Congressional Lawmaking: A Perspective On Secrecy and Transparency (Nov. 30, 2011, R42108) outlines briefly the historical and inherent tension between secrecy and transparency in the congressional process and identifies various lawmaking stages typically imbued with closed door activities. From the report:
Openness is fundamental to representative government. Yet the congressional process is replete with activities and actions that are private and not observable by the public. How to distinguish reasonable legislative secrecy from impractical transparency is a topic that produces disagreement on Capitol Hill and elsewhere. Why? Because lawmaking is critical to the governance of the nation. Scores of people in the attentive public want to observe and learn about congressional proceedings. … Yet secrecy is an ever-present part of much legislative policymaking; however, secrecy and transparency are not “either/or” constructs. They overlap constantly during the various policymaking stages.
“Of the many ways that the U.S. House of Representatives fails to mirror the nation as a whole, here’s an underrated one: The educational attainment of our representatives far surpasses that of the electorate,” writes Ben Myers and Peter Olsen-Phillips for The Chronicle of Higher Education in In Congress, Even Lawmakers’ Degrees Are a Partisan Issue How higher education is shaping the House of Representatives. This article provides a demographic analysis of the levels of educational attainment of House members from the 103rd Congress to the 115th Congress in an interactive format. Interesting. — Joe
We’re probably going to hear a lot about the Trump administration’s attempts to claim executive privilege in the coming months as the Russia probe progresses. By citing Comey’s private conversations in Trump’s termination letter to Comey, for example, has President Trump undermined any future claims of executive privilege to them?
Quoting from the CRS report, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments (Dec. 15, 2014 R42670):
Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution.
Supreme Court decisions have left considerable gaps in the law of presidential privilege. Among the more significant issues left open include whether the President must have actually seen or been familiar with the disputed matter; whether the presidential privilege encompasses documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the executive branch, outside of the Executive Office of the President; whether the privilege encompasses all communications with respect to which the President may be interested or is confined to presidential decision making and, if so, whether it is limited to a particular type of presidential decision making; and precisely what kind of demonstration of need must be shown to overcome the privilege and compel disclosure of the materials.
It can be argued that Congress has significantly more constitutional power than we are accustomed to seeing it exercise and that by failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. Sharing this point of view, Josh Chafetz’s Congress’s Constitution, 160 University of Pennsylvania Law Review 715 (2012) “considers a number of constitutional tools that individual houses – and even individual members – of Congress, acting alone, can deploy in interbranch conflicts.” From the law review’s abstract:
Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set of tools in an ongoing interbranch power struggle. This holistic perspective is necessary because these powers in combination are much greater than the sum of their parts.”
Borrowing terminology from international relations scholarship, this Article groups the congressional powers under discussion into “hard” and “soft” varieties. Congressional hard powers are tangible and coercive; the hard powers discussed in this Article are the power of the purse and the contempt power. Congressional soft powers are intangible and persuasive; soft powers considered by this Article include Congress’s freedom of speech and debate, the houses’ disciplinary power over their own members, and their power to determine the rules of their proceedings. Each of these powers presents opportunities for Congress to enhance its standing with the public, and thereby enhance its power. This Article aims to demonstrate both the ways in which these powers are mutually supporting and reinforcing and the ways in which Congress underutilizes them. In doing so, the Article examines a number of examples of congressional use of, and failure to use, these powers, including the release of the Pentagon Papers, the 1995–1996 government shutdowns and 2011 near-shutdown, the 2007–2009 contempt-of-Congress proceedings against White House officials, and the use of the filibuster, among others.
See also, Peter Shane’s When Inter-branch Norms Break Down: Of Arms-for-Hostages, ‘Orderly Shutdowns,’ Presidential Impeachments, and Judicial ‘Coups’. 12 Cornell Journal of Law and Public Policy, 503 (2004). — Joe
The Protection of Classified Information: The Legal Framework (Jan. 10, 2013, RS21900) provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. — Joe
The FBI director is appointed by the President by and with the advice and consent of the Senate. The position of FBI Director has a fixed 10-year term, and the officeholder cannot be reappointed, unless Congress acts to allow a second appointment of the incumbent. There are no statutory conditions on the President’s authority to remove the FBI Director. FBI Director: Appointment and Tenure (Feb. 19, 2014, R41850) provides an overview of the development of the process for appointing the FBI director. — Joe
“This is a tense and uncertain time in the nation’s history. The president of the United States, who is no more above the law than any other citizen, has now decisively crippled the F.B.I.’s ability to carry out an investigation of him and his associates. There is no guarantee that Mr. Comey’s replacement, who will be chosen by Mr. Trump, will continue that investigation; in fact, there are already hints to the contrary.” — New York Times editorial, Donald Trump’s Firing of James Comey (May 9, 2017)
On May 9, 2017, President Trump fired former FBI director James Comey. Here’s a document that includes President Trump’s letter to Director Comey, AG Sessions’ letter to President Trump, and the DOJ legal analysis and recommendation to fire Comey. See also, Annotated letter: The Trump administration’s case for firing FBI Director James Comey, Los Angeles Times, May 10, 2017.
In the wake of that news, Democrats in Congress — and a few Republicans — rose to demand a special prosecutor for the Russia investigation last night. More Than 100 Lawmakers Respond to Comey Firing by Calling for Independent Russia Probe, Mother Jones, May 9, 2017. Some people went even further.
Last evening Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School called on House Speaker Ryan to begin an impeachment proceeding immediately in this tweet: “Not even a special counsel whom Trump can sack will suffice. If Ryan has any integrity at all he MUST initiate an impeachment inquiry NOW!” Tribe followed up this morning, tweeting “This fox is emptying the henhouse. Trump has crossed the line. He is covering up high crimes and misdemeanors” and in another tweet Tribe wrote “It’s now up to Congress to save the Constitution by initiating impeachment proceedings. Trump can’t say “You’re fired” to the House of Reps.”
Special prosecutor or impeachment inquiry, what do you think? — Joe
End Note: An LLB backgrounder on impeachment resources can be found here.
The Washington Post has published the full transcript here. — Joe
Following several LLB posts covering “Trump trackers,” here is an unusual addition to the list. On April 27th, MoveOn.org unveiled a new website, TrumpTruthHiders.com. The website is “an online tracker designed to expose how House Republicans have acted to hide the truth about Trump’s presidency—obscuring their votes in support of Trump’s agenda from their constituents.” In New Website Tracks GOP Voting Record Supporting Trump’s Dangerous Policy Agenda, Jo Comerford, campaign director for MoveOn.org. is quoted: “MoveOn worked with Members of Congress to launch TrumpTruthHiders.com so that the American people can see this infuriating display of hypocrisy in real time.” — Joe
With the emoluments lawsuit proceeding, interest in presidential impeachment is increasing. The impeachment process provides a mechanism for removal of the President found to have engaged in “treason, bribery, or other high crimes and misdemeanors.” The Constitution places the responsibility and authority to determine whether to impeach and to draft articles of impeachment in the hands of the House of Representatives. Should the House vote to impeach and vote articles of impeachment specifying the grounds upon which impeachment is based, the matter is then presented to the Senate for trial. Under the Constitution, the Senate has the sole power to try an impeachment. The decision whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment. Should a conviction occur, the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of “honor, Trust or Profit under the United States.”
For background see these CRS reports, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice (Dec. 9, 2010, 98-186) and Impeachment and Removal (Oct. 29, 2015, R44260). See also, Frank O. Bowman and Stephen L. Sepinuck, ‘High Crimes & Misdemeanors’: Defining the Constitutional Limits on Presidential Impeachment, 72 Southern California Law Review 1517 (1999)(Arguing there are impeachable offenses for which Congress may constitutionally and properly decide not to impeach or remove a President.) and Michael J. Gerhardt’s The Lessons of Impeachment History, 67 George Washington Law Review 603 (1999)(“[M]y focus has been to clarify what constitutional structure and history has to teach us about the process of impeachment. … These lessons in turn help to clarify the kinds of questions that members of Congress should ask and the kinds of factors members of Congress should take into consideration when trying to decide whether to impeach and remove the President of the United States.”)
End Note: What role might SCOTUS play in a presidential impeachment? Presidential Impeachment: The Legal Standard and Procedure (Findlaw) notes that “the Supreme Court of the United States has decided that it should not review judicial impeachments, using the ‘political question’ doctrine to sidestep the issue. Walter Nixon v. United States, 506 U.S. 224 (1993). Concurring opinions by Justice White and Justice Souter in this case offer the following dicta on presidential impeachments:
The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:
“Finally, as applied to the special case of the President, the majority’s argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis.”
This view is echoed by Justice Souter in his concurring opinion in the same case: “If the Senate were to act in a manner seriously threatening the integrity of its results…judicial interference might well be appropriate.” Walter Nixon v. United States, 506 U.S. at 253.
Apparently the answer is “yes” according to Univ. of Virginia law prof and former chief of staff of the Joint Committee on Taxation, George K. Yin. Yin writes
President Trump’s continuing refusal to release his tax returns despite the contrary common practice of presidents over the last 40 years has spurred interest in finding alternative ways to obtain the information. This article describes the authority of Congress, under section 6103(f)(1) and (4)(A), to obtain, inspect, and disclose the confidential tax information of any taxpayer, including the president, without the taxpayer’s consent. The authority may be exercised by any one of three tax committees: the House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation.
For details, see Yin’s article Congressional Authority to Obtain And Release Tax Returns, 154 Tax Notes 1013 (2017). Interesting. — Joe
Librarian of Congress James Billington abruptly retired on September 30th instead of January as previously announced. Then the Christian Science Monitor follows up with this unflattering article on the LOC’s lack of technology chops. Interesting.
The U.S. Copyright Office has issued a new report, Orphan Works And Mass Digitization, which identifies legislative proposals and other considerations to create mechanisms that allow for legal use of orphan works and mass digitization. The report builds on earlier examinations of the issues released in 2006 and 2011.
From the Executive Summary:
While the fundamental aspects of orphan works and mass digitization have remained unchanged since the Office’s prior reviews, a number of important domestic and international developments have affected the legal landscape. In the United States, it is difficult to separate the issue of mass digitization from two lawsuits arising out of the Google Books project, in which authors and book publishers have asserted violations of their exclusive rights and Google and libraries have asserted fair use.4 Recent decisions in these cases have magnified the public debate surrounding the costs and benefits arising from digitization projects more generally, and how best to license, except, or otherwise regulate them under the law.
Meanwhile, a growing number of countries have adopted legislative responses to both orphan works and mass digitization, ranging from calibrated exceptions to government licenses to extended collective licensing. And, private entities have developed innovative new copyright information registries and other resources to more efficiently bring rightsholders together with those seeking to use their works.
These combined developments – all of which will have substantial ramifications for U.S. copyright stakeholders – strongly suggest that it is time to revisit potential solutions in the United States. The goal in doing so is not to interfere with jurisprudence, but rather to ensure that the rules are clear and that all parties are on equal footing. Indeed, with so many equities at stake, the complexity and breadth of the issues make them well suited for legislative action.5 While the Office has addressed these issues together in this Report, we recommend separate solutions.
The Copyright Office was opposed to the Google Book Settlement which was ultimately rejected by the trial court. The current report (PDF) is available here. Perhaps Congress will get around to actually making reforms in the copyright laws to account for orphan works and digitization projects.
The Supreme Court issued one opinion this morning. That case, Zivotosky v. Kerry (13-628), resolves a long standing court battle on whether a U.S. passport issued to a citizen born in Jerusalem can state the country of birth as Israel. The current administration, as well as every previous administration since the United States recognition of Israel in 1948, has declared that Jerusalem is not under the control of any one country. The Foreign Affairs Manual requires that passports recording of birth location be consistent with administration policy.
Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003 in 2002. Section 214 of the Act is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” Congress explicitly authorized passports to state the country of birth as Israel for those U.S. citizens born in Jerusalem. Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 and his parents requested his country of birth be listed as Jerusalem. Consular officials declined the request, setting up the present suit.
There is a long history of this case proceeding up and down the federal court system. The Supreme Court issued a procedural opinion in 2012 (Zivotofsky v. Clinton) ruling essentially that the federal courts could decide the question. Three years later the Court rules on the substantive issue, stating that the Act is unconstitutional. The rationale for this is an analysis of constitutional language, historical practice, and past precedent touching on presidential power to conduct foreign relations. The Court acknowledges that Congress can pass legislation that can regulate passports in some circumstances. Congress, cannot, however, pass legislation that affects the power of the President to recognize (or not) foreign sovereigns. This Act falls into that latter category.
What struck me most about the opinion is the number of historical secondary sources cited by the Court. It’s almost a lesson in legal research. Some of the sources include:
- Restatement (Third) of Foreign Relations Law of the United States §203, Comment a, p. 84 (1986)
- 2 M. Whiteman, Digest of International Law §1, p. 1 (1963)
- 1 J. Moore, Digest of International Law §27, p. 73 (1906)
- I. Brownlie, Principles of Public International Law 93 (7th ed. 2008) (Brownlie)
- The Federalist No. 69, p. 420 (C. Rossiter ed. 1961)
- E. de Vattel, The Law of Nations §78, p. 461 (1758) (J. Chitty ed. 1853)
- 2 C. van Bynkershoek, On Questions of Public Law 156–157 (1737) (T. Frank ed. 1930)
- 2 H. Grotius, On the Law of War and Peace 440–441 (1625) (F. Kelsey ed. 1925)
- 3 J. Story, Commentaries on the Constitution of the United States §1560, p. 416 (1833)
There are more. I point this out as someone who has taught Advanced Legal Research, emphasizing that researching international and constitutional law issues requires attention to historical literature. There is more to interpretation than the latest hornbooks. The Court’s opinion today validates that. The Clerks did a marvelous job in working on this case. I’ll leave the impact of today’s decision to the commentators in the new.
Justice Kennedy delivered the opinion of the Court and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Breyer filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment and dissenting in part. That makes it 6-3. Chief Justice Roberts filed a dissenting opinion and was joined by Justice Alito. Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Alito.
As (I hope) we all know by now, Congress.gov is moving into full production today and Thomas.gov’s tombstone is expected to read RIP, 1995-2013, soon. In case someone has not read Andrew Weber’s Sept. 23, 2013 In Custodia Legis post for guidance, see The Transition from THOMAS.gov to Congress.gov.
What may have been lost in this domain transition news is David Moore’s Oct. 29, 2013 announcement that OpenCongress.org has been acquired by the Sunlight Foundation from Participatory Politics Foundation. Details here. — Joe
Congressional lawmakers—more than two-fifths of whom are lawyers by education—often can’t resist from referring to their law school days when in need of a pithy anecdote for speechifying.
In remarks on the House and Senate floors, members of Congress this year brought up law school in a variety of ways, from arguing that an issue is too difficult to understand—not even a lawyer can figure it out!—to saying that a concept is so easy to grasp that even a first-year law student would not be vexed. Need to make fun of yourself? Mention how you didn’t get into Harvard Law School. Trying to fill time during a filibuster? Tell a story about law school. — Todd Ruger
Ruger proceeds to list seven of the best law school mentions in his National Law Journal article (free registration required). — Joe