2022) (explaining that the Costle standard “was based directly on the [D.C. Fed’n] standard” but
acknowledging that a rulemaking proceeding “may allow for more political wrangling than an agency’s adjudication of
an individual request”).
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these non-statutory tools, such as
impeachment and removal, are of potentially legally binding
effect. Other tools, such as censure or resolutions of inquiry, are not legally compulsory, but are
possibly powerful tools of influence.
Author Information
Todd Garvey
Daniel J. Sheffner
Legislative Attorney
Legislative Attorney
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Congress’s Authority to Influence and Control Executive Branch Agencies
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Congressional Research Service
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