DOJ’s Brief in Miers–Right Without Remedy?

The Department of Justice brief in the Miers case argues that Congress has no judicial remedy when the executive branch refuses to provide it with information and, moreover, that the Constitution bars Congress, or either House thereof, from ever having a judicial remedy when such information is withheld.  Specifically, DOJ contends that the House Judiciary Committee lacks standing to enforce subpoenas to current and former executive officials.

            DOJ relies primarily on historical practice to support its position.  As it notes, “[f]or over two hundred years, inter-branch struggles have been resolved outside the scope of judicial review under Article III by the political branches exercising the political tools at their disposal to reach accommodation.”  From this history it concludes that Congress is limited to using “political tools,” such as the appropriations and advice and consent powers, in order to force the executive branch to provide information. 

While DOJ makes its argument well, its position is really quite radical and raises fundamental questions about the nature of Congress’s authority to demand information.


In general, of course, while Congress has the authority to oversee the executive branch’s execution of the law, Congress cannot direct the executive branch in that execution, except by passing a new law. Let’s say, for example, that Congress appropriates funds for homeland security grants to be distributed among different states and localities, and sets forth guidelines that the Department of Homeland Security is to use in making the distribution. If the congressional committees that oversee DHS disagree with how the department interprets or applies those guidelines, they cannot order DHS to change its decision. Nor would the committees have standing to seek judicial relief for such an order (as opposed to potential recipients of the grants, who likely would have standing).

Congress nonetheless has political tools that it can use to influence agency behavior. Thus, in the example above, the congressional committees could threaten to reduce the authorized level of funding for DHS or some program that DHS supports. Such a threat might very well cause DHS to decide, upon reflection, that it agrees with the committees about how the grants should be allocated. But this doesn’t change the fact that the committees have no right to direct the allocation of the grants. In short, neither the committees nor the Houses to which they belong suffer a judicially cognizable injury merely because the executive branch has violated either the law or the Constitution.

This, it seems to me, is the best way to understand the standing issue in Raines v. Byrd, 521 U.S. 811 (1997). Suppose Congress had passed an appropriations bill and the president, rather than vetoing it, had simply refused to spend some of the appropriated funds. No matter how blatantly illegal the president’s action might be, it is clear that neither House of Congress, nor individual members of either, could sue the president. In Raines, the situation was no different, except that the president’s action was explicitly authorized by the line item veto act, which purported to give him the authority to cancel individual spending items. In denying members of Congress standing, the Supreme Court simply found that the mere fact that this act created a greater likelihood of future unconstitutional cancellations of spending items did not cause a cognizable injury to the members. Moreover, as the Court suggested, allowing standing in Raines would require that standing be permitted whenever one of the political branches asserts an allegedly unconstitutional authority that diminishes the power of the other.

If DOJ’s position in Miers is correct, Congress’s ability to get information from the executive is really no different than its ability to demand that the executive comply with the law generally. That is to say, Congress may request information and may pressure the executive to comply with these requests through actual or threatened use of the political tools at its disposal, but, at the end of the day, Congress has, and can have, no legal remedy to force compliance.

This position is subtly, but significantly, different from the position that the executive and legislative branches have traditionally taken with regard to struggles over congressional access to executive information. It is true that the branches have generally treated these struggles as political, rather than legal. It is also true that the absence of a practical or readily available legal remedy has been a background fact, sometimes explicitly acknowledged, in these struggles.

For example, in 1909 the Senate demanded documents from the Attorney General and the head of the Bureau of Corporations regarding the reasons that antitrust proceedings had not been brought against a particular company. Senator Bacon offered a resolution to affirm the right of the Senate to obtain all documents in the files of the executive department, but acknowledged “there was no present or immediate remedy in case the head of a department or the President should refuse.”

The absence of a “present or immediate remedy,” however, is quite different than the absence of any possible remedy (of a legal nature), which is the position taken now by DOJ. Relying on a 1984 OLC opinion authored by Ted Olson (“Prosecutions for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101 (1984)), DOJ maintains that “the criminal contempt statute is inapplicable, and therefore that it will not pursue criminal contempt prosecutions, where an Executive Branch official in good faith relies on the President’s assertion of Executive Privilege and testimonial immunity.” In the same memo, OLC stated that “the same reasoning that suggests the statute could not be constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well.”

Critical to OLC’s conclusions (but unmentioned by DOJ in its brief) was the availability of an alternative civil remedy to obtain executive branch information. The Olson memo states that “[a]lthough Congress has a legitimate and powerful interest in obtaining any unprivileged documents necessary to assist it in its lawmaking function, Congress could obtain a judicial resolution of the underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for enforcement of a congressional subpoena.” Moreover, the memo denies any constitutional impediment to such an enforcement action, noting that “there is little doubt that . . . Congress may authorize civil enforcement of its subpoenas and grant jurisdiction to the courts to entertain such cases.”

The OLC, which was very familiar with the history of congressional efforts to obtain executive branch information (see “History of Refusals by Executive Branch to Provide Information Demanded by Congress,” 6 Op. O.L.C. 751 (1982)), understood that there was no inconsistency between that history and recognition of a civil remedy to enforce congressional subpoenas. On the contrary, that history shows a recognition by all three branches of the congressional power of inquiry and investigation, and the corresponding right of each House to demand information necessary to assist it in its lawmaking function.

This right is fundamentally different from the general congressional interest in ensuring executive branch compliance with the law. As discussed in previous posts, refusals to comply with congressional demands for information fall within the ambit of legislative privilege. Legislative privilege, as Chafetz defines it, consists of “those special rights that individual Members or Houses of the legislature possess in order to facilitate their legislative duties.” Unlike the interests advanced in Raines, which involved indirect impacts on the legislative process, legislative privilege protects rights that have historically been considered fundamental to maintaining legislative independence and integrity.

Traditionally, legislative privilege has been vindicated through the inherent contempt powers of each House. There are practical reasons why it is difficult to use this process against executive officers (and, as a matter of constitutional structure, it is probably impossible to use it against a sitting President). However, as OLC implicitly recognized in the 1984 Olson memo, this remedy would be available against subordinate executive officers unless there is an alternative mechanism by which the House or Senate can vindicate its rights.

Since DOJ has now repudiated the position of the 1984 OLC memo with respect to the availability of a civil remedy, the question remains whether it also repudiates the memo’s denial of an inherent contempt remedy. If so, then the effect of DOJ’s position would be to push the branches toward unseemly confrontations in which congressional agents would arrest current or former executive officers. Ultimately, such disputes would still have to be resolved by courts acting upon habeas petitions or other actions brought by the arrested officers. One wonders why this game would be worth the candle.

On the other hand, DOJ may now be claiming that there is no possible legal remedy for executive refusals to provide information to Congress. Such a position would be inconsistent with the historical understanding of a congressional right to obtain information from the executive. Without any potential remedy, the right would be illusory, the legislative privilege chimerical, and the congressional investigative power undermined.