From the summary of The Impeachment Process in the House of Representatives (R45769, June 14, 2019): “The House impeachment process generally proceeds in three phases: (1) initiation of the impeachment process; (2) Judiciary Committee investigation, hearings, and markup of articles of impeachment; and (3) full House consideration of the articles of impeachment.”
From the introduction to Regulating Big Tech: Legal Implications (LSB10309, June 11, 2019):
Amidst growing debate over the legal framework governing social media sites and other technology companies, several Members of Congress have expressed interest in expanding current regulations of the major American technology companies, often referred to as “Big Tech.” This Legal Sidebar provides a high-level overview of the current regulatory framework governing Big Tech, several proposed changes to that framework, and the legal issues those proposals may implicate. The Sidebar also contains a list of additional resources that may be helpful for a more detailed evaluation of any given regulatory proposal.
Excerpt from the introduction to Legislative Purpose and Adviser Immunity in Congressional Investigations (LSB10301, May 24, 2019):
The Trump Administration has recently questioned the legal validity of numerous investigative demands made by House committees. These objections have been based on various grounds, but two specific arguments will be addressed in this Sidebar:
- The President and other Administration officials have contended that certain committee demands lack a valid “legislative purpose” and therefore do not fall within Congress’s investigative authority.
- The President has made a more generalized claim that his advisers cannot be made to testify before Congress, even in the face of a committee subpoena. This position, based upon the executive branch’s longstanding conception of immunity for presidential advisers from compelled congressional testimony regarding their official duties.
From the introduction to Conference Committee and Related Procedures: An Introduction (96-708, Updated May 22, 2019):
“Conference committees are generally free to conduct their negotiations as they choose, but under the formal rules they are expected to address only the matters on which the House and Senate have disagreed. Moreover, they are to propose settlements that represent compromises between the positions of the two houses. When they have completed their work, they submit a conference report and joint explanatory statement, and the House and Senate vote on accepting the report without amendments. Only after the two houses have reached complete agreement on all provisions of a bill can it be sent to the President for his approval or veto.”
From the abstract for Rebecca Ingber, Congressional Administration of Foreign Affairs, Virginia Law Review, Vol. 106, Forthcoming:
Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.
And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. In fact, questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decisionmaking, the weight accorded the position of any given decisionmaker, the context in which the decision is made — together these shape the ultimate position the President takes.
This Article explores and critiques the foreign policy role Congress can — and does — play in structuring and rearranging the relative powers of those internal actors, and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency simply by manipulating its internal workings. There are risks to deploying such “process controls,” as I term them, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power.
Here is the abstract for Franita Tolson, The Spectrum of Congressional Authority Over Elections, 99 Boston University Law Review 317 (2019):
Congress routinely fails to articulate the source of authority pursuant to which it enacts federal statutes. This oversight forces the Supreme Court to sustain the constitutionality of these regulations based on powers that find no mention in the legislative record. The shortcomings of the record have not prevented the Court from interpreting congressional power quite broadly when a federal statute can be sustained as a lawful exercise of authority pursuant to more than one substantive constitutional provision. In the context of elections, however, the Court has been decidedly more opportunistic about whether it will examine the constitutionality of federal law within the broader spectrum of congressional authority.
In Shelby County v. Holder, for example, the Court held that section 4(b) of the Voting Rights Act of 1965 violated the equal sovereignty principle by forcing certain states to seek federal approval before implementing laws that they are otherwise constitutionally authorized to enact. Sections 4(b) and 5 suspended all changes to state election laws in covered jurisdictions, including nondiscriminatory voter qualification standards and procedural regulations that govern state elections. In prioritizing federalism over all other equally valid considerations, the Court ignored whether the Voting Rights Act was valid because congressional power could be derived, in part, from the Elections Clause. The Elections Clause gives Congress final policymaking authority over setting the times, places, and manner of federal elections. Unlike the Fourteenth and Fifteenth Amendments, a context in which the Court imposes some federalism limitations on the exercise of federal power, the Clause allows Congress to legislate without regard for state sovereignty.
The unique nature of the Elections Clause highlights the importance of applying a theoretical framework to Congress’s authority over elections that properly accounts for the presence of multiple, and sometimes conflicting, sources of federal power. Not only does the Clause allow the federal government to disregard state sovereignty, but the line between voter qualification standards, on one hand, and time, place, and manner regulations, on the other, is significantly more blurred than the caselaw indicates, resulting in the existence of hybrid regulations of uncertain constitutional mooring. This Article concludes that Congress’s sovereign authority under the Elections Clause is broad enough to reach restrictive and oppressive voter qualification standards that affect federal elections, a category that the Court has held falls squarely within the province of state authority. The uncertainty surrounding the boundaries of these regulations, as well as the presence of multiple sources of constitutional authority, means that, in some limited instances, Congress can aggressively police state action under the Elections Clause to protect the fundamental right to vote.
From the summary of Congressional Subpoenas: Enforcing Executive Branch Compliance (R45653, Mar. 27, 2019):
Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any prosecution lies within the control of the executive branch. Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help of the courts to enforce congressional demands.
From the summary of Congressional Participation in Litigation: Article III and Legislative Standing (R45636, Mar. 26, 2019):
Houses, committees, and Members of Congress periodically seek to initiate or participate in litigation to, among other purposes, advance their legislative objectives, argue that the Executive is violating their legislative prerogatives, or defend core institutional interests. However, the constitutionally based doctrine of “standing” — which requires a litigant seeking federal judicial relief to demonstrate (1) a concrete and particularized and actual or imminent injury in fact, (2) that is traceable to the allegedly unlawful actions of the opposing party and (3) that is redressable by a favorable judicial decision — may prevent legislators from pursuing litigation in federal court. The U.S. Supreme Court and the lower federal courts have issued several important opinions analyzing whether — and under what circumstances — a legislative entity has standing to seek relief.
From the summary of Congressional Access to the President’s Federal Tax Returns (LSB10275, Mar. 15, 2019)
The Chair of the House Ways and Means Committee is reportedly preparing to send a request to the Treasury Department’s Internal Revenue Service (IRS) to obtain President Trump’s federal tax returns. This request appears prompted by the President’s departure from the past practice of sitting presidents and presidential candidates voluntarily disclosing their recent tax returns. This Sidebar analyzes the ability of a congressional committee to obtain the President’s tax returns under provisions of the Internal Revenue Code (IRC); whether the President or the Treasury Secretary might have a legal basis for denying a committee request for the returns; and, if a committee successfully acquires the returns, whether those returns legally could be disclosed to the public.
Time’s Charlotte Alter profiles Alexandria Ocasio-Cortez, “the second most talked-about politician in America, after the President of the United States,” here.
From the summary of Constitutional Authority Statements and the Powers of Congress: An Overview (R44729, Mar. 11, 2019):
On January 5, 2011, the House of Representatives adopted an amendment to House Rule XII to require that Members state the constitutional basis for Congress’s power to enact the proposed legislation when introducing a bill or joint resolution. (The amendment does not pertain to concurrent or simple resolutions). This Constitutional Authority Statement (CAS) rule, found at House Rule XII, clause 7(c), was subsequently adopted by every subsequent Congress.
A CAS is fundamentally a congressional interpretation of the Constitution, in that House Rule XII requires each Member introducing a piece of legislation to attach a statement that cites the power(s) that allows Congress to enact the legislation.
From the summary of The Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress (R45248, Mar. 6, 2019):
The Congressional Review Act (CRA) allows Congress to review certain types of federal agency actions that fall under the statutory category of “rules.” The CRA requires that agencies report their rules to Congress and provides special procedures under which Congress can consider legislation to overturn those rules. A joint resolution of disapproval will become effective once both houses of Congress pass a joint resolution and it is signed by the President, or if Congress overrides the President’s veto.
The Democratic-controlled House Judiciary Committee opened a sweeping investigation Monday into President Donald Trump and his associates, requesting documents from 81 “agencies, entities, and individuals” connected to the administration and Trump’s private businesses. Here’s the full list.
The House of Representatives is scheduled to vote on the joint resolution today. The New York Times opines: “The House’s vote on a declaration of disapproval will force Republicans to choose between the congressional prerogative over federal spending established in the Constitution and a president determined to go around the legislative branch to secure funds for a border wall that Congress has refused to grant.” Read the joint resolution here.
The Constitutional Accountability Center’s issue brief, The Historical and Legal Basis for the Exercise of Congressional Oversight Authority, details the history of legislative investigations, case law approving Congress’s vast power to investigate, and the ways in which Congress can enforce subpoenas to make its investigations effective and to hold the Executive Branch accountable.
On Lawfare, Margaret Taylor presents an overview of congressional requests for executive branch information and executive privilege assertions in response here.
From the introduction to Congressional Member Organizations (CMOs) and Informal Member Groups: Their Purpose and Activities, History, and Formation (R40683, Jan. 23, 2019):
This report examines the historical development and contemporary role of Congressional Member Organizations (CMOs) in the House, as well as informal Member groups in the House, Senate, and across the chambers. Commonly, these groups are referred to as caucuses, but they will be referred to collectively as informal Member organizations in this report to avoid confusion with official party caucuses. Some examples of groups that modern observers would consider informal Member organizations date back as far as the early 1800s, but the number of groups has grown substantially since the 1990s.
On Wednesday, President Trump informed Speaker Pelosi that he was accepting the Speaker’s Jan. 3 invitation to address the nation on January 29th as to the State of the Union. [Trump letter here]. Soon thereafter Speaker Pelosi responded in writing. The Speaker wrote “I am writing to inform you that the House of Representatives will not consider a concurrent resolution authorizing the President’s State of the Union address in the House Chamber until government has opened.” [Pelosi letter here]
Bob Bauer, who served as White House Counsel to President Obama, writes in Can the Senate Decline to Try an Impeachment Case? Lawfare, Jan. 21, 2019:
The Constitution does not by its express terms direct the Senate to try an impeachment. In fact, it confers on the Senate “the sole power to try,” which is a conferral of exclusive constitutional authority and not a procedural command. The Constitution couches the power to impeach in the same terms: it is the House’s “sole power.” The House may choose to impeach or not, and one can imagine an argument that the Senate is just as free, in the exercise of its own “sole power,” to decline try any impeachment that the House elects to vote.
The Senate has options for scuttling the impeachment process beyond a simple refusal to heed the House vote. The Constitution does not specify what constitutes a “trial,” and in a 1993 case involving a judicial impeachment, the Supreme Court affirmed that the Senate’s “sole power” to “try” means that it is not subject to any limitations on how it could conduct a proceeding.