Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch ( 2017 )

Authority of Individual Members of Congress to
Conduct Oversight of the Executive Branch
The constitutional authority to conduct oversight—that is, the authority to make official
inquiries into and to conduct investigations of executive branch programs and activi-
ties—may be exercised only by each house of Congress or, under existing delegations,
by committees and subcommittees (or their chairmen).
Individual members of Congress, including ranking minority members, do not have the
authority to conduct oversight in the absence of a specific delegation by a full house,
committee, or subcommittee. They may request information from the Executive
Branch, which may respond at its discretion, but such requests do not trigger any obli-
gation to accommodate congressional needs and are not legally enforceable through a
subpoena or contempt proceedings.
May 1, 2017
LETTER OPINION FOR THE COUNSEL TO THE PRESIDENT
We understand that questions have been raised about the authority of
individual members of Congress to conduct oversight of the Executive
Branch. As briefly explained below, the constitutional authority to con-
duct oversight—that is, the authority to make official inquiries into and to
conduct investigations of executive branch programs and activities—may
be exercised only by each house of Congress or, under existing delega-
tions, by committees and subcommittees (or their chairmen). Individual
members of Congress, including ranking minority members, do not have
the authority to conduct oversight in the absence of a specific delegation
by a full house, committee, or subcommittee. Accordingly, the Executive
Branch’s longstanding policy has been to engage in the established pro-
cess for accommodating congressional requests for information only when
those requests come from a committee, subcommittee, or chairman au-
thorized to conduct oversight.
The Constitution vests “[a]ll legislative Powers” in “a Congress of the
United States, which shall consist of a Senate and House of Representa-
tives.” U.S. Const. art. I, § 1. The Supreme Court has recognized that one
of those legislative powers is the implicit authority of each house of
Congress to gather information in aid of its legislative function. See
McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Each house may exer-
cise its authority directly—for example, by passing a resolution of inquiry
seeking information from the Executive Branch. See 4 Deschler’s Prece-
dents of the United States House of Representatives, ch. 15, § 2, at 30–50
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Opinions of the Office of Legal Counsel in Volume 41
(1981) (describing the practice of resolutions of inquiry and providing
examples); Floyd M. Riddick & Alan S. Frumin, Riddick’s Senate Proce-
dure, S. Doc. No. 101-28, at 882 (1992) (“The Senate itself could investi-
gate or hear witnesses as it has on rare occasions[.]”).
In modern practice, however, each house typically conducts oversight
“through delegations of authority to its committees, which act either
through requests by the committee chairman, speaking on behalf of the
committee, or through some other action by the committee itself.” Appli-
cation of Privacy Act Congressional-Disclosure Exception to Disclosures
to Ranking Minority Members, 25 Op. O.L.C. 289, 289 (2001) (“Applica-
tion of Privacy Act”); see also Alissa M. Dolan et al., Cong. Research
Serv., RL30240, Congressional Oversight Manual 65 (Dec. 19, 2014). As
the Supreme Court has explained, “[t]he theory of a committee inquiry is
that the committee members are serving as the representatives of the
parent assembly in collecting information for a legislative purpose” and,
in such circumstances, “committees and subcommittees, sometimes one
Congressman, are endowed with the full power of the Congress to compel
testimony.” Watkins v. United States, 354 U.S. 178, 200–01 (1957).
By contrast, individual members, including ranking minority members,
“generally do not act on behalf of congressional committees.” Application
of Privacy Act, 25 Op. O.L.C. at 289; see also id. at 289–90 (concluding
that “the Privacy Act’s congressional-disclosure exception does not gen-
erally apply to disclosures to ranking minority members,” because ranking
minority members “are not authorized to make committee requests, act as
the official recipient of information for a committee, or otherwise act on
behalf of a committee”). Under existing congressional rules, those mem-
bers have not been “endowed with the full power of the Congress” (Wat-
kins, 354 U.S. at 201) to conduct oversight. See Congressional Oversight
Manual at 65; see also 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; and only for investigations and congressional activities.”).
Individual members who have not been authorized to conduct oversight
are entitled to no more than “the voluntary cooperation of agency officials
or private persons.” Congressional Oversight Manual at 65 (emphasis
added).
The foregoing reflects the fundamental distinction between constitu-
tionally authorized oversight and other congressional requests for infor-
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Authority of Individual Members of Congress to Conduct Oversight
mation. When a committee, subcommittee, or chairman exercising dele-
gated oversight authority asks for information from the Executive Branch,
that request triggers the “implicit constitutional mandate to seek optimal
accommodation . . . of the needs of the conflicting branches.” United
States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977); see also id. at
130–131 (describing the “[n]egotiation between the two branches” as “a
dynamic process affirmatively furthering the constitutional scheme”).
Such oversight requests are enforceable by the issuance of a subpoena and
the potential for contempt-of-Congress proceedings. See McGrain, 273
U.S. at 174; 2 U.S.C. §§ 192, 194; see also Standing Rules of the Senate,
Rule XXVI(1), S. Doc. No. 113-18, at 31 (2013) (empowering all stand-
ing committees to issue subpoenas); Rules of the House of Representa-
tives, 115th Cong., Rule XI, cl. 2(m)(1) (2017) (same). Upon receipt of a
properly authorized oversight request, the Executive Branch’s longstand-
ing policy has been to engage in the accommodation process by supplying
the requested information “to the fullest extent consistent with the consti-
tutional and statutory obligations of the Executive Branch.” Memorandum
for the Heads of Executive Departments and Agencies from President
Ronald Reagan, Re: Procedures Governing Responses to Congressional
Requests for Information (Nov. 4, 1982). But a letter or inquiry from a
member or members of Congress not authorized to conduct oversight is
not properly considered an “oversight” request. See Congressional Over-
sight Manual at 56 (“Individual Members, Members not on a committee
of jurisdiction, or minority Members of a jurisdictional committee, may,
like any person, request agency records. When they do, however, they are
not acting pursuant to Congress’s constitutional authority to conduct
oversight and investigations.”). It does not trigger any obligation to ac-
commodate congressional needs and is not legally enforceable through a
subpoena or contempt proceedings.
Members who are not committee or subcommittee chairmen sometimes
seek information about executive branch programs or activities, whether
for legislation, constituent service, or other legitimate purposes (such as
Senators’ role in providing advice and consent for presidential appoint-
ments) in the absence of delegated oversight authority. In those non-
oversight contexts, the Executive Branch has historically exercised its
discretion in determining whether and how to respond, following a gen-
eral policy of providing only documents and information that are already
public or would be available to the public through the Freedom of Infor-
mation Act, 5 U.S.C. § 552. Whether it is appropriate to respond to re-
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Opinions of the Office of Legal Counsel in Volume 41
quests from individual members will depend on the circumstances. In
general, agencies have provided information only when doing so would
not be overly burdensome and would not interfere with their ability to
respond in a timely manner to duly authorized oversight requests. In many
instances, such discretionary responses furnish the agency with an oppor-
tunity to correct misperceptions or inaccurate factual statements that are
the basis for a request.
CURTIS E. GANNON
Acting Assistant Attorney General
Office of Legal Counsel
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