Congress’s Authority to Influence and Control
March 30, 2023
Executive Branch Agencies
Todd Garvey
The Constitution does not establish administrative agencies or explicitly prescribe the manner by
Legislative Attorney
which they may be created. Even so, the Supreme Court has generally recognized that Congress

has broad constitutional authority to establish and shape the federal bureaucracy. Congress may
Sean M. Stiff
use its Article I lawmaking powers to create federal agencies and offices within those agencies,
Legislative Attorney
design agencies’ basic structures and operations, and prescribe, subject to certain constitutional

limitations, how those holding agency offices are appointed and removed. Congress also may
enumerate the powers, duties, and functions to be exercised by agencies, as well as directly

counteract, through later legislation, certain agency actions implementing delegated authority.
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
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 legislation requires the support of
the House, Senate, and the President, unless the support in both houses is sufficient to override the President’s veto.
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
some cases, non-statutory measures—such as impeachment and removal, Senate advice and consent to appointments or the
ratification of treaties, and committee issuance of subpoenas—can impose legal consequences. Others, however, such as
House resolutions of inquiry, do not bind agencies or agency officials and rely for their effectiveness on their ability to
persuade or influence.
Congressional Research Service

Congress’s Authority to Influence and Control Executive Branch Agencies

he Constitution does not establish administrative agencies or explicitly prescribe the
manner by which they may be created. Even so, the Supreme Court has generally
T recognized that Congress has broad constitutional authority to shape the federal
bureaucracy.1 This power stems principally from the combination of Congress’s enumerated
legislative powers under Article I of the Constitution; 2 language in Article II, Section 2, which
authorizes the appointment of “officers” to positions “which shall be established by law”;3 and
the Necessary and Proper Clause of Article I, Section 8, which authorizes 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 Government of the
United States, or in any Department or Officer thereof.”4 Subject to certain constitutional
limitations, Congress may create federal agencies and individual offices within those agencies,
design agencies’ basic structures and operations, and prescribe how those holding office are
appointed and removed.5 Congress also may enumerate an agency’s powers, duties, and
functions6, as well as directly counteract, through later legislation, certain agency actions
implementing delegated authority.7
The most potent tools of congressional control over executive branch agencies, including
structuring, empowering, regulating, and funding agencies, typically require enactment of
legislation.8 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
to the President for signature).9 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
to override the President’s veto.10

1 See Free Enter. Fund v. Pub. Co. Acct. 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) (“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
fixing of the term for which they are to be appointed and their compensation.”).
2 See, e.g., U.S. CONST. art. I, § 8, cl. 3 (conferring Congress with the power to regulate foreign and interstate
commerce), cls. 11–16 (defining Congress’s powers to declare war and to raise, support, and regulate the military and
militia).
3 Id. art. II, § 2, cl. 2.
4 Id. art. I, § 8, cl. 18.
5 See, e.g., 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
‘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
term and precluding a removal except for cause, will depend upon the character of the office.”).
6 See 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 exercise the delegated authority is directed to conform,
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
has no power to act . . . unless and until Congress confers power upon it.”).
7; See, e.g., Pub. L. No. 115-5, 131 Stat. 10, 10 (2017) (joint resolution disapproving a Department of the Interior rule);
Pub. L. No. 115-17, 131 Stat. 81, 81 (2017) (joint resolution disapproving a Department of Labor rule).
8 See Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983).
9 U.S. CONST. art. I, § 7, cl. 2 (“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 States.”).
10 Id. (requiring the approval of two-thirds of each house to override a presidential veto).
Congressional Research Service

1

link to page 37 Congress’s Authority to Influence and Control Executive Branch Agencies

Congress does not always need to act through legislation to impact agency decisionmaking. The
House, Senate, congressional committees, and even individual Members of Congress may employ
tools to influence agency action. Some tools are enumerated in the Constitution, such as
impeachment and subsequent removal from office,11 and Senate advice and consent to the
ratification of treaties and the appointment of certain executive officers, ambassadors, and
judges.12 Under these provisions, the Constitution has explicitly authorized an individual house of
Congress to act independently of the other with binding legal effect. Other tools, however, are
both non-constitutional (i.e., they are not enumerated in the 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, cannot themselves legally compel
agency action.13 This distinction, between the compulsory nature of statutory enactments and the
non-binding nature of most (though not all)14 non-statutory legislative actions, is essential to
understanding the scope of congressional authority over federal agencies.
Statutory Control of Executive Branch Agencies
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 President in the execution of law.15 Toward this end, the First Congress enacted measures
creating the Departments of Foreign Affairs, War, and the Treasury.16 At this early stage, Congress
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
writing,” on “all matters referred to him by the Senate or the House.”17
Members of the First Congress also acknowledged 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 constitutional obligation to “Take Care that the Laws be
faithfully executed.”18 From the outset, Congress wrestled with the scope of both presidential and
congressional control 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.19 Although Members’ 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 Impeachment.”); id. art. I, § 3, cl. 6 (“The Senate shall have the sole Power to try all Impeachments.”).
12 Id. art. II, § 2, cl. 2.
13 Chadha, 462 U.S. at 951–59.
14 Exceptions include certain committee oversight actions, such as the issuance of subpoenas, which do impose legal
obligations on witnesses. See infra “Committee Investigative Oversight.”
15 1 ANNALS OF CONG. 383 (1789) (statement of Rep. Elias Boudinot).
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, New Light on the Decision of 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”).
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 presidential control,
but eventually rejected the commission framework for fear that such a body would not be able to
administer the finances of the new government.22
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,
constraints on congressional power over executive agencies flow, in part, from the foundational
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
government,23 the Supreme Court has not endorsed an absolute separation. The allocation of
powers was never intended to cause the branches to be “hermetically sealed,”24 or, in the words of
Justice Oliver Wendell Holmes, divided into “fields of black and white.”25 Instead, as Justice
Robert Jackson observed, the separation of powers “enjoins upon [the] branches separateness but
interdependence, autonomy but reciprocity.”26 Ambiguity and overlap generally characterize the
separation of powers doctrine, not bright-line rules. Yet some well-established principles govern
the relationship between Congress and the administrative state. For example, Congress may
neither displace executive authority by directly implementing the law itself,27 nor appoint or
reserve for itself the power to remove (except through impeachment) executive officers engaged
in the execution of law.28 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
agency action.29
The chief substantive limitations on Congress’s ability to control the 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 See Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive,
51 DUKE L.J. 963, 975 (2001).
23 See U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United
States . . . .”); id. art. II, § 1, cl.1 (“The executive Power shall be vested in a President of the United States of
America.”); id. art. 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.”).
24 Immigr. & Naturalization Servs. v. Chadha, 462 U.S. 919, 951 (1983) (internal quotation marks omitted).
25 Springer v. Gov’t of Phil. Islands, 277 U.S. 189, 209 (1928) (Holmes, J., dissenting); see also Trump v. Mazars
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
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.” (citations and internal quotation marks omitted)).
26 Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
27 See Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265–77 (1991).
28 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.”
29 The separation of powers may be violated when a statute directing or prohibiting agency action infringes upon other
core presidential powers, such as the exclusive power of the President to recognize foreign states. See Zivotofsky v.
Kerry, 576 U.S. 1, 31–32 (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 upon the President’s foreign recognition power).
Congressional Research Service

3

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
holistic endeavor perhaps best understood as built upon four basic pillars: structural design,
delegation of authority, procedural controls on agency decisionmaking, and agency funding.
Congress’s ability to rest its control on each pillar, however, is informed by separation-of-powers
principles.
Structural Design
How an agency is structured invariably affects how it operates and the relationship it has with
Congress and the President.30 In creating a federal agency, Congress may structure or 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
structural choices are wide-ranging, but generally relate to agency leadership, appointment and
removal of officers, and presidential supervision. For example, subject to constitutional
considerations explained below, Congress may
 structure agency leadership in the form of a multi-member commission or a
single head;31
 create positions within agencies;32
 establish certain statutory qualifications for appointees, often based on political
affiliation or substantive experience, or dictate the length of an official’s term of
office;33

30 “Structure,” as Justice Antonin Scalia said, “is destiny,” meaning that an agency’s structural characteristics often
have a substantial impact on the agency’s actions and operation. See Gregory M. Jones, Proper Judicial Activism, 14
REGENT U. L. REV. 141, 145 (2001) (quoting Justice Antonin Scalia, Address at Regent University (Fall 1998)). See
also Brian D. Feinstein, Designing Executive Agencies for Congressional Influence, 69 ADMIN. L. REV. 259, 278–88
(2017) (studying the impact agency design features have on congressional oversight).
31 Compare 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”), with 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
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.”).
32 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 See, e.g., 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.
§ 1201 (establishing background and political affiliation requirements for members of the Merit Systems Protection
Board); 12 U.S.C. § 4512(b)(1) (requiring 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
markets”). For a broader discussion of statutory qualifications, see CRS Report RL33886, Statutory Qualifications for
Executive Branch Positions, by Henry B. Hogue.
Congressional Research Service

4

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

 make an agency independent of other agencies or place it within an existing
department or agency;34
 provide that an agency official serves at the pleasure of the President, or, in
certain situations,35 is removable only for cause (e.g., for “inefficiency, neglect of
duty, or malfeasance in office”);36 or
 exempt an agency from certain aspects of presidential supervision—for example,
by excusing the agency from complying with generally applicable executive
branch requirements that agency rules, legislative submissions, and budget
requests be reviewed and cleared by the White House.37
Although Congress may wish to insulate an agency from presidential control through these
structural choices, Congress must comply with fundamental constitutional requirements when
designing federal agencies. These limits, two of which are discussed below, generally exist to
ensure that 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 removed by the President only for inefficiency, neglect of duty, or malfeasance in office”).
37 See 12 U.S.C. § 250 (barring executive branch officials from requiring certain financial regulators to submit
“legislative recommendations, or testimony, or comments on legislation” 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 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 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.”).
41 U.S. CONST. art. II, § 2, cl. 2.
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
has adopted an approach that suggests the distinction between a principal and inferior officer
hinges mainly on whether Congress has made the officer subject to supervision by some higher
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
subject only to supervision by the President, while inferior officers are generally subject to
supervision by a higher-ranking, Senate-confirmed official.47
Thus, in designing agencies, Congress generally has little discretion in directing the method of
appointment for most agency heads. If a person exercises significant authority on a 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.48 However, Congress has
some discretion in choosing who appoints inferior officers. For example, Congress can vest the
appointment of an “inferior Officer” in the head of a department 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
and inferior officers for Appointment Clause purposes.”).
46 Id. at 663; Free Enter. Fund v. Pub. Co. Acct. 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 an evaluation of
the degree of authority exercised. See 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); accord 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 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 principal officer” in
making such a determination (internal quotation marks omitted)).
47 Edmond, 520 U.S. at 663.
48 Cf. id. (“[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.”).
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,
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 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
the President the “administrative control” of the executive branch.54 The President’s ability to
ensure accountability through removal of executive branch officials has long been viewed as an
essential aspect of this ability to oversee execution of the law, as “the power to remove is the
power to control.”55
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 Myers v. United States
invalidated a statutory provision that prohibited the President from removing an executive branch
official without first obtaining the advice and consent of the Senate.56 Myers affirmed the general
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.”57
Myers was curtailed in part shortly thereafter in the 1935 decision of Humphrey’s Executor v.
United States,58 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

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.”); In re Aiken Cty., 645 F.3d 428,
442 (D.C. Cir. 2011) (Kavanaugh, J., concurring).
56 272 U.S. at 164.
57 Id.
58 295 U.S. 602 (1935). See also Wiener v. United States, 357 U.S. 349, 352 (1958) (“The assumption was short-lived
that the Myers case recognized the President’s inherent constitutional power to remove officials, no matter what the
relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed
regarding 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.”66
The Court next assessed the constitutional dimensions of presidential control in Seila Law LLC v.
Consumer Financial Protection Bureau (CFPB), holding that the CFPB’s structure violated the
constitutional separation of powers.67 The CFPB, an independent agency, is led by a single
Director who wields substantial executive powers.68 The President could remove the Director
only for cause.69 The Court reasoned that there was scant historical precedent for insulating from
removal a principal officer who was solely in charge of an agency, and this lack of historical
precedent indicated a constitutional infirmity in the Court’s view.70 The Court also based its
decision 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 entire country through national elections.71 “The CFPB’s single-Director
structure,” wrote the Court, “contravenes this carefully calibrated system by vesting significant

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
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. Oversight Bd., 561 U.S. 477, 516 (2010) (Breyer, J., dissenting) (“The
Necessary and Proper Clause does not grant Congress power to free all 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
any and all 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
officer from his post.” (internal citations omitted)).
78 See 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
which they act.”).
79 Morrison v. Olson, 487 U.S. 654, 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
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
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,
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.
Congressional Research Service

9

Congress’s Authority to Influence and Control Executive Branch Agencies

Delegation of Authority
In general, an agency has only the authority delegated to it by Congress.83 Thus, Congress can
control a federal agency by detailing its authority and setting policy goals for the agency to
accomplish in the exercise of that authority.84 Similarly, Congress may choose to grant an agency
the authority to issue legislative rules, enforce provisions of law, or adjudicate claims.85 The more
precise a delegation, the less discretion Congress affords to the agency in its execution of its
delegated authority.86
Congress’s control over agency authority is not limited to initial decisions made when the agency
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 permanent. Congress often uses sunset
provisions to terminate a delegation on a specified date by operation of law.88 Congress may also
reject an agency’s specific exercise of delegated power through legislation.89
Congress is not unconstrained in its ability to delegate authority to agencies. One limitation on
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
upon or restrict executive authority, the non-delegation doctrine limits the extent to which
Congress may delegate authority to other entities, including the executive branch.90 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
power to promulgate legislative regulations is limited to the authority delegated by Congress.”).
84 See J.R. Deshazo & Jody Freeman, The Congressional Competition to Control Delegated Power, 81 TEX. L. REV.
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
that the agency must implement”).
85 See, e.g., 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 Social Security authority to “make findings
of fact” and “decisions as to the rights of any individual applying for a [benefits] payment”).
86 See Jack M. Beermann, Congressional Administration, 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.”).
87 See 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.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000))).
88 See, e.g., 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
date of the enactment of this subchapter.”).
89 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. See, e.g., 5 U.S.C. §§ 801–08 (providing
for 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) (providing for the enactment of a joint resolution of disapproval
subject to expedited procedures relating to nuclear cooperation agreements).
90 Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). The delegation of authority to private entities can also raise
constitutional concerns. See CRS Recorded Event WRE00214, Privatization and the Constitution: Limits on
Congress’s Power to Privatize, by Linda Tsang; CRS Report R44965, Privatization and the Constitution: Selected
Legal Issues, by Linda Tsang and Jared P. Cole.
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
limitation on the powers that Congress may provide to a federal agency.92 Although the Supreme
Court has declared categorically that “the legislative power of Congress cannot be delegated,”93
the standard for determining whether Congress has in fact delegated “legislative authority” is
more lenient than this statement might suggest.94 For a delegation to survive scrutiny under the
non-delegation test, Congress need only establish an “intelligible principle” to govern the
exercise of the delegated power.95 The “intelligible principle” test requires that Congress set
reasonable legal standards for when that power may be exercised.96 According to the Court’s
doctrine, when a delegation is 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 doctrine since 1935. See A.L.A.
Schechter Poultry 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 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 since 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. United States, 319 U.S. 190, 216 (1940); Yakus v. United States, 321 U.S. 414, 420 (1944).
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 the intelligible principle test if a majority of the Court was inclined to do so in the future. Id. at 2131
(Alito, J., concurring). Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, would have reconsidered
the Court’s approach to non-delegation questions. Id. at 2131 (Gorsuch, J., dissenting). Justice Gorsuch argued that,
beginning in the late 1940s, courts began to apply a “mutated version of the ‘intelligible principle’ remark” first
expressed by the Court in its decision in J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). 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 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 Gundy, did not participate in the decision.
See id. at 2120 (plurality opinion). Justice Barrett joined the Court after it decided Gundy, filling the vacancy left by the
death of Justice Ginsburg, who formed part of the Gundy plurality. See CRS Report R46562, Judge Amy Coney
Barrett: Her Jurisprudence and Potential Impact on the Supreme Court, coordinated by Valerie C. Brannon, Michael
John Garcia, and Caitlain Devereaux Lewis, at 1.
93 United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932).
94 See, e.g., Panama Refining Co., 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); Schechter Poultry, 295 U.S. at 542 (invalidating
delegation of authority to the President to approve fair competition codes).
95 J.W. Hampton, 276 U.S. at 409 (“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 a forbidden delegation of legislative
power.”).
96 See, e.g., Panama Refining Co., 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
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.”).
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 report to Congress on a proposed use of delegated authority and then wait a specific time
period before implementing or finalizing that action.99 The report-and-wait framework is designed
to give 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 procedures for the
rejection of specific agency actions.100 This approach typically establishes special procedures in
each house of Congress for consideration of a joint resolution of disapproval that would overturn
agency actions.101 Under such a review mechanism, the agency has authority to act unless
Congress affirmatively rejects or blocks the action through legislative enactment.102 Congress can
also authorize an agency to make proposals to Congress that only become effective when
approved through legislation.103 Under this framework, the agency has no authority to act until a
proposal is given legal effect through the enactment of implementing legislation.104
Procedural Controls on Decisionmaking
Congress can also exert substantial control over administrative agencies by prescribing the
procedures agencies must employ when exercising delegated powers. The Administrative
Procedure Act (APA),105 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 See J.W. Hampton, 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
determination of such time to the decision of an Executive . . . .”).
99 See Sibbach v. Wilson & Co., 312 U.S. 1, 8 (1941) (upholding “report and wait” provision). See, e.g., 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)
(requiring that the proposed amendments to the procedural and evidentiary rules of the federal courts be submitted to
Congress 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 See, e.g., 42 U.S.C. § 2160e(b) (providing for a joint resolution of disapproval relating to nuclear agreements with
the Islamic Republic of Iran). See also CRS Report RS20234, Expedited or “Fast-Track” Legislative Procedures, by
Christopher M. Davis.
101 See 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 Chevron, 70 ADMIN L. REV. 53,
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”).
102 The Congressional Review Act, for example, establishes a process by which Congress can reject specific agency
rules through a joint resolution of disapproval. See 5 U.S.C. §§ 801–808.
103 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
joint resolution approving the plan. See 5 U.S.C. §§ 901–912.
104 See 2 U.S.C. §§ 681–88 (authorizing the President to propose budget rescissions that take effect only when
approved by legislation).
105 5 U.S.C. §§ 551–59, 701–06.
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 entities
affected by agency decisions while also ensuring that agencies retain that degree of flexibility
necessary to achieve their delegated responsibilities.111 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 proposed
rulemaking in the Federal Register112 and afford members of the public an opportunity to submit
comments on the proposal.113 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 issuance.114
Agencies ordinarily must follow these same procedures when amending or repealing such rules,
as well.115 In the case of agency adjudications that are required (by another statute) to “be
determined on the record after opportunity for an agency hearing”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. Courts may not impose procedural requirements on agencies that exceed those prescribed
by the APA or other statutes. See generally 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); see also Beermann, supra note 86, at 102.
However, agencies are generally free to adopt additional procedures themselves. See Vt. Yankee, 496 U.S. at 524
(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”).
108 See infra text accompanying notes 119–125.
109 Notice-and-comment, or “informal,” rulemaking is the most common type of rulemaking used by agencies. See
David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 YALE L.J. 276, 282
(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 proceedings, a process referred to as “formal”
rulemaking. See 5 U.S.C. §§ 553(c), 556–557.
110 See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (“[T]he choice made between proceeding by general rule or by
individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”).
111 Cf. 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
and maintaining agencies’ policy-making flexibility”).
112 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 when it for good cause finds “that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Id. § 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
United States” or “a matter relating to agency management or personnel or to public property, loans, grants, benefits, or
contracts.” Id. § 553(a)(1)–(2).
113 Id. § 553(c).
114 Id. § 553(c)–(d). The thirty-days-or-more effective date does not apply 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 R41546, A Brief Overview of Rulemaking and Judicial Review, by Todd Garvey.
115 See 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
of “rule making” in the APA mandates “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
force of law, see CRS Report R46673, Agency Rescissions of Legislative Rules, by Kate R. Bowers and Daniel J.
Sheffner.
116 5 U.S.C. § 554(a). While the APA prescribes relatively extensive procedures for 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 procedures117 and provides that
impartial adjudicators shall preside over such proceedings.118
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,
including the Congressional Review Act,119 Regulatory Flexibility Act,120 Freedom of Information
Act (FOIA),121 Federal Records Act,122 and Paperwork Reduction Act.123 Through these and
similar statutes, Congress can impact agency action by, among other things, requiring or
authorizing the use of alternative or substitute procedures to subject agency action to increased
transparency and public accountability, and ensuring that agencies engage in certain substantive
considerations during the decisionmaking process.124 In addition, some statutes may impose
procedural requirements on specific agencies on top of or instead of those required by the APA.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
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 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
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, Access to
Adjudication Materials on Federal Agency Websites, 51 AKRON L. REV. 447, 450 (2017) [hereinafter Sheffner,
Adjudication Materials]. Section 555 pertains to “ancillary matters” and Section 558 concerns sanctions and licensing.
5 U.S.C. §§ 555, 558.
117 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, id, and submit proposed findings of fact and conclusions of law, id.
§ 557(c)(1). The agency may receive any “oral or documentary evidence,” but “shall provide for the exclusion of
[evidence that is] irrelevant, immaterial, or unduly repetitious.” Id. § 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 judicial
opinion. Id. § 557(c)(A). See Sheffner, Adjudication Materials, supra note 116, at 450.
118 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
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.” Id. § 556(b)(1)–(3).
119 Id. §§ 801–08 (authorizing Congress to overturn agency rules through joint resolutions of disapproval).
120 Id. §§ 601–12 (directing agencies to consider the effects of regulations on small businesses and other small entities).
121 Id. § 552 (mandating disclosure of certain agency records proactively or by request). Congress enacted the Freedom
of Information Act (FOIA) as an amendment to the APA. For more information on FOIA, see CRS Report R46238,
The Freedom of Information Act (FOIA): A Legal Overview, by Daniel J. Sheffner [hereinafter, Sheffner, FOIA].
122 44 U.S.C. §§ 3101–07 (creating records management responsibilities for federal agencies).
123 Id. §§ 3501–21 (establishing responsibilities for agencies engaged in information collection).
124 See Beermann, supra note 86, at 103–05.
125 See, e.g., 42 U.S.C. § 7607(d)(1) (listing rulemakings to which the Clean Air Act rulemaking provisions—rather
than the APA’s—apply). See also 5 U.S.C. § 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”).
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 either explicitly providing budget
authority for a program or activity or withholding 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
“Common Defence and general Welfare of the United States.”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 Law.”130 Thus, Congress sets the funding levels for agency operations
and programs through 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 Congress’s power of the purse by, for example, making it unlawful to 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
may also prohibit or condition the use of funds to control agency activity or achieve certain policy
goals. Given the legislative branch’s power of the purse,134 the Supreme Court has recognized
that “Congress may always circumscribe agency discretion to allocate 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 Congress has used restrictions on the payment of salaries to buttress its legislative prerogatives. See, e.g., 5 U.S.C.
§ 5503(a) (prohibiting salary payments for certain recess appointments); Consolidated Appropriations Act, 2022, Pub.
L. No. 117-103, div. E, tit. VII, § 713(a), 136 Stat. 49, 295-96 (2022) (prohibiting the use of funds to pay the salary of a
federal official or employee who prohibits, prevents, or attempts to prohibit or prevent, another federal official or
employee from communicating with Congress in connection with any matter pertaining to that other person’s
employment).
129 U.S. CONST. art. I, § 8, cl. 1.
130 Id. § 9, cl. 7. For an overview of Congress’s appropriations power, see Stiff, Power Over Appropriations, supra note
99.
131 For discussion about the relationship between the Taxing and Spending Clause and the Appropriation Clause, see
CRS Report R44729, Constitutional Authority Statements and the Powers of Congress: An Overview, by Whitney K.
Novak, 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
manner not authorized by Congress).
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.
135 Lincoln v. Vigil, 508 U.S. 182, 192–93 (1993) (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

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
unconstitutional ends.138 For example, in Lovett v. United States, the Supreme Court held that
Congress cannot wield its appropriations power to punish specific government officials in
violation of the Bill of Attainder Clause.139 The executive branch has consistently contended that
Congress may not use its appropriations power to infringe upon the President’s constitutional
authority.140
Non-statutory Tools to Influence Executive Branch
Agencies
The above discussion establishes Congress’s broad authority to control federal agencies by
enacting legislation. These statutory tools may be exercised only under Congress’s lawmaking
power, which requires the participation and agreement of the House, Senate, and, absent a veto
override, the President.141 There are also many non-statutory tools (i.e., tools not 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 and control
agency action.
Constitutional Limits on Non-statutory Legislative Actions
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)
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[]
procedure”142 set forth in Article I, Section 7, which provides that “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 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 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 States v. Lovett, 328 U.S. 303, 316–
18 (1946) (invalidating as a bill of attainder an appropriations act proviso barring the payment of salaries of specified
individuals).
139 Lovett, 328 U.S. at 316–18.
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. art. I, § 7. However, each chamber can wield unilateral power by refusing its consent to legislative
measures.
142 Immigration & Naturalization Servs. v. Chadha, 462 U.S. 919, 951 (1983).
143 U.S. CONST. art. I, § 7.
Congressional Research Service

16

Congress’s Authority to Influence and Control Executive Branch Agencies

the requirements of bicameralism (approval by both houses of Congress) and presentment
(submission to the President for his signature or veto).144
Immigration & Naturalization Service v. Chadha is the seminal case on the limits bicameralism
and presentment place on the ability of Congress’s component parts to act alone.145 In Chadha,
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
deportation authority that had been delegated to the Attorney General.146 In invalidating this
“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
procedure did not comply with these constitutional requirements.147 The Court defined a
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 . . .
outside the legislative branch.”148
The Chadha opinion identified specific exceptions to the bicameralism and presentment
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,
unambiguous terms.”149 The Constitution’s impeachment provisions and those relating to Senate
advice and consent to treaty ratification and the appointment of judges, ambassadors, and public
officials are examples of such provisions.150 The Court also noted that “[e]ach House has the
power to act alone in determining specified internal matters.”151 These express exceptions to the
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
closely circumscribed legislative arena, except in specific and enumerated instances.”152
As a result of the Chadha 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
concert with each other, and absent a veto override, in concert with the President.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
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
only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’” (citing Chadha,
462 U.S. at 951)).
145 Chadha, 462 U.S. at 944–59.
146 Id. at 952–55.
147 Id. at 952.
148 Id.
149 Id. at 955–56.
150 Id. at 955.
151 Id. at 955 n.21 (referencing U.S. CONST. art. I, § 5, cl. 2 and § 7, cls. 2, 3).
152 Id.
153 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
an “unremitting obligation to respond to subpoenas”).
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, and individual
Members to influence 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 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 generally
be used to either obtain information necessary for informed congressional involvement in
administrative decisionmaking or pressure an agency into pursuing a certain course of conduct by
harnessing and focusing public attention on an agency’s or official’s action or inaction.155
Significant Tools Available to Both the House and Senate156
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,
including censure; criminal contempt of Congress; and each house’s inherent power to arrest and
jail individuals for obstructive conduct.157
Censure and Other Expressions of Disapproval
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
expressions of censure or condemnation,158 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.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 Chadha as limiting the legal impact of non-
statutory legislative actions. For example, in Bowsher v. Synar, 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
indirectly—by passing new legislation.” 478 U.S. 714, 733–34 (1986).
155 See 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
would participate in the administration of the laws in many ways, including confirmation of executive branch
appointments and withholding funds”).
156 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
oversight and investigative responsibilities.
157 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—
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.
See infra “Tools Available to the House” & “Tools Available to the Senate.”
158 Rather than targeting an individual, a resolution can condemn agency action generally. See, e.g., H.R. Res. 271,
116th 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
people” and calling on the DOJ to reverse its litigating position in a specific case); H.R. Res. 644, 113th Cong. (2014)
(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”).
159 See archived 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

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.161
Congress has proposed resolutions condemning or censuring executive branch officials since as
early as 1793, when Congress considered resolutions censuring Secretary of the Treasury
Alexander Hamilton.162 As a matter of historical practice, Congress has adopted censure and
similar resolutions against various executive officials.163 Still, some have argued that
congressional censure of executive officials is unconstitutional.164 For example, some scholars
assert that the 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 imposing legislative punishment on a named official.165 These arguments appear to
be grounded 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 Congress to remove an official from office and that Congress is constitutionally
prohibited from imposing any additional punishment following impeachment and conviction
beyond removal and disqualification from holding future federal office.166 Censure and other
expressions of disapprobation in simple or concurrent resolutions, however, do not seek to legally
compel removal from office, nor are they punishments following impeachment and conviction.167
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
Clause.168 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
protections of a judicial trial.”169 The Court has explained that “the historical meaning of

Donald J. Trump).
161 Cf. 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”).
162 None of the resolutions passed. Brown, supra note 159, at 6 & n.20.
163 See, e.g., id. 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
1886 and Ambassador Thomas Bayard in 1896). See also H.R. Res. 489, 116th Cong. (2019) (condemning comments
made by President Donald J. Trump).
164 See Gerhardt, supra note 161, at 376 (explaining that those who opposed censure over impeachment proceedings for
President Clinton “claimed, inter alia, 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”).
165 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
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
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 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). See also James C. Ho, Misunderstood
Precedent: Andrew Jackson and the Real Case Against Censure, 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
Constitution expressly forbids it through its prohibition against bills of attainder”).
166 See U.S. CONST. art. I, § 3, cls. 6, 7; id. art. II, § 4.
167 CRS Legal Sidebar LSB10096, The Constitutionality of Censuring the President, by Todd Garvey.
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”).
Congressional Research Service

19

Congress’s Authority to Influence and Control Executive Branch Agencies

legislative punishment” includes “imprisonment, banishment, . . . the punitive confiscation of
property[,] . . . . [and] legislative bars to participation by individuals or groups in specific
employments or professions.”170 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
the Bill of Attainder Clause.171 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
prohibited by the Clause.
Criminal Contempt of Congress
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
congressional subpoena.172 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,
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
court.173 Generally speaking, the threat of such a referral can encourage agency compliance with
congressional oversight requests.174
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”
refused to provide “pertinent” documents or testimony is guilty of a misdemeanor and may be
subject to a fine and imprisonment.175 Under both federal law and House and Senate practice, if

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
prohibited by the Bill of Attainder Clause.” Nixon, 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,
reasonably can be said to further nonpunitive legislative purposes” and “whether the legislative record evinces a
congressional intent to punish.” Selective Serv. Sys., 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
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. Cf. Nixon, 433 U.S. at 476
(“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.”).
172 See 2 U.S.C. § 192.
173 For a comprehensive examination of congressional contempt and enforcement of congressional subpoenas, see CRS
Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History,
Practice, and Procedure, by Todd Garvey [hereinafter Garvey, Congress’s Contempt Power]. See also CRS Report
R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey.
174 See, e.g., 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
on the same day the House was scheduled to vote on a contempt resolution regarding White House Counsel John
Michael Quinn); see also 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
information after “lawmakers had threatened to hold officials in contempt of Congress”).
175 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
offenses. See 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
six months”); id. § 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

20

link to page 37 Congress’s Authority to Influence and Control Executive Branch Agencies

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
for its action.”176
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
constitutionally protected conduct177In addition, the subpoena that forms the basis for the criminal
contempt statute must be valid.178 In general, this means the subpoena must seek information
relevant to an investigation that is both within the issuing committee’s jurisdiction and for which
the committee can articulate a legislative purpose.179 These subpoena-related limitations are
detailed later in this report in reference to the use of subpoenas by congressional committees.180
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
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
contempt of Congress prosecution.181 That discretion, it has been asserted, extends to the decision
to present the matter to a grand jury.182 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
Executive Branch official who asserts the President’s claim of executive privilege.”183 As a result,
there have been recent instances in which use of the criminal contempt of Congress provision
against an agency official has proven unavailing.184 For example, when the President directs or

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.). 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 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).
177 See e.g., 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, 360 U.S. 109, 125–34 (1959) (First Amendment).
178 2 U.S.C. § 192.
179 See, e.g., 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
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)).
180 See infra “Committee Investigative Oversight.”
181 See, e.g., 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
imposing a legal obligation on the executive branch).
182 See, e.g., Letter from Ronald C. Machen, Jr., U.S. 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 jury).
183 Prosecution for Contempt, 8 Op. O.L.C. at 102. Specifically, the DOJ Office of Legal Counsel (OLC) has asserted
that 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
interfere with the “prosecutorial discretion of the Executive by directing the executive branch to prosecute particular
individuals.” Id. at 115.
184 In 2019, the House approved a criminal contempt resolution against Attorney General William Barr and Secretary of
Congressional Research Service

21

Congress’s Authority to Influence and Control Executive Branch Agencies

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
privilege, past practice suggests that the Department of Justice (DOJ) is unlikely to pursue a
prosecution for criminal contempt.185 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
authority to make an independent assessment of whether the official has violated the criminal
contempt statute.186
Inherent Contempt
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.”187
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 applied more broadly than
the criminal contempt statute.188 Despite its title, “inherent” contempt should perhaps more
accurately be characterized as an implied constitutional power.189 The Supreme Court has
repeatedly held that although the contempt power is not specifically granted by the Constitution,

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 official for contempt of Congress for
declining to provide information subject to a presidential assertion of executive privilege.” See Andrew Desidierio,
DOJ Won't Charge William Barr, Wilbur Ross After Contempt Vote, POLITICO (July 24, 2019),
https://www.politico.com/story/2019/07/24/justice-william-barr-wilbur-ross-1432595. For a discussion of other times
the DOJ has refused to take action on criminal contempt of congress resolutions see CRS Report R45653,
Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey.
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
(June 28, 2012); Prosecution for Contempt, 8 Op. O.L.C. at 102.
186 See Letter from Ronald C. Machen, Jr., U.S. Att’y, U.S. Dep’t of Justice, to John A. Boehner, Speaker, 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 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.” In re Chapman, 166 U.S. 661, 671 (1897)
(internal quotation marks omitted).
188 See J. Richard Broughton, Congressional Law Enforcement, 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
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
official who asserted a Presidential claim of executive privilege.” Prosecution for Contempt, 8 Op. O.L.C. at 140 n.42;
see also 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
applicability of [2 U.S.C.] §§ 192 and 194 to Executive Branch officials are relevant to an exercise of Congress’
inherent contempt power”).
189 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
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
implied power is derived by implication from an enumerated power. See Scott C. Idleman, The Emergence of
Jurisdictional Resequencing in the Federal Courts, 87 CORNELL L. REV. 1, 42–43 (2001).
Congressional Research Service

22

link to page 23 link to page 23 link to page 23 Congress’s Authority to Influence and Control Executive Branch Agencies

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
contemnor by the body’s Sergeant at Arms.191 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
he or she complies with the congressional request or until the end of the legislative session.192
Despite its potential reach, the inherent contempt power has been described by some observers as
cumbersome, inefficient, and “unseemly.”193 Presumably for these reasons, neither house of
Congress has initiated an inherent contempt proceeding since 1935.194
Tools Available to the House
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
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

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, Legislative Contempt and Due Process: The 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
conduct of evidentiary proceedings and the development of recommendations at the committee level.” Garvey,
Congress’s Contempt Power, supra note 173, at 13.
192 Watkins, 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
Columbia. See Garvey, Congress’s Contempt Power, supra note 173, 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,
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.” Id. at 8 &
n.61.
193 See 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
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
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.
Seward, U.S. 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 while serving
as Consul General there. Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083, 1135–37
(2009). In 1916, the House’s Sergeant at Arms arrested H. Snowden Marshall, U.S. District 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. Id. at 1137–38 (quoting 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 discharging its legislative duties” and, therefore,
was outside the scope of the inherent contempt power. Marshall, 243 U.S. at 546, 548.
194 Garvey, Congress’s Contempt Power, supra note 173, 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
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
inherent contempt power could be used to impose fines on those that refuse to comply with a committee subpoena.
Congressional Research Service

23

link to page 32 link to page 27 link to page 27 link to page 27 link to page 27 Congress’s Authority to Influence and Control Executive Branch Agencies

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 (The Senate’s role in the impeachment process and its ability to enforce
congressional subpoenas through civil litigation is covered separately in this report.197)
Resolutions of Inquiry
Under House Rule XIII, the House may request certain information from executive branch
officials through resolutions of inquiry.198 Resolutions of inquiry are simple resolutions that seek
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;
instead, “[t]he effectiveness of such a resolution derives from comity between the branches of
government rather than from any elements of compulsion.”199 Resolutions of inquiry are given
privileged status on the House floor if they are directed toward the head of a department200 and
seek available facts, rather than opinions.201
Resolutions of inquiry are most typically used to request documents or information that pertains
to foreign affairs, defense, or intelligence matters.202 They traditionally “request” information
from the President, while other officials are usually “directed” to provide the sought-after
information.203 Although resolutions of inquiry are not legally enforceable, they are often phrased
in mandatory terms when directed to persons other than the President.

195 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.”).
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
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
congressional subpoenas through civil litigation are covered separately in this report.
197 See infra “Tools Available to the Senate.”
198 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. See CRS Report
R40879, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017, 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)
[hereinafter Davis, Resolutions of Inquiry] (citing RIDDICK’S SENATE PROCEDURE: PRECEDENTS AND PRACTICES 799,
1205 (1992)).
199 4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, § 2, at 2304 (2d ed. 1994) [hereinafter
4 DESCHLER’S PRECEDENTS].
200 HOUSE RULE XIII, cl. 7; see CHARLES W. JOHNSON ET AL., HOUSE PRACTICE, ch. 49, § 4, at 847 (2017); Davis,
Resolutions of Inquiry, supra note 198, at 6.
201 JOHNSON, supra note 200, at Ch. 49, § 4, 847.
202 See, e.g., H.R. Res. 243, 116th Cong. (2019); CRS Report RL30240, Congressional Oversight Manual, coordinated
by Ben Wilhelm, Todd Garvey, and Christopher M. Davis [hereinafter Davis et al., Congressional Oversight Manual]
at 81–82; Davis, Resolutions of Inquiry, supra note 198, at 4.
203 4 DESCHLER’S PRECEDENTS, supra note 199, ch. 15, § 2, at 2304. See, e.g., 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) (requesting that the President supply the House with documents pertaining to the Mexican economy “if
not inconsistent with the public interest”). In 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 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).
Congressional Research Service

24

link to page 35 link to page 28 link to page 8 Congress’s Authority to Influence and Control Executive Branch Agencies

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.206 (The Senate’s power to try
impeachments is discussed below.207) The purpose underlying the impeachment process “is not
punishment; rather, its function is primarily to maintain constitutional government.”208
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
“[t]he President, Vice President and all civil Officers of the United States.”209 While the
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.210
Congress has never impeached a non-Cabinet level official in the executive branch, so there is
some question whether such officials are “civil Officers.”211 While untested, non-officer
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

204 U.S. CONST. art. I, § 2, cl. 5.
205 Id. § 3, cl. 6.
206 Id. art. II, § 4.
207 See infra “The Senate’s Role in Impeachment: Trial and Removal.”
208 WM. HOLMES BROWN ET AL., A GUIDE TO THE RULES, PRECEDENTS, AND PROCEDURES OF THE HOUSE, ch. 27, § 1, at
591 (2011).
209 U.S. CONST. art. II, § 4.
210 See BROWN, supra note 208, at ch. 27, § 2, 593.
211 In determining who is a “civil Officer of the United States,” it is sometimes helpful to draw from Appointments
Clause jurisprudence. See CRS Report R44260, Impeachment and Removal, by Jared P. Cole and Todd Garvey, at 5.
As discussed above, see supra “Limitations Imposed by 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
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
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
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.” Cf. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES § 790 (1833) (opining that “all 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 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
may suggest the contrary. See, e.g., Statement of Archibald Maclaine, North Carolina Convention on the Adoption of
the U.S. Constitution, cited in Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 YALE L.J. 1475,
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
impeachments cannot extend to inferior officers of the United States”). For more information on who is subject to
impeachment, see Cole & Garvey, supra, at 3-7.
Congressional Research Service

25

link to page 8 link to page 28 link to page 5 link to page 28 link to page 10 link to page 10 link to page 28 link to page 29 Congress’s Authority to Influence and Control Executive Branch Agencies

subject to impeachment.212 Nor have Members of Congress213 or military officers214 been
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
Officer” is not subject to impeachment (and removal) unless the officer has committed “Treason,
Bribery, or other high Crimes and Misdemeanors.”215 Treason and bribery are well-defined
actions,216 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
“high Crimes and Misdemeanors” as embracing “misconduct that damages the state and the
operations of government institutions.”217 While grounds for impeachment “do not all fit neatly
and logically into categories,”218 there are at least three general categories of conduct that, based
on past congressional practice, are thought to constitute grounds for impeachment:219 (1)
exceeding or abusing the powers of office;220 (2) behavior incompatible with the functions and
purpose of office;221 and (3) misuse of office for improper purpose or for personal gain.222
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.
In total, only three Presidents and one member of the Cabinet have been impeached by the
House.223 None of those officials were convicted in the Senate.

212 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,
126 (1976) (per curiam), and employees, or non-officers who are “lesser functionaries subordinate to the officers of the
United States,” id. at 126 n.162. See supra “Limitations Imposed by the Appointments Clause.” Assuming, just as the
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.
213 While the House did impeach Senator William Blount in 1797, the Senate ultimately determined that it lacked
jurisdiction to try him. BROWN, supra note 208, ch. 27, § 4, at 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 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
impeachment appears to stand for the proposition that Members of Congress are not “civil Officers of the United
States” subject to impeachment. CURRIE, supra note 16, at 281.
214 BROWN, supra note 208, ch. 27, § 2, at 592.
215 U.S. CONST. art. II, § 4.
216 See id. art. III, § 3, cl. 1 (treason); 18 U.S.C. §§ 201 (bribery of public officials and witnesses), 2381 (treason).
217 H.R. REP. NO. 100-810, at 6 (1988).
218 See STAFF OF H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT
21 (Comm. Print 1974) [hereinafter CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT].
219 Id. at 18.
220 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
Members of his Cabinet without Senate approval. Id. Such removal restrictions were later declared unconstitutional by
the Supreme Court in Myers v. United States. 272 U.S. 52 (1926); see supra “Limitations Imposed by Principles of
Presidential Control.”
221 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.”
BROWN ET AL., supra note 208, at ch. 27, § 4, 597.
222 See infra note 223 (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.)
223 Andrew Johnson, William Clinton, and Donald Trump (twice) have been the only Presidents to be impeached.
William W. Belknap, Secretary of War under President Ulysses S. Grant, is the only other executive branch official to
be impeached. In 1876, the House impeached Belknap for accepting payments in return for granting an appointment to
Congressional Research Service

26

link to page 29 link to page 30 link to page 43 Congress’s Authority to Influence and Control Executive Branch Agencies

House Lawsuits
The House has also used the federal courts as a way to direct agency action.224 That said, because
of standing and other justiciability issues,225 the House’s use of the courts as a conduit for
controlling agencies appears principally related to subpoena enforcement226—and possibly to
challenges to a limited class of executive expenditures227—rather than to broader disagreements
over the Executive’s implementation of the law.228
House subpoena-enforcement lawsuits generally must be authorized in one form or another.229
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 the subpoena

a trading post. See CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT, supra note 218, at 20. Belknap retired
two hours before he was impeached. Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a
Madisonian Device, 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 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2444–68, at 902–947
(1907); Turley, supra, at 54.
224 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.
225 The D.C. Circuit wrestled with the House’s authority to judicially enforce its subpoenas in the case of Committee on
the Judiciary v. McGahn. In McGahn, the House initiated a 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 “lack[ed] authority to resolve disputes between the
Legislative and Executive Branches until their actions harm an entity ‘beyond the [Federal] Government.’” Comm. on
the Judiciary v. McGahn, 951 F.3d 510, 516 (D.C. Cir. 2020). That opinion 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 hearing the House's lawsuit. 968 F.3d 755, 760–61 (D.C. Cir. 2020). On remand, 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.
2020). 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. App. LEXIS 32573 (D.C. Cir. Oct. 15,
2020). 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
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
injury. Miers, 558 F. Supp. 2d at 71. In Raines v. Byrd, 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
(1997). See infra “Tools for Individual Members.”
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
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
the subpoena.232 This typically would 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
privilege—that would excuse compliance with the subpoena.233 If the lawsuit succeeds, the court
would 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 Committee on Oversight and
Government Reform v. Lynch instructing DOJ to comply with a House committee subpoena.234
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.235 In
United States House of Representatives v. Burwell, 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
Money 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.236
However, that same 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
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 See Miers, 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”).
233 See 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,
156 F. Supp. 3d 101, 104 (D.D.C. 2016) (focusing on the various privileges asserted by the agency).
234 Lynch, 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).
235 U.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 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. Id. at 71 n.21.
236 Id.; U.S. CONST. art. I, § 9, cl. 7.
237 Burwell, 130 F. Supp. 3d at 58. After finding that the House had standing, id. at 81, the district court held that the
agency in question had, in fact, spent funds without an authorization of appropriations, U.S. House of Representatives
v. Burwell, 185 F. Supp. 3d 165, 168 (D.D.C. 2016), vacated in part sub nom. U.S. House of 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.
Senate Civil Enforcement of Subpoenas
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 statute provides procedures for subpoena enforcement by the Senate.242 That statute is
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
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”
thereof.243 Filing such a lawsuit requires authorization from the Senate as a whole.244 The Senate
provision 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.245 Despite the limiting
terms of the statute, the Senate arguably retains the authority to seek enforcement of a subpoena
on an ad hoc basis through approval of a Senate resolution authorizing such a lawsuit.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.
§§ 288b(b), 288d; 28 U.S.C. § 1365).
243 28 U.S.C. § 1365(a). The Senate may designate any attorney to represent it in such proceedings, id. § 1365(d), but
civil actions are generally brought by the Senate Legal Counsel. See 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
balance Congress’s interest in obtaining the information sought with the agency official’s justification for non-
compliance.
244 2 U.S.C. § 288b. See, e.g., S. Res. 377, 114th Cong. (2016) (authorizing a subpoena enforcement action).
245 28 U.S.C. § 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
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
based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of
the Federal Government.”).
246 See Tara Leigh Grove & Neal Devins, Congress’s (Limited) Power to Represent Itself in Court, 99 CORNELL L. REV.
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
over the execution of important executive branch powers, especially by conditioning or
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
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
consent of the Senate.249 Because of developments in Senate rules, presidential nominations are
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.250 There are more than 1,200 executive branch
positions that, by law, require Senate approval.251 When an officer holding an advice-and-consent
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
government officials to perform the duties of a vacant office is generally governed by the Federal

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
such a capacity since the early days of George Washington’s presidency. See 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”
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”). See also
Beermann, supra note 86, 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, 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
consent’ [in relation to the President’s treaty-making power] has come to mean [approval of] ‘ratification’”).
249 U.S. CONST. art. II, § 2, cl. 2.
250 Beermann, supra note 86, at 110.
251 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
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).
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
achieve certain policies or abide by certain principles if confirmed.255 The power of this latter tool
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
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
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,
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.”256
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.
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.”257 In requiring
that the President secure the consent of two-thirds of available Senators, the Clause may pose a

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
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—
Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. 1 (2017)—
which asserts that individual Members of Congress do not, absent specific authorization, have authority to engage in
“oversight” of the executive branch. See 163 CONG. REC. S4077, S4079 (daily ed. July 19, 2017).
256 See 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), reprinted in Ziegler Statement and Texts of Letters, 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,
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. See Nomination of
Elliot L. Richardson to be Attorney General Before the S. Comm. on the Judiciary, 93d Cong., 1st Sess. 144–46 (1973).
257 U.S. CONST. art. II, § 2, cl. 2.
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
does not agree to be legally bound by a particular treaty provision).260
The Senate’s Role in Impeachment: Trial and Removal
As stated above,261 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
Power to try all Impeachments.”262 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
States presides when the sitting President has been impeached.263 If, after the trial, two-thirds of
the Senate votes to convict the official based on any of the articles of impeachment, the official is
removed from office.264 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,
Trust or Profit under the United States.”265 Unlike conviction and removal, however, which
requires the approval of two-thirds of the Senators present, a later vote to disqualify an official
from holding future federal office appears to require only a majority in favor.266 The Senate may
not impose any punishment other than removal and disqualification from holding future federal
office.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. An individual convicted by the Senate, however, may be criminally prosecuted for the
same facts underlying his impeachment and conviction. See id. (providing that “the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”).
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”
“lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s
action.”274 Instead, the responsibility and authority for interpreting “try” lay with the Senate.275
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.276 In
holding that such challenges could not be entertained on judicial review, Nixon stands for the
practical proposition that the Senate has significant discretion over the procedures it employs
during impeachment trials.
Tools for Congressional Committees
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
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
with the agencies they oversee.277 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
inquiries, and it may be, flatter and please them when necessary.”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
oversight. These investigations may uncover and publicize agency abuse of authority or
maladministration, prompting a legislative response or immediate change in policies by the
investigated agency itself. 279 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.
Congress’s power to conduct investigations complements its more prominent power to legislate
and appropriate funds.280 Although the Constitution does not expressly provide for a “power of
inquiry,” that power has been acknowledged as “an essential and appropriate auxiliary to the
legislative function” derived implicitly from Article I’s vesting of “legislative Powers” in
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%
less likely to reoccur than similar infractions for which congressional committees and subcommittees choose not to
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
provide a forceful example of the investigative power’s potential impact. See JAMES BURNHAM, CONGRESS AND THE
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
witnesses committed suicide; four oil millionaires skipped the country, and numerous other individuals were jailed or
fined sums up to several million dollars.”).
280 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
function”). See also J. William Fulbright, Congressional Investigations: Significance for the Legislative Process, 18 U.
CHI. L. REV. 440, 441 (1951) (describing the power of investigation as “perhaps the most necessary of all the powers
underlying the legislative function”).
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 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)).
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 requests for information through subpoena.286 In the House, nearly all standing committees
have also been vested with the authority to take sworn testimony through staff depositions.287
Although hearings, subpoenas, and depositions are available tools, most investigative oversight
into executive agencies is conducted through informal staff-to-staff contacts between committees
and agencies.288
Congress has also enacted a series of laws that buttress committee investigative powers. Along
with the criminal contempt statute already discussed,289 the federal perjury, false statements, and
obstruction of congressional proceeding statutes also criminalize conduct that may inhibit a
congressional committee’s ability to exercise its oversight power.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

provides the committee with investigative powers such as the power to issue subpoenas. See H.R. Res. 567, 113th
Cong. (2014) (establishing a select committee to investigate the 2012 attacks on U.S. facilities in Benghazi, Libya).
286 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
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
“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”).
287 See H.R. Res. 5, 118th Cong. §3(k) (2023) (committee deposition authority).
288 Beermann, supra note 86, 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).”).
289 2 U.S.C. § 192.
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 other constitutional principles restrict committee investigations.
Because the 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
function.”297 This “legislative purpose” requirement is relatively generous, and generally
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
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.298 No committee, however,
“possesses the general power of making inquiry into the private affairs of the citizen.”299
Moreover, the Supreme Court has determined that committee subpoenas for the President’s
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
undertaken in compliance with the committee’s own rules. See, e.g., Yellin v. United States, 374 U.S. 109, 114 (1963);
United States v, Rumely, 345 U.S. 41, 47 (1953).
297 Kilbourn v. Thompson, 103 U.S. 168, 204 (1881). See also 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
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
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 .
. . encompass[ing] inquiries concerning the administration of existing laws as well as proposed or possibly needed
statutes”).
298 Watkins, 354 U.S. at 187.
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 the entire executive branch;307 and the presidential communications privilege, which
preserves the confidentiality of direct decision making of the President.308 Both privileges are
grounded in the notion that the executive branch must be able to discuss different options and
approaches candidly without fear that its communications will become public.309
The deliberative process privilege is often implicated during committee investigations into
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
the Constitution,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 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
officials that are not “purely factual”). See In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
308 See id. 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,
see CRS Report 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
blunt or harsh opinions in Presidential decision-making”); Lynch, 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
‘the frank discussion of legal and policy issues’ by ensuring that agencies are not ‘forced to operate in a fishbowl’”)
(citations omitted).
310 Nixon, 418 U.S. at 708 (concluding that the presidential communications privilege is “inextricably rooted in the
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 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 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 When directed toward
agencies, report language generally is used to communicate preferences to the agency tasked with
carrying out the measure once it becomes law. The purpose of report language can range from
explaining an interpretation of certain provisions of the bill to report matter phrased as a
requirement or prohibition on the agency, whether or not it is directly referenced in the bill’s
text.319
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 See 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
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
omitted). Committee report language, in addition to other forms of legislative history, can also impact how a court
interprets ambiguous statutory language. See Garcia v. United States, 469 U.S. 70, 76 (1984) (noting that committee
reports are an “authoritative source for finding the Legislature’s intent”).
316 See Vigil, 508 U.S. at 193 (reasoning that although report language cannot on its own impose legally binding
restrictions “an agency’s decision to ignore congressional expectations” as articulated in such reports “may expose it to
grave political consequences”).
317 See 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
agencies on interpretation and enforcement of the law.”).
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 of future informal consequences or more formal legislative
consequences imposed by Congress at the behest of the committee.322
In the appropriations context, report language has been used as a non-binding alternative to the
types of committee controls held unconstitutional in Chadha.323 For example, committees have
inserted language into committee reports that purport to require an agency to obtain the
committee’s approval before reprogramming funds.324 In other instances, agencies have reached
informal agreements in which the agency accedes to some form of limited committee control over
agency decisionmaking.325 Because report language and other informal arrangements between an
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
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
complicated system of communication between Congress and the agencies, involving authorization of new programs,
appropriation of funds, and general oversight of agency operations”); In re 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
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
fall short of a statutory requirement giving rise to a legal infraction where there is a failure to carry out that duty.”).
323 See Richard J. Lazarus, Congressional Descent: The Demise of Deliberative Democracy in Environmental Law,
94 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
cannot afford to risk angering the legislative committee that is primarily responsible for its current and future
appropriations.”).
324 See Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CALIF. L. REV. 595,
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
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
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
reports see Lazarus, supra note 323, at 649–52 (discussing committee report language pertaining to the obligations of
Environmental Protection Agency, the Fish and Wildlife Service, and the Forest Service).
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 may
seek the disclosure of information from agency officials through voluntary cooperation.
Procedural 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
matters affecting administrative agencies.329 For example, committee rules typically provide
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
those committees’ jurisdiction.330 If an individual Member is authorized by a committee, one
house, or Congress as a whole, the Member may be “endowed with the full power of the
Congress to compel testimony.”331
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
Rule”332 or “Rule of Seven” statute333) provides that, upon receipt of a request for information
from any334 seven Members of the House Oversight and Accountability Committee or five
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
jurisdiction of the committee.”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 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
administrative agencies via the filibuster. See Charles Tiefer, Congressional Oversight of the Clinton Administration
and Congressional Procedure, 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. Individual Members of the House can
introduce resolutions of inquiry. See supra “Resolutions of Inquiry.” Procedural rules, however, may also prohibit
individual Members from engaging in certain actions, such as issuing subpoenas. See HOUSE RULE XI 2(m)(1), (3);
SENATE RULE XXVI(1).
330 Some committees, for instance, authorize their chair to issue subpoenas. See, e.g., S. COMM. ON THE JUDICIARY RULE
IX.
331 Watkins v. United States, 354 U.S. 178, 200–01 (1957).
332 Cummings v. Murphy, 321 F. Supp. 3d 92, 95 (D.D.C. 2018).
333 See Davis, Congressional Oversight Manual, supra note 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. See, e.g., Cummings, 321 F. Supp. 3d 92. However, in Maloney v. Murphy, 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
challenge the General Services Administration’s (GSA’s) refusal to provide information to the Members pursuant to
their request under Section 2954. Id. at 54, petition for cert. filed. 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 of Article III” of the Constitution. Id. at 59. The court remanded the case to the district court,
however, so that the lower court could determine the remaining questions in the case, including whether Section 2954
provides a cause of action and, if so, whether it applies to the information at issue. Id. at 58, 70.
336 See, e.g., 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-
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
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 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
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
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.” Id.
§ 552a(b)(9). Similarly, FOIA’s “special-access” provision states that FOIA does not enable agencies “to withhold
information from Congress.” Id. § 552(d) (emphasis added). DOJ has concluded that committee chairs generally are the
only individual Members authorized to obtain records on behalf of committees under the congressional-disclosure
provision of the Privacy Act and FOIA’s special-access provision. Under DOJ’s interpretation, even ranking minority
members are unable to obtain records pursuant to these provisions, absent authorization. See Authority of Individual
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
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.
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
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
otherwise under the authority of a committee or subcommittee”). For an overview of FOIA’s special-access provision,
see Sheffner, FOIA, supra note 121, at 49–51. DOJ’s interpretation, however, is not universally held. See, e.g., Murphy
v. Dep’t of the Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979) (writing, in dicta, that it “would be an inappropriate
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
information, as distinguished from its ranking minority member, other committee members, or other members of the
Congress”).
337 See, e.g., Nat’l Ass’n of Chain Drug Stores v. U.S. Dep’t of Health & Hum. Servs., 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 5 U.S.C. § 552. See Sheffner, FOIA, supra note 121, for more information on FOIA.
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 Raines, 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
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

Congress’s Authority to Influence and Control Executive Branch Agencies

complaint alleges a personal injury.341 The only institutional injury the Supreme Court has
recognized as sufficient to confer standing upon individual legislators occurs when legislators’
votes have been nullified by executive action,342 a narrow category of injury that individual
Members have struggled to allege successfully.343 After Raines, few legislators who lack
authorization from their relevant house of Congress have been granted standing to pursue a civil
action against the executive branch.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 lacked 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 dispersed.” Id.
at 829.
341 Raines, 521 U.S. at 829 (citing Powell v. McCormack, 395 U.S. 486 (1969)). In Powell, the Supreme Court
concluded that it had jurisdiction to hear Representative Adam Clayton Powell, Jr.’s challenge to his exclusion from the
House. 395 U.S. at 549–50. In Raines, the Supreme Court distinguished the plaintiffs’ challenge from the one raised in
Powell, 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 injury than the
abstract “loss of political power” that characterized the plaintiffs’ injury in Raines. 521 U.S. at 820–21.
342 See Coleman v. Miller, 307 U.S. 433 (1939). In Coleman, 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.
The lieutenant governor cast the deciding vote in favor. Id. 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
the lieutenant governor’s authority to cast the tie-breaking vote. Id. 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
their votes,” and emphasizing that “if they are right in their contentions their votes would have been sufficient to defeat
ratification.” Id. at 438. The Raines Court later clarified that its “holding in Coleman stands (at most) for the
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
been completely nullified.” 521 U.S. at 823 (internal citations omitted). 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.
See 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); see also Raines, 521 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)”).
In Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), the Supreme Court summarized Raines as standing
for the principle that “individual members lack standing to assert the institutional interests of a legislature.” Id. at 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 Coleman in Bethune-Hill. Instead, it distinguished Coleman
from the case before it, writing that, “[u]nlike Coleman, this case does not concern the results of a legislative chamber’s
poll or the validity of any counted or uncounted vote.” Id. at 1954.
343 See, e.g., 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); Campbell, 203 F.3d at 22–23 (same); Kucinich, 821 F. Supp.
2d at 120 (same).
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
aware of any case in this Circuit where a court has recognized legislative standing after Raines”). In Blumenthal v.
Trump,), the D.C. Circuit held that 215 individual Members of Congress—who maintained suit on their own behalves
and did not represent the House of Representatives or Senate as such—lacked standing to sue former President Donald
Trump for allegedly violating the Foreign Emoluments Clause of the Constitution. 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
requested by the court to file a brief in the action because that person has a strong interest in the
subject matter.”346 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
statutory provisions at issue in the litigation in question, or defend the prerogatives or interests of
the legislative branch.347 While amicus briefs cannot control agency action, such briefs filed by
Members of Congress in proceedings involving the executive branch may be useful in alerting
agencies or officials to the views of Members on matters central to executive branch programs
and powers.
Lower courts have imposed important 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 legislator interference with certain agency adjudications.348 In
the seminal 1966 decision of Pillsbury Co. v. FTC,349 the Fifth Circuit vacated a Federal Trade
Commission (FTC) decision that the agency had issued after the FTC Chair and other
Commissioners faced congressional questioning during a Senate subcommittee hearing that
focused “directly” and “substantially” on the agency’s decisionmaking process in a pending
case.350 The court explained that when Congress interferes with the “judicial function” of an
agency proceeding, “we become concerned with the right of private litigants to a fair trial and . . .
the appearance of impartiality.”351 Later, in D.C. Federation of Civic Associations v. Volpe, the
D.C. Circuit explained that Pillsbury applies to “judicial or 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, Congress in Court, 59 UCLA L. REV. 914, 946 (2012); see also Neal Devins, Measuring Party
Polarization in Congress: Lessons from Congressional Participation as Amicus Curiae, 65 CASE W. RES. 933, 940
(2015) (opining that “amicus filings are an easy, low-cost mechanism for lawmakers to stake out policy positions”).
348 See, e.g., ATX, Inc. v. Dep’t of Transp., 41 F.3d 1522, 1527 (D.C. Cir. 1994) (declaring that an “administrative
adjudication is ‘invalid if based in whole or in part on congressional pressures’” (quoting D.C. Fed’n of Civic Ass’ns v.
Volpe, 459 F.2d 1231, 1246 (D.C. Cir. 1971)));. Pillsbury Co. v. FTC, 354 F.2d 952, 964 (5th Cir. 1966); see also
Jamelle C. Sharpe, Judging Congressional Oversight, 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 interference in the
administrative process is of particular concern in a quasi-judicial proceeding”).
349 354 F.2d 952 (5th Cir. 1966).
350 Id. at 964.
351 Id. (emphasis added). The type of interference experienced by the agency officials, declared the court, “sacrifices
the appearance of impartiality—the sine qua non of American judicial justice.” Id.
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 However, the D.C. Circuit held that, 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 relevant.”356
Based on D.C. Federation, 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 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.”357
Conclusion
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
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
holding agency offices are appointed and removed, and delegate lawmaking authority to agencies.
In addition, Congress may reverse certain agency actions and decisions through later legislation.
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 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 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, 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 public record
with respect to which reasonable prior notice to all parties is not given.” Id. § 551(14). The statute does not expressly
exclude Members of Congress from the scope of its prohibition on ex parte communications, and legislative history
indicates that the prohibition applies to Members. See H.R. REP NO. 94-880, pt. 1, at 21–22 (1976). It does not,
however, cover “requests for status reports.” 5 U.S.C. § 551(14).
355 D.C. Fed’n, 459 F.2d at 1246–47; see DCP Farms v. Yeutter, 957 F.2d 1183, 1187 (5th Cir. 1992) (“Pillsbury holds
that the appearance of bias caused by congressional interference violates the due process rights of parties involved
in judicial or quasi-judicial agency proceedings.”); Peter Kiewit Sons’ Co. v. U.S. Army Corps of Engineers, 714 F.2d
163, 169 (D.C. Cir. 1983) (“The [D.C. Federation] court indicated that if the decision had been judicial or quasi-
judicial, it could be invalidated by ‘the appearance of bias or pressure.’” (quoting D.C. Fed’n, 459 F.2d at 1246)).
356 D.C. Fed’n, 459 F.2d at 1247 (internal quotation marks and citation omitted); accord id. at 1248 (explaining that the
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”); Peter Kiewit Sons’ Co., 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]
was whether the congressional action actually affected the decision”).
357 Sierra Club. v. Costle, 657 F.2d 298, 409 (D.C. Cir. 1981) (citing D.C. Fed’n, 459 F.2d at 1246–47). See also
Connecticut v. U.S. Dep’t of the Interior, 363 F. Supp. 3d 45, 63 n.15 (D.D.C. 2019) (explaining that the Costle
standard “was based directly on the D.C. Fed’n standard but acknowledging that a rulemaking proceeding “may allow
for more political wrangling than an agency’s adjudication of an individual request”).
Congressional Research Service

44

Congress’s Authority to Influence and Control Executive Branch Agencies

Author Information

Todd Garvey
Sean M. Stiff
Legislative Attorney
Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

Congressional Research Service
R45442 · VERSION 7 · UPDATED
45