Congress’s Authority to Influence and Control Executive Branch Agencies

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Congress’s Authority to Influence and Control
~~May 12, 2021~~March 30, 2023
Executive Branch Agencies
Todd Garvey
The Constitution The Constitution ~~neither establishes~~does not establish administrative agencies administrative agencies ~~nor~~or explicitly explicitly ~~prescribes~~prescribe the manner the manner
by Legislative Attorney Legislative Attorney
by which they may be created. Even so, the Supreme Court has generally recognized that which they may be created. Even so, the Supreme Court has generally recognized that
Congress
~~Congress~~ has broad constitutional authority to establish and shape the federal bureaucracy. has broad constitutional authority to establish and shape the federal bureaucracy.
~~Daniel J. Sheffner~~
~~Congress may~~ Congress may Sean M. Stiff use its Article I lawmaking powers to create federal agencies and use its Article I lawmaking powers to create federal agencies and ~~individual~~
~~Legislative Attorney~~
offices within those agencies, offices within those agencies, Legislative Attorney design agencies’ basic structures and operations, and prescribe, design agencies’ basic structures and operations, and prescribe,

subject to certain constitutional subject to certain constitutional limitations, how those holding agency offices are appointed and limitations, how those holding agency offices are appointed and
removed. Congress also may enumerate the powers, duties, and functions to be exercised by removed. Congress also may enumerate the powers, duties, and functions to be exercised by
~~For a copy of the full report,~~
agencies, as well as directly agencies, as well as directly counteract, through later legislation, certain agency actions counteract, through later legislation, certain agency actions
~~please call 7-5700 or visit~~
~~implementing delegated authority.~~
~~www.crs.gov~~implementing delegated authority. .
The most potent tools of congressional control over agencies, including those addressing the structuring, empowering, The most potent tools of congressional control over agencies, including those addressing the structuring, empowering,
regulating, and funding of agencies, typically require enactment of legislation. Such legislation must comport with regulating, and funding of agencies, typically require enactment of legislation. Such legislation must comport with
constitutional requirements related to bicameralism (i.e., it must be approved by both houses of Congress) and presentment constitutional requirements related to bicameralism (i.e., it must be approved by both houses of Congress) and presentment
(i.e., it must be presented to the President for signature). The constitutional process to enact (i.e., it must be presented to the President for signature). The constitutional process to enact ~~effective~~ legislation requires the legislation requires the
support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President’s support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President’s
veto. veto.
There also are many non-statutory tools (i.e., tools not requiring legislative enactment to exercise) that may be used by the There also are many non-statutory tools (i.e., tools not requiring legislative enactment to exercise) that may be used by the
House, Senate, congressional committees, or individual Members of Congress to influence and control agency action. In House, Senate, congressional committees, or individual Members of Congress to influence and control agency action. In
some cases, non-statutory measuressome cases, non-statutory measures, —such as impeachment and removal, Senate advice and consent to appointments or the such as impeachment and removal, Senate advice and consent to appointments or the
ratification of treaties, and committee issuance of subpoenasratification of treaties, and committee issuance of subpoenas, —can impose legal consequences. Others, however, such as can impose legal consequences. Others, however, such as
House resolutions of inquiry, House resolutions of inquiry, ~~may not be used to~~ do not bind agencies or agency officials and rely for their effectiveness on their bind agencies or agency officials and rely for their effectiveness on their
ability to persuade or influence.ability to persuade or influence.
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Congress’s Authority to Influence and Control Executive Branch Agencies

he Constitution he Constitution ~~neither establishes~~does not establish administrative agencies administrative agencies ~~nor~~or explicitly explicitly ~~prescribes~~prescribe the the
manner by which they may be created. Even so, the Supreme Court has generally manner by which they may be created. Even so, the Supreme Court has generally
T recognized that Congress has broad constitutional authority recognized that Congress has broad constitutional authority ~~over the establishment and~~
Tto shape shape of the federal the federal bureaucracy.1 This power stems principally from the combination of bureaucracy.1 This power stems principally from the combination of
Congress’s enumerated Congress’s enumerated legislative powers under Article I of the Constitutionpowers under Article I of the Constitution ~~to legislate on various~~
~~matters~~; 2 language in Article II, Section 2, which authorizes the appointment of “officers” to ; 2 language in Article II, Section 2, which authorizes the appointment of “officers” to
positions “which shall be established by law”;3 and positions “which shall be established by law”;3 and the Necessary and Proper Clause of Article I, Section 8, which authorizes Article I, Section 8, which authorizes
Congress to “make all laws which shall be necessary and proper for carrying into execution” not Congress to “make all laws which shall be necessary and proper for carrying into execution” not
only Congress’s own enumerated powers, but “all other Powers vested by this Constitution in the only Congress’s own enumerated powers, but “all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.”4 Government of the United States, or in any Department or Officer thereof.”4 ~~Acting pursuant to~~
~~its broad~~Subject to certain constitutional constitutional ~~authority~~limitations, Congress may create federal agencies and individual offices , Congress may create federal agencies and individual offices
within those agencies, design agencies’ basic structures and operations, and prescribewithin those agencies, design agencies’ basic structures and operations, and prescribe~~, subject to~~
~~certain constitutional limitations,~~ how those holding how those holding ~~such offices~~office are appointed and removed.5 are appointed and removed.5
Congress also may enumerate Congress also may enumerate ~~the~~an agency’s powers, duties, and powers, duties, and ~~functions to be exercised by agencies~~functions6, as , as
well as directly counteract, through later legislation, certain agency actions implementing well as directly counteract, through later legislation, certain agency actions implementing
delegated authority.delegated authority.67
The most potent tools of congressional control over executive branch agencies, including The most potent tools of congressional control over executive branch agencies, including
structuring, empowering, regulating, and funding agencies, typically require enactment of structuring, empowering, regulating, and funding agencies, typically require enactment of
legislation.legislation.78 Such legislation must comport with the constitutional requirements of bicameralism Such legislation must comport with the constitutional requirements of bicameralism
(i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented (i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented
to the President for signature).to the President for signature).89 For legislation to take effect, that constitutional process requires For legislation to take effect, that constitutional process requires
the support of the House, Senate, and the President, unless the support in both houses is sufficient the support of the House, Senate, and the President, unless the support in both houses is sufficient
to override the President’s veto.to override the President’s veto.910

1 1 See Free Enter. Fund v. Pub. Co. Free Enter. Fund v. Pub. Co. ~~Accounting~~Acct. Oversight Bd., 561 U.S. 477, 500 (2010) (“Congress has plenary control Oversight Bd., 561 U.S. 477, 500 (2010) (“Congress has plenary control
over the salary, duties, and even existence of executive offices.”); Myers v. United States, 272 U.S. 52, 129 (1926) over the salary, duties, and even existence of executive offices.”); Myers v. United States, 272 U.S. 52, 129 (1926)
(“To Congress under its legislative power is given the establishment of offices, the determination of their functions and (“To Congress under its legislative power is given the establishment of offices, the determination of their functions and
jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the
fixing of the term for which they are to be appointed and their compensation.”). fixing of the term for which they are to be appointed and their compensation.”).
2 2 See, e.g., U.S. CONST. art. I, § 8, cl. 3 (conferring Congress with , U.S. CONST. art. I, § 8, cl. 3 (conferring Congress with the power to regulate foreign and interstate commerce), power to regulate foreign and interstate commerce),
clcls. 11. 11-–16 (defining Congress’s 16 (defining Congress’s ~~power~~powers to declare war and to raise, support, and regulate the military and militia). to declare war and to raise, support, and regulate the military and militia).
3 3 Id. art. II, § 2, cl. 2. art. II, § 2, cl. 2.
4 4 Id. art. I, § 8, cl. 18. art. I, § 8, cl. 18.
5 5 See, e.g., Buckley v. Valeo, 424 U.S. 1, 138–39 (1976) (per curiam) (“Congress may undoubtedly under the , Buckley v. Valeo, 424 U.S. 1, 138–39 (1976) (per curiam) (“Congress may undoubtedly under the
Necessary and Proper Clause create ‘offices’ in the generic sense and provide such method of appointment to those Necessary and Proper Clause create ‘offices’ in the generic sense and provide such method of appointment to those
‘offices’ as it chooses.”); Humphrey’s Ex’r v. United States, 295 U.S. 602, 631 (1935) (“Whether the power of the ‘offices’ as it chooses.”); Humphrey’s Ex’r v. United States, 295 U.S. 602, 631 (1935) (“Whether the power of the
President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite
term and precluding a removal except for cause, will depend upon the character of the officeterm and precluding a removal except for cause, will depend upon the character of the office ~~. . .~~ .”). .”).
6 6 See Mistretta v. United States, 488 U.S. 361, 372 (1989) (“So long as Congress ‘shall lay down by legislative act an Mistretta v. United States, 488 U.S. 361, 372 (1989) (“So long as Congress ‘shall lay down by legislative act an
intelligible principle to which the person or body authorized to intelligible principle to which the person or body authorized to [exercise the delegated authorityexercise the delegated authority] is directed to conform, is directed to conform,
such legislative action is not a forbidden delegation of legislative power.’” (quoting J.W. Hampton, Jr., & Co. v. United such legislative action is not a forbidden delegation of legislative power.’” (quoting J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928))); La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally States, 276 U.S. 394, 409 (1928))); La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally
has no power to act . . . unless and until Congress confers power upon it.”). has no power to act . . . unless and until Congress confers power upon it.”). 7; See, e.g., ~~See, e.g.~~~~, Disapproving the Rule Submitted~~
~~by the Department of the Interior known as the Stream Protection Rule,~~ Pub. L. No. 115-5, 131 Stat. 10Pub. L. No. 115-5, 131 Stat. 10, 10 (2017) (joint resolution disapproving a Department of the Interior rule); ~~(2017);~~
~~Disapproving the Rule Submitted by the Department of Labor Relating to Drug Testing of Unemployment~~
~~Compensation Applicants,~~ Pub. L. No. 115-17, 131 Stat. 81Pub. L. No. 115-17, 131 Stat. 81, 81 (2017) (joint resolution disapproving a Department of Labor rule ~~(2017~~). ).
78 See ~~Immigration~~Immigr. & Naturalization & Naturalization ~~Servs~~Serv. v. Chadha, 462 U.S. 919, 951 (1983). . v. Chadha, 462 U.S. 919, 951 (1983).
89 U.S. CONST. art. I, § 7 U.S. CONST. art. I, § 7, cl. 2 (“Every Bill which shall have passed the House of Representatives and the Senate, shall, before (“Every Bill which shall have passed the House of Representatives and the Senate, shall, before
it become a Law, be presented to the President of the United Statesit become a Law, be presented to the President of the United States ~~. . .~~ .”). .”).
910 Id. (requiring the approval of two-thirds of each house to override a presidential veto). . (requiring the approval of two-thirds of each house to override a presidential veto).
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~~But~~ Congress does not always need to act through legislation to impact agency decisionmaking. Congress does not always need to act through legislation to impact agency decisionmaking.
~~Several tools available to the~~ The House, Senate, congressional committees, and even individual House, Senate, congressional committees, and even individual
Members of Congress may Members of Congress may ~~be employed~~employ tools to influence agency action. Some tools are to influence agency action. Some tools are ~~explicitly~~
enumerated in the Constitution, such as impeachment and subsequent removal from office,enumerated in the Constitution, such as impeachment and subsequent removal from office,11 and and
Senate advice and consent to the ratification of treaties and the appointment of certain executive Senate advice and consent to the ratification of treaties and the appointment of certain executive
officers, ambassadors, and judges.officers, ambassadors, and judges.1012 Under these provisions, the Constitution has explicitly Under these provisions, the Constitution has explicitly
authorized an individual house of Congress to act authorized an individual house of Congress to act ~~unilaterally~~independently of the other with binding legal effect. Other with binding legal effect. Other
tools, however, are both non-constitutional (i.e., they are not tools, however, are both non-constitutional (i.e., they are not ~~explicitly established~~enumerated in the in the
Constitution) and non-statutory (i.e., they do not require enactment of legislation). Most of these Constitution) and non-statutory (i.e., they do not require enactment of legislation). Most of these
non-constitutional, non-statutory tools, while capable of influencing agency decisionmaking, non-constitutional, non-statutory tools, while capable of influencing agency decisionmaking,
cannot themselves legally compel agency action.cannot themselves legally compel agency action.1113 This distinction This distinction, between the compulsory between the compulsory
nature of statutory enactments and the non-binding nature of most (though not all)nature of statutory enactments and the non-binding nature of most (though not all)1214 non-statutory non-statutory
legislative actionslegislative actions, is essential to understanding the scope of congressional authority over federal is essential to understanding the scope of congressional authority over federal
agencies. agencies.
Statutory Control of Executive Branch Agencies
Congress’s power to create agencies is well established. Members of the First Congress viewed Congress’s power to create agencies is well established. Members of the First Congress viewed
the Constitution as contemplating the creation of “departments of an executive nature” to “aid” the Constitution as contemplating the creation of “departments of an executive nature” to “aid”
the President in the execution of law.the President in the execution of law.1315 Toward this end, the First Congress enacted measures Toward this end, the First Congress enacted measures
creating the Departments of Foreign Affairs, creating the Departments of Foreign Affairs, ~~Treasury~~War, and , and ~~War.14~~the Treasury.16 At this early stage, Congress At this early stage, Congress
sought to ensure it retained some degree of influence and control over the new departments. The sought to ensure it retained some degree of influence and control over the new departments. The
Secretary of the Treasury, for example, had to report directly to Congress, either “in person or in Secretary of the Treasury, for example, had to report directly to Congress, either “in person or in
writing,” on “all matters referred to him by the Senate or the House.”writing,” on “all matters referred to him by the Senate or the House.”15
~~Yet the debates~~17 Members of the First Congress also of the First Congress also ~~provide evidence of Congress’s acknowledgment of~~
~~what would become~~acknowledged the delicate, and at times uneasy, balance between congressional creation and the delicate, and at times uneasy, balance between congressional creation and
control of agencies and the President’s authority to supervise executive officials pursuant to his control of agencies and the President’s authority to supervise executive officials pursuant to his
constitutional obligation to “Take Care that the constitutional obligation to “Take Care that the ~~laws~~Laws be faithfully executed.” be faithfully executed.”1618 From the From the ~~very~~
outset, Congress wrestled with outset, Congress wrestled with ~~defining~~ the scope of both presidential and congressional control the scope of both presidential and congressional control
of executive agencies. For example, in 1789 Congress engaged in a historically significant debate of executive agencies. For example, in 1789 Congress engaged in a historically significant debate
on the President’s authority to remove the Secretary of Foreign Affairs.on the President’s authority to remove the Secretary of Foreign Affairs.1719 Although Members’ Although Members’
~~views differed, ultimately the prevailing position was “in favor of declaring the power of removal~~
~~to be in the President,” rather than in the Congress.18 Similarly, a proposal to structure the~~

10 Id. ~~§ 2~~views differed, ultimately Congress adopted a statute that described the Secretary as capable of being “removed from office by the President.”20 According to Chief Justice William Howard Taft, debate concerning this part of the statute reflected the view of the 11 Id. art. I, § 2, cl. 5 (“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of (“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of
Impeachment.”); Impeachment.”); id. ~~§ 3~~art. I, § 3, cl. 6 (“The Senate shall have the sole Power to try all Impeachments.”) (“The Senate shall have the sole Power to try all Impeachments.”); id. 12 Id. art. II, § 2, cl. 2. 13 Chadha, 462 U.S. at 951–59. 14. ~~art. II, § 2.~~
~~11 Immigration & Naturalization Servs. v. Chadha, 462 U.S. 919, 951–59 (1983).~~
12 Exceptions include certain committee oversight actions, such as the issuance of subpoenas, which do impose legal Exceptions include certain committee oversight actions, such as the issuance of subpoenas, which do impose legal
obligations on witnessesobligations on witnesses ~~without compliance with bicameralism and presentment~~. . See infra “Committee Investigative
Oversight.””
1315 1 ANNALS OF CONG. 383 (1789) (statement of Rep. Elias Boudinot) 1 ANNALS OF CONG. 383 (1789) (statement of Rep. Elias Boudinot) ~~(noting that the Constitution “contemplates~~
~~departments of an executive nature in aid of the President”).~~
~~14 See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801, at 36-47 (1997).~~
~~15 An Act to Establish the Treasury Department, ch. 12, 1 Stat. 65, 66 (1789).~~
~~16 U.S. CONST. art. II, § 3.~~
17. 16 Act of July 27, 1789, , ch. 4, 1 Stat. 28, 28–29 (establishing the Department of Foreign Affairs); Act of Aug. 5, 1789, ch. 7, 1 Stat. 49, 49–50 (establishing the Department of War); Act of Sept. 2, 1789, ch. 12, 1 Stat. 65, 65 (establishing the Treasury Department). 17 1 Stat. at 66. 18 U.S. CONST. art. II, § 3. 19 Saikrishna Prakash, Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021, 1022 (2006) (describing the 1789 , 91 CORNELL L. REV. 1021, 1022 (2006) (describing the 1789
debate as “one of the most significant yet less-well-known constitutional law decisions”). debate as “one of the most significant yet less-well-known constitutional law decisions”).
~~18 Myers v. United States, 272 U.S. 52, 112 (1926). But see CURRIE, supra note 14, at 41 (noting that “there was no~~
~~consensus as to whether the [President] got [the removal] authority from Congress or from the Constitution itself”).~~
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20 1 Stat. at 29. Congressional Research Service 2 link to page 8 Congress’s Authority to Influence and Control Executive Branch Agencies House in the First Congress that “it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate.”21 Similarly, the First Congress debated a proposal to structure the Department of the Treasury as a multi-member commission, partly to insulate the agency from Department of the Treasury as a multi-member commission, partly to insulate the agency from
presidential control, presidential control, ~~was debated and eventually rejected out of concern~~but eventually rejected the commission framework for fear that such a body would that such a body would
not be able to administer not be able to administer ~~effectively~~ the finances of the new government.the finances of the new government.1922
As reflected in the debates of the First Congress and confirmed by later Supreme Court decisions, As reflected in the debates of the First Congress and confirmed by later Supreme Court decisions,
Congress’s power over the administrative state, though broad, is not unlimited. In particular, Congress’s power over the administrative state, though broad, is not unlimited. In particular,
constraints on congressional power over executive agencies flowconstraints on congressional power over executive agencies flow, in part, from the foundational from the foundational
constitutional doctrine of the separation of powers. Although the text of the Constitution constitutional doctrine of the separation of powers. Although the text of the Constitution
distributes the legislative, executive, and judicial powers among the three branches of distributes the legislative, executive, and judicial powers among the three branches of
government,government,2023 the Supreme Court has not endorsed the Supreme Court has not endorsed ~~any~~an absolute separation. The allocation of absolute separation. The allocation of
powers was never intended to cause the branches to be “hermetically sealed,”powers was never intended to cause the branches to be “hermetically sealed,”2124 or, in the words of or, in the words of
Justice Oliver Wendell Holmes, divided into “fields of black and white.”Justice Oliver Wendell Holmes, divided into “fields of black and white.”2225 Instead, Instead, ~~observed~~
as Justice Robert JacksonJustice Robert Jackson observed, the separation of powers “enjoins upon [the] branches separateness but , the separation of powers “enjoins upon [the] branches separateness but
interdependence, autonomy but reciprocity.”interdependence, autonomy but reciprocity.”~~23 It is a doctrine generally characterized by~~
~~ambiguity and overlap rather than~~26 Ambiguity and overlap generally characterize the separation of powers doctrine, not bright-line rules. Yet some well-established principles govern bright-line rules. Yet some well-established principles govern
the relationship between Congress and the administrative state. For example, Congress may the relationship between Congress and the administrative state. For example, Congress may
neither displace executive authority by directly implementing the law itself,neither displace executive authority by directly implementing the law itself,2427 nor appoint or nor appoint or
reserve for itself the power to remove (except through impeachment) executive officers engaged reserve for itself the power to remove (except through impeachment) executive officers engaged
in the execution of law.in the execution of law.2528 On the other end of the spectrum, the separation of powers is not On the other end of the spectrum, the separation of powers is not
violated merely by Congress directing, prohibiting, or otherwise legislating on most forms of violated merely by Congress directing, prohibiting, or otherwise legislating on most forms of
agency action.agency action.26
~~It would appear that the~~29 The chief substantive limitations on Congress’s ability to control the chief substantive limitations on Congress’s ability to control the
executive branch arise from executive branch arise from specific constitutional provisions, as well as from implied principles connected to the separation 21 Myers v. United States, 272 U.S. 52, 114 (1926); but see DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801, at 41 (1997) (concluding that although the House debates recognized the President’s power of removal, there was “no consensus as to whether he got that authority from Congress or from the Constitution itself”). 22~~specific constitutional provisions and implied principles—intimately~~
~~connected to the separation of powers—that buttress the general division of power among the~~
~~branches. These provisions and principles, which include the Appointments Clause, the Take Care~~
~~Clause, and the President’s authority to supervise the executive branch, are addressed below in~~
~~conjunction with Congress’s statutory powers.~~

19 See Robert V. Percival, Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 , 51
DUKE L.J. 963, 975 (2001). DUKE L.J. 963, 975 (2001).
2023 See U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United ~~States~~
States . . . .”); . . . .”); id. art. II, § 1 art. II, § 1, cl.1 (“The executive Power shall be vested in a President of the United States of America.”); (“The executive Power shall be vested in a President of the United States of America.”); id. art. art.
III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as
the Congress may from time to time ordain and establish.”). the Congress may from time to time ordain and establish.”).
~~21 Immigration~~24 Immigr. & Naturalization Servs. v. Chadha, 462 U.S. 919, 951 (1983 & Naturalization Servs. v. Chadha, 462 U.S. 919, 951 (1983) (internal quotation marks omitted). 25).
22 Springer v. Gov’t of Springer v. Gov’t of ~~Philippine~~Phil. Islands, 277 U.S. 189, 209 (1928) (Holmes, J., dissenting); Islands, 277 U.S. 189, 209 (1928) (Holmes, J., dissenting); see also Trump v. Mazars Trump v. Mazars
USA, LLP, 140 S. Ct. 2019, 2035 (2020) (“Congressional subpoenas for the President’s personal information implicate USA, LLP, 140 S. Ct. 2019, 2035 (2020) (“Congressional subpoenas for the President’s personal information implicate
weighty concerns regarding the separation of powers . . . . A balanced approach is necessary, one that takes a weighty concerns regarding the separation of powers . . . . A balanced approach is necessary, one that takes a
considerable impression from the practice of the government, and resists the pressure inherent within each of the considerable impression from the practice of the government, and resists the pressure inherent within each of the
separate Branches to exceed the outer limits of its power.”separate Branches to exceed the outer limits of its power.”) (citations (citations~~, brackets,~~ and internal quotation marks omitted) and internal quotation marks omitted)). 26.
23 Youngstown Sheet & Tube Co. v. Sawyer Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 635 (1952) (Jackson, J., concurring). , 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
2427 See Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265–77 (1991). Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265–77 (1991).
2528 See ~~Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam); Bowsher v. Synar, 478 U.S. 714, 733–34 (1986).~~ ~~See~~
Bowsher v. Synar, 478 U.S. 714, 733–34 (1986); Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam); see also infra “Limitations Imposed by the Appointments Clause.”
2629 The separation of powers may The separation of powers may~~, however,~~ be violated when be violated when ~~that direction or prohibition~~a statute directing or prohibiting agency action infringes upon other core infringes upon other core
presidential powers, such as the exclusive power of the President to recognize foreign states. presidential powers, such as the exclusive power of the President to recognize foreign states. See Zivotofsky v. Zivotofsky v. Kerry, 576 U.S. 1, 31–32~~Kerry,~~
~~135 S. Ct. 2076, 2096~~ (2015) (holding that a statute directing the State Department, upon request, to designate the place (2015) (holding that a statute directing the State Department, upon request, to designate the place
of birth of a U.S. citizen born in Jerusalem as “Israel,” in contravention of long-standing executive policy, infringed of birth of a U.S. citizen born in Jerusalem as “Israel,” in contravention of long-standing executive policy, infringed
upon the President’s foreign recognition power). upon the President’s foreign recognition power).
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Congress’s Authority to Influence and Control Executive Branch Agencies

of powers that buttress the general division of power among the branches. These provisions and principles, which include the Appointments Clause, the Take Care Clause, and the President’s authority to supervise the executive branch, are addressed below in conjunction with Congress’s statutory powers. Four Pillars of Statutory Control
Congress’s ability to control administrative agencies through the exercise of legislative power is a Congress’s ability to control administrative agencies through the exercise of legislative power is a
holistic endeavor perhaps best understood as built upon four basic pillars: structural design, holistic endeavor perhaps best understood as built upon four basic pillars: structural design,
delegation of authority, procedural controls on agency decisionmaking, and agency funding. delegation of authority, procedural controls on agency decisionmaking, and agency funding.
~~Reliance~~Congress’s ability to rest its control on each pillar, however, is informed by separation-of-powers principles. on each pillar, however, is informed by separation-of-powers principles.
Structural Design
How an agency is structured invariably affects how it operates How an agency is structured invariably affects how it operates~~, and what sort of~~ and the relationship it relationship it
has with has with ~~the~~ Congress and the President.Congress and the President.2730 In creating a federal agency, Congress may structure or In creating a federal agency, Congress may structure or
design the agency in several ways. Many of Congress’s structural choices affect the independence design the agency in several ways. Many of Congress’s structural choices affect the independence
of agencies by shaping the degree to which the President can assert control over them. These of agencies by shaping the degree to which the President can assert control over them. These
structural choices are wide-ranging, but generally relate to agency leadership, appointment and structural choices are wide-ranging, but generally relate to agency leadership, appointment and
removal of officers, and presidential supervision. For example, subject to constitutional removal of officers, and presidential supervision. For example, subject to constitutional
considerations explained below, Congress may considerations explained below, Congress may
 structure agency leadership in the form of a multi-member commission or a  structure agency leadership in the form of a multi-member commission or a
single head; single head;28
~~ create agency offices, which may be filled by persons appointed by the President~~
~~with the advice and consent of the Senate, or in the case of “inferior” offices, vest~~
~~the power of appointment in the President, the head of a department, or the~~
~~“Courts of Law”;29~~
31  create positions within agencies;32  establish certain statutory qualifications for appointees, often based on political  establish certain statutory qualifications for appointees, often based on political
affiliation or substantive experience, or dictate the length of an official’s term of affiliation or substantive experience, or dictate the length of an official’s term of
office;office;30
~~ choose to make an agency freestanding, or place it within an existing department~~
~~or agency;31~~33

2730 “Structure “Structure,” as Justice Antonin Scalia said, “is destiny,” meaning that an agency’s ” as Justice Antonin Scalia said, “is destiny,” meaning that an agency’s ~~defining~~ structural characteristics structural characteristics
often have a substantial impact on the agency’s often have a substantial impact on the agency’s ~~future~~ actions and operation. actions and operation. See Gregory M. Jones, Gregory M. Jones, Proper Judicial
Activism, 14 REGENT U. L. REV. 141, 145 (2001) (quoting Justice Antonin Scalia, Address at Regent University (Fall , 14 REGENT U. L. REV. 141, 145 (2001) (quoting Justice Antonin Scalia, Address at Regent University (Fall
1998)). 1998)). See also, Brian D. Feinstein, Brian D. Feinstein, Designing Executive Agencies for Congressional Influence, 69 ADMIN. L. REV. , 69 ADMIN. L. REV.
259, 278–88 (2017) (studying the impact agency design features have on congressional oversight). 259, 278–88 (2017) (studying the impact agency design features have on congressional oversight).
2831 Compare 15 U.S.C. § 78d(a) (creating “a Securities and Exchange Commission . . . composed of five commissioners 15 U.S.C. § 78d(a) (creating “a Securities and Exchange Commission . . . composed of five commissioners
to be appointed by the President by and with the advice and consent of the Senate”), to be appointed by the President by and with the advice and consent of the Senate”), with 42 U.S.C. § 7131 (“There 42 U.S.C. § 7131 (“There
shall be at the head of the Department a Secretary of Energy . . . who shall be appointed by the President by and with shall be at the head of the Department a Secretary of Energy . . . who shall be appointed by the President by and with
the advice and consent of the Senate. The Department shall be administered, in accordance with the provisions of this the advice and consent of the Senate. The Department shall be administered, in accordance with the provisions of this
chapter, under the supervision and direction of the Secretary.”). chapter, under the supervision and direction of the Secretary.”).
2932 U.S. CONST. art. II, § 2, cl. 2 (identifying the different categories of actors in whom Congress may vest the power to appoint “Officers of the United States” in those situations where the Constitution did not otherwise provide for an officer’s appointment). 33 ~~U.S. CONST. art. II, § 2, cl. 2.~~
30 See, e.g., 52 U.S.C. § 30106(a)(1)–(2) (providing that the members of the Federal Election Commission shall serve , 52 U.S.C. § 30106(a)(1)–(2) (providing that the members of the Federal Election Commission shall serve
single six-year terms, “[n]o more than 3 [of whom] . . . may be affiliated with the same political party”); 5 U.S.C.single six-year terms, “[n]o more than 3 [of whom] . . . may be affiliated with the same political party”); 5 U.S.C.
§ 1201 (establishing background and political affiliation requirements for members of the Merit Systems Protection § 1201 (establishing background and political affiliation requirements for members of the Merit Systems Protection
Board); 12 U.S.C. § 4512(b)(1) (Board); 12 U.S.C. § 4512(b)(1) (~~establishing~~requiring that the Director of the Federal Housing Finance Agency “have a that the Director of the Federal Housing Finance Agency “have a
demonstrated understanding of financial management or oversight, and have a demonstrated understanding of capital demonstrated understanding of financial management or oversight, and have a demonstrated understanding of capital
markets”). For a broader discussion of statutory qualificationsmarkets”). For a broader discussion of statutory qualifications, see CRS Report RL33886, see CRS Report RL33886, Statutory Qualifications for
Executive Branch Positions, by Henry B. Hogue. , by Henry B. Hogue.
~~31 Compare 5 U.S.C. § 1211 (establishing the freestanding Office of Special Counsel), with 50 U.S.C. § 2401~~
~~(establishing the National Nuclear Security Administration within the Department of Energy).~~
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  make an agency independent of other agencies or place it within an existing department or agency;34  provide that an agency official provide that an agency official ~~serve~~serves at the pleasure of the President, or, in at the pleasure of the President, or, in ~~certain~~
~~situations,32 be protected from removal except in cases of~~ certain situations,35 is removable only for cause (e.g., for “inefficiency, neglect “inefficiency, neglect
of duty, or malfeasance in office”of duty, or malfeasance in office”~~;33~~);36 or or
  ~~choose to~~ exempt an agency from certain aspects of presidential supervision—for exempt an agency from certain aspects of presidential supervision—for
example, ~~example~~ by excusing the agency from complying with generally applicable by excusing the agency from complying with generally applicable
executive branch requirements that agency rules, legislative submissions, and executive branch requirements that agency rules, legislative submissions, and
budget requests be reviewed and cleared by the White House.budget requests be reviewed and cleared by the White House.3437
Although Congress may wish to insulate an agency from presidential control through these Although Congress may wish to insulate an agency from presidential control through these
structural choices, structural choices, ~~fundamental constitutional requirements must be complied with in~~ Congress must comply with fundamental constitutional requirements when designing designing
federal agencies. These limits, two of which are discussed below, generally exist to ensure that federal agencies. These limits, two of which are discussed below, generally exist to ensure that
~~executive branch officials remain accountable to the President, and ultimately the public, for their~~
~~actions.35~~
~~Limitations Imposed by the Appointments Clause~~
~~The Appointments Clause imposes significant limitations on the structural choices that Congress~~
~~may make in determining how executive agency officials are appointed.36 Under the Clause,~~
~~principal officers must be appointed by the President, “with the Advice and Consent of the~~
~~Senate,” while Congress may vest the appointment of “inferior Officers” “in the President alone,~~
~~in the Courts of Law, or in the Heads of Departments.”37 Non-officers—that is, “mere~~
~~employees”—are not subject to any constitutionally required method of appointment.38~~
~~The breadth of authority that an executive branch official exercises typically determines the~~
~~official’s classification as either an officer or non-officer for Appointments Clause purposes.39~~
~~Generally, if an executive official holds a “continuing position established by law” and~~
~~“exercis[es] significant authority pursuant to the laws of the United States,” he is an “Officer of~~
~~the United States.”40 The applicable standard for distinguishing between principal officers—who~~
~~must be appointed with the advice and consent of the Senate—and inferior officers—whose~~

~~32 See infra note 67.~~
33 See, e.g.~~, 42 U.S.C. §~~executive branch officials remain accountable to the President38 and, likewise, that the President is responsible for the actions of those executive branch officials whose conduct he is able to control.39 Ultimately, these lines of intrabranch accountability and concomitant presidential responsibility aim to ensure that the Executive remains accountable to the public at large.40 Limitations Imposed by the Appointments Clause The Appointments Clause limits Congress’s ability to specify in law how appointments are made for certain positions.41 The Clause distinguishes between the appointment of two classes of officers—what the Supreme Court’s case law refers to as “principal officers” and what the Clause itself refers to as “inferior Officers.” Principal officers must be appointed by the President, “by and with the Advice and Consent of the Senate.” Congress may employ this same appointment framework for inferior officers, but the Clause alternatively allows Congress to vest the appointment of such officers “in the President alone, in the Courts of Law, or in the Heads of 34 Compare 5 U.S.C. § 1211 (establishing the freestanding Office of Special Counsel), with 50 U.S.C. § 2401 (establishing the National Nuclear Security Administration within the Department of Energy). 35 See infra note 78. 36 See, e.g., 42 U.S.C. § 7171(b) (providing that commissioners on the Federal Energy Regulatory Commission “may be 7171(b) (providing that commissioners on the Federal Energy Regulatory Commission “may be
removed by the President only for inefficiency, neglect of duty, or malfeasance in office”). removed by the President only for inefficiency, neglect of duty, or malfeasance in office”).
3437 See 12 U.S.C. § 250 ( 12 U.S.C. § 250 (~~excusing financial regulators from review of~~ barring executive branch officials from requiring certain financial regulators to submit “legislative recommendations, or testimony, or “legislative recommendations, or testimony, or
comments on legislation”comments on legislation”).
35 See ~~Free Enter. Fund v. Pub. Co. Accounting~~ for approval, comment, or review prior to the submission of such documents to Congress). The Department of Justice has argued that such direct-submission requirements may be constitutionally infirm under the Recommendations Clause, the Article II Vesting Clause, the Take Care Clause, and general principles of presidential control over subordinate executive branch officials. See, e.g., Constitutionality of Statute Requiring Exec. Agency to Rep. Directly to Cong., 6 U.S. Op. O.L.C. 632, 641 (1982). 38 See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 498 (2010) (noting the role an “effective Oversight Bd., 561 U.S. 477, 498 (2010) (noting the role an “effective
chain of command” plays in ensuring accountability)chain of command” plays in ensuring accountability);. 39 See id. (explaining that an appointment framework that unconstitutionally limits the President’s ability to control certain executive branch officials can result in an officer who is “not accountable to the President, a President who is not responsible for” the officer). 40 Edmond v. United States, 520 U.S. 651, 660 (1997) (“By Edmond v. United States, 520 U.S. 651, 660 (1997) (“By
requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public
accountability for both the making of a bad appointment and the rejection of a good one.”). accountability for both the making of a bad appointment and the rejection of a good one.”).
3641 U.S. CONST. art. II, § 2, cl. 2. U.S. CONST. art. II, § 2, cl. 2.
~~37 Id.~~
~~38 Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018) (explaining that officers constitute “a class of government officials~~
~~distinct from mere employees”); see Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976) (per curiam) (stating that~~
~~“[e]mployees are lesser functionaries subordinate to officers of the United States”). Congress exercises significant~~
~~authority over the hiring and separation of “employees.” See, e.g., 5 U.S.C. §§ 2101–11001 (governing members of the~~
~~civil service and other federal employees).~~
~~39 See, e.g., Edmond, 520 U.S. at 662 (acknowledging that military appellate judges exercise “significant authority”);~~
~~Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 881–82 (1991) (holding that special trial judges of an Article I~~
~~tax court are “Officers of the United States” based on the degree of authority they exercise); Buckley, 424 U.S. at 138~~
~~(concluding that members of the Federal Election Commission exercised “significant authority”).~~
~~40 Lucia, 138 S. Ct. at 2051 (citing United States v. Germaine, 99 U.S. 508, 511 (1879); Buckley, 424 U.S. at 126~~
~~(internal quotation marks omitted)).~~
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~~appointment Congress may vest elsewhere—is arguably less clear.41~~ Congressional Research Service 5 Congress’s Authority to Influence and Control Executive Branch Agencies Departments.” Finally, persons who are not officers of the United States, a category the Court has labeled “mere employees,” are not subject to the Appointments Clause.42 The breadth of authority that an executive branch official exercises typically determines the official’s classification as either an officer or non-officer for Appointments Clause purposes.43 Generally, if an executive branch official holds a “continuing position established by law” and “exercis[es] significant authority pursuant to the laws of the United States,” that person is an “Officer of the United States.”44 The standard for distinguishing between principal officers—who must be appointed with the advice and consent of the Senate—and inferior officers—whose appointment Congress may vest elsewhere—is arguably less clear.45 At times, the Supreme Court At times, the Supreme Court
has adopted an approach that suggests the distinction between a principal and inferior officer has adopted an approach that suggests the distinction between a principal and inferior officer
hinges mainly on whetherhinges mainly on whether Congress has made the officer the officer is subject to supervision by some higher subject to supervision by some higher ~~official, and not on~~
~~the amount of overall authority exercised.42~~official; the principal/inferior officer distinction does not appear to hinge on the amount of authority that Congress vests in the officer.46 Under this approach, principal officers are generally Under this approach, principal officers are generally
subject only to supervision by the President, while inferior officers are generally subject to subject only to supervision by the President, while inferior officers are generally subject to
supervision by a higher-ranking, Senate-confirmed official.supervision by a higher-ranking, Senate-confirmed official.4347
Thus, in designing agencies, Congress generally has little discretion in directing the method of Thus, in designing agencies, Congress generally has little discretion in directing the method of
appointment for most agency heads. If appointment for most agency heads. If ~~an agency head~~a person exercises significant authority on a exercises significant authority on a
continuing basis and is supervised only by the President, he or she qualifies as a principal officer continuing basis and is supervised only by the President, he or she qualifies as a principal officer
and must be appointed by the President with the advice and consent of the Senate.and must be appointed by the President with the advice and consent of the Senate.4448 However, However,
Congress has some discretion in choosing Congress has some discretion in choosing ~~the appointing official for~~who appoints inferior officers. For inferior officers. For
example, Congress can vest the appointment of an “inferiorexample, Congress can vest the appointment of an “inferior~~” agency official~~ Officer” in the head of a in the head of a
~~department or in the “Courts of Law” to either provide an official with some independence from~~
~~the President or to prevent the President from nominating an official of his own choosing.45 That~~
~~said, Congress may not reserve for itself the authority to appoint any officer, whether principal or~~
~~inferior.46~~
~~Limitations Imposed by Principles of Presidential Control~~
~~The President’s general authority to supervise and oversee the executive branch also limits the~~
~~structural choices Congress may make in designing agencies. These limits are often implicated by~~
~~statutory provisions that seek to insulate an agency from presidential control by providing agency~~
~~leaders with removal protections. For example, “for cause” removal protections generally prevent~~
~~the President from removing an identified official except in cases of “inefficiency, neglect of duty,~~
~~or malfeasance in office.”47 Generally, these and other removal provisions cannot be used to~~
~~deprive the President of his constitutional duty to “oversee the faithfulness of the officers who~~
~~execute” the law.48~~

41department or in the “Courts of Law” and 42 Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018) (explaining that officers constitute “a class of government officials distinct from mere employees”); see Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976) (per curiam) (stating that “[e]mployees are lesser functionaries subordinate to officers of the United States”). Congress exercises significant authority over the hiring and separation of “employees.” See, e.g., 5 U.S.C. §§ 2101–11001 (governing members of the civil service and other federal employees). 43 See, e.g., Edmond, 520 U.S. at 662 (acknowledging that military appellate judges exercise “significant authority”); Freytag v. Comm’r, 501 U.S. 868, 881–82 (1991) (holding that special trial judges of an Article I tax court are “Officers of the United States” based on the degree of authority they exercise); Buckley, 424 U.S. at 138 (concluding that members of the Federal Election Commission exercised “significant authority”). 44 Lucia, 138 S. Ct. at 2051 (citing United States v. Germaine, 99 U.S. 508, 511 (1879)); Buckley, 424 U.S. at 126. 45 Edmond, 520 U.S. at 661 (“Our cases have not set forth an exclusive criterion for distinguishing between principal , 520 U.S. at 661 (“Our cases have not set forth an exclusive criterion for distinguishing between principal
and inferior officers for Appointment Clause purposes.”). and inferior officers for Appointment Clause purposes.”).
4246 Id. at 663; Free Enter. Fund v. Pub. Co. at 663; Free Enter. Fund v. Pub. Co. ~~Accounting~~Acct. Oversight Bd., 561 U.S. 477, 510 (2010). At times, the Court has Oversight Bd., 561 U.S. 477, 510 (2010). At times, the Court has
employed a functional analysis that would suggest that the principal/inferior distinction is governed by employed a functional analysis that would suggest that the principal/inferior distinction is governed by ~~a linear~~
an evaluation of the degree of authority exercised. evaluation of the degree of authority exercised. See Morrison v. Olson, 487 U.S. 654, 671–72 (1988) (deciding that Morrison v. Olson, 487 U.S. 654, 671–72 (1988) (deciding that
“[s]everal factors lead to th[e] conclusion” that the independent counsel is an inferior officer); “[s]everal factors lead to th[e] conclusion” that the independent counsel is an inferior officer); accord Seila Law LLC Seila Law LLC
v. Consumer Fin. Prot. Bd., 140 S. Ct. 2183, 2199 n.3 (2020) (explaining that, in the past, the Court has “examined v. Consumer Fin. Prot. Bd., 140 S. Ct. 2183, 2199 n.3 (2020) (explaining that, in the past, the Court has “examined
factors such as the nature, scope, and duration of an officer’s duties” to determine whether an official is an inferior factors such as the nature, scope, and duration of an officer’s duties” to determine whether an official is an inferior
officer, and that, “[m]ore recently, [it has] focused on whether the officer’s work is directed and supervised by a officer, and that, “[m]ore recently, [it has] focused on whether the officer’s work is directed and supervised by a
principal officer” in making such a determinationprincipal officer” in making such a determination) (internal quotation marks omitted) (internal quotation marks omitted)). 47.
43 Edmond, 520 U.S. at 663. , 520 U.S. at 663.
4448 Cf. id. (“[W]e think it evident that ‘inferior officers’ are officers whose work is directed and supervised at some level . (“[W]e think it evident that ‘inferior officers’ are officers whose work is directed and supervised at some level
by others who were appointed by presidential nomination with the advice and consent of the Senate.”). by others who were appointed by presidential nomination with the advice and consent of the Senate.”).
~~45 U.S. CONST. art. II, § 2, cl. 2. Congress’s discretion to vest the appointment of an inferior executive branch official in~~
~~the courts is not unlimited. For example, in Morrison v. Olson, the Court stated that such “interbranch appointments”~~
~~may be improper if the judicial appointment “had the potential to impair the constitutional functions assigned to one of~~
~~the branches,” or “if there was some ‘incongruity’ between the functions normally performed by the courts and the~~
~~performance of their duty to appoint.” 487 U.S. at 676.~~
~~46 Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam).~~
~~47 See, e.g., 42 U.S.C. § 7171(b) (providing that commissioners on the Federal Energy Regulatory Commission “may~~
~~be removed by the President only for~~ Congressional Research Service 6 link to page 10 link to page 10 Congress’s Authority to Influence and Control Executive Branch Agencies thus prevent the President from directly nominating49 the official.50 That said, Congress may not reserve for itself the authority to appoint any officer, whether principal or inferior.51 Limitations Imposed by Principles of Presidential Control The President’s general authority to supervise and oversee the executive branch also limits the structural choices Congress may make in designing agencies. These limits are often implicated by statutory provisions that seek to insulate an agency from presidential control by providing agency leaders with removal protections. For example, “for cause” removal protections generally prevent the President from removing a particular official except in cases of “inefficiency, neglect of duty, inefficiency, neglect of duty, or malfeasance in office.”52 Generally, removal provisions cannot be used to deprive the President of his constitutional duty to “oversee the faithfulness of the officers who execute” the law.53 The Supreme Court has explained~~or malfeasance in office”).~~
~~48 Free Enter. Fund, 561 U.S. at 484.~~
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~~The Supreme Court has established~~ that by vesting the President with both “the executive Power” that by vesting the President with both “the executive Power”
and the personal responsibility to ensure the faithful execution of the laws, Article II confers upon and the personal responsibility to ensure the faithful execution of the laws, Article II confers upon
the the ~~presidency~~President the “administrative control” of the executive branch. the “administrative control” of the executive branch.4954 The President’s ability to The President’s ability to
ensure accountability through removal of executive branch officials has long been viewed as an ensure accountability through removal of executive branch officials has long been viewed as an
essential aspect of this ability to oversee essential aspect of this ability to oversee ~~the enforcement and~~ execution of the law, as “the power execution of the law, as “the power
to remove is the power to control.”to remove is the power to control.”5055
The Supreme Court has outlined the extent of the President’s authority to oversee the executive The Supreme Court has outlined the extent of the President’s authority to oversee the executive
branch through removal in a series of seminal cases. The 1926 decision of branch through removal in a series of seminal cases. The 1926 decision of Myers v. United States
invalidated a statutory provision that prohibited the President from removing an executive invalidated a statutory provision that prohibited the President from removing an executive ~~official~~
branch official without first obtaining the advice and consent of the Senatewithout first obtaining the advice and consent of the Senate ~~and established~~.56 Myers affirmed the general the general
proposition that Article II grants the President “the general administrative control of those proposition that Article II grants the President “the general administrative control of those
executing the laws, including the power of appointment and removal of executive officers.”executing the laws, including the power of appointment and removal of executive officers.”51
57 Myers was curtailed was curtailed in part shortly thereafter in the 1935 decision of shortly thereafter in the 1935 decision of Humphrey’s Executor v. United
States,,5258 where the Court held that Congress could limit the President’s ability to remove where the Court held that Congress could limit the President’s ability to remove
members of the multi-member Federal Trade Commission (FTC) by providing its commissioners members of the multi-member Federal Trade Commission (FTC) by providing its commissioners
~~with “for cause” removal protections.53 The Court again approved of statutorily imposed for cause~~
~~removal protections in Morrison v. Olson, this time as applied to the independent counsel, an~~
~~officer who was authorized to conduct independent investigations and prosecutions of high-level~~
~~executive officials.54 Focusing on whether “the removal restrictions are of such a nature that they~~
~~impede the President’s ability to perform his constitutional duty,”55 the Court held that Congress~~
~~had afforded the President adequate authority to oversee the independent counsel and ensure that~~
~~the official faithfully executed and enforced the law.56 In~~ ~~Free Enterprise Fund v. Public~~
~~Company Accounting Oversight Board (PCAOB),57 the Court invalidated statutory provisions~~
~~providing that members of the PCAOB could be removed only for cause by the Securities and~~
~~Exchange Commission, whose members were, in turn, also protected from removal by for cause~~
~~removal protections.58 By insulating PCAOB members from presidential control with dual layers~~
~~of for cause removal protections, the law had “impaired” the President’s necessary authority to~~
~~“hold[] his subordinates accountable for their conduct” and “subvert[ed] the President’s ability to~~

~~49 Id. at 492–93 (quoting Myers v. United States, 272 U.S. 52, 164 (1926)).~~
50 49 The President may be able to use his implied removal power to indirectly affect the selection of inferior executive branch officers whose appointment Congress may properly vest in the head of a department. See infra “Limitations Imposed by Principles of Presidential Control.” 50 U.S. CONST. art. II, § 2, cl. 2. Congress’s discretion to vest the appointment of an inferior executive branch officer in the courts is not unlimited. For example, in Morrison v. Olson, the Court stated that such “interbranch appointments” may be improper if the judicial appointment “had the potential to impair the constitutional functions assigned to one of the branches,” or “if there was some ‘incongruity’ between the functions normally performed by the courts and the performance of their duty to appoint.” 487 U.S. at 675-76. 51 Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam). 52 See, e.g., 42 U.S.C. § 7171(b) (providing that commissioners on the Federal Energy Regulatory Commission “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office”). 53 Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 484 (2010). 54 Id. at 492–93 (quoting Myers v. United States, 272 U.S. 52, 164 (1926)). 55 Id. at 497 (“The diffusion of power carries with it a diffusion of accountability.”); at 497 (“The diffusion of power carries with it a diffusion of accountability.”); In re Aiken Cty., 645 F.3d 428, Aiken Cty., 645 F.3d 428,
442 (D.C. Cir. 2011) (Kavanaugh, J., concurring). 442 (D.C. Cir. 2011) (Kavanaugh, J., concurring).
51 Myers,56 272 U.S. 272 U.S. at 164.at 164.
52 57 Id. 58 295 U.S. 602 (1935). 295 U.S. 602 (1935). See also Wiener v. United States, 357 U.S. 349, 352 (1958) (“The assumption was short-lived that Wiener v. United States, 357 U.S. 349, 352 (1958) (“The assumption was short-lived that
the the Myers case recognized the President’s inherent constitutional power to remove officials case recognized the President’s inherent constitutional power to remove officials, no matter what the relation no matter what the relation
of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding
~~the nature of their tenure.”).~~
~~53 Humphrey’s Ex’r, 295 U.S. at 619–20.~~
~~54 The independent counsel was removable by the Attorney General “only for good cause, physical or mental disability~~
~~(if not prohibited by law protecting persons from discrimination on the basis of such a disability) or any other condition~~
~~that substantially impairs the performance of such independent counsel’s duties.” 28 U.S.C. § 596. The independent~~
~~counsel provisions have since sunset. See id. § 599 (authorizing the Independent Counsel for five years).~~
~~55 Morrison, 487 U.S. at 693–96.~~
~~56 Id. at 696 (“Notwithstanding the fact that the counsel is to some degree ‘independent’ and free from executive~~
~~supervision to a greater extent than other federal prosecutors, in our view . . . the Act give[s] the Executive Branch~~
~~sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally~~
~~assigned duties.”).~~
~~57 561 U.S. 477 (2010).~~
~~58 Id. at 491-98.~~
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the nature of their tenure.”). Congressional Research Service 7 Congress’s Authority to Influence and Control Executive Branch Agencies with “for cause” removal protections.59 The Court again approved of statutorily imposed for-cause removal protections in Morrison v. Olson, this time as applied to the independent counsel, an officer who was authorized to conduct independent investigations and prosecutions of high-level executive officials.60 Focusing on whether “the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty,”61 the Court held that Congress had afforded the President adequate authority to oversee the independent counsel and ensure that the official faithfully executed the law.62 In its most recent removal cases, the Court has invalidated removal provisions for certain officers engaged in financial regulation. In Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB),63 the Court invalidated portions of a statute that created two levels of removal protection between the President and an executive branch official,64 rather than the single level of removal protection at issue in Humphrey’s Executor and its progeny.65 The Court explained that the law “impaired” the President’s authority to “hold[] his subordinates accountable for their conduct” and “subvert[ed] the President’s ability to ensure that the laws are faithfully executed.”ensure that the laws are faithfully executed.”59 66 The Court The Court ~~most recently~~next assessed the constitutional assessed the constitutional
dimensions of presidential control in dimensions of presidential control in Seila Law LLC v. Consumer Financial Protection Bureau
~~(CFPB)~~.60 In Seila Law~~, the Court held that the structure of the CFPB~~(CFPB), holding that the CFPB’s structure violated the constitutional violated the constitutional
separation of powers.separation of powers.6167 The CFPB, an independent agency, is led by a single Director who wields The CFPB, an independent agency, is led by a single Director who wields
substantial executive powerssubstantial executive powers and until Seila Law~~, was removable by the President~~ .68 The President could remove the Director only for only for
cause.cause.6269 The Court reasoned that there was scant historical precedent for The Court reasoned that there was scant historical precedent for ~~imbuing~~insulating from removal a principal a principal
officer who was solely in charge of an agencyofficer who was solely in charge of an agency ~~with for cause removal protection, a result that~~
~~itself~~, and this lack of historical precedent indicated a constitutional infirmity in the Court’s view. indicated a constitutional infirmity in the Court’s view.6370 The Court also based its decision The Court also based its decision
on the Constitution’s structure, which places the executive power in one person, the President, on the Constitution’s structure, which places the executive power in one person, the President,
who is the only government official (with the exception of the Vice President) accountable to the who is the only government official (with the exception of the Vice President) accountable to the
entire country through national elections.entire country through national elections.6471 “The CFPB’s single-Director structure,” wrote the “The CFPB’s single-Director structure,” wrote the
Court, “contravenes this carefully calibrated system by vesting significant Court, “contravenes this carefully calibrated system by vesting significant ~~governmental power in~~
~~the hands of a single individual” who, because of his for cause removal protection, is~~
~~“accountable to no one.”65~~
~~These removal cases impose significant, if somewhat undefined, limitations on Congress’s~~
~~authority to structure an agency to insulate certain officials from presidential control.66 For~~
~~example, the Court has suggested that there are certain “purely executive” officials,67 and these~~
~~persons “must be removable by the President at will if he is to be able to accomplish his~~
~~constitutional role.”68 For this reason it is likely that congressional attempts to provide a~~
~~traditional Cabinet official with “for cause” removal protections would be viewed as placing an~~
~~impermissible obstruction on the President’s ability to carry out his executive functions.69 In any~~

~~59 Id. at 496–98.~~
~~60 140 S. Ct. 2183 (2020).~~
~~61 Id. at 2197.~~
~~62 Id. at 2193.~~
~~63 Id. at 2201-02.~~
~~64 Id. at 2203.~~
~~65 Id. In Collins v Mnuchin, No. 19-422 (consolidated with Mnuchin v. Collins, No. 19-563), the Supreme Court is~~
~~tasked with determining whether the structure~~ 59 Humphrey’s Ex’r v. United States, 295 U.S. 602, 619–20, 629 (1935). 60 The Attorney General could remove the independent counsel “only for good cause, physical or mental disability (if not prohibited by law protecting persons from discrimination on the basis of such a disability) or any other condition that substantially impairs the performance of such independent counsel’s duties.” 28 U.S.C. § 596. The independent counsel provisions sunset in June 1999. See id. § 599. 61 Morrison v. Olson, 487 U.S. 654, 693–96 (1988). 62 Id. at 696 (“Notwithstanding the fact that the counsel is to some degree ‘independent’ and free from executive supervision to a greater extent than other federal prosecutors . . . the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.”). 63 561 U.S. 477 (2010). 64 In particular, the Court considered whether Congress could specify that only the Securities and Exchange Commission (SEC) had the power to remove members of the Public Company Accounting Oversight Board for cause, 15 U.S.C. § 7211(e)(6), given that the Court assumed that the President could remove an SEC commissioner only for cause, see Free Enter. Fund, 561 U.S. at 487 (describing the Court’s assumptions about SEC commissioner removal). 65 See 561 U.S. at 483–84. 66 Id. at 496–98. 67 140 S. Ct. 2183, 2197 (2020). 68 Id. at 2193. 69 Id. 70 Id. at 2201–02. 71 Id. at 2203. Congressional Research Service 8 Congress’s Authority to Influence and Control Executive Branch Agencies governmental power in the hands of a single individual” who, because of his removal protection, is “accountable to no one.”72 The Court’s most recent case on removal protections, Collins v. Yellen,73 further developed the law regarding removal protections for single-director agencies. The Court wrote that a “straightforward application” of the “reasoning in Seila Law” dictated its holding that Congress exceeded its authority by providing removal protections to the director of the Federal Housing of the Federal Housing Finance Agency (FHFA).74 The Court rejected the view that a removal protection was permissible in the FHFA context because that agency allegedly had more limited regulatory powers than did the CFPB, the agency at issue in Seila Law. “Courts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies.”75 Thus, the Court explained, “the constitutionality of removal restrictions” does not hinge “on such an inquiry.”76 These removal cases impose significant, if somewhat undefined, limits on Congress’s authority to insulate certain officials from presidential control.77 For example, the Court has suggested that there are certain “purely executive” officials,78 and these persons “must be removable by the President at will if he is to be able to accomplish his constitutional role.”79 For this reason, the Court might conclude that legislation insulating the head of a department or agency from removal impermissibly obstructs the President’s ability to carry out his executive functions.80 On the other hand, the Court has upheld limits on the President’s ability to remove from office (1) the members of a multi-member board that is balanced along partisan lines and tasked with only “quasi-legislative” or “quasi-judicial” functions and (2) inferior officers with limited duties and “no policymaking or administrative authority.”81 In any event, providing certain officials with removal protections remains a useful tool for encouraging independence from the President and, possibly, greater responsiveness to Congress.82 72 Id. 73 141 S. Ct. 1761 (2021). 74 Id. at 1784. 75 Id. at 1785. 76 Id. 77 See Free Enter. Fund v. Pub. Co. Acct.~~Finance Agency (FHFA) is unconstitutional. The~~
~~FHFA is led by a single Director who is only removal “for cause.” See 12 U.S.C. § 4512(a), (b)(2). The U.S. Court of~~
~~Appeals for the Fifth Circuit had held that the structure of the FHFA was constitutionally invalid. See Collins v.~~
~~Mnuchin, 938 F.3d 553, 587-88 (5th Cir. 2019) (en banc). Oral argument before the Supreme Court was held in~~
~~December 2020. See Docket, No. 19-422, https://www.supremecourt.gov/docket/docketfiles/html/public/19-422.html.~~
66 See ~~Free Enter. Fund v. Pub. Co. Accounting~~ Oversight Bd., 561 U.S. 477, 516 (2010) (Breyer, J., dissenting) (“The Oversight Bd., 561 U.S. 477, 516 (2010) (Breyer, J., dissenting) (“The
Necessary and Proper Clause does not grant Congress power to free Necessary and Proper Clause does not grant Congress power to free all Executive Branch officials from dismissal at the Executive Branch officials from dismissal at the
will of the President. Nor does the separation-of-powers principle grant the President an absolute authority to remove will of the President. Nor does the separation-of-powers principle grant the President an absolute authority to remove
any and all Executive Branch officials at will. Rather, depending on, say, the nature of the office, its function, or its Executive Branch officials at will. Rather, depending on, say, the nature of the office, its function, or its
subject matter, Congress sometimes may, consistent with the Constitution, limit the President’s authority to remove an subject matter, Congress sometimes may, consistent with the Constitution, limit the President’s authority to remove an
officer from his post.”officer from his post.”~~) (~~ (internal citations omitted)citations omitted)). .
6778 See Myers v. United States, 272 U.S. 52, 132 (1926) (“The degree of guidance in the discharge of their duties that the Myers v. United States, 272 U.S. 52, 132 (1926) (“The degree of guidance in the discharge of their duties that the
President may exercise over executive officers varies with the character of their service as prescribed in the law under President may exercise over executive officers varies with the character of their service as prescribed in the law under
which they act.”). which they act.”).
68 Morrison79 Morrison v. Olson, 487 U.S. , 487 U.S. ~~at 690.~~
69654, 690 (1988). 80 Id.; PHH Corp. v. CFPB, 881 F.3d 75, 107 (D.C. Cir. 2018) (en banc) (holding that “there are executive officials .; PHH Corp. v. CFPB, 881 F.3d 75, 107 (D.C. Cir. 2018) (en banc) (holding that “there are executive officials
whom the President must be able to fire at will . . . . Those would surely include Cabinet members—prominently, the whom the President must be able to fire at will . . . . Those would surely include Cabinet members—prominently, the
Secretaries of Defense and State—who have open-ended and sweeping portfolios to assist with the President’s core Secretaries of Defense and State—who have open-ended and sweeping portfolios to assist with the President’s core
constitutional responsibilities . . . . Executive functions specifically identified in Article II would be a good place to constitutional responsibilities . . . . Executive functions specifically identified in Article II would be a good place to
start in understanding the scope of that executive core: It includes, at least, the President’s role as Commander in Chief, start in understanding the scope of that executive core: It includes, at least, the President’s role as Commander in Chief,
and the foreign-affairs and pardon powers”and the foreign-affairs and pardon powers”~~) (~~ (internal citations omitted)). 81 Seila Law LLC, 140 S. Ct. at 2192. 82 See, e.g., CRS Report R46762, Congress’s Authority to Limit the Removal of Inspectors General, by Todd Garvey~~citations omitted)~~. .
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~~event, providing certain officials with removal protections remains a useful tool for encouraging~~
~~independence from the President and, possibly, greater responsiveness to Congress.70~~
Delegation of Authority
In general, an agency has only In general, an agency has only ~~that~~the authority authority ~~which has been~~ delegated to it by Congress.delegated to it by Congress.7183 Thus, Thus,
Congress can control a federal agency by detailing its Congress can control a federal agency by detailing its ~~jurisdiction and authority,~~ authority and setting policy setting policy
goals for the agency to accomplish in the exercise of that authoritygoals for the agency to accomplish in the exercise of that authority~~, and choosing whether it may~~
~~regulate the public.72~~.84 Similarly, Congress may choose to grant an agency the authority to issue Similarly, Congress may choose to grant an agency the authority to issue
legislative rules, enforce legislative rules, enforce ~~violations~~provisions of law, or adjudicate claims of law, or adjudicate claims ~~made to the agency.73~~.85 The more The more
precise a delegation, the less discretion precise a delegation, the less discretion ~~is afforded~~Congress affords to the agency in its execution of its delegated to the agency in its execution of its delegated
authority.authority.7486
Congress’s control over agency authority is not limited to initial decisions made when the agency Congress’s control over agency authority is not limited to initial decisions made when the agency
~~was~~is established. Instead, Congress can generally enlarge, narrow, or alter the authority delegated to an agency at any time.87 Nor must delegated authority be ~~established. Instead, the authority delegated to an agency can generally be enlarged,~~
~~narrowed, or altered at any time by Congress.75 Nor does delegated authority need to be~~
permanent. Congress often uses sunset provisions to terminate a delegation on a specified datepermanent. Congress often uses sunset provisions to terminate a delegation on a specified date~~.76~~
by operation of law.88 Congress may also reject an agency’s specific exercise of delegated power through legislation.Congress may also reject an agency’s specific exercise of delegated power through legislation.7789
Congress is not Congress is not~~, however,~~ unconstrained in its ability to unconstrained in its ability to ~~empower~~delegate authority to agencies. One limitation on agencies. One limitation on
Congress’s ability to delegate authority to a federal agency is the non-delegation doctrine. As Congress’s ability to delegate authority to a federal agency is the non-delegation doctrine. As
opposed to the appointment and removal doctrines, which limit Congress’s ability to encroach opposed to the appointment and removal doctrines, which limit Congress’s ability to encroach
upon or restrict executive authority, the non-delegation doctrine limits the extent to which upon or restrict executive authority, the non-delegation doctrine limits the extent to which
Congress may Congress may ~~bestow legislative~~delegate authority authority onto other entities, including the executive branch. other entities, including the executive branch.78

~~70 See, e.g., CRS Report R46762, Congress’s Authority to Limit the Removal of Inspectors General, by Todd Garvey.~~
7190 This doctrine is based in the separation of powers and works to prevent Congress from abdicating the core legislative function assigned to it by Article I of the Constitution.91 83 See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It is axiomatic that an administrative agency’s Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It is axiomatic that an administrative agency’s
power to promulgate legislative regulations is limited to the authority delegated by Congress.”). power to promulgate legislative regulations is limited to the authority delegated by Congress.”).
7284 See J.R. Deshazo & Jody Freeman, J.R. Deshazo & Jody Freeman, The Congressional Competition to Control Delegated Power, 81 TEX. L. REV. , 81 TEX. L. REV.
1443, 1456 (2003) (noting that one of Congress’s “primary mechanisms to control delegated power” is the use of 1443, 1456 (2003) (noting that one of Congress’s “primary mechanisms to control delegated power” is the use of
“statutory language that circumscribes the scope of agency authority” by establishing “substantive standards or limits “statutory language that circumscribes the scope of agency authority” by establishing “substantive standards or limits
that the agency must implement”). that the agency must implement”).
73 85 See, e.g., 12 U.S.C. § 5512(a) (granting CFPB the authority to “administer, enforce, and otherwise implement” 12 U.S.C. § 5512(a) (granting CFPB the authority to “administer, enforce, and otherwise implement”
delegated authority); 42 U.S.C. § 405(b)(1) (granting the Commissioner of delegated authority); 42 U.S.C. § 405(b)(1) (granting the Commissioner of ~~the~~ Social Security Social Security ~~Administration the~~
authority to “make findings of factauthority to “make findings of fact,” and and “decisions as to the rights of any individual applying for a [benefits] payment”). decisions as to the rights of any individual applying for a [benefits] payment”).
7486 See Jack M. Beermann, Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 77–78 (2006) (“A key formal , 43 SAN DIEGO L. REV. 61, 77–78 (2006) (“A key formal
method Congress employs to control executive discretion is to nip discretion in the bud by legislating with precision.”). method Congress employs to control executive discretion is to nip discretion in the bud by legislating with precision.”).
75 87 See Ctr. for Biological Diversity v. Zinke, 313 F. Supp. 3d 976, 989 (D. Alaska 2018) (“The authority of an Ctr. for Biological Diversity v. Zinke, 313 F. Supp. 3d 976, 989 (D. Alaska 2018) (“The authority of an
executive agency comes from Congress and is subject to modification by Congress.” (citing Food & Drug Admin. v. executive agency comes from Congress and is subject to modification by Congress.” (citing Food & Drug Admin. v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000))). Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000))).
7688 See, e.g., 16 U.S.C. § 6809 (“The authority of the Secretary to carry out this Act shall terminate September 30, 16 U.S.C. § 6809 (“The authority of the Secretary to carry out this Act shall terminate September 30,
2019.”); 54 U.S.C. § 101938 (“The authority given to the Secretary under this subchapter shall expire 7 years after the 2019.”); 54 U.S.C. § 101938 (“The authority given to the Secretary under this subchapter shall expire 7 years after the
date of the enactment of this subchapter.”). date of the enactment of this subchapter.”).
7789 Congress can reverse agency decisions through the enactment of ordinary legislation, but it has also created certain Congress can reverse agency decisions through the enactment of ordinary legislation, but it has also created certain
procedural mechanisms to fast-track its disapproval of some agency actions. procedural mechanisms to fast-track its disapproval of some agency actions. See, e.g., 5 U.S.C. §§ 801–, 5 U.S.C. §§ 801–~~808~~08 (providing (providing
for the rejection of an agency rule through enactment of a joint resolution of disapprovalfor the rejection of an agency rule through enactment of a joint resolution of disapproval that is considered by Congress under expedited procedures); 42 U.S.C. § 2153(d) ); 42 U.S.C. § 2153(d)
(providing for the enactment of a joint resolution of disapproval(providing for the enactment of a joint resolution of disapproval subject to expedited procedures relating to nuclear cooperation agreements). relating to nuclear cooperation agreements).
7890 Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). The delegation of authority to private entities can also raise Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). The delegation of authority to private entities can also raise
constitutional concerns. constitutional concerns. See CRS Recorded Event WRE00214, CRS Recorded Event WRE00214, Privatization and the Constitution: Limits on
Congress’s Power to Privatize, by Linda Tsang; CRS Report R44965, , by Linda Tsang; CRS Report R44965, Privatization and the Constitution: Selected
Legal Issues, by Linda Tsang and Jared P. Cole. , by Linda Tsang and Jared P. Cole.
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~~This doctrine is based in the separation of powers and works to prevent Congress from abdicating~~
~~the core legislative function assigned to it by Article I of the Constitution.79~~91 Mistretta v. United States, 488 U.S. 361, 371 (1989) (“The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.”); Panama Refining Co., 293 U.S. at 421 (“The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is” vested). Congressional Research Service 10 Congress’s Authority to Influence and Control Executive Branch Agencies
In practice, the non-delegation doctrine does not, by itself, generally function as a substantial In practice, the non-delegation doctrine does not, by itself, generally function as a substantial
limitation on the powers that Congress may provide to a federal agency.limitation on the powers that Congress may provide to a federal agency.8092 Although the Supreme Although the Supreme
Court has declared categorically that “the legislative power of Congress cannot be delegated,”Court has declared categorically that “the legislative power of Congress cannot be delegated,”8193
the standard for determining whether Congress has in fact delegated “legislative authority” is the standard for determining whether Congress has in fact delegated “legislative authority” is
more lenient than this statement might suggest.more lenient than this statement might suggest.8294 For a delegation to survive scrutiny For a delegation to survive scrutiny under the non-delegation test, Congress , Congress
need only establish an “intelligible principle” to govern the exercise of the delegated power.need only establish an “intelligible principle” to govern the exercise of the delegated power.8395 The The
“intelligible principle” test requires that Congress “intelligible principle” test requires that Congress ~~delineate~~ set reasonable legal standards for when reasonable legal standards for when
that power may be exercised.that power may be exercised.8496 According to the Court’s doctrine, when a delegation is According to the Court’s doctrine, when a delegation is
accompanied by an “intelligible principle,” Congress confines the accompanied by an “intelligible principle,” Congress confines the degree of discretion that an agency possesses in the exercise of that delegation to the degree that the Constitution requires, such that the delegation does not offend the separation of powers.97 Congress may also condition an agency’s exercise of its delegated authority in various ways. For example, Congress can craft legislation establishing that delegated agency authority is triggered 92 The Supreme Court has not invalidated a law for violating the non-delegation~~degree of discretion that an~~

~~79 Mistretta v. United States, 488 U.S. 361, 371 (1989) (“The nondelegation doctrine is rooted in the principle of~~
~~separation of powers that underlies our tripartite system of Government.”); Panama Refining Co., 293 U.S. at 421~~
~~(“The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with~~
~~which it is thus vested.”).~~
~~80 The Supreme Court has not invalidated a law for violation of the~~ doctrine since 1935. doctrine since 1935. See A.L.A. Schechter Poultry A.L.A. Schechter Poultry
Corp. v. United States, 295 U.S. 495, 527–38 (1935) (concluding that authorizing the Federal Trade Commission to Corp. v. United States, 295 U.S. 495, 527–38 (1935) (concluding that authorizing the Federal Trade Commission to
establish “codes of fair competition” constituted an unconstitutional delegation “to the President to exercise an establish “codes of fair competition” constituted an unconstitutional delegation “to the President to exercise an
unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion
of trade or industry.”). The Supreme Court has of trade or industry.”). The Supreme Court has ~~previously~~since found broad delegations authorizing an agency to regulate in found broad delegations authorizing an agency to regulate in
the “public interest” or in a “fair and equitable” manner to satisfy the intelligible principle test. Nat’l Broad. Co. v. the “public interest” or in a “fair and equitable” manner to satisfy the intelligible principle test. Nat’l Broad. Co. v.
United States, 319 U.S. 190, 216 (1940); Yakus v. United States, 321 U.S. 414, 420 (1944).United States, 319 U.S. 190, 216 (1940); Yakus v. United States, 321 U.S. 414, 420 (1944). ~~There have, however, been~~
~~recent developments in non-delegation doctrine jurisprudence. In~~ ~~Association of American Railroads v. Department of~~
~~Transportation, for example, the U.S. Court of Appeals for the D.C. Circuit invalidated a delegation not on the grounds~~
~~that Congress had failed to provide the agency with an intelligible principle, but because Congress violates due process~~
~~when it provides a “self-interested entity with regulatory authority over its competitors.” 896 F.3d 539, 553 (D.C. Cir.~~
~~2018).~~
~~In its most recent treatment of the non-delegation doctrine, see Gundy v. United States, 139 S. Ct. 2116 (2019), a four-~~
~~Justice plurality, in an opinion authored by Justice Kagan and joined by Justices Breyer, Ginsburg, and Sotomayor,~~
~~applied the intelligible principle test to uphold the congressional delegation of authority at issue in that case. Id. at~~
~~2129-30 (plurality opinion~~ Gundy v. United States is the Court’s most recent treatment of the non-delegation doctrine. 139 S Ct. 2116 (2019). In a plurality opinion, Justice Kagan concluded that a delegation of authority to the Attorney General to “specify the applicability” of sex offender registration requirements to certain classes of offenders sufficed as an intelligible principle under the Court’s non-delegation doctrine case law. Id. at 2129-30 (2019) (plurality op.) (Kagan, J., joined by JJ. Ginsburg, Breyer, and Sotomayor). Justice Alito concurred in the judgment, but explained that he would support reconsidering ). Justice Alito concurred in the judgment, but explained that he would support reconsidering
the intelligible principle test if a majority of the Court was inclined to do so in the future. the intelligible principle test if a majority of the Court was inclined to do so in the future. Id. at 2131 (Alito, J., at 2131 (Alito, J.,
concurring). Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, would have reconsidered the Court’sconcurring). Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, would have reconsidered the Court’s
~~modern~~ approach to non-delegation questions. approach to non-delegation questions. Id. at 2131 (Gorsuch, J., dissenting)at 2131 (Gorsuch, J., dissenting); see id. ~~at 2139 (arguing~~. Justice Gorsuch argued that, beginning ~~that,~~ in the in the
late 1940s, courts began to apply a “mutated version of the ‘intelligible principle’ remark” first expressed by the Court late 1940s, courts began to apply a “mutated version of the ‘intelligible principle’ remark” first expressed by the Court
in its in its ~~1928~~ decision decision ofin J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928), 276 U.S. 394, 409 (1928)~~, that had~~. See Gundy, 139 S. Ct. at 2139 (Gorsuch, J., dissenting) (contending that post-1940s applications of the intelligible principle test have “no basis in the “no basis in the
original meaning of the Constitution, in history, or even in the decision from which it was plucked”). Justice original meaning of the Constitution, in history, or even in the decision from which it was plucked”). Justice
Kavanaugh, who joined the Court after oral arguments in Kavanaugh, who joined the Court after oral arguments in Gundy, did not participate in the decision. , did not participate in the decision. See id. at 2120 at 2120
(plurality opinion). (plurality opinion). And since the Court considered Gundy, Justice Barrett Justice Barrett ~~has joined the High Court, having been~~
~~nominated to fill~~joined the Court after it decided Gundy, filling the vacancy left by the death of Justice Ginsburg the vacancy left by the death of Justice Ginsburg, who formed part of the Gundy plurality. . See CRS Report R46562, CRS Report R46562, Judge Amy Coney
Barrett: Her Jurisprudence and Potential Impact on the Supreme Court, coordinated by Valerie C. Brannon, Michael , coordinated by Valerie C. Brannon, Michael
John Garcia, and Caitlain Devereaux Lewis, at 1. John Garcia, and Caitlain Devereaux Lewis, at 1.
8193 United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932). United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932).
8294 See, e.g., Panama Refining Co., 293 U.S. at 340 (invalidating delegation of authority to the President to regulate the ., 293 U.S. at 340 (invalidating delegation of authority to the President to regulate the
interstate transport of oil under the National Industrial Recovery Act); interstate transport of oil under the National Industrial Recovery Act); Schechter Poultry, 295 U.S. at 542 (invalidating , 295 U.S. at 542 (invalidating
delegation of authority to the President to approve fair competition codes). delegation of authority to the President to approve fair competition codes).
83 95 J.W. HamptonJ.W. Hampton~~, Jr., & Co. v. United States~~, 276 U.S. , 276 U.S. ~~394,~~at 409 ( 409 (~~1928) (~~“If Congress shall lay down by legislative act “If Congress shall lay down by legislative act
an intelligible principle to which the person or body authorized . . . is directed to conform, such legislative action is not an intelligible principle to which the person or body authorized . . . is directed to conform, such legislative action is not
a forbidden delegation of legislative power.”). a forbidden delegation of legislative power.”).
8496 See, e.g., , Panama Refining Co., 293 U.S. at 421 (“The Constitution has never been regarded as denying to the , 293 U.S. at 421 (“The Constitution has never been regarded as denying to the
Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying
down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules
within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.”). within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.”).
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~~agency possesses in the exercise of that delegation, such that the delegation does not offend the~~
~~separation of powers.85~~
~~Congress may also condition an agency’s exercise of its delegated authority in various ways. For~~
~~example, Congress can craft legislation establishing that delegated agency authority is triggered~~
~~only after a specific event occurs, or after a factual determination made by an executive branch~~
~~official.86~~97 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (“Article I, § 1, of the Constitution vests ‘all legislative Powers herein granted in a Congress of the United States.’ This text permits no delegation of those powers . . . .”); Mistretta v. United States, 488 U.S. 361, 372–73 (1989) (“[T]his Court has deemed it ‘constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’” (quoting American Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S. 90, 105 (1946))). Congressional Research Service 11 Congress’s Authority to Influence and Control Executive Branch Agencies only after a specific event occurs, or after an executive branch official makes a particular factual determination.98 Congress sometimes enacts “report and wait” provisions that require an agency to Congress sometimes enacts “report and wait” provisions that require an agency to
report to Congress on a proposed use of delegated authorityreport to Congress on a proposed use of delegated authority, and then wait a specific time period and then wait a specific time period
before implementing or finalizing that action.before implementing or finalizing that action.8799 The report The report ~~and~~ -and-wait framework is designed to wait framework is designed to
give Congress the opportunity to enact legislation rejecting the agency’s proposed actiongive Congress the opportunity to enact legislation rejecting the agency’s proposed action, if desired. More informally, the report-and-wait framework can provide Congress time to engage with executive branch counterparts to indirectly shape the exercise of delegated authority before or as the exercise occurs. Congress has also established expedited legislative if
~~desired. Congress has also repeatedly established internal expedited~~ procedures for the rejection procedures for the rejection
of specific agency actions.of specific agency actions.88100 This approach typically establishes special procedures in each house This approach typically establishes special procedures in each house
of Congress for consideration of a joint resolution of disapproval that would overturn agency of Congress for consideration of a joint resolution of disapproval that would overturn agency
actions.actions.89101 Under such a review mechanism, the agency has authority to act unless Congress Under such a review mechanism, the agency has authority to act unless Congress
affirmatively rejects or blocks the action through legislative enactment.affirmatively rejects or blocks the action through legislative enactment.90102 Congress can also Congress can also
authorize an agency to make proposals to Congress that only become effective when approved authorize an agency to make proposals to Congress that only become effective when approved
through legislation.through legislation.91103 Under this framework, the agency has no authority to act until a proposal is Under this framework, the agency has no authority to act until a proposal is
given legal effect through the enactment of implementing legislation.given legal effect through the enactment of implementing legislation.92104
Procedural Controls on Decisionmaking
Congress can also exert substantial control over administrative agencies by prescribing the Congress can also exert substantial control over administrative agencies by prescribing the
procedures agencies must employ when exercising delegated powers. The Administrative procedures agencies must employ when exercising delegated powers. The Administrative
Procedure Act (APA),Procedure Act (APA),93105 enacted in 1946, is perhaps the most prominent federal administrative procedure statute. The APA sets forth the default procedural requirements with which federal agencies106 generally must comply when conducting rulemaking or administrative adjudication 98 ~~enacted in 1946, is perhaps the most prominent federal administrative~~

~~85 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (“Article I, § 1, of the Constitution vests ‘all~~
~~legislative Powers herein granted . . . in a Congress of the United States.’ This text permits no delegation of those~~
~~powers . . . .”) (internal citations omitted); Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (“[T]his Court has~~
~~deemed it ‘constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to~~
~~apply it, and the boundaries of . . . delegated authority.’” (quoting American Power & Light Co. v. Sec. & Exch.~~
~~Comm’n, 329 U.S. 90, 105 (1946))).~~
86 See J.W. Hampton, 276 U.S. at 407 (“Congress may feel itself unable conveniently to determine exactly when its , 276 U.S. at 407 (“Congress may feel itself unable conveniently to determine exactly when its
exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the
determination of such time to the decision of an Executivedetermination of such time to the decision of an Executive . . . .”). .”).
8799 See Sibbach v. Wilson & Co Sibbach v. Wilson & Co., 312 U.S. 1, 8 (1941) (upholding “report and wait” provision). 312 U.S. 1, 8 (1941) (upholding “report and wait” provision). See, e.g., 42 U.S.C. , 42 U.S.C. § §
10134 (establishing a report and wait framework for the selection of a nuclear waste repository); 28 U.S.C. § 2074(a) 10134 (establishing a report and wait framework for the selection of a nuclear waste repository); 28 U.S.C. § 2074(a)
(requiring that the proposed amendments to the procedural and evidentiary rules of the federal courts be submitted to (requiring that the proposed amendments to the procedural and evidentiary rules of the federal courts be submitted to
Congress before taking effectCongress before taking effect); see also CRS Report R46417, Congress’s Power Over Appropriations: Constitutional and Statutory Provisions, by Sean M. Stiff, at 37 (discussing the use of report-and-wait provisions in the appropriations context). 100).
88 See, e.g., 42 U.S.C. § 2160e(b) (providing for a joint resolution of disapproval relating to nuclear agreements with , 42 U.S.C. § 2160e(b) (providing for a joint resolution of disapproval relating to nuclear agreements with
the Islamic Republic of Iran). the Islamic Republic of Iran). See also CRS Report RS20234, CRS Report RS20234, Expedited or “Fast-Track” Legislative Procedures, by , by
Christopher M. Davis. Christopher M. Davis.
89101 See Michael J. Cole, Michael J. Cole, Interpreting the Congressional Review Act: Why the Courts Should Assert Judicial Review,
Narrowly Construe “Substantially the Same,” and Decline to Defer to Agencies Under ChevronChevron, 70 ADMIN L. REV. 53, 70 ADMIN L. REV. 53,
55 (2018) (describing the Congressional Review Act, 5 U.S.C. §§ 801–808, as a “regulatory oversight statute that 55 (2018) (describing the Congressional Review Act, 5 U.S.C. §§ 801–808, as a “regulatory oversight statute that
provides a shortcut mechanism for Congress to overturn agency rules”). provides a shortcut mechanism for Congress to overturn agency rules”).
90 102 The Congressional Review Act, for example, establishes a process by which Congress can reject specific agency The Congressional Review Act, for example, establishes a process by which Congress can reject specific agency
rules through a joint resolution of disapproval. rules through a joint resolution of disapproval. See 5 U.S.C. §§ 801–808. 5 U.S.C. §§ 801–808.
91103 For example, under the now-expired Reorganization Act Amendments of 1984, Congress authorized the President to For example, under the now-expired Reorganization Act Amendments of 1984, Congress authorized the President to
submit a proposed executive branch reorganization plan to Congress, which would take effect upon the enactment of a submit a proposed executive branch reorganization plan to Congress, which would take effect upon the enactment of a
joint resolution approving the plan. joint resolution approving the plan. See 5 U.S.C. §§ 901–912. 5 U.S.C. §§ 901–912.
92104 See 2 U.S.C. §§ 681– 2 U.S.C. §§ 681–~~688~~88 (authorizing the President to propose budget rescissions that take effect only when (authorizing the President to propose budget rescissions that take effect only when
approved by legislation). approved by legislation).
93105 5 U.S.C. §§ 551– 5 U.S.C. §§ 551–~~559~~59, 701–, 701–~~706.~~
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~~link to page 12 link to page 16 link to page 16~~ ~~Congress’s Authority to Influence and Control Executive Branch Agencies~~

~~procedure statute. The APA sets forth the default procedural requirements with which federal~~
~~agencies94 generally must comply when conducting rulemaking or administrative adjudication~~
~~proceedings.95 Other statutes may supplement or even supersede the APA’s procedural~~
~~requirements.96~~
~~The power to issue binding law through notice-and-comment rulemaking97 or administrative~~
~~adjudication (or both)98 is one of the most consequential powers with which many agencies are~~
~~imbued. The~~ 06. 106 The APA defines “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.” Id. § 551(1). Among other things, this definition does not apply to Congress, the judiciary, the District of Columbia, or the military. Id. § 551(1)(A)–(B), (D), (F)–(G). The Supreme Court has held, as well, that presidential actions are not subject to the APA. See Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992) (“The President is not explicitly excluded from the APA’s purview, but he is not explicitly included, either. Out of Congressional Research Service 12 link to page 13 link to page 17 link to page 17 Congress’s Authority to Influence and Control Executive Branch Agencies proceedings.107 Other statutes may supplement or even supersede the APA’s procedural requirements.108 The power to issue binding law through notice-and-comment rulemaking109 or administrative adjudication (or both)110 is one of the most consequential powers many agencies possess. The APA’s procedural requirements are intended to safeguard the rights of the public and APA’s procedural requirements are intended to safeguard the rights of the public and
entities affected by agency decisionsentities affected by agency decisions, while also ensuring that agencies retain that degree of while also ensuring that agencies retain that degree of
flexibility necessary to achieve their delegated responsibilities.flexibility necessary to achieve their delegated responsibilities.99111 For example, before an agency For example, before an agency
may issue a rule with the force of law, the APA generally requires that it first publish a notice of may issue a rule with the force of law, the APA generally requires that it first publish a notice of
proposed rulemaking in the proposed rulemaking in the Federal Register~~100~~112 and afford members of the public an opportunity and afford members of the public an opportunity
to submit comments on the proposal.to submit comments on the proposal.~~101~~113 An agency’s final rule must contain “a concise general An agency’s final rule must contain “a concise general
statement of [its] basis and purpose” and may generally take effect no earlier than thirty days after statement of [its] basis and purpose” and may generally take effect no earlier than thirty days after
issuance.issuance.~~102~~ 114 Agencies ordinarily must follow these same procedures when amending or repealing Agencies ordinarily must follow these same procedures when amending or repealing
such rules, as well.such rules, as well.~~103~~115 In the case of agency adjudications that are required (by another statute) to In the case of agency adjudications that are required (by another statute) to
“be determined on the record after opportunity for an agency hearing”“be determined on the record after opportunity for an agency hearing”~~104~~116—often referred to as respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA.”). 107 See 5 U.S.C. §§ 551–59~~—often referred to as~~

~~94 The APA defines “agency” as “each authority of the Government of the United States, whether or not it is within or~~
~~subject to review by another agency.” Id. § 551(1). Among other things, this definition does not apply to Congress, the~~
~~judiciary, the District of Columbia, or the military. Id. § 551(1)(A)–(B), (D), (F)–(G).~~
95 See id. ~~§§ 551–559~~. Courts may not impose procedural requirements on agencies that exceed those prescribed by the . Courts may not impose procedural requirements on agencies that exceed those prescribed by the
APA or other statutes. APA or other statutes. See generally Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519 Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519
(1978); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990); (1978); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990); see also Beermann, Beermann, supra nonote 7486, at 102. at 102.
However, agencies are generally free to adopt additional procedures themselves.However, agencies are generally free to adopt additional procedures themselves. See Vt. Yankee, 496 U.S. at 524 , 496 U.S. at 524
(explaining that “the formulation of procedures [is] basically to be left within the discretion of the agencies to which (explaining that “the formulation of procedures [is] basically to be left within the discretion of the agencies to which
Congress had confided the responsibility for substantive judgments”). Congress had confided the responsibility for substantive judgments”).
96 108 See infra text accompanying text accompanying ~~notes 107–113.~~
97notes 119–125. 109 Notice-and-comment, or “informal,” rulemaking is the most common type of rulemaking used by agencies. Notice-and-comment, or “informal,” rulemaking is the most common type of rulemaking used by agencies. See
David L. Franklin, David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 YALE L.J. 276, 282 , 120 YALE L.J. 276, 282
(2010) (noting that informal rulemaking is “far more common” than formal rulemaking). Agencies may also, however, (2010) (noting that informal rulemaking is “far more common” than formal rulemaking). Agencies may also, however,
be authorized to issue rules at the culmination of trial-type evidentiary proceedingsbe authorized to issue rules at the culmination of trial-type evidentiary proceedings, a process referred to as “formal” rulemaking. . See 5 U.S.C. §§ 553(c), 556–557. 5 U.S.C. §§ 553(c), 556–557.
98110 See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (“[T]he choice made between proceeding by general rule or by SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (“[T]he choice made between proceeding by general rule or by
individual, individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”). litigation is one that lies primarily in the informed discretion of the administrative agency.”).
99111 Cf. George B. Shepherd, George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, ,
90 NW. U. L. REV. 1557, 1558 (1996) (writing that the APA struck a balance “between promoting individuals’ rights 90 NW. U. L. REV. 1557, 1558 (1996) (writing that the APA struck a balance “between promoting individuals’ rights
and maintaining agencies’ policy-making flexibility”). and maintaining agencies’ policy-making flexibility”).
~~100~~112 5 U.S.C. § 553(b). An agency need not provide public notice of interpretive rules, general policy statements, or 5 U.S.C. § 553(b). An agency need not provide public notice of interpretive rules, general policy statements, or
“rules of agency organization, procedure, or practice,” nor “rules of agency organization, procedure, or practice,” nor “when when ~~[it]~~it for good cause finds for good cause finds ~~. . .~~ “that notice and public that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the public interest.” procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Id. § 553(b)(A)–(B). None of the § 553(b)(A)–(B). None of the
informal rulemaking provisions of the APA apply when “there is involved” “a military or foreign affairs function of the informal rulemaking provisions of the APA apply when “there is involved” “a military or foreign affairs function of the
United States” or “a matter relating to agency management or personnel or to public property, loans, grants, benefits, or United States” or “a matter relating to agency management or personnel or to public property, loans, grants, benefits, or
contracts.” contracts.” Id. § 553(a)(1)–(2). § 553(a)(1)–(2).
~~101~~113 Id. § 553(c). § 553(c).
~~102~~114 Id. § 553(c)–(d). The thirty-days§ 553(c)–(d). The thirty-days or -or-more effective date does not applymore effective date does not apply~~, among other things, “as otherwise provided~~
~~by the agency for good cause found.”~~ if the agency publishes with the rule a finding of good cause for not delaying its effective date. Id. § 553(d)(3). For more information on agency rulemaking, see CRS Report § 553(d)(3). For more information on agency rulemaking, see CRS Report
R41546, R41546, A Brief Overview of Rulemaking and Judicial Review, by Todd Garvey. , by Todd Garvey.
~~103~~115 See 5 U.S.C. § 551(5) (defining “rule making” for purposes of the APA as the “agency process for formulating, 5 U.S.C. § 551(5) (defining “rule making” for purposes of the APA as the “agency process for formulating,
amending, or repealing a rule”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101 (2015) (explaining that the definition amending, or repealing a rule”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101 (2015) (explaining that the definition
of “rule making” in the APA of “rule making” in the APA ~~“mandate[s]~~ mandates “that agencies use the same procedures when they amend or repeal a rule as that agencies use the same procedures when they amend or repeal a rule as
they used to issue the rule in the first instance”). For an overview of agency rescissions and alterations of rules with the they used to issue the rule in the first instance”). For an overview of agency rescissions and alterations of rules with the
force of law, see CRS Report R46673, force of law, see CRS Report R46673, Agency Rescissions of Legislative Rules, by Kate R. Bowers and Daniel J. , by Kate R. Bowers and Daniel J.
Sheffner. Sheffner.
~~104~~116 5 U.S.C. § 554(a). While the APA prescribes relatively extensive procedures for 5 U.S.C. § 554(a). While the APA prescribes relatively extensive procedures for ~~such adjudications, the majority of~~
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~~link to page 15 link to page 12~~adjudications, the majority of agency adjudication proceedings are primarily governed by other statutes. See ABA, SEC. OF ADMIN. L. & REG. PRAC., A GUIDE TO FEDERAL AGENCY ADJUDICATION 176 (2d ed. 2012) (“Perhaps 90 percent of federal agency adjudication is Congressional Research Service 13 link to page 16 link to page 13 Congress’s Authority to Influence and Control Executive Branch Agencies

“formal” adjudications—the APA prescribes formalized, trial-like “formal” adjudications—the APA prescribes formalized, trial-like ~~procedures105~~procedures117 and provides that and provides that
impartial adjudicators shall preside over such proceedings.impartial adjudicators shall preside over such proceedings.~~106~~118
The APA is not the only statute that governs administrative procedure. Many other statutes The APA is not the only statute that governs administrative procedure. Many other statutes
impose requirements on the procedural governance of large swaths of the executive branch, impose requirements on the procedural governance of large swaths of the executive branch,
including the Congressional Review Act,including the Congressional Review Act,~~107~~119 Regulatory Flexibility Act, Regulatory Flexibility Act,~~108~~120 Freedom of Information Freedom of Information
Act (FOIA),Act (FOIA),~~109~~121 Federal Records Act, Federal Records Act,~~110~~122 and Paperwork Reduction Act. and Paperwork Reduction Act.~~111~~123 Through these and Through these and
similar statutes, Congress can impact agency action by, among other things, requiring or similar statutes, Congress can impact agency action by, among other things, requiring or
authorizing the use of alternative or substitute authorizing the use of alternative or substitute ~~procedural mechanisms~~procedures to subject to subject ~~agencies’ actions~~
agency action to increased transparency and public accountability, and ensuring that agencies engage in certain to increased transparency and public accountability, and ensuring that agencies engage in certain
substantive considerations during the decisionmaking process.substantive considerations during the decisionmaking process.~~112~~124 In addition, some statutes may In addition, some statutes may
impose procedural requirements on specific agencies on top of or instead of those required by the impose procedural requirements on specific agencies on top of or instead of those required by the
APA.APA.~~113~~

~~agency adjudication proceedings are primarily governed by other statutes. See ABA, SEC. OF ADMIN. L. & REG. PRAC.,~~
~~A GUIDE TO FEDERAL AGENCY ADJUDICATION 176 (2d ed. 2012) (“Perhaps 90 percent of federal agency adjudication is~~
125 Agency Funding Congress exercises virtually plenary control over agency funding.126 This power to determine agency budget authority127 can be used to control agency priorities, prohibit agency action by informal rather than formal. With the exception of a few provisions set forth in [5 U.S.C.] §§ 555 and 558, the APA informal rather than formal. With the exception of a few provisions set forth in [5 U.S.C.] §§ 555 and 558, the APA
does not spell out the procedures that an agency must follow when engaging in informal adjudication”). Adjudication does not spell out the procedures that an agency must follow when engaging in informal adjudication”). Adjudication
proceedings that are not regulated by the APA are often collectively known as “informal” adjudication, but informal proceedings that are not regulated by the APA are often collectively known as “informal” adjudication, but informal
proceedings can be more procedurally formal than APA adjudications. MICHAEL ASIMOW, ADMIN. CONF. OF THE U.S., proceedings can be more procedurally formal than APA adjudications. MICHAEL ASIMOW, ADMIN. CONF. OF THE U.S.,
EVIDENTIARY HEARINGS OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT 3 (2016). “External sources of law, generally EVIDENTIARY HEARINGS OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT 3 (2016). “External sources of law, generally
an agency’s organic statute, determine the procedural requirements of non-APA adjudicatory proceedings, subject to an agency’s organic statute, determine the procedural requirements of non-APA adjudicatory proceedings, subject to
certain baseline requirements imposed by 5 U.S.C. §§ 555 and 558 and due process.” Daniel J. Sheffner, certain baseline requirements imposed by 5 U.S.C. §§ 555 and 558 and due process.” Daniel J. Sheffner, Access to
Adjudication Materials on Federal Agency Websites, 51 AKRON L. REV. 447, 450 (2017) [hereinafter Sheffner, , 51 AKRON L. REV. 447, 450 (2017) [hereinafter Sheffner,
Adjudication Materials]. Section 555 pertains to “ancillary matters” and Section 558 concerns sanctions and licensing. ]. Section 555 pertains to “ancillary matters” and Section 558 concerns sanctions and licensing.
5 U.S.C. §§ 555, 558. 5 U.S.C. §§ 555, 558.
~~105~~117 5 U.S.C. §§ 554, 556–557. For example, parties to formal proceedings may offer oral or documentary evidence, 5 U.S.C. §§ 554, 556–557. For example, parties to formal proceedings may offer oral or documentary evidence, id.
§ 556(d), cross-examine opposing parties, § 556(d), cross-examine opposing parties, id, and submit proposed findings of fact and conclusions of law,, and submit proposed findings of fact and conclusions of law, id.
§ 557(c)(1). The agency may receive § 557(c)(1). The agency may receive ~~“[a]ny~~ any “oral or documentary evidence,” but “shall provide for the exclusion of oral or documentary evidence,” but “shall provide for the exclusion of
[evidence that is] irrelevant, immaterial, or unduly repetitious[evidence that is] irrelevant, immaterial, or unduly repetitious ~~. . .~~ .” .” Id. § 556(d). At the conclusion of a formal hearing, § 556(d). At the conclusion of a formal hearing,
the presiding adjudicator issues a decision that contains “a statement of . . . findings and conclusions” similar to a the presiding adjudicator issues a decision that contains “a statement of . . . findings and conclusions” similar to a
judicial opinion.judicial opinion. Id. § 557(c)(A). § 557(c)(A). See Sheffner, Sheffner, Adjudication Materials, , supra no note ~~104~~116, at 450. at 450.
~~106~~118 5 U.S.C. § 556(b) (providing that “[t]he functions of presiding employees and of employees participating in 5 U.S.C. § 556(b) (providing that “[t]he functions of presiding employees and of employees participating in
decisions in accordance with [5 U.S.C. § 557] shall be conducted in an impartial manner”). In formal adjudications decisions in accordance with [5 U.S.C. § 557] shall be conducted in an impartial manner”). In formal adjudications
under the APA, the “presiding employee” must be either “the agency,” “one or more members of the body which under the APA, the “presiding employee” must be either “the agency,” “one or more members of the body which
comprises the agency,” or “one or more administrative law judges.”comprises the agency,” or “one or more administrative law judges.” Id. § 556(b)(1)–(3). § 556(b)(1)–(3).
~~107~~119 Id. §§ 801– §§ 801–~~808~~08 (authorizing Congress to overturn agency rules through joint resolutions of disapproval). (authorizing Congress to overturn agency rules through joint resolutions of disapproval).
~~108~~120 Id. §§ 601– §§ 601–~~612~~12 (directing agencies to consider the effects of regulations on small businesses and other small (directing agencies to consider the effects of regulations on small businesses and other small
entities). entities).
~~109~~121 Id. § 552 (mandating disclosure of § 552 (mandating disclosure of ~~wide range of~~certain agency records proactively agency records proactively ~~and~~or by request). Congress enacted the Freedom of Information Act (FOIA) ~~by request, subject to specific~~
~~exemptions). FOIA was enacted~~ as an amendment to the APA. For more information on FOIA, see CRS Report as an amendment to the APA. For more information on FOIA, see CRS Report
R46238, R46238, The Freedom of Information Act (FOIA): A Legal Overview, by Daniel J. Sheffner [hereinafter, Sheffner, , by Daniel J. Sheffner [hereinafter, Sheffner,
FOIA]. ].
~~110~~122 44 U.S.C. §§ 3101– 44 U.S.C. §§ 3101–~~3107~~07 (creating records management responsibilities for federal agencies). (creating records management responsibilities for federal agencies).
~~111~~123 Id. §§ 3501– §§ 3501–~~3521~~21 (establishing responsibilities for agencies engaged in information collection). (establishing responsibilities for agencies engaged in information collection).
~~112~~124 See Beermann, Beermann, supra no note 7486, at 103–05. at 103–05.
~~113~~125 See, e.g., 42 U.S.C. § 7607(d)(1) (listing rulemakings to which the Clean Air Act rulemaking provisions—rather , 42 U.S.C. § 7607(d)(1) (listing rulemakings to which the Clean Air Act rulemaking provisions—rather
than the APA’s—apply). than the APA’s—apply). See also 5 U.S.C5 U.S.C. § 559 (providing that a “[s]ubsequent statute may not be held to supersede § 559 (providing that a “[s]ubsequent statute may not be held to supersede
or modify [the APA], except to the extent that it does so expressly”). or modify [the APA], except to the extent that it does so expressly”).
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~~Congress’s Authority to Influence and Control Executive Branch Agencies~~

~~Agency Funding~~
~~Finally, and perhaps most significantly, Congress exercises virtually plenary control over agency~~
~~funding.114 This power to determine agency appropriations can be used to control agency~~
~~priorities, prohibit agency action by~~ 126 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) (“[N]o money can be paid out of the Treasury unless it has been appropriated by an act of Congress.”). 127 Budget authority “is an agency’s power provided by Federal law to incur financial obligations that will result in immediate or future outlays of government funds.” Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1322 (2020) (internal citations and quotation marks omitted). An appropriation is one type of budget authority, and it Congressional Research Service 14 link to page 15 link to page 15 Congress’s Authority to Influence and Control Executive Branch Agencies denying funds for a specific action, or force agency action by denying funds for a specific action, or force agency action by
either explicitly either explicitly ~~appropriating funds~~providing budget authority for a program or activity or withholding for a program or activity or withholding ~~agency funding until~~
~~Congress’s wishes are complied with.115~~
funding until the agency complies with Congress’s wishes.128 Article I of the Constitution gives Congress the power to tax and spend in order to provide for the Article I of the Constitution gives Congress the power to tax and spend in order to provide for the
“Common Defence and general Welfare of the United States“Common Defence and general Welfare of the United States~~,”116 and provides explicitly that~~
~~“[n]o~~ .”129 The Constitution also states, in its Appropriations Clause, that no “Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Money shall be drawn from the Treasury, but in Consequence of Appropriations made by
Law.”Law.”~~117~~130 Thus, Congress Thus, Congress ~~controls~~sets the funding levels for agency operations and programs through the funding levels for agency operations and programs through
~~enactment of appropriations.118 A typical appropriation measure contains limits on the amount of~~
~~funding available to an entity and specifies the purposes and duration for which the funding can~~
~~be used.119 Agencies may neither spend appropriated funds in excess of an amount authorized, nor~~
~~withhold appropriated funds from expenditure in a manner that violates the intent of the~~
~~appropriation.120 Moreover, several~~enactment of appropriations and other forms of budget authority, and no spending may occur unless an appropriation allows it.131 A typical appropriation provides an agency an amount of obligational authority that is available for a stated purpose and time period, potentially subject to conditions.132 Several federal statutes, such as the Antideficiency Act, reinforce federal statutes, such as the Antideficiency Act, reinforce
Congress’s power of the purse byCongress’s power of the purse by, for example, making it unlawful to making it unlawful to ~~spend in excess of appropriations.121~~
incur obligations or make expenditures exceeding amounts available in an appropriation.133 Along with the power to determine general funding levels for agencies and programs, Congress Along with the power to determine general funding levels for agencies and programs, Congress
may also prohibit or condition the use of funds to control agency activity or achieve certain policy may also prohibit or condition the use of funds to control agency activity or achieve certain policy
goals. Given the legislative branch’s goals. Given the legislative branch’s ~~clear constitutional power over~~power of the purse, the purse,~~122~~134 the Supreme the Supreme
Court has recognized that “Congress may always circumscribe agency discretion to allocate Court has recognized that “Congress may always circumscribe agency discretion to allocate
resources by putting resources by putting restrictions in the operative statutes.”135 Thus, through the use of conditions, limitations, or other requirements affecting the use of budget authority, Congress can guide agency execution of its funding amounts. For example, a limitation might state that none of the funds contained in an appropriation are available for certain programs, including programs that the agency would be able to administer absent the funding limitation. Congress has used such appropriations act limitations to constrain agency action on issues ranging from the enforcement of federal empowers an agency to incur obligations and draw money from the Treasury to satisfy, or liquidate, those obligations. See id. at 1319. 128~~restrictions in the operative statutes.”123 These so-called “appropriations~~
~~riders” are a common tool for guiding an agency, especially when Congress seeks to prevent an~~
~~agency from acting. A typical rider prohibits an agency from using funds to implement a certain~~
~~action and potentially can transform how a federal agency implements the law. For example,~~

~~114 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) (“[N]o money can be paid out of the Treasury unless~~
~~it has been appropriated by an act of Congress.”).~~
~~115~~ Congress has used restrictions on the payment of salaries to buttress its legislative prerogatives. Congress has used restrictions on the payment of salaries to buttress its legislative prerogatives. See, e.g., 5 U.S.C., 5 U.S.C.
§ 5503(a) (prohibiting salary payments for certain recess appointments); Consolidated Appropriations Act, § 5503(a) (prohibiting salary payments for certain recess appointments); Consolidated Appropriations Act, ~~2004~~2022, Pub. , Pub.
L. No. L. No. ~~108-199~~117-103, div. , div. FE, tit. , tit. ~~VI, § 618, 188 Stat. 3, 354 (2004~~VII, § 713(a), 136 Stat. 49, 295-96 (2022) (prohibiting the use of funds to pay the salary of a federal ) (prohibiting the use of funds to pay the salary of a federal
official or employee who official or employee who ~~prevents~~prohibits, prevents, or attempts to prohibit or prevent, another federal official or employee from communicating with Congress another federal official or employee from communicating with Congress in connection with any matter pertaining to that other person’s employment). 129).
~~116~~ U.S. CONST. art. I, § 8, cl. 1 U.S. CONST. art. I, § 8, cl. 1 ~~(Taxing and Spending Clause).~~
~~117 Id~~. 130 Id. § 9, cl. 7. For an overview of Congress’s appropriations power, see . § 9, cl. 7. For an overview of Congress’s appropriations power, see ~~CRS Report R46417,~~ ~~Congress’s~~ Stiff, Power
Over Appropriations~~: Constitutional and Statutory Provisions, by Sean M. Stiff.~~
~~118~~, supra note 99. 131 For discussion about the relationship between the Taxing and Spending Clause and the Appropriation Clause, For discussion about the relationship between the Taxing and Spending Clause and the Appropriation Clause, see
CRS Report R44729, CRS Report R44729, Constitutional Authority Statements and the Powers of Congress: An Overview, by , by ~~Andrew~~
~~Nolan~~Whitney K. Novak, at 15-17 (discussing the Taxing and Spending Clause as a source of legislative power to provide money for a , at 15-17 (discussing the Taxing and Spending Clause as a source of legislative power to provide money for a
particular project and the Appropriations Clause as a restriction on the power of federal entities to use money in a particular project and the Appropriations Clause as a restriction on the power of federal entities to use money in a
manner not authorized by Congress). manner not authorized by Congress).
~~119 U.S. GOV’T ACCOUNTABILITY OFF., OFF. OF THE GEN. COUNS., PRINCIPLES OF FEDERAL APPROPRIATIONS LAW 1-8~~
~~(4th ed. 2016).~~
~~120 See Train v. City of New York, 420 U.S. 35, 42–49 (1975). Congress has granted agencies limited authority to defer~~
~~or rescind funds under the Impoundment Control Act. 2 U.S.C. §§ 683–684.~~
~~121 See, e.g., 31 U.S.C. § 1341(a)(1)(A) (prohibiting federal employees from “mak[ing] or authoriz[ing] an expenditure~~
~~or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation”).~~
~~122~~132 See Stiff, Power Over Appropriations, supra note 99, at 28. 133 See, e.g., 31 U.S.C. § 1341(a)(1)(A). 134 See U.S. CONST. art. I, § 9, cl. 7. U.S. CONST. art. I, § 9, cl. 7.
~~123~~135 Lincoln v. Vigil, 508 U.S. 182, 192–93 (1993) ( Lincoln v. Vigil, 508 U.S. 182, 192–93 (1993) (~~upholding the decision to discontinue the Indian Children’s Program~~
~~by the Indian Health Service, where funding for the program was provided in an annual lump sum appropriation to the~~
~~agency).~~
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concluding that a court could not review the Indian Health Service’s (IHS’s) decision to discontinue the Indian Children’s Health Program because by not requiring in the relevant appropriation that IHS allocate funds to the Program Congress had committed to the agency’s discretion the decision of whether to fund the Program). Congressional Research Service 15 link to page 15 Congress’s Authority to Influence and Control Executive Branch Agencies

~~Congress has used appropriations riders to limit agency action on issues ranging from the~~
~~enforcement of federal marijuana laws to the transfer of detainees from the U.S. Naval Station at~~
~~Guantanamo Bay.124~~
~~But while~~marijuana laws136 to the transfer or release of current or prior non-citizen detainees held at the U.S. Naval Station, Guantanamo Bay, Cuba.137 While Congress’s power of the purse is almost plenary, it cannot be used to achieve Congress’s power of the purse is almost plenary, it cannot be used to achieve
unconstitutional unconstitutional ~~purposes.125~~ends.138 For example, in For example, in Lovett v. United States, the Supreme Court held that , the Supreme Court held that
Congress cannot wield its appropriations power to punish specific government officials in Congress cannot wield its appropriations power to punish specific government officials in
violation of the Bill of Attainder Clause.violation of the Bill of Attainder Clause.~~126~~139 The executive branch has consistently contended that The executive branch has consistently contended that
Congress may not use its appropriations power to infringe upon the President’s constitutional Congress may not use its appropriations power to infringe upon the President’s constitutional
authority.authority.~~127~~140
Non-statutory Tools to Influence Executive Branch
Agencies
The above discussion establishes Congress’s broad authority to control federal agencies by The above discussion establishes Congress’s broad authority to control federal agencies by
enacting legislation. These statutory toolsenacting legislation. These statutory tools~~, however,~~ may be exercised only under Congress’s may be exercised only under Congress’s
lawmaking power, which requires the participation and agreement of the House, Senate, and, lawmaking power, which requires the participation and agreement of the House, Senate, and,
absent a veto override, the President.absent a veto override, the President.~~128 But there~~141 There are also many non-statutory tools (i.e., tools not are also many non-statutory tools (i.e., tools not
requiring legislative enactment to exercise) that may be used unilaterally and independently by requiring legislative enactment to exercise) that may be used unilaterally and independently by
the House, Senate, congressional committees, or individual Members of Congress to influence the House, Senate, congressional committees, or individual Members of Congress to influence
and control agency action. and control agency action.
Constitutional Limits on Non-statutory Legislative Actions
The Constitution’s required lawmaking procedures impose significant limitations on how The Constitution’s required lawmaking procedures impose significant limitations on how
Congress and its component parts (i.e., the House, Senate, committees, and individual Members) Congress and its component parts (i.e., the House, Senate, committees, and individual Members)
may wield power over agencies. The Supreme Court has made clear that Congress must exercise may wield power over agencies. The Supreme Court has made clear that Congress must exercise
its legislative power in compliance with the “finely wrought and exhaustively considered[] its legislative power in compliance with the “finely wrought and exhaustively considered[]
procedure”procedure”~~129~~142 set forth in Article I, Section 7, which provides that “every Bill which shall have set forth in Article I, Section 7, which provides that “every Bill which shall have

~~124 See, e.g., Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat.~~
~~2130, 2217 (2014) (preventing the Department of Justice from using funds to “prevent” certain states “from~~
~~implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical~~
~~marijuana”); Consolidated Appropriations Act of 2014, Pub. L. No. 113-76, div. C, tit. VIII, § 8111, 128 Stat. 5~~
~~(prohibiting the Department of Defense from “using appropriated funds to transfer any individuals detained at~~
~~Guantanamo Bay unless the Secretary of Defense notifies certain congressional committees at least 30 days before the~~
~~transfer”).~~
~~125~~passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.”143 This provision establishes the bedrock constitutional principle that before legislation is given the force and effect of statutory law, it must first satisfy 136 Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, div. B, tit. V, § 531, 136 Stat. 49, 150-51 (2022). 137 See, e.g., id., div. B, tit. V, § 539, 136 Stat. at 153 (2022). 138 United States v. Klein, 80 U.S. (8 Wall.) 128 (1872) (holding invalid an appropriations United States v. Klein, 80 U.S. (8 Wall.) 128 (1872) (holding invalid an appropriations ~~proviso that effectively~~
~~nullified some effects of a presidential pardon and that appeared to prescribe a rule of decision in court cases~~act proviso because its “great and controlling purpose” was “to deny to pardons granted by the President the effect which this court had adjudged them to have” in conflict with separation of powers principles); United ); United
States v. Lovett, 328 U.S. 303, 316–18 (1946) (invalidating as a bill of attainder an appropriations States v. Lovett, 328 U.S. 303, 316–18 (1946) (invalidating as a bill of attainder an appropriations ~~provision denying~~
~~money to pay salaries of named officials). In addition, it would appear that the most prevalent restriction on the use of~~
~~the appropriations power is self-imposed and stems from an internal House rule limiting the use of substantive~~
~~legislative language in appropriations bills. HOUSE RULE XXI.~~
~~126~~act proviso barring the payment of salaries of specified individuals). 139 Lovett, 328 U.S. at 316–18. , 328 U.S. at 316–18.
~~127 See Presidential Certification Regarding the Provision of Documents to the House of Representatives Under the~~
~~Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 266 (1996) (“Broad as the spending power of the legislative~~
~~branch undoubtedly is, . . . . Congress may not use the spending power to infringe on the President’s constitutional~~
~~authority.”).~~
~~128~~140 See Stiff, Power Over Appropriations, supra note 99, at 57-61 (surveying Department of Justice opinions and other executive branch actions that have contended that in certain cases Congress had or would exceed its constitutional authority by enacting a funding limitation, condition, or requirement because the provision in question allegedly conflicted with another provision of the Constitution or with separation of powers principles). 141 U.S. CONST. U.S. CONST. art. I, § 7. However, each chamber can wield unilateral power by refusing its consent to legislative art. I, § 7. However, each chamber can wield unilateral power by refusing its consent to legislative
measures. measures.
~~129~~142 Immigration & Naturalization Servs. v. Chadha, 462 U.S. 919, 951 (1983). Immigration & Naturalization Servs. v. Chadha, 462 U.S. 919, 951 (1983).
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~~passed the House of Representatives and the Senate, shall, before it become a Law, be presented~~
~~to the President of the United States.”130 This provision establishes the bedrock constitutional~~
~~principle that before legislation is given the force and effect of statutory law, it must first satisfy~~
the requirements of bicameralism (approval by both houses of Congress) and presentment the requirements of bicameralism (approval by both houses of Congress) and presentment
(submission to the President for his signature or veto).(submission to the President for his signature or veto).~~131~~144
Immigration & Naturalization Service v. Chadha is the seminal case on the limits bicameralism is the seminal case on the limits bicameralism
and presentment place on the ability of Congress’s component parts to act alone.and presentment place on the ability of Congress’s component parts to act alone.~~132~~145 In In Chadha, ,
the Court struck down a provision of the Immigration and Nationality Act (INA) that had the Court struck down a provision of the Immigration and Nationality Act (INA) that had
authorized either house of Congress, by simple resolution, to “veto” an exercise of statutory authorized either house of Congress, by simple resolution, to “veto” an exercise of statutory
deportation authority that had been delegated to the Attorney General.deportation authority that had been delegated to the Attorney General.~~133~~146 In invalidating this In invalidating this
“legislative veto,” the Court determined that “legislative acts” having the force of law are subject “legislative veto,” the Court determined that “legislative acts” having the force of law are subject
to the requirements of bicameralism and presentment, and held that the INA’s one-house veto to the requirements of bicameralism and presentment, and held that the INA’s one-house veto
procedure did not comply with these constitutional requirements.procedure did not comply with these constitutional requirements.~~134~~147 The Court defined a The Court defined a
legislative act as any action “properly . . . regarded as legislative in its character and effect” or legislative act as any action “properly . . . regarded as legislative in its character and effect” or
taken with “the purpose and effect of altering the legal rights, duties and relations of persons . . . taken with “the purpose and effect of altering the legal rights, duties and relations of persons . . .
outside the legislative branch.”outside the legislative branch.”~~135~~148
The The Chadha opinion identified specific exceptions to the bicameralism and presentment opinion identified specific exceptions to the bicameralism and presentment
requirement, noting that “[c]learly, when the [Constitution’s] Draftsmen sought to confer special requirement, noting that “[c]learly, when the [Constitution’s] Draftsmen sought to confer special
powers on one House, independent of the other House, or of the President, they did so in explicit, powers on one House, independent of the other House, or of the President, they did so in explicit,
unambiguous terms.”unambiguous terms.”~~136~~149 The Constitution’s impeachment provisions and those relating to Senate The Constitution’s impeachment provisions and those relating to Senate
advice and consent to treaty ratification and the appointment of judges, ambassadors, and public advice and consent to treaty ratification and the appointment of judges, ambassadors, and public
officials are examples of such provisions.officials are examples of such provisions.~~137~~150 The Court also noted that “[e]ach House has the The Court also noted that “[e]ach House has the
power to act alone in determining specified internal matters.”power to act alone in determining specified internal matters.”~~138~~151 These express exceptions to the These express exceptions to the
bicameralism and presentment requirements in the Constitution, the Court noted, “further bicameralism and presentment requirements in the Constitution, the Court noted, “further
indicate[] the Framers’ intent that Congress not act in any legally binding manner outside a indicate[] the Framers’ intent that Congress not act in any legally binding manner outside a
closely circumscribed legislative arena, except in specific and enumerated instances.”closely circumscribed legislative arena, except in specific and enumerated instances.”~~139~~152
As a result of the As a result of the Chadha decision, if Congress seeks to legally compel or prohibit agency action, decision, if Congress seeks to legally compel or prohibit agency action,
or otherwise alter an agency’s underlying authority, the House and Senate generally must act in or otherwise alter an agency’s underlying authority, the House and Senate generally must act in
concert with each other, and absent a veto override, in concert with the President.concert with each other, and absent a veto override, in concert with the President.~~140 Chadha,~~

~~130 U.S. CONST. art. I, § 7.~~
~~131~~153 Chadha, therefore, represents a key limitation on the ability of an individual house, committee, or Member to directly and unilaterally control federal agencies.154 144 Clinton v. City of New York, 524 U.S. 417, 439–40 (1998) (“The procedures governing the enactment of statutes set Clinton v. City of New York, 524 U.S. 417, 439–40 (1998) (“The procedures governing the enactment of statutes set
forth in the text of Article I were the product of the great debates and compromises that produced the Constitution forth in the text of Article I were the product of the great debates and compromises that produced the Constitution
itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may
only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’” (citing only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’” (citing Chadha,
462 U.S. at 951)). 462 U.S. at 951)).
~~132~~145 Chadha, 462 U.S. at 944–59. , 462 U.S. at 944–59.
~~133~~146 Id. at 952–55. . at 952–55.
~~134~~147 Id. at 952. . at 952.
~~135~~148 Id. .
~~136~~149 Id. at 955–56. . at 955–56.
~~137~~150 Id. at 955. . at 955.
~~138~~151 Id. at 955 n.21 (referencing U.S. CONST. art. I, § 5, cl. 2 and § 7, cls. 2, 3). at 955 n.21 (referencing U.S. CONST. art. I, § 5, cl. 2 and § 7, cls. 2, 3).
~~139~~152 Id. .
~~140~~153 U.S. CONST. art. I, § 7. One exception is the subpoena, which can be issued by a single congressional committee and U.S. CONST. art. I, § 7. One exception is the subpoena, which can be issued by a single congressional committee and
carries with it the legal obligation to respond. Watkins v. United States, 354 U.S. 178, 187–88 (noting the existence of carries with it the legal obligation to respond. Watkins v. United States, 354 U.S. 178, 187–88 (noting the existence of
an “unremitting obligation to respond to subpoenas”). an “unremitting obligation to respond to subpoenas”).
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~~therefore, represents a key limitation on the ability of an individual house, committee, or Member~~
~~to directly and unilaterally control federal agencies.141~~
~~Yet a distinction must be made between Congress’s authority to mandate or prohibit agency~~
154 See Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982) (en banc) (per curiam), aff’d, 463 U.S. 1216 (1983) (invalidating use of two-house veto through concurrent resolution); Chadha, 462 U.S. at 959 (Powell, J., concurring) (“The Court’s decision, based on the Presentment Clauses, Art. I, § 7, cls. 2 and 3, apparently will invalidate every use Congressional Research Service 17 link to page 26 link to page 32 Congress’s Authority to Influence and Control Executive Branch Agencies A distinction must be made between Congress’s authority to dictate agency activity through the enactment of legislation, and the ability of Congress, legislative committees, activity through the enactment of legislation, and the ability of Congress, legislative committees,
and individual Members to and individual Members to ~~influence~~influence agency conduct through the use of other tools. As discussed agency conduct through the use of other tools. As discussed
in the remainder of the report, there are many non-statutory tools that congressional actors may in the remainder of the report, there are many non-statutory tools that congressional actors may
use to influence agencies without compliance with bicameralism and presentment. These tools use to influence agencies without compliance with bicameralism and presentment. These tools
may inhere to the House, Senate, congressional committees, or individual Members and can may inhere to the House, Senate, congressional committees, or individual Members and can
generally be used to either obtain information necessary for informed congressional involvement generally be used to either obtain information necessary for informed congressional involvement
in administrative decisionmakingin administrative decisionmaking, or pressure an agency into pursuing a certain course of conduct or pressure an agency into pursuing a certain course of conduct
by harnessing and focusing public attention on an agency’s or by harnessing and focusing public attention on an agency’s or an official’s action or inaction.official’s action or inaction.~~142~~155
Significant Tools Available to Both the House and ~~Senate143~~Senate156
Some of the most significant non-statutory tools are available to both houses of Congress. Three Some of the most significant non-statutory tools are available to both houses of Congress. Three
tools have particular practical or legal significance to Congress: expressions of disapproval, tools have particular practical or legal significance to Congress: expressions of disapproval,
including censure; criminal contempt of Congress; and each house’s inherent power to arrest and including censure; criminal contempt of Congress; and each house’s inherent power to arrest and
jail individuals for obstructive conduct.jail individuals for obstructive conduct.~~144~~157
Censure and Other Expressions of Disapproval
Either house of Congress may seek to influence agency action through formal disapproval of Either house of Congress may seek to influence agency action through formal disapproval of
executive branch officials. Formal declarations of disapproval take different forms. They can be executive branch officials. Formal declarations of disapproval take different forms. They can be
expressions of censure or condemnation,expressions of censure or condemnation,~~145~~158 declarations of a loss of or no confidence in an declarations of a loss of or no confidence in an
official, or expressions of the belief that an official should resign or be removed from office.official, or expressions of the belief that an official should resign or be removed from office.~~146~~

~~141 See Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982) (en banc) (per curiam), aff’d, 463 U.S. 1216 (1983)~~
~~(invalidating use of two-house veto through concurrent resolution); Chadha, 462 U.S. at 959 (Powell, J., concurring)~~
~~(“The Court’s decision, based on the Presentment Clauses, Art. I, § 7, cls. 2 and 3, apparently will invalidate every use~~
159 These expressions are generally contained in simple resolutions if issued by one house or concurrent resolutions if issued by Congress as a whole.160 Although censure resolutions and of the legislative veto.”). The Supreme Court has consistently interpreted of the legislative veto.”). The Supreme Court has consistently interpreted Chadha as limiting the legal impact of non- as limiting the legal impact of non-
statutory legislative actions. For example, in statutory legislative actions. For example, in Bowsher v. Synar, the Court reaffirmed that “once Congress makes its , the Court reaffirmed that “once Congress makes its
choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only
indirectly—by passing new legislation.” 478 U.S. 714, 733–34 (1986). indirectly—by passing new legislation.” 478 U.S. 714, 733–34 (1986).
~~142~~155 See John C. Roberts, John C. Roberts, Are Congressional Committees Constitutional?: Radical Textualism, Separation of Powers,
and the Enactment Process, 52 CASE W. RES. 489, 520 (2001) (writing that “[t]he Framers contemplated that Congress , 52 CASE W. RES. 489, 520 (2001) (writing that “[t]he Framers contemplated that Congress
would participate in the administration of the laws in many ways, including confirmation of executive branch would participate in the administration of the laws in many ways, including confirmation of executive branch
appointments and withholding funds”). appointments and withholding funds”).
~~143~~156 This overview is not exhaustive in terms of the universe of non-statutory tools available to Congress to influence This overview is not exhaustive in terms of the universe of non-statutory tools available to Congress to influence
and control administrative agencies. The tools included were selected due to their particular significance to Congress’s and control administrative agencies. The tools included were selected due to their particular significance to Congress’s
oversight and investigative responsibilities. oversight and investigative responsibilities.
~~144~~157 The House and Senate have also instituted civil proceedings to enforce compliance with valid congressional The House and Senate have also instituted civil proceedings to enforce compliance with valid congressional
subpoenas. Because each house typically relies upon a different source of law to maintain civil enforcement lawsuits—subpoenas. Because each house typically relies upon a different source of law to maintain civil enforcement lawsuits—
that is, via a simple resolution (House) or civil enforcement statute (Senate)—each house’s civil enforcement power is that is, via a simple resolution (House) or civil enforcement statute (Senate)—each house’s civil enforcement power is
discussed in the respective sections covering the exclusive tools available to the House and to the Senate individually. discussed in the respective sections covering the exclusive tools available to the House and to the Senate individually.
See infra “Tools Available to the House” & & “Tools Available to the Senate.”
~~145~~158 Rather than targeting an individual, a resolution can condemn agency action generally. Rather than targeting an individual, a resolution can condemn agency action generally. See, e.g., H. H.R. Res. 271, 116th Res. 271, 116th
Cong. (2019) (describing “actions taken by the Trump Administration seeking the invalidation of the ACA’s Cong. (2019) (describing “actions taken by the Trump Administration seeking the invalidation of the ACA’s
protections for people with pre-existing conditions” as “an unacceptable assault on the health care of the American protections for people with pre-existing conditions” as “an unacceptable assault on the health care of the American
people” and calling on the DOJ to reverse its litigating position in a specific case); H.people” and calling on the DOJ to reverse its litigating position in a specific case); H. ~~RES~~R. Res. 644, 113th Cong. (2014) . 644, 113th Cong. (2014)
(condemning and disapproving “the failure of the Obama administration” to notify Congress of a prisoner exchange (condemning and disapproving “the failure of the Obama administration” to notify Congress of a prisoner exchange
involving “five senior members of the Taliban from detention at . . . Guantanamo Bay, Cuba”). involving “five senior members of the Taliban from detention at . . . Guantanamo Bay, Cuba”).
146 See159 See archived CRS Report RL34037, CRS Report RL34037, Congressional Censure and “No Confidence” Votes Regarding Public Officials, by Richard S. Beth, at 1, 8. 160 Id. at 5. Compare H.R. Con. Res. 49, 117th Cong. (2021) (which would have censured and condemned President Joseph R. Biden) with H.R. Res. 14, 117th Cong. (2021) (which would have censured and condemned President Congressional Research Service 18 link to page 21 link to page 22 Congress’s Authority to Influence and Control Executive Branch Agencies ~~Officials~~,
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~~These expressions are generally contained in simple resolutions if issued by one house or~~
~~concurrent resolutions if issued by Congress as a whole.147 Although censure resolutions and~~
other expressions of disapproval generally have no legal effect, they might still influence the other expressions of disapproval generally have no legal effect, they might still influence the
actions of agency officials who wish to avoid the political consequences of such measures.actions of agency officials who wish to avoid the political consequences of such measures.~~148~~161
Congress has proposed resolutions condemning or censuring executive branch officials since as Congress has proposed resolutions condemning or censuring executive branch officials since as
early as 1793, when Congress considered resolutions censuring Secretary of the Treasury early as 1793, when Congress considered resolutions censuring Secretary of the Treasury
Alexander Hamilton.Alexander Hamilton.~~149~~162 As a matter of historical practice, As a matter of historical practice, Congress has adopted censure and similar resolutions censure and similar resolutions ~~have~~
~~been adopted~~ against various executive officials.against various executive officials.~~150~~163 Still, some have argued that congressional Still, some have argued that congressional
censure of executive officials is unconstitutional.censure of executive officials is unconstitutional.~~151~~164 For example, For example, ~~it has been argued~~some scholars assert that the that the
impeachment provisions of the Constitution provide the exclusive means by which Congress may impeachment provisions of the Constitution provide the exclusive means by which Congress may
punish executive branch officials, and that censure is an unconstitutional bill of attainder by punish executive branch officials, and that censure is an unconstitutional bill of attainder by
imposing legislative punishment on a named official.imposing legislative punishment on a named official.~~152~~165 These arguments appear to be grounded These arguments appear to be grounded
in an understanding of the relationship between censure, impeachment, and bills of attainder that in an understanding of the relationship between censure, impeachment, and bills of attainder that
is not widely shared. Impeachment is exclusive only in that it is the sole tool available to is not widely shared. Impeachment is exclusive only in that it is the sole tool available to
Congress to Congress to remove an official from office and that Congress is constitutionally prohibited from an official from office and that Congress is constitutionally prohibited from
imposing any additional punishment following impeachment and conviction beyond removal and imposing any additional punishment following impeachment and conviction beyond removal and
disqualification from holding future federal office.disqualification from holding future federal office.~~153~~166 Censure and other expressions of Censure and other expressions of
disapprobation in simple or concurrent resolutions, however, do not seek to legally compel disapprobation in simple or concurrent resolutions, however, do not seek to legally compel
removal from office, nor are they punishments following impeachment and conviction.removal from office, nor are they punishments following impeachment and conviction.~~154~~167
As for the Constitution’s prohibition on bills of attainder, a censure resolution would violate that As for the Constitution’s prohibition on bills of attainder, a censure resolution would violate that
constitutional prohibition only if it imposed a “punishment” as envisioned by the Bill of Attainder constitutional prohibition only if it imposed a “punishment” as envisioned by the Bill of Attainder
Clause.Clause.~~155~~168 The Supreme Court has identified a bill of attainder as “a law that legislatively The Supreme Court has identified a bill of attainder as “a law that legislatively
determines guilt and inflicts punishment upon an identifiable individual without provision of the determines guilt and inflicts punishment upon an identifiable individual without provision of the

~~coordinated by Cynthia Brown, at 1, 8.~~
~~147 Brown, supra note 146, at 5.~~
~~148~~protections of a judicial trial.”169 The Court has explained that “the historical meaning of Donald J. Trump). 161 Cf. Michael J. Gerhardt, Michael J. Gerhardt, The Historical and Constitutional Significance of the Impeachment and Trial of President
Clinton, 28 HOFSTRA L. REV. 349, 377 (1999) (describing censure as a tool for “collective[] . . . condemnation”). , 28 HOFSTRA L. REV. 349, 377 (1999) (describing censure as a tool for “collective[] . . . condemnation”).
~~149~~162 None of the resolutions passed. Brown, None of the resolutions passed. Brown, supra no note ~~146~~159, at 6 & n.20. at 6 & n.20.
~~150~~163 See, e.g.,, id. at 6–7 (discussing the House’s condemnation of President Buchanan and his Secretary of the Navy in at 6–7 (discussing the House’s condemnation of President Buchanan and his Secretary of the Navy in
1860 and the House and Senate’s respective resolutions of disapprobation directed at Attorney General A.H. Garland in 1860 and the House and Senate’s respective resolutions of disapprobation directed at Attorney General A.H. Garland in
1886 and Ambassador Thomas Bayard in 1896). 1886 and Ambassador Thomas Bayard in 1896).
~~151~~See also H.R. Res. 489, 116th Cong. (2019) (condemning comments made by President Donald J. Trump). 164 See Gerhardt, Gerhardt, supra no note ~~148~~161, at 376 (explaining that those who opposed censure over impeachment proceedings for at 376 (explaining that those who opposed censure over impeachment proceedings for
President Clinton “claimed, President Clinton “claimed, inter alia, that [censure] constituted either a bill of attainder or an illegitimate bypass of the , that [censure] constituted either a bill of attainder or an illegitimate bypass of the
only constitutionally authorized means—impeachment—for dealing with a President’s misconduct”). only constitutionally authorized means—impeachment—for dealing with a President’s misconduct”).
~~152~~165 For example, the House report underlying President Bill Clinton’s impeachment argued that, For example, the House report underlying President Bill Clinton’s impeachment argued that,
for the President or any other civil officer, censure as a shaming punishment by the legislature is for the President or any other civil officer, censure as a shaming punishment by the legislature is
precluded by the Constitution, since the impeachment provisions permit Congress only to remove an precluded by the Constitution, since the impeachment provisions permit Congress only to remove an
officer of another branch of government and disqualify him from office. Not only would such a officer of another branch of government and disqualify him from office. Not only would such a
punishment undermine the separation of powers by punishing the President or other civil officers of punishment undermine the separation of powers by punishing the President or other civil officers of
the government in a manner other than expressly provided for in the Constitution, but it would violate the government in a manner other than expressly provided for in the Constitution, but it would violate
the Constitution’s prohibition on Bills of Attainder. the Constitution’s prohibition on Bills of Attainder.
H.R. REP. NO. 105-830, at 137 (1998) (citing U.S. CONST. art. I, § 9, cl. 3). H.R. REP. NO. 105-830, at 137 (1998) (citing U.S. CONST. art. I, § 9, cl. 3). See also James C. Ho, James C. Ho, Misunderstood
Precedent: Andrew Jackson and the Real Case Against Censure, 24 HARV. J. L. & PUB. POL’Y 283, 290 (2000) (arguing , 24 HARV. J. L. & PUB. POL’Y 283, 290 (2000) (arguing
that, “not only is there no textual defense for interbranch censure (at least not outside of the impeachment process), the that, “not only is there no textual defense for interbranch censure (at least not outside of the impeachment process), the
Constitution expressly forbids it through its prohibition against bills of attainder”). Constitution expressly forbids it through its prohibition against bills of attainder”).
~~153~~166 See U.S. CONST. art. I, § 3, cls. 6, 7; U.S. CONST. art. I, § 3, cls. 6, 7; id. art. II, § 4. art. II, § 4.
~~154~~167 CRS Legal Sidebar LSB10096, CRS Legal Sidebar LSB10096, The Constitutionality of Censuring the President, by Todd Garvey. , by Todd Garvey.
~~155~~168 U.S. CONST. art. I, § 9, cl. 3. 169 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977); see Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867) (declaring that “[a] bill of attainder is a legislative act which inflicts punishment without a judicial trial”). ~~U.S. CONST. art. I, § 9, cl. 3.~~
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~~protections of a judicial trial.”156 The Court has explained that “the historical meaning of~~
legislative punishment” includes “imprisonment, banishment, . . . the punitive confiscation of legislative punishment” includes “imprisonment, banishment, . . . the punitive confiscation of
property[,] . . . . [and] legislative bars to participation by individuals or groups in specific property[,] . . . . [and] legislative bars to participation by individuals or groups in specific
employments or professions.”employments or professions.”~~157~~170 A non-tangible injury—such as the reputational harm that might A non-tangible injury—such as the reputational harm that might
result from a censure resolution—is not the category of injury generally viewed as implicated by result from a censure resolution—is not the category of injury generally viewed as implicated by
the Bill of Attainder Clause.the Bill of Attainder Clause.~~158~~171 Given that censure resolutions do not carry a direct legal Given that censure resolutions do not carry a direct legal
consequence, it would appear difficult to argue that such measures impose the type of punishment consequence, it would appear difficult to argue that such measures impose the type of punishment
prohibited by the Clause. prohibited by the Clause.
Criminal Contempt of Congress
While expressions of disapproval through censure or similar mechanisms do not carry direct legal While expressions of disapproval through censure or similar mechanisms do not carry direct legal
consequences, legal penalties potentially attach to an individual’s refusal to comply with a valid consequences, legal penalties potentially attach to an individual’s refusal to comply with a valid
congressional subpoena.congressional subpoena.~~159~~172 If an agency official (or any other individual) refuses to appear before If an agency official (or any other individual) refuses to appear before
a committee to provide testimony or produce documents in response to a congressional subpoena, a committee to provide testimony or produce documents in response to a congressional subpoena,
the relevant house of Congress may seek to punish the witness for failure to comply with the the relevant house of Congress may seek to punish the witness for failure to comply with the
subpoena by certifying the case to a United States Attorney for criminal prosecution in federal subpoena by certifying the case to a United States Attorney for criminal prosecution in federal
court.court.~~160~~173 Generally speaking, the threat of such a referral can encourage agency compliance with Generally speaking, the threat of such a referral can encourage agency compliance with
congressional oversight requests.congressional oversight requests.~~161~~174
Under federal statute, a person “summoned as a witness” to provide testimony or produce Under federal statute, a person “summoned as a witness” to provide testimony or produce
documents upon the request of either house of Congress and who is found to have “willfully” documents upon the request of either house of Congress and who is found to have “willfully”
refused to provide “pertinent” documents or testimony is guilty of a misdemeanor and may be refused to provide “pertinent” documents or testimony is guilty of a misdemeanor and may be
subject to a fine and imprisonment.subject to a fine and imprisonment.~~162~~175 Under both federal law and House and Senate practice, if Under both federal law and House and Senate practice, if

~~156 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977); see Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323~~
~~(1867) (declaring that “[a] bill of attainder is a legislative act which inflicts punishment without a judicial trial”).~~
~~157 Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 852 (1984) (citing Nixon, 433 U.S. at 473–~~
~~74).~~
~~158~~ 170 Selective Serv. Sys. v. Minn. Pub. Int. Rsch. Grp., 468 U.S. 841, 852 (1984) (citing Nixon, 433 U.S. at 473–74). For a broader discussion of “punishment” for purposes of the Bill of Attainder Clause, see CRS Legal Sidebar LSB10567, Capitol Unrest, Legislative Response, and the Bill of Attainder Clause, by Joanna R. Lampe. 171 A court’s “inquiry is not ended by the determination that [a bill] imposes no punishment traditionally judged to be A court’s “inquiry is not ended by the determination that [a bill] imposes no punishment traditionally judged to be
prohibited by the Bill of Attainder Clause.” prohibited by the Bill of Attainder Clause.” Nixon, 433 U.S. at 475. The Supreme Court “recognize[s] [two other] , 433 U.S. at 475. The Supreme Court “recognize[s] [two other]
necessary inquiries”: “whether the [bill in question], viewed in terms of the type and severity of burdens imposed, necessary inquiries”: “whether the [bill in question], viewed in terms of the type and severity of burdens imposed,
reasonably can be said to further nonpunitive legislative purposes” and “whether the legislative record evinces a reasonably can be said to further nonpunitive legislative purposes” and “whether the legislative record evinces a
congressional intent to punish.” congressional intent to punish.” Selective Serv. Sys., 468 U.S. at 852 (internal quotation marks and citation omitted). If , 468 U.S. at 852 (internal quotation marks and citation omitted). If
a legitimate, nonpunitive reason for a censure resolution is articulated by one or both houses—such as to ensure that a legitimate, nonpunitive reason for a censure resolution is articulated by one or both houses—such as to ensure that
Congress’s position is known or to dissuade the official to whom the resolution is directed from engaging in similar Congress’s position is known or to dissuade the official to whom the resolution is directed from engaging in similar
conduct in the future—then the resolution likely would not qualify as a bill of attainder. conduct in the future—then the resolution likely would not qualify as a bill of attainder. Cf. Nixon, 433 U.S. at 476 , 433 U.S. at 476
(“Where [nonpunitive] legislative purposes do not appear, it is reasonable to conclude that punishment of individuals (“Where [nonpunitive] legislative purposes do not appear, it is reasonable to conclude that punishment of individuals
disadvantaged by the enactment was the purpose of the decisionmakers.”). disadvantaged by the enactment was the purpose of the decisionmakers.”).
~~159~~172 See 2 U.S.C. § 192. 2 U.S.C. § 192.
~~160~~173 For a comprehensive examination of congressional contempt and enforcement of congressional subpoenas, see CRS For a comprehensive examination of congressional contempt and enforcement of congressional subpoenas, see CRS
Report RL34097, Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History,
Practice, and Procedure, by Todd Garvey [hereinafter Garvey, , by Todd Garvey [hereinafter Garvey, Congress’s Contempt Power]]. See also CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey. 174.
~~161~~ See, e.g., H.R. REP. NO. 104-849, at 9 (1996) (explaining that the White House delivered one thousand documents in , H.R. REP. NO. 104-849, at 9 (1996) (explaining that the White House delivered one thousand documents in
connection with the investigation into the White House’s dismissal of members of the White House Travel Office staff connection with the investigation into the White House’s dismissal of members of the White House Travel Office staff
on the same day the House was scheduled to vote on a contempt resolution regarding White House Counsel John on the same day the House was scheduled to vote on a contempt resolution regarding White House Counsel John
Michael Quinn); Michael Quinn); see also Mary Clare Jalonick, Mary Clare Jalonick, Justice Department Gives Congress New Classified Documents on
Russia Probe, CHI. TRIB., June 23, 2018 (reporting that the Department of Justice provided Congress with classified , CHI. TRIB., June 23, 2018 (reporting that the Department of Justice provided Congress with classified
information after “lawmakers had threatened to hold officials in contempt of Congress”). information after “lawmakers had threatened to hold officials in contempt of Congress”).
~~162~~175 2 U.S.C. § 192. Although Section 192 actually states that violations are punishable by a fine of up to $1,000, the 2 U.S.C. § 192. Although Section 192 actually states that violations are punishable by a fine of up to $1,000, the
maximum fine for contempt under the statute was increased to $100,000 due to Congress’s subsequent classification of maximum fine for contempt under the statute was increased to $100,000 due to Congress’s subsequent classification of
offenses. offenses. See 18 U.S.C. § 3559(6) (“An offense that is not specifically classified by a letter grade in the section defining 18 U.S.C. § 3559(6) (“An offense that is not specifically classified by a letter grade in the section defining
it” is a Class A misdemeanor “if the maximum term of imprisonment authorized is . . . one year or less but more than it” is a Class A misdemeanor “if the maximum term of imprisonment authorized is . . . one year or less but more than
six months”); six months”); id. § 3571(b) (A person found guilty of “a Class A misdemeanor that does not result in death” may be § 3571(b) (A person found guilty of “a Class A misdemeanor that does not result in death” may be
fined no more than $100,000); see also id. § 3571(e) (If a statute imposes no fine or one that is lower than that Congressional Research Service Congressional Research Service

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the House or Senate approves a criminal contempt citation, a report shall be certified “to the the House or Senate approves a criminal contempt citation, a report shall be certified “to the
appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury
for its action.”for its action.”~~163~~176
There are several legal limitations on Congress’s use of the criminal contempt statute. Like other There are several legal limitations on Congress’s use of the criminal contempt statute. Like other
criminal provisions, the criminal contempt of Congress statute cannot be used to prosecute criminal provisions, the criminal contempt of Congress statute cannot be used to prosecute
constitutionally protected constitutionally protected ~~conduct.164 In~~conduct177In addition, the subpoena that forms the basis for the addition, the subpoena that forms the basis for the
criminal contempt statute must be valid.criminal contempt statute must be valid.~~165~~178 In general, this means the subpoena must seek In general, this means the subpoena must seek
information relevant to an investigation that is both within the issuing committee’s jurisdiction information relevant to an investigation that is both within the issuing committee’s jurisdiction
and for which the committee can articulate a legislative purpose.and for which the committee can articulate a legislative purpose.~~166~~179 These subpoena-related These subpoena-related
limitations are detailed later in this report in reference to the use of subpoenas by congressional limitations are detailed later in this report in reference to the use of subpoenas by congressional
committees.committees.~~167~~180
There are additional limits on the use of the criminal contempt statute that arise from the manner There are additional limits on the use of the criminal contempt statute that arise from the manner
in which the criminal contempt of Congress provision is enforced. The executive branch has in which the criminal contempt of Congress provision is enforced. The executive branch has
taken the position—based on both statutory interpretation and the constitutional separation of taken the position—based on both statutory interpretation and the constitutional separation of
powers—that federal prosecutors retain discretion in deciding whether to begin a criminal powers—that federal prosecutors retain discretion in deciding whether to begin a criminal
contempt of Congress prosecution.contempt of Congress prosecution.~~168~~181 That discretion, it has been asserted, extends to the decision That discretion, it has been asserted, extends to the decision
to present the matter to a grand jury.to present the matter to a grand jury.~~169~~182 The executive branch has also asserted that “the contempt The executive branch has also asserted that “the contempt
of Congress statute was not intended to apply and could not constitutionally be applied to an of Congress statute was not intended to apply and could not constitutionally be applied to an
Executive Branch official who asserts the President’s claim of executive privilege.”Executive Branch official who asserts the President’s claim of executive privilege.”~~170~~183 As a result, As a result,
there have been recent instances in which use of the criminal contempt of Congress provision there have been recent instances in which use of the criminal contempt of Congress provision
against an agency official has proven unavailing.against an agency official has proven unavailing.~~171~~184 For example, when the President directs or For example, when the President directs or

~~fined no more than $100,000); see also id. § 3571(e) (If a statute imposes no fine or one that is lower than that~~
authorized by Section 3571 and “exempts the offense from the applicability of the fine otherwise applicable” authorized by Section 3571 and “exempts the offense from the applicability of the fine otherwise applicable”
thereunder, the fine or lack thereof set forth in the specific statute controls.). thereunder, the fine or lack thereof set forth in the specific statute controls.).
Recent application of the federal sentencing guidelines has resulted in lower fines. See Department of Justice Press Release, Stephen K. Bannon Sentenced to Four Months in Prison on Two Counts of Contempt of Congress, (Oct. 21, 2022) (announcing a fine of $6,500), https://www.justice.gov/usao-dc/pr/stephen-k-bannon-sentenced-four-months-prison-two-counts-contempt-congress. 176 ~~163~~ 2 U.S.C. § 194. 2 U.S.C. § 194. See also Examining and Reviewing the Procedures That Were Taken by the Office of the U.S.
Attorney for the District of Columbia in Their Implementation of a Contempt Citation that Was Voted by the Full
House of Representatives against the Then-Administrator of the Environmental Protection Agency, Anne Gorsuch
Burford: Hearing Before the H. Comm. on Pub. Works and Transp., 98th Cong., at 30 (1983). , 98th Cong., at 30 (1983).
~~164~~177 See e.g., Watkins v. United States, 354 U.S. 178, 215 (1957) (Fifth Amendment due process); Quinn v. United , Watkins v. United States, 354 U.S. 178, 215 (1957) (Fifth Amendment due process); Quinn v. United
States, 349 U.S. 155, 161–65 (1955) (Fifth Amendment privilege against self-incrimination); Barenblatt v. United States, 349 U.S. 155, 161–65 (1955) (Fifth Amendment privilege against self-incrimination); Barenblatt v. United
States, 360 U.S. 109, 125–34 (1959) (First Amendment). States, 360 U.S. 109, 125–34 (1959) (First Amendment).
~~165~~178 2 U.S.C. § 192. 2 U.S.C. § 192.
~~166~~179 See, e.g., Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17, 20–21 (D.D.C. 1994) (holding that courts , Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17, 20–21 (D.D.C. 1994) (holding that courts
“may only inquire as to whether the documents sought by the subpoena are ‘not plainly incompetent or irrelevant to “may only inquire as to whether the documents sought by the subpoena are ‘not plainly incompetent or irrelevant to
any lawful purpose [of the Subcommittee] in the discharge of [its] duties,’” (quoting McPhaul v. United States, 364 any lawful purpose [of the Subcommittee] in the discharge of [its] duties,’” (quoting McPhaul v. United States, 364
U.S. 372, 381 (1960) (alterations in original)). U.S. 372, 381 (1960) (alterations in original)).
~~167~~180 See infra “Committee Investigative Oversight.”
~~168~~181 See, e.g., Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of , Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of
Executive Privilege, 8 Op. O.L.C. 101, 102 (1984) (asserting that the criminal contempt statute cannot be interpreted as Executive Privilege, 8 Op. O.L.C. 101, 102 (1984) (asserting that the criminal contempt statute cannot be interpreted as
imposing a legal obligation on the executive branch). imposing a legal obligation on the executive branch).
~~169~~182 See, e.g., Letter from Ronald C. Machen, Jr., , Letter from Ronald C. Machen, Jr., ~~United States~~U.S. Att’y, U.S. Dep’t of Justice, to John A. Boehner, Att’y, U.S. Dep’t of Justice, to John A. Boehner,
Speaker, U.S. House of Representatives (Mar. 31, 2015) (declining to present criminal contempt citation to a grand Speaker, U.S. House of Representatives (Mar. 31, 2015) (declining to present criminal contempt citation to a grand
jury). jury).
~~170~~183 Prosecution for Contempt, 8 Op. O.L.C. at 102. Specifically, the , 8 Op. O.L.C. at 102. Specifically, the DOJ Office of Legal Counsel Office of Legal Counsel (OLC) has asserted that has asserted that
interpreting 2 U.S.C. § 194 as requiring the executive branch to initiate a criminal contempt prosecution under these interpreting 2 U.S.C. § 194 as requiring the executive branch to initiate a criminal contempt prosecution under these
circumstances would “burden” and “nullif[y]” the President’s exercise of executive privilege and impermissibly circumstances would “burden” and “nullif[y]” the President’s exercise of executive privilege and impermissibly
interfere with the “prosecutorial discretion of the Executive by directing the executive branch to prosecute particular interfere with the “prosecutorial discretion of the Executive by directing the executive branch to prosecute particular
individuals.” individuals.” Id. at 115. at 115.
~~171 The last such instance occurred in 2019 when~~184 In 2019, the House approved a criminal contempt resolution against Attorney the House approved a criminal contempt resolution against Attorney
General William Barr and Secretary of General William Barr and Secretary of ~~Commerce Wilbur Ross. H. Res 497, 116th Cong. (2019). The DOJ informed~~
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endorses non-compliance with a subpoena, such as where the official refuses to disclose endorses non-compliance with a subpoena, such as where the official refuses to disclose
information pursuant to the President’s decision that the information is protected by executive information pursuant to the President’s decision that the information is protected by executive
privilege, past practice suggests that the Department of Justice (DOJ) is unlikely to pursue a privilege, past practice suggests that the Department of Justice (DOJ) is unlikely to pursue a
prosecution for criminal contempt.prosecution for criminal contempt.~~172~~185 Even when the official is not acting at the direction of the Even when the official is not acting at the direction of the
President, the executive branch has argued that in deciding whether to pursue the case it retains President, the executive branch has argued that in deciding whether to pursue the case it retains
authority to make an independent assessment of whether the official has violated the criminal authority to make an independent assessment of whether the official has violated the criminal
contempt statute.contempt statute.~~173~~
186 Inherent Contempt
The inherent contempt power is a constitutionally based power given to each house to arrest and The inherent contempt power is a constitutionally based power given to each house to arrest and
detain an individual found to be “obstruct[ing] the performance of the duties of the legislature.”detain an individual found to be “obstruct[ing] the performance of the duties of the legislature.”~~174~~187
Because the power extends to conduct that generally obstructs the exercise of legislative powers Because the power extends to conduct that generally obstructs the exercise of legislative powers
by either the House or the Senate, the inherent contempt power can be by either the House or the Senate, the inherent contempt power can be applied more broadly more broadly ~~applied~~ than than
the criminal contempt statute.the criminal contempt statute.~~175~~188 Despite its title, “inherent” contempt should perhaps more Despite its title, “inherent” contempt should perhaps more
accurately be characterized as an implied constitutional power.accurately be characterized as an implied constitutional power.~~176~~189 The Supreme Court has The Supreme Court has
repeatedly held that although the contempt power is not specifically granted by the Constitution, repeatedly held that although the contempt power is not specifically granted by the Constitution,
~~it is nonetheless “incidental” to the legislative function and therefore implied from the general~~
~~vesting of legislative powers in Congress.177~~

Commerce Wilbur Ross. H. Res 497, 116th Cong. (2019). The DOJ informed the House it would not take action on the contempt resolution, reasoning that the Department “will not prosecute an the House it would not take action on the contempt resolution, reasoning that the Department “will not prosecute an
official for contempt of Congress for declining to provide information subject to a presidential assertion of executive official for contempt of Congress for declining to provide information subject to a presidential assertion of executive
privilege.” privilege.” See Andrew Desidierio, Andrew Desidierio, DOJ Won't Charge William Barr, Wilbur Ross After Contempt Vote, POLITICO (July , POLITICO (July
24, 201924, 2019~~, 5:50PM),~~ ), https://www.politico.com/story/2019/07/24/justice-william-barr-wilbur-ross-1432595.https://www.politico.com/story/2019/07/24/justice-william-barr-wilbur-ross-1432595.). For a For a
discussion of other times the DOJ has refused to take action on criminal contempt of congress resolutions discussion of other times the DOJ has refused to take action on criminal contempt of congress resolutions see CRS CRS
Report R45653, Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey. , by Todd Garvey.
~~172~~185 See Letter from James M. Cole, Deputy Att’y Gen’l, U.S. Dep’t of Justice, to John Boehner, Speaker of the House Letter from James M. Cole, Deputy Att’y Gen’l, U.S. Dep’t of Justice, to John Boehner, Speaker of the House
(June 28, 2012); (June 28, 2012); Prosecution for Contempt, 8 Op. O.L.C. at 102. , 8 Op. O.L.C. at 102.
~~173~~186 See Letter from Ronald C. Machen, Jr., Letter from Ronald C. Machen, Jr., ~~United States~~U.S. Att’y, U.S. Dep’t of Justice, to John A. Boehner, Speaker, Att’y, U.S. Dep’t of Justice, to John A. Boehner, Speaker,
U.S. House U.S. House of Representatives (Mar. 31, 2015). In 2022 for example, the House held three former White House officials in contempt of Congress for non-compliance with committee subpoenas seeking testimony and documents from their time in the Trump Administration. In refusing the subpoenas, all three relied, at least in part, on former President Trump’s claims of executive privilege—claims that President Biden did not support. Although the DOJ ultimately indicted one of the three former officials, it chose not to proceed against the other two. See Alan Feuer & Luke Broadwater, Navarro Indicted as Justice Dept. Opts Not to Charge Meadows and Scavino. N.Y. TIMES (June 3, 2022) https://www.nytimes.com/2022/06/03/us/politics/peter-navarro-contempt-jan-6.html. 187~~of Representatives (Mar. 31, 2015).~~
~~174~~ Jurney v. MacCracken, 294 U.S. 125, 147–48 (1935). The action that forms the basis for contempt must threaten the Jurney v. MacCracken, 294 U.S. 125, 147–48 (1935). The action that forms the basis for contempt must threaten the
ability of “the respective bodies to discharge their legitimate functions.” ability of “the respective bodies to discharge their legitimate functions.” In re Chapman, 166 U.S. 661, 671 (1897) Chapman, 166 U.S. 661, 671 (1897)
(internal quotation marks omitted). (internal quotation marks omitted).
~~175~~188 See J. Richard Broughton, J. Richard Broughton, Congressional Law Enforcement, 64 WAYNE L. REV. 95, 122 (2018) (opining that “the , 64 WAYNE L. REV. 95, 122 (2018) (opining that “the
inherent contempt remedy is available for conduct that offends the prerogatives or integrity of the legislative body inherent contempt remedy is available for conduct that offends the prerogatives or integrity of the legislative body
broadly, beyond what would be prosecutable merely pursuant to the criminal contempt statute”). Like criminal broadly, beyond what would be prosecutable merely pursuant to the criminal contempt statute”). Like criminal
contempt, however, DOJ has asserted that Congress’s inherent contempt power cannot be used against “an executive contempt, however, DOJ has asserted that Congress’s inherent contempt power cannot be used against “an executive
official who asserted a Presidential claim of executive privilege.” official who asserted a Presidential claim of executive privilege.” Prosecution for Contempt, 8 Op. O.L.C. at 140 n.42; , 8 Op. O.L.C. at 140 n.42;
see also Response to Congressional Requests for Information Regarding Decisions made Under the Independent Response to Congressional Requests for Information Regarding Decisions made Under the Independent
Counsel Act, 10 Op. O.L.C. 68, 86 (1986) (opining that “the same considerations that inform the analysis of the Counsel Act, 10 Op. O.L.C. 68, 86 (1986) (opining that “the same considerations that inform the analysis of the
applicability of [2 U.S.C.] §§ 192 and 194 to Executive Branch officials are relevant to an exercise of Congress’ applicability of [2 U.S.C.] §§ 192 and 194 to Executive Branch officials are relevant to an exercise of Congress’
inherent contempt power”). inherent contempt power”).
~~176~~189 The contempt power is an implied aspect of the legislative power. Marshall v. Gordon, 243 U.S. 521, 537 (1917) The contempt power is an implied aspect of the legislative power. Marshall v. Gordon, 243 U.S. 521, 537 (1917)
(noting that “it was yet explicitly decided that from the power to legislate given by the Constitution to Congress there (noting that “it was yet explicitly decided that from the power to legislate given by the Constitution to Congress there
was to be implied the right of Congress to preserve itself, that is, to deal by way of contempt with direct obstructions to was to be implied the right of Congress to preserve itself, that is, to deal by way of contempt with direct obstructions to
its legislative duties.”). As opposed to an inherent power, which is not tethered to a textual grant of authority, an its legislative duties.”). As opposed to an inherent power, which is not tethered to a textual grant of authority, an
implied power is derived by implication from an enumerated power. implied power is derived by implication from an enumerated power. See Scott C. Idleman, Scott C. Idleman, The Emergence of
Jurisdictional Resequencing in the Federal Courts, 87 CORNELL L. REV. 1, 42–43 (2001). , 87 CORNELL L. REV. 1, 42–43 (2001).
~~177 U.S. CONST. art. I, § 1. See generally Nixon v. Adm’r of Gen. Servs., 433 U.S. 435 (1977); Eastland v. United States~~
~~Servicemen’s Fund, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States,~~
~~354 U.S. 178 (1957); McGrain v. Daugherty, 273 U.S. 135, 174 (1927); see also Comm. on the Judiciary v. Miers, 558~~
~~F. Supp. 2d 53, 84 (D.D.C. 2008) (“[T]here can be no question that Congress has a right—derived from its Article I~~
~~legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of~~
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it is nonetheless “incidental” to the legislative function and therefore implied from the general vesting of legislative powers in Congress.190
In an inherent contempt proceeding, the House or Senate can authorize the arrest of a suspected In an inherent contempt proceeding, the House or Senate can authorize the arrest of a suspected
contemnor by the body’s Sergeant at Arms.contemnor by the body’s Sergeant at Arms.~~178~~191 If the individual is found in contempt, the body If the individual is found in contempt, the body
(either the House or the Senate) is empowered to imprison or otherwise detain the individual until (either the House or the Senate) is empowered to imprison or otherwise detain the individual until
he or she complies with the congressional request or until the end of the legislative session.he or she complies with the congressional request or until the end of the legislative session.~~179~~192
Despite its potential reach, the inherent contempt power has been described by some observers as Despite its potential reach, the inherent contempt power has been described by some observers as
cumbersome, inefficient, and “unseemly.”cumbersome, inefficient, and “unseemly.”~~180~~193 Presumably for these reasons, neither house of Presumably for these reasons, neither house of
Congress has initiated an inherent contempt proceeding since 1935.Congress has initiated an inherent contempt proceeding since 1935.~~181~~194
Tools Available to the House
Several non-statutory tools inhere exclusively to the House of Representatives. Some of these Several non-statutory tools inhere exclusively to the House of Representatives. Some of these
tools have limited legal effect. For example, through resolutions of inquiry, the House may make tools have limited legal effect. For example, through resolutions of inquiry, the House may make
non-binding requests for information from certain executive branch officials. Other non-statutory non-binding requests for information from certain executive branch officials. Other non-statutory
tools have weighty and, potentially, legally consequential effects. The House may impeach tools have weighty and, potentially, legally consequential effects. The House may impeach
~~federal government officials for “high Crimes and Misdemeanors.”182 Moreover, it may initiate~~
~~certain types of civil actions in federal court, including to enforce compliance with congressional~~

~~such subpoenas.”).~~
~~178~~ 190 U.S. CONST. art. I, § 1. See generally Nixon v. Adm’r of Gen. Servs., 433 U.S. 435 (1977); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); McGrain v. Daugherty, 273 U.S. 135, 174 (1927); see also Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 84 (D.D.C. 2008) (“[T]here can be no question that Congress has a right—derived from its Article I legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of such subpoenas.”). 191 See Thomas L. Shriner, Jr., Note, Thomas L. Shriner, Jr., Note, Legislative Contempt and Due Process: The Groppi Cases, 46 IND. L.J. 480. 490– Groppi Cases, 46 IND. L.J. 480. 490–
91 (1971). Historical evidence suggests “that the inherent contempt process can be supported and facilitated by the 91 (1971). Historical evidence suggests “that the inherent contempt process can be supported and facilitated by the
conduct of evidentiary proceedings and the development of recommendations at the committee level.” Garvey, conduct of evidentiary proceedings and the development of recommendations at the committee level.” Garvey,
Congress’s Contempt Power, , supra no note ~~160~~173, at 13. at 13.
~~179~~192 Watkins, 354 U.S. at 207 n.45. Arguably, Congress could jail or detain contemnors in facilities operated by the , 354 U.S. at 207 n.45. Arguably, Congress could jail or detain contemnors in facilities operated by the
Metropolitan Police Department of the District of Columbia, as Congress has plenary authority over the District of Metropolitan Police Department of the District of Columbia, as Congress has plenary authority over the District of
Columbia. Columbia. See Garvey, Garvey, Congress’s Contempt Power, , supra no note ~~160~~173, at 10 n.79 (citing U.S. CONST. art. I, § 8). There at 10 n.79 (citing U.S. CONST. art. I, § 8). There
is a question as to whether the Senate must release a contemnor from custody before the end of the legislative session, is a question as to whether the Senate must release a contemnor from custody before the end of the legislative session,
as, unlike the House of Representatives—whose seats are up for election every two years—the Senate—which holds as, unlike the House of Representatives—whose seats are up for election every two years—the Senate—which holds
elections for only one-third of its membership every two years—is considered to be a “continuing body.” elections for only one-third of its membership every two years—is considered to be a “continuing body.” Id. at 8 & at 8 &
n.61. n.61.
~~180~~193 See Rex E. Lee, Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three
Powers, and Some Relationships, 1978 BYU L. REV. 231, 254 (writing that “[t]here is something unseemly about a , 1978 BYU L. REV. 231, 254 (writing that “[t]here is something unseemly about a
House of Congress getting into the business of trial and punishment”); S. REP. NO. 95-170, at 97 (1977) (describing House of Congress getting into the business of trial and punishment”); S. REP. NO. 95-170, at 97 (1977) (describing
Congress’s inherent contempt, which requires a trial in the House or the Senate, as “time consuming and not very Congress’s inherent contempt, which requires a trial in the House or the Senate, as “time consuming and not very
effective”). Congress has arrested two executive branch officials in the exercise of its inherent contempt power. In effective”). Congress has arrested two executive branch officials in the exercise of its inherent contempt power. In
1879, the House of Representatives’s Sergeant at Arms arrested and brought before the bar of the House George F. 1879, the House of Representatives’s Sergeant at Arms arrested and brought before the bar of the House George F.
Seward, Seward, ~~United States~~U.S. Minister to China. The House ordered Seward’s arrest due to his refusal to produce or testify Minister to China. The House ordered Seward’s arrest due to his refusal to produce or testify
about books in his possession that allegedly contained evidence that he had stolen money from the Shanghai consulate about books in his possession that allegedly contained evidence that he had stolen money from the Shanghai consulate
while serving as Consul General there. Josh Chafetz, while serving as Consul General there. Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083, , 76 U. CHI. L. REV. 1083,
1135–37 (2009). 1135–37 (2009). ~~And in~~In 1916, the House’s Sergeant at Arms arrested H. Snowden Marshall, 1916, the House’s Sergeant at Arms arrested H. Snowden Marshall, ~~United States~~U.S. District District
Attorney for the Southern District of New York, after Marshall wrote and publicly disclosed a “defamatory and Attorney for the Southern District of New York, after Marshall wrote and publicly disclosed a “defamatory and
insulting” letter directed to the House subcommittee investigating him for misconduct. insulting” letter directed to the House subcommittee investigating him for misconduct. Id. at 1137–38 (quoting at 1137–38 (quoting
Marshall v. Gordon, 243 U.S. 521, 532 (1917)) (internal quotation marks omitted). The Supreme Court later ordered Marshall v. Gordon, 243 U.S. 521, 532 (1917)) (internal quotation marks omitted). The Supreme Court later ordered
Marshall’s release, holding that his letter “was not intrinsic to the right of the House to preserve the means of Marshall’s release, holding that his letter “was not intrinsic to the right of the House to preserve the means of
discharging its legislative duties” and, therefore, was outside the scope of the inherent contempt power. discharging its legislative duties” and, therefore, was outside the scope of the inherent contempt power. Marshall, 243 , 243
U.S. at 546, 548. U.S. at 546, 548.
~~181~~194 Garvey, Garvey, Congress’s Contempt Power, , supra nonote ~~160~~173, at 12 (writing that, because of its drawbacks (e.g., at 12 (writing that, because of its drawbacks (e.g.,
inefficiency and unseemliness), “the inherent contempt process has not been used by either [house of Congress] since inefficiency and unseemliness), “the inherent contempt process has not been used by either [house of Congress] since
1935”) (citing 4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, § 17, at 139 n.7 (1977)). 1935”) (citing 4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, § 17, at 139 n.7 (1977)).
H.R. Res. 1029, introduced in the 116th Congress, would have amended House rules to create a process by which the H.R. Res. 1029, introduced in the 116th Congress, would have amended House rules to create a process by which the
inherent contempt power could be used to impose fines on those that refuse to comply with a committee subpoena. inherent contempt power could be used to impose fines on those that refuse to comply with a committee subpoena.
~~182 U.S. CONST. art. I, § 2, cl. 5 (“The House of Representatives . . . shall have the sole Power of Impeachment.”);~~ ~~id.~~
~~art. II, § 4 (“The President, Vice President and all civil Officers of the United States, shall be removed from Office on~~
~~Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”).~~
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federal government officials for “high Crimes and Misdemeanors.”195 Moreover, it may initiate certain types of civil actions in federal court, including to enforce compliance with congressional subpoenas.196~~subpoenas.183~~ (The Senate’s role in the impeachment process and its ability to enforce (The Senate’s role in the impeachment process and its ability to enforce
congressional subpoenas through civil litigation is covered separately in this report.congressional subpoenas through civil litigation is covered separately in this report.~~184~~197) )
Resolutions of Inquiry
Under House Rule XIII, the House may request certain information from executive branch Under House Rule XIII, the House may request certain information from executive branch
officials through resolutions of inquiry.officials through resolutions of inquiry.~~185~~198 Resolutions of inquiry are simple resolutions that seek Resolutions of inquiry are simple resolutions that seek
factual information in the possession of the executive branch. They are limited in their effect, factual information in the possession of the executive branch. They are limited in their effect,
however, given that they are neither legally binding on the agency nor judicially enforceable; however, given that they are neither legally binding on the agency nor judicially enforceable;
instead, “[t]he effectiveness of such a resolution derives from comity between the branches of instead, “[t]he effectiveness of such a resolution derives from comity between the branches of
government rather than from any elements of compulsion.”government rather than from any elements of compulsion.”~~186~~199 Resolutions of inquiry are given Resolutions of inquiry are given
privileged status on the House floor if they are directed toward the head of a privileged status on the House floor if they are directed toward the head of a ~~department187~~department200 and and
seek available facts, rather than opinions.seek available facts, rather than opinions.~~188~~201
Resolutions of inquiry are most typically used to request documents or information that pertains Resolutions of inquiry are most typically used to request documents or information that pertains
to foreign affairs, defense, or intelligence matters.to foreign affairs, defense, or intelligence matters.~~189~~202 They traditionally “request” information They traditionally “request” information
from the President, while other officials are usually “directed” to provide the sought-after from the President, while other officials are usually “directed” to provide the sought-after
information.information.~~190~~203 Although resolutions of inquiry are not legally enforceable, they are often phrased Although resolutions of inquiry are not legally enforceable, they are often phrased
in mandatory terms when directed to persons other than the President. in mandatory terms when directed to persons other than the President.
~~Impeachment~~
~~The Constitution establishes a bifurcated process for impeachment and removal, with the~~ 195 U.S. CONST. art. I, § 2, cl. 5 (“The House House
of Representatives of Representatives ~~accorded the “sole Power” to impeach federal government officials,191 and the~~
~~Senate given “the sole Power to try all Impeachments,”192 with the immediate consequence of~~

~~183~~. . . shall have the sole Power of Impeachment.”); id. art. II, § 4 (“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”). 196 See, e.g., Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 64 (D.D.C. 2008) (holding that the court had , Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 64 (D.D.C. 2008) (holding that the court had
jurisdiction to hear action to enforce congressional subpoenas because Congress’s “subpoena power derives implicitly jurisdiction to hear action to enforce congressional subpoenas because Congress’s “subpoena power derives implicitly
from Article I of the Constitution”). The Senate’s role in the impeachment process and its ability to enforce from Article I of the Constitution”). The Senate’s role in the impeachment process and its ability to enforce
congressional subpoenas through civil litigation are covered separately in this report.congressional subpoenas through civil litigation are covered separately in this report.
~~184~~197 See infra “Tools Available to the Senate.”
~~185~~198 HOUSE RULE XIII, cl. 7. While the Senate is not prohibited from passing resolutions of inquiry, modern Senate HOUSE RULE XIII, cl. 7. While the Senate is not prohibited from passing resolutions of inquiry, modern Senate
parliamentary practice does not provide for their use. The tool was last used by the Senate in 1926. parliamentary practice does not provide for their use. The tool was last used by the Senate in 1926. See CRS Report CRS Report
R40879, R40879, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017, by Christopher M. Davis, at 1 n.2 , by Christopher M. Davis, at 1 n.2
(noting that resolutions of inquiry are not common in the Senate, and that one was last used by that body in 1926) (noting that resolutions of inquiry are not common in the Senate, and that one was last used by that body in 1926)
[hereinafter Davis, [hereinafter Davis, Resolutions of Inquiry] (citing RIDDICK’S SENATE PROCEDURE: PRECEDENTS AND PRACTICES 799, ] (citing RIDDICK’S SENATE PROCEDURE: PRECEDENTS AND PRACTICES 799,
1205 (1992)). 1205 (1992)).
~~186~~199 4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, 4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, at ch. 15, § 2, at 2304 (2d ed. 1994) ch. 15, § 2, at 2304 (2d ed. 1994)
[hereinafter 4 DESCHLER’S PRECEDENTS].[hereinafter 4 DESCHLER’S PRECEDENTS].
~~187~~ 200 HOUSE RULE XIII, cl. 7; HOUSE RULE XIII, cl. 7; see CHARLES W. JOHNSON ET AL., HOUSE PRACTICE, ch. 49, § 4, at 847 (2017); Davis, CHARLES W. JOHNSON ET AL., HOUSE PRACTICE, ch. 49, § 4, at 847 (2017); Davis,
Resolutions of Inquiry, , supra no note ~~185~~198, at 6. at 6.
~~188~~201 JOHNSON JOHNSON ~~ET AL.~~, , supra ~~note 187,~~ note 200, at Ch. 49, § 4, 847. at Ch. 49, § 4, 847.
~~189~~202 See, e.g., H.R. Res. 243, 116th Cong. (2019); CRS Report RL30240, H.R. Res. 243, 116th Cong. (2019); CRS Report RL30240, Congressional Oversight Manual, coordinated , coordinated
by by ~~Christopher M. Davis~~Ben Wilhelm, Todd Garvey, and , Todd Garvey, and ~~Ben Wilhelm~~Christopher M. Davis [hereinafter Davis et al., [hereinafter Davis et al., Congressional Oversight Manual] ]
at 81at 81-2–82; Davis, ; Davis, Resolutions of Inquiry, , supra no note ~~185~~198, at 4. at 4.
~~190~~203 4 DESCHLER’S PRECEDENTS, 4 DESCHLER’S PRECEDENTS, supra no note ~~186,~~ at 199, ch. 15, § 2, ch. 15, § 2, at 2304. 2304. See, e.g., H.R. Res. , H.R. Res. 1502, 117th Cong. (2022) (requesting the President and directing the Attorney General to provide documents to the House); H.R. Res. 80, 104th Cong. (1995) 80, 104th Cong. (1995)
(requesting that the President supply the House with documents pertaining to the Mexican economy “if not inconsistent (requesting that the President supply the House with documents pertaining to the Mexican economy “if not inconsistent
with the public interest”). with the public interest”). ~~On June 28,~~In 2018, the House agreed to a resolution “insist[ing] that . . . the Department of 2018, the House agreed to a resolution “insist[ing] that . . . the Department of
Justice fully comply with” subpoenas and other requests of the House Permanent Select Committee and Committee on Justice fully comply with” subpoenas and other requests of the House Permanent Select Committee and Committee on
the Judiciary concerning “potential violations of the Foreign Intelligence Surveillance Act by personnel of the the Judiciary concerning “potential violations of the Foreign Intelligence Surveillance Act by personnel of the
Department of Justice and related matters.” H.R. Res. 970, 115th Cong. (2018). Department of Justice and related matters.” H.R. Res. 970, 115th Cong. (2018).
~~191 U.S. CONST. art. I, § 2, cl. 5.~~
~~192 Id. § 3, cl. 6.~~
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Impeachment The Constitution establishes a bifurcated process for impeachment and removal, with the House of Representatives accorded the “sole Power” to impeach federal government officials204 and the Senate given “the sole Power to try all Impeachments,”205 with the immediate consequence of Senate conviction being an official’s removal from office.Senate conviction being an official’s removal from office.~~193~~206 (The Senate’s power to try (The Senate’s power to try
impeachments is discussed below.impeachments is discussed below.~~194~~207) The purpose underlying the impeachment process “is not ) The purpose underlying the impeachment process “is not
punishment; rather, its function is primarily to maintain constitutional government.”punishment; rather, its function is primarily to maintain constitutional government.”~~195~~208
The Constitution defines who may be impeached and stipulates the types of misconduct that rise The Constitution defines who may be impeached and stipulates the types of misconduct that rise
to the level of impeachable offenses. First, Article II, Section 4 permits only the impeachment of to the level of impeachable offenses. First, Article II, Section 4 permits only the impeachment of
“[t]he President, Vice President and all civil Officers of the United States.”“[t]he President, Vice President and all civil Officers of the United States.”~~196~~209 While the While the
Constitution does not define the term “civil Officers,” past practice signifies that Congress Constitution does not define the term “civil Officers,” past practice signifies that Congress
understands the term to embrace federal judges and Cabinet-level executive branch officials.understands the term to embrace federal judges and Cabinet-level executive branch officials.~~197~~210
Congress has never impeached a non-Cabinet level official in the executive branch, so there is Congress has never impeached a non-Cabinet level official in the executive branch, so there is
some question whether such officials are “civil Officers.”some question whether such officials are “civil Officers.”~~198~~211 While untested, non-officer While untested, non-officer
employees of the federal government (i.e., most individuals employed in the federal bureaucracy employees of the federal government (i.e., most individuals employed in the federal bureaucracy
who are not subject to appointment by the President or departmental heads) probably are not who are not subject to appointment by the President or departmental heads) probably are not

~~193~~204 U.S. CONST. art. I, § 2, cl. 5. 205 Id. § 3, cl. 6. 206 Id. art. II, § 4. art. II, § 4.
~~194~~207 See infra “The Senate’s Role in Impeachment: Trial and Removal.”
~~195~~208 WM. HOLMES BROWN ET AL., A GUIDE TO THE RULES, PRECEDENTS, AND PROCEDURES OF THE HOUSE, ch. 27, § 1, at WM. HOLMES BROWN ET AL., A GUIDE TO THE RULES, PRECEDENTS, AND PROCEDURES OF THE HOUSE, ch. 27, § 1, at
591 (2011). 591 (2011).
~~196~~ ~~Id.~~209 U.S. CONST. art. II, § 4. art. II, § 4.
~~197~~210 See BROWN BROWN ~~ET AL.~~, , supra no note ~~195~~208, at ch. 27, § 2, 593. at ch. 27, § 2, 593.
~~198~~211 In determining who is a “civil Officer of the United States,” it is sometimes helpful to draw from Appointments In determining who is a “civil Officer of the United States,” it is sometimes helpful to draw from Appointments
Clause jurisprudence. Clause jurisprudence. See CRS Report R44260, CRS Report R44260, Impeachment and Removal, by Jared P. Cole and Todd Garvey, at 5. , by Jared P. Cole and Todd Garvey, at 5.
As discussed above, As discussed above, see supra “Limitations Imposed by the Appointments Clause,” the Appointments Clause ” the Appointments Clause
establishes the methods for appointing “Officers of the United States,” U.S. CONST. art. II, § 2, cl. 2. It is likely that establishes the methods for appointing “Officers of the United States,” U.S. CONST. art. II, § 2, cl. 2. It is likely that
principal “Officers of the United States”—those who must be appointed by the President with the advice and consent of principal “Officers of the United States”—those who must be appointed by the President with the advice and consent of
the Senate and who are generally subject only to the President’s supervision—are impeachable, whether or not they the Senate and who are generally subject only to the President’s supervision—are impeachable, whether or not they
occupy a Cabinet-level position. “[I]nferior Officers”—those “Officers of the United States” whose appointments occupy a Cabinet-level position. “[I]nferior Officers”—those “Officers of the United States” whose appointments
Congress may vest in the President alone, a department head, or “the Courts of Law,” U.S. CONST. art. II, § 2, cl. 3, and Congress may vest in the President alone, a department head, or “the Courts of Law,” U.S. CONST. art. II, § 2, cl. 3, and
who are generally subject to supervision by principal officers, Edmond v. United States, 520 U.S. 651, 663 (1997)—who are generally subject to supervision by principal officers, Edmond v. United States, 520 U.S. 651, 663 (1997)—
may also qualify as “civil Officers of the United States.” may also qualify as “civil Officers of the United States.” Cf. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES § 790 (1833) (opining that “THE UNITED STATES § 790 (1833) (opining that “all officers of the United states [] who hold their appointments under officers of the United states [] who hold their appointments under
the national government, whether their duties are executive or judicial, in the highest or in the lowest departments, with the national government, whether their duties are executive or judicial, in the highest or in the lowest departments, with
the exception of officers in the army and navy, are properly civil officers within the meaning of the constitution, and the exception of officers in the army and navy, are properly civil officers within the meaning of the constitution, and
liable to impeachment”) (emphasis added). However, this proposition is far from certain, and some historical evidence liable to impeachment”) (emphasis added). However, this proposition is far from certain, and some historical evidence
may suggest the contrary. may suggest the contrary. See, e.g., Statement of Archibald Maclaine, North Carolina Convention on the Adoption of , Statement of Archibald Maclaine, North Carolina Convention on the Adoption of
the U.S. Constitution, the U.S. Constitution, cited in Raoul Berger, Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 YALE L.J. 1475, , 79 YALE L.J. 1475,
1510 (1970) (remarking that “[i]t appears to me . . . the most horrid ignorance to suppose that every officer, however 1510 (1970) (remarking that “[i]t appears to me . . . the most horrid ignorance to suppose that every officer, however
trifling his office, is to be impeached for every petty offense . . . . I hope every gentleman . . . must see plainly that trifling his office, is to be impeached for every petty offense . . . . I hope every gentleman . . . must see plainly that
impeachments cannot extend to inferior officers of the United States”). For more information on who is subject to impeachments cannot extend to inferior officers of the United States”). For more information on who is subject to
impeachment, see Cole & Garvey, impeachment, see Cole & Garvey, supra, at 3-7. , at 3-7.
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subject to impeachment. subject to impeachment.~~199~~212 Nor have Members of Nor have Members of ~~Congress200~~Congress213 or military or military ~~officers201~~officers214 been been
considered “civil Officers of the United States” under Article II, Section 4. considered “civil Officers of the United States” under Article II, Section 4.
Second, the Constitution specifies the types of behavior that justify impeachment. A “civil Second, the Constitution specifies the types of behavior that justify impeachment. A “civil
Officer” is not subject to impeachment (and removal) unless the officer has committed “Treason, Officer” is not subject to impeachment (and removal) unless the officer has committed “Treason,
Bribery, or other high Crimes and Misdemeanors.”Bribery, or other high Crimes and Misdemeanors.”~~202~~215 Treason and bribery are well-defined Treason and bribery are well-defined
actions,actions,~~203~~216 but there is no definition of “high Crimes and Misdemeanors” in the Constitution or but there is no definition of “high Crimes and Misdemeanors” in the Constitution or
statute. Congress has afforded the term a broad reading. For example, the House has described statute. Congress has afforded the term a broad reading. For example, the House has described
“high Crimes and Misdemeanors” as embracing “misconduct that damages the state and the “high Crimes and Misdemeanors” as embracing “misconduct that damages the state and the
operations of government institutions.”operations of government institutions.”~~204~~217 While grounds for impeachment “do not all fit neatly While grounds for impeachment “do not all fit neatly
and logically into categories,”and logically into categories,”~~205~~218 there are at least three general categories of conduct that, based there are at least three general categories of conduct that, based
on past congressional practice, are thought to constitute grounds for impeachment:on past congressional practice, are thought to constitute grounds for impeachment:~~206~~219 (1) (1)
exceeding or abusing the powers of office;exceeding or abusing the powers of office;~~207~~220 (2) behavior incompatible with the functions and (2) behavior incompatible with the functions and
purpose of office;purpose of office;~~208~~221 and (3) misuse of office for improper purpose or for personal gain. and (3) misuse of office for improper purpose or for personal gain.~~209~~222
While a powerful tool to influence executive branch action—and one that requires only a simple While a powerful tool to influence executive branch action—and one that requires only a simple
majority voting in favor—decisions by the House to impeach executive officials have been rare. majority voting in favor—decisions by the House to impeach executive officials have been rare.
In total, only three Presidents and one member of the Cabinet have been impeached by the In total, only three Presidents and one member of the Cabinet have been impeached by the
House.House.~~210~~223 None of those officials were convicted in the Senate. None of those officials were convicted in the Senate.

~~199~~212 The Supreme Court, in interpreting the Appointments Clause, has distinguished between officers (both principal and The Supreme Court, in interpreting the Appointments Clause, has distinguished between officers (both principal and
inferior), who exercise “significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U.S. 1, inferior), who exercise “significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U.S. 1,
126 (1976) (per curiam), and employees, or non-officers who are “lesser functionaries subordinate to the officers of the 126 (1976) (per curiam), and employees, or non-officers who are “lesser functionaries subordinate to the officers of the
United States,” United States,” id. at 126 n.162. . at 126 n.162. See supra “Limitations Imposed by the Appointments Clause.” Assuming, just as the ” Assuming, just as the
previous footnote does, that Appointments Clause jurisprudence serves as a guide in deciding who is a civil officer previous footnote does, that Appointments Clause jurisprudence serves as a guide in deciding who is a civil officer
subject to impeachment, it would appear that “employees,” as non-officers, are not subject to impeachment. subject to impeachment, it would appear that “employees,” as non-officers, are not subject to impeachment.
~~200~~213 While the House did impeach Senator William Blount in 1797, the Senate ultimately determined that it lacked While the House did impeach Senator William Blount in 1797, the Senate ultimately determined that it lacked
jurisdiction to try him. BROWNjurisdiction to try him. BROWN ~~ET AL.~~, , supra no note ~~195,~~ at 208, ch. 27, § 4, ch. 27, § 4, at 596. Blount’s impeachment stemmed from his 596. Blount’s impeachment stemmed from his
plan “to launch a military expedition that would wrest Florida and Louisiana from Spain and deliver it to England at a plan “to launch a military expedition that would wrest Florida and Louisiana from Spain and deliver it to England at a
time when both were at war and the United States was neutral.” RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL time when both were at war and the United States was neutral.” RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL
PROBLEMS 214 (1973). The House has never again voted to impeach a Member of Congress; accordingly, the Blount PROBLEMS 214 (1973). The House has never again voted to impeach a Member of Congress; accordingly, the Blount
impeachment appears to stand for the proposition that Members of Congress are not “civil Officers of the United impeachment appears to stand for the proposition that Members of Congress are not “civil Officers of the United
States” subject to impeachment. CURRIE, States” subject to impeachment. CURRIE, supra ~~note 14, at 281.~~
~~201 BROWN ET AL.~~note 16, at 281. 214 BROWN, , supra no note ~~195,~~ at 208, ch. 27, § 2, ch. 27, § 2, at 592. 592.
~~202~~215 U.S. CONST. art. II, § 4. U.S. CONST. art. II, § 4.
~~203~~216 See id. art. III, § 3, cl. 1 (treason); 18 U.S.C. §§ 201 (bribery of public officials and witnesses), 2381 (treason). art. III, § 3, cl. 1 (treason); 18 U.S.C. §§ 201 (bribery of public officials and witnesses), 2381 (treason).
~~204~~217 H.R. REP. NO. 100-810, at 6 (1988). H.R. REP. NO. 100-810, at 6 (1988).
~~205~~218 See STAFF OF H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT STAFF OF H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT
21 (Comm. Print 1974) [hereinafter CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT]. 21 (Comm. Print 1974) [hereinafter CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT].
~~206~~219 Id. at 18. at 18.
~~207~~220 For example, President Andrew Johnson was impeached in 1868 for, among other things, removing Secretary of For example, President Andrew Johnson was impeached in 1868 for, among other things, removing Secretary of
War Edwin Stanton from office in violation of the Tenure of Office Act, which prohibited the President from removing War Edwin Stanton from office in violation of the Tenure of Office Act, which prohibited the President from removing
Members of his Cabinet without Senate approval.Members of his Cabinet without Senate approval. Id. Such removal restrictions were later declared unconstitutional by . Such removal restrictions were later declared unconstitutional by
the Supreme Court in the Supreme Court in Myers v. United States. 272 U.S. 52 (1926); . 272 U.S. 52 (1926); see supra “Limitations Imposed by Principles of
Presidential Control.”
~~208~~221 Judge John Pickering’s impeachment is an example of this category. Judge Pickering was impeached in 1803 for, Judge John Pickering’s impeachment is an example of this category. Judge Pickering was impeached in 1803 for,
among other things, “appearing on the bench during [a] trial in a state of intoxication and using profane language.” among other things, “appearing on the bench during [a] trial in a state of intoxication and using profane language.”
BROWN ET AL., BROWN ET AL., supra no note ~~195~~208, at ch. 27, § 4, 597. at ch. 27, § 4, 597.
~~209~~222 See infra no note ~~210~~223 (discussing Secretary of War William Belknap’s impeachment in 1876 for appointing a trader to (discussing Secretary of War William Belknap’s impeachment in 1876 for appointing a trader to
a position at a military post in return for payment.)a position at a military post in return for payment.)
~~210~~223 Andrew Johnson, William Clinton, and Donald Trump Andrew Johnson, William Clinton, and Donald Trump (twice) have been the only Presidents to be impeached. William W. have been the only Presidents to be impeached. William W.
Belknap, Secretary of War under President Ulysses S. Grant, Belknap, Secretary of War under President Ulysses S. Grant, ~~was~~is the only the only ~~Cabinet member to~~ other executive branch official to be impeached. In 1876, be impeached. In 1876,
the House impeached Belknap for accepting payments in return for granting an appointment to the House impeached Belknap for accepting payments in return for granting an appointment to a trading post. See
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House Lawsuits
The House has also used the federal courts as a way to direct agency action. The House has also used the federal courts as a way to direct agency action.~~211~~224 That said, because That said, because
of standing and other justiciability issues,of standing and other justiciability issues,225 the House’s use of the courts as a conduit for the House’s use of the courts as a conduit for
controlling agencies appears principally related to subpoena controlling agencies appears principally related to subpoena ~~enforcement,~~ enforcement226—and possiblyand possibly to challenges to a limited a limited
class of executive class of executive ~~expenditures,~~ expenditures227—rather than to broader disagreements over the Executive’s rather than to broader disagreements over the Executive’s
implementation of the law.implementation of the law.~~212~~
~~As a threshold matter,~~ 228 House subpoenaHouse subpoena -enforcement lawsuits generally must be authorized in one enforcement lawsuits generally must be authorized in one
form or another.form or another.~~213~~ 229 That authorization has often been provided through a simple House resolution That authorization has often been provided through a simple House resolution
granting the committee that issued the subpoena the authority to seek a court order declaring that granting the committee that issued the subpoena the authority to seek a court order declaring that
~~the subpoena recipient is legally required to comply with the demand for information.214~~
~~However, the House has authorized subpoena enforcement suits in other ways, including through~~
~~the Bipartisan Legal Advocacy Group.215~~

the subpoena a trading post. See CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT, CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT, supra no note ~~205~~218, at 20. Belknap retired two hours before at 20. Belknap retired two hours before
he was impeached. Jonathan Turley, he was impeached. Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 , 49
DUKE L.J. 1, 53 (1999). After a five-month trial, the Senate voted to acquit the former Secretary of War. 3 HIND’S DUKE L.J. 1, 53 (1999). After a five-month trial, the Senate voted to acquit the former Secretary of War. 3 HIND’S
PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2444–PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2444–~~2468~~68, at 902–947 (1907); Turley, , at 902–947 (1907); Turley,
supra, at 54. , at 54.
~~211~~224 For a more thorough discussion of Congress’s ability to participate in litigation see CRS Report R45636, For a more thorough discussion of Congress’s ability to participate in litigation see CRS Report R45636,
Congressional Participation in Litigation: Article III and Legislative Standing~~, by Kevin M. Lewis.~~
~~212 See, e.g., Comm. on the Judiciary of the United States House of Representatives v. McGahn, 968 F.3d 755, 760~~
~~(D.C. Cir. 2020) (holding that the House has standing to seek judicial enforcement of its subpoenas); Comm. See, e.g.,~~
~~Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 3 (D.D.C. 2013) (exercising jurisdiction over a~~
~~civil suit filed by a House committee and ordering compliance with the committee subpoena); Comm. on the Judiciary~~
~~v. Miers, 558 F. Supp. 2d 53, 65–99 (D.D.C. 2008) (same). But see U.S. House of Representatives v. Burwell, 130 F.~~
~~Supp. 3d 53, 58 (D.D.C. 2015) (exercising jurisdiction over a civil suit filed by the House of Representatives to enforce~~
~~a violation of the Appropriations Clause).~~. 225 The D.C. Circuit The D.C. Circuit ~~has been wrestling~~wrestled with the House’s authority to judicially with the House’s authority to judicially
enforce its subpoenas in the enforce its subpoenas in the ~~pending~~ case of case of Committee on the Judiciary v. McGahn. In . In McGahn, the House initiated a , the House initiated a
suit to enforce a committee subpoena for testimony from former White House Counsel Don McGahn. A three-judge suit to enforce a committee subpoena for testimony from former White House Counsel Don McGahn. A three-judge
panel initially dismissed the case. Breaking from prior district court decisions, the circuit panel held that the judiciary panel initially dismissed the case. Breaking from prior district court decisions, the circuit panel held that the judiciary
“lack[ed] authority to resolve disputes between the Legislative and Executive Branches until their actions harm an “lack[ed] authority to resolve disputes between the Legislative and Executive Branches until their actions harm an
entity ‘beyond the [Federal] Government.’” Comm. on entity ‘beyond the [Federal] Government.’” Comm. on the Judiciary v. ~~the Judiciary of the United States House of Representatives v.~~
McGahn, 951 F.3d 510, 516 (D.C. Cir. 2020). That opinionMcGahn, 951 F.3d 510, 516 (D.C. Cir. 2020). That opinion~~, however,~~ was reversed by an en banc panel of the D.C. was reversed by an en banc panel of the D.C.
Circuit, which held that neither separation of powers considerations nor principles of standing barred the courts from Circuit, which held that neither separation of powers considerations nor principles of standing barred the courts from
hearing the House's lawsuit. 968 F.3d 755, 760hearing the House's lawsuit. 968 F.3d 755, 760-–61 (D.C. Cir. 2020). On remand61 (D.C. Cir. 2020). On remand~~, however~~, the three-judge panel again , the three-judge panel again
rejected the House's lawsuit, this time holding that the House lacked a cause of action. 973 F.3d 121, 123 (D.C. Cir. rejected the House's lawsuit, this time holding that the House lacked a cause of action. 973 F.3d 121, 123 (D.C. Cir.
2020). 2020). ~~That opinion has been vacated and is pending appeal back to the en banc D.C. Circuit.~~Like the first panel decision on standing, this second panel decision was vacated after it was accepted for en banc review. Comm. on the Judiciary v. McGahn, No. 19-5331, 2020 U.S. No. 19-5331, 2020 U.S.
App. LEXIS 32573 (D.C. Cir. Oct. 15, 2020). App. LEXIS 32573 (D.C. Cir. Oct. 15, 2020). ~~On May 11, 2021, the parties announced that they had reached an~~
~~“agreement in principle on an accommodation” and will ask the circuit court to remove the case from the oral argument~~
~~calendar. Joint Status Report at 1, Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. May, 5, 2021).~~
~~213 See McGahn, 968 F.3d at 775-77; Holder, 979 F. Supp. 2d at 17; Miers, 558 F. Supp. 2d at 64. See also Lewis,~~
supra no~~te 211~~While that appeal was pending, the parties reached a settlement under which Mr. McGahn sat for a closed-door transcribed interview. See Agreement Concerning Accommodation, Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. May 12, 2021). Pursuant to that agreement, the D.C. Circuit fully vacated the panel opinion after finding that the committee lacked a cause of action, but the en banc decision holding that the committee had standing to pursue these subpoena enforcement claims remained in place. Comm. on the Judiciary v. McGahn, No. 19-5331, 2021 U.S. App. LEXIS 20759 (D.C. Cir. July 13, 2021). As such, the ultimate precedential impact of the McGahn litigation appears to have been to remove the standing and separation of powers hurdles to House committees utilizing the judiciary to enforce their subpoenas, at least in the D.C. Circuit. 226 See, e.g., McGahn, 968 F.3d at 760 (holding that the House has standing to seek judicial enforcement of its subpoenas); Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 3 (D.D.C. 2013) (exercising jurisdiction over a civil suit filed by a House committee and ordering compliance with the committee subpoena); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 65–99 (D.D.C. 2008) (same). 227 See, e.g., U.S. House of Representatives v. Mnuchin, 976 F.3d 1 (D.C. Cir. 2020) (finding that the House has standing to challenge spending in violation of the Appropriations Clause), vacated sub nom. Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021); U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015) (exercising jurisdiction over a civil suit filed by the House to enforce a violation of the Appropriations Clause). 228 See Mnuchin, 976 F.3d at 15 (explaining that “Congress does not have standing to litigate a claim that the President [or an agency] has exceed his statutory authority”). 229 See McGahn, 968 F.3d at 775-77; Holder, 979 F. Supp. 2d at 17; Miers, 558 F. Supp. 2d at 64. See also Lewis, supra note 224 at 24 (“Courts have routinely concluded that congressional plaintiffs who obtain authorization to sue at 24 (“Courts have routinely concluded that congressional plaintiffs who obtain authorization to sue
before initiating litigation are significantly more likely to have standing.”). One court has described the presence of before initiating litigation are significantly more likely to have standing.”). One court has described the presence of
authorization as a “key factor” in determining whether a congressional plaintiff has standing to assert an institutional authorization as a “key factor” in determining whether a congressional plaintiff has standing to assert an institutional
injury. injury. Miers, 558 F. Supp. 2d at 71. In , 558 F. Supp. 2d at 71. In Raines v. Byrd, the Supreme Court severely limited the ability of individual , the Supreme Court severely limited the ability of individual
Member to use lawsuits to challenge agency action absent authorization from their parent body. 521 U.S. 811, 829–30 Member to use lawsuits to challenge agency action absent authorization from their parent body. 521 U.S. 811, 829–30
(1997). (1997). See infra “Tools for Individual Members.”
~~214 See, e.g., H.R. Res. 706, 112th Cong. (2012); H.R. Res. 980 110th Cong. (2008).~~
~~215 See H.R. Res. 430, 116th Cong. (2019) (resolving that “the chair of each standing and permanent select committee,~~
~~when authorized by the Bipartisan Legal Advisory Group, retains the ability to initiate or intervene in any judicial~~
~~proceeding before a Federal court on behalf of such committee, to seek declaratory judgments and any and all ancillary~~
~~relief, including injunctive relief, affirming the duty of the recipient of any subpoena duly issued by that committee to~~
~~comply with that subpoena”).~~
~~Congressional Research Service~~

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~~Congress’s Authority to Influence and Control Executive Branch Agencies~~
Congressional Research Service 27 Congress’s Authority to Influence and Control Executive Branch Agencies recipient is legally required to comply with the demand for information.230 However, the House has authorized subpoena enforcement suits in other ways, including through the Bipartisan Legal Advocacy Group.231
Civil enforcement cases brought by an authorized committee, especially if triggered by an agency Civil enforcement cases brought by an authorized committee, especially if triggered by an agency
official’s refusal to produce documents or testimony, generally require a court to evaluate both official’s refusal to produce documents or testimony, generally require a court to evaluate both
Congress’s oversight powers and the official’s articulated justification for non-compliance with Congress’s oversight powers and the official’s articulated justification for non-compliance with
the subpoena.the subpoena.~~216~~232 This typically This typically ~~will~~would include an evaluation of whether the subpoena was validly include an evaluation of whether the subpoena was validly
issued and whether the witness has asserted a defense—such as a constitutionally based right or issued and whether the witness has asserted a defense—such as a constitutionally based right or
privilege—that would excuse compliance with the subpoena.privilege—that would excuse compliance with the subpoena.~~217~~233 If the lawsuit succeeds, the court If the lawsuit succeeds, the court
~~will~~would generally order compliance with the subpoena and disclosure of the information. For generally order compliance with the subpoena and disclosure of the information. For
example, in 2016, the D.C. federal district court issued an opinion in example, in 2016, the D.C. federal district court issued an opinion in Committee on Oversight and
Government Reform v. Lynch instructing DOJ to comply with a House committee subpoena. instructing DOJ to comply with a House committee subpoena.~~218~~234
In addition to subpoena enforcement lawsuits, a federal district court has held that the House has In addition to subpoena enforcement lawsuits, a federal district court has held that the House has
standing to challenge expenditures of funds made without an appropriation from Congress.standing to challenge expenditures of funds made without an appropriation from Congress.~~219~~235 In In
United States House of Representatives v. Burwell, the district court held that if an agency’s , the district court held that if an agency’s
expenditure of funds is taken in violation of the “specific proscription” in Article I that “[n]o expenditure of funds is taken in violation of the “specific proscription” in Article I that “[n]o
Money shall be drawn from the Treasury, but in Consequence of Appropriations made by LawMoney shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,”
” (Appropriations Clause), then the House has standing to remedy that constitutional violation.then the House has standing to remedy that constitutional violation.~~220~~ 236 However, that same However, that same
opinion also held that the House does not suffer an injury adequate to obtain standing when it opinion also held that the House does not suffer an injury adequate to obtain standing when it
challenges an agency’s “implementation, interpretation, or execution” of the challenges an agency’s “implementation, interpretation, or execution” of the law.237 The U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) adopted a similar line of reasoning in United States House of Representatives v. Mnuchin, holding that the House had standing to challenge the President’s transfer of funds to build segments of a border wall in possible violation of the Appropriations Clause.238 As in Burwell, the Mnuchin opinion made clear that the House’s standing was uniquely limited to claims challenging executive branch spending 230 See, e.g., H.R. Res. 706, 112th Cong. (2012); H.R. Res. 980 110th Cong. (2008). 231 See H.R. Res. 430, 116th Cong. (2019) (resolving that “the chair of each standing and permanent select committee, when authorized by the Bipartisan Legal Advisory Group, retains the ability to initiate or intervene in any judicial proceeding before a Federal court on behalf of such committee, to seek declaratory judgments and any and all ancillary relief, including injunctive relief, affirming the duty of the recipient of any subpoena duly issued by that committee to comply with that subpoena”). 232~~law.221~~
~~Tools Available to the Senate~~
~~Some oversight tools are available exclusively to the Senate. Through its “advice and consent”~~
~~responsibility, the Senate plays an integral role in the performance of two constitutionally~~
~~prescribed executive functions—the appointment of important government officials and~~
~~completion of treaties between the United States and foreign nations or international bodies.222 In~~
~~addition, if an official is impeached by the House, the Senate has the exclusive power to try and,~~
~~upon conviction, remove the official from office.223 And like the House, the Senate may seek to~~
~~enforce congressional subpoenas through civil actions in federal court, but unlike the House, the~~
~~Senate practice is authorized and shaped by federal statute.~~

~~216~~ See Miers, 558 F. Supp. 2d at 56 (noting that a court must stand “ready to fulfill the essential judicial role to ‘say , 558 F. Supp. 2d at 56 (noting that a court must stand “ready to fulfill the essential judicial role to ‘say
what the law is’ on specific assertions of [] privilege that may be presented”). what the law is’ on specific assertions of [] privilege that may be presented”).
~~217~~233 See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974)
(focusing on the “sufficiency of the Committee’s showing of need”); Comm. on Oversight & Gov’t Reform v. Lynch, (focusing on the “sufficiency of the Committee’s showing of need”); Comm. on Oversight & Gov’t Reform v. Lynch,
156 F. Supp. 3d 101, 104 (D.D.C. 2016) (focusing on the various privileges asserted by the agency). 156 F. Supp. 3d 101, 104 (D.D.C. 2016) (focusing on the various privileges asserted by the agency).
~~218~~234 Lynch, 156 F. Supp. 3d at 104, 107 (holding that the agency’s arguments for confidentiality must yield to the , 156 F. Supp. 3d at 104, 107 (holding that the agency’s arguments for confidentiality must yield to the
committee’s need for the information). committee’s need for the information).
~~219 United States~~235 U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015). Although the court’s House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015). Although the court’s
holding does not explicitly apply to the Senate, the court’s reasoning potentially could extend to lawsuits authorized by holding does not explicitly apply to the Senate, the court’s reasoning potentially could extend to lawsuits authorized by
that body, given the court’s characterization of any injury stemming from an Appropriations Clause violation being that body, given the court’s characterization of any injury stemming from an Appropriations Clause violation being
“arguably suffered by the House and Senate alike,” as they each share in the power of the purse. “arguably suffered by the House and Senate alike,” as they each share in the power of the purse. Id. at 71 n.21. at 71 n.21.
~~220~~236 Id.; U.S. CONST. art. I, § 9, cl. 7. ; U.S. CONST. art. I, § 9, cl. 7.
~~221~~237 Burwell, 130 F. Supp. 3d at 58. After finding that the House had standing, , 130 F. Supp. 3d at 58. After finding that the House had standing, id. at 81, the district court held that the at 81, the district court held that the
agency in question had, in fact, spent funds without an authorization of appropriations, agency in question had, in fact, spent funds without an authorization of appropriations, ~~United States~~U.S. House of House of
Representatives v. Burwell, 185 F. Supp. 3d 165, 168 (D.D.C. 2016), Representatives v. Burwell, 185 F. Supp. 3d 165, 168 (D.D.C. 2016), ~~appeal dismissed, United States~~vacated in part sub nom. U.S. House of House of
Representatives v. Azar, Representatives v. Azar, No. 14-1967 (RMC), 2018 WL 8576647 (D.D.C. May 18, 2018))). 238 976 F.3d 1, 13–14 (D.C. Cir. 2020), vacated as moot, 142 S. Ct. 332 (2021). Congressional Research Service 28 Congress’s Authority to Influence and Control Executive Branch Agencies that lacks appropriations and did not extend to claims “that the President has exceeded his statutory authority.”239 Tools Available to the Senate Some oversight tools are available exclusively to the Senate. Through its “advice and consent” responsibility, the Senate plays an integral role in the performance of two constitutionally prescribed executive functions—the appointment of important government officials and completion of treaties between the United States and foreign nations or international bodies.240 In addition, if the House impeaches an official, the Senate has the exclusive power to try and, upon conviction, remove the official from office.241 Like the House, the Senate may seek to enforce congressional subpoenas through civil actions in federal court, but unlike the House, the Senate practice is authorized and shaped by federal statute. ~~No. 16-5202 (D.C. Cir. May 16, 2018) (per curiam) (dismissing appeal and remanding case to~~
~~the district court for a ruling on parties’ motion for relief under Federal Rule of Civil Procedure 60(b) (Grounds for~~
~~Relief from a Final Judgment, Order, or Proceeding)).~~
~~222 U.S. CONST. art. II, § 2, cl. 2.~~
~~223 Id. art. I, § 3, cl. 6.~~
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~~Congress’s Authority to Influence and Control Executive Branch Agencies~~

Senate Civil Enforcement of Subpoenas
Like the House, the Senate may seek to enforce a subpoena by instituting civil proceedings in Like the House, the Senate may seek to enforce a subpoena by instituting civil proceedings in
federal court. While the House’s civil enforcement of subpoenas may occur on an ad hoc basis, a federal court. While the House’s civil enforcement of subpoenas may occur on an ad hoc basis, a
federal statute provides procedures for subpoena enforcement by the Senate.federal statute provides procedures for subpoena enforcement by the Senate.~~224~~242 That statute is That statute is
severely limited with regard to its application against an agency official. By statute, the U.S. severely limited with regard to its application against an agency official. By statute, the U.S.
District Court for the District of Columbia is granted jurisdiction to hear claims “to secure a District Court for the District of Columbia is granted jurisdiction to hear claims “to secure a
declaratory judgment concerning the validity of, or to prevent a threatened refusal or failure to declaratory judgment concerning the validity of, or to prevent a threatened refusal or failure to
comply with, any subp[o]ena or order issued by the Senate or committee or subcommittee” comply with, any subp[o]ena or order issued by the Senate or committee or subcommittee”
thereof.thereof.~~225~~243 Filing such a lawsuit requires authorization from the Senate as a whole. Filing such a lawsuit requires authorization from the Senate as a whole.~~226~~244 The Senate The Senate
provisionprovision~~, however,~~ does not apply to federal officials or employees who refuse to comply with a does not apply to federal officials or employees who refuse to comply with a
subpoena based on an assertion of a properly authorized governmental privilege.subpoena based on an assertion of a properly authorized governmental privilege.~~227~~245 Despite the Despite the
limiting terms of the statute, limiting terms of the statute, ~~it would appear arguable that, the Senate may retain~~the Senate arguably retains the authority to the authority to
seek enforcement of a subpoena on an ad hoc basis through approval of a Senate resolution seek enforcement of a subpoena on an ad hoc basis through approval of a Senate resolution
authorizing such a lawsuit.authorizing such a lawsuit.~~228~~
~~Advice and Consent: Nominations and Treaties~~
~~The Constitution conditions the full performance of two essential executive branch functions on~~
~~the assent of the Senate. The Appointments Clause and the Treaty Clause respectively authorize~~
~~the President to make certain appointments to important governmental positions and to finalize~~
~~treaties with foreign nations or international bodies on behalf of the United States only after~~
~~receiving the “advice and consent” of the Senate.229 “Advice and consent” in both contexts has~~
~~been understood in practice to require senatorial approval, but not necessarily consultation.230~~

~~224~~246 239 In the context of House lawsuits, the circuit court reasoned that whereas a violation of the Appropriations Clause represented a “distinct injury” to the House, a claim that an executive branch official had exceeded his statutory authority was a “generalized grievance” insufficient to establish standing. Id. at 13, 15. Mnuchin was vacated while on appeal to the Supreme Court after the new Administration halted spending on the border wall. Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021) (vacating and remanding with instructions to dismiss as moot). 240 U.S. CONST. art. II, § 2, cl. 2. 241 Id. art. I, § 3, cl. 6. 242 Ethics in Government Act, Pub. L. No. 95-521, §§ 703, 705, 92 Stat. 1877–80 (1978) (codified at 2 U.S.C. §§ Ethics in Government Act, Pub. L. No. 95-521, §§ 703, 705, 92 Stat. 1877–80 (1978) (codified at 2 U.S.C. §§
288b(b), 288d; 28 U.S.C. § 1365). 288b(b), 288d; 28 U.S.C. § 1365).
~~225~~243 28 U.S.C. § 1365(a). The Senate may designate any attorney to represent it in such proceedings, 28 U.S.C. § 1365(a). The Senate may designate any attorney to represent it in such proceedings, id. § 1365(d), but § 1365(d), but
civil actions are generally brought by the Senate Legal Counsel. civil actions are generally brought by the Senate Legal Counsel. See 2 U.S.C. § 288b(b). Like subpoena enforcement 2 U.S.C. § 288b(b). Like subpoena enforcement
lawsuits filed by the House, a reviewing court would likely have to assess the validity of a Senate-issued subpoena and lawsuits filed by the House, a reviewing court would likely have to assess the validity of a Senate-issued subpoena and
balance Congress’s interest in obtaining the information sought with the agency official’s justification for non-balance Congress’s interest in obtaining the information sought with the agency official’s justification for non-
compliance. compliance.
~~226~~244 2 U.S.C. § 288b. 2 U.S.C. § 288b. See, e.g., S. Res. 377, 114th Cong. (2016) (authorizing a subpoena enforcement action). , S. Res. 377, 114th Cong. (2016) (authorizing a subpoena enforcement action).
~~227~~245 28 U.S.C 28 U.S.C. § 1365(a) (“This section shall not apply to an action to enforce, to secure a declaratory judgment § 1365(a) (“This section shall not apply to an action to enforce, to secure a declaratory judgment
concerning the validity of, or to prevent a threatened refusal to comply with, any subpoena or order issued to an officer concerning the validity of, or to prevent a threatened refusal to comply with, any subpoena or order issued to an officer
or employee of the executive branch of the Federal Government acting within his or her official capacity, except that or employee of the executive branch of the Federal Government acting within his or her official capacity, except that
this section shall apply if the refusal to comply is based on the assertion of a personal privilege or objection and is not this section shall apply if the refusal to comply is based on the assertion of a personal privilege or objection and is not
based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of
the Federal Government.”). the Federal Government.”).
~~228~~246 See Tara Leigh Grove & Neal Devins, Tara Leigh Grove & Neal Devins, Congress’s (Limited) Power to Represent Itself in Court, 99 CORNELL L. REV. , 99 CORNELL L. REV.
~~571, 631 n.377 (noting that there is “some doubt” as to the limitations worked by the Senate statute). In a 2013 decision~~
~~regarding a House subpoena, the U.S. District Court for the District of Columbia noted that the Senate statute~~
~~“specifically states that it does not have anything to do with cases involving a legislative effort to enforce a subpoena~~
~~against an official of the executive branch withholding records on the grounds of a governmental privilege.” Comm. on~~
~~Oversight & Gov't Reform v. Holder, 979 F. Supp. 2d 1, 18 (D.D.C. 2013). As such, the court suggested that it could~~
~~look to the general federal question statute for jurisdiction. Id. (citing 28 U.S.C. § 1331, which provides that “[t]he~~
~~[U.S.] district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties~~
of the United States”). But see Comm. on the Judiciary v. McGahn, 973 F.3d 121, 123 (D.C. Cir. 2020) vacated by
~~Comm. on the Judiciary of the United States House of Representatives v. McGahn, No. 19-5331, 2020 U.S. App.~~
~~LEXIS 32573, at *6 (D.C. Cir. Oct. 15, 2020) (suggesting that “the Senate statute expressly excludes suits that involve~~
~~executive-branch assertions of ‘governmental privilege’”).~~
~~229 U.S. CONST. art. II, § 2, cl. 2.~~
~~230 While the Framers may have intended for the Senate to serve in a consultative role during treaty negotiations (as~~
~~Congressional Research Service~~

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~~link to page 12 link to page 12 link to page 32 link to page 12~~ ~~Congress’s Authority to Influence and Control Executive Branch Agencies~~

Congressional Research Service 29 link to page 13 link to page 13 Congress’s Authority to Influence and Control Executive Branch Agencies Advice and Consent: Nominations and Treaties The Constitution conditions the full performance of two essential executive branch functions on the assent of the Senate. The Appointments Clause and the Treaty Clause respectively authorize the President to make certain appointments to important governmental positions and to finalize treaties with foreign nations or international bodies on behalf of the United States only after receiving the “advice and consent” of the Senate.247 “Advice and consent” in both contexts has been understood in practice to require senatorial approval, but not necessarily consultation.248 Both Clauses, therefore, afford the Senate unique opportunities to influence and exert control Both Clauses, therefore, afford the Senate unique opportunities to influence and exert control
over the execution of important executive branch powers, especially by conditioning or over the execution of important executive branch powers, especially by conditioning or
withholding consent in order to obtain executive branch compliance with congressional desires. withholding consent in order to obtain executive branch compliance with congressional desires.
As noted, the Appointments Clause establishes that principal “Officers of the United States,” and As noted, the Appointments Clause establishes that principal “Officers of the United States,” and
those “inferior Officers” whose appointments have not been vested in the President alone, those “inferior Officers” whose appointments have not been vested in the President alone,
department heads, or “the Courts of Law,” must be appointed by the President with the advice and department heads, or “the Courts of Law,” must be appointed by the President with the advice and
consent of the Senate.consent of the Senate.~~231~~249 Because of Because of ~~recent changes~~developments in Senate rules, presidential nominations are in Senate rules, presidential nominations are
not subject to filibuster, and so as a practical matter, the support of a simple majority of Senators not subject to filibuster, and so as a practical matter, the support of a simple majority of Senators
is enough to confirm a presidential nomination.is enough to confirm a presidential nomination.~~232~~250 There are more than 1,200 executive branch There are more than 1,200 executive branch
positions that, by law, require Senate approval.positions that, by law, require Senate approval.~~233~~251 When an officer holding an advice-and-consent When an officer holding an advice-and-consent
position leaves office before his or her successor is chosen, an acting official may temporarily position leaves office before his or her successor is chosen, an acting official may temporarily
perform the duties of the vacant office without receiving senatorial approval. The ability of perform the duties of the vacant office without receiving senatorial approval. The ability of
government officials to perform the duties of a vacant office is generally governed by the Federal government officials to perform the duties of a vacant office is generally governed by the Federal
~~Vacancies Reform Act of 1998 (Vacancies Act),234 although other statutes may supplement or~~
~~supersede that statute.235~~
~~The Senate’s advice-and-consent function under the Appointments Clause serves as a significant~~
~~check on the executive branch, one which the Senate may use not only to approve or reject~~
~~presidential nominees, but also to influence who is nominated for certain important offices and~~
~~what a nominee will do in office if confirmed. For example, the threat that a simple majority of~~
~~Senators will block a presidential nominee can be used by the Senate to persuade the President to~~
~~nominate an individual agreeable to most Senators.236 In addition, during the confirmation~~

571, 631 n.377 (noting that there is “some doubt” as to the limitations worked by the Senate statute). In a 2013 decision regarding a House subpoena, the U.S. District Court for the District of Columbia noted that the Senate statute “specifically states that it does not have anything to do with cases involving a legislative effort to enforce a subpoena against an official of the executive branch withholding records on the grounds of a governmental privilege.” Comm. on Oversight & Gov't Reform v. Holder, 979 F. Supp. 2d 1, 18 (D.D.C. 2013). As such, the court suggested that it could look to the general federal question statute for jurisdiction. Id. (citing 28 U.S.C. § 1331, which provides that “[t]he [U.S.] district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”). But see Comm. on the Judiciary v. McGahn, 973 F.3d 121, 123 (D.C. Cir. 2020) vacated by Comm. on the Judiciary v. McGahn, No. 19-5331, 2020 U.S. App. LEXIS 32573, at *6 (D.C. Cir. Oct. 15, 2020) (suggesting that “the Senate statute expressly excludes suits that involve executive-branch assertions of ‘governmental privilege’”). 247 U.S. CONST. art. II, § 2, cl. 2. 248 While the Framers may have intended for the Senate to serve in a consultative role during treaty negotiations (as opposed to merely supplying or withholding its consent once negotiations had completed), the Senate has not served in opposed to merely supplying or withholding its consent once negotiations had completed), the Senate has not served in
such a capacity since the early days of George Washington’s presidency. such a capacity since the early days of George Washington’s presidency. See CRS Report RL32528, CRS Report RL32528, International Law
and Agreements: Their Effect upon U.S. Law, by Stephen P. Mulligan, at 3–4 (explaining that “advice and consent” , by Stephen P. Mulligan, at 3–4 (explaining that “advice and consent”
may have been “intended . . . to be separate aspects of the treaty-making process,” but that President Washington and may have been “intended . . . to be separate aspects of the treaty-making process,” but that President Washington and
subsequent Presidents “soon declined to seek the Senate’s input during the [treaty] negotiation process”). subsequent Presidents “soon declined to seek the Senate’s input during the [treaty] negotiation process”). See also
Beermann, Beermann, supra nonote 7486, at 110 (writing that, in the context of presidential appointments, “[a]dvice and consent is at 110 (writing that, in the context of presidential appointments, “[a]dvice and consent is
understood as majority approval in the Senate”); Howard R. Sklamberg, understood as majority approval in the Senate”); Howard R. Sklamberg, The Meaning of “Advice and Consent”: The
Senate’s Constitutional Role in Treaty Making, 18 MICH. J. INT’L L. 445, 446 (1997) (writing that ‘“[a]dvice and , 18 MICH. J. INT’L L. 445, 446 (1997) (writing that ‘“[a]dvice and
consent’ [in relation to the President’s treaty-making power] has come to mean [approval of] ‘ratification’”). consent’ [in relation to the President’s treaty-making power] has come to mean [approval of] ‘ratification’”).
~~231~~249 U.S. CONST. art. II, § 2, cl. 2. U.S. CONST. art. II, § 2, cl. 2.
~~232~~250 Beermann, Beermann, supra nonote 7486, at 110. at 110.
~~233~~251 CRS Report R41872, CRS Report R41872, Presidential Appointments, the Senate’s Confirmation Process, and Changes Made in the
112th Congress, by Maeve P. Carey, at 1 (noting that as of 2012 “there were approximately 1,200–1,400 positions in , by Maeve P. Carey, at 1 (noting that as of 2012 “there were approximately 1,200–1,400 positions in
the executive branch requiring the Senate’s advice and consent”); see STAFF OF S. COMM. ON HOMELAND SEC. & GOV’T the executive branch requiring the Senate’s advice and consent”); see STAFF OF S. COMM. ON HOMELAND SEC. & GOV’T
AFFAIRS, 114TH CONG., POLICY AND SUPPORTING POSITIONS (PLUM BOOK) (Comm. Print. 2016). AFFAIRS, 114TH CONG., POLICY AND SUPPORTING POSITIONS (PLUM BOOK) (Comm. Print. 2016).
~~234 5 U.S.C. §§ 3345–3349d. For more information on the Vacancies Act, see CRS Report R44997,~~ ~~The Vacancies Act:~~
~~A Legal Overview, by Valerie C. Brannon. In addition to the Vacancies Act, the Recess Appointments Clause allows~~
~~the President to make a temporary appointment to a vacant advice-and-consent office without the consent of the Senate~~
~~while the Senate is in recess. See U.S. CONST. art. II, § 2, cl. 3 (authorizing the President to “fill up all Vacancies that~~
~~may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next~~
~~Session”); Nat’l Labor Relations Bd. v. Noel Canning, 134 S. Ct. 2550 (2014).~~
~~235 See 5 U.S.C. § 3347(a)(1) (providing that the Vacancies Act is “the exclusive means for temporarily authorizing an~~
~~acting official to perform the functions and duties of any [advice-and-consent] office of an Executive agency (including~~
~~the Executive Office of the President, and other than the Government Accountability Office) . . . unless” another statute~~
~~“expressly” allows “an officer or employee to perform the functions and duties of a specified office temporarily in an~~
~~acting capacity”). But see id. § 3347(b) (providing that subsection (a)(1) does not apply where a “statutory provision~~
~~provid[es] general authority to the head of an Executive agency . . . to delegate duties statutorily vested in that agency~~
~~head to, or to reassign duties among, officers or employees of such Executive agency”) (emphasis added).~~ ~~See~~
~~generally~~ ~~Brannon, supra note 234.~~
~~236 See Beermann, supra note 74, at 110–11.~~
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Congressional Research Service 30 link to page 34 link to page 13 Congress’s Authority to Influence and Control Executive Branch Agencies Vacancies Reform Act of 1998 (Vacancies Act),252 although other statutes may supplement or supersede that statute.253 The Senate’s advice-and-consent function under the Appointments Clause serves as a significant check on the executive branch, one which the Senate may use not only to approve or reject presidential nominees, but also to influence who is nominated for certain important offices and what a nominee will do in office if confirmed. For example, the threat that a simple majority of Senators will block a presidential nominee can be used by the Senate to persuade the President to nominate an individual agreeable to most Senators.254 In addition, during the confirmation process, the Senate can seek to elicit commitments from a nominee that he or she will seek to process, the Senate can seek to elicit commitments from a nominee that he or she will seek to
achieve certain policies or abide by certain principles if confirmed.achieve certain policies or abide by certain principles if confirmed.~~237~~255 The power of this latter tool The power of this latter tool
was perhaps most dramatically exemplified in connection with the so-called “Saturday Night was perhaps most dramatically exemplified in connection with the so-called “Saturday Night
Massacre” of 1973, in which the Attorney General and Deputy Attorney General under President Massacre” of 1973, in which the Attorney General and Deputy Attorney General under President
Richard Nixon resigned, successively, after being directed by the President to fire the Watergate Richard Nixon resigned, successively, after being directed by the President to fire the Watergate
special prosecutor, Archibald Cox. In his resignation letter, Attorney General Elliot Richardson special prosecutor, Archibald Cox. In his resignation letter, Attorney General Elliot Richardson
asserted that his decision to resign was based not only on the fact that he had empowered the asserted that his decision to resign was based not only on the fact that he had empowered the
special prosecutor with a large measure of independence and imposed limitations on his removal, special prosecutor with a large measure of independence and imposed limitations on his removal,
but also because, “[a]t many points throughout the confirmation hearings [for Attorney General], but also because, “[a]t many points throughout the confirmation hearings [for Attorney General],
[he had] reaffirmed [his] intentions to assure the independence of the special prosecutor.”[he had] reaffirmed [his] intentions to assure the independence of the special prosecutor.”~~238~~256
Similarly, the Treaty Clause of the Constitution stipulates that the President may not ratify a treaty Similarly, the Treaty Clause of the Constitution stipulates that the President may not ratify a treaty
between the United States and a foreign nation or international body without senatorial consent. between the United States and a foreign nation or international body without senatorial consent.
The Clause states that the President “shall have the Power, by and with the Advice and Consent of The Clause states that the President “shall have the Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two-thirds of the Senators present concur.”the Senate, to make Treaties, provided two-thirds of the Senators present concur.”~~239~~257 In requiring In requiring
that the President secure the consent of two-thirds of available Senators, the Clause may pose a that the President secure the consent of two-thirds of available Senators, the Clause may pose a
~~steeper obstacle to the effectuation of executive branch responsibilities than does the~~
~~Appointments Clause, which requires only the approval of a majority of Senators to a presidential~~
~~nomination.240~~
~~The advice-and-consent function in connection with the President’s treaty-making power enables~~
~~the Senate to serve as a substantial check on the execution of the President’s foreign relations~~
~~power.241 The Senate, for example, may withhold its consent and therefore prevent the President~~
~~from ratifying a treaty. It may also supply its consent subject to certain conditions (e.g.,~~
~~specifying that implementing legislation is needed to give domestic legal effect to the treaty’s~~

~~237~~ 252 5 U.S.C. §§ 3345–3349d. For more information on the Vacancies Act, see CRS Report R44997, The Vacancies Act: A Legal Overview, by Valerie C. Brannon. In addition to the Vacancies Act, the Recess Appointments Clause allows the President to make a temporary appointment to a vacant advice-and-consent office without the consent of the Senate while the Senate is in recess. See U.S. CONST. art. II, § 2, cl. 3 (authorizing the President to “fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session”); Nat’l Lab. Rels. Bd. v. Noel Canning, 134 S. Ct. 2550 (2014). 253 See 5 U.S.C. § 3347(a)(1) (providing that the Vacancies Act is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any [advice-and-consent] office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) . . . unless” another statute “expressly” allows “an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity”). But see id. § 3347(b) (providing that subsection (a)(1) does not apply where a “statutory provision provid[es] general authority to the head of an Executive agency . . . to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency”) (emphasis added). See generally Brannon, supra note 252. 254 See Beermann, supra note 86, at 110–11. 255 See id. at 111 (writing that “approval of appointments can be used as leverage over related and even completely at 111 (writing that “approval of appointments can be used as leverage over related and even completely
unrelated areas in which the Senate has an interest in the execution of the laws”). For example, prior to his confirmation unrelated areas in which the Senate has an interest in the execution of the laws”). For example, prior to his confirmation
as Assistant Attorney General in charge of OLC, Steven Engel agreed to review after taking office an OLC opinion—as Assistant Attorney General in charge of OLC, Steven Engel agreed to review after taking office an OLC opinion—
Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. 1 (2017)—, 41 Op. O.L.C. 1 (2017)—
which asserts that individual Members of Congress dowhich asserts that individual Members of Congress do not, absent specific authorization, have authority to engage in not, absent specific authorization, have authority to engage in
“oversight” of the executive branch. “oversight” of the executive branch. See 163 CONG. REC. S4077, S4079 (daily ed. July 19, 2017). 163 CONG. REC. S4077, S4079 (daily ed. July 19, 2017).
~~238~~256 See Letter from Elliot Richardson, Att’y Gen’l, U.S. Dep’t of Justice, to Richard M. Nixon, President, United States Letter from Elliot Richardson, Att’y Gen’l, U.S. Dep’t of Justice, to Richard M. Nixon, President, United States
of America (Oct. 20, 1973), of America (Oct. 20, 1973), reprinted in Ziegler Statement and Texts of Letters, N.Y. TIMES, Oct. 21, 1973, at 61. , N.Y. TIMES, Oct. 21, 1973, at 61.
Those “intentions” may have been given even greater weight by the fact that during his confirmation hearings, Those “intentions” may have been given even greater weight by the fact that during his confirmation hearings,
Richardson worked directly with the Senate Judiciary Committee to develop a document that ultimately formed the Richardson worked directly with the Senate Judiciary Committee to develop a document that ultimately formed the
basis for Richardson’s establishment, by regulation, of the Office of Watergate Special Prosecutor. basis for Richardson’s establishment, by regulation, of the Office of Watergate Special Prosecutor. See Nomination of Nomination of
Elliot L. Richardson to be Attorney GeneralElliot L. Richardson to be Attorney General, Before the Before the ~~Senate Committee~~S. Comm. on the Judiciary, 93d Cong., 1st Sess. 144 on the Judiciary, 93d Cong., 1st Sess. 144-
–46 (1973). 46 (1973).
~~239~~257 U.S. CONST. art. II, § 2, cl. 2. U.S. CONST. art. II, § 2, cl. 2.
~~240 Notably, however, while the finalization of a treaty requires Senate consent, it is the Executive who negotiates and~~
~~ultimately ratifies the treaty. See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015) (“The President has the sole power~~
~~to negotiate treaties, . . . and the Senate may not conclude or ratify a treaty without Presidential action.”).~~
~~241 The advice-and-consent requirements of the Treaty Clause are not constitutionally required to effectuate~~
~~international agreements that take the form of executive agreements under U.S. law. However, legislation may be~~
~~required to authorize or implement many executive agreements. Moreover, Congress through legislation could~~
~~potentially modify or abrogate the domestic legal effect of any agreement addressing matters which do not fall within~~
~~the President’s exclusive constitutional purview. For further discussion, see Mulligan, supra note 230, at 6–7. Congress~~
~~may employ other tools to conduct oversight over non-treaty international agreements, including legislation that~~
~~requires that the executive branch consult with Congress before or during negotiations, as well as oversight hearings.~~
~~CONG. RESEARCH SERV., 106TH CONG., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED~~
~~STATES SENATE 242–43 (Comm. Print 2001). For more information, see id. at 209–43.~~
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Congressional Research Service 31 link to page 33 link to page 28 Congress’s Authority to Influence and Control Executive Branch Agencies steeper obstacle to the effectuation of executive branch responsibilities than does the Appointments Clause, which requires only the approval of a majority of Senators to a presidential nomination.258 The advice-and-consent function in connection with the President’s treaty-making power enables the Senate to serve as a substantial check on the execution of the President’s foreign relations power.259 The Senate, for example, may withhold its consent and therefore prevent the President from ratifying a treaty. It may also supply its consent subject to certain conditions (e.g., specifying that implementing legislation is needed to give domestic legal effect to the treaty’s provisions, or making Senate approval conditional upon the reservation that the United States provisions, or making Senate approval conditional upon the reservation that the United States
does not agree to be legally bound by a particular treaty provision).does not agree to be legally bound by a particular treaty provision).~~242~~260
The Senate’s Role in Impeachment: Trial and Removal
As stated above, As stated above,~~243~~261 the impeachment and removal process involves distinct roles for both houses the impeachment and removal process involves distinct roles for both houses
of Congress. If the House votes to impeach an official, it is the Senate that then has “the sole of Congress. If the House votes to impeach an official, it is the Senate that then has “the sole
Power to try all Impeachments.”Power to try all Impeachments.”~~244~~262 The Vice President, as President of the Senate, or the Senate The Vice President, as President of the Senate, or the Senate
Pro Tempore generally presides over impeachment trials, although the Chief Justice of the United Pro Tempore generally presides over impeachment trials, although the Chief Justice of the United
States presides when the States presides when the sitting President has been impeached.President has been impeached.~~245~~263 If, after the trial, two-thirds of the If, after the trial, two-thirds of the
Senate votes to convict the official based on Senate votes to convict the official based on any of the articles of impeachment, the official of the articles of impeachment, the official ~~will~~
be is removed from office.removed from office.~~246~~264 After the vote to convict and remove, the Senate may, in its discretion, After the vote to convict and remove, the Senate may, in its discretion,
hold another vote to disqualify the official from “hold[ing] and enjoy[ing] any Office of honor, hold another vote to disqualify the official from “hold[ing] and enjoy[ing] any Office of honor,
Trust or Profit under the United States.”Trust or Profit under the United States.”~~247~~265 Unlike conviction and removal, however, which Unlike conviction and removal, however, which
requires the approval of two-thirds of the Senators present, a later vote to disqualify an official requires the approval of two-thirds of the Senators present, a later vote to disqualify an official
from holding future federal office from holding future federal office ~~requires~~appears to require only a majority in favor. only a majority in favor.~~248~~266 The Senate may not impose The Senate may not impose
any punishment other than removal and disqualification from holding future federal office.any punishment other than removal and disqualification from holding future federal office.~~249~~
~~While the full Senate votes on whether to convict an impeached official, under Impeachment~~
~~Rule XI, the Senate may order the Presiding Officer of the Senate to establish a committee of~~
~~Senators to receive evidence and take testimony prior to the vote.250 This procedure was~~
~~challenged in Nixon v. United States, which concerned the impeachment and conviction in the~~
~~Senate of Walter L. Nixon, Jr., former Chief Judge of the U.S. District Court for the Southern~~
~~District of Mississippi.251 After a criminal trial, Nixon was found guilty of making false~~
~~statements to a grand jury and was sentenced to prison.252 He was then impeached by the House~~
~~and tried and convicted by the Senate. During the proceedings in the Senate, the Senate~~
~~established a committee under Impeachment Rule XI to receive evidence.253 Following his~~
~~senatorial conviction, Nixon brought suit in federal court, arguing that Rule XI violated the~~
~~constitutional prescription that the Senate “try” impeachments because, when it is invoked, the~~
~~full Senate does not take part in evidentiary hearings.254~~
~~The Supreme Court held that the former judge’s claim posed a nonjusticiable political question~~
~~and was therefore not subject to judicial review.255 The Court decided that “the sole Power” to try~~

~~242 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 303 cmt. d, 314(1).~~
~~243 See supra “Impeachment.”~~
~~244 U.S. CONST. art. I, § 3, cl. 6.~~
245 Id.
~~246 Id. cls. 6, 7.~~
~~247 Id. cl. 7.~~
~~248 See 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 512, at 708 (1936).~~
~~249~~267 258 Notably, while the finalization of a treaty requires Senate consent, it is the Executive who negotiates and ultimately ratifies the treaty. See Zivotofsky v. Kerry, 576 U.S. 1, 13 (2015) (“The President has the sole power to negotiate treaties, . . . and the Senate may not conclude or ratify a treaty without Presidential action.”). 259 The advice-and-consent requirements of the Treaty Clause are not constitutionally required to effectuate international agreements that take the form of executive agreements under U.S. law. However, legislation may be required to authorize or implement many executive agreements. Moreover, Congress through legislation could potentially modify or abrogate the domestic legal effect of any agreement addressing matters which do not fall within the President’s exclusive constitutional purview. For further discussion, see Mulligan, supra note 248, at 6–7. Congress may employ other tools to conduct oversight over non-treaty international agreements, including legislation that requires that the executive branch consult with Congress before or during negotiations, as well as oversight hearings. CONG. RSCH. SERV., 106TH CONG., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE 242–43 (Comm. Print 2001). For more information, see id. at 209–43. 260 Restatement (Third) of the Foreign Relations Law of the United States §§ 303 cmt. d, 314(1) (Am. L. Inst. 2016). 261 See supra “Impeachment.” 262 U.S. CONST. art. I, § 3, cl. 6. 263 Id. 264 Id. cls. 6, 7. 265 Id. cl. 7. 266 See 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 512, at 708 (1936). 267 U.S. CONST. art. I, § 3, cl. 7. U.S. CONST. art. I, § 3, cl. 7. An individual convicted by the Senate, however, may be criminally prosecuted for the An individual convicted by the Senate, however, may be criminally prosecuted for the
same facts underlying his impeachment and conviction. same facts underlying his impeachment and conviction. See id. (providing that “the Party convicted shall nevertheless (providing that “the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”). be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”).
~~250 S. MANUAL: IMPEACHMENT RULES, RULE XI.~~
~~251 506 U.S. 224, 226 (1993).~~
~~252 Id.; see United States v. Nixon, 816 F.2d 1022, 1023 (5th Cir. 1987).~~
~~253 Nixon, 506 U.S. at 227.~~
~~254 Id. at 228.~~
~~255 Id. at 237–38.~~
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~~Congress’s Authority to Influence and Control Executive Branch Agencies~~

Congressional Research Service 32 Congress’s Authority to Influence and Control Executive Branch Agencies While the full Senate votes on whether to convict an impeached official, under Impeachment Rule XI, the Senate may order the Presiding Officer of the Senate to establish a committee of Senators to receive evidence and take testimony prior to the vote.268 This procedure was challenged in Nixon v. United States, which concerned the impeachment and conviction in the Senate of Walter L. Nixon, Jr., former Chief Judge of the U.S. District Court for the Southern District of Mississippi.269 After a criminal trial, Nixon was found guilty of making false statements to a grand jury and was sentenced to prison.270 He was then impeached by the House and tried and convicted by the Senate. During the proceedings in the Senate, the Senate established a committee under Impeachment Rule XI to receive evidence.271 Following his senatorial conviction, Nixon brought suit in federal court, arguing that Rule XI violated the constitutional prescription that the Senate “try” impeachments because, when it is invoked, the full Senate does not take part in evidentiary hearings.272 The Supreme Court held that the former judge’s claim posed a nonjusticiable political question and was therefore not subject to judicial review.273 The Court decided that “the sole Power” to try impeachments “is reposed in the Senate and nowhere else” and concluded that the word “try” impeachments “is reposed in the Senate and nowhere else” and concluded that the word “try”
“lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s “lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s
action.”action.”~~256~~274 Instead, the responsibility and authority for interpreting “try” lay with the Senate. Instead, the responsibility and authority for interpreting “try” lay with the Senate.~~257~~275
The Supreme Court expressed concern with the uncertainty “and the difficulty of fashioning The Supreme Court expressed concern with the uncertainty “and the difficulty of fashioning
relief” posed by allowing judicial challenges to the Senate’s impeachment procedures.relief” posed by allowing judicial challenges to the Senate’s impeachment procedures.~~258~~276 In In
holding that such challenges could not be entertained on judicial review, holding that such challenges could not be entertained on judicial review, Nixon stands for the stands for the
practical proposition that the Senate has significant discretion over the procedures it employs practical proposition that the Senate has significant discretion over the procedures it employs
during impeachment trials. during impeachment trials.
Tools for Congressional Committees
Among the tools to influence agency action available to congressional committees of both houses Among the tools to influence agency action available to congressional committees of both houses
are the power of investigative oversight and the use of committee report language. The efficacy of are the power of investigative oversight and the use of committee report language. The efficacy of
these tools, which provide committees with “enormous influence over executive branch doings,” these tools, which provide committees with “enormous influence over executive branch doings,”
reflects both committees’ substantial role in the legislative system and their unique relationship reflects both committees’ substantial role in the legislative system and their unique relationship
with the agencies they oversee.with the agencies they oversee.~~259~~277 As one court has aptly described, “[o]fficials in the executive As one court has aptly described, “[o]fficials in the executive
branch have to take . . . committees into account and keep them informed, respond to their branch have to take . . . committees into account and keep them informed, respond to their
inquiries, and it may be, flatter and please them when necessary.”inquiries, and it may be, flatter and please them when necessary.”~~260~~
278 268 S. MANUAL: IMPEACHMENT RULES, RULE XI. 269 506 U.S. 224, 226 (1993). 270 Id.; see United States v. Nixon, 816 F.2d 1022, 1023 (5th Cir. 1987). 271 Nixon, 506 U.S. at 227. 272 Id. at 228. 273 Id. at 237–38. 274 Id. at 229–30 (quoting U.S. CONST. art. I, § 3, cl. 6). 275 Id. at 237. 276 Id. at 236. 277 Alexandria v. United States, 737 F.2d 1022, 1026 (Fed. Cir. 1984). 278 Id. Congressional Research Service 33 Congress’s Authority to Influence and Control Executive Branch Agencies Committee Investigative Oversight
Congressional committees can significantly influence agency action through investigative Congressional committees can significantly influence agency action through investigative
oversight. These investigations may uncover and publicize agency abuse of authority or oversight. These investigations may uncover and publicize agency abuse of authority or
maladministration, prompting a legislative response or immediate change in policies by the maladministration, prompting a legislative response or immediate change in policies by the
investigated agency itself. investigated agency itself. ~~261~~279 Hearings may also provide a committee the opportunity to give an Hearings may also provide a committee the opportunity to give an
agency guidance on how the committee believes an agency should carry out its functions. agency guidance on how the committee believes an agency should carry out its functions.
Congress’s power to conduct investigations complements its more prominent power to legislate Congress’s power to conduct investigations complements its more prominent power to legislate
and appropriate funds.and appropriate funds.~~262~~280 Although the Although the ~~“power of inquiry” was~~Constitution does not expressly not expressly ~~provided for in the~~
~~Constitution, it~~provide for a “power of inquiry,” that power has been acknowledged as “an essential and appropriate auxiliary to the has been acknowledged as “an essential and appropriate auxiliary to the
legislative function” derived implicitly from Article I’s vesting of “legislative Powers” in legislative function” derived implicitly from Article I’s vesting of “legislative Powers” in ~~the~~

~~256 Id. at 229–30 (quoting U.S. CONST. art. I, § 3, cl. 6).~~
~~257 Id. at 237.~~
~~258 Id. at 236.~~
~~259 Alexandria v. United States, 737 F.2d 1022, 1026 (Fed. Cir. 1984).~~
~~260 Id.~~
~~261~~Congress.281 The prerogative to gather information related to legislative activity is critical in purpose, as Congress “cannot legislate wisely or effectively in the absence of information,” and extensive in scope, as Congress is empowered to obtain pertinent testimony and documents through investigations into a wide array of matters that relate to the legislative function.282 Specifically, acting within relevant constitutional and jurisdictional constraints,283 a committee may initiate investigations, hold hearings, request testimony or documents from witnesses, and, when either a government or private party is not forthcoming, compel compliance with the committee’s requests through the issuance and enforcement of subpoenas.284 Because each house of Congress has largely delegated its constitutional oversight powers to its standing committees, congressional oversight investigations typically are carried out by congressional committees and subcommittees.285 House and Senate rules provide each committee 279 For example, one study has found that agency “infractions that are the subject of hearings are approximately 22% For example, one study has found that agency “infractions that are the subject of hearings are approximately 22%
less likely to reoccur than similar infractions for which congressional committees and subcommittees choose not to less likely to reoccur than similar infractions for which congressional committees and subcommittees choose not to
hold hearings.” Brian D. Feinstein, hold hearings.” Brian D. Feinstein, Avoiding Oversight: Legislator Preferences and Congressional Monitoring of the
Administrative State, 8 J.L. ECON. & POL’Y 23, 28 (2011). Committee investigations of the Teapot Dome scandal , 8 J.L. ECON. & POL’Y 23, 28 (2011). Committee investigations of the Teapot Dome scandal
provide a forceful example of the investigative power’s potential impact. provide a forceful example of the investigative power’s potential impact. See JAMES BURNHAM, CONGRESS AND THE JAMES BURNHAM, CONGRESS AND THE
AMERICAN TRADITION 232 (1965) (“As a traceable result of the Teapot Dome investigations in the 1920’s, three AMERICAN TRADITION 232 (1965) (“As a traceable result of the Teapot Dome investigations in the 1920’s, three
Cabinet members were compelled to resign, of whom one went later to jail and one died while awaiting trial; two Cabinet members were compelled to resign, of whom one went later to jail and one died while awaiting trial; two
witnesses committed suicide; four oil millionaires skipped the country, and numerous other individuals were jailed or witnesses committed suicide; four oil millionaires skipped the country, and numerous other individuals were jailed or
fined sums up to several million dollars.”). fined sums up to several million dollars.”).
~~262~~280 Barenblatt v. United States, 360 U.S. 109, 111 (1959); WOODROW WILSON, CONGRESSIONAL GOVERNMENT 303 Barenblatt v. United States, 360 U.S. 109, 111 (1959); WOODROW WILSON, CONGRESSIONAL GOVERNMENT 303
(15th ed. 1913) (asserting that the “informing function of Congress should be preferred even to its legislative (15th ed. 1913) (asserting that the “informing function of Congress should be preferred even to its legislative
function”). function”). See also J. William Fulbright, J. William Fulbright, Congressional Investigations: Significance for the Legislative Process, 18 U. , 18 U.
CHI. L. REV. 440, 441 (1951) (describing the power of investigation as “perhaps the most necessary of all the powers CHI. L. REV. 440, 441 (1951) (describing the power of investigation as “perhaps the most necessary of all the powers
underlying the legislative function”). underlying the legislative function”).
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~~Congress.263 The prerogative to gather information related to legislative activity is critical in~~
~~purpose, as Congress “~~281 See McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (“We are of opinion that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”). 282 Id. at 175 (“A legislative body cannot legislate wisely or effectively in the absence of informationcannot legislate wisely or effectively in the absence of information~~,” and~~
~~extensive in scope, as Congress is empowered to obtain pertinent testimony and documents~~
~~through investigations into a wide array of matters that relate to the legislative function.264~~
~~Specifically, acting within relevant constitutional and jurisdictional constraints,265 a committee~~
~~may initiate investigations, hold hearings, request testimony or documents from witnesses, and,~~
~~when either a government or private party is not forthcoming, compel compliance with the~~
~~committee’s requests through the issuance and enforcement of subpoenas.266~~
~~Because each house of Congress has largely delegated its constitutional oversight powers to its~~
~~standing committees, congressional oversight investigations typically are carried out by~~
~~congressional committees and subcommittees.267 House and Senate rules provide each committee~~
respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true— recourse must be had to others who do possess it.”). Congress’s oversight function is subject to a variety of legal limitations. See Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 n.15 (1975) (“Although the power to investigate is necessarily broad it is not unlimited . . . . We have made it clear [] that Congress is not invested with a ‘“general” power to inquire into private affairs.’ The subject of any inquiry always must be one ‘on which legislation could be had.’” (citations omitted)). 283 See Watkins v. United States, 354 U.S. 178, 206 (1957) (“Plainly these committees are restricted to the missions delegated to them”). 284 See McGrain v. Daugherty, 373 U.S. 135, 174 (1927) (recognizing that “[t]he power of inquiry—with process to enforce it is an essential and appropriate auxiliary to the legislative function”). 285 See SENATE RULE XXVI; HOUSE RULE XI. In addition, both the House and Senate have at times established temporary select committees to carry out specific investigations. A select committee’s authorizing resolution often Congressional Research Service 34 link to page 13 Congress’s Authority to Influence and Control Executive Branch Agencies with a specific jurisdiction, the authority to hold hearings, and the power to require compliance with a specific jurisdiction, the authority to hold hearings, and the power to require compliance
with requests for information through subpoena.with requests for information through subpoena.~~268~~286 In the House, In the House, ~~most~~nearly all standing committees have standing committees have
also been vested with the authority to take sworn testimony through staff depositions.also been vested with the authority to take sworn testimony through staff depositions.~~269~~ 287 Although Although
hearings, subpoenas, and depositions are available tools, most investigative oversight into hearings, subpoenas, and depositions are available tools, most investigative oversight into
executive agencies is conducted through informal staff-to-staff contacts between committees and executive agencies is conducted through informal staff-to-staff contacts between committees and
agencies.agencies.~~270~~288
Congress has also enacted a series of laws that buttress committee investigative powers. Along Congress has also enacted a series of laws that buttress committee investigative powers. Along
with the criminal contempt statute already discussed,with the criminal contempt statute already discussed,~~271~~289 the federal perjury, false statements, and the federal perjury, false statements, and
obstruction of congressional proceeding statutes also criminalize conduct that may inhibit a obstruction of congressional proceeding statutes also criminalize conduct that may inhibit a
congressional committee’s ability to exercise its oversight power.congressional committee’s ability to exercise its oversight power.~~272~~290 That said, congressional committees are not empowered to enforce, or even trigger enforcement of these provisions. Instead, enforcement—as with all criminal provisions—is carried out by the executive branch. With regard to perjury, false statements, and obstruction, a committee may refer a possible offense to DOJ with a recommendation that an investigation be initiated, but the executive branch retains the ultimate decision on prosecution.291 Federal law directly empowers committees to obtain an immunity order from a federal court to compel a witness who has asserted the Fifth Amendment privilege against self-incrimination to testify.292 Under federal law, a court order can be obtained from a United States district court following a two-thirds affirmative vote in the committee conducting the investigation.293 So long as the committee complies with certain procedural requirements, the district court “shall grant” the immunity order when petitioned, although the Attorney General can request to delay the order.294 While an order requires a witness to testify, the Fifth Amendment’s protections prohibit the compelled testimony and any evidence derived from that testimony from being used against the witness “in any respect” in a later criminal prosecution, except one for perjury, false statement, or contempt relating to the testimony.295 While Congress’s oversight and investigatory powers are broad, they are subject to limits. Besides jurisdictional limitations and other procedural requirements imposed by each house or a ~~That said, congressional~~
~~committees are not empowered to enforce, or even trigger enforcement of these provisions.~~

~~263 See McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (“We are of opinion that the power of inquiry—with process~~
~~to enforce it—is an essential and appropriate auxiliary to the legislative function.”).~~
~~264 Id. at 175 (“A legislative body cannot legislate wisely or effectively in the absence of information respecting the~~
~~conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess~~
~~the requisite information—which not infrequently is true— recourse must be had to others who do possess it.”).~~
~~Congress’s oversight function is subject to a variety of legal limitations. See Eastland v. U.S. Servicemen’s Fund, 421~~
~~U.S. 491, 504 n.15 (1975) (“Although the power to investigate is necessarily broad it is not unlimited . . . . We have~~
~~made it clear [] that Congress is not invested with a ‘“general” power to inquire into private affairs.’ The subject of any~~
~~inquiry always must be one ‘on which legislation could be had.’” (citations omitted)).~~
~~265 See Watkins v. United States, 354 U.S. 178, 206 (1957) (“Plainly these committees are restricted to the missions~~
~~delegated to them”).~~
~~266 See McGrain v. Daugherty, 373 U.S. 135, 174 (1927) (recognizing that “[t]he power of inquiry—with process to~~
~~enforce it is an essential and appropriate auxiliary to the legislative function”).~~
~~267 See SENATE RULE XXVI; HOUSE RULE XI. In addition, both the House and Senate have at times established~~
~~temporary select committees to carry out specific investigations. A select committee’s authorizing resolution often~~
provides the committee with investigative powers such as the power to issue subpoenas. provides the committee with investigative powers such as the power to issue subpoenas. See H.R. Res. 567, 113th H.R. Res. 567, 113th
Cong. (2014) (establishing a select committee to investigate the 2012 attacks on U.S. facilities in Benghazi, Libya). Cong. (2014) (establishing a select committee to investigate the 2012 attacks on U.S. facilities in Benghazi, Libya).
~~268~~286 SENATE RULE XXVI(1) (“Each standing committee, including any subcommittee of any such committee, is SENATE RULE XXVI(1) (“Each standing committee, including any subcommittee of any such committee, is
authorized to hold such hearings . . . to require by subpoena or otherwise the attendance of such witnesses and the authorized to hold such hearings . . . to require by subpoena or otherwise the attendance of such witnesses and the
production of such correspondence, books, papers, and documents, to take such testimony . . . . Each such committee production of such correspondence, books, papers, and documents, to take such testimony . . . . Each such committee
may make investigations into any matter within its jurisdiction . . . .”); HOUSE RULE XI(m)(1) (authorizing committees may make investigations into any matter within its jurisdiction . . . .”); HOUSE RULE XI(m)(1) (authorizing committees
“to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such “to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such
books, records, correspondence, memoranda, papers, and documents as it considers necessary”). books, records, correspondence, memoranda, papers, and documents as it considers necessary”).
~~269~~287 See H.R. Res. H.R. Res. ~~8, 117th~~5, 118th Cong. §3( Cong. §3(~~b) (2021~~k) (2023) (committee deposition authority). ) (committee deposition authority).
~~270~~288 Beermann, Beermann, supra no note 7486, at 122 (“Oversight is the public face of a vast network of contacts between members of at 122 (“Oversight is the public face of a vast network of contacts between members of
Congress (and their staffs) and agency officials, including agency heads (and their staffs).”). Congress (and their staffs) and agency officials, including agency heads (and their staffs).”).
~~271~~289 2 U.S.C. § 192. 2 U.S.C. § 192.
~~272~~290 18 U.S.C. § 1621 (perjury); id. § 1001 (false statements); id. § 1505 (obstruction of a congressional proceeding). 291 See CRS Legal Sidebar LSB10879, Introduction to Criminal Referrals by Congress, by Todd Garvey; CRS Legal Sidebar, Prosecutions of Offenses Against Congress, by Todd Garvey. 292 18 U.S.C. § 6005. 293 Id. 294 Id. 295 See Kastigar v. United States, 406 U.S. 441, 453 (1972). While the witness may still be convicted of a crime based on other evidence “wholly independent of the compelled testimony,” the existence of immunized testimony can make such prosecutions more challenging. Id. at 460. Congressional Research Service 35 Congress’s Authority to Influence and Control Executive Branch Agencies particular committee’s rules,296 ~~18 U.S.C. § 1621 (perjury); id. § 1001 (false statements); id. § 1505 (obstruction of a congressional proceeding).~~
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~~Instead, enforcement—as with all criminal provisions—is carried out by the executive branch.~~
~~With regard to perjury, false statements, and obstruction, a committee may refer a possible~~
~~offense to DOJ with a recommendation that an investigation be initiated, but the ultimate decision~~
~~on prosecution is retained by the executive branch.273~~
~~Federal law does, however, directly empower committees to obtain an immunity order from a~~
~~federal court to compel a witness who has asserted the Fifth Amendment privilege against self-~~
~~incrimination to testify.274 Under federal law, a court order can be obtained from a United States~~
~~district court following a two-thirds affirmative vote in the committee conducting the~~
~~investigation.275 So long as the committee complies with certain procedural requirements, the~~
~~district court “shall grant” the immunity order when petitioned, although the Attorney General~~
~~can request to delay the order.276 While an order requires a witness to testify, the Fifth~~
~~Amendment’s protections prohibit the compelled testimony and any evidence derived from that~~
~~testimony from being used against the witness “in any respect” in a later criminal prosecution,~~
~~except one for perjury, false statement, or contempt relating to the testimony.277~~
~~While Congress’s oversight and investigatory powers are broad, they are not unlimited. Besides~~
~~jurisdictional limitations and other procedural requirements imposed by each house or a particular~~
~~committee’s rules,278~~ other constitutional principles restrict committee investigations. Because the other constitutional principles restrict committee investigations. Because the
authority to conduct oversight and investigations is implicit in the Constitution’s vesting of authority to conduct oversight and investigations is implicit in the Constitution’s vesting of
legislative power in Congress, any inquiry must be undertaken “in aid of the legislative legislative power in Congress, any inquiry must be undertaken “in aid of the legislative
function.”function.”~~279~~297 This “legislative purpose” requirement is relatively generous, and generally This “legislative purpose” requirement is relatively generous, and generally
authorizes an investigation into any topic on which legislation could be had, including authorizes an investigation into any topic on which legislation could be had, including
investigations undertaken to inform Congress or its committees for purposes of determining how investigations undertaken to inform Congress or its committees for purposes of determining how
laws function, whether new laws are necessary, whether old laws should be repealed or altered, or laws function, whether new laws are necessary, whether old laws should be repealed or altered, or
to conduct oversight to ensure compliance with existing law.to conduct oversight to ensure compliance with existing law.~~280~~298 No committee, however, No committee, however,
“possesses the general power of making inquiry into the private affairs of the citizen.”“possesses the general power of making inquiry into the private affairs of the citizen.”~~281~~299
Moreover, the Supreme Court has determined that committee subpoenas for the President’s Moreover, the Supreme Court has determined that committee subpoenas for the President’s

~~273 See CRS Legal Sidebar, Prosecutions of Offenses Against Congress, by Todd Garvey.~~
~~274 18 U.S.C. § 6005.~~
~~275 Id.~~
~~276 Id.~~
~~277 See Kastigar v. United States, 406 U.S. 441, 453 (1972). While the witness may still be convicted of a crime based~~
~~on other evidence “wholly independent of the compelled testimony,” the existence of immunized testimony can make~~
~~such prosecutions more challenging. Id. at 460.~~
~~278~~personal records involve significant separation of powers concerns that trigger a different, more scrutinizing approach to the scope of Congress's power.300 In addition, because a congressional inquiry is part of “lawmaking,” a congressional committee engaged in an investigation generally must observe applicable constitutional restrictions and respect validly asserted constitutionally based privileges.301 Most, though not all, provisions of the Bill of Rights addressing the rights of individuals apply to a congressional investigation.302 For example, the First Amendment prevents a committee from interfering with a witness’s free speech or associational rights without an adequate legislative interest;303 the Fourth Amendment prevents the enforcement of an unreasonably broad subpoena;304 and the Fifth Amendment may be asserted in response to a congressional subpoena when compliance would tend to incriminate the witness.305 296 These limits generally include ensuring that the inquiry is within the jurisdiction of the investigating committee, and These limits generally include ensuring that the inquiry is within the jurisdiction of the investigating committee, and
undertaken in compliance with the committee’s own rules.undertaken in compliance with the committee’s own rules. See, e.g., Yellin v. United States, 374 U.S. 109, 114 (1963); , Yellin v. United States, 374 U.S. 109, 114 (1963);
United States v, Rumely, 345 U.S. 41, 47 (1953). United States v, Rumely, 345 U.S. 41, 47 (1953).
~~279~~297 Kilbourn v. Thompson, 103 U.S. 168, 204 (1881). Kilbourn v. Thompson, 103 U.S. 168, 204 (1881). See also Barenblatt v. United States, 360 U.S. 109, 111 (1959) Barenblatt v. United States, 360 U.S. 109, 111 (1959)
(“The power of inquiry has been employed by Congress throughout our history, over the whole range of the national (“The power of inquiry has been employed by Congress throughout our history, over the whole range of the national
interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly
been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the
power of inquiry, in short, is as penetrating and far reaching as the potential power to enact and appropriate under the power of inquiry, in short, is as penetrating and far reaching as the potential power to enact and appropriate under the
Constitution.”); Watkins v. United States, 354 U.S. 178, 187 (1957) (concluding that the investigative power “is broad . Constitution.”); Watkins v. United States, 354 U.S. 178, 187 (1957) (concluding that the investigative power “is broad .
. . encompass[ing] inquiries concerning the administration of existing laws as well as proposed or possibly needed . . encompass[ing] inquiries concerning the administration of existing laws as well as proposed or possibly needed
statutes”). statutes”).
~~280~~298 Watkins, 354 U.S. at 187. , 354 U.S. at 187.
~~281 Id.~~
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~~personal records involve significant separation of powers concerns that trigger a different, more~~
~~scrutinizing approach to the scope of Congress's power.282~~
~~In addition, because a congressional inquiry is part of “lawmaking,” a congressional committee~~
~~engaged in an investigation generally must observe applicable constitutional restrictions and~~
~~respect validly asserted constitutionally based privileges.283 Most, though not all, provisions of~~
~~the Bill of Rights addressing the rights of individuals apply to a congressional investigation.284~~
~~For example, the First Amendment prevents a committee from interfering with a witness’s free~~
~~speech or associational rights without an adequate legislative interest;285 the Fourth Amendment~~
~~prevents the enforcement of an unreasonably broad subpoena;286 and the Fifth Amendment may~~
~~be asserted in response to a congressional subpoena when compliance would tend to incriminate~~
~~the witness.287~~
~~Assertions of executive privilege may be invoked to limit a committee’s authority to obtain~~
~~information from executive branch agencies.288 Executive privilege is generally viewed as having~~
~~two~~299 Id. 300 Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032-36 (2020). In Mazars, the Court identified at least four “special considerations” to help lower courts to appropriately balance the “legislative interests of Congress” with “the ‘unique position’ of the President” when a committee subpoena seeks the President’s private papers. Id. at 2035. 301 Id. at 197 (“While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process.”). 302 For example, the D.C. Circuit has held that because of the “investigative” rather than “criminal” nature of committee hearings, the Sixth Amendment’s individual criminal procedural guarantees, including a party’s right to “present evidence on one’s own behalf and to confront and cross examine one’s accusers,” do not apply. United States v. Fort, 443 F.2d 670, 678–81 (D.C Cir. 1970). 303 Watkins, 345 U.S. at 197 (“Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly.”). See also Ward v. Thompson, No. 22-16473, 2022 U.S. App. LEXIS 30270, at *4–5 (9th Cir. Oct. 22, 2022) (rejecting First Amendment objections to a congressional subpoena); Senate Permanent Subcom., On Investigations v. Ferrer, 199 F. Supp. 3d 125, 143–44 (D.D.C. 2016) (same). 304 McPhaul v. United States, 364 U.S. 372, 282–83 (1960). 305 Quinn v. United States, 349 U.S. 155, 161 (1955); Emspak v. United States, 349 U.S. 190, 194 (1955). Congressional Research Service 36 link to page 27 Congress’s Authority to Influence and Control Executive Branch Agencies Assertions of executive privilege may be invoked to limit a committee’s ability to obtain information from executive branch agencies.306 Executive privilege is generally viewed as having two primary components: the deliberative process privilege, which protects the decisionmaking process of components: the deliberative process privilege, which protects the decisionmaking process of
the entire executive branch;the entire executive branch;~~289~~307 and the presidential communications privilege, which preserves the and the presidential communications privilege, which preserves the
confidentiality of direct decision making of the President.confidentiality of direct decision making of the President.~~290~~308 Both privileges are grounded in the Both privileges are grounded in the
notion that the executive branch must be able to discuss different options and approaches notion that the executive branch must be able to discuss different options and approaches
candidly without fear that its communications will become public.candidly without fear that its communications will become public.~~291~~309
The deliberative process privilege is often implicated during committee investigations into The deliberative process privilege is often implicated during committee investigations into
agency decisionmaking, and as a result, may prompt conflict between committees and agencies. agency decisionmaking, and as a result, may prompt conflict between committees and agencies.
While the Supreme Court has found the presidential communications privilege to be implied in While the Supreme Court has found the presidential communications privilege to be implied in
the Constitution,the Constitution,~~292~~310 the legal source from which the deliberative process privilege stems is less clear. Whereas one court has suggested that the privilege “is primarily a common law privilege,”311 another has held that it has “constitutional dimension[s].”312 Yet because congressional committees have generally claimed discretion in whether to recognize common law privileges asserted by a witness,313 the legal source of the deliberative process privilege may affect the degree to which the privilege limits congressional investigations.314 306 See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974). 307 ~~the legal source from which the deliberative process privilege stems is less~~

~~282 Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032-36 (2020). In Mazars, the Court identified at least four “special~~
~~considerations” to help lower courts to appropriately balance the “legislative interests of Congress” with “the ‘unique~~
~~position’ of the President” when a committee subpoena seeks the President’s private papers. Id. at 2035.~~
~~283 Id. at 197 (“While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless~~
~~an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process.”).~~
~~284 For example, the D.C. Circuit has held that because of the “investigative” rather than “criminal” nature of~~
~~committee hearings, the Sixth Amendment’s individual criminal procedural guarantees, including a party’s right to~~
~~“present evidence on one’s own behalf and to confront and cross examine one’s accusers,” do not apply. United States~~
~~v. Fort, 443 F.2d 670, 678–81 (D.C Cir. 1970).~~
~~285 Watkins, 345 U.S. at 197 (“Clearly, an investigation is subject to the command that the Congress shall make no law~~
~~abridging freedom of speech or press or assembly.”).~~
~~286 McPhaul v. United States, 364 U.S. 372, 282–83 (1960).~~
~~287 Quinn v. United States, 349 U.S. 155, 161 (1955); Emspak v. United States, 349 U.S. 190, 194 (1955).~~
~~288 See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).~~
~~289~~ A document is only protected under the privilege if it is (1) “predecisional” (i.e., communications made prior to A document is only protected under the privilege if it is (1) “predecisional” (i.e., communications made prior to
reaching an agency decision) and (2) “deliberative” (i.e., communications relating to the thought process of executive reaching an agency decision) and (2) “deliberative” (i.e., communications relating to the thought process of executive
officials that are not “purely factual”). officials that are not “purely factual”). See In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
~~290~~308 See id. at 745 (“While the presidential communications privilege and the deliberative process privilege are closely . at 745 (“While the presidential communications privilege and the deliberative process privilege are closely
affiliated, the two privileges are distinct and have different scopes.”). For a thorough discussion of executive privilege, affiliated, the two privileges are distinct and have different scopes.”). For a thorough discussion of executive privilege,
see CRS Report see CRS Report ~~R42670,~~ ~~Presidential Claims of Executive Privilege: History, Law, Practice, and Recent~~
~~Developments, by Todd Garvey.~~
~~291~~R47102, Executive Privilege and Presidential Communications: Judicial Principles, by Todd Garvey. 309 See United States v. Nixon, 418 U.S. 683, 708 (1974) (describing the “public interest in candid, objective, and even United States v. Nixon, 418 U.S. 683, 708 (1974) (describing the “public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making”); blunt or harsh opinions in Presidential decision-making”); Lynch, 156 F. Supp. 3d at 111 (noting that the purpose of the , 156 F. Supp. 3d at 111 (noting that the purpose of the
deliberative process privilege “is to protect the decision-making process within government agencies and to encourage deliberative process privilege “is to protect the decision-making process within government agencies and to encourage
‘the frank discussion of legal and policy issues’ by ensuring that agencies are not ‘forced to operate in a fishbowl’”) ‘the frank discussion of legal and policy issues’ by ensuring that agencies are not ‘forced to operate in a fishbowl’”)
(citations omitted). (citations omitted).
~~292~~310 Nixon, 418 U.S. at 708 (concluding that the presidential communications privilege is “inextricably rooted in the , 418 U.S. at 708 (concluding that the presidential communications privilege is “inextricably rooted in the
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~~clear. Whereas one court has suggested that the privilege “is primarily a common law~~
~~privilege,”293 another has held that it has “constitutional dimension[s].”294 Yet because~~
~~congressional committees have generally claimed discretion in whether to recognize common law~~
~~privileges asserted by a witness,295 the legal source of the deliberative process privilege may~~
~~affect the degree to which the privilege limits congressional investigations.296~~
~~Informal Committee Controls: Report Language~~
~~While legislative enactments have the force and effect of law, committees may also use non-~~
~~binding report language associated with passed legislation to influence agency action.297 Report~~
~~language~~separation of powers under the Constitution”) 311 In re Sealed Case, 121 F. 3d at 737 (opining that, while the “privilege is most commonly encountered in [FOIA] litigation, it originated as a common law privilege”). 312 Lynch, 156 F. Supp. 3d at 104 (concluding that “the privilege could be properly invoked in response to a legislative demand”). 313 But see Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020) (suggesting that recipients of a subpoena “have long been understood to retain common law … privileges”). For a discussion of the application of common law privileges in congressional investigations, see Davis et al., Congressional Oversight Manual, supra note 202, at 61–64. 314 See H. COMM. ON NAT. RES. RULE 4(g) (“Claims of common-law privileges made by witnesses in hearings, or by interviewees or deponents in investigations or inquiries, are applicable only at the discretion of the Chairman, subject to appeal to the Committee.”). Congressional Research Service 37 link to page 21 link to page 41 link to page 15 Congress’s Authority to Influence and Control Executive Branch Agencies Informal Controls: Report Language While legislative enactments have the force and effect of law, committees or Members might also use report language to influence agency action.315 Report language normally draws its ability to influence not from the law, but from the draws its ability to influence not from the law, but from the ~~committee’s relationship~~
~~with the agencies it oversees.298 This tool~~fact that Congress or committees have ongoing legislative and oversight relationships with the agency in question.316 Report language may be used to direct the use of appropriated funds, as may be used to direct the use of appropriated funds, as
well as to guide an agency in implementing well as to guide an agency in implementing delegated authority.317 Report language can be created at various points in a bill’s consideration, such as when a committee of jurisdiction favorably reports a bill or when the two chambers work to resolve differences between the House- and Senate-passed versions of a bill.318~~delegated authority.299~~
~~In general, committee report language refers to any information provided in a report that~~
~~accompanies legislation approved by the committee.300~~ When directed toward agencies, When directed toward agencies,
~~committee~~ report language generally is used to communicate report language generally is used to communicate ~~committee~~ preferences to the agency preferences to the agency
tasked with carrying out the measure once it becomes law. The purpose of tasked with carrying out the measure once it becomes law. The purpose of ~~committee~~ report report
language can range from explaining language can range from explaining ~~the committee’s~~an interpretation of certain provisions of the interpretation of certain provisions of the
~~bill to directly articulating a~~ bill to report matter phrased as a requirement or prohibition on the agencyrequirement or prohibition on the agency ~~which may not be~~, whether or not it is directly directly
referenced in the bill’s text.referenced in the bill’s text.~~301~~ 319 Although report language itself is Although report language itself is generally not legally binding in the same manner as statutory text,320 agencies often seek to comply with any directives contained within a report.321 If an 315~~not legally binding in the same~~

~~separation of powers under the Constitution”)~~
~~293 In re Sealed Case, 121 F. 3d 729, 737 (D.C. Cir. 1997) (opining that, while the “privilege is most commonly~~
~~encountered in [FOIA] litigation, it originated as a common law privilege”).~~
~~294 Lynch, 156 F. Supp. 3d at 104 (concluding that “the privilege could be properly invoked in response to a legislative~~
~~demand”).~~
~~295 But see Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020) (suggesting that recipients of a subpoena “have~~
~~long been understood to retain common law … privileges”). For a discussion of the application of common law~~
~~privileges in congressional investigations, see Davis et al., Congressional Oversight Manual, supra note 189, at 61-64.~~
~~296 See H. COMM. ON NAT. RES. RULE 4(g) (“Claims of common-law privileges made by witnesses in hearings, or by~~
~~interviewees or deponents in investigations or inquiries, are applicable only at the discretion of the Chairman, subject to~~
~~appeal to the Committee.”).~~
~~297~~ See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (holding that “where Congress merely appropriates lump-sum Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (holding that “where Congress merely appropriates lump-sum
amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend
to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds
should or are expected to be spent do not establish any legal requirements on the agency”) (internal quotation marks should or are expected to be spent do not establish any legal requirements on the agency”) (internal quotation marks
omitted). Committee report language, in addition to other forms of legislative history, can also impact how a court omitted). Committee report language, in addition to other forms of legislative history, can also impact how a court
interprets ambiguous statutory language. interprets ambiguous statutory language. See Garcia v. United States, 469 U.S. 70, 76 (1984) (noting that committee Garcia v. United States, 469 U.S. 70, 76 (1984) (noting that committee
reports are an “authoritative source for finding the Legislature’s intent”). reports are an “authoritative source for finding the Legislature’s intent”).
~~298~~316 See Vigil, 508 U.S. at 193 (reasoning that although report language cannot, 508 U.S. at 193 (reasoning that although report language cannot on its own impose legally binding restrictions impose legally binding restrictions, “an “an
agency’s decision to ignore congressional expectations” as articulated in agency’s decision to ignore congressional expectations” as articulated in ~~congressional~~such reports “may expose it to grave reports “may expose it to grave
political consequences”). political consequences”).
~~299~~317 See CONGRESSIONAL QUARTERLY, GUIDE TO CONGRESS 485 (5th ed. 2000) (“It has been common practice for CONGRESSIONAL QUARTERLY, GUIDE TO CONGRESS 485 (5th ed. 2000) (“It has been common practice for
committees, including House-Senate conference committees, to write in their reports instructions directing government committees, including House-Senate conference committees, to write in their reports instructions directing government
agencies on interpretation and enforcement of the law.”). agencies on interpretation and enforcement of the law.”).
~~300 Report language is also commonly included in the joint explanatory statement accompanying the conference report~~
~~issued by a conference committee of the House and Senate. In recent years, it has become common for the chambers,~~
~~when resolving their legislative differences in a manner other than by conference committee, to publish an~~
~~“Explanatory Statement” or “Statement of Managers” which serves the same purpose. See CRS Report R44124,~~
Appropriations Report Language: Overview of Development, Components, and Issues for Congress, by Jessica
~~Tollestrup.~~
301 See John C. Roberts, Are Congressional Committees Constitutional?: Radical Textualism, Separation of Powers,
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~~manner as statutory text,302 agencies usually seek to comply with any directives contained within~~
~~a committee report.303 If an agency ignores report language, it runs the risk of offending its~~
~~appropriating committee or another committee with jurisdiction over it,~~ 318 Report language generated as Congress resolves differences in chamber-passed legislation will be titled differently, depending on the resolution method used. Under chamber rules, a joint explanatory statement is a formal product of a conference committee and accompanies a conference report, while under chamber practice an explanatory statement is an informal product as Congress resolves chamber differences using an exchange of amendments between the Houses rather than a conference committee. See CRS Report R46899, Regular Appropriations Acts: Selected Statutory Interpretation Issues, by Sean M. Stiff, at 13. 319 See Roberts, supra note 155, at 561–63; see also, e.g., H.R. REP. NO. 116-456, at 75 (2020) (“The Committee believes [the General Services Administration (GSA)] has the authority and discretion to upgrade GSA-controlled buildings containing child care centers to meet minimum security standards. The Committee directs GSA to pursue implementation of these countermeasures by either gaining tenant agency approvals and amortizing the costs into their occupancy agreements or incorporating the upgrades necessary into existing building repairs and alterations projects.”). 320 See Clinton Mem’l Hosp. v. Shalala, 10 F.3d 854, 858 (D.C. Cir. 1993) (questioning the force of a committee report that was “neither adopted by the House nor presented to the President”). However, report language is generally understood to carry legal consequences in at least two circumstances: (1) where report matter is incorporated by reference into its accompanying bill, see Stiff, Regular Appropriations Acts, supra note 318, at 33–36 , and (2) where report matter addresses allocations of appropriations between the various “programs, projects, or activities” of that account, allocations that are generally understood to figure in an agency’s compliance with statutory report-and-wait reprogramming requirements, see Stiff, Power Over Appropriations, supra note 99, at 36–37. 321 See CRS Report R44124, Appropriations Report Language: Overview of Development and Components, by Drew C. Aherne, at 4 n.16. Congressional Research Service 38 link to page 21 link to page 42 link to page 19 Congress’s Authority to Influence and Control Executive Branch Agencies agency ignores report language, it runs the risk of offending the authoring committee or Member, increasing the likelihood increasing the likelihood
of future informalof future informal ~~committee-imposed~~ consequences or more formal legislative consequences consequences or more formal legislative consequences
imposed by Congress at the behest of the committee.imposed by Congress at the behest of the committee.~~304~~322
In the appropriations context, report language has been used as a non-binding alternative to the In the appropriations context, report language has been used as a non-binding alternative to the
types of committee controls held unconstitutional in types of committee controls held unconstitutional in Chadha..~~305~~323 For example, committees have For example, committees have
inserted language into committee reports that purport to require an agency to obtain the inserted language into committee reports that purport to require an agency to obtain the
committee’s approval before reprogramming funds.committee’s approval before reprogramming funds.~~306~~324 In other instances, agencies have reached In other instances, agencies have reached
informal agreements in which the agency accedes to some form of limited committee control over informal agreements in which the agency accedes to some form of limited committee control over
agency decisionmaking.agency decisionmaking.~~307~~325 Because report language and other informal arrangements between an Because report language and other informal arrangements between an

and the Enactment Process, 52 CASE W. RES. 489, 561–63 (2001). See, e.g., H.R. REP. NO. 456, at 75 (2020) (“The
~~Committee believes [the General Services Administration (GSA)] has the authority and discretion to upgrade GSA-~~
~~controlled buildings containing child care centers to meet minimum security standards. The Committee directs GSA to~~
~~pursue implementation of these countermeasures by either gaining tenant agency approvals and amortizing the costs~~
~~into their occupancy agreements or incorporating the upgrades necessary into existing building repairs and alterations~~
~~projects.”).~~
~~302 See Clinton Mem’l Hosp. v. Shalala, 10 F.3d 854, 858 (D.C. Cir. 1993) (questioning the force of a committee report~~
~~that was “neither adopted by the House nor presented to the President”). Committee report language can become~~
~~binding if it is incorporated by reference into the enacted law. See 64 COMP. GEN. 359 (1985) (“It is a general principle~~
~~of appropriation law that directions in committee reports, floor debates and hearings, or statements in agency budget~~
~~justifications are not legally binding on an agency unless they are incorporated, either expressly or by reference, in an~~
~~appropriation act itself or in some other statute.”).~~
~~303 RICHARD FENNO, THE POWER OF THE PURSE: APPROPRIATIONS POLITICS IN CONGRESS 18 (1966) (“[T]he criticisms~~
~~and suggestions carried in the reports accompanying each bill are expected to influence the subsequent behavior of the~~
~~agency. Committee reports are not the law, but it is expected that they be regarded almost as seriously.”).~~
~~304 Roberts, supra note 301~~agency and a committee do not have the force and effect of law, these tools do not violate constitutional principles of presentment and bicameralism laid out by the Supreme Court in Chadha.326 If agencies comply with report language, they do so voluntarily. As one appellate court has noted, “there is nothing unconstitutional about . . . such informal cooperation.”327 By the same token, because an agency is not bound by such prior-approval arrangements, an agency can decide to disregard the arrangement and (for example) obligate funds for a particular program even when a committee disapproves of the planned obligations.328 322 Roberts, supra note 155, at 562–63 (noting that “agencies make special efforts to catalogue and track” report at 562–63 (noting that “agencies make special efforts to catalogue and track” report
language that interprets ambiguous statutory language, and arguing that “[t]hey do so not because committee report language that interprets ambiguous statutory language, and arguing that “[t]hey do so not because committee report
language is ‘law’ in the same sense as the statute is law, but rather because committee direction is part of the language is ‘law’ in the same sense as the statute is law, but rather because committee direction is part of the
complicated system of communication between Congress and the agencies, involving authorization of new programs, complicated system of communication between Congress and the agencies, involving authorization of new programs,
appropriation of funds, and general oversight of agency operations”); appropriation of funds, and general oversight of agency operations”); In re LTV Aerospace Corp., 55 Comp. Gen. 307, LTV Aerospace Corp., 55 Comp. Gen. 307,
324–25 (1975) (“This does not mean agencies are free to ignore clearly expressed legislative history applicable to the 324–25 (1975) (“This does not mean agencies are free to ignore clearly expressed legislative history applicable to the
use of appropriated funds. They ignore such expressions of intent at the peril of strained relations with the Congress. use of appropriated funds. They ignore such expressions of intent at the peril of strained relations with the Congress.
The Executive Branch . . . has a practical duty to abide by such expressions. This duty, however, must be understood to The Executive Branch . . . has a practical duty to abide by such expressions. This duty, however, must be understood to
fall short of a statutory requirement giving rise to a legal infraction where there is a failure to carry out that duty.”). fall short of a statutory requirement giving rise to a legal infraction where there is a failure to carry out that duty.”).
~~305~~323 See Richard J. Lazarus, Richard J. Lazarus, Congressional Descent: The Demise of Deliberative Democracy in Environmental Law, 94 , 94
GEO. L.J. 619, 651 (2006) (“The obvious question raised is why federal agencies comply with these directives when it GEO. L.J. 619, 651 (2006) (“The obvious question raised is why federal agencies comply with these directives when it
is clear that they formally lack the force of law. The answer lies in the agency’s working assumption that an agency is clear that they formally lack the force of law. The answer lies in the agency’s working assumption that an agency
cannot afford to risk angering the legislative committee that is primarily responsible for its current and future cannot afford to risk angering the legislative committee that is primarily responsible for its current and future
appropriations.”). appropriations.”).
~~306~~324 See Kate Stith, Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CALIF. L. REV. 595, , 76 CALIF. L. REV. 595,
613 (1998) (“Many federal agencies and their congressional appropriation subcommittees routinely agree to a set of 613 (1998) (“Many federal agencies and their congressional appropriation subcommittees routinely agree to a set of
reprogramming procedures. Most commonly, the agency agrees to obtain subcommittee approval before departing reprogramming procedures. Most commonly, the agency agrees to obtain subcommittee approval before departing
substantially from—that is, ‘reprogramming’—the expenditure breakdown that the agency advanced in its budget substantially from—that is, ‘reprogramming’—the expenditure breakdown that the agency advanced in its budget
justifications or that committee adopted in the report accompanying the agency's appropriations. There is a general justifications or that committee adopted in the report accompanying the agency's appropriations. There is a general
agency practice of adhering to reprogramming agreements–a practice so well established that in most cases the agency practice of adhering to reprogramming agreements–a practice so well established that in most cases the
agreements are treated as ‘binding’ by all concerned.”). For additional examples of “directives” contained in committee agreements are treated as ‘binding’ by all concerned.”). For additional examples of “directives” contained in committee
reports reports see Lazarus, Lazarus, supra no note ~~305~~323, at 649–52 (discussing committee report language pertaining to the obligations of at 649–52 (discussing committee report language pertaining to the obligations of
Environmental Protection Agency, the Fish and Wildlife Service, and the Forest Service). Environmental Protection Agency, the Fish and Wildlife Service, and the Forest Service).
~~307 See Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 LAW & CONTEMP. PROBS. 273, 289–90 (1993)~~
~~(describing an informal agreement between the National Aeronautics and Space Administration and congressional~~
~~committees in which the agency pledged to comply with spending caps found in a conference report); FENNO,~~ ~~supra~~
~~note 303, at 21–24.~~
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~~agency and a committee do not have the force and effect of law, these tools do not violate~~
~~constitutional principles of presentment and bicameralism laid out by the Supreme Court in~~
Chadha.308 If agencies comply with committee report language, they do so voluntarily. As one
~~appellate court has noted, “there is nothing unconstitutional about . . . such informal~~
~~cooperation.”309~~
~~Tools for Individual Members~~
~~Individual Members also~~ 325 See CRS Report R46421, DOD Transfer and Reprogramming Authorities: Background, Status, and Issues for Congress, by Brendan W. McGarry, at 12 (describing non-statutory prior approval processes employed by the Department of Defense). 326 See supra “Constitutional Limits on Non-statutory Legislative Actions” (discussing Immigr. & Naturalization Servs. v. Chadha, 462 U.S. 919 (1983)); cf. Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 684 (9th Cir. 2007) (“Members of Congress cannot use committee report language to make an end run around the requirements of Article I. If Congress wishes to alter the legal duties of persons outside the legislative branch, including administrative agencies, it must use the process outlined in Article I.”). 327 Alexandria v. United States, 737 F.2d 1022, 1026 (Fed. Cir. 1984). 328 See, e.g., Letter to the Honorable David L. Norquist, Under Secretary of Defense, Comptroller and Chief Financial Officer, U.S. Department of Defense, from the Honorable Adam Smith, Chairman, U.S. House Committee on Armed Services, at 1 (Mar. 26, 2019) (communicating committee’s disapproval of agency’s proposed use of transfer authority). Congressional Research Service 39 link to page 27 link to page 27 Congress’s Authority to Influence and Control Executive Branch Agencies Tools for Individual Members Individual Members have several tools at their disposal to influence agency action. Members have several tools at their disposal to influence agency action. Members
may seek the disclosure of information from agency officials through voluntary cooperation. may seek the disclosure of information from agency officials through voluntary cooperation. ~~And~~
~~procedural~~Procedural rules and customary practices of the House, Senate, or committees may accord rules and customary practices of the House, Senate, or committees may accord
specific powers to individual Members that enable them to exert some level of influence over specific powers to individual Members that enable them to exert some level of influence over
matters affecting administrative agencies.matters affecting administrative agencies.~~310~~329 For example, committee rules typically provide For example, committee rules typically provide
committee chairs significant authority to compel disclosure of information from administrative committee chairs significant authority to compel disclosure of information from administrative
agencies or engage in other oversight activities on behalf of their committees on matters within agencies or engage in other oversight activities on behalf of their committees on matters within
those committees’ jurisdiction.those committees’ jurisdiction.~~311 And if~~330 If an individual Member an individual Member is authorized by a committee, authorized by a committee,
one house, or Congress as a whole, the Member may be “endowed with the full power of the house, or Congress as a whole, the Member may be “endowed with the full power of the
Congress to compel testimonyCongress to compel testimony~~,”312 for, as the Supreme Court has recognized, “each Member of~~
~~Congress is ‘an officer of the union, deriving his powers and qualifications from the~~
~~[C]onstitution.’”313~~
.”331 Individual Members may also avail themselves of certain statutes to obtain information from Individual Members may also avail themselves of certain statutes to obtain information from
administrative agencies. For instance, 5 U.S.C. § 2954 (also known as the “Seven Member administrative agencies. For instance, 5 U.S.C. § 2954 (also known as the “Seven Member
Rule”Rule”~~314~~332 or “Rule of Seven” or “Rule of Seven” ~~statute315~~statute333) provides that, upon receipt of a request for information ) provides that, upon receipt of a request for information
from from ~~any~~any334 seven Members of the House Oversight and seven Members of the House Oversight and ~~Government Reform~~Accountability Committee or five Committee or five
Members of the Senate Committee on Homeland Security and Governmental Affairs, an Members of the Senate Committee on Homeland Security and Governmental Affairs, an
executive agency “shall submit any information requested of it relating to any matter within the executive agency “shall submit any information requested of it relating to any matter within the
jurisdiction of the committee.”jurisdiction of the committee.”~~316~~335 Other statutes authorize or require agencies to disclose records that are otherwise exempt from disclosure specifically to an individual Member of Congress.336 329 ~~Other statutes authorize or require agencies to disclose records~~

~~308 See supra “Constitutional Limits on Non-statutory Legislative Actions” (discussing Immigration & Naturalization~~
~~Servs. v. Chadha, 462 U.S. 919 (1983)); cf. Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 684 (9th~~
~~Cir. 2007) (“Members of Congress cannot use committee report language to make an end run around the requirements~~
~~of Article I. If Congress wishes to alter the legal duties of persons outside the legislative branch, including~~
~~administrative agencies, it must use the process outlined in Article I.”).~~
~~309 Alexandria v. United States, 737 F.2d 1022, 1026 (Fed. Cir. 1984).~~
~~310~~ For example, as a matter of institutional practice, individual Senators can delay consideration of executive branch For example, as a matter of institutional practice, individual Senators can delay consideration of executive branch
nominees by placing “holds” on nominations and delay or even prevent consideration of legislation affecting nominees by placing “holds” on nominations and delay or even prevent consideration of legislation affecting
administrative agencies via the filibuster. administrative agencies via the filibuster. See Charles Tiefer, Charles Tiefer, Congressional Oversight of the Clinton Administration
and Congressional Procedure, 50 ADMIN. L. REV. 199, 202, 205–06 (1998); CRS Report 96-548, , 50 ADMIN. L. REV. 199, 202, 205–06 (1998); CRS Report 96-548, The Legislative
Process on the Senate Floor: An Introduction, by Valerie Heitshusen, at 3. , by Valerie Heitshusen, at 3. ~~And individual~~Individual Members of the House can Members of the House can
introduce resolutions of inquiry. introduce resolutions of inquiry. See supra “Resolutions of Inquiry.” Procedural rules, however, may also prohibit Procedural rules, however, may also prohibit
individual Members from engaging in certain actions, such as issuing subpoenas.individual Members from engaging in certain actions, such as issuing subpoenas. See HOUSE RULE XI 2(m)(1), (3); HOUSE RULE XI 2(m)(1), (3);
SENATE RULE XXVI(1). SENATE RULE XXVI(1).
~~311~~330 Some committees, for instance, authorize their chair to issue subpoenas. Some committees, for instance, authorize their chair to issue subpoenas. See, e.g., S. COMM. ON THE JUDICIARY RULE , S. COMM. ON THE JUDICIARY RULE
IX. IX.
~~312~~331 Watkins v. United States, 354 U.S. 178, 200–01 (1957). Watkins v. United States, 354 U.S. 178, 200–01 (1957).
~~313 United States Term Limits v. Thornton, 514 U.S. 779, 803 (1995) (quoting 1 JOSEPH STORY, COMMENTARIES ON THE~~
~~CONSTITUTION OF THE UNITED STATES § 627 (1833)).~~
~~314~~332 Cummings v. Murphy, 321 F. Supp. 3d 92, 95 (D.D.C. 2018). Cummings v. Murphy, 321 F. Supp. 3d 92, 95 (D.D.C. 2018).
~~315~~333 See Davis Davis ~~et al.~~, , Congressional Oversight Manual, , supra no note ~~189,~~ ~~at 72.~~
~~316 5 U.S.C. § 2954. While the agency’s responsibility to provide the requested information is drafted in mandatory~~
~~terms, courts have, in certain instances, refused to assert jurisdiction over suits concerning agency non-compliance with~~
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~~that are otherwise exempt from disclosure specifically to an individual Member of Congress.317~~
~~Individual Members may also secure information through reliance on the statutory authority~~
~~granted certain investigative agencies—such as the Government Accountability Office—to~~
~~investigate and oversee administrative agencies.318 In addition, individual Members may submit~~
~~requests for agency records under FOIA.319~~
~~Individual Members may also seek to influence or control the executive branch through the~~
~~initiation of lawsuits challenging executive branch action. However, an individual Member who~~
~~wishes to institute such a lawsuit faces a significant obstacle unrelated to the merits of his or her~~
~~case. After the Supreme Court’s 1997 decision in Raines v. Byrd,320 an individual Member~~

202, at 72. 334 The House recently adopted a separate order that would appear to significantly restrict minority Members’ use of this provision. Under the order, the “chair of the Committee on Oversight and Accountability must be included as one of the seven members of the committee making any request of an Executive agency pursuant to section 2954.” H.R. Res. 5, 118th Cong. (2023). This change would appear to be in tension with the text of the statute, which specifically empowers “any seven members” of the named committees. 5 U.S.C. § 2954. 335 5 U.S.C. § 2954. While the agency’s responsibility to provide the requested information is drafted in mandatory terms, courts have, in certain instances, refused to assert jurisdiction over suits concerning agency non-compliance with Section 2954. Section 2954. See, e.g., , Cummings, 321 F. Supp. 3d 92. However, in , 321 F. Supp. 3d 92. However, in Maloney v. Murphy, 984 F.3d 50 (D.C. Cir. 2020), , 984 F.3d 50 (D.C. Cir. 2020),
the D.C. Circuit held that the ranking and seven other Members of the House Oversight Committee had standing to the D.C. Circuit held that the ranking and seven other Members of the House Oversight Committee had standing to
challenge the General Services Administration’s (GSA’s) refusal to provide information to the Members pursuant to challenge the General Services Administration’s (GSA’s) refusal to provide information to the Members pursuant to
their request under Section 2954. their request under Section 2954. Id. at 54at 54, petition for cert. filed. The Court explained that GSA’s “failure to provide information to which . The Court explained that GSA’s “failure to provide information to which
the [Members] are statutorily entitled is a quintessential form of concrete and particularized injury within the meaning the [Members] are statutorily entitled is a quintessential form of concrete and particularized injury within the meaning
of Article III” of the Constitution. of Article III” of the Constitution. Id. at 59. The court remanded the case to the district court, however, so at 59. The court remanded the case to the district court, however, so that the lower the lower
court could determine the remaining questions in the case, including whether Section 2954 provides a cause of action court could determine the remaining questions in the case, including whether Section 2954 provides a cause of action
and, and, ~~even~~if so, whether it applies to the information at issue. so, whether it applies to the information at issue. Id. at 58, 70. at 58, 70.
~~317~~336 See, e.g., 6 U.S.C. § 623(f) (providing that “[n]othing in this section shall prohibit the Secretary [of the Department , 6 U.S.C. § 623(f) (providing that “[n]othing in this section shall prohibit the Secretary [of the Department
of Homeland Security] from disclosing [security related information developed under the Chemical Facility Anti-of Homeland Security] from disclosing [security related information developed under the Chemical Facility Anti-
Terrorism Standards Program] to a Member of Congress in response to a request by a Member of Congress”); 19 Terrorism Standards Program] to a Member of Congress in response to a request by a Member of Congress”); 19
U.S.C. § 4203(a)(1)(B) (providing that, “[i]n the course of negotiations conducted under this chapter, the United U.S.C. § 4203(a)(1)(B) (providing that, “[i]n the course of negotiations conducted under this chapter, the United Congressional Research Service 40 link to page 17 link to page 17 Congress’s Authority to Influence and Control Executive Branch Agencies Individual Members may also secure information through indirect reliance on the statutory authority granted certain investigative agencies—such as the Government Accountability Office—to investigate and oversee administrative agencies.337 In addition, individual Members may submit requests for agency records under FOIA.338 Individual Members may also seek to influence or control the executive branch through the initiation of lawsuits challenging executive branch action. However, an individual Member who wishes to institute such a lawsuit faces a significant obstacle to maintain suit: standing.339 After the Supreme Court’s 1997 decision in Raines v. Byrd,340 an individual Member generally will have standing to sue an executive branch agency or official in federal court only if his or her States ~~States~~
Trade Representatives shall . . . upon request of any Member of Congress, provide access to pertinent documents Trade Representatives shall . . . upon request of any Member of Congress, provide access to pertinent documents
relating to the negotiations, including classified materials”). Many statutes authorize or direct agencies to disclose relating to the negotiations, including classified materials”). Many statutes authorize or direct agencies to disclose
certain records to Congress or congressional committees, but do not specifically include a reference to individual certain records to Congress or congressional committees, but do not specifically include a reference to individual
Members. For example, under the Privacy Act, an agency may disclose otherwise protected information about an Members. For example, under the Privacy Act, an agency may disclose otherwise protected information about an
individual “to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or individual “to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or
subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee.”subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee.” Id.
§ 552a(b)(9). Similarly, FOIA’s “special-§ 552a(b)(9). Similarly, FOIA’s “special- access” provision states that FOIA does not enable agencies “to withhold access” provision states that FOIA does not enable agencies “to withhold
information from information from Congress.” .” Id. § 552(d) (emphasis added). DOJ has concluded that § 552(d) (emphasis added). DOJ has concluded that ~~generally~~ committee chairs committee chairs generally are the are the
only individual Members authorized to obtain records on behalf of committees under the congressional-disclosure only individual Members authorized to obtain records on behalf of committees under the congressional-disclosure
provision of the Privacy Act and FOIA’s special-provision of the Privacy Act and FOIA’s special- access provision. Under DOJ’s interpretation, even ranking minority access provision. Under DOJ’s interpretation, even ranking minority
members are unable to obtain records pursuant to these provisions, absent authorization. members are unable to obtain records pursuant to these provisions, absent authorization. See Authority of Individual Authority of Individual
Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. 1, 1 (2017) (opining that “the Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. 1, 1 (2017) (opining that “the
constitutional authority to conduct oversight . . . may be exercised only by each house of Congress or, under existing constitutional authority to conduct oversight . . . may be exercised only by each house of Congress or, under existing
delegations, by committees and subcommittees (or their chairmen)”) (internal citation and quotation marks omitted)delegations, by committees and subcommittees (or their chairmen)”) (internal citation and quotation marks omitted)); ;
Application of Privacy Act Congressional-Disclosure Exception to Disclosures to Ranking Minority Members, 25 Op. Application of Privacy Act Congressional-Disclosure Exception to Disclosures to Ranking Minority Members, 25 Op.
O.L.C. 289, 289–90 (2001) (asserting that “the Privacy Act’s congressional-disclosure exception does not generally O.L.C. 289, 289–90 (2001) (asserting that “the Privacy Act’s congressional-disclosure exception does not generally
apply to disclosures to ranking minority members”); DEP’T OF JUSTICE, OFFICE OF INFO. POL’Y, FOIA UPDATE: OIP apply to disclosures to ranking minority members”); DEP’T OF JUSTICE, OFFICE OF INFO. POL’Y, FOIA UPDATE: OIP
GUIDANCE: CONGRESSIONAL ACCESS UNDER FOIA 1–2 (1984) (stating that disclosure under FOIA’s special-access rule GUIDANCE: CONGRESSIONAL ACCESS UNDER FOIA 1–2 (1984) (stating that disclosure under FOIA’s special-access rule
to an individual Member is only appropriate where the request is made “by a committee or subcommittee chairman, or to an individual Member is only appropriate where the request is made “by a committee or subcommittee chairman, or
otherwise under the authority of a committee or subcommittee”). For an overview of FOIA’s specialotherwise under the authority of a committee or subcommittee”). For an overview of FOIA’s special -access provision, access provision,
see Sheffner, Sheffner, FOIA, , supra no note ~~109~~121, at 49 at 49-–51. DOJ’s interpretation, however, is not universally held. 51. DOJ’s interpretation, however, is not universally held. See, e.g., Murphy , Murphy
v. Dep’t of the Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979) (writing, in dicta, that v. Dep’t of the Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979) (writing, in dicta, that ~~“[i]t~~ it “would be an inappropriate would be an inappropriate
intrusion into the legislative sphere for the courts to decide without congressional direction that, for example, only the intrusion into the legislative sphere for the courts to decide without congressional direction that, for example, only the
chairman of a committee shall be regarded as the official voice of the Congress for purposes of receiving such chairman of a committee shall be regarded as the official voice of the Congress for purposes of receiving such
information, as distinguished from its ranking minority member, other committee members, or other members of the information, as distinguished from its ranking minority member, other committee members, or other members of the
Congress”). Congress”).
~~318~~337 See, e.g., Nat’l Ass’n of Chain Drug Stores v. , Nat’l Ass’n of Chain Drug Stores v. ~~HHS~~U.S. Dep’t of Health & Hum. Servs., 631 F. Supp. 2d 17, 22 (D.D.C. , 631 F. Supp. 2d 17, 22 (D.D.C. 2009) (“The Supreme Court has also held that if GAO has the independent authority to conduct an evaluation, it is irrelevant that GAO initiated that evaluation at the request of an individual member of Congress.”) (amending a prior preliminary injunction at the request of the Department of Health and Human Services (HHS) to allow HHS to disclose certain information to the Government Accountability Office (GAO) and rejecting arguments from plaintiff pharmacy defendants seeking to bar disclosure on the grounds that GAO allegedly lacked authority to conduct the review because GAO undertook the review at the request of a committee ranking member). 338~~2009) (holding that “it is~~
~~irrelevant that [the Government Accountability Office (GAO)] exercises [its statutory authority under 31 U.S.C. §~~
~~717(b)(1) to investigate the disbursement, receipt, and use of public money] at the request of an individual member of~~
~~Congress” and ordering the Department of Health and Human Services to disclose information to GAO).~~
~~319~~ 5 U.S.C. § 552. 5 U.S.C. § 552. See Sheffner, Sheffner, FOIA, , supra no note ~~109~~121, for more information on FOIA. for more information on FOIA.
~~320~~339 To pursue a lawsuit in federal court, a plaintiff must have standing. The standing doctrine is derived from Article III of the Constitution, which limits federal court jurisdiction to “Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl. 1. Under Article III, a plaintiff has standing only if he alleges “that he ‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’” Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016)). 340 521 U.S. 811 (1997). In 521 U.S. 811 (1997). In Raines, the Supreme Court held that individual Members of Congress who had voted , the Supreme Court held that individual Members of Congress who had voted
against the Line Item Veto Act of 1996, Pub. L. No. 104-130, 110 Stat. 1200, did not have standing to sue. 521 U.S. at against the Line Item Veto Act of 1996, Pub. L. No. 104-130, 110 Stat. 1200, did not have standing to sue. 521 U.S. at
829. The Member-plaintiffs alleged that the Act (1) “alter[ed] the legal and practical effect” of their votes on bills 829. The Member-plaintiffs alleged that the Act (1) “alter[ed] the legal and practical effect” of their votes on bills
covered by the Act, (2) “divest[ed them] of their constitutional role in the repeal of legislation,” and (3) “alter[ed] the constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures containing separately vetoable items and with respect to other matters coming before Congress.” Id. at 816. The Congressional Research Service 41 ~~Congressional Research Service~~

39

Congress’s Authority to Influence and Control Executive Branch Agencies

~~generally will have standing321 to sue an executive branch agency or official in federal court only~~
if his or her complaint alleges a personal ~~injury (e.g., the loss of a congressional seat).322~~complaint alleges a personal injury.341 The only The only
institutional injury the Supreme Court has recognized as sufficient to confer standing upon injury the Supreme Court has recognized as sufficient to confer standing upon
individual legislators occurs when legislators’ votes have been nullified by executive action,individual legislators occurs when legislators’ votes have been nullified by executive action,~~323~~342 a a
narrow category of injury that individual Members have struggled to allege successfully.narrow category of injury that individual Members have struggled to allege successfully.~~324~~343 After After
Raines, few legislators who lack authorization from their relevant house of Congress have been , few legislators who lack authorization from their relevant house of Congress have been
granted standing to pursue a civil action against the executive branch.granted standing to pursue a civil action against the executive branch.~~325~~

~~covered by the Act, (2) “divest[ed them] of their constitutional role in the repeal of legislation,” and (3) “alter[ed] the~~
~~constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures~~
~~containing separately vetoable items and with respect to other matters coming before Congress.” Id. at 816. The~~
344 Individual Members may also participate in litigation against the executive branch—albeit not as parties—by appearing as amici curiae (“friends of the court”) in pending proceedings.345 An Supreme Court, however, held that the plaintiffs Supreme Court, however, held that the plaintiffs ~~were without~~lacked standing to pursue their claim because they did not standing to pursue their claim because they did not
allege a personal injury to themselves and the institutional injury they asserted “was wholly abstract and widely allege a personal injury to themselves and the institutional injury they asserted “was wholly abstract and widely
~~dispersed.” Id. at 829.~~
~~321 To pursue a lawsuit in federal court, a plaintiff must have “standing.” The standing doctrine is derived from Article~~
~~III of the Constitution, which limits federal courts’ jurisdiction to “cases” and “controversies.” U.S. CONST. art. III, § 2,~~
~~cl. 1. Under Article III, a plaintiff has standing only if he alleges “that he ‘(1) suffered an injury in fact, (2) that is fairly~~
~~traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial~~
~~decision.’” Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547~~
~~(2016)).~~
~~322~~dispersed.” Id. at 829. 341 Raines, 521 U.S., 521 U.S. at 829 (citing Powell v. McCormack, 395 U.S. 486 (1969)). In at 829 (citing Powell v. McCormack, 395 U.S. 486 (1969)). In Powell, the Supreme Court , the Supreme Court
concluded that it had jurisdiction to concluded that it had jurisdiction to ~~entertain~~hear Representative Adam Clayton Powell, Jr.’s challenge to his exclusion Representative Adam Clayton Powell, Jr.’s challenge to his exclusion
from the House. 395 U.S. at 549–50. In from the House. 395 U.S. at 549–50. In Raines, the Supreme Court distinguished the plaintiffs’ challenge , the Supreme Court distinguished the plaintiffs’ challenge ~~therein from~~
~~that~~from the one raised in raised in Powell, reasoning that Representative Powell’s injury amounted to the “loss of [a] private right”—the , reasoning that Representative Powell’s injury amounted to the “loss of [a] private right”—the
Representative’s loss of his seat and concomitant congressional salary—which was a personal and far more concrete Representative’s loss of his seat and concomitant congressional salary—which was a personal and far more concrete
injury than the abstract “loss of political power” that characterized the plaintiffs’ injury in injury than the abstract “loss of political power” that characterized the plaintiffs’ injury in Raines. 521 U.S. at 820–21. . 521 U.S. at 820–21.
~~323~~342 See Coleman v. Miller, 307 U.S. 433 (1939). In Coleman v. Miller, 307 U.S. 433 (1939). In Coleman, the Kansas state senate had been evenly divided on a , the Kansas state senate had been evenly divided on a
proposed amendment to the U.S. Constitution, with twenty senators voting in favor and twenty against the amendment. proposed amendment to the U.S. Constitution, with twenty senators voting in favor and twenty against the amendment.
The lieutenant governor cast the deciding vote in favor. The lieutenant governor cast the deciding vote in favor. Id. at 435–36. The twenty senators who opposed the at 435–36. The twenty senators who opposed the
amendment (as well as an additional senator and three members of the state’s lower chamber) brought suit, challenging amendment (as well as an additional senator and three members of the state’s lower chamber) brought suit, challenging
the lieutenant governor’s authority to cast the tie-breaking vote. the lieutenant governor’s authority to cast the tie-breaking vote. Id. at 436. The Supreme Court held that the legislators at 436. The Supreme Court held that the legislators
had standing to sue, reasoning that they “have a plain, direct and adequate interest in maintaining the effectiveness of had standing to sue, reasoning that they “have a plain, direct and adequate interest in maintaining the effectiveness of
their votes,” and emphasizing that “if they are right in their contentions their votes would have been sufficient to defeat their votes,” and emphasizing that “if they are right in their contentions their votes would have been sufficient to defeat
ratification.”ratification.” Id. at 438. The at 438. The Raines Court later clarified that Court later clarified that ~~“our~~ its “holding in holding in Coleman stands (at most stands (at most []) for the ) for the
proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have
standing to sue if that legislative action goes into effect (or does not go into effect) on the ground that their votes have standing to sue if that legislative action goes into effect (or does not go into effect) on the ground that their votes have
been completely nullified.” 521 U.S. at 823been completely nullified.” 521 U.S. at 823 (internal citations omitted). Courts often hold that vote nullification is not present where legislative . Courts often hold that vote nullification is not present where legislative
remedies (e.g., the ability to pass corrective legislation) are available to Member-plaintiffs. remedies (e.g., the ability to pass corrective legislation) are available to Member-plaintiffs. See Campbell v. Clinton, Campbell v. Clinton,
203 F.3d 19, 23 (D.C. Cir. 2000); Kucinich v. Obama, 821 F. Supp. 2d 110, 120 (D.D.C. 2011); 203 F.3d 19, 23 (D.C. Cir. 2000); Kucinich v. Obama, 821 F. Supp. 2d 110, 120 (D.D.C. 2011); see also Raines, 521 , 521
U.S. at 829 (“We also note that our conclusion [does not] deprive[] Members of Congress of an adequate remedy (since U.S. at 829 (“We also note that our conclusion [does not] deprive[] Members of Congress of an adequate remedy (since
they may repeal the Act or exempt appropriations bills from its reach)”). they may repeal the Act or exempt appropriations bills from its reach)”).
In In Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), the Supreme Court summarized , 139 S. Ct. 1945 (2019), the Supreme Court summarized Raines as standing as standing
for the principle that “individual members lack standing to assert the institutional interests of a legislature.” for the principle that “individual members lack standing to assert the institutional interests of a legislature.” Id. at 1953at 1953.
, 1956 (dismissing for lack of standing an appeal filed by one house of the bicameral Virginia legislature challenging a redistricting plan). However, the Court did not overrule However, the Court did not overrule Coleman in in Bethune-Hill. Instead, it distinguished . Instead, it distinguished Coleman from the case before from the case before
it, writing that, “[u]nlike it, writing that, “[u]nlike Coleman, this case does not concern the results of a legislative chamber’s poll or the validity , this case does not concern the results of a legislative chamber’s poll or the validity
of any counted or uncounted vote.” of any counted or uncounted vote.” Id. at 1954. at 1954.
~~324~~343 See, e.g., Chenowith v. Clinton, 181 F.3d 112, 116–17 (D.C. Cir. 1999) (holding that individual Members’ alleged , Chenowith v. Clinton, 181 F.3d 112, 116–17 (D.C. Cir. 1999) (holding that individual Members’ alleged
institutional injuries did not constitute vote nullification); institutional injuries did not constitute vote nullification); Campbell, 203 F.3d at 22–23 (same); , 203 F.3d at 22–23 (same); Kucinich, 821 F. Supp. , 821 F. Supp.
2d at 120 (same). 2d at 120 (same).
~~325~~344 See Common Cause v. Biden, 909 F. Supp. 2d 9, 26 (D.D.C. 2012) (remarking at the time that “the Court is not Common Cause v. Biden, 909 F. Supp. 2d 9, 26 (D.D.C. 2012) (remarking at the time that “the Court is not
aware of any case in this Circuit where a court has recognized legislative standing after aware of any case in this Circuit where a court has recognized legislative standing after Raines”). In ”). In Blumenthal v.
Trump,, ~~949 F.3d 14 (D.C. Cir. 2020) (per curiam~~), the D.C. Circuit held that 215 individual Members of Congress—), the D.C. Circuit held that 215 individual Members of Congress—
~~who~~who maintained suit on their own behalves and did not represent the House of Representatives or Senate did not represent the House of Representatives or Senate as such—lacked standing to sue former President Donald Trump —lacked standing to sue former President Donald Trump
for allegedly violating the Foreign Emoluments Clause of the Constitutionfor allegedly violating the Foreign Emoluments Clause of the Constitution~~, see id. at 16, 20 n.4.~~
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~~Congress’s Authority to Influence and Control Executive Branch Agencies~~

~~Individual Members may also participate in litigation against the executive branch—albeit not as~~
~~parties—by appearing as amici curiae (“friends of the court”) in pending proceedings.326 An~~
~~amicus curiae is “[a]~~ . 949 F.3d 14, 16, 20 n.4 (D.C. Cir. 2020) (per curiam). 345 See, e.g., Brief of Amici Curiae Members of Congress in Support of Respondents, Sebelius v. Hobby Lobby Stores, Inc., No. 13-354, 2014 WL 466855 (Jan. 28, 2014); Amicus Curiae Brief of the Speaker of the United States House of Representatives, John Boehner, in Support of Respondent, Nat’l Labor Relations Bd. v. Noel Canning, No. 12-1281, 2013 WL 6173789 (Nov. 25, 2013); Brief of Members of the U.S. House of Representatives—Including Objecting Members of the Bipartisan Legal Advisory Group, Representatives Nancy Pelosi and Steny Hoyer—as Amici Curiae in Support of Plaintiffs—Appellees and Urging Affirmance, Massachusetts v. U.S. Dep’t of Health & Hum. Servs., Nos. 10-2204, 10-2207, 10-2214, 2011 WL 5833107 (1st. Cir. Nov. 3, 2011). Congressional Research Service 42 link to page 15 Congress’s Authority to Influence and Control Executive Branch Agencies amicus curiae is a “person who is not a party to a lawsuit but who petitions the court or is person who is not a party to a lawsuit but who petitions the court or is
requested by the court to file a brief in the action because that person has a strong interest in the requested by the court to file a brief in the action because that person has a strong interest in the
subject matter.”subject matter.”~~327~~346 Members of Congress may file amicus briefs in judicial proceedings for a Members of Congress may file amicus briefs in judicial proceedings for a
variety of reasons, including to articulate specific policy views, assert the purported meaning of variety of reasons, including to articulate specific policy views, assert the purported meaning of
statutory provisions at issue in the litigation in question, or defend the prerogatives or interests of statutory provisions at issue in the litigation in question, or defend the prerogatives or interests of
the legislative branch.the legislative branch.~~328 While they certainly cannot be used to~~347 While amicus briefs cannot control agency action, control agency action, ~~amicus~~
such briefs filed by Members of Congress in proceedings involving the executive branch may be useful briefs filed by Members of Congress in proceedings involving the executive branch may be useful
in alerting in alerting ~~executive branch components~~agencies or officials to the views of or officials to the views of ~~certain~~ Members on matters Members on matters
central to executive branch programs central to executive branch programs and powers. Lower~~and powers.~~
~~As has been shown, individual Members of Congress may exert some measure of influence over~~
~~administrative agencies. But~~ courts have imposed important courts have imposed important ~~limitations on their ability to do so.~~
limits on an individual Member of Congress’s ability to influence administrative agencies. Chief among these limits is the prohibition—grounded in procedural due process—against Chief among these limits is the prohibition—grounded in procedural due process—against
~~legislator-~~legislator interference with interference with certain agency adjudicationsagency adjudications ~~in certain contexts.329~~.348 In the seminal 1966 In the seminal 1966
decision of decision of Pillsbury Co. v. FTC,,~~330~~349 the Fifth Circuit the Fifth Circuit ~~invalidated an FTC~~vacated a Federal Trade Commission (FTC) decision that the agency decision that the agency
had issued after the FTC Chair and other Commissionershad issued after the FTC Chair and other Commissioners ~~had~~ faced congressional questioning faced congressional questioning
during a Senate subcommittee hearing that focused “directly” and “substantially” on the agency’s during a Senate subcommittee hearing that focused “directly” and “substantially” on the agency’s
decisionmaking process in a pending case.decisionmaking process in a pending case.~~331~~350 The court explained that when Congress interferes The court explained that when Congress interferes
with the “with the “judicial function” of an agency proceeding, “we become concerned with the right of function” of an agency proceeding, “we become concerned with the right of
private litigants to a fair trial and . . . the appearance of impartiality.”private litigants to a fair trial and . . . the appearance of impartiality.”~~332~~351 Later, in Later, in D.C. Federation
of Civic Associations v. Volpe, the D.C. Circuit explained that , the D.C. Circuit explained that Pillsbury applies to “judicial or applies to “judicial or
~~quasi-judicial” administrative proceedings, not informal proceedings.333 The court defined~~
~~judicial or quasi-judicial proceedings as those in which the agency’s decision must be based~~

~~326 See, e.g., Brief of Amici Curiae Members of Congress in Support of Respondents, Sebelius v. Hobby Lobby Stores,~~
~~Inc., No. 13-354, 2014 WL 466855 (Jan. 28, 2014); Amicus Curiae Brief of the Speaker of the United States House of~~
~~Representatives, John Boehner, in Support of Respondent, Nat’l Labor Relations Bd. v. Noel Canning, No. 12-1281,~~
~~2013 WL 6173789 (Nov. 25, 2013); Brief of Members of the U.S. House of Representatives—Including Objecting~~
~~Members of the Bipartisan Legal Advisory Group, Representatives Nancy Pelosi and Steny Hoyer—as Amici Curiae in~~
~~Support of Plaintiffs—Appellees and Urging Affirmance, Massachusetts v. HHS, Nos. 10-2204, 10-2207, 10-2214,~~
~~2011 WL 5833107 (1st. Cir. Nov. 3, 2011).~~
~~327 Amicus Curiae, BLACK’S LAW DICTIONARY (4th pocket ed. 2011).~~
~~328~~quasi-judicial” administrative proceedings and not to the relatively more informal action of deciding that a bridge would be part of the Interstate System once constructed.352 The court defined judicial or quasi-judicial proceedings as those in which the agency’s decision must be based “solely on a formal record established at a public hearing,”353 which is similar to the APA’s definition of formal adjudication.354 The mere appearance of impartiality can indicate improper congressional 346 Amicus Curiae, BLACK’S LAW DICTIONARY (4th pocket ed. 2011). 347 Amanda Frost, Amanda Frost, Congress in Court, 59 UCLA L. REV. 914, 946 (2012); , 59 UCLA L. REV. 914, 946 (2012); see also Neal Devins, Neal Devins, Measuring Party
Polarization in Congress: Lessons from Congressional Participation as Amicus Curiae, 65 CASE W. RES. 933, 940 , 65 CASE W. RES. 933, 940
(2015) (opining that “amicus filings are an easy, low-cost mechanism for lawmakers to stake out policy positions”). (2015) (opining that “amicus filings are an easy, low-cost mechanism for lawmakers to stake out policy positions”).
~~329~~348 See, e.g., ATX, Inc. v. Dep’t of Transp., 41 F.3d 1522, 1527 (D.C. Cir. 1994) (declaring that , ATX, Inc. v. Dep’t of Transp., 41 F.3d 1522, 1527 (D.C. Cir. 1994) (declaring that ~~“[a]n~~ an “administrative administrative
adjudication is ‘invalid if based in whole or in part on adjudication is ‘invalid if based in whole or in part on ~~[congressional]~~congressional pressures’” pressures’”~~) (second alteration in original)~~
~~(quoting Dist. of Columbia~~ (quoting D.C. Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231, 1246 (D.C. Cir. 1971))); Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231, 1246 (D.C. Cir. 1971))); ~~)))~~. Pillsbury Co. . Pillsbury Co.
~~v. FTC, 354 F.2d 952, 964 (5th Cir. 1966) (holding that “when . . . [a congressional] investigation focuses directly and~~
~~substantially upon the mental decisional processes of a Commission[er] in a case which is pending before it . . . we~~
~~become concerned with the right of private litigants to a fair trial and . . . with their right to the appearance of~~
~~impartiality”)~~v. FTC, 354 F.2d 952, 964 (5th Cir. 1966); ; see also Jamelle C. Sharpe, Jamelle C. Sharpe, Judging Congressional Oversight, 65 ADMIN. L. REV. 183, 197–202 (2013); , 65 ADMIN. L. REV. 183, 197–202 (2013);
Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 409 (D. Conn. 2008) (asserting that “[c]ongressional Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 409 (D. Conn. 2008) (asserting that “[c]ongressional
interference in the administrative process is of particular concern in a quasi-judicial proceeding”). interference in the administrative process is of particular concern in a quasi-judicial proceeding”).
~~330~~349 354 F.2d 952 (5th Cir. 1966). 354 F.2d 952 (5th Cir. 1966).
~~331~~350 Id. at 964. at 964.
~~332~~351 Id. (emphasis added). ~~Id.~~ The type of interference experienced by the agency officials, declared the court, “sacrifices the appearance of The type of interference experienced by the agency officials, declared the court, “sacrifices the appearance of
impartiality—the impartiality—the sine qua non of American of American ~~judicial~~judicial justice.” justice.” Id.
~~333~~352 D.C. Fed’n, 459 F.2d at 1246 & n.75, 1247. 353 Id. at 1247. 354 Ronald M. Levin, Congressional Ethics and Constituent Advocacy in an Age of Mistrust, 95 MICH. L. REV. 1, 44 (1996) (explaining that “[t]he APA uses virtually the same criterion in delimiting the realm of formal adjudication” as D.C. Federation used in defining “judicial” and “quasi-judicial” proceedings); cf. id. (“While the contours of the Due Process Clause may not depend directly on the APA’s definition of formal proceedings, adjudications have not been considered ‘judicial’ within the meaning of Pillsbury unless they involve highly structured, adversary litigation.”). As discussed above, when an “adjudication [is] required by statute to be determined on the record after opportunity for an agency hearing,” formal, trial-like procedures govern proceedings. 5 U.S.C. § 554(a). These adjudications are known as “formal” adjudications. See supra “Procedural Controls on Decisionmaking.” The APA generally prohibits “interested person[s] from outside the [relevant] agency” from making an “ex parte Congressional Research Service 43 Congress’s Authority to Influence and Control Executive Branch Agencies interference in such proceedings.355 D.C. Fed’n, 459 F.2d at 1246 & n.75; id. at 1247.
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~~“solely on a formal record established at a public hearing,”334 which is very similar to the APA’s~~
~~definition of formal adjudication.335 The mere appearance of impartiality can indicate improper~~
~~congressional interference in regard to such proceedings.336~~ However, the D.C. Circuit held that, However, the D.C. Circuit held that,
for informal proceedings, more is needed to render an official’s decision invalid—it must be for informal proceedings, more is needed to render an official’s decision invalid—it must be
shown that he “took into account considerations that Congress could not have intended to make shown that he “took into account considerations that Congress could not have intended to make
relevant.”relevant.”~~337~~ 356 Based on Based on D.C. Federation, the D.C. Circuit later held that an agency’s regulation , the D.C. Circuit later held that an agency’s regulation
will be held invalid because of legislator pressure only if (1) the intent of the interference is to will be held invalid because of legislator pressure only if (1) the intent of the interference is to
compel the agency “to decide upon factors not made relevant by Congress in the applicable compel the agency “to decide upon factors not made relevant by Congress in the applicable
statute,” and (2) the agency’s decision is “affected by those extraneous considerations.”statute,” and (2) the agency’s decision is “affected by those extraneous considerations.”~~338~~357
Conclusion
Congress has an array of tools at its disposal to influence and control executive branch agencies. Congress has an array of tools at its disposal to influence and control executive branch agencies.
Through the exercise of its legislative power and subject to certain limitations rooted mainly in Through the exercise of its legislative power and subject to certain limitations rooted mainly in
the separation of powers, Congress may not only establish federal agencies and individual agency the separation of powers, Congress may not only establish federal agencies and individual agency
offices, but also shape agencies’ basic structures and operations, set the manner in which those offices, but also shape agencies’ basic structures and operations, set the manner in which those
holding agency offices are appointed and removed, and delegate lawmaking authority to agencies. holding agency offices are appointed and removed, and delegate lawmaking authority to agencies.
In addition, Congress may In addition, Congress may ~~directly~~ reverse certain agency actions and decisions through later reverse certain agency actions and decisions through later
legislation. legislation. ~~But~~ Congress need not confine itself to the legislative process to exert control or Congress need not confine itself to the legislative process to exert control or
influence over executive branch agencies or officials. Many non-statutory tools that inhere to influence over executive branch agencies or officials. Many non-statutory tools that inhere to
Congress as a whole, the House or Senate exclusively, committees, or even individual Members Congress as a whole, the House or Senate exclusively, committees, or even individual Members
of Congress may be used to influence or, in some cases, control agencies or officials. Some of of Congress may be used to influence or, in some cases, control agencies or officials. Some of

~~334 Id. at 1247.~~
~~335 Ronald M. Levin, Congressional Ethics and Constituent Advocacy in an Age of Mistrust, 95 MICH. L. REV. 1, 44~~
~~(1996) (explaining that “[t]he APA uses virtually the same criterion in delimiting the realm of formal adjudication” as~~
D.C. Federation used in defining “judicial” and “quasi-judicial” proceedings); cf. id. (“While the contours of the Due
~~Process Clause may not depend directly on the APA’s definition of formal proceedings, adjudications have not been~~
~~considered ‘judicial’ within the meaning of Pillsbury unless they involve highly structured, adversary litigation.”). As~~
~~discussed above, when an “adjudication [is] required by statute to be determined on the record after opportunity for an~~
~~agency hearing,” formal, trial-like procedures govern proceedings. 5 U.S.C. § 554(a). These adjudications are known as~~
~~“formal” adjudications. See supra “Procedural Controls on Decisionmaking.”~~
~~The APA generally prohibits “interested person[s] from outside the [relevant] agency” from making “ex parte~~
~~communication[s]~~these non-statutory tools, such as impeachment and removal, are of potentially legally binding effect. Other tools, such as censure or resolutions of inquiry, are not legally compulsory, but are possibly powerful tools of influence. communication relevant to the merits of [a] proceeding” to the decisionmaker in a formal adjudication proceeding, relevant to the merits of [a] proceeding” to the decisionmaker in a formal adjudication proceeding,
or to another “employee who is or may reasonably be expected to be involved in the decisional process of the or to another “employee who is or may reasonably be expected to be involved in the decisional process of the
proceeding.” 5 U.S.C. § 557(d)(1)(A). An “ex parte communication” is “an oral or written communication not on the proceeding.” 5 U.S.C. § 557(d)(1)(A). An “ex parte communication” is “an oral or written communication not on the
public record with respect to which reasonable prior notice to all parties is not given.” public record with respect to which reasonable prior notice to all parties is not given.” Id. § 551(14). § 551(14). ~~Legislative~~The statute does not expressly exclude Members of Congress from the scope of its prohibition on ex parte communications, and legislative history history
indicates that the prohibition applies to Membersindicates that the prohibition applies to Members ~~of Congress~~. . See H.R. REP NO. H.R. REP NO. 94-880, pt. 1, at 21880, pt. 1, at 21-–22 (1976). It does not, 22 (1976). It does not,
however, cover “requests for status reports.” 5 U.S.C. § 551(14). however, cover “requests for status reports.” 5 U.S.C. § 551(14).
~~336~~355 D.C. Fed’n, 459 F.2d, 459 F.2d at 1246at 1246-–47; 47; see DCP Farms v. Yeutter, 957 F.2d 1183, 1187 (5th Cir. 1992) (“ DCP Farms v. Yeutter, 957 F.2d 1183, 1187 (5th Cir. 1992) (“Pillsbury holds holds
that the appearance of bias caused by congressional interference violates the due process rights of parties involved that the appearance of bias caused by congressional interference violates the due process rights of parties involved
in in judicial or or quasi-judicial agency proceedings.”); Peter Kiewit Sons’ Co. v. U.S. Army Corps of Engineers, 714 F.2d agency proceedings.”); Peter Kiewit Sons’ Co. v. U.S. Army Corps of Engineers, 714 F.2d
163, 169 (D.C. Cir. 1983) (“The [163, 169 (D.C. Cir. 1983) (“The [D.C. Federation] court indicated that if the decision had been judicial or quasi-] court indicated that if the decision had been judicial or quasi-
judicial, it could be invalidated by ‘the appearance of bias or pressure.’”judicial, it could be invalidated by ‘the appearance of bias or pressure.’”) (quoting (quoting D.C. Fed’n, 459 F.2d at 1246), 459 F.2d at 1246)). 356.
~~337~~ D.C. Fed’n, 459 F.2d at 1247 (internal quotation marks and citation omitted); , 459 F.2d at 1247 (internal quotation marks and citation omitted); accord id. at 1248 (explaining that the at 1248 (explaining that the
Secretary of Transportation “must reach his decision strictly on the merits and in the manner prescribed by statute, Secretary of Transportation “must reach his decision strictly on the merits and in the manner prescribed by statute,
without reference to irrelevant or extraneous considerations”); without reference to irrelevant or extraneous considerations”); Peter Kiewit Sons’ Co., 714 F.2d at 169 (writing that the , 714 F.2d at 169 (writing that the
D.C. Federation “court noted that the test for improper interference [for non-judicial or -quasi-judicial proceedings] “court noted that the test for improper interference [for non-judicial or -quasi-judicial proceedings]
was whether the congressional action was whether the congressional action actually affected the decision”). affected the decision”).
~~338~~357 Sierra Club. v. Costle, 657 F.2d 298, Sierra Club. v. Costle, 657 F.2d 298, ~~310~~409 (D.C. Cir. 1981) (citing (D.C. Cir. 1981) (citing ~~Dist. of Columbia D.C. Fed’n of Civic Ass’ns v.~~
~~Volpe~~D.C. Fed’n, 459 F.2d , 459 F.2d 1231at 1246–47 (D.C. Cir. 1971)).). See ~~State v~~at 1246–47). See also Connecticut v. U.S. Dep’t of the Interior, 363 F. Supp. 3d 45, 63 n.15 . Dep’t of the Interior, 363 F. Supp. 3d 45, 63 n.15
(D.D.C. 2019) (explaining that the (D.D.C. 2019) (explaining that the Costle standard “was based directly on the standard “was based directly on the [D.C. Fed’n] standard standard” but but
acknowledging that a rulemaking proceeding “may allow for more political wrangling than an agency’s adjudication of acknowledging that a rulemaking proceeding “may allow for more political wrangling than an agency’s adjudication of
an individual request”). an individual request”).
Congressional Research Service Congressional Research Service

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Congress’s Authority to Influence and Control Executive Branch Agencies

~~these non-statutory tools, such as impeachment and removal, are of potentially legally binding~~
~~effect. Other tools, such as censure or resolutions of inquiry, are not legally compulsory, but are~~
~~possibly powerful tools of influence.~~

Author Information

Todd Garvey Todd Garvey
~~Daniel J. Sheffner~~Sean M. Stiff
Legislative Attorney Legislative Attorney
Legislative Attorney Legislative Attorney

~~Congressional Research Service~~

43

~~Congress’s Authority to Influence and Control Executive Branch Agencies~~

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