Category Archives: Congress

CRS report: Resolutions to Censure the President: Procedure and History

From the introduction to Resolutions to Censure the President: Procedure and History (Feb. 1, 2018 R45087):

Censure is a reprimand adopted by one or both chambers of Congress against a Member of Congress, President, federal judge, or other government official. While Member censure is a disciplinary measure that is sanctioned by the Constitution (Article 1, Section 5), non-Member censure is not. Rather, it is a formal expression or “sense of” one or both houses of Congress. As such, censure resolutions targeting non-Members use a variety of statements to highlight conduct deemed by the resolutions’ sponsors to be inappropriate or unauthorized.

Resolutions that attempt to censure the President for abuse of power, ethics violations, or other behavior, are usually simple resolutions. These resolutions are not privileged for consideration in the House or Senate. They are, instead, considered under the regular parliamentary mechanisms used to process “sense of” legislation.

H/T to beSpacific. For links to additional CRS reports on this topic, see the LLB post. — Joe

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law?

For an answer to the post title’s question, see Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stanford Law Review 901 (2013) and Part II, 66 Stanford Law Review ___ (2014) by Abbe R. Gluck and Lisa Schultz Bressman. Here’s the abstract for Part I:

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

Recommended. — Joe

CRS report: Congressional Budget Resolutions: Historical Information

From the summary of Congressional Budget Resolutions: Historical Information (Nov. 16, 2015 RL30297):

The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, as amended; 2 U.S.C. 601-688) provides for the annual adoption of a concurrent resolution on the budget each year. The congressional budget resolution represents a budget plan for the upcoming fiscal year and at least the following four fiscal years. As a concurrent resolution, it is not presented to the President for his signature and thus does not become law. Instead, when adopted by Congress, the budget resolution serves as an agreement between the House and Senate on a congressional budget plan. As such, it provides the framework for subsequent legislative action on budget matters during each congressional session.

— Joe

CRS report on the debt limit

From the introduction of The Debt Limit Since 2011 (Jan. 19, 2018 R43389):

On September 6, 2017, an agreement on the debt limit and a continuing resolution was announced between President Trump and congressional leaders. Two days later a measure (P.L. 115-56) was enacted to implement that agreement, which included a suspension of the debt limit through December 8, 2017. Once that suspension lapsed, Treasury Secretary Mnuchin invoked authorities to employ extraordinary measures. One recent estimate suggests those would last until sometime in early March and another indicated the critical date could fall between late February and late March 2018. Secretary Mnuchin reportedly asked some congressional leaders to act on the debt limit before the end of February 2018.

— Joe

CRS report: Unauthorized Childhood Arrivals: Legislative Options

From Unauthorized Childhood Arrivals: Legislative Options (Sept. 14, 2017 IN10777):

In 2012, the Department of Homeland Security (DHS) began granting deferred action through the Deferred Action for Childhood Arrivals (DACA) program to certain individuals without lawful immigration status who had arrived in the United States as children and met other requirements. The requirements included initial entry into the United States before age 16, continuous U.S. residence since June 15, 2007, and being under age 31 as of June 15, 2012. Deferred action provides protection against removal from the United States. Individuals granted deferred action also may receive work authorization. Initial grants of deferred action under DACA were for two years and could be renewed in two-year increments. As of March 31, 2017, DHS had approved 787,580 initial requests for DACA from applicants residing in all 50 states, the District of Columbia, and several U.S. territories.

On September 5, 2017, the Trump Administration announced plans to terminate the DACA program. In a memorandum issued the same day, DHS explained that DACA would be phased out and that beneficiaries whose grants of deferred action were set to expire after March 5, 2018, would not be able to request a renewal. As a result, under the Administration’s plan, a beneficiary whose period of deferred action expires after March 5, 2018, will lose DACA protection on the expiration date.

— Joe

CRS report on the debt limit

From the CRS report, The Debt Limit Since 2011 (Jan. 19, 2018 R43389): “On September 6, 2017, an agreement on the debt limit and a continuing resolution was announced between President Trump and congressional leaders. Two days later a measure (P.L. 115-56) was enacted to implement that agreement, which included a suspension of the debt limit through December 8, 2017. Once that suspension lapsed, Treasury Secretary Mnuchin invoked authorities to employ extraordinary measures. One recent estimate suggests those would last until sometime in early March and another indicated the critical date could fall between late February and late March 2018. Secretary Mnuchin reportedly asked some congressional leaders to act on the debt limit before the end of February 2018.” — Joe

Membership profile of the 115th Congress

Membership of the 115th Congress: A Profile (CRS R44762 Jan. 17, 2018) “presents a profile of the membership of the 115th Congress (2017-2018) as of January 3, 2018. Statistical information is included on selected characteristics of Members, including data on party affiliation, average age, occupation, education, length of congressional service, religious affiliation, gender, ethnicity, foreign births, and military service.” — Joe

Democrats push to censure Trump [text]

H.Res. 496 “censures and condemns President Trump for his inadequate response to the violence in Charlottesville, Virginia, on August 12, 2017, for his failure to condemn the White supremacist groups responsible for actions of domestic terrorism, for asserting that “both sides” were to blame and excusing the violent behavior of participants in the Unite the Right rally, and for employing people with ties to White supremacist movements in the White House” and “urges President Trump to fire all White House advisors who have urged him to cater to the White supremacist movement.” Introduced on Aug. 18, 2017, H.Res. 496 now has 134 cosponsors, all Democrats. Here’s the text. — Joe

House Intel Committee releases Glenn Simpson transcript

Simpson is the co-founder of the opposition research firm Fusion GPC, the firm associated with the Steele dossier. Here’s the text. Recommended. — Joe

Censuring the President: Selected CRS reports

Censure of the President by the Congress (December 8, 1998 98-843): “Exploring a possible compromise between an impeachment and taking no congressional action, certain Members of Congress and congressional commentators have suggested a congressional “censure” of the President to express the Congress’ disapproval of the President’s conduct which has been the subject of an ongoing independent counsel investigation. This report provides an overview and discussion of the legal basis and congressional precedents regarding a congressional “censure” of the President.”

Congressional Consideration of Resolutions to “Censure” Executive Branch Officials (September 14, 2017 IN10774): “Over the history of the federal Congress, Members have proposed resolutions to formally express the House or Senate’s censure, disapproval, loss of confidence, or condemnation of the President or other executive branch official or their actions. This Insight summarizes the parliamentary procedures the House and Senate might use to consider a resolution to censure or condemn an executive branch official and provides links to additional reading material on the subject.

Two Types of “Censure” Resolutions

An important distinction should be made between two types of “censure” resolutions: (1) resolutions expressing the sense of the House or Senate that the behavior or actions of an executive branch official should be condemned or censured and (2) resolutions that censure a Member of Congress for “disorderly behavior,” including ethical violations.

Resolutions that censure officials of the executive branch for abuse of power or inappropriate behavior, including ethical violations, are usually simple resolutions of the House or Senate. Such resolutions, however, are distinct in an important way from the simple resolutions by which either chamber may censure one of its own Members, even though the reasons for censure may be similar. Article I, Section 5, of the Constitution grants each chamber the power to discipline its own members, and resolutions censuring a Senator or Representative are based on this power. Resolutions censuring an official of another branch, on the other hand, are merely expressions of the sense of the House or the Senate about the conduct of an individual over whom Congress has no disciplinary authority (except through impeachment). Consequently, both houses treat these two types of “censure” resolutions very differently in a parliamentary sense. Resolutions of either type, however, have been rare.”

Also, Resolutions Censuring the President: History and Context, 1st-114th Congresses (September 14, 2017 IN10775). — Joe

CRS report: Introduction to the Legislative Process in the U.S. Congress

Introduction to the Legislative Process in the U.S. Congress ( Jan. 10, 2018 R42843) “introduces the main steps through which a bill (or other item of business) may travel in the legislative process—from introduction to committee and floor consideration to possible presidential consideration. However, the process by which a bill can become law is rarely predictable and can vary significantly from bill to bill. In fact, for many bills, the process will not follow the sequence of congressional stages that are often understood to make up the legislative process. This report presents a look at each of the common stages through which a bill may move, but complications and variations abound in practice.” — Joe

How effective are resolutions of inquiry as a parliamentary oversight tool in the House?

From the CRS report, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017 (Nov. 9, 2017 R40879):

A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.

Although Representatives of both political parties have utilized resolutions of inquiry, in recent Congresses, such resolutions have overwhelmingly become a tool of the minority party in the House. This development has led some to question whether resolutions of inquiry are being used primarily for partisan gain or are unduly increasing the workload of certain House committees. Others have attributed the increase to a frustration among minority party Members over their inability to readily obtain information from the executive branch.

Available data suggest that 28% of the time, a resolution of inquiry has resulted in the production of information to the House. In half of the cases examined here, however, it is simply unknown, unclear, or in dispute whether the resolution of inquiry produced any of the requested information, a fact which might suggest the need for additional investigation of the efficacy of this parliamentary oversight tool by policymakers.

— Joe

Sexual harassment in the halls of Congress

Legal doctrines condemning the extortion of sexual favors as a condition of employment or job advancement and other sexually offensive workplace behaviors resulting in a “hostile environment” have evolved from judicial decisions under Title VII of the 1964 Civil Rights Act and other federal equal employment opportunity laws. The earlier judicial focus on economic detriment or quid pro quo harassment — that is, making submission to sexual demands a condition of job benefits — has largely given way to Title VII claims alleging harassment that creates an “intimidating, hostile, or offensive environment.”

One such hostile work environment for women is the halls of Congress. For example, in 2006, Republican Rep. Mark Foley of Florida resigned after being accused of sexually harassing teenagers who served as pages. In 2010, Democratic Rep. Eric Massa of New York resigned after aides accused him of making unwanted sexual overtures. In 2015, GOP Rep. Blake Farenthold of Texas settled a lawsuit brought by a former aide who’d accused him of sexual harassment. Affairs with aides, meanwhile, led to the resignations of two other Republicans, Rep. Mark Souder of Indiana, in 2010, and Sen. John Ensign of Nevada, in 2011. In a 2016 survey by Congressional Quarterly, four out of 10 women reported that they saw sexual harassment as a problem in Congress while one in six had personally been victimized.

In 1995, Congress enacted The Congressional Accountability Act (CAA) aimed at ensuring its staffers enjoy the same workplace rights as those in the private sector. Sexual misconduct claims of violation of the CAA must go through a mandatory, multi-step dispute resolution process supervised by the Office of Compliance. All employees must follow established dispute resolution procedures in order to process their claims under the CAA.

The process starts with a 30-day cooling-off period where the parties continue going to work while being counseled about workplace rights. Then there would be a 15-day waiting period during which to decide whether to bring this to mediation. If the accuser chose mediation, they would be required to sign a non-disclosure agreement. Mediation would last for 30 more days. When that period ended, there would be 30 more days for a “cooling-off” period before a worker could file a formal complaint. For details, see Dispute Resolution Process – Filing a Claim on the Office of Compliance website.

Additional resources include a CAA FAQ, CAA Handbook and Office of Compliance rules and procedures. Here is the list of annual settlements of all CAA claims, not just sexual harassment ones, by year with total annual settlement amounts for all workplace disputes. — Joe

House and Senate Ethics Committees: CRS histories of their evolution and jurisdiction

Two CRS reports explain the history, evolution and jurisdictions of the House and Senate ethics committees:

— Joe

Senate Rules Restricting the Content of Conference Reports

From Senate Rules Restricting the Content of Conference Reports (Nov. 27, 2017 RS22733):

Two Senate rules affect the authority of conferees to include in their report matter that was not passed by the House or Senate before the conference committee was appointed. Colloquially, such provisions are sometimes said to have been “airdropped” into the conference report. First, Rule XXVIII precludes conference agreements from including policy provisions that were not sufficiently related to either the House or the Senate version of the legislation sent to conference. Such provisions are considered to be “out of scope” under long-standing Senate rules and precedents. Second, Paragraph 8 of Rule XLIV establishes a point of order that can be raised against “new directed spending provisions,” or provisions in a conference report that provide specific items of appropriations or direct spending that were not committed to the conference committee in either the House or Senate versions of the legislation. Both of these restrictions can be enforced on the Senate floor if any Senator chooses to raise a point of order against one or more provisions in a conference report.

The process for disposing of either a Rule XXVIII or a Rule XLIV point of order allows the Senate to strike “out of scope matter” or “new directed spending provisions” from the conference report but agree to the rest of the terms of the compromise. It is not in order, however, for either chamber to alter the text of a conference report, and therefore the process converts the text of the conference compromise minus the “new matter” or “new directed spending provisions” into an amendment.

— Joe

Removing a senator from Congress

Article I, Section 5, of the United States Constitution provides that “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” According to the Senate’s Expulsion and Censure page, since 1789, the Senate has expelled only fifteen of its entire membership. Of that number, fourteen were charged with support of the Confederacy during the Civil War. In several other cases, the Senate considered expulsion proceedings but either found the member not guilty or failed to act before the member left office. In those cases, corruption was the primary cause of complaint.

According to the CRS report Recall of Legislators and the Removal of Members of Congress from Office (Jan. 5, 2012 RL30016), “While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one’s official position. Each house has broad authority as to the grounds, nature, timing, and procedure for an expulsion of a Member. However, policy considerations, as opposed to questions of authority, have appeared to restrain the Senate and House in the exercise of expulsion when it might be considered as infringing on the electoral process, such as when the electorate knew of the past misconduct under consideration and still elected or re-elected the Member.” — Joe

Resources for Senate hearing on Russian disinformation campaign using social media giants Facebook, Twitter and Google

View and keyword search C-Span video recording of yesterday’s Senate hearing here. H/T to Gary Price, InfoDocket post.

Prepared statements of Facebook, Google and Twitter representatives here. H/T to beSpacific.

— Joe

End it, mend it or leave the electoral college system alone

“The 2016 presidential contest was noteworthy for the first simultaneous occurrence in presidential election history of four rarely occurring electoral college eventualities. These included (1) the election of a President and Vice President who received fewer popular votes than their major opponents; (2) the actions of seven ‘faithless electors,’ who voted for candidates other than those to whom they were pledged; (3) the split allocation of electoral votes in Maine, which uses the district system to allocate electors; and (4) objections to electoral votes at the joint session of Congress to count the votes.” These events are examined in detail in The Electoral College: How It Works in Contemporary Presidential Elections (May 15, 2017 RL32611). Reforming the electoral college is the subject of another recent CRS report, Electoral College Reform: Contemporary Issues for Congress (Oct. 6, 2017 R43824). From the report:

Changing the electoral college system presents several options, sometimes characterized as: “end it,” “mend it,” or “leave it alone.” Proposals to end the electoral college almost always recommend direct popular election, under which the candidates winning the most popular votes nationwide would be elected. In support of direct popular election, its advocates refer to the elections of 2000 and 2016, so-called electoral college “misfires,” in which candidates were elected with an electoral college majority, but fewer popular votes than their principal opponents.

Almost all reform proposals—“mend it”—would keep electoral votes, but eliminate electors, thus ending the faithless elector phenomenon. They would then award the electoral votes directly by one of several methods: the general ticket system on a nationwide basis; the district system that awards electoral votes on a congressional district- and statewide-vote basis; or the proportional system that awards state electoral votes in proportion to the percentage of popular votes gained by each candidate. Despite more than 30 years of legislative activity from the 1940s through the late 1970s, proposed constitutional amendments did not win the approval of two-thirds of Members of both houses of Congress required by the Constitution for referral to the states.

States can reform the electorial college without congressional intervention or amending the Constitution. Under the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct…” several states have entered into the National Popular Vote Compact to change how the electorial college operates for their states. See LLB’s Is the National Popular Vote Compact a better way to elect the next president? for details. — Joe

Text of first Articles of Impeachment against President Trump submitted to Congress

Back on May 12, 2017, CNN ran a story listing Democrats who were discussing the impeachment of President Trump. Two months later, H.Res. 438 – Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, was introduced by Rep. Brad Sherman [D-CA-30] and referred to the House Committee on the Judiciary. Here’s the text of the first articles of impeachment filed against President Trump.

H. RES. 438: Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.

IN THE HOUSE OF REPRESENTATIVES

July 12, 2017

Mr.  Sherman (for himself and Mr. Al Green of Texas) submitted the following resolution; which was referred to the Committee on the Judiciary

Resolved,  That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:

Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.

ARTICLE I

In his conduct while President of the United States, Donald John Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed and impeded the administration of justice during a Federal investigation in that:

Knowing that Federal law enforcement authorities were investigating possible criminal law violations of his former National Security Advisor, General Michael Flynn and knowing that Federal law enforcement authorities were conducting one or more investigations into Russian state interference in the 2016 campaign for President of the United States, and that such investigation(s) included the conduct of his campaign personnel and associates acting on behalf of the campaign, to include the possible collusion by those individuals with the Russian government, Donald John Trump sought to use his authority to hinder and cause the termination of such investigation(s) including through threatening, and then terminating, James Comey, who was until such termination the Director of the Federal Bureau of Investigation.

The pattern of behavior leading to the conclusion that he sought to cause the hindrance or termination of said investigation(s) include the following:

(1) Requesting that the Director of the Federal Bureau of Investigation curtail the investigation of the activities of General Michael Flynn under circumstances wherein it appeared that Director Comey might be terminated if he failed to adhere to such request.

(2) Making a determination to terminate the Director of the Federal Bureau of Investigation, and only thereafter requesting that the Deputy Attorney General provide him with a memorandum detailing inadequacies in the Director’s performance of his duties.

(3) Despite offering differing rationales for the termination of the Director of the Federal Bureau of Investigation, admitted subsequently that the main reason for the termination was that the Director would not close or alter the investigation of matters related to the involvement of Russia in the 2016 campaign for President of the United States.

(4) Stated that, once he had terminated the Director of the Federal Bureau of Investigation, the pressure of said investigation had been significantly reduced.

In all of this, Donald John Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore, Donald John Trump, by such conduct, warrants impeachment and trial, and removal from office.

— Joe

Congressional Research Service on grounds for impeachment [Resources]

The impeachment of Bill Clinton was initiated by the House of Representatives on December 19, 1998, with two charges, one of perjury and one of obstruction of justice. Some six weeks earlier on October 30, 1998, the Congressional Research Service released a six part series of selected background materials pertinent to the issue of what constitutes impeachable misconduct for purposes of Article II, section 4 of the United States Constitution:

I wonder whether this series will be updated in the near, hopefully very near, future. — Joe