Agencies’ responsibilities to inform Congress: Clashing views

By Kevin R. Kosar

“Notice and Comment,” the heady Yale Journal on Regulation blog, posted this short piece by Brian D. Feinstein, a University of Chicago law professor, months ago. But if you missed it, set aside 10 to 15 minutes to read it.

It uses the summer oversight spat between Sen. Charles Grassley and the Department of Justice’s Office of Legal Counsel to explore contrasting positions on the extent of Congress’ authority to extract information from executive agencies. The debate illustrates the “OLC’s legal compulsion-based view” and the congressional “norms-based view” regarding information requests from the legislature. 

Under the former perspective:

“agencies must comply with requests from these specific actors because they – and only they – possess legal tools to compel compliance. Only information requests from these “authorized” agents “are enforceable by the issuance of a subpoena and the potential for contempt-of-Congress proceedings.” If a legislator can compel an agency to provide the requested information, the agency should comply with that legislator’s request. Requests from other legislators are deemed “non-oversight” inquiries to which the agency may respond at its discretion, generally providing only information that is already publicly available or attainable via FOIA.”

The “norms-based” approach, as expressed in Grassley’s June 7, 2017 letter, meanwhile:

“begins with the premise, affirmed in several major Supreme Court opinions, that “the power of congressional inquiry is inherent in [Congress’s] vested legislative powers.” Paraphrasing McGrain v. Daugherty, Grassley explains that “without access to information held by the Executive Branch, Congress cannot legislate effectively.” Because all members of Congress hold the authority and obligation to represent their constituents in the lawmaking process, all members are entitled to information from the executive branch.”

These contrasting perspectives carry all the more import in an era of vacillating unified government under polarized parties, wherein congressional minorities (be they Democratic now or Republican during 2005-2007) feel executive oversight is being neglected. “Unfortunately for Grassley,” feinstein writes, “no legal authority adopts this position.” Nonetheless, the executive branch backed down in this particular instance.

To avoid these collisions in the future, Feinstein suggests Congress enact a statute:

“could introduce legislation compelling agencies within his committee’s jurisdiction to disclose information requested by a minority of committee members. Cf. 5 U.S.C. § 2954 (‘An Executive agency, on request of the [45-member] Committee on Government Operations of the House of Representatives, or of any seven members thereof, or on request of the [15-member] Committee on Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.’)”

For a deeper dive, see Feinstein’s longer paper on Congress’ oversight power at Social Science Research Network, which will soon be published in the Washington University Law Review.

Kevin R. Kosar is the vice president of policy at the R Street Institute and co-directs the nonpartisan Legislative Branch Capacity Working Group.