Separation of powers is a cornerstone of our democracy that requires each branch of government to engage the others with respect and comity. One of many practices that requires cooperation is congressional oversight of the executive branch. Unfortunately, for decades the executive branch has been refusing requests for information from individual members of Congress who attempt to exercise their oversight responsibilities. If President Joe Biden truly believes, as he’s said, that the executive branch cannot stonewall Congress, his administration should start by recognizing that individual members of Congress have oversight powers.
Congress has the constitutional power to conduct oversight. This includes obtaining information from the executive branch agencies that run federal programs and spend federal funds — funds that Congress appropriates. Normally, agencies voluntarily cooperate with congressional oversight requests. However, the Supreme Court has held that when the executive branch refuses to cooperate, Congress has the power to compel the production of documents and witnesses through subpoenas. The Supreme Court has repeatedly urged the executive and legislative branches to avoid these types of conflicts by accommodating each other’s interests instead of coming to court.
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Unfortunately, in recent years the executive branch has defied the Supreme Court’s admonition and upended the voluntary accommodation process. The Department of Justice (DOJ) and its Office of Legal Counsel (OLC) have repeatedly issued opinions undermining the oversight authority of Congress — granting presidential advisors immunity, refusing to punish officials who defy subpoenas, and distorting executive privilege.
An equally insidious, but less reported, way the executive has eroded oversight is by limiting the scope of what counts as Congress. In several different contexts, the DOJ considers “Congress” to mean only full houses, committees, subcommittees, and their chairs. Simply put, the DOJ does not believe that individual members hold the oversight powers of Congress.
This is wrong. Individual members of Congress are the lifeblood of our democratic process. They exercise the core components of legislating — introducing and voting on legislation. They often seek information about their districts or states in order to properly represent their constituents. And in the Senate, one individual member has the power to halt almost any pending action through the filibuster.
Even Congress’s institutional oversight tools rely on individual members: Congress cannot enforce subpoenas without individual members voting to do so. Contempt resolutions require a majority vote of all committee members, followed by a majority vote of all members of the House or Senate. Without individual member support to hold an executive branch official in contempt, a congressional subpoena is toothless. In addition, House and Senate rules give all individual members the power to call votes to issue their own subpoenas, even over the objections of committee chairs.
The courts have also recognized individual members’ powers. In the case of Murphy v. Department of the Army, the DC Circuit Court found, “[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.” The court also noted that only Congress has the prerogative to determine the roles of its members in the legislative sphere — not other branches.
Contrast the vast scope of responsibilities and powers that the legislative and judicial branches grant individual members with the way the executive branch views the issue. The Justice Department erroneously contends that individual members have no right to exercise these powers and that the executive branch has no obligation to respect them.
One example of this pattern is a 2017 OLC memorandum directing agencies to respond only to oversight requests from committee chairs and to ignore requests from individual members of Congress. OLC’s memo claims that “[i]ndividual members of Congress, including ranking minority members, do not have the authority to conduct oversight.” This claim has emboldened a combative approach toward oversight in the executive branch, significantly reducing the ability of individual members of Congress to access important information. Perhaps unsurprisingly, it comes from an office with a long history of ignoring the law to help shield executive officials from accountability.
OLC’s rationale for the memorandum was that since only committee chairs can sometimes issue subpoenas by themselves, executive officials shouldn’t cooperate with any other members of Congress. By responding only to oversight requests from committee chairs, however, OLC ignores the power of individual members to call up their own subpoenas for votes, as well as the need for individual members to vote to enforce subpoenas by holding resistant witnesses in contempt of Congress. Its position is out of step with both Congress and the courts, substituting an argument that benefits the executive branch at the expense of the people.
The second example of this pattern is the “FOIA loophole.” The Freedom of Information Act (FOIA) says the executive branch may not use the law to justify withholding documents from Congress. In other words, just because the executive branch may be able to withhold information from the public under one of FOIA’s several exceptions does not mean the executive branch may withhold that same information from Congress.
The DOJ has interpreted “Congress” to mean only the full House or Senate or their committees or subcommittees — but not individual members. This interpretation provides the executive branch with a loophole, allowing it to stymie valid information requests from individual members of Congress by limiting the type of information individual members can access. According to this loophole, members of Congress — who are duly elected and have sworn an oath to protect and defend the Constitution of the United States — can access only documents and correspondence that are available to the general public. This DOJ loophole is at odds with the principles of our democracy, and it undermines Article I of our Constitution.
This is not just a theoretical problem. In 2005, 51 House Democrats, led by then-Representative John Conyers (D-MI), requested information from the Department of Defense related to U.S. planning for the Iraq war. However, since Democrats were in the minority, they framed their request as a FOIA request as if they were ordinary members of the public rather than an eighth of the House of Representatives. The DOJ’s flawed interpretation allowed the executive branch to shield critical information from scores of individual members.
DOJ’s restrictive view of individual members’ roles in oversight directly contradicts the legislative intent behind FOIA. The plain meaning of “Congress” includes each of its members in their individual capacity. The legislative history of FOIA supports this interpretation. A House committee report that accompanied the legislation when it passed asserts that FOIA does not reduce the role of individual members in oversight. The purpose of FOIA was to expand access for the public, not to reduce access for Congress. For these same reasons, in the Murphy case, the DC Circuit held that “Congress,” as defined in this section of FOIA, does include individual members.
The executive branch must recognize that requests from individual members of Congress deserve respect under the Constitution. The accommodation process may be voluntary, but that doesn’t mean the executive branch can unilaterally opt out of it. Executive participation in the oversight process is necessary for the functioning of a healthy democracy, where legislators can learn what problems exist and fix them. Rather than trying to limit individual members’ powers and stymie the flow of information, executive branch officials should participate in the voluntary accommodation process in good faith. This will help Congress do its job of creating effective legislation and ensure that government works better for all Americans. For any of this to happen, however, the DOJ must abandon its misinformed and misdirected position regarding the powers of individual members of Congress.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.