Category: Separation of Powers

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CRS on the Take Care Clause

This September 4, 2014 CRS memo entitled “The Take Care Clause and Executive Discretion in the Enforcement of Law,” (hat tip: Mort Rosenberg) is helpful background for understanding both the House lawsuit against the Obama administration and the controversy over the President’s executive action on immigration. However, as is not uncommon for CRS reports, there is a good deal of “on the one hand, this, and on the other hand, that.”

Here is the summary:

The Take Care Clause would appear to stand for two, at times diametrically opposed propositions—one imposing a “duty” upon the President and the other viewing the Clause as a source of Presidential “power.” Primarily, the Take Care Clause has been interpreted as placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. However, the Supreme Court has also construed the Clause as ensuring Presidential control over the enforcement of federal law. As a result, courts generally will not review Presidential enforcement decisions, including the decision of whether to initiate a criminal prosecution or administrative enforcement action in response to a violation of federal law.

In situations where an agency refrains from bringing an enforcement action, courts have historically been cautious in reviewing the agency determination—generally holding that these nonenforcement decisions are “committed to agency discretion” and therefore not subject to judicial review under the Administrative Procedure Act. The seminal case on this topic is Heckler v. Chaney, in which the Supreme Court held that an “agency’s decision not to take enforcement action should be presumed immune from judicial review.”

However, the Court also clearly indicated that the presumption against judicial review of agency nonenforcement decisions may be overcome in a variety of specific situations. For example, a court may review an agency nonenforcement determination “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,” or where the agency has “’consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”

As such, it would appear that Congress may overcome the presumption of nonreviewability and restrict executive discretion through statute by expressly providing “meaningful standards” for the manner in which the agency may exercise its enforcement powers.

Nevertheless, legislation that can be characterized as significantly restricting the exercise of executive branch enforcement decisions, in either the criminal, civil, or administrative context, could raise questions under the separation of powers.

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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, including the power to write new laws, repeal old laws, disapprove regulations and attach riders to appropriations bills. She also noted the specific powers invested in the Senate, such as its ability to “put nominees’ feet to the fire” during the advice and consent process. Finally, she cited the House’s constitutional authorities with respect to the executive: “we investigate, hold oversight hearings and we sometimes impeach.”

There is no question that these are powerful tools, potentially powerful anyway, and I think I have already made clear my view that a lawsuit is a very poor option for the House to employ. Nonetheless, it is difficult to see how the House could effectively use some of these methods to address the employer mandate delay. Obviously, it cannot use the Senate’s authorities. It is also hard to see how it could rewrite the law (even assuming the Senate and the President’s cooperation) to remedy the problem. After all, the House does not object to the policy embodied in the employer mandate delay; it objects to the fact that the administration adopted the policy without congressional authorization. Indeed, one of the House’s “injuries” is that the administration opposed any congressional effort to change the law so as to authorize the action it was taking.

Most of the discussion of alternative remedies at the Rules Committee hearing revolved around the power of the purse. But no one explained exactly how the House might use the power of the purse in this situation. In the first place, the spending power is just political leverage; it works the same for policy disputes and legal disagreements. But the political leverage only works to the extent it relates to something the public really cares about; abstract institutional disputes between the branches will hardly qualify. Indeed, even when the public supports Congress’s goal, using the spending power as leverage is tricky. Congress wasn’t too successful in using the power of the purse to control the executive’s conduct of an unpopular war in the last administration, as Slaughter may recall.

Now I do like the Scalia/Ginsberg suggestion that funds for White House staff be cut off, and I wonder why the House doesn’t at least try something like that. Presumably the public wouldn’t be outraged by a reduction of the White House travel budget or the like. Maybe Congress is worried that the White House would demand a reduction in leg branch appropriations in return. In any event, using the appropriations process in this way would require majority support in both chambers, if not a supermajority sufficient to overcome a veto. And even if that existed (which it obviously does not), I am not sure how exactly it would be linked to the employer mandate delay.

So as a practical matter, I think the House is left with the unilateral authorities of investigation, oversight and impeachment. Investigation and oversight seem like appropriate responses because, as discussed in a prior post, further information about the decision-making process is needed to determine whether the House’s disagreement with the IRS is simply a garden-variety dispute over administrative law or whether it reflects a true invasion of the House’s constitutional authority

However, an ordinary committee investigation will not suffice here for at least two reasons. First, the Speaker has already made a decision to elevate this matter beyond a routine oversight issue, and he wants the House as a body to weigh in. If it were sent to a committee for investigation, it would just become one of many ongoing investigations and would quickly become bogged down in the partisan muck. Second, it is very likely that the administration would refuse to produce all (or perhaps any) information regarding the decision-making process on grounds of deliberative process, attorney-client and/or presidential communications privilege.

There is another way, though. The House has a well-established and time-honored method of obtaining important information from the executive branch. The resolution of inquiry is a privileged resolution that seeks information from the president or a department head. Although it is not uncommon for such resolutions to be introduced (CRS counts 290 from 1947 to 2011), most often in recent years by members of the minority party, the House has not adopted such a resolution since 1995.

A resolution of inquiry is not a “legal” device like a subpoena, but an assertion of the House’s role in the constitutional structure, which would seem to be what is called for under the circumstances. As CRS notes, “compliance by the executive branch with the House’s request for factual information in such a resolution is voluntary, resting largely on a sense of comity between co-equal branches of government and a recognition of the necessity for Congress to be well-informed as it legislates.”

A resolution of inquiry could be addressed to Secretary Lew, directing him to produce all documents related to the decision to delay the employer mandate. (A similar resolution could be directed to President Obama, although it is traditional that resolutions to the president “request” rather than “direct” the production of information).

Would such a resolution work? Possibly, but only if the House were united in the resolution. The question then is whether Representative Slaughter and her colleagues would support such a resolution. If they are sincere about wanting to protect the House’s institutional prerogatives, I don’t see why they would not. And if they refuse, at least the Speaker would have tried to use more traditional methods before proceeding with his lawsuit.

Of course, there is no legal penalty for refusing to comply with a resolution of inquiry. But if Secretary Lew were to refuse to comply with the resolution, the House would logically proceed to use its last constitutional tool, one where it exercises judicial and not merely legislative authority, namely an investigation into whether the Secretary should be impeached.

 

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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 law decisions and the extent to which a decision on the merits of the employer mandate delay would or would not vindicate the House’s constitutional interests.

In Halbig v. Burwell, the D.C. Circuit held the IRS rule invalid because it conflicts with the unambiguous language of the Affordable Care Act, particularly section 36B, which authorizes tax subsidies only for insurance purchased on “an Exchange established by the State.” The government argued that the statute taken as a whole reveals Congress’s intent that subsidies be available on both the federal and state exchanges. Any other conclusion, it contended, would generate an absurd result and be inconsistent with the ACA’s purpose and legislative history. Judge Griffith, writing for himself and Judge Randolph, found that the government’s arguments were insufficient to overcome the clear statutory text.

On the other hand, in King v. Burwell, the Fourth Circuit held that the language of the ACA, taken as a whole, was ambiguous on the question of whether tax subsidies applied to the federal exchange. The court acknowledged that the plaintiffs’ position made a “certain sense” and “accords more closely” with “a literal reading of the statute,” but after reviewing all relevant statutory provisions as well as the ACA’s structure, purpose and legislative history, it concluded that “we are unable to say definitively that Congress limited the premium tax credits to individuals living in states with state-run exchanges.” Instead, the court applied Chevron deference to the statutory interpretation adopted by the IRS in its regulation, thus upholding the agency’s decision to extend tax subsidies to insurance purchased on the federal exchange.

The two courts therefore reached different conclusions, but the various judges who have weighed in on the controversy (so far) reflect more than two views. The D.C. Circuit majority thought the ACA unambiguously prohibited the IRS from extending tax subsidies to insurance bought on the federal exchange. The Fourth Circuit majority, along with Judge Edwards dissenting in Halbig, thought that the ACA did not resolve the issue one way or the other and that the IRS was therefore free to determine whether or not tax subsidies should apply on the federal exchange. However, Judge Davis, concurring in King, found that Congress did resolve the question in the ACA and that the IRS was therefore required to adopt the interpretation that it did. And none of the judges appeared to agree with Judge Friedman, the lower court judge in Halbig, who found that the ACA unambiguously supported the IRS’s position.

In his Rules Committee testimony, Professor Turley cited the tax subsidy issue in Halbig as an example of Congress addressing an issue with a “lack of ambiguity” and the administration deciding to change Congress’s policy decision through a regulation. Turley expressed the hope that by bringing such cases to the courts, the House could obtain some sort of clear demarcation of congressional versus executive authority. Certainly the results in Halbig/King so far suggest this is a forlorn hope.

Even if a majority of the Supreme Court ultimately invalidates the IRS regulation, I don’t see that such a decision would expand or protect congressional power in some fundamental way. No one disputes that Congress could have resolved the issue through the ACA; the question is simply whether it did so. Indeed, it is arguable that the Halbig/King cases will expand executive authority by applying Chevron deference to an IRS determination that may not deserve it.

Just as importantly, even Judge Griffith’s opinion does not address, at least in any kind of direct way, the House’s constitutional concern that President Obama is failing to take care that the laws be faithfully executed. The D.C. Circuit concludes that the plaintiffs have the “better of the argument” as the tax subsidy issue, but it does not suggest that IRS (much less the President) promulgated the regulation in bad faith.

In sum, if the House were to sue regarding the employer mandate delay, the best it could hope for would be a court decision holding that delay to be invalid. But as I mentioned before, courts invalidate agency regulations all the time. How would one more such ruling change the balance of power between the branches?

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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 enforcing others, and at times, creating laws of his own.”

The memo goes on to say that on a wide range of matters, including health care, energy, foreign policy and education, “President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce—at times even boasting about his willingness to do it, as if daring the American people to stop him.”

So what will the People’s House do in response to these repeated injuries and usurpations? The Speaker declares:

I intend to bring to the floor in July legislation that would authorize the House of Representatives—through the House General Counsel and at the direction of the Bipartisan Legal Advisory Group (BLAG)—to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country. The legislation would follow regular order and be considered by the Rules Committee following its introduction prior to consideration by the full House.

Wow. It’s like the Declaration of Independence ended with a solemn promise to retain counsel and consider all available legal remedies against George III, including seeking a declaratory judgment against continued collection of that tea tax. (Well, I guess U.S. v. Hanover couldn’t have gone much worse than U.S. v. Windsor).

Now mind you the Speaker is not, as has been widely reported, saying that he will bring suit against the president immediately. Or even in the “coming weeks.” Instead, sometime in July he will introduce legislation, which will go through “regular order” and eventually be considered by the full House.

Only in the “coming weeks” after this legislation is adopted, whenever that may be, will the House be “authorized” to bring suit against the president. And note it is unclear whether by “legislation” the Speaker means a House resolution or a bill. If he means the latter (which is the more common use of the term), the “coming weeks” will be coming in 2017 at the earliest (after the election of a new president who might sign such a bill).

Even if the promised lawsuit were to be filed, however, its chances of success are basically zero. I will explain one reason why in my next post.

In fairness, the Speaker has identified an important problem for which an effective solution will not be easily found. But I am pretty sure this lawsuit is not it.

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The House’s Sovereign Immunity Objection to the SEC Subpoenas

As discussed in my last post, the SEC is suing the House Committee on Ways & Means and Brian Sutter, a committee staffer, to enforce two administrative subpoenas, one to the committee seeking documents and one to Sutter seeking both documents and testimony.

A May 19 letter from the House General Counsel lays out 11 objections to the subpoenas. The first objection, which I want to address today, is that “[e]ach of the subpoenas is barred by the sovereign immunity, never waived, that attaches to the Committee and Mr. Sutter in their official capacities.”

If I understand this objection correctly, it means that the House is asserting that the SEC is barred from compelling the production of official House documents or testimony related to the official functions of the House, even if that information is not constitutionally privileged and no matter how relevant it might be to the SEC’s investigation.

What might be the basis of such an objection? Well, during my time in the House Counsel’s office, we dealt with administrative subpoenas from several different federal agencies. We objected to these subpoenas based on the fact that House Rule VIII, which authorized compliance with subpoenas issued by courts, did not apply to administrative subpoenas. One aspect of this argument (I think) was that Rule VIII’s silence meant the House had not waived its sovereign immunity with regard to administrative subpoenas.

Now frankly sovereign immunity never struck me as exactly the right rubric for this argument. Historically the House (like the Senate) has maintained that its consent is needed before another branch of government can obtain documents from its files or testimony regarding its official functions, but this position has been grounded in the separation of powers. Thus, Deschler explains that the attempt by “another coordinate and coequal branch of government” to exercise authority over the House by serving process upon it “has historically been perceived by the House as a matter intimately related to its dignity and the integrity of its proceedings, and as constituting an occasion for the raising of the question of the privilege of the House.” 3 Deschler’s Precedents § 14. This view held that each branch of government had the constitutional authority to make the final determination regarding the disposition of its own documents and information. See Nixon v. Sirica, 487 F.2d 700, 742 (D.C. Cir. 1973) (MacKinnon, J., concurring in part and dissenting in part) (“It thus appears that the judiciary, as well as the Congress and past Presidents, believes that a protected independence is vital to the proper performance of its specified constitutional duties.”)

Be that as it may, in 1977 the House first adopted the predecessor to Rule VIII, providing standing authority to comply with judicial subpoenas. This rule obviated the need for the House to authorize compliance with such subpoenas on a case-by-case basis (which remains the practice in the Senate to this day). To the extent that the doctrine of sovereign immunity applies, the rule also presumably acts as a waiver of this defense so long as a subpoena meets the criteria set forth in the rule.

As noted, there remained a problem with respect to administrative subpoenas because Rule VIII did not address them. Thus, whether viewed as a question of sovereign immunity, separation of powers, or both, administrative subpoenas to the House were arguably barred and could not be complied with absent a specific House resolution authorizing compliance. (The merit of this position was never tested in court, to my recollection).

In the 107th Congress, however, Rule VIII was broadened to cover administrative subpoenas. This was done at the suggestion of the House Counsel’s office precisely because there seemed to be little sense from a policy standpoint (as well as some legal risk) in maintaining that administrative subpoenas were categorically barred.

Given that Rule VIII now expressly authorizes (and indeed requires, if the rule’s prerequisites are satisfied) compliance with administrative subpoenas, it is a little difficult to understand how the House could sustain a sovereign immunity objection. Perhaps a clue is the citation in the May 19 letter to Lane v. Pena, 518 187, 192 (1996), which it describes as holding “any waiver of sovereign immunity must be ‘unequivocally expressed in statutory text.’” Rule VIII, of course, is not a “statute” and thus, it might be argued, its language does not count for determining whether sovereign immunity has been waived.

If that’s the argument, it does not strike me as a winner.

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Situation Comity

In her testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts last week, noted Supreme Court advocate Maureen Mahoney urged the panel not to advance pending legislation requiring that Supreme Court proceedings be televised. Among other things, she contended that such legislation would raise “serious constitutional questions” on separation of powers grounds.

I don’t have much to say about the technical constitutional issue. Nothing in constitutional text, history or precedent appears to clearly answer the question of whether the proposed legislation crosses the line between a reasonable regulation of judicial proceedings and an unwarranted infringement on judicial independence. If you want to read an argument that it does, see this recent law review note, but frankly it failed to persuade me.

The more important issue to me, though, is not whether Congress has the constitutional authority to enact this legislation. Rather it is whether Congress ought to abstain from exercising its authority in light of that warm and fuzzy notion of inter-branch harmony known as “comity.”  Here Congress could do worse than to consider a very old Supreme Court case cited in Mahoney’s testimony, Anderson v. Dunn, 19 U.S. 204 (1821).

Anderson speaks to a constitutional branch’s inherent authority to control its physical environs. As Mahoney quotes the Anderson Court, “courts of justice are universally acknowledged to be vested, by the very creation” with the “power to impose silence, respect and decorum, in their presence” and “to preserve themselves and their officers from the approach and insults of pollution.” Id. at 227.

Anderson, however, did not involve a court’s use of this inherent authority. Instead, it involved the exercise of the contempt power by the U.S. House of Representatives, which, the Court found, was similarly entitled to control its proceedings, particularly with respect to matters occurring “within their own walls.”

Whether or not the Court would be similarly receptive to congressional prerogatives today remains to be seen. There are those who think the notion of each branch having special power to control the activities within its own walls is archaic. Yet I think it goes a long way toward explaining the outrage that Members of Congress expressed when the Justice Department unilaterally executed a search warrant in the Rayburn House Office Building. Notwithstanding the debatable technicalities of the Speech or Debate objection, these Members instinctively believed that it was improper for the executive and judicial branches to breach the walls of Congress, as it were, without permission.

The Senate Judiciary Committee would be well advised to keep this in mind before moving forward with cameras in the Supreme Court. Perhaps Mahoney’s testimony might best be summarized as a reminder to both Congress and the Court of this non-constitutional dictum: Do unto others as you would have others do unto you.

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Can a Court Resolve the Virginia Senate Deadlock?

Virginia Democrats may go to court over the issue of whether the Lieutenant Governor can break ties on organizational matters in the Senate. As indicated in a previous post, I am skeptical about the merits of this claim.

(Another useful resource on this subject is the website of the National Conference of State Legislatures, which contains a comprehensive list of state legislative chambers which have been tied over the years. Of particular interest here is NCSL’s note that “A lieutenant governor’s vote broke organizational deadlocks in Idaho (1990) and Pennsylvania (1992).  There was speculation that the lieutenant governor would determine party control in the Virginia Senate in 1995, but a power-sharing agreement between the political parties was negotiated instead.”)

For present purposes, however, lets assume that Virginia Democrats are correct on the merits. Can they get judicial relief? If this were a question of congressional organization, I would say the answer almost certainly would be no. Federal courts are extremely reluctant to intervene in the internal affairs of the legislature, and have employed a variety of doctrinal methods to avoid doing so. See, e.g., Vander Jagt v. O’Neill, 699 F.2d 1166 (DC Cir. 1983) (refusing to hear Republican challenge to allocation of committee seats in the U.S. House of Representatives).

Continue reading “Can a Court Resolve the Virginia Senate Deadlock?”

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Can Representative Waters Take the Ethics Committee to Court?

According to this Politico story, “Rep. Maxine Waters (D-Calif.) is threatening to take the House Ethics Committee to federal court if the secretive panel charges her with any violations of House rules.”

This statement appears to reflect a misunderstanding of a letter sent by Stan Brand, Waters’s attorney, to the chairman and ranking member of the Ethics Committee on July 19. Although Brand asserts that “the Committee’s actions in this matter have concluded and that any further action, save from formal acknowledgement of dismissal, is legally precluded and indefensible,” he knows full well that no federal court will grant relief against the Ethics Committee with regard to its ongoing disciplinary proceedings. Thus, his letter does not threaten to “take the Committee to court” in order to have those proceedings enjoined or declared invalid.

Instead, Brand threatens a federal court action with respect to one particular aspect of his grievances against the Committee, namely the alleged “illegal leaking of confidential Committee documents, transcripts, emails and other information to the media to create a misimpression regarding both the strength of the case against [Waters] and the Committee’s ability to proceed with this case.” Brand contends that this conduct (a) is unprotected by Speech or Debate and (b) implicates Waters’s constitutional and statutory rights.

It is certainly true that, under existing case law, there is no necessary constitutional barrier to a federal court action alleging that a member or staffer of the Ethics Committee has leaked information to the media. See Boehner v. McDermott, 483 F.3d 573 (D.C. Cir.), cert. denied, 128 S.Ct. 712 (2007) (upholding civil judgment against member of Congress who leaked an illegally recorded tape recording which had been given to him in his capacity as ranking member of the Ethics Committee). It is, however, not obvious what constitutional or statutory right might give rise to a cause of action for the leaking Brand alleges. Brand’s letter does not say.

Assuming that there is a viable cause of action (and assuming that it is not barred, for example, by the Federal Tort Claims Act) based on the alleged leaking, it would seem most likely that it would lie against the individuals responsible, not against the Committee itself. Any attempt to sue the Committee itself over the alleged leaking would face serious constitutional hurdles, such as Speech or Debate, sovereign immunity and separation of powers.

In short, the chances of Representative Waters obtaining any relief against the Ethics Committee in federal court are so remote that it seems highly unlikely that she would bring such an action. And there is no chance that any court would review or interfere with the committee’s investigatory or disciplinary decisions.

 

 

 

 

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Gang Territory: Improving Congressional Oversight of Intelligence

In the most recent edition of the Harvard Journal of Law and Public Policy, Vicki Divoll (former counsel to the Senate Select Committee on Intelligence) argues for what she terms the “Full Access Doctrine”  (FAD). That doctrine would provide that  “under the Constitution, Congress is entitled to seek and receive any information from the executive branch that it needs to carry out its core responsibilities to make laws, appropriate funds, and investigate all matters relating to the intelligence functions of our government.” The executive branch, she contends, has no right to withhold any information from Congress, apart from a narrow category of presidential communications protected under United States v. Nixon, 418 U.S. 683 (1974).

Divoll writes in the context of congressional oversight of the intelligence community, and she makes clear that she is dissatisfied with Congress’s ability to get information needed for such oversight. Specifically, she decries the process by which the executive will brief certain sensitive intelligence matters only to the “Gang of Four” (the chairs and ranking members of the two intelligence committees).

Divoll criticizes the restricted briefings as “meaningless access” because they do not assist Congress in carrying out its Article I responsibilities. She points to the briefings received by the Gang of Four on enhanced interrogation techniques during the Bush Administration. Although the briefings were later cited as evidence that the recipients, including Representative Nancy Pelosi, had implicitly sanctioned waterboarding and other controversial practices, Divoll argues that there was little that the Gang of Four could have done with the information. She notes that they “receive nothing in writing, are told not to take notes, often have no staff assistance, and cannot discuss the material with anyone but the other three Gang of Four members.” In short, the restricted briefing “serves to give the executive branch a scapegoat if a controversial program becomes public, but it provides absolutely nothing to assist Congress in the performance of its lawmaking, appropriations and oversight duties.”

Divoll’s solution to this problem is for Congress to pass legislation establishing new rules governing congressional access to intelligence. Although she does not spell out the details, the legislation would be “based on the constitutional principles that Congress is entitled to demand anything it wants to serve its proper duties, and the President is required to provide it.” While Congress might choose not to receive some types of information (particularly details of covert actions or similar ongoing operations), the President would not have the discretion to withhold information or to provide it only to a select group of Members.

Divoll’s frustration with the current oversight process is understandable, but her proposal misses the mark, IMHO, in several respects. First, it should be noted that she significantly overstates the extent to which FAD represents established law. Certainly it has never been regarded as the law by the executive branch. It was George Washington who first enunciated the authority of the President to withhold from Congress information that would “injure the public,” following the unanimous recommendation of a 1792 cabinet meeting that included Alexander Hamilton, Edmund Randolph and Thomas Jefferson. Since that time, presidents have often asserted the authority to withhold information from Congress for a variety of reasons, including national security. See, e.g., Mark Rozell, Executive Privilege: The Dilemma of Secrecy and Democratic Accountability 32-53 (1994). No president has ever endorsed FAD or anything like it.

Nor has the judicial branch endorsed the doctrine. Divoll primarily relies on Nixon and United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977), but neither supports her position. Nixon involved a criminal, not a  congressional, subpoena, and it did not suggest that the executive lacked authority to withhold national security information. The Court suggested, in fact, that the outcome might have been different if national security were involved, noting that Nixon “does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties, the courts have traditionally shown the utmost deference to Presidential responsibilities.”

United States v. AT&T did involve a congressional attempt to access national security information (evidence regarding potential abuses of executive branch wiretapping). The court, however, declined to resolve the competing constitutional claims of the executive and legislative branches, instead attempting to steer the parties toward a negotiated settlement. The court’s dicta suggests that it rejected the executive’s claim of absolute authority to withhold national security information, but also that it rejected the assertion of an absolute legislative right to access such information (“We have not accepted the contention that the executive determination that national security may be involved is conclusive and not subject to any further inquiry, nor have we accepted the rival claim that Congressional right of access to documents for legislative purposes is at any time absolute.”). Like Mark Rozell, the court appears to favor an intermediate approach that would weigh the competing interests of the executive and legislative branches with respect to a particular dispute.

Thus, neither the executive nor judicial branches have endorsed FAD. But even if one thinks that Divoll’s view of the law is the correct one, it is hard to see how new legislation would advance the ball. Congress, as she notes, was unwilling to stand up to the Obama administration over relatively minor changes to the law governing covert action notifications. There would seem to be little chance the Congress would be able to enact a far more ambitious statute along the lines she proposes. And even if such a law were enacted, there is no guarantee that the executive would obey it. (See the War Powers Act).

Yet new legislation is not necessary to address the problem of restricted briefings. Congress already has the power to share the information in these briefings with all the members of the intelligence committees. As far as I have been able to determine, there is nothing in law or congressional rules now that would prevent any member of the Gang of Four from sharing the contents of a restricted briefing with their colleagues on the intelligence committees.

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

These types of procedures make sense because there are situations in which it is preferable that sensitive information be as tightly contained as possible. It may be true, as Divoll suggests, that the tendency of the intelligence committees to leak information has been overstated, but it cannot be seriously disputed that there are risks involved in sharing information with all members of the intelligence committees. There have been cases in which members of these committees have released sensitive information, and common sense suggests that Members of Congress are more likely to release information inadvertently than are career intelligence officials.

The major difference between Divoll’s approach and mine is that I would put the burden on the members of the Gang of Four to determine when further dissemination is required. By making it clear that the Gang of Four has the power to seek further dissemination of restricted briefings, my proposal would entail greater responsibility and political risk on their part. Just as there may be a tendency for the executive to use restricted briefings as a means of scapegoating the recipients, so there may be a tendency for the recipients to avoid any accountability for the information they receive. But if the intelligence committees wish to be full partners in the conduct of U.S. intelligence activities, they must be prepared to accept a degree of responsibility as well.