Category Archives: Gov Docs

CRS report on legal authority and limitations on independent executive investigations

From the conclusion of Special Counsels, Independent Counsels, and Special Prosecutors: Legal Authority and Limitations on Independent Executive Investigations (R44857, Apr. 13, 2018):

Both Congress and the executive branch have employed a variety of means to establish independence for certain criminal investigations and prosecutions. The use of special prosecutors, independent counsels, and special counsels all have allowed for the investigation of executive branch misconduct. Nonetheless, efforts to provide independence for prosecutors from executive branch control often raise constitutional questions. In turn, proposals to statutorily protect a special counsel from removal thus raise important, but unresolved, constitutional questions about the separation of powers. As a general matter, simply insulating a future special counsel from removal except for specified reasons appears consistent with the Court’s opinion in Morrison. To the extent the current Court might depart from the functional reasoning of that case and apply a more formal approach to the question, however, such proposals might raise constitutional objections. Likewise, constitutional objections might arise against proposals aimed to insulate a special counsel in a manner beyond the framework approved in Morrison.

— Joe

Federal and state bill drafting guides

At the federal level, see House Office of Legislative Counsel, Legislative Drafting Guide and Style Manual. For a 50-state survey, see this compilation of resources produced by the National Conference of State Legislatures. — Joe

What happens when five Supreme Court justices can’t agree?

What Happens When Five Supreme Court Justices Can’t Agree? (LSB10113, Apr. 5, 2018) begins by discussing the current doctrinal framework for determining what opinion should govern when no opinion commands a majority vote. The Sidebar then explores the facts and issues involved in Hughes before examining Hughes’s potential impact. — Joe

C-SPAN’s searchable transcript of Zuckerberg’s Senate hearing

H/T to beSpacific for locating the Zuckerberg transcript — Joe

CRS on theories, tools and trends in statutory interpretation

From the introduction to Statutory Interpretation: Theories, Tools, and Trends (R45153, Apr. 5, 2018):

The two main theories of statutory interpretation — purposivism and textualism — disagree about how judges can best adhere to this ideal of legislative supremacy. The problem is especially acute in instances where it is unlikely that Congress anticipated and legislated for the specific circumstances being disputed before the court. While purposivists argue that courts should prioritize interpretations that advance the statute’s purpose, textualists maintain that a judge’s focus should be confined primarily to the statute’s text.

Regardless of their interpretive theory, judges use many of the same tools to gather evidence of statutory meaning. First, judges often begin by looking to the ordinary meaning of the statutory text. Second, courts interpret specific provisions by looking to the broader statutory context. Third, judges may turn to the canons of construction, which are presumptions about how courts ordinarily read statutes. Fourth, courts may look to the legislative history of a provision. Finally, a judge might consider how a statute has been—or will be—implemented. Although both purposivists and textualists may use any of these tools, a judge’s theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool.

This report begins by discussing the general goals of statutory interpretation, reviewing a variety of contemporary as well as historical approaches. The report then briefly describes the two primary theories of interpretation employed today, before examining the main types of tools that courts use to determine statutory meaning. The report concludes by exploring developing issues in statutory interpretation.

— Joe

House committee markups manual

A principal responsibility of House committees is to conduct markups, to select legislation to consider, to debate it and vote on amendments to it (to mark up), and to report recommendations on passage to the House. House Committee Markups: Manual of Procedures and Procedural Strategies (R41083 Mar. 27, 2018) examines procedures and strategy related to committee markups and provides sample procedural scripts. — Joe

CRS on eight methods of constitutional interpretation

“When exercising its power to review the constitutionality of governmental action, the Supreme Court has relied on certain ‘methods’ or ‘modes’ of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution. This report broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods of constitutional interpretation” is how Modes of Consitutional Interpretation (March 15, 2018 R45129) starts its overview of methods of constitutional interpretation.

Modes of constitutional interpretation covered by the report are:

  1. Textualism
  2. Original Meaning
  3. Judicial Precedent
  4. Pragmatism
  5. Moral Reasoning
  6. National Identity
  7. Structuralism
  8. Historical Practice

— Joe

CRS report on China-U.S. Trade Issues

From the Introduction of China-U.S. Trade Issues (January 23, 2018 RL33536):

[B]ilateral trade relations have become increasingly strained in recent years over a number of issues, including China’s: mixed record on implementing its WTO obligations; infringement of U.S. intellectual property (such as through cyber theft of U.S. trade secrets and forced technology requirements placed on foreign firms); increased use of industrial policies to promote and protect domestic Chinese firms; extensive trade and foreign investment restrictions; lack of transparency in trade rules and regulations; distortionary economic policies that have led to overcapacity in several industries; and its large merchandise trade surplus with the United States. China’s economic and trade conditions, policies, and acts have a significant impact on the U.S. economy as whole as well as specific U.S. sectors and thus have been of concern to Congress.

— Joe

FDLP Modernization Act of 2018, H.R. 5305, introduced

“There is good news and bad news” wrote James R. Jacobs, Free Government Information, about H.R. 5305, the FDLP Modernization Act of 2018. His analysis is highly recommended. See FDLP Modernization Act of 2018 introduced. Take action now to improve the bill! To access other related resources, visit FDLP.gov’s Title 44 Revision page. There, you will find links to related Congressional testimony, the Depository Library Council’s Title 44 recommendations, GPO’s formal comments to proposed legislation, and more. — Joe

Trump administration releases war powers report [text]

The recently released report is the topic of Lawfare’s We Read the New War Powers Report So You Don’t Have To. — Joe

Federal public health and safety policy implications for public mass shootings

From the CRS report Public Mass Shootings in the United States: Selected Implications for Federal Public Health and Safety Policy (April 16, 2013, R43004):

This report focuses on mass shootings and selected implications they have for federal policy in the areas of public health and safety. While such crimes most directly impact particular citizens in very specific communities, addressing these violent episodes involves officials at all levels of government and professionals from numerous disciplines.

— Joe

CRS on the federal government’s obligation to include countervailing information in FISA applications

From the CRS Legal Sidebar, HPSCI Memorandum Sparks Debate over FISA Application Requirements (February 14, 2018 LSB10076):

A central factual question that appears to be disputed by the competing memoranda [the declassifed Nunes memo and the still classified Schiff memo] is the degree to which information potentially undermining the FISA application’s reliability was omitted from the application. Although CRS is not in a position to answer that factual question, this Sidebar endeavors to explain the legal requirements regarding the government’s obligation to include countervailing information in FISA applications.

— Joe

Bibliography of CRS reports on mass shootings

CRS produces several reports on issues relevant to mass shootings such as yesterday’s Florida school shooting. These issues include mass murder with firearms, firearms regulation, domestic terrorism, and hate crime. For a list, see Mass Shootings and Terrorism: CRS Products (June 24, 2016 R44520). — Joe

CRS report: U.S. Family-Based Immigration Policy

From the overview of U.S. Family-Based Immigration Policy (Feb. 9, 2018 R43145):

Family reunification has historically been a key principle underlying U.S. immigration policy. It is embodied in the Immigration and Nationality Act (INA), which specifies numerical limits for five family-based immigration categories, as well as a per-country limit on total family-based immigration. The five categories include immediate relatives (spouses, minor unmarried children, and parents) of U.S. citizens and four other family-based categories that vary according to individual characteristics such as the legal status of the petitioning U.S.-based relative, and the age, family relationship, and marital status of the prospective immigrant.

Those who favor expanding family-based immigration by increasing the annual numeric limits point to the visa queue of approved prospective immigrants who must wait years separated from their U.S.-based family members until they receive a visa. Others question whether the United States has an obligation to reconstitute families of immigrants beyond their nuclear families and favor reducing permanent immigration by eliminating certain family-based preference categories. Arguments favoring restricting certain categories of family-based immigration reiterate earlier recommendations made by congressionally mandated immigration reform commissions.

— Joe

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

CRS report: The Federal Grand Jury

From the introduction to The Federal Grand Jury (May 7, 2015 95-1135):

The federal grand jury exists to investigate crimes against the United States and to secure the constitutional right of grand jury indictment. Its responsibilities require broad powers.

As an arm of the U.S. District Court which summons it, upon whose process it relies, and which will receive any indictments it returns, the grand jury’s subject matter and geographical jurisdiction is that of the court to which it is attached.

As a general rule, the law is entitled to everyone’s evidence. Witnesses subpoenaed to appear before the grand jury, therefore, will find little to excuse their appearance. Once before the panel, however, they are entitled to benefit of various constitutional, common law and statutory privileges including the right to withhold self-incriminating testimony and the security of confidentiality of their attorney-client communications. They are not, however, entitled to have an attorney with them in the grand jury room when they testify.

The grand jury conducts its business in secret. Those who attend its sessions other than witnesses may disclose its secrets only when the interests of justice permit.

Unless the independence of the grand jury is overborne, irregularities in the grand jury process ordinarily will not result in dismissal of an indictment, particularly where dismissal is sought after conviction.

The concurrence of the attorney for the government is required for the trial of any indictment voted by the grand jury. In the absence of such an endorsement or when a panel seeks to report, the court enjoys narrowly exercised discretion to dictate expungement or permit distribution of the report.

— Joe

CRS report: Temporary Protected Status: Overview and Current Issues

Here’s the abstract for the CRS report Temporary Protected Status: Overview and Current Issues (Jan. 17, 2018 RS20844):

When civil unrest, violence, or natural disasters erupt in countries around the world, concerns arise over the ability of foreign nationals in the United States from those countries to safely return. Provisions exist in the Immigration and Nationality Act (INA) to offer temporary protected status (TPS) and other forms of relief from removal under specified circumstances. The Secretary of Homeland Security has the discretion to issue TPS for periods of 6 to 18 months and can extend these periods if conditions leading to TPS designation do not change. Congress has also provided TPS legislatively. A foreign national who is granted TPS receives a registration document and employment authorization for the duration of a given TPS designation.

The United States currently provides TPS to approximately 437,000 foreign nationals from 10 countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen. TPS for Guinea, Liberia, and Sierra Leone expired in May 2017, but certain Liberians maintain relief under an administrative mechanism known as Deferred Enforced Departure (DED). Since September 2017, the Secretary of Homeland Security has announced plans to terminate TPS for four countries—El Salvador, Haiti, Nicaragua, and Sudan—and extend TPS for South Sudan. No decision about Honduras was made by the statutory deadline in November 2017, thus automatically extending that country’s designation for six months.

There is ongoing debate about whether migrants who have been living in the United States for long periods of time with TPS should receive a pathway to legal permanent resident (LPR) status. In addition, Venezuela’s political and economic strife have prompted some U.S. lawmakers to call for its designation for TPS.

— 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

Guide to online presidential resources

From the introduction to Lisa DeLuca’s Presidential research resources: A guide to online information, College & Research Libraries News, v. 79, n. 2, p. 93, Feb. 2018:

This article highlights the breadth of freely available digital collections of presidential documents. These repositories are excellent resources for presidential, political science, history, and foreign relations research. From the resources listed in this article, librarians can choose multiple starting points for student and faculty research inquiries for primary and secondary sources that include handwritten documents by the founding fathers, interview transcriptions, digitized documents, and photographs, to name a few. This article does not contain public opinion, election, or media content sources, which are an important component of presidential research.

H/T to beSpacific. — 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