Scope of Congressional Oversight and Investigative Power With Respect to the Executive Branch ( 1985 )

Scope of Congressional Oversight and Investigative Power
With Respect to the Executive Branch
Congressional pow er to conduct inquiries and to exercise oversight respecting the Executive
Branch is broad and well-established. This power is not unlimited, however. Its use must be
confined to inquiries concerning the administration o f existing laws or the determination o f
w hether new or additional laws are needed.
Congress may not conduct investigative or oversight inquiries for the purpose o f managing
Executive Branch agencies or for directing the manner in which the Executive Branch
interprets and executes the laws.
The Suprem e C ourt’s decisions in B uckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and INS v.
Chadha, 462 U.S. 919 (1983), establish an area o f executive authority in the interpretation
and im plem entation o f statutes. C ongress may not take action, including action in furtherance
o f its inquiry and oversight pow ers, that interferes with that executive authority, except
through the enactm ent o f legislation in full com pliance with constitutional requirements.
March 22, 1985
M em orandum O p in io n for th e A ttorney G eneral
This responds to your request for a brief discussion of the proper scope of
C ongress’ power o f inquiry and oversight with respect to the Executive Branch.
It is beyond dispute that Congress may conduct investigations in order to
obtain facts pertinent to possible legislation and in order to evaluate the
effectiveness o f current laws.1 This power to obtain information has long been
viewed as an essential attribute o f the power to legislate, and was so treated in
the British Parliam ent and in the colonial legislatures in this country. See
M cG rain v. D augherty, 273 U.S. 135, 161, 174-77 (1927); see generally
Landis, Constitutional Limitations on the Congressional Pow er o f Investiga­
tion, 40 Harv. L. Rev. 153 (1926). Although the Constitution does not explic­
itly grant any power o f inquiry to Congress, Congress asserted such a right
shortly after the adoption of the Constitution. In 1792, the House of Represen-
] In ex ercisin g its o v ersig h t function. C ongress may also adopt by plenary legislation “report and wait”
pro v isio n s requiring the E xecutive to report to Congress in advance o f taking certain actions. See, e.g., IN S v.
C hadha , 4 6 2 U .S. 9 1 9 ,9 3 3 n.9 (1983). C o n g ress' pow er in this area is not unlimited. Legislation purporting
to render inoperative the E x ecu tiv e’s inherent constitutional pow ers, such as those related to the P resid e n ts
role as C om m ander-in-C hief, fo r a fixed p erio d o f tim e w ould raise issues decidedly different and more
d ifficu lt to resolve than situ atio n s in which C ongress legislates “w aiting” periods with regard to the exercise
o f statu to ry pow er by the Executive. See g en era lly Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
6 3 6 -3 8 (1952) (Jackson, J. concurring).
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tatives appointed a committee to investigate a military disaster and authorized
that committee to send for necessary witnesses and documents. 3 Annals of
Cong. 490-94 (1792). It is now settled that Congress’ power to obtain informa­
tion necessary to legislate is broad.
Thus, for example, in Watkins v. United States, 354 U.S. 178, 187 (1957),
the Supreme Court stated:
We start with several basic premises on which there is general
agreement. The power of the Congress to conduct investigations
is inherent in the legislative process. That power is broad. It
encompasses inquiries concerning the administration of existing
laws as well as proposed or possibly needed statutes. It includes
surveys of defects in our social, economic or political system for
the purpose of enabling Congress to remedy them. It compre­
hends probes into departments of the Federal Government to
expose corruption, inefficiency or waste.
As the Court’s statement in Watkins suggests. Congress’ power of inquiry
regarding possible legislation extends to investigations of how well current
laws are being administered by the Executive Branch. In McGrain v. Daugherty,
273 U.S. at 161, the Court affirmed the power of a Senate committee charged
with investigating the administration of the Department of Justice under a
former Attorney General to compel the appearance of a witness.2 Finding that
the subject matter of the investigation was sufficiently related to the legislative
function of lawmaking to make the investigation proper, the Court stated:
Plainly the subject was one on which legislation could be had
and would be materially aided by the information which the
investigation was calculated to elicit. This becomes manifest
when it is reflected that the functions of the Department of
Justice, the powers and duties of the Attorney General and the
duties of his assistants, are all subject to regulation by congres­
sional legislation and that the department is maintained and its
activities are carried on under such appropriations as in the
judgment of Congress are needed from year to year.
Id. at 178.
Broad as it is, however, Congress’ power o f oversight and inquiry “is not
unlimited.” Watkins v. United States, 354 U.S. at 187. As the quotation from
2 This investigation w as prom pted by allegations o f m isfeasance and nonfeasance in the D epartm ent o f
Justice under Harry M. D augherty, w ho served as A ttorney G eneral from M arch 1921 until M arch 1924. The
Senate appointed a com m ittee o f five senators charged with investigating, inter a lia : (1) the A ttorney
G eneral's alleged failure to “prosecute properly violators o f the Sherman A ntitrust A ct and the C layton A ct;"
(2) the Attorney G en eral's alleged failure to arrest and prosecute certain named individuals “and their co­
conspirators in defrauding the G overnm ent;” and (3) the activities o f the A ttorney G eneral and his assistants
“which could in any m anner tend to im pair their efficiency or influence as representatives o f the G overnm ent
o f the U nited States.” 273 U .S. at 152-53. As part o f this investigation, the Com m ittee subpoenaed A ttorney
General D augherty's brother, who w as the president o f a certain bank.
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M cG rain v. D augherty suggests, the power of inquiry must be exercised “in aid
o f the legislative function.” 273 U.S. at 135. In this regard, the Supreme Court
has explicitly recognized that congressional inquiries may not be used to
arrogate to Congress functions allocated by the Constitution to another branch
of government.3
In K ilbou m v. Thompson , 103 U.S. 168 (1881), a House committee was
investigating the circumstances surrounding the bankruptcy of a company in
which the United States had deposited funds, focusing particular attention on a
private real estate pool that was a part of the financial structure. The Supreme
Court found that the House had exceeded the limits of its authority in this
investigation because the subject matter was in its nature clearly judicial and
therefore one in respect to which no valid legislation could be enacted. See also
Watkins v. U nited States, 354 U.S. at 187. Accordingly, “[l]acking the judicial
power given to the Judiciary, [Congress] cannot inquire into matters that are
exclusively the concern of the Judiciary. Neither can it supplant the Executive
in what exclusively belongs to the Executive.” Barenblatt v. United States, 360
U.S. 109, 112 (1927).4
In determining what functions fall within the Executive’s exclusive domain,
one must, o f course, be sensitive to the Supreme Court’s admonition that the
Constitution does not contemplate “a complete division of authority between
the three branches.” Nixon v. A dm inistrator o f Gen. Servs., 433 U.S. 425, 443
(1977). Rather, the Constitution “enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v.
Saw yer, 343 U.S. 579,635 (1952) (Jackson, J., concurring). Accordingly, there
is undoubtedly a gray area in which the President’s responsibility for managing
the Executive Branch and Congress’ power of oversight conflict, and where the
respective rights and obligations of the President and Congress are unclear.
Nonetheless, Congress’ power o f inquiry must not be permitted to negate the
President’s constitutional responsibility for managing and controlling affairs
committed to the Executive Branch. See M yers v. United States, 272 U.S. 52,
135 (1926). Thus, although Congress constitutionally can investigate the man­
ner in which the Executive Branch has executed existing law in order to
determ ine whether further legislation is necessary, it cannot conduct such
investigations for the purpose o f facilitating an ability to exercise day-to-day
control over the management o f Executive Branch agencies, or otherwise to
direct the manner in which existing laws are interpreted and executed.
Two recent Supreme Court decisions establish certain clear limits on Con­
gress’ power to involve itself in the administration of the Nation’s laws. In
Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), the Court ruled that all
3 T he constitutionally based doctrine o f ex ecu tiv e privilege also lim its C ongress' ability to obtain informa-
tion from the Executive B ranch. See, e.g., U nited States v. N ixon, 418 U.S. 683 (1974).
4 B a ren b la tt did not involve a dispute betw een C ongress and the Executive. The Barenblatt Court upheld,
ag ain st statutory and constitutional objections, the contem pt conviction o f a w itness w ho refused to answ er
questions concerning his alleged associations with the Com m unist Party posed by a subcom m ittee of the
H ouse C o m m ittee on U n-A m erican A ctivities, which w as then investigating alleged Com m unist infiltration
into education.
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officials who “exercise significant authority pursuant to the laws o f the United
States” are “Officers of the United States,” who must be appointed in accor­
dance with the Appointments Clause, U.S. Const, art. II, § 2, cl. 2. The Court
specifically held that the interpretation and implementation of a statute “repre­
sents the performance of a significant governmental duty exercised pursuant to
a public law,” and can be performed only by an “officer of the United States.”
Id. at 141. This principle underlies Justice W hite’s observation:
I know of no authority for the congressional appointment of its
own agents to make binding rules and regulations necessary to
or advisable for the administration and enforcement of a major
statute where the President has participated either in the ap­
pointment of each of the administrators or in the fashioning of
the rules and regulations which they propound.
Buckley v. Valeo , 424 U.S. at 281 (White, J., concurring in part and dissenting
in part). Buckley recognizes that the Constitution precludes Congress from
participating in Executive Branch functions through appointment of the per­
sons who execute the laws.
In INS v. Chadha, the Court held that a related principle of the separation of
powers doctrine establishes that when Congress has authorized executive de­
partments to perform certain tasks, the rights and duties created by that authori­
zation or by its execution may not be altered by the actions of a congressional
committee or other agent or arm of Congress. Any measure that alters those
rights and duties must be approved by each House of Congress and presented to
the President. 462 U.S. at 951. Together, the principles of Buckley and Chadha
establish an area of executive authority interpreting and implementing duly
enacted statutes that cannot be displaced by the actions of Congress except
through the legislative process of enacting legislation subject to the President’s
veto.
Thus, the oversight functions of a congressional committee must be evalu­
ated in relation to the President’s longstanding and pervasive responsibility
over the management and control of affairs committed to the Executive Branch.
See M yers v. United States, 272 U.S. at 135. The prerogatives and responsibili­
ties of the President to exercise and protect his control over the Executive
Branch are based on the fundamental principle that the President’s perfor­
mance of his constitutional duties must be free of certain types of interference
from the coordinate branches of government. The “executive Power” is vested
in the President, U.S. Const, art II, § 1, cl. 1, and he must “take Care that the
Laws be faithfully executed,” id. § 3. In order faithfully to fulfill these respon­
sibilities, the President must be able to delegate the management and control of
executive departments to subordinate officials in the knowledge that they will
remain faithful to his commands. To the extent that a committee of Congress
attempts to interfere with the President’s right to make policy decisions and to
manage the Executive Branch pursuant to statutory authorization, the Legisla­
tive Branch limits the ability of the President to perform his constitutional
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function. Congress may do so, o f course, but only in the manner authorized by
the Constitution: plenary legislation presented to the President and subject to
his veto power. It may not vest in its committees or its officers the power to
supplant the President’s executive functions, and may not do so under the guise
o f its investigative authority.
Ra lph W . T arr
A cting A ssistant Attorney General
Office o f Legal Counsel
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