Category Archives: Gov Docs

Using Congressional Research Service Reports in LR&W instruction

Most readers are probably aware of legislative research reports produced by the Congressional Research Service. Two come readily to mind:

But there are plenty more where those came from. Here’s just a sample of CRS reports that can provide useful background reading on the federal legislative process for the legal research component of “how a bill becomes a law.”

Bills and Resolutions: Examples of How Each Kind Is Used (Dec. 2, 2010 98-706)

The Senate’s Calendar of Business (Apr. 21, 2017 98-429)

Calendars of the House of Representatives (Mar. 2, 2017 98-437)

House Floor Activity: The Daily Flow of Business (April 16, 2008 RS20233)

Introducing a Senate Bill or Resolution (Jan. 17, 2017 R44195)

Introducing a House Bill or Resolution (Jan. 12, 2017)

Sponsorship and Cosponsorship of House Bills (Jan 12, 2017 RS22477)

Types of Committee Hearings (June 28, 2017 98-317)

Hearings in the U.S. Senate: A Guide for Preparation and Procedure (Mar. 18, 2010 RL30548)

Hearings in the House of Representatives: A Guide for Preparation and Procedure (June 13, 2006 RL30539)

“Holds” in the Senate (Jan. 17, 2017 R43563)

Enrollment of Legislation: Relevant Congressional Procedures (May 18, 2017 RL34480)

Veto Override Procedure in the House and Senate (Feb. 2015 RS22654)

How Bills Amend Statutes (June 24, 2008 RS20617)

— Joe

Congressional censure and post-Charlottesville calls for Congress to censure President Trump

“Censure is not impeachment,” wrote USA Today’s Editorial Board. “Whether that’s appropriate will likely depend on the outcome of special counsel Robert Mueller’s investigation into ties between Russia and the Trump campaign. But censure would constitute a forceful way of rebuking the White House and condemning the vile views of a bigoted fringe, even as those people’s right to free speech and peaceful protest is protected under the First Amendment.” After Charlottesville, time to censure President Trump, USA Today, Aug. 16, 2017.

On Congressional censure, see Congressional Censure and “No Confidence” Votes Regarding Public Officials, (June 23, 2016). From the introduction:

The House and the Senate have, from time to time in the past, proposed and—on some occasions—adopted a resolution which has expressed the body’s disapproval, condemnation, censure, or lack of confidence regarding a particular official in the executive branch of the federal government.

Such actions have not been considered as part of the express impeachment authority of the House within the Constitution (nor the authority to try such impeachments in the Senate), nor have they generally been considered as either part of the inherent contempt authority of either house of Congress or the express constitutional authority of each house of Congress to discipline its own Members. Rather, such actions seem to be in the nature of a “sense of the House” or a “sense of the Senate” resolution, whereby a simple resolution is proposed and adopted by one house of Congress, without the concurrence of the other house of Congress, and without a requirement for a “presentment” to the President (as would be required of a “bill”). Such simple resolutions adopted by one house (or concurrent resolutions adopted by both houses) have come to be recognized by parliamentarians as a vehicle to express the opinion and sense of Congress on a nonlegislative matter; and “sense of” the House, Senate, or Congress resolutions concerning a wide range of subjects have been used frequently in the past by the House and Senate.

The adoption of a simple or concurrent resolution expressing the House’s or Senate’s “censure,” “condemnation,” or “no confidence” in a particular officer of the federal government does not have any immediate or binding legal import, but does express a particular moral judgment and may have both symbolic as well as political implications.

— Joe

Presidential Advisers’ Testimony Before Congressional Committees

From the introduction to the CRS report, Presidential Advisers’ Testimony Before Congressional Committees: An Overview (December 15, 2014, RL31351):

Since the beginning of the federal government, Presidents have called upon executive branch officials to provide them with advice regarding matters of policy and administration. While Cabinet members were among the first to play such a role, the creation of the Executive Office of the President (EOP) in 1939 and the various agencies located within that structure resulted in a large increase in the number and variety of presidential advisers. All senior staff members of the White House Office and the leaders of the various EOP agencies and instrumentalities could be said to serve as advisers to the President.

Occasionally, these executive branch officials playing a presidential advisory role have been called upon to testify before congressional committees and subcommittees. Sometimes, such invited appearances have been prompted by allegations of personal misconduct on the part of the official, but they have also included instances when accountability for policymaking and administrative or managerial actions have instigated the request for testimony. Because such appearances before congressional committees or subcommittees seemingly could result in demands for advice proffered to the President, or the disclosure—inadvertent or otherwise—of such advice, there has been resistance, from time to time, by the Chief Executive to allowing such testimony.

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

A congressional committee may request (informally or by a letter from the committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser. However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser. Conflicts concerning congressional requests or demands for executive branch testimony or documents often involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of the testimony or information to be provided to Congress.

— Joe

Options for independent executive branch criminal investigations

Following on the heels of this May 2017 CRS report, Special Counsels, Independent Counsels, and Special Prosecutors: Options for Independent Executive Investigations (R44857) was published in June. The report notes “because of the potential conflicts of interest that may arise when the executive branch investigates itself (e.g., the Watergate investigation), there have been calls for an independently led inquiry to determine whether officials have violated criminal law. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These responses have attempted, in different ways, to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials.”

The report also provides a glossary of terms.

Independent Counsel: Now-expired provisions of the Ethics in Government Act of 1978 (P.L. 95-521, as amended) authorized the Attorney General to request that a three-judge panel within the federal judiciary appoint an independent counsel. Independent counsels had more independence than regular DOJ officials and employees, though the breadth of their investigations led to debate and ultimately to the expiration of the statutory authorization.

Special Counsel: The DOJ’s general administrative hiring authority (28 C.F.R. Part 600) authorizes the Attorney General to appoint special counsels. Special counsels exercise more independence than regular DOJ officials and employees, but because the Attorney General generally appoints, supervises, and may remove special counsels, they are considered to be less independent than independent counsels were. (The term “special counsel,” when used in the context of independent criminal investigations of executive officials, is entirely distinct from the Office of Special Counsel, an independent federal agency, which investigates certain federal personnel practices.)

Special Prosecutor: The Attorney General historically has appointed special prosecutors to investigate scandals involving public officials. The term “special prosecutor” was also initially used to describe independent investigations authorized by the Ethics in Government Act, though the term was later changed under that statute to “independent counsel.” Historically, these appointments were used to provide for the investigation of any related allegations without political interference.

–Joe

On modernizing the FDLP’s statutory authority: Comments due by the end of the month

A push to revise Title 44 is in the works led by the Government Publishing Office and the Committee on House Administration.  It started on June 27, 2017 when GPO Director Davita Vance-Cooks charged the Depository Library Council (DLC) with making recommendations to her for changes in Title 44 of the U.S. Code. The scope for change is focused on Chapter 19 only, and she is looking for revisions that provide depository libraries more flexibility. The timetable calls for the DLC to submit draft recommendations for the fall 2017 Depository Library Council Meeting and Federal Depository Library Conference, October 16 – 18. The depository community will have an opportunity to comment before the final version is submitted to the GPO Director. [Press Release] For background, see James Jacobs’ Here we go again: GPO wants to change Title 44.

For Free Government Information, Jacobs has written a series of posts on this matter:

Strengthening Title 44 part 1: Modernize definition of “publications.”

Strengthening Title 44 part 2: Free Access

Strengthening Title 44 part 3: Privacy

Strengthening Title 44, part 4: Preservation

All are highly recommended.

August 31st deadline for contributions to the modernization discussion. AALL has issued a call for members to make their voice heard by contacting the AALL Director of Government Relations, Emily Feltren and submitting comments to the DLC [DLC Contact Form]. From the August 2017 Washington E-Bulletin issue:

There are many questions to consider when thinking about possible updates, including:

• What parts of Chapter 19 must remain in order to ensure the future success of the FDLP? What should change?

• What updates could be made to strengthen permanent public access to government information?

• What changes to Title 44 as a whole would benefit law libraries?

James Jacobs is promoting this Change.org petition: Protect the public right to govt information: help preserve and expand Title 44. Signatures will go directly to staffers on the House Committee on Administration and Joint Committee on Printing, as well as to GPO and ALA Washington Office. — Joe

GPO’s updated official institutional history highlights adoption of 21st century digital technologies

The 2016 edition of Keeping America Informed: The U.S. Government Publishing Office: A Legacy of Service to the Nation, 1861-2016 describes GPO’s transition from traditional monotype and linotype printing to the digital technology of the 21st Century. Highlights include the role the agency has played in the production and dissemination of federal Government information, from the Emancipation Proclamation, to the Warren Commission and 9/11 Commission Reports, to the latest in secure passport and smart card technologies. Its authoritative text and engaging images depict the dedication of its employees, past and present, GPO’s critical contribution to all federal organizations, Congress, and to the well-being of the American people. Download PDF version. — Joe

Some severe weather can be attributed to climate change now according to draft Trump Administration report

A draft report by scientists from 13 federal agencies was leaked to the New York Times. Perhaps it was leaked because the report contradicts Trump’s climate-change-denying position including the critique that the ability to predict the effects of human contributions to climate change is limited. This report concludes that we are feeling the effects of climate change right now. For more, see Lisa Friedman, Government Report Finds Drastic Impact of Climate Change on U.S., NYT, Aug. 7, 2017. Here’s the link to the report. Wonder if it will be officially released or buried by the Trump Administration. — Joe

Collateral consequences of Senator and House members indicted for or convicted of a felony

Two CRS reports analyze the status of Senators and Members of the House who have been indicted for or convicted of a felony. See Status of a Senator Who Has Been Indicted for or Convicted of a Felony (April 2, 2015, RL34716) and Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony (May 8, 2014, RL33229). — Joe

Diversity, inclusion, and equal opportunity in the armed services

In light of President Trump’s recent threat to ban transgender individuals from serving in the military, perhaps someone will have the courage to give him this featured CRS report. Granted, Trump is not known for reading anything more substantial that a one page bullet-pointed sheet of paper but … .

Here’s the opening paragraph to Diversity, Inclusion, and Equal Opportunity in the Armed Services: Background and Issues for Congress (Oct. 13, 2016, R44321):

Diversity, inclusion, and equal opportunity are three terms that are often used interchangeably; however, there are some differences in how they are interpreted and applied between the Department of Defense (DOD) and civilian organizations. DOD’s definitions of diversity and equal opportunity have changed over time, as have its policies toward inclusion of various demographic groups. These changes have often paralleled social and legal change in the civilian sector. The gradual integration of previously excluded groups into the military has been ongoing since the 19th century. However, in the past few decades there have been rapid changes to certain laws and policies regarding diversity, inclusion, and equal opportunity in the Armed Forces. Since 2009, DOD policy changes and congressional actions have allowed individuals who are gay to serve openly, recognized their same-sex spouses as dependents for the purpose of military benefits, opened all combat assignments to women. On June 30, 2016, DOD announced the end of restrictions on service for transgender troops.

— Joe

Analysis of the presidential pardon clause of the US Constitution

The pardon power of President Trump is getting some news coverage these days due to the Russia probe. Here’s the introduction to a CRS report titled The President’s Pardon Power and Legal Effects on Collateral Consequences, (July 26, 2016, R44571):

Article II of the U.S. Constitution vests the President with the power “to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The President’s pardon power, which derives from English custom, is an extraordinary remedy that is sought by many but received by few. The President may use his clemency authority only for criminal penalties, not civil. Moreover, he may use his clemency authority to pardon federal offenses but not state offenses.

Typically, individuals receive either a pardon or a commutation of sentence, each of which is a type of executive clemency with different legal effects. The Department of Justice in 2014 announced a clemency initiative to prioritize the applications of federal inmates seeking a commutation of sentence, which has reportedly led to an influx of petitions. A commutation of sentence generally results in a reduced sentence, either totally or partially, but such individual will still likely face collateral consequences, that is post-sentence civil penalties or disqualifications that flow from a federal conviction. In contrast, a pardon is the President’s forgiveness for commission of the offense, which removes civil disabilities and collateral consequences. However, given the evolution of jurisprudence on the President’s pardon power, some recipients of a pardon may still face legal consequences from a criminal conviction despite receiving a pardon.

This report reviews the text and jurisprudence of the Pardon Clause of the U.S. Constitution, as well as the types of pardons the clemency power includes, when pardons may be issued, and how pardons are granted. The remainder of the report analyzes the effect of a presidential pardon on collateral consequences. Also discussed in the report are some alternative ways in which a former federal felon may have his or her civil rights restored and certain legal disabilities removed absent a pardon. Lastly, the report covers what role, if any, Congress may play in defining the scope of the pardon power and its effect on collateral consequences.

— Joe

The Congressional Oversight Manual

The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. Towards that end, CRS developed the Congressional Oversight Manual over 30 years ago. The Manual was produced by CRS with the assistance of a number of House committee staffers. The constitutional authority for Congress to conduct oversight is designed to fulfill a number of purposes:

  • Ensure Executive Compliance with Legislative Intent
  • Evaluate Program Performance
  • Prevent Executive Encroachment on Legislative Prerogatives and Powers
  • Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud
  • Assess Agency or Officials’ Ability to Manage and Carry Out Program Objectives
  • Review and Determine Federal Financial Priorities
  • Ensure That Executive Policies Reflect the Public Interest
  • Protect Individual Rights and Liberties

— Joe

Trump and trade agreements

On January 23, President Trump directed the United States Trade Representative to withdraw the United States as a signatory to the Trans-Pacific Partnership (TPP) agreement; the acting USTR gave notification to that effect on January 30. And on May 18, 2017, the Trump Administration sent a 90-day notification to Congress of its intent to begin talks with Canada and Mexico to renegotiate the North American Free Trade Agreement (NAFTA).

Two CRS Insight Reports cover the TPP and NAFTA developments: The United States Withdraws from the TPP (May 23, 2017, IN10646) and North American Free Trade Agreement: Notification for Renegotiation (May 19, 2017 IN10706). — Joe

CRS report: Obstruction of Congress

From the CRS report, Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with Congressional Activities (Nov. 5, 2010 RL34304):

Obstruction of justice is the frustration of governmental purposes by violence, corruption, destruction of evidence, or deceit. It is a federal crime. In fact, federal obstruction of justice laws are legion; too many for even passing reference to all of them in a single report. This is a brief description of those that outlaw interference with congressional activities.

See also Bradley J. Bondi, No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings, 25 Journal of Law and Politics, No. 145 (2010)(“To the extent Congress refuses to accept a witness’s assertion of the attorney-client privilege or work-product protection during an investigation, this article explores avenues for challenging such an adverse determination and for resisting the disclosure of the confidential information in the face of contempt. The article concludes with a discussion of some practical ways an individual or entity subject to a congressional investigation may limit the extent of any subsequent waiver and minimize the harm caused by the release of the information.”) — Joe

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

From the summary of the CRS report, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (May 12, 2017, RL34097):

Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to non-compliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of providing testimony, or a refusal to produce requested documents.

Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

See also, Josh Chafetz, Executive Branch Contempt of Congress, 76 University of Chicago Law Review 1083 (2009). — Joe

Taking the Fifth in Congressional investigations

On May 26, 2017, CRS issued a Legal Sidebar titled The Fifth Amendment in Congressional Investigations. Here’s a snip:

As a general matter, witnesses may invoke the Fifth Amendment privilege during a congressional investigation with regard to testimony or documents that are: (1) testimonial (“relate[s] a factual assertion”); (2) self-incriminating (any disclosures that tends to show guilt or that furnishes any “link in the chain of evidence” needed to prosecute); and (3) compelled (not voluntarily given). Oral testimony given pursuant to a subpoena and in response to committee questioning almost always qualifies as testimonial and compelled. Therefore, the central inquiry is typically whether the responsive testimony would be “incriminating.” The Supreme Court has taken a broad view of what constitutes incriminating testimony, holding that the privilege protects any statement “that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used.” Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be “ensnared by ambiguous circumstances.”

H/T to beSpacific. — Joe

New CBO analysis of American Health Care Act, H.R. 1628, as passed by the House

The Congressional Budget Office released its analysis of the health-care bill that passed the House of Representatives earlier this month. Here’s the text. For an analysis, see NPR’s GOP Health Plan Would Leave 23 Million More Uninsured, Budget Office Says. — Joe

Trump administration’s first budget released

Following up on President Trump’s budget blueprint, the Trump administration released an ideological wish list, its first budget on May 23rd. See A New Foundation for American Greatness – President’s Budget FY 2018 and Major Savings and Reform. It now heads to the House where opposition from Trump’s own party is expected. Politico reports that House Speaker Paul Ryan is standing by his alternative tax reform plan which includes a controversal “border adjustment tax” that would put a 20 percent tax on imports coming into the U.S. See The battle over the border tax. Talking points to sell the Ryan tax reform plan were released recently.

Referencing Trump’s budget blueprint, CNN identified many of Trump’s proposed budget cuts as did the New York Times here. See also, The Key Spending Cuts and Increases in Trump’s Budget, NYT, May 22, 2017. — Joe

End Note: Browse all the FY2018 budget documents here.

Text of DOJ Order No. 3915-2017: Appointment of special counsel to investigate Russian interference with the 2016 presidential election and related matters

From the source document:

ORDER NO. 3915-2017

APPOINTMENT OF SPECIAL COUNSEL
TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE
2016 PRESIDENTIAL ELECTION AND RELATED MATTERS

By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C.§§ 509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian governments efforts to interfere in the 2016 presidential election, I hereby order as follows:

(a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

(d) Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

May 17, 2017 ….. Rob. J. Rosenstein, Acting Attorney General

CRS reports on special counsels, independent counsels and special prosecutors

On May 11, 2017, the Congressional Research Service released Special Counsels, Independent Counsels, and Special Prosecutors: Investigations of the Executive Branch by the Executive Branch. From the introduction:

Under constitutional principles and authorities, Congress has no direct role in federal law enforcement and is limited in its ability to initiate appointments of any prosecutor for any particular matter in which there may be allegations or concerns about wrongdoing by public officials. Instead, criminal investigations and prosecutions have generally been viewed as a core executive function and are a responsibility of the Executive Branch. However, because of the potential conflicts of interest that may arise when the Executive Branch investigates itself, as a historical matter there have often been calls for an independently led inquiry to determine whether executive officials have violated criminal law. In the past, Congress has authorized independent counsels, who were requested by the Attorney General and appointed by a judicial panel, but that authority lapsed in 1999. Currently, the Attorney General has regulatory authority to appoint a special counsel to investigate allegations that may present a conflict of interest for the Department of Justice (DOJ).

Focusing on the role of Congress, see also, Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress (June 20, 2013, R43112). This report provides information on the procedure for the appointment of an “independent counsel,” a “special prosecutor,” or a “special counsel” to investigate and prosecute potential or possible violations of federal criminal law by officials in the executive branch of the federal government and in federal agencies. Specifically examined is the role or authority of Congress in requiring an independent or special counsel investigation of executive branch officials.

— Joe

CRS report on protecting classified information

One snip from The Protection of Classified Information: The Legal Framework (Jan. 10, 2013, RS21900):

The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch’s power in this area. Citing the President’s constitutional role as Commander-in-Chief, the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to classify and control access to information bearing on national security … flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” This language has been interpreted by some to indicate that the President has virtually plenary authority to control classified information. On the other hand, the Supreme Court has suggested that “Congress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures—subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering.”

— Joe