Agencies’ Responsibilities to Inform Congress: Two Perspectives, by Brian D. Feinstein

by Guest Blogger — Tuesday, July 11, 2017

feinstein_brianThat the executive branch must provide information to Congress is well-established. The Constitution obliges the President to “give to the Congress Information of the State of the Union.” Executive agencies are required by statute to submit over 4,000 reports to Congress annually. Congress’s committees hold hundreds of days of oversight hearings every year.

But how far Congress’s authority to obtain information extends beyond these well-traveled pathways is contested. Which members of Congress can require agencies to provide them with information? And when may agencies refuse to hand it over (or tell members of Congress to get in the slow-moving FOIA line)?

A recent opinion letter from the Department of Justice Office of Legal Counsel (OLC) and response from Sen. Chuck Grassley (R-IA) put into focus two very different conceptions of how agencies should address requests for information that do not fall neatly into one of the above categories.

 

OLC’s Legal Compulsion-Based View

On May 1, OLC issued an opinion letter asserting that the executive branch’s “longstanding policy has been to … accommodat[e] congressional requests for information only when those requests come from a committee, subcommittee, or chairman authorized to conduct oversight.” Because effective lawmaking requires the provision of information, OLC acknowledges, Congress’s oversight authority is presumed by the Constitution’s vesting of legislative power in Congress. Congress delegates this authority to conduct oversight – which includes the authority to obtain information – to its committees (which sometimes then delegate it to the chair). Administrative agencies, OLC concludes, are obliged only to respond to oversight-focused information requests from these authorized delegees.

OLC then reaches the crux of its argument: agencies must comply with requests from these specific actors because they – and only they – possess legal tools to compel compliance. Only information requests from these “authorized” agents “are enforceable by the issuance of a subpoena and the potential for contempt-of-Congress proceedings.” If a legislator can compel an agency to provide the requested information, the agency should comply with that legislator’s request. Requests from other legislators are deemed “non-oversight” inquiries to which the agency may respond at its discretion, generally providing only information that is already publicly available or attainable via FOIA. Thus, whether the actor holds the power to force compliance is at the heart of OLC’s conception of oversight.

OLC’s opinion letter is consistent with longstanding Justice Department policy. A 1984 DOJ guidance document, which is still in effect, states “unequivocally” that agencies should:

Distinguish between requests made by a House of Congress as a whole (including through its committee structure), on one hand, and requests from individual Members of Congress on the other. Even when a FOIA request is made by a Member clearly acting in a completely official capacity, such a request does not properly trigger the special access rule [of FOIA, which provides that certain FOIA exemptions do not apply to congressional requests] unless it is made by a committee or subcommittee chairman, or otherwise under the authority of a committee or subcommittee.

Neither have courts recognized the right of any individual legislator (aside from committee and subcommittee chairs) to information from the executive branch. See, e.g., Exxon Corp. v. FTC, 589 F.2d 582, 593 (D.C. Cir. 1978) (“[D]isclosure of information can only be compelled by authority of Congress, its committees or subcommittees, not solely by individual members.”); Leach v. Resolution Trust Corp., 860 F. Supp. 868, 874 (D.D.C. 1994) (dismissing a committee ranking member’s attempt to compel disclosure of agency documents based on the ranking member’s “failure to persuade his colleagues to authorize his request”).

 

Senator Grassley’s Norm-Based View

In a June 7 letter addressed to President Donald Trump, Senator Grassley expresses a very different view than OLC’s position. The letter is unusually strongly worded, both for a senator sharing the same party affiliation as the President and for Grassley in particular; he deems OLC’s analysis to be “nonsense” and indicative of a “shocking lack of professionalism and objectivity” among the Office’s attorneys.

Grassley’s letter, like the OLC opinion letter, begins with the premise, affirmed in several major Supreme Court opinions, that “the power of congressional inquiry is inherent in [Congress’s] vested legislative powers.” Paraphrasing McGrain v. Daugherty, Grassley explains that “without access to information held by the Executive Branch, Congress cannot legislate effectively.” Because all members of Congress hold the authority and obligation to represent their constituents in the lawmaking process, all members are entitled to information from the executive branch.

Logically, there is much to recommend Grassley’s position. Although OLC emphasizes various delegations of authority by members of Congress, legislators have not delegated their core legislative functions: to introduce and vote on bills. If the Supreme Court’s longstanding position that Congress’s authority to conduct oversight implied by the Constitution’s vesting of “[a]ll legislative Powers” in Congress is coterminous with the branch’s legislative powers, then it arguably should follow that all members of Congress are, on an equal basis, entitled to information in service of their lawmaking function.

Unfortunately for Grassley, no legal authority adopts this position. Grassley cites the D.C. Circuit’s statement, in dicta, that “[a]ll Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information, [and thus] each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.” Murphy v. Dep’t of the Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979) (emphasis added). But OLC’s opinion letter does not discuss individual legislators’ entitlements to request information – only agencies’ obligations in response to those requests.

Grassley then notes that legislators’ needs for information from the executive branch are “broader than merely what is obtained through compulsory process,” and that the executive branch’s longstanding practice is to accommodate individual legislators’ requests.

One could imagine OLC’s response: How many divisions does the Senator have? Grassley’s explanation of the utility of greater information to individual legislators and his appeal to historical norms are unlikely to persuade an OLC that believes agencies should comply with congressional requests only when those requests are made in the shadow of the law. Where a legislator lacks the tools to compel compliance (namely, the subpoena power) OLC counsels that a response is discretionary. Unsurprisingly, then, Senator Grassley’s appeal fell on deaf ears; administrative agencies continue to ignore requests for information from minority-party legislators.

Yet the importance of legal compulsion to OLC’s analysis offers a way forward for Grassley. As chair of the Senate Judiciary Committee, he could pre-commit to sign off on any information request from any member of his committee. Going further, he could push to change the committee’s rules to mirror those of the Senate Permanent Subcommittee on Investigations (PSI), which authorize the ranking member to undertake “preliminary inquiries” sua sponte. He also could permit the ranking member to select the topic of an oversight hearing or two, as PSI occasionally did under its former chair Carl Levin (D-MI).

As even stronger medicine, Grassley could introduce legislation compelling agencies within his committee’s jurisdiction to disclose information requested by a minority of committee members. Cf. 5 U.S.C. § 2954 (“An Executive agency, on request of the [45-member] Committee on Government Operations of the House of Representatives, or of any seven members thereof, or on request of the [15-member] Committee on Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.”) (emphases added).

The ball is in Grassley’s court.

 

Brian D. Feinstein is a Bigelow Fellow & Lecturer in Law at the University of Chicago Law School. Follow him on Twitter here.

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One thought on “Agencies’ Responsibilities to Inform Congress: Two Perspectives, by Brian D. Feinstein

  1. Morton Rosenberg

    I believe that Professor Feinstein mistakes Senator Grassley’s purpose in his June 7 public letter to President Trump. It would be naïve to believe that he and his key legal staff are unaware of the longstanding DOJ and OLC stance advising executive agencies to essentially ignore at their discretion individual congressional member requests or that the model Feinstein suggests, 5 U.S.C. Sec. 2954, the so-called “rule of seven,” has been dismissed by the courts as lacking any enforcement mechanism. See. e.g., Waxman v. Thompson, CV-04-3467MMM (Manx))(C.D. Calif., May 17, 2004), noting that no jurisdictional committee had issued either an official request for the documents in question or a subpoena , nor did the legislative history of the provision imply any intent to delegate authority to the requisite number of members of the covered committees. The House, as a majoritarian institution, is unlikely to ever consider so empowering minority members, See generally, chapter 8 of my recently published work “When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry (The Constitution Project, 2017), accessible at http://constitutionproject.org/documents/when-congress-comes-calling-2/.

    The Senate is no more friendly. Indeed, Senator Grassley the next day revealed his true purpose when he testified before Chairman Jason Chaffetz’s House Oversight and Government Reform Committee (HOGR) and blasted the executive’s refusals to honor the House’s criminal contempt citations and forcing committees to bring civil suits that take years to resolve and risk bad rulings for Congress’s oversight powers to boot. He called for reforms to re-establish Congress’s historic self-protective prerogatives. What was that all about? Well, it must be recalled that it was Senator Grassley’s letter back in 2011 demanding information from the Drug Enforcement Agency’s just revealed gun-running operation to Mexican criminal cartels that fostered the Justice Department’s suspicious response to him. At that point Grassley was in the minority in the Senate, so he turned to his amenable House colleague Jason Chaffetz who, as chairman of HOGR had individual subpoena issuance authority, to do the heavy lifting. Grassley was now railing over the fact that six and a half years had past with investigations and litigation without a resolution. Among the remedial options under consideration appear to be a legal challenge to the executive’s refusal to present congressional contempt citations for grand jury consideration as required by law and the revival of a more “seemly” inherent contempt process. For further discussion of these and other congressional options see “When Congress Comes Calling” at 23-32, 70-72, 209-216.

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