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Archive of posts filed under the Oversight of the Executive category.

A Closer Look at the Senate’s Procedures for Releasing Classified Information under S. Res. 400

As discussed in my last post, there is (or should be) no serious controversy regarding the Senate’s authority to release classified information unilaterally pursuant to Section 8 of S. Res. 400. Yet the full Senate has apparently never taken a vote to release information under Section 8, perhaps in part because of that section’s elaborate [...]

Does the Obama Administration Challenge the Senate’s Authority to Release Classified Information under S. Res. 400?

On Friday, August 1, the executive branch returned to SSCI the redacted executive summary of the committee’s study on the CIA detention and interrogation program. Chairman Feinstein announced that there had been “significant redactions” made and that the public release of the report would be held until the committee had time to “understand the basis [...]

Is a Lawsuit Really the House’s Only Remaining Option?

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, [...]

Halbig/King and the House’s Lawsuit against the President

As you have no doubt heard, two circuit courts issued divergent opinions yesterday on the same administrative law question, namely the validity of an IRS rule extending tax subsidies to health insurance purchased on the federal exchange. These decisions nicely illustrate the point I was making in my last post regarding the nature of administrative [...]

The Employer Mandate Delay: A Question of Administrative Law or Constitutional Faithfulness?

With the background of the last two posts, let’s consider whether “the President acted beyond his authority to execute the laws” by delaying the employer mandate, to paraphrase the question asked at the House Rules Committee hearing. Or, rather, let’s separate this question into two. The first is whether the delay of the employer mandate [...]

Who is Responsible for the Employer Mandate Delay?

There were a couple of things missing from the testimony regarding the legal merits of the employer mandate delay at Wednesday’s Rules Committee hearing. The first was any reference to the legal authority claimed by the administration when it announced the initial delay of the employer mandate under the Affordable Care Act. This is surprising [...]

The Declaration of Impotence

On June 25, 2014, the Speaker sent a memorandum to all Members of the House entitled “[T]hat the Laws Be Faithfully Executed. . .” This extraordinary document begins as follows: “For years Americans have watched with concern as President Barack Obama has declined to faithfully execute the laws of our country—ignoring some statutes completely, selectively [...]

If the Washington Administration Had an Office of Legal Counsel . . .

To:  Edmund Randolph, Attorney General of the United States From:  Paul Colborn (J.D. expected May 1793), Office of Legal Counsel Date: April 1, 1792 Re: Assertion of executive privilege in response to congressional requests for information In preparation for tomorrow’s cabinet meeting, you have requested the opinion of this office on a matter of some delicacy. On [...]

Is SSCI Following the Senate Rules?

According to a press release from Chairman Feinstein yesterday, the Senate Select Committee on Intelligence has “voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority’s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.” But, wait, SSCI can’t “declassify” anything. Classification [...]

Chris Donesa on the SSCI/CIA Dispute

Chris Donesa, former chief counsel to the House Permanent Select Committee on Intelligence, provides this thoughtful and balanced analysis at Lawfare of Senator Feinstein’s charges against the CIA, raising three questions about the dispute. Of particular interest is Donesa’s third question, which relates to why SSCI itself apparently violated its agreement with the CIA by [...]