In May, a legally binding opinion by the Justice Department’s Office of Legal Counsel (OLC) was made public, stating that individual Members of Congress “do not have the authority to conduct oversight” of the executive branch, and thus are only entitled to “voluntary cooperation” with their requests for information. However, individual Members of Congress play a critical role in conducting a lot of important oversight. If agencies follow the OLC opinion, it would diminish Congress’s oversight power.
As pointed out in a previous Project On Government Oversight blog, the OLC opinion builds on a harmful and long-standing executive branch policy that diminishes congressional oversight authority, with what appears to be a troubling new twist. And Congress has rightly excoriated the executive branch for this new policy—most notably in a letter from Senator Chuck Grassley (R-IA)—defending its Constitutional duty and responsibility to oversee the executive branch.
The OLC opinion (Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch) dangerously asserts that only committee or subcommittee chairmen have Constitutional authority to conduct oversight, and, accordingly, to make requests for, and be official recipients of, information from the executive branch. It argues that the Constitution does not authorize individual Members of Congress—including committee ranking minority members—to conduct oversight, since they are not “endowed with the full power of Congress” in the form of a chair appointment. As a result, the requests for information by Members who are not Chairs, would not be “properly considered” as an oversight request, because they do not “trigger any obligation to accommodate congressional needs and [are] not legally enforceable.”
Oddly and detrimentally, the opinion puts oversight requests from individual Members of Congress (and even other committee members and the Ranking Members) as less important than information requests from the public. Such requests may (or may not) be answered at the discretion of the executive branch, wrenching away Members’ Constitutional prerogative to exercise oversight as a separate but equal branch of government. The opinion’s de facto result would be to increase and centralize the power of the executive branch—which is primarily made up of appointed bureaucrats, not elected representatives.
One key difference between this new OLC opinion and previous Justice Department guidance from 1984 is that the new opinion asserts that, “Whether it is appropriate to respond to requests from individual members will depend on the circumstances.” (Emphasis added) The Justice Department’s 1984 guidance states, “if the [Congressional] request is not an official committee or subcommittee request, then the agency should process it as a request from ‘any person’ under the FOIA.” The difference is subtle, but important. Previously, the executive branch’s policy was to treat requests for information from individual Members of Congress as a Freedom of Information Act (FOIA) request. Now, according to OLC, agencies have discretion to not respond to Congress at all, depending “on the circumstances.”
How have agency officials responded to the new OLC opinion? Public statements by federal agencies have varied.
Last week, in an appearance before the House Committee on Transportation and Infrastructure, Transportation Secretary Elaine L. Chao responded to a question regarding information requests from Congress by saying that “I will do everything I can, but it’s up to the White House on what they want to do. It’s up to the White House and this administration. I’m not in charge of that.” Homeland Security Secretary John Kelly said at a different hearing, “Regardless of who the letter comes from—and it doesn’t have to just come from a ranking member or chairman—we’ll respond to any congressional inquiry.”
Members of Congress from both political parties are criticizing OLC’s opinion.
Representative Jason Chaffetz (R-UT), Chairman of the House Committee on Oversight and Government Reform, publically opposed the policy, calling it “dangerous and unsustainable.” Likewise, Senator Claire McCaskill (D-MO) condemned the policy, assuring “I’ll punch above my weight on this if this administration thinks it can withhold information.” Senators Rob Portman (R-OH), Tom Carper (D-DE), and Heidi Heitkamp (D-ND) all offered criticism, with Senator Portman reflecting on his time as budget director in the George W. Bush administration: “I found dealing with Congress frustrating, but I felt it was my responsibility to deal with Congress, it’s the way the founders set things up.”
The strongest criticism is coming from Senator Chuck Grassley (R-IA), Chairman of the powerful Senate Judiciary Committee, who wrote to President Trump urging him to encourage executive-branch cooperation with Congressional oversight, and requesting that the White House rescind the opinion. Senator Grassley has long conducted robust Congressional oversight as an individual Member of Congress, Ranking Member, and Chair. His letter is a thorough criticism of the OLC opinion, pointing out the major flaws and citing case law and long-held Congressional practices in equal measure. Senator Grassley argues that, “Every member of Congress is a constitutional officer…. This applies obviously regardless of whether they are in the majority or the minority at the moment and regardless of whether they are in a leadership position on a particular committee. Thus, all members need accurate information from the Executive Branch in order to carry out their Constitutional function to make informed decisions on all sorts of legislative issues covering a vast array of complex matters across our massive federal government.”
Senator Grassley makes an important reference to the DC Circuit Court of Appeals case Murphy v. Department of the Army, which concluded 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 member, other committee members, or other members of the Congress.” He further notes that it would be even more inappropriate for the executive branch to determine how Congress does its job. The implication is that the OLC’s opinion threatens our constitutionally mandated system of checks and balances.
The OLC opinion emphasizes the ability of committee chairs to legally compel information from the executive branch via subpoena as evidence of their “authorization” to conduct oversight. However, as Senator Grassley put it, “that’s just not how it works.” He describes that, “[t]he vast majority of information Congress obtains, even through a Chairman’s requests, is obtained voluntarily, not by compulsion,” and the subpoena is “a last resort.”
Senator Grassley draws attention to the fact that many requests for information from Members of Congress are not partisan in nature, and that a partisan response from the executive branch to these requests “discourages bipartisanship, decreases transparency, and diminishes the crucial role of the American people’s elected representatives.” He ends by noting that the OLC opinion “obstructs what ought to be the natural flow of information between agencies and the committees, which frustrates the Constitutional function of legislating.”
The good news is that the OLC opinion does not have to represent the final word of the Administration. President Trump should recognize the rights and duties of Congress to oversee the executive branch, and tell OLC to rescind the opinion. Equally important, Congressional leadership should be unified in demanding that the executive branch provide information critical to Congress’s Constitutional obligations.