Since unelected bureaucrats, through variances, unilaterally determine when a rule must be followed, they have the power to determine if someone will be criminally liable. Second, variances increase the payoff for influencing regulators. Being granted a variance could result in a nice benefit for someone. Whenever it becomes more profitable to persuade a regulator to grant you a variance than it is to abide by the rule, we should expect regulators to be the target of at least some interest groups.
Granting variances is one thing, but regulatory bureaucrats have even broader powers in some cases. Consider the Michigan laws about cherry pests. But the rules go further. In some cases, legislative bodies hand over even broader powers to regulators. The regulatory department overseeing this law is in charge of determining who can obtain a license and how many will be available. In fact, not even the governor of Michigan, with emergency powers , can unilaterally suspend or modify a state law such as this.
Congress may employ other tools to conduct oversight over non-treaty international agreements, including legislation that requires that the executive branch consult with Congress before or during negotiations, as well as oversight hearings. Research Serv. Print For more information, see id. An individual convicted by the Senate, however, may be criminally prosecuted for the same facts underlying his impeachment and conviction.
Committee investigations of the Teapot Dome scandal provide a forceful example of the investigative power's potential impact. See James Burnham, Congress and the American Tradition "As a traceable result of the Teapot Dome investigations in the 's, three Cabinet members were compelled to resign, of whom one went later to jail and one died while awaiting trial; two witnesses committed suicide; four oil millionaires skipped the country, and numerous other individuals were jailed or fined sums up to several million dollars.
Barenblatt v. See also J. See McGrain v. Congress's oversight function is subject to a variety of legal limitations. See Eastland v. Servicemen's Fund, U. We have made it clear [] that Congress is not invested with a '"general" power to inquire into private affairs.
See Watkins v. In addition, both the House and Senate have at times established temporary select committees to carry out specific investigations. A select committee's authorizing resolution often provides the committee with investigative powers such as the power to issue subpoenas. Senate Rule XXVI 1 "Each standing committee, including any subcommittee of any such committee, is authorized to hold such hearings. Each such committee may make investigations into any matter within its jurisdiction.
Beermann, supra note 68, at "Oversight is the public face of a vast network of contacts between members of Congress and their staffs and agency officials, including agency heads and their staffs. See Kastigar v. While the witness may still be convicted of a crime based on other evidence "wholly independent of the compelled testimony," the existence of immunized testimony can make such prosecutions more challenging.
These limits generally include ensuring that the inquiry is within the jurisdiction of the investigating committee, and undertaken in compliance with the committee's own rules. Kilbourn v. Thompson, U. See also Barenblatt v. The scope of the power of inquiry, in short, is as penetrating and far reaching as the potential power to enact and appropriate under the Constitution.
It is justified solely as an adjunct to the legislative process. For example, the D. Circuit has held that because of the "investigative" rather than "criminal" nature of committee hearings, the Sixth Amendment's individual criminal procedural guarantees, including a party's right to "present evidence on one's own behalf and to confront and cross examine one's accusers," do not apply.
Fort, F. C Cir. Quinn v. A document is only protected under the privilege if it is 1 "predecisional" i. See In re Sealed Case, F. See United States v. Nixon, U. In re Sealed Case, F. Rule 4 g "Claims of common-law privileges made by witnesses in hearings, or by interviewees or deponents in investigations or inquiries, are applicable only at the discretion of the Chairman, subject to appeal to the Committee. See Lincoln v. Committee report language, in addition to other forms of legislative history, can also impact how a court interprets ambiguous statutory language.
See Garcia v. S ee Vigil , U. Report language is also commonly included in the joint explanatory statement accompanying the conference report issued by a conference committee of the House and Senate.
In recent years, it has become common for the chambers, when resolving their legislative differences in a manner other by conference committee, to publish an "Explanatory Statement" or "Statement of Managers" which serves the same purpose.
See Clinton Mem'l Hosp. Shalala, 10 F. Committee report language can become binding if it is incorporated by reference into the enacted law.
See 64 Comp. Richard Fenno, The Power of the Purse: Appropriations Politics in Congress 18 "[T]he criticisms and suggestions carried in the reports accompanying each bill are expected to influence the subsequent behavior of the agency.
Committee reports are not the law, but it is expected that they be regarded almost as seriously. Roberts, supra note , at —63 noting that "agencies make special efforts to catalogue and track" report language that interprets ambiguous statutory language, and arguing that "[t]hey do so not because committee report language is 'law' in the same sense as the statute is law, but rather because committee direction is part of the complicated system of communication between Congress and the agencies, involving authorization of new programs, appropriation of funds, and general oversight of agency operations" ; In re LTV Aerospace Corp.
They ignore such expressions of intent at the peril of strained relations with the Congress. The Executive Branch. This duty, however, must be understood to fall short of a statutory requirement giving rise to a legal infraction where there is a failure to carry out that duty.
See Richard J. The answer lies in the agency's working assumption that an agency cannot afford to risk angering the legislative committee that is primarily responsible for its current and future appropriations. Most commonly, the agency agrees to obtain subcommittee approval before departing substantially from—that is, 'reprogramming'—the expenditure breakdown that the agency advanced in its budget justifications or that committee adopted in the report accompanying the agency's appropriations.
There is a general agency practice of adhering to reprogramming agreements—a practice so well established that in most cases the agreements are treated as 'binding' by all concerned. For additional examples of "directives" contained in committee reports see Lazarus, supra note , at —52 discussing committee report language pertaining to the obligations of Environmental Protection Agency, the Fish and Wildlife Service, and the Forest Service.
Chadha, U. For example, as a matter of institutional practice, individual Senators can delay consideration of executive branch nominees by placing "holds" on nominations and delay or even prevent consideration of legislation affecting administrative agencies via the filibuster. And individual Members of the House can introduce resolutions of inquiry. See supra " Resolutions of Inquiry. Some committees, for instance, authorize their chair to issue subpoenas.
United States Term Limits v. Thornton, U. While the agency's responsibility to provide the requested information is drafted in mandatory terms, courts have, in certain instances, refused to assert jurisdiction over suits concerning agency non-compliance with Section See Cummings , F. Thompson, No. July 24, Many statutes authorize or direct agencies to disclose certain records to Congress or congressional committees, but do not specifically include a reference to individual Members.
For example, under the Privacy Act, an agency may disclose otherwise protected information about an individual "to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee. DOJ has concluded that only committee chairs are authorized to obtain records on behalf of committees under the congressional-disclosure provision of the Privacy Act and FOIA's special-access provision.
Under DOJ's interpretation, even ranking minority members are unable to obtain records pursuant to these provisions, absent authorization. This interpretation, however, is not universally held. Dep't of the Army, F. HHS, F. To pursue a lawsuit in federal court, a plaintiff must have "standing.
Under Article III, a plaintiff has standing only if he alleges "that he ' 1 suffered an injury in fact, 2 that is fairly traceable to the challenged conduct of the defendant, and 3 that is likely to be redressed by a favorable judicial decision. Whitford, S. Robins, S. In addition, courts impose "prudential" standing requirements that do not stem from the Constitution and which Congress can therefore overrule.
The prudential standing doctrine "encompass[es]. Static Control Components, Inc. McCormack, U. In Raines , the Supreme Court distinguished the plaintiffs' challenge therein from that raised in Powell , reasoning that Representative Powell's injury amounted to the "loss of [a] private right"—the Representative's loss of his seat and concomitant congressional salary—which was a personal and far more concrete injury than the abstract "loss of political power" that characterized the plaintiffs' injury in Raines.
Raines , U. The Member-plaintiffs alleged that the Act 1 "alter[ed] the legal and practical effect" of their votes on bills covered by the Act, 2 "divest[ed them] of their constitutional role in the repeal of legislation," and 3 "alter[ed] the constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures containing separately vetoable items and with respect to other matters coming before Congress.
The Supreme Court, however, held that the plaintiffs were without standing to pursue their claim because they did not allege a personal injury to themselves and the institutional injury they asserted "was wholly abstract and widely dispersed.
See Coleman v. Miller, U. In Coleman , the Kansas state senate had been evenly divided on a proposed amendment to the U. Constitution, with twenty senators voting in favor and twenty against the amendment. The lieutenant governor cast the deciding vote in favor. The twenty senators who opposed the amendment as well as an additional senator and three members of the state's lower chamber brought suit, challenging the lieutenant governor's authority to cast the tie-breaking vote.
The Supreme Court held that the legislators had standing to sue, reasoning that they "have a plain, direct and adequate interest in maintaining the effectiveness of their votes," and emphasizing that "if they are right in their contentions their votes would have been sufficient to defeat ratification. The Raines Court later clarified that "our holding in Coleman stands at most [] for the proposition that legislators whose votes would have been sufficient to defeat or enact a specific legislative act have standing to sue if that legislative action goes into effect or does not go into effect on the ground that their votes have been completely nullified.
Courts often hold that vote nullification is not present where legislative remedies e. See Campbell v. Clinton, F. Obama, F.
See Common Cause v. Biden, F. But see Blumenthal v. Trump, No. In Blumenthal , the U. The district court held that the plaintiffs had adequately alleged that, in accepting purportedly prohibited foreign emoluments without first seeking Congress's consent, the President "has completely nullified [the Members'] votes," and that "he will completely nullify their votes in the future for the same reason, as plaintiffs allege that he intends to continue this practice. Blumenthal , however, may not be broadly applicable, as "[t]he nature and source of the [plaintiffs'] claim is an unusual constitutional provision which unambiguously prohibits the President from accepting any [foreign] emolument.
Three individual Senators and members of the Senate's Committee on the Judiciary recently filed suit in the U. Complaint for Declaratory and Injunctive Relief, Blumenthal v. Whitaker, No. As of the date of this report, the defendants have not yet responded. Hobby Lobby Stores, Inc. Noel Canning, No. HHS, Nos. Dep't of Transp. Volpe, F.
Sharpe, Judging Congressional Oversight , 65 Admin. Kempthorne, F. See Pillsbury , F. Peter Kiewit Sons' Co. Army Corps of Engineers, F. Sierra Club. Costle, F. Topic Areas About Donate. Summary The Constitution neither establishes administrative agencies nor explicitly prescribes the manner by which they may be created.
Statutory Control of Executive Branch Agencies Congress's power to create agencies is well established. Four Pillars of Statutory Control Congress's ability to control administrative agencies through the exercise of legislative power is a holistic endeavor perhaps best understood as built upon four basic pillars: structural design, delegation of authority, procedural controls on agency decisionmaking, and agency funding.
Structural Design How an agency is structured invariably affects how it operates, and what sort of relationship it has with the Congress and the President. Delegation of Authority In general, an agency has only that authority which has been delegated to it by Congress. Constitutional Limits on Non-statutory Legislative Actions The Constitution's required lawmaking procedures impose significant limitations on how Congress and its component parts i. Significant Tools Available to both the House and Senate Some of the most significant non-statutory tools are available to both houses of Congress.
Criminal Contempt of Congress While expressions of disapproval through censure or similar mechanisms do not carry direct legal consequences, legal penalties potentially attach to an individual's refusal to comply with a valid congressional subpoena. Impeachment The Constitution establishes a bifurcated process for impeachment and removal, with the House of Representatives accorded the "sole Power" to impeach federal government officials, and the Senate given "the sole Power to try all Impeachments," with the immediate consequence of Senate conviction being an official's removal from office.
Senate Civil Enforcement of Subpoenas Like the House, the Senate may seek to enforce a subpoena by instituting civil proceedings in federal court. Tools for Congressional Committees Among the tools to influence agency action available to congressional committees of both houses are the power of investigative oversight and the use of committee report language. Daniel J. Sheffner, Legislative Attorney [email address scrubbed] , [phone number scrubbed]. Footnotes 1. An Act to Establish the Treasury Department, ch.
Springer v. Gov't of Philippine Islands, U. Sawyer, U. See infra note Buckley v. Free Enter. Fund , U. Myers , U. Humphrey's Ex'r , U.
Morrison, U. Morrison , U. See infra text accompanying notes — See Beermann, supra note 68, at — Lovett , U. Chadha , U. Bowsher v. Brown, supra note , at 5. None of the resolutions passed. For example, the House report underlying President Bill Clinton's impeachment argued that, for the President or any other civil officer, censure as a shaming punishment by the legislature is precluded by the Constitution, since the impeachment provisions permit Congress only to remove an officer of another branch of government and disqualify him from office.
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The judges would then be assigned cases based not on the agency from which the case arose, but on whether the case involved economics, medicine, or science. These independent administrative courts would also decide cases quickly and cheaply. There is no reason why they could not use many of the same streamlined procedures that agencies currently employ to adjudicate cases.
With these procedures and their expertise, the administrative courts should be able to exhibit the same low-cost decision-making that agencies presently do. Those rules would be enacted only if Congress passed them using the constitutional process for enacting laws. Some people argue that Congress would lack the time and expertise to perform this role, but that is untrue.
Congress could only be required to vote upon, with very restricted debate, a manageable 50 to regulations per year. Moreover, the agencies would draft the regulations, leaving to Congress the limited role of approving or disapproving them. One of the necessary reforms involves defining what constitutes a major rule.
Congress, with the advice of Office of Management and Budget , should adopt a more elaborate definition of what a major rule is and how the definition should be applied. Finally, deference to agencies should be greatly reduced or eliminated. For agency adjudications held before independent courts, there should be no deference for adjudicatory facts.
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