ARTICLE: OVERSIGHT RIDERS

John Whitty

November, 2021

Reporter

97 Notre Dame L. Rev. 127 *

Length: 60767 words

Author: Kevin M. Stack*

and Michael P. Vandenbergh

**

distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy

identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the

copyright notice.

* Lee S. and Charles A. Speir Professor of Law, Vanderbilt University Law School. For helpful comments and

suggestions on earlier drafts, we thank Jon Cannon, Josh Chafetz, Bob Greenstein, Matthew Lawrence, Kevin

Kosar, Gillian Metzger, Zachary Price, David Reich, David Super, Chris Walker, Philip Wallach, Adam White, and

participants at George Mason (Gray Center) and Federal Funding Issues workshops. For excellent research

assistance, we thank Alex Chertoff, Wendy Erickson, Anne Gieseke, Aaron Megar, Sean Sullivan, Daniel Vickers,

and Mark Williams.

** David Daniels Allen Distinguished Chair of Law, Director, Climate Change Research Network, and Co-Director,

Energy, Environment and Land Use Program, Vanderbilt University Law School.

Highlight

Congress has a constitutionally critical duty to gather information about how the executive branch implements the

powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch

has systematically thwarted Congress's powers and duties of oversight. Congressional subpoenas for testimony

and documents have met with blanket refusals to comply, frequently backed by advice from the Department of

Justice that executive privilege justifies withholding the information. Even when Congress holds an official in

contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate

criminal sanctions. As a result, Congress has resorted to enforcing its subpoenas in civil litigation, with terrible

results. Civil enforcement, if any, occurs years after the information was sought, practically eliminating the

information's practical and political value. Changes in administrations can be expected to affect the willingness of

the executive branch to thwart congressional oversight, but the problem will remain until systemic reforms

Page 2 of 56

John Whitty

discourage the most egregious forms of executive evasion. To overcome this reliance on judicial enforcement of its

oversight powers, Congress needs to think more creatively and aggressively. One way of doing so, which we

defend in this Article, is using Congress's powers of the purse to condition funding to agencies on their compliance

with congressional oversight requests, employing what we call oversight riders. By denying funding to executive

agencies' resistance to oversight, Congress can create personal legal incentives for executive branch officials to

comply. The Article concludes by considering whether other underenforced regimes, including requirements

addressing political activity, ethics, and transparency, might also be protected by similar riders.

Text

[*128]

INTRODUCTION

The executive branch repeatedly thwarts Congress's efforts to engage in oversight of its administration of the

laws. Consider a snapshot from just the past two years:

1. A House oversight committee sought information from the Department of Justice and the Department of

Commerce about the citizenship question proposed for the 2020 [*129] Census.

1

After the administration

declined to permit the testimony,

2

the House held two cabinet officials in contempt,

3

and resorted to civil

litigation to enforce their finding of contempt.

4

The enforcement of contempt remained tied up in the D.C.

federal courts until after the November 2020 election.

5

1

Letter from Elijah E. Cummings, Chairman, House Comm. on Oversight and Reform, to William P. Barr, Att'y Gen., Dep't of

Just. (June 3, 2019),

https://oversight.house.gov/sites/democrats.oversight.house

. gov/files/2019-06-03.EEC%20to%20Barr-

DOJ%20re%20Census.pdf [

https://perma.cc/YDP8-DG4D

].

2

Letter from Stephen E. Boyd, Assistant Att'y Gen., Dep't of Just., to Elijah E. Cummings, Chairman, House Comm. on

Oversight and Reform (June 6, 2019),

https://oversight.house.gov/sites/democrats.oversight.house

.

gov/files/Letter%20from%20DOJ%20to%20COR%2006-06-19.pdf [

https://perma.cc/3AVY-MCSJ

].

3

H.R. Res. 497, 116th Cong. (2019).

4

Complaint for Declaratory and Injunctive Relief at 54, Comm. on Oversight & Reform, U.S. House of Representatives v.

Barr, No. 19-cv-03557 (D.D.C. Nov. 26, 2019).

5

Minute Order, Comm. on Oversight & Reform, U.S. House of Representatives v. Barr, No. 19-cv-03557 (D.D.C. Oct. 15,

2020).

97 Notre Dame L. Rev. 127, *127

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John Whitty

2. A House armed services committee sought the testimony of top civilian and military leaders of the Department

of Defense concerning the use of the military in response to nationwide protests, but none were made available to

testify.

6

3. The House subpoenaed Defense Secretary Mark Esper to testify regarding the administration's decision to

withhold military aid for Ukraine.

7

Secretary Esper initially promised that the Pentagon would "do everything

[it] can to respond to their inquiry,"

8

but he later reneged and did not appear.

9

Although the level of executive branch resistance to congressional oversight was particularly extreme during the

Trump administration, [*130] the basic problem extends well beyond it.

10

The executive branch has long

been playing constitutional hardball in response to Congress's efforts at oversight - and winning.

These clashes follow a familiar pattern. A House or Senate committee requests the testimony of an executive

official and related documents. Sometimes negotiations ensue over the scope or terms of the testimony and

documents to be produced. Sometimes the executive simply stonewalls. After a period of delay, a House or Senate

committee then issues a subpoena. The executive official continues to resist, almost always asserting that

executive privilege protects the matter from disclosure. With the pressures on Congress, the initial refusal to comply

with a congressional subpoena often effectively ends the matter in a stalemate in which Congress has not obtained

the information it sought. In highly charged cases, Congress finds the official in contempt. Regardless of whether

the official was held in contempt, when the stakes are high enough, the House or Senate resorts to initiating a civil

lawsuit to seek an injunction to enforce compliance with its subpoenas. After often lengthy delays common in

6

Letter from Adam Smith, Chairman, House Armed Servs. Comm., to Sec'y Mark T. Esper, Sec'y, U.S. Dep't of Def. (June

10, 2020),

https://armedservices.house.gov/_cache/files/f/2/f2c8cc6e-4348-4de0-a9e5-

f45367474b2e/0C419C3BA406745F6167BF3372B36122.20200610-smith-letter-to-sec-def-follow-up-to-june-3-letter-vfinal.pdf

[

https://perma.cc/46ST-4X3F

].

7

Letter from Adam B. Schiff, Chairman, House Permanent Select Comm. on Intel., and Eliot L. Engel, Chairman, House

Comm. on Foreign Affs., and Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Mark T. Esper, Sec'y,

U.S. Dep't of Def. (Oct. 7, 2019),

https://intelligence.house.gov/uploadedfiles/2019-10-07.eec_engel_schiff_to_esper-

dod_re_subpoena.pdf

[

https://perma.cc/4Q95-M8W3

].

8

Quint Forgey,

Mark Esper: Pentagon "Will Do Everything We Can' to Respond to Impeachment Subpoena

, POLITICO

(Oct. 13, 2019),

https://www.politico.com/news/2019/10/13/mark-esper-trump-impeachment-subpoena-045733

[

https://perma.cc/E6QY-YY56

].

9

Lauren Egan & Courtney Kube,

Defense Secretary Mark Esper Will No Longer Comply with Impeachment Inquiry

, NBC

NEWS (Oct. 16, 2019),

https://www.nbcnews.com/politics/trump-impeachment-inquiry/defense-secretary-mark-esper-will-no-

longer-comply-impeachment-inquiry-n1067226

[

https://perma.cc/BCS9-YZ3J

].

10

See infra

Section I.D.

97 Notre Dame L. Rev. 127, *129

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litigation, the congressional committee's investigation may or may not produce a judicial order requiring executive

branch officials to testify or disclose information.

In this predictable back-and-forth, the executive branch has a trump card on disclosure to Congress: the assertion

of executive privilege effectively forces the House or Senate into civil litigation. Congress, like any other civil litigant

frustrated by its adversary's noncompliance with discovery requests, often backs down. Moreover, for the executive

branch, delay in disclosure can be a win. A subpoena only has force for the session of Congress that authorizes it,

11

and absent a sense of urgency among courts, competent counsel can delay the issuance of a final, enforceable

order for the year to eighteen months often necessary to avoid compliance. This delay can undermine institutional

and direct democratic accountability.

12

A delay beyond the current session of Congress may enable politics in

the House or Senate to shift enough to undermine the value of the [*131] information in crafting reform legislation

or to sideline demands for the requested information altogether. On a more fundamental level, a delay that extends

beyond an election undermines voters' ability to hold federal politicians accountable for their actions based on the

withheld information.

The motivating concern of this Article is the loss Congress and the public suffer when Congress is not able to

obtain subpoenaed documents and testimony in a timely manner. The loss is significant. Congress has broad,

constitutionally recognized, statutorily authorized, and practically critical powers to investigate the executive

branch's administration of the law.

13

The capacity to effectively investigate plays a critical role in our

constitutional scheme. To legislate, to decide how to spend the moneys collected in the Treasury, to decide who

should be impeached, Congress needs information. It needs information about what is going right and wrong in our

society, economy, and in relation to other nations. It needs information about what existing federal programs and

activities are succeeding in accomplishing the mission congressional statutes have set for them, and the causes of

failures and setbacks. It needs information about the performance of executive branch officers to ensure public

confidence and compliance with federal laws. This simple logic justifies broad powers of congressional

investigation, has been endorsed by the Supreme Court,

14

and has been reflected in statutes organizing

11

See

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821)

(implying that Congress's coercive powers terminate on

adjournment).

12

The importance of timely enforcement of congressional subpoenas is reflected in the focus on expedited enforcement in

recently proposed legislation

. See, e.g

., Protecting Our Democracy Act, H.R. 8363, 116th Cong.§§401-405 (2020) (providing

an explicit cause of action for Congress to enforce subpoenas, stating that "it shall be the duty of every court of the United States

to expedite to the greatest possible extent the disposition of any such action and appeal," and stating that "the Supreme Court

and the Judicial Conference of the United States shall prescribe rules of procedure to ensure the expeditious treatment of

actions described in subsection (a)") (adding 28 U.S.C. § 1365a).

13

See infra

Section I.B.

14

See, e.g.

,

Watkins v. United States, 354 U.S. 178, 187 (1957)

("The power of the Congress to conduct investigations ...

encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It

97 Notre Dame L. Rev. 127, *130

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John Whitty

Congress's oversight powers.

15

Throughout our history, congressional investigations have played a critical

role in bringing to light problems in our government and the path forward.

16

The problem of congressional oversight is a symptom of a larger weakness in our system of separation of powers.

As Richard Pildes and Daryl Levinson argue, the interaction between the branches is better described by looking at

the separation of parties than the separation of branches.

17

When institutional loyalty is subordinate to party

loyalty, [*132] enforcement of congressional oversight powers will frequently be a function of whether the

President is from the same party as the house of Congress investigating. When government is divided by parties,

the executive branch effectively abandons its role in enforcing contempt of congressional subpoenas. Political

polarization has exacerbated this dynamic.

18

In response, Congress has therefore turned to the courts, with

very poor results.

Congressional oversight need not remain stuck within its current pattern of congressional request-executive

branch objections-congressional subpoena-stalemate-executive privilege-civil litigation-mootness arising from

delay. Congress can engage in constitutional hardball as well. Indeed, it is time for Congress to be more creative

and more aggressive in developing solutions that do not depend upon the courts. "One of Congress's main tools to

push back at such presidential unilateralism," as Gillian Metzger observes, "is its control of the purse."

19

In

particular, this Article makes the case that Congress can and should use its appropriations power

20

as a tool

to force compliance with its request for information from the executive branch. The Article defends doing so by

calling attention to a class of appropriations riders that target the executive branch's obstruction of congressional

oversight. We call these

oversight riders

. The basic idea of an oversight rider is to deny the executive branch

funding for resistance to congressional subpoenas. Executive branch officials cannot lawfully act inconsistent with a

limitation Congress has imposed on their funds,

21

and Congress has the power to deny executive officials'

includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.

It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.");

see also

infra

Section I.B (discussing the constitutional authority for congressional investigations).

15

See infra

Section I.B.

16

See infra

Section I.D.

17

Daryl J. Levinson & Richard H. Pildes,

Separation of Parties, Not Powers

,

119 HARV. L. REV. 2312, 2312-15 (2006)

.

But see

David Fontana & Aziz Z. Huq,

Institutional Loyalties in Constitutional Law

,

85 U. CHI. L. REV. 1, 1-10 (2018)

(arguing that institutional loyalties play a stronger role than acknowledged in recent scholarship).

18

See

Eli J. Finkel et al.,

Political Sectarianism in America

, 370 SCIENCE 533, 535 (2020).

19

Gillian E. Metzger,

Taking Appropriations Seriously

,

121 COLUM. L. REV. 1075, 1153 (2021)

.

20

U.S. CONST. art. I, § 9, cl. 7

("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made

by Law ... .").

97 Notre Dame L. Rev. 127, *131

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John Whitty

salaries during the period of their noncompliance. Executive branch officials typically exercise great care not to

contravene the limitations Congress has placed on their appropriations. By attaching appropriations consequences

for noncompliance with congressional subpoenas, oversight riders give executive branch officials the kind of ex

ante legal incentives to comply that they currently lack.

We identify two oversight riders. The first denies appropriations to officials who thwart subordinates from

communicating with Congress. This rider, identified as the Section 713 rider,

22

has been [*133] reenacted in

appropriations legislation since the late 1990s, but it remains relatively obscure. It is enforced by a member of

Congress requesting that the Government Accountability Office (GAO), a part of the legislative branch, conduct an

investigation into the alleged violation. After the investigation, if a violation is found, the GAO directs a clawback of

the official's salary; for continuing violations, the clawback can match the duration of the violation. In investigating

violations of the Section 713 rider, the GAO has acted promptly and found liability on two occasions. Structurally,

the Section 713 rider suggests a pathway to overcome the obstacles of Congress's more traditional routes to

enforcing its oversight powers. It creates a personal incentive for the official to comply, without requiring the

involvement of the Department of Justice or the delay of civil litigation to enforce the subpoena.

The second oversight rider is one we suggest. Modeled on the language of the Section 713 rider, this oversight

rider directly targets compliance with subpoenas. In addition to the salary sanction, this subpoena rider adds a

prohibition on use of funds for resistance to congressional subpoenas. As a result, the subpoena rider we propose

creates not only the prospect of a salary sanction, like the Section 713 rider, but also the prospect of violation of the

Antideficiency Act, which prohibits a federal official from spending federal funds that have not been appropriated by

Congress.

23

Decisions to resist congressional subpoenas implicate the Antideficiency Act because they are

frequently institutional decisions, involving significant internal deliberations and use of government employment time

and other resources, not merely the choice of an official acting on his or her own initiative.

Both riders - the existing Section 713 rider and our proposed subpoena rider - would create an ex ante incentive

for an official to avoid relying on an overly broad assertion of executive privilege (or indeed, any assertion of

privilege greater than they would estimate the court would sustain). The subpoena rider in particular forces the

official faced with a congressional subpoena to evaluate the reasonableness of the assertion of executive privilege;

21

31 U.S.C. § 1341(a)(1)

(2018) (prohibitions); § 1350 (penalties).

22

Consolidated Appropriations Act, 2021,

Pub. L. No. 116-260

, div. E, tit. VII, § 713,

134 Stat. 1185

, 1432-33 (2020). The

same provision has previously been with other section numbers, including § 618.

See

Consolidated Appropriations Act,

2004,

Pub. L. No. 108-199

, div. F, tit. VI, § 618, 188 Stat. 3, 354 (2004); Consolidated Appropriations Resolution, 2003,

Pub. L.

No. 108-7

, div. J, tit. V, § 620,

117 Stat. 11

, 468 (2003). The text of the rider is reproduced in the text accompanying note 161

below.

23

31 U.S.C. § 1341(a)(1)

(2018); 2 U.S. GOV'T ACCOUNTABILITY OFF., GAO-06-382SP, PRINCIPLES OF FEDERAL

APPROPRIATIONS LAW 6-36 (3rd ed. 2006).

97 Notre Dame L. Rev. 127, *132

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John Whitty

if, in the official's estimation, it is beyond the scope of what a court would sustain, then the official would face a

personal risk of loss of salary plus the legal consequences from violating the Antideficiency Act.

Executive branch officials may decide that the risk of personal consequences is low and continue to reject

compliance with [*134] congressional subpoena, but oversight riders may be the only practical way to create a

genuine personal risk for noncompliance. Oversight riders remove the license of executive branch officials to ignore

congressional subpoenas with impunity. Unless the officials estimate that they have a valid claim of executive

privilege as judged by the courts, defying a congressional subpoena creates the risk of a clawback of their salaries

during the period of their refusal to comply as well as violations of the Antideficiency Act, which creates potential

exposure for administrative sanctions,

24

triggers internal executive branch reporting requirements,

25

and

carries penalties for willful noncompliance.

26

These salary clawback and appropriations-based liability risks

will continue after the session of Congress that issued the subpoena, thus motivating compliance by executive

branch officials even if they think they can run out the clock on a congressional session.

This technique of squeezing funding for the executive branch operations as a consequence - and eventually as a

deterrent - for noncompliance with congressional requests for information is an instance of constitutional self-help.

27

As David Pozen explicates the concept of constitutional self-help, it involves "the unilateral attempt by a

government actor to resolve a perceived wrong by another branch, and thereby to defend a perceived institutional

prerogative, through means that are generally impermissible but that are assertedly permitted in context."

28

Oversight riders fit this pattern. With oversight riders, Congress would have a response to the hardball tactics of

the executive branch - repeated, entrenched stonewalling in response to congressional requests for information -

and thus a perceived and actual harm. Like many forms of self-help, oversight riders involve tough tactics that

ideally would not be necessary. No one nominates appropriations riders as the most deliberate, careful, or public

aspect of the legislative process.

29

And no one invites government shutdowns which could result from

stalemates over annual appropriations. Reflecting this general reluctance, Congress [*135] has rarely used its

24

31 U.S.C. § 1349(a)

(2018) (authorizing administrative discipline for violations of § 1341 and § 1342).

25

31 U.S.C. § 1351

(2018) (specifying reporting requirements).

26

31 U.S.C. § 1350

(2018). Although there do not appear to have been prosecutions for violations of the ADA.

See

2

U.S. GOV'T ACCOUNTABILITY OFF.,

supra

note 23, at 6-144 (noting that GAO is not aware of prosecutions). Even the

prospect of committing a felony has a deterrence effect on executive officials.

27

See

David E. Pozen,

Self-Help and the Separation of Powers

,

124 YALE L.J. 2, 12 (2014)

.

28

Id. (

italics omitted).

29

See, e.g.

, Neal E. Devins,

Regulation of Government Agencies Through Limitation Riders

,

1987 DUKE L.J. 456,

464-65

(providing concise summary of concerns with use of limitations riders, including that they bypass authorizing committees

in Congress and they are given inadequate consideration and study).

97 Notre Dame L. Rev. 127, *133

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John Whitty

appropriations powers to directly strike back against executive branch refusal to cooperate in response to its

requests for information.

30

But the oversight function of Congress is particularly important in an era of hyper-

partisanship, and thus oversight riders are worth these costs. They are targeted, reciprocal, and proportionate to the

harms of the executive branch stonewalling they seek to address.

31

This Article is organized as follows. Part I explains why oversight is critical to our government and well-grounded in

constitutional and statutory law. It then illustrates how frequently the executive branch thwarts congressional

oversight. Part II is the heart of the Article. It surveys the tools Congress has primarily relied upon to enforce its

oversight powers. It argues that Congress's inherent contempt powers, criminal liability for contempt, civil liability for

contempt, and general civil actions to enforce cooperation are all insufficient and have failed. It then introduces the

category of oversight riders, first discussing one existing rider and then proposing a rider targeting noncompliance

with congressional subpoenas with greater sanctions. It defends the constitutionality of oversight riders and justifies

relying upon them in the current climate of constitutional hardball. Part III broadens the Article's lens to consider

whether appropriations riders could help to enforce good government norms that currently lack adequate

enforcement, ranging from protections against partisan use of federal power and federal ethics laws to laws

governing the transparency of government action.

I. THE CONSTITUTIONALLY CRITICAL ROLE OF CONGRESSIONAL OVERSIGHT

A. Why Oversight Is Important

Oversight is critical to Congress's core functions of legislating, appropriating, and confirming nominations.

32

Oversight allows Congress to learn how the funds it appropriates and the programs it authorizes function. And

what it learns can be key to reform or holding individual executive officers to account. Because congressional

hearings are one of the nation's most public tribunals, oversight [*136] performs a critical political function as well;

it provides one of the most important ways for the public to learn about the executive branch's actions at a time

when it is salient for holding the President accountable, including at the ballot box. Moreover, the existence of

robust congressional oversight also acts as a deterrent to executive branch misconduct.

The logic for broad congressional powers to investigate - including to compel documents and testimony from the

executive branch - is hard to assail. Information is necessary for Congress to legislate. As the Supreme Court wrote

30

See

SEAN M. STIFF, CONG. RSCH. SERV., R46417, CONGRESS'S POWER OVER APPROPRIATIONS:

CONSTITUTIONAL AND STATUTORY PROVISIONS 60-61 (2020). We discuss one example below.

See infra

text

accompanying notes 146 to 151 (discussing retaliation in appropriations rider after Lois Lerner's refusal to testify).

31

Cf.

Pozen,

supra

note 27, at 64 (arguing constitutional self-help operates in a convention that privileges reciprocal

and proportionate countermeasures).

32

Devins,

supra

note 29, at 460 ("Oversight of executive organization and action is a traditional function of Congress."

(citing LOUIS FISHER, CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS AND THE PRESIDENT (2d ed. 1985))).

97 Notre Dame L. Rev. 127, *135

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John Whitty

in 1927 in

McGrain v. Daugherty

,

33

and recently endorsed in

Trump v. Mazars USA, LLP

34

>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.

35

And of course, the same holds true for all of Congress's other powers. To effectively exercise its impeachment

power,

36

power to appropriate,

37

power to confirm principal officers,

38

and ratify treaties,

39

Congress must have the power to compel information.

40

As

McGrain

recognizes, "experience has taught

that mere requests for such information often are unavailing, and also that information which is volunteered is not

always accurate or complete; so some means of compulsion are essential to obtain what is needed."

41

Moreover, because Congress's power of investigation is necessary for the performance of Congress's other

constitutionally vested powers, the oversight power must be understood broadly.

42

As the Supreme Court

emphasizes in

Mazars

: "The congressional power to obtain information is "broad' and "indispensable.' ... It

encompasses [*137] inquiries into the administration of existing laws, studies of proposed laws, and "surveys of

defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.'"

43

To exercise its powers, Congress must be able to obtain a sufficiently wide array of information so that it can

33

McGrain v. Daugherty, 273 U.S. 135, 175 (1927)

(upholding Congress's power to compel the testimony of a private party

relevant to its legislation).

34

Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2044-45 (2020)

.

35

McGrain, 273 U.S. at 175

;

Mazars, 140 S. Ct. at 2031

("Without information, Congress would be shooting in the

dark, unable to legislate "wisely or effectively.'" (quoting

McGrain, 273 U.S. at 175

)) (upholding Congress's power to compel

the testimony of a private party relevant to its legislation).

36

U.S. CONST. art. I, § 2, cl. 5

; § 3, cls. 6-7; art. II, § 4.

37

U.S. CONST. art. I, § 9, cl. 7

.

38

U.S. CONST. art. II, § 2, cl. 2

.

39

U.S. CONST. art. II, § 2, cl. 2

.

40

Josh Chafetz,

Congressional Overspeech

,

89 FORDHAM L. REV. 529, 541-42 (2020)

[hereinafter Chafetz,

Congressional Overspeech

].

41

McGrain v. Daugherty, 273 U.S. 135, 175 (1927)

.

42

See

Chafetz,

Congressional Overspeech

,

supra

note 40, at 542.

97 Notre Dame L. Rev. 127, *136

Page 10 of 56

John Whitty

assess alternatives, understand the full context of past actions, and predict trends, and it must be able to do so in a

timely manner.

44

Congressional oversight serves another critical function as well: it deters executive branch wrongdoing.

45

Appearance in a public hearing before a congressional oversight committee is an experience that most executive

branch officials aim to avoid. Congressional oversight hearings expose the official through highly public questioning

by the members of Congress and function as the nation's tribunal for evaluating the activities of the executive,

corporate conduct, and much more. Exposure of executive branch ineptitude or wrongdoing can occur through

document production, depositions, and testimony before a committee and can lead to embarrassment, firing, or in

the worst cases potential criminal exposure.

46

The power of Congress to haul executive branch officials

before its investigative committees [*138] creates powerful incentives to comply with the law and to do so in ways

that could be explained to Congress.

Not surprisingly, congressional oversight has been the launching pad for many significant executive branch

reforms in the past several decades and before. Post-Watergate reforms of ethics in government and the creation

of the independent counsel grew out of Congress's investigations.

47

Post-9/11 reforms in the coordination and

43

Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020)

(quoting

Watkins v. United States, 354 U.S. 178, 187, 215

(1957))

.

44

As to Congress's ability to compel testimony from executive branch officials, see BEN WILHELM, CONG. RSCH. SERV.,

R46061, VOLUNTARY TESTIMONY BY EXECUTIVE BRANCH OFFICIALS: AN INTRODUCTION (2019) (concluding that

"Congress's control over appropriations and the organization and operations of the executive branch may encourage agency

leaders to accommodate its requests rather than risk adverse actions toward their agencies. In addition, there are incentives for

the executive branch to work with Congress in order to increase the likelihood of success for the Administration's policy agenda

and to manage investigations with the potential to damage the Administration's public standing"); see also OFF. OF MGMT. &

BUDGET, EXEC. OFF. OF THE PRESIDENT, OMB CIRCULAR A-11, PREPARATION, SUBMISSION AND EXECUTION OF

THE BUDGET (rev. 2021); OFF. OF MGMT. & BUDGET, EXEC. OFF. OF THE PRESIDENT, OMB CIRCULAR A-19,

LEGISLATIVE COORDINATION AND CLEARANCE (rev. 1979) (providing guidance for coordinating and controlling agency

statements to Congress on budgetary and legislative issues).

45

William P. Marshall,

The Limits on Congress's Authority to Investigate the President

,

2004 U. ILL. L. REV. 781, 799

(2004)

; Chafetz,

Congressional Overspeech

,

supra

note 40, at 542-43 n.97 (quoting Marty Lederman: "As virtually

anyone who's worked in the executive branch will attest, the prospect (or threat) of having to explain one's self ... to a

congressional chair or staff, or in congressional hearings under the harsh glare of network lights, has a significant impact on how

one performs her work as an official" (quoting Marty Lederman,

Can Congress Investigate Whether the President Has

Conflicts of Interest, Is Compromised by Russia, or Has Violated the Law?

, BALKINIZATION (July 29, 2019),

https://balkin.blogspot.com/2019/07/can-congress-investigate-whether.html

[

https://perma.cc/EGT3-63Y2

])).

46

See, e.g.

, Howard Kurtz,

Lavelle Indicted by Grand Jury on Contempt of Congress Charge

, WASH. POST (May 28,

1983) (reporting indictment of Rita Lavelle, former EPA official, regarding her refusal to testify).

97 Notre Dame L. Rev. 127, *137

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John Whitty

mission of our national intelligence agencies built upon both the 9/11 Commission and Congress's own

investigation of the failures that led to the 9/11 attack going undetected.

48

And, we anticipate, congressional

hearings into the national response to COVID-19 will play a role in both the immediate solution and the creation of

longer-term structures to make the country better prepared for pandemics.

Congressional hearings and oversight also play a crucial role in the dynamics of national and state elections.

These hearings provide public scrutiny of the choices made by executive branch officials in response to crises - and

these hearings create a sense of effectiveness, failure, or evasion that ripples through subsequent political

campaigns. President George W. Bush campaigned against Vice President Al Gore in part based on the impression

of perfidy produced by President Bill Clinton's impeachment trial.

49

President Barack Obama campaigned

against Senator John McCain in part by condemning President Bush's responses to 9/11 and failure to act on the

reforms suggested by congressional investigators and the 9/11 Commission.

50

President Donald Trump used

Congress's investigation of Benghazi, the bungled rollout of the Affordable Care Act, and policies at the border to

campaign against Hillary Clinton.

51

[*139] Typically, the timing of oversight is critical to the ability of the public to hold members of Congress and the

President to account. Disclosures that are delayed by a year or two can easily enable an administration to avoid

scrutiny before the election of a new Congress, with the potential for a change in party majority in either house.

Disclosure delayed beyond the next presidential election can make a huge difference in the record the public has to

assess the performance of the President and his or her administration.

47

See

Mark Curriden,

The Lawyers of Watergate: How a "3rd-Rate Burglary' Provoked New Standards for Lawyer

Ethics

,

98 A.B.A. J. 38, 41-43 (2012)

; Jim Mokhiber,

A Brief History of the Independent Counsel Law

, FRONTLINE (1998),

https://www.pbs.org/wgbh/pages/frontline/shows/counsel/office/history.html

[

https://perma.cc/5ZVN-F7T8

].

48

See

Mark Fenster,

Designing Transparency: The 9/11 Commission and Institutional Form

,

65 WASH. & LEE L.

REV. 1239, 1287-92 (2008)

.

49

Alison Mitchell,

The 2000 Campaign: The Campaign Trail; Bush and His Rivals Touring the Same Highly Contested

States

, N.Y. TIMES (July 29, 2000),

https://www.nytimes.com/2000/07/29/us/2000-campaign-campaign-trail-bush-his-rivals-

touring-same-highly-contested.html

[

https://perma.cc/4LNJ-MQPJ

].

50

See

Democratic Nat'l Comm.,

2008 Democratic Party Platform

, AM. PRESIDENCY PROJECT (Aug. 25, 2008),

https://www.presidency.ucsb.edu/documents/2008-democratic-party-platform

[

https://perma.cc/H2N3-MK3T

]; Jay Newton-Small,

Bush Starts a McCain-Obama Brawl

, TIME (May 16, 2008),

http://content.time.com/time/politics/article/0,8599,1807377

,00.html

[

https://perma.cc/TJ2F-YU8D

].

51

Aaron Blake,

Donald Trump's Best Speech of the 2016 Campaign, Annotated

, WASH. POST (Aug. 19, 2016),

https://www.washingtonpost.com/news/the-fix/wp/2016/08/19/donald-trumps-best-speech-of-the-2016-campaign-annotated/

[

https://perma.cc/S55B-NCL7

].

97 Notre Dame L. Rev. 127, *138

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John Whitty

Not only are broad powers of disclosure critical for Congress to perform its core constitutional functions, but those

same powers are also critical to deterring executive branch wrongdoing and exposing that wrongdoing to the public

so it can hold the executive branch accountable.

B. Congress's Constitutional and Statutory Powers of Oversight

Although the text of the Constitution does not explicitly grant investigative power to Congress or grant either of its

chambers an investigative power,

52

the existence of a broad power to investigate the executive branch is not

controversial as a matter of historical practice and has been repeatedly endorsed by the Supreme Court.

53

Congress's earliest formal investigation was an inquest into a failed military endeavor - understood as oversight of

the President's expenditure of appropriated funds. In 1792, General Arthur St. Clair lost more than 600 soldiers in a

confrontation with Native Americans at the Battle of the Wabash.

54

In response to the outcry over the

expedition, the House voted (44 to 10) to appoint a committee to investigate, [*140] including the powers "to call

for such persons, papers, and records, as may be necessary to assist their inquiries."

55

The House

Committee obtained not only papers from the War Department, but also the testimony of General St. Clair and

Secretary of War Henry Knox.

56

In response to objections that the House Committee lacked power to

investigate officers under the President's control, Representative Williamson voiced what would later be embraced

52

See

McGrain v. Daugherty, 273 U.S. 135, 175 (1927)

(noting that "[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").

53

See, e.g.

,

Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504 (1975)

("This Court has often noted that the power

to investigate is inherent in the power to make laws ... . Issuance of subpoenas ... has long been held to be a legitimate use by

Congress of its power to investigate.");

Watkins v. United States, 354 U.S. 178, 187 (1957)

("The power of the Congress to

conduct investigations is inherent in the legislative process.");

McGrain, 273 U.S. at 174

("We are of opinion that the power

of inquiry - with process to enforce it - is an essential and appropriate auxiliary to the legislative function."). A complete treatment

of the scope of Congress's investigative powers is beyond our scope and aim here. For excellent treatments, see, e.g., Chafetz,

Congressional Overspeech

,

supra

note 40, at 542; Jack M. Beermann,

Congressional Administration

,

43 SAN DIEGO L.

REV. 61, 126 (2006)

(noting Congress's tools of investigation are broad and describing them); Marshall,

supra

note 45, at

781-82.

54

Chafetz,

Congressional Overspeech

,

supra

note 40, at 537 n.45; Marshall,

supra

note 45, at 786.

55

3 ANNALS OF CONG. 490-94 (1792);

see

James M. Landis,

Constitutional Limitations on the Congressional

Power of Investigation

, 40 HARV. L. REV. 153, 170 (1926).

56

Chafetz,

Congressional Overspeech

,

supra

note 40, at 537.

97 Notre Dame L. Rev. 127, *139

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John Whitty

as the broad logic for oversight: "An inquiry into the expenditure of all public money was the indispensable duty of

this House."

57

In response to the House inquiry, President Washington consulted with his cabinet, taking care that his response

""be rightly conducted' because it could "become a precedent.'"

58

After the cabinet meeting, President

Washington called upon Thomas Jefferson to negotiate with the House, which narrowed the requested documents.

59

The House investigative committee ultimately concluded that the unfortunate losses were not attributable to

General St. Clair's leadership, but reflected structural problems in the efficiency and quality of the supplies,

60

a power that Congress immediately reallocated from the War Department to the Department of Treasury.

61

Other early congressional investigations confirmed that Congress's power to investigate extends to the full scope

of the expenditure of funds it appropriated.

62

In response to allegations that Brigadier General James

Wilkinson had received moneys from Spain, for instance, Representative Sheffrey defended the congressional duty

of inquiry: "Sir, it is our duty to make this inquiry... . We extract money from the pockets of the people to appropriate

to these purposes, and it is proper to ascertain that those who reap the earnings of the people are worthy of the

public confidence."

63

Indeed, another [*141] member of the House threatened that if the President did not

remove General Wilkinson, "we have the power to say that there shall be no longer an army with a commander at

its head"

64

- and the resolution to create an investigative committee carried by a vote of 80 to 29.

65

57

3 ANNALS OF CONG. 491 (1792);

see also

Landis,

supra

note 55, at 174 (discussing the inquiry).

64

21 ANNALS OF CONG. 1729 (1810).

65

Landis,

supra

note 55, at 175.

97 Notre Dame L. Rev. 127, *140

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John Whitty

Congress actively exercised its powers of oversight throughout the nineteenth century, investigating matters

including allegations of misconduct against the Secretary of the Treasury,

66

alleged violations of the charter of

the Bank of the United States,

67

future President Jackson's assumption of powers in the Seminole War (a

Senate inquiry),

68

the administration of the Post Office,

69

and investigations into the State Department,

70

Interior Department,

71

and the Smithsonian Institution,

72

among many others.

73

By 1927, the Supreme Court had embraced a broad understanding of Congress's oversight functions in

McGrain

v. Daugherty

, arising from the Senate inquiry into the Teapot Dome corruption scandal. Attorney General Harry

Daugherty came into the national spotlight for his inaction in response to apparent corruption arising from allocation

of rights to Teapot Dome.

74

The Senate established an investigative committee to inquire into "the alleged

failure of Harry M. Daugherty, Attorney General of the United States, to prosecute properly violators of the Sherman

Anti-trust Act," among other persons and matters.

75

In the course of the Senate committee's investigation, it

subpoenaed Mally Daugherty - the brother of the Attorney General and president of a bank.

76

After Mally

Daugherty [*142] twice failed to appear in response to subpoenas, the Senate authorized its Sergeant at Arms to

take him into custody,

77

from which Daugherty sought relief. The Supreme Court upheld the Senate

66

See

10 ANNALS OF CONG. 980 (1801) (absolving Secretary of the Treasury Wolcott).

67

S. JOURNAL, 15th Cong., 2d Sess. 265 (1818).

68

33 ANNALS OF CONG. 76 (1818) (adopting resolution in a similar spirit as an earlier resolution to investigate "clerks or

other officers in either of the Departments, or in any office at the Seat of the General Government, have conducted improperly in

their official duties ... ," 31 ANNALS OF CONG. 783, 786 (1818)).

69

See

H. JOURNAL, 16th Cong., 2d Sess. 80 (1820) (adopting resolution to appoint a committee "to investigate the

affairs of the Post Office Department, with power to send for persons and papers").

70

CONG. GLOBE, 29th Cong., 1st Sess. 733-34 (1846) (inquiring into expenditures by the State Department in negotiating

northeastern boundary).

71

CONG. GLOBE, 31st Cong., 1st Sess. 782-83 (1850) (inquiring into Secretary of the Interior Thomas Ewing's payment of

claims after they had been disallowed by accounting officers).

72

CONG. GLOBE, 33d Cong., 2d Sess. 282-83 (1855) (inquiring into whether the "Institution has been managed, and its

funds expended, in accordance with the law establishing the institution").

73

See

Landis,

supra

note 55, at 174-94.

74

Marshall,

supra

note 45, at 792.

75

273 U.S. 135, 151 (1927)

.

76

Id. at 152

.

77

Id. at 152-54

.

97 Notre Dame L. Rev. 127, *141

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John Whitty

committee's power to compel this testimony in broad terms. Surveying past congressional practice, the practice of

state legislatures, and its own precedents, the Court cast Congress's power of inquiry as necessary to its power to

legislate:

We are of opinion that the power of inquiry - with process to enforce it - is an essential and appropriate auxiliary to

the legislative function. It was so regarded and employed in American legislatures before the Constitution was

framed and ratified. Both houses of Congress took this view of it early in their history ... and both houses have

employed the power accordingly up to the present time... . The power of inquiry - with enforcing process - was

regarded and employed as a necessary and appropriate attribute of the power to legislate - indeed, was treated as

inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the

legislative function to the two houses are intended to include this attribute to the end that the function may be

effectively exercised.

78

Under

McGrain

, the legislative power to investigate extends beyond seeing information directly relevant to the

contemplated legislation, but also extends to investigation of executive branch wrongdoing. As William Marshall

notes,

McGrain

"allows specific inquiry into individual wrongdoing even if that wrongdoing could also be subject to

judicial criminal sanction."

79

In the century since the Court's decision in

McGrain

, it has repeatedly embraced

McGrain

's broad understanding of Congress's power to investigate,

80

and recently reaffirmed that broad

power in

Mazars

.

81

Based on that understanding, as Josh Chafetz highlights,

82

Congress has enacted legislation that makes it a

congressional duty - which falls upon standing committees in both houses - to oversee the executive branch. The

1946 Legislative Reorganization Act obliges each Congress to create standing committees "to assist the Congress

[*143] in appraising the administration of the laws," which committees "shall exercise continuous watchfulness of

the execution by the administrative agencies concerned of any laws."

83

The 1970 Legislative Reorganization

78

Id. at 174-75

.

79

Marshall,

supra

note 45, at 796.

80

See, e.g.

,

Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504 (1975)

("This Court has often noted that the power

to investigate is inherent in the power to make laws ... . Issuance of subpoenas ... has long been held to be a legitimate use by

Congress of its power to investigate.");

Watkins v. United States, 354 U.S. 178, 187 (1957)

("The power of the Congress to

conduct investigations is inherent in the legislative process.");

see also

Chafetz,

Congressional Overspeech

,

supra

note 40, at 537.

81

Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020)

.

82

See

Chafetz,

Congressional Overspeech

,

supra

note 40;

see also

Beermann,

supra

note 53, at 122-29

(providing account of Congress's oversight institutions and legislation).

97 Notre Dame L. Rev. 127, *142

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John Whitty

Act reformulated the duties of standing committees to "review and study, on a continuing basis, the application,

administration, and execution of those laws ... within the jurisdiction of the committee."

84

These statutes also

reorganized the staffing of standing committees to facilitate the professionalization of standing committee staff and

required the production of biennial oversight reports on agencies within their jurisdiction.

85

Other statutes

emphasize and support Congress's oversight powers in numerous ways. Statutes protect whistleblowers, create

requirements for departments to have inspectors general and chief financial officers,

86

and create the

Government Accountability Office (the GAO, formerly the General Accounting Office).

87

These statutory structures implement the constitutional power of Congress to exercise oversight. They provide a

statutory means through which the Congress can remain actively involved in checking and overseeing the activities

of the executive branch. In a period of divided government in which the political party of at least one of the houses

is different from the President, these statutes institutionalize the power of each house of Congress to conduct its

own oversight of the executive branch.

C. Executive Privilege

To say that Congress has broad powers to investigate the executive branch does not imply they are absolute or

without limit. From the earliest congressional investigations, the executive branch has asserted some prerogative or

privilege against disclosure - which we now call executive privilege. Our focus in this Article is not on resolving any

particular issue of executive privilege. For present purposes, it suffices to observe that Congress and the executive

branch hold different views of the scope of executive privilege - and both today have come to treat the judiciary as

the final arbiter of claims of executive privilege.

[*144] As a matter of congressional practice, Congress has asserted the power to demand any information in

connection with a properly authorized oversight hearing.

88

Congress has maintained that documents

generated at the staff level may not be subject to any privilege,

89

and that there is no limitation on the subject

83

Legislative Reorganization Act of 1946, ch. 753, § 136,

60 Stat. 812

, 832 (1946) (codified as amended at

2 U.S.C. §

190d(a)

);

see also

Chafetz,

Congressional Overspeech,

supra

note 40, at 543.

84

Legislative Reorganization Act of 1970,

Pub. L. No. 91-510

, sec. 118(a)(1), § 136(a),

84 Stat. 1140

, 1156 (1970) (codified

as amended at

2 U.S.C. § 190d(a)

).

85

Chafetz,

Congressional Overspeech

,

supra

note 40, at 543; Legislative Reorganization Act of 1970 § 118.

86

See

Chafetz,

Congressional Overspeech

,

supra

note 40, at 544 (citing Inspector General Act of 1978,

Pub. L.

No. 95-452

, § 5(b),

92 Stat. 1101

, 1103 (1978)).

87

Id. at 543

.

88

Peter M. Shane,

Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege

Claims Against Congress

,

71 MINN. L. REV. 461, 479 (1987)

.

97 Notre Dame L. Rev. 127, *143

Page 17 of 56

John Whitty

matter of congressional inquiries, including matters of foreign relations and international negotiations.

90

House

oversight committee reports routinely cite the broad language from

McGrain

and

Watkins

noted above that treats

congressional investigation powers as broad.

91

Executive branch officials have typically expressed a much more capacious understanding of the scope of

executive privilege, extending to any executive "deliberative communications"

92

that form "part of the

decision-making process, or other information important to the discharge of the Executive Branch's constitutional

responsibilities."

93

The executive branch frequently asserts that any risk of compelled disclosure would

discourage robust and candid dialogue among executive branch officials.

94

From the perspective of the

executive branch, Congress may compel disclosure and overcome an assertion of executive privilege "only if it

establishes that the subpoenaed documents are "

demonstrably critical

to the responsible fulfillment of the

Committee's functions.'"

95

The executive also takes a much narrower [*145] view of Congress's oversight

functions, as reflected in a 1981 opinion of the Office of Legal Counsel (OLC) within the Department of Justice:

"Congressional oversight of Executive Branch actions is justifiable only as a means of facilitating the legislative task

89

Id.

at 480 (citing

Contempt of Congress: Hearings Before the H. Subcomm. on Oversight & Investigations and the

H. Comm. On Energy & Com. on the Congressional Proceedings Against Interior Secretary James G. Watt for Withholding

Subpenaed [sic] Documents and for Failure to Answer Questions Relating to Reciprocity Under the Mineral Lands Leasing Act

,

97th Cong. 104 (1981-82) [hereinafter

Watt Contempt

]).

90

See

Watt Contempt

,

supra

note 89, at 116-17; Shane,

supra

note 88, at 480.

91

See, e.g.,

H.R. REP. NO. 97-898, at 12 (1982); H.R. REP. NO. 105-416, at 29 (1998); H.R. REP. NO. 105-792, at 93

(1998); H.R. REP. NO. 113-415, pt. 1, at 2 (2014).

92

Assertion of Exec. Privilege over

Commc'ns Regarding EPA's Ozone Air Quality Standards & Cal.'s Greenhouse Gas

Waiver Request, 32 Op. O.L.C. 1, 1 (2008)

[hereinafter Special Counsel Assertion];

see also

Response to Cong. Requests for

Info. Regarding Decisions Made Under the Indep. Couns. Act, 10 Op. O.L.C. 68, 88 (1986)

("Although the civil enforcement

route has not been tried by the House, it would appear to be a viable option."). This effectively leaves as the only available

option pursuit of enforcement via a civil proceeding in district court.

99

For an overview of this dispute, see TODD GARVEY, CONG. RSCH. SERV., RL34097, CONGRESS'S CONTEMPT

POWER AND THE ENFORCEMENT OF CONGRESSIONAL SUBPOENAS: LAW, HISTORY, PRACTICE, AND PROCEDURE

35 (2017); see also JONATHAN LASH, KATHERINE GILLMAN & DAVID SHERIDAN, A SEASON OF SPOILS: THE REAGAN

ADMINISTRATION'S ATTACK ON THE ENVIRONMENT (1984); Cally Carswell,

How Reagan's EPA Chief Paved the Way

for Trump's Assault on the Agency

, NEW REPUBLIC (Mar. 21, 2017),

https://newrepublic.com/article/141471/reagans-epa-chief-

paved-way-trumps-assault-agency

[

https://perma.cc/ZZ8A-ALZ4

].

100

See

GARVEY,

supra

note 99, at 35; COMM. ON PUB. WORKS & TRANSP., CONGRESSIONAL

PROCEEDINGS AGAINST ANNE M. GORSUCH, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, FOR

WITHHOLDING SUBPOENAED DOCUMENTS RELATING TO THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,

COMPENSATION, AND LIABILITY ACT OF 1980, H.R. REP. NO. 97-968, at 15 (1982) [hereinafter CONGRESSIONAL

PROCEEDINGS AGAINST GORSUCH].

101

See

INVESTIGATION OF THE ROLE OF THE DEPARTMENTT OF JUSTICE IN THE WITHHOLDING OF

ENVIRONMENTAL PROTECTION AGENCY DOCUMENTS FROM CONGRESS IN 1982-83, H.R. REP. NO. 99-435, at 44

(1985); CONGRESSIONAL PROCEEDINGS AGAINST GORSUCH,

supra

note 100;

see also

Lois Romano,

Rita

97 Notre Dame L. Rev. 127, *146

Page 20 of 56

John Whitty

In response to the House inquiries, the EPA sought advice from the OLC at the Department of Justice on the

scope of its obligations to disclose information to Congress in response to these requests. After negotiations with

the House Subcommittees collapsed, the Department of Justice concluded that the EPA could assert executive

privilege and withhold documents found in "open investigative files" reflecting "enforcement strategy."

103

Based on this advise, President Reagan directed Administrator Gorsuch to assert executive privilege in

response to the House subpoenas.

104

Administrator Gorsuch followed [*148] President Reagan's directive,

and the House of Representatives ended up voting to hold her in contempt for failure to comply with the subpoena.

105

It was an historic first contempt citation for a cabinet-level official. The Department of Justice sought to enjoin the

transmission of the citation for contempt to the U.S. Attorney for the District of Columbia,

106

but even though

that failed, the U.S. Attorney declined to prosecute Administrator Gorsuch to enforce the subpoena.

107

Gorsuch also filed a civil suit against the House of Representatives seeking a declaration of the validity of her

Lavelle, Dumped

, WASH. POST (Mar. 5, 1983),

https://www.washingtonpost.com/archive/lifestyle/1983/03/05/rita-lavelle-

dumped/45256854-7ca3-4df4-8031-5a56793be499/

[

https://perma.cc/TJ3F-VHKT

]

102

See

GARVEY,

supra

note 99, at 35; Philip Shabecoff,

Rita Lavelle Gets 6-Month Prison Term and Is Fined $

10,000 for Perjury

, N.Y. TIMES (Jan. 10, 1984),

https://www.nytimes.com/1984/01/10/us/rita-lavelle-gets-6-month-term-and-is-

fined-10000-for-perjury.html

[

https://perma.cc/8YJZ-L432

].

103

Assertion of Executive Privilege in Response to Congressional Demands for Law Enforcement Files, 43 Op. Att'y Gen.

374, 376, 378 (1982)

(quoting Memorandum from Thomas E. Kauper, Deputy Assistant Att'y Gen., Off. of Legal Couns., Dep't of

Just., to Edward L. Morgan, Deputy Couns. to the President (Dec. 19, 1969)).

104

See

Memorandum from President Reagan, to Anne Burford, Adm'r, Env't Prot. Agency (Nov. 30, 1982),

reprinted

in

H.R. REP. NO. 97-968, at 42. During the course of these events, Administrator Gorsuch was married, and became Anne

Burford. Douglas Martin,

Anne Gorsuch Burford, E.P.A. Chief, Dies

, N.Y. TIMES (July 22, 2004),

https://www.nytimes.com/2004/07/22/us/anne-gorsuch-burford-62-reagan-epa-chief-dies.html

[

https://perma.cc/U979-LTH5

]. I

refer to her as Anne Gorsuch throughout.

See

H.R. REP. NO. 97-968, at 42.

105

H.R. Res. 632, 97th Cong., 128 CONG. REC. 31776 (1982);

see

2 U.S.C. § 192

(providing that a person subpoenaed

who refuses to produce papers upon any matter under inquiry of the House or any of its committees shall be guilty of a

misdemeanor); § 194 (providing that following contempt the Speaker of the House is to certify the contempt citation to the U.S.

Attorney, who is required to bring the matter to the grand jury).

106

See

United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983)

. Despite the mandatory language of

2 U.S.C. § 194

, the Office of Legal Counsel has asserted that a U.S. Attorney has the discretion to decline to present a

congressional criminal contempt citation to a grand jury.

See

Prosecution for Contempt of Cong. of an

Exec. Branch Off.

Who Has Asserted a Claim of Exec. Privilege, 8 Op. O.L.C. 101, 137 (1984)

("Congress could obtain a judicial resolution of the

underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for enforcement of a

congressional subpoena.").

107

See 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

97 Notre Dame L. Rev. 127, *147

Page 21 of 56

John Whitty

assertion of executive privilege, which the court dismissed on jurisdictional grounds.

108

Soon thereafter her

civil suit was dismissed, and officials recognized that documents regarding the use of partisan considerations in

Superfund enforcement had been improperly withheld from the House Committees. The ultimate release of those

documents prompted further negotiations in which the House agreed to withdraw the contempt citation,

109

Administrator Gorsuch ultimately resigned,

110

and Rita Lavelle was fired and convicted.

111

The executive branch's broad assertion of executive privilege delayed the House investigation for more than a

year - and required [*149] consuming floor time in the House to hold the Administrator of the EPA in contempt.

Ted Olson's own statements to the committee regarding the scope of EPA's disclosures resulted in the appointment

of an independent counsel to investigate his conduct, ultimately resulting in the Supreme Court's decision to uphold

the Independent Counsel Statute in

Morrison v. Olson

.

112

2. Obama Administration Department of Justice and a Republican House: Fast and Furious

In the summer of 2009, the Obama administration changed its enforcement strategy to stem the illegal flow of

weapons from the U.S. to Mexican drug cartels, shifting emphasis from "merely seizing firearms" to identifying and

targeting the broader networks involved.

113

A significant focus of the strategy was a Phoenix-based operation

called "Operation Fast and Furious," which was designed to identify gun smuggling networks through the tracking of

straw-purchased firearms.

114

The operation involved the Bureau of Alcohol, Tobacco and Firearms (ATF), a

law enforcement agency within the DOJ, declining to make isolated arrests of individual gun smugglers to create

opportunities to make arrests of central figures that could cripple gun trafficking networks.

115

Because of the

Then Administrator of the Environmental Protection Agency, Anne Gorsuch Burford

:

Hearing Before the H. Comm. on Pub.

Works & Transp.

, 98th Cong. 30 (1983) (statement of Stanley S. Harris, U.S. Attorney, District of Columbia)

108

Kevin M. Stack,

The Story of

Morrison v. Olson

: The Independent Counsel and Independent Agencies in

Watergate's Wake

,

in

PRESIDENTIAL POWER STORIES 401, 418 (Christopher H. Schroeder & Curtis A. Bradley eds.,

2009).

109

GARVEY,

supra

note 99, at 35.

110

See

CONGRESSIONAL PROCEEDINGS AGAINST GORSUCH,

supra

note 100; Martin,

supra

note 104.

111

See

GARVEY,

supra

note 99, at 35;

see also

Shabecoff,

supra

note 102.

112

487 U.S. 654 (1988)

. For a detailed account of these facts, and the ensuing litigation, see Stack,

supra

note 108, at

401.

113

STAFF OF H. COMM. ON OVERSIGHT & GOV'T REFORM AND S. COMM. ON THE JUDICIARY, 112TH CONG., FAST

AND FURIOUS: THE ANATOMY OF A FAILED OPERATION, PART I OF III 6 (Comm. Print 2012) [hereinafter FAST AND

FURIOUS, PART I].

114

STAFF OF H. COMM. ON OVERSIGHT & GOV'T REFORM AND S. COMM. ON THE JUDICIARY, 112TH CONG., THE

DEPARTMENT OF JUSTICE'S OPERATION FAST AND FURIOUS: FUELING CARTEL VIOLENCE 4 (Comm. Print 2011).

97 Notre Dame L. Rev. 127, *148

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John Whitty

inherent risks involved in allowing guns to be carried unlawfully into Mexico, the initiative generated internal

concerns as early as December 2009.

116

ATF ended the program in January 2011 after guns traced to the

operation were found on the scene of the fatal shooting of U.S. Border Patrol Agent Brian Terry.

Agent Terry's death prompted a congressional investigation by the Republican-controlled House Committee on

Oversight and Government Reform.

117

The House investigation became one of the most contentious in the

Obama administration. After the Department of Justice refused to turn over some of the documents sought by the

Committee, the House issued a subpoena to Attorney General Holder [*150] on October 11, 2011.

118

Holder partially complied, handing over thousands of documents, internal notes and emails, but still withheld

thousands of key documents and requested that President Obama assert executive privilege over all pertinent

documents.

119

President Obama asserted the privilege, but the Department of Justice never produced

privilege logs. After continued wrangling, in 2012, the House voted to hold Holder in contempt of Congress and

authorize a civil suit to enforce its subpoenas.

120

Not until January 19, 2016, did the House obtain a federal

court order enforcing the production of documents and a privilege log,

121

giving Congress key information on

the role of the Department of Justice in the operation.

The House released reports in July 2012, focusing on the leadership at the ATF and lack of coordination among

enforcement agencies,

122

and in October 2012, examining the role the Department of Justice played in the

operation, and its culpability for the death of Agent Terry.

123

But the final report was not released until June

115

See

FAST AND FURIOUS, PART I, supra note 113, at 16

.

116

See id. at 15

.

117

See id. at 5

.

118

See

STAFF OF H. COMM. ON OVERSIGHT & GOV'T REFORM AND S. COMM. ON THE JUDICIARY, 115TH

CONG., FAST AND FURIOUS: OBSTRUCTION OF CONGRESS BY THE DEPARTMENT OF JUSTICE, PART III 3 (Comm.

Print 2017) [hereinafter FAST AND FURIOUS, PART III].

119

See id. at 4

.

120

Id.

121

Comm. on Oversight & Gov't Reform, U.S. House of Representatives v. Lynch, 156 F. Supp. 3d 101, 120 (D.D.C. 2016)

(ordering production of privilege logs among other documents).

122

See

FAST AND FURIOUS, PART III, supra note 118, at 3

.

123

Id. See generally

STAFF OF H. COMM ON OVERSIGHT & GOV'T REFORM AND S. COMM. ON THE JUDICIARY,

112TH CONG., FAST AND FURIOUS: THE ANATOMY OF A FAILED OPERATION, PART II OF III 90-104 (Comm. Print 2012)

97 Notre Dame L. Rev. 127, *149

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John Whitty

2017, after the federal court had ordered disclosures from the Department.

124

The 2017 report reached

scathing conclusions about the Department of Justice's resistance to oversight, claiming the DOJ knew about the

problems with the program early on, strategically withheld information from Congress, failed to produce many

relevant documents requested in subpoenas, and formed a media strategy designed to impede oversight and

minimize public scrutiny.

125

By the time of these court-ordered disclosures, the operation had been terminated

years before, the central figures involved in managing it were no longer leading the DOJ, and President Trump had

taken over the executive branch.

[*151]

3. Trump Administration Commerce Secretary and a Democratic House: The Citizenship Question on the Census

On numerous occasions, the Trump administration refused to comply with House subpoenas for documents or

testimony or provided false or misleading testimony. The House actions have included demands for many types of

documents and testimony, ranging from standard House oversight activities to impeachment proceedings. The

administration frequently resisted congressional oversight, including a blanket rejection of the House's authority to

investigate the executive branch in connection with the 2019 impeachment inquiry.

126

Just to pick one example, the House Committee on Oversight and Reform issued a request for documents

regarding the Department of Commerce's decision to add a citizenship question to the 2020 Census in February

2019, and it followed that request with a subpoena in April 2019. Although some documents were produced in

response to the subpoena, the Department of Justice declined to permit John Gore, the Principal Deputy Assistant

Attorney General for Civil Rights, Commerce Secretary Wilbur Ross, and Attorney General William Barr to answer

all of the investigation's requests.

127

On July 17, 2019, the House held both Secretary Ross and Attorney

[hereinafter FAST AND FURIOUS, PART II] (presenting the connections between Justice Department officials and the death of

Agent Terry).

124

See

FAST AND FURIOUS, PART III, supra note 118

;

Fast and Furious, Six Years Later: Hearing Before the

H. Comm on Oversight & Gov't Reform

, 115th Cong. (2017).

125

FAST AND FURIOUS, PART III, supra note 118, at 16-22

.

126

Letter from Pat A. Cipollone, Couns. to the President, to Nancy Pelosi, Speaker, House of Representatives, and Adam B.

Schiff, Chairman, House Permanent Select Comm. on Intel., and Eliot L. Engel, Chairman, House Foreign Affs. Comm. and

Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform 7 (Oct. 8, 2019) [hereinafter Letter from Pat A. Cipollone],

https://www.washingtonpost.com/context/letter-from-white-house-counsel-pat-cipollone-to-house-leaders/0e1845e5-5c19-4e7a-

ab4b-9d591a5fda7b/

[

https://perma.cc/AQX6-76AK

] ("Given that your inquiry lacks any legitimate constitutional foundation, any

pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to

participate in it.");

see also

Donald Trump's Obstruction of Congressional Oversight

, AM. OVERSIGHT,

https://www.americanoversight.org/investigation/donald-trumps-obstruction-of-congressional-oversight

[

https://perma.cc/7FYL-

H5GQ

] (last updated July 31, 2020) (cataloging Trump administration resistance to congressional oversight).

97 Notre Dame L. Rev. 127, *150

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John Whitty

General Barr in contempt for failing to comply with the House Oversight Committee's subpoenas to produce

documents.

128

The Department of Justice adhered to its practice of not pursuing criminal enforcement of

these officials' contempt of Congress,

129

but a judicial challenge to the [*152] decision to add a citizenship

question proceeded. On June 27, 2019, the Supreme Court held that the Secretary's decision to include the

citizenship question was unlawful because it had been justified on a pretextual ground.

130

In late November

2019, the House Committee filed a federal lawsuit seeking to compel Ross and Barr to produce documents in

response to its subpoenas related to the plan to add a citizenship question.

131

This case remained tied up in

the D.C. District Court beyond the November 2020 election pending the results of the House's suit against Donald

F. McGahn, former White House Counsel.

132

II. ENFORCING OVERSIGHT

A. Congress's Enforcement Toolkit: A Problem of Incentives

As the examples just discussed illustrate, Congress's approach to enforcing its subpoena powers is failing. The

executive branch routinely thwarts Congress's legitimate interest in information required for oversight. Congress

has primarily relied on four tools for enforcing its subpoenas against executive branch officials: inherent contempt,

criminal contempt, civil litigation to enforce contempt sanctions, and threats of funding cuts. It is worth considering

why these tools have not been successful in overcoming executive branch resistance to subpoenas.

133

127

Letter from Stephen E. Boyd, Assistant Att'y Gen., Dep't of Just., to Elijah E. Cummings, Chairman, House Comm.

Oversight and Reform (Apr. 24, 2019); Letter from Stephen E. Boyd,

supra

note 2; Andrew Desiderio,

DOJ, Commerce

Reject Dem Subpoenas for Census Docs

, POLITICO (June 6, 2019),

https://www.politico.com/story/2019/06/06/barr-ross-

census-democrats-house-1356569

[

https://perma.cc/4EGR-A5U4

].

128

H.R. Res. 497, 116th Cong. (2019).

129

David Shortell,

DOJ Won't Prosecute Contempt Citation Against Barr and Ross

, CNN (July 24, 2021),

https://www.cnn.com/2019/07/24/politics/doj-contempt-wont-prosecute-barr-ross/index.html

[

https://perma.cc/G7BK-62UC

].

130

Dep't of Com. v. New York, 139 S. Ct. 2551, 2575 (2019)

.

131

Complaint at 83, Comm. on Oversight & Reform, U.S. House of Representatives v. Barr, No. 19-cv-03557 (D.D.C. Nov.

26, 2019).

132

Minute Order, Comm. on Oversight & Reform, U.S. House of Representatives v. Barr, No. 19-cv-03557 (D.D.C. Oct. 15,

2020). President Biden has restored the long-standing principle that apportionment includes all persons, not just citizens.

See

Exec. Order No. 13,986, 86 Fed. Reg. 7015, 7016 (Jan. 20, 2021).

133

Other strategies include not acting on the President's nominations, simply not acting on any of the President's legislative

proposals or needs, or reducing an official's salary.

See

Josh Chafetz,

Executive Branch Contempt of Congress

,

76 U.

CHI. L. REV. 1083, 1152-53 (2009)

.

97 Notre Dame L. Rev. 127, *151

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John Whitty

Congress has a long-recognized inherent contempt power, including the power to hold in custody those in

contempt, although this power has not been actively invoked in decades. In

Congress's Constitution

and earlier

work, Josh Chafetz has unearthed and given prominence to the scope of Congress's use of its inherent contempt

power through the nineteenth century and well into the twentieth century.

134

Throughout that period,

Congress's inherent contempt power was the primary means by which it would enforce compliance [*153] with its

subpoenas. As Chafetz explores, Congress used its inherent contempt power to bring into custody members of the

executive branch for contempt, including James Fry, the Provost Marshall General of the Army (1866),

135

George Seward, for conduct when he was consul general to Shanghai (1879),

136

and Snowden Marshall,

U.S. Attorney for the Southern District of New York (1916).

137

The House detained Seward for failing to

produce subpoenaed documents.

138

Since Watergate, however, Congress has allowed its inherent contempt powers to atrophy. Congress has

acquiesced in the idea that directing its Sergeant at Arms to detain an executive branch official would prompt an

unseemly constitutional crisis, in which the Sergeant at Arms would be face-to-face with a U.S. Marshal to take

custody of an executive official.

139

Nor has the idea that Congress could impose fines on those who fail to

appear in response to subpoenas gained much traction, although in principle it could be an effective means of self-

help. Without a structure for fines and absent any appetite for using its power to hold executive branch officials in

custody, inherent contempt powers are not a viable answer to enforcing Congress's oversight powers.

A second enforcement mechanism - criminal liability for contempt of Congress - fails because it provides no

protection when the President is of a different party from the party that controls either the House or the Senate. In

1857, Congress enacted a statute that attached criminal liability to contempt of Congress, and imposed a duty upon

the U.S. Attorney for the District of Columbia to bring the matter before a grand jury.

140

The current version of

the statute imposes a duty on the U.S. Attorney in any district in which the individual in contempt of a congressional

subpoena is located "to bring the matter before the grand jury for its action."

141

The vulnerabilities of this

134

JOSH CHAFETZ, CONGRESS'S CONSTITUTION: LEGISLATIVE AUTHORITY AND THE SEPARATION OF POWERS

(2017) [hereinafter CHAFETZ, Congress's Constitution].

135

Id. at 175

.

136

Id. at 176-77

.

137

Id. at 177-78

.

138

Id. at 185

.

139

See, e.g.

,

Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 83 (D.D.C. 2008)

;

see also

CHAFETZ, CONGRESS'S CONSTITUTION,

supra

note 134, at 187 (discussing same).

140

See

Act of Jan. 24, 1857, ch. 19,§§1 & 3,

11 Stat. 155

, 155-56 (1857) (codified as amended at

2 U.S.C. § 194

).

97 Notre Dame L. Rev. 127, *152

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John Whitty

criminal contempt sanction are well illustrated in the cases discussed above. Although Administrator Gorsuch,

Attorney General Holder, Secretary Ross and Attorney General Barr were all held in contempt for failure to testify or

cooperate with House oversight, the Department of Justice declined to bring the contempt issue to a grand jury in

any of these cases based on its policy that each [*154] of them validly invoked executive privilege and therefore

noncompliance did not constitute a crime. The Department of Justice reached the same conclusion regarding the

House's finding that both former White House Counsel Harriet Miers and Joshua Bolten, White House Chief of Staff

to President George W. Bush, were in contempt for failure to disclose information about the firings of U.S.

Attorneys. The criminal contempt statute makes the Department of Justice a necessary mover in enforcing

congressional subpoenas against executive branch officials. As a practical matter, that makes criminal enforcement

of Congress's subpoena powers highly unlikely whenever the President is of a different party than the house of

Congress holding the official in contempt.

142

A third conventional enforcement tool is filing a civil action in federal court to force the executive official to comply,

often in a declaratory judgment proceeding. The value of a civil action is that it has the potential to convert a

congressional subpoena into a court order, which creates the risk of a contempt of court sanction. Civil litigation has

become the nearly exclusive means of enforcement of Congress's oversight powers, but it is also the most recent

enforcement mechanism. Interestingly, scholars have found no pre-Watergate case in which a house of Congress

became a plaintiff in a court proceeding seeking to enforce a congressional subpoena against an executive branch

official.

143

Watergate prompted the courts to adjudicate a claim that an executive official was in contempt of

Congress for failure to comply with a subpoena - and that resolution has stuck. Yet, as the examples in the previous

part illustrate, seeking judicial enforcement of a subpoena, at least in our current system, works very poorly for

Congress.

The most important reasons should be no surprise at this point: judicial enforcement involves a lot of time, and

delay thwarts oversight. Congressional subpoenas are only valid for the two-year term of the Congress that issued

them,

144

and even the most well-managed Congress will take several months to organize, identify the

testimony or documents it needs, receive a rejection to an informal oversight demand, negotiate, and vote to issue

a subpoena. After the subpoena [*155] is issued, almost any executive administration worth its salt can engage in

141

2 U.S.C. § 194

(2018).

142

The Department of Justice has recently initiated prosecution of former Trump administration official Steven Bannon for his

refusal to comply with a House subpoena regarding the events of January 6, 2020. Press Release, Dep't of Just., Stephen K.

Bannon Indicted for Contempt of Congress (Nov. 12, 2021),

https://www.justice.gov/opa/pr/stephen-k-bannon-indicted-contempt-

congress

[

https://perma.cc/R34A-PMQD

]. In this case, the House and President are in alignment.

143

CHAFETZ, CONGRESS'S CONSTITUTION,

supra

note 134, at 192.

144

See

Comm. on the Judiciary of the U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008)

(per

curiam).

97 Notre Dame L. Rev. 127, *153

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John Whitty

eighteen months to two years of litigation.

145

The executive official generally has the benefit of legal

representation by the Department of Justice, on whose advice the claim of executive privilege is made.

146

And the hoops and delays to enforcing congressional subpoenas are significant, and they continue to develop.

The defendant, through the Department of Justice, can litigate over standing,

147

the political question

doctrine,

148

other aspects of federal jurisdiction,

149

the existence of a cause of action,

150

the

scope of executive privilege,

151

the scope of the documents or testimony subject to the subpoena, and the

officials to whom disclosures should be made. Each round of motions and appeals clicks down the clock,

diminishing the value of the information sought to Congress.

152

Finally, Congress can use its appropriations powers to punish or discipline agencies for failure to comply with its

oversight requests through funding sanctions. A 2014 House Oversight and Government [*156] Reform

145

See

GARVEY,

supra

note 99, at 53 (concluding that "although it appears that Congress may be able to enforce its

own subpoenas through a declaratory civil action, relying on this mechanism to enforce a subpoena directed at an executive

official may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final,

enforceable ruling in the case"). For a 2019 media discussion of Trump-era refusals to testify, see Zachary B. Wolf,

Contempt of Congress Now Feels Like an Everyday Thing. It Wasn't Always So

, CNN (June 26, 2019),

https://www.cnn.com/2019/06/26/politics/contempt-of-congress-list/index.html

[

https://perma.cc/MG3T-4XK5

].

146

See

Wolf,

supra

note 145.

147

Comm. on the Judiciary of the U.S. House of Representatives v. McGahn, 968 F.3d 755, 760 (D.C. Cir. 2020)

(en banc)

(holding that the House Judiciary Committee has standing to enforce its own subpoena).

148

See

Nixon v. United States, 506 U.S. 224, 236 (1993)

(holding that "opening the door of judicial review to the

procedures used by the Senate in trying impeachments would "expose the political life of the country to months, or perhaps

years, of chaos.'") (quoting

Nixon v. United States, 938 F.2d 239, 246 (D.C. Cir. 1991))

.

149

See

Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 64 (D.D.C. 2008)

(holding

that since the subpoena power at bar "derived implicitly from Article I of the Constitution, this case arose under the Constitution

for purposes of § 1331 [subject matter jurisdiction]").

150

Comm. on the Judiciary of the U.S. House of Representatives v. McGahn, 973 F.3d 121, 123 (D.C. Cir. 2020)

,

vacated pending reh'g en banc

, Per Curiam Order, No. 19-5331 (Oct. 15, 2020) (en banc) (holding the House Committee lacked

a cause of action to enforce its subpoena),

dismissed

, Joint Motion to Dismiss Appeal, and Consent Motion to Vacate Panel

Opinion, No. 19-5331 (June 10, 2021).

151

See

Letter from Stephen E. Boyd,

supra

note 2.

152

See

Josh Chafetz,

Nixon/Trump: Strategies of Judicial Aggrandizement

, 110 Geo. L.J. (forthcoming 2021)

(manuscript at 22) (on file with authors) (observing that "the judiciary felt none of the urgency to decide the Trump cases that it

had felt to decide the Nixon ones" and that "over 450 days elapsed between the issuance of the congressional subpoenas ...

and the Supreme Court's decision in

Mazars

");

see, e.g.,

Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020)

.

97 Notre Dame L. Rev. 127, *155

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John Whitty

Committee investigation into whether the IRS had more intrusively scrutinized the applications for the tax-exempt

status of conservative than liberal groups provides a rich example.

153

The Committee subpoenaed Lois G.

Lerner, the director of the IRS division on exempt organizations. In lieu of testimony, Ms. Lerner submitted a

voluntary statement to the Committee. The Committee later determined that her voluntary statement waived her

Fifth Amendment privilege against self-incrimination and continued to insist on her testimony before the Committee.

She refused, and the Committee recommended that the House hold her in contempt of Congress,

154

which

the House did in May of 2014.

155

The House reported its finding of contempt to the U.S. Attorney for a

criminal contempt prosecution, and the Department of Justice declined to prosecute,

156

just as it did with the

contempt citation of Attorney General Holder.

As opposed to merely leaving the controversy as a stand-off, the House retaliated, using its appropriations

powers. In the 2014 annual appropriations, the House cut the IRS budget by $ 345 million

157

and included a

limitation rider directly addressing the alleged wrongdoing in the IRS: "None of the funds made available in this Act

may be used by the Internal Revenue Service to target groups for regulatory scrutiny based on their ideological

beliefs."

158

The reduction in IRS funding and inclusion of the limitations rider clearly conveyed Congress's

disapproval of the IRS's handling of conservative groups' tax-exempt applications and with it, the House's

disapproval of Ms. Lerner's refusal to comply with its subpoena. The appropriations rider was unsuccessful,

however, in forcing additional testimony.

A threat to reduce an agency's funding may be a good tool for reorienting the agency's substantive priorities, but it

is a very blunt tool [*157] for enforcing more disclosure.

159

Because the sanction must follow the

153

See

H.R. REP. NO. 113-415, at 3-7 (2014).

154

Id. at 2

.

155

H.R. Res. 574, 113th Cong. (2014), 160 CONG. REC. H3902-09, H3919-22 (daily ed. May 7, 2014) (enacted).

156

Letter from Stephen E. Boyd, Assistant Att'y Gen., Dep't of Just., to Kevin Brady, Chairman, House Comm. on Ways &

Means, and Peter J. Roskam, House Subcomm. On Tax Pol'y (Sept. 8, 2017),

https://republicans-

waysandmeansforms.house.gov/uploadedfiles/09.08.17_doj_response_to_criminal_referral_request.pdf

[

https://perma.cc/3E2M-

N2MT

].

157

Ed O'Keefe,

Congressional Leaders Agree on $ 1.01 Trillion Spending Bill

, WASH. POST., Dec. 10, 2014, at A3.

158

Financial Services and General Government Appropriations Act, 2015,

Pub. L. No. 113-235

, div. E, § 108,

128 Stat. 2332

,

2338 (2014); Financial Services and General Government Appropriations Act, 2016,

Pub. L. No. 114-113

, div. E, § 108,

129

Stat. 2242

, 2430 (2015) (codified as amended at

31 U.S.C. § 1341(a)(1)

) (stating the general prohibition on unauthorized

spending); § 1350 (providing criminal fines and up to two years of imprisonment for violating § 1341(a)).

159

Cf.

MOLLY E. REYNOLDS & PHILIP A. WALLACH, AM. ENTER. INST., DOES THE EXECUTIVE BRANCH

CONTROL THE POWER OF THE PURSE? 6-7 (2020) (noting 2006 threat by Senate Appropriations Committee to cut funding

97 Notre Dame L. Rev. 127, *156

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John Whitty

noncooperation, it arrives too late to increase the incentives for disclosure among executive branch officials. The

funding reduction was targeted at the agency, not the individual, and presumably affected the ability of the IRS to

do its work. It did not bring Ms. Lerner back to a congressional hearing room. Although officials may have a general

sense of loyalty to their agency or office, a funding cut is still impersonal - it may or may not directly affect the

individual whose testimony Congress sought.

B. Targeting Appropriations Sanctions to Noncooperation: Oversight Riders

The Lerner-IRS conflict suggests another tool for oversight: the use of appropriations riders specifically targeted to

obstruction of Congress's oversight powers - what we call

oversight riders

.

Appropriations riders, also called limitation riders, are provisions in appropriations legislation, framed in the

negative, that prohibit or limit agency spending on particular programs or for particular purposes.

160

Riders

allow Congress to target particular activities the agencies may otherwise have authority to do and make those

agency actions unlawful by denying funding to support those activities or projects. Congress has used riders to

prohibit specific agency policies, actions, and projects.

161

Under House and Senate rules, in general, riders

may not change the existing law; they may only disallow agency activity within the period of fiscal appropriation.

162

[*158] Many of Congress's most controversial policy positions have been embodied in riders,

163

ranging

from limiting the work of the Civil Rights Commission

164

to prohibiting transfers of prisoners from Guantanamo

and prohibiting prosecution for marijuana possession in states that legalized it.

165

Although these riders have

for Office of Drug Control Policy based in part on the Office's "lethargy and the inadequate information provided" and noting

defunding is a "crude[] means of putting agencies on notice" (quoting S. Rep. No. 109-293, at 189 (2006))).

160

Devins,

supra

note 28, at 461; Metzger,

supra

note 19, at 1093.

161

Jason A. MacDonald,

Limitation Riders and Congressional Influence over Bureaucratic Policy Decisions

, 104 AM.

POL. SCI. REV. 766, 769 (2010).

162

House Rule XXI, Clause 2(d) permits riders or limitations in appropriations bills, but House Rule XXI, Clause 2(c) prohibits

provisions which change the law (called legislative provisions in this context) in appropriations bills. While the House does allow,

under the Holman Rule, legislative provisions to be included in appropriations bills if they are germane and reduce expenditures,

the basic rule is that riders are allowed if they limit or cap use of funds so long as they do not "change the existing law."

See

Jacqueline Lash & Brady Cassis,

The Use and Misuse of Appropriations Riders

6-9 (Harvard L. Sch. Briefing Papers on Fed.

Budget Pol'y, Briefing Paper No. 50) (May 10, 2015). A member may raise a point of order to object to a rider as violating the

clause 2(c) prohibition on including legislative provisions, at which point the presiding officer will need to rule on the point of

order.

See id. at 8

.

See generally

Devins,

supra

note 29, at 462.

163

See

Devins,

supra

note 29, at 463.

164

Id. at 456-57

.

97 Notre Dame L. Rev. 127, *157

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John Whitty

been attached to appropriations bills since the middle of the nineteenth century,

166

they have been

increasingly relied upon since the 1990s.

167

They may appear in the general provisions applicable to an

individual title of an appropriations act, in the general provisions applicable to the entire act, or they may be enacted

separately.

168

As we explain below, the turn to riders, as opposed to legislation, is a pragmatic one. The

pressure to pass appropriations on an annual basis means that riders attached to appropriations have a much

greater chance of enactment in our currently polarized Congress than reform legislation.

The basic motivation of an oversight rider is to find a way to increase the pressure on members of the Executive

Branch to provide information to Congress. An oversight rider would do so by denying appropriations for activities

that obstruct Congress's oversight functions generally and response to congressional subpoenas in particular. We

have identified one existing rider that fits this general description, and modelled on it, we propose another oversight

rider that specifically targets noncompliance with congressional subpoenas.

1. The Section 713 Rider

Since 2003, Congress has repeatedly enacted in appropriations legislation a rider that prohibits use of

appropriated funds to pay for the salary of any officer or employee who prevents or threatens to prevent an

employee from having any communications, written or oral, with a member of Congress or committee related to the

subject matter of the official's employment. The Section 713 rider provides in full:

[*159]

No part of any appropriation contained in this or any other Act shall be available for the payment of the salary of

any officer or employee of the Federal Government, who -

(1)prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the

Federal Government from having any direct oral or written communication or contact with any Member, committee,

or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer

or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of

165

See, e.g.

, Department of Defense Appropriations Act, 2014,

Pub. L. No. 113-76

, div. C,§§8110-11,

128 Stat. 86

, 131

(2014) (appropriations rider precluding transfer of detainees from Guantanamo); Commerce, Justice, Science, and Related

Agencies Appropriations Act, 2016,

Pub. L. No. 114-113

, div. B, § 542,

129 Stat. 2286

, 2332-33 (2015) (barring the DOJ from

prosecuting medical marijuana offences in listed states).

See generally

Price,

infra

note 216, at 373-78 (discussing these

examples).

166

Devins,

supra

note 29, at 462.

167

See

Metzger,

supra

note 19, at 1093-94 (documenting increased reliance on appropriations riders); MacDonald,

supra

note 161, at 1 (same); Devins,

supra

note 29, at 462-63 (documenting increase in riders).

168

STIFF, supra note 30, at 57

.

97 Notre Dame L. Rev. 127, *158

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John Whitty

whether such communication or contact is at the initiative of such other officer or employee or in response to the

request or inquiry of such Member, committee, or subcommittee; or

(2)removes, suspends from duty without pay, demotes, reduces in rank, seniority, status, pay, or performance or

efficiency rating, denies promotion to, relocates, reassigns, transfers, disciplines, or discriminates in regard to any

employment right, entitlement, or benefit, or any term or condition of employment of, any other officer or employee

of the Federal Government, or attempts or threatens to commit any of the foregoing actions with respect to such

other officer or employee, by reason of any communication or contact of such other officer or employee with any

Member, committee, or subcommittee of the Congress as described in paragraph (1).

169

The prohibition is strikingly broad. It applies government-wide (funds appropriated "in this or any other Act"),

encompasses any efforts by supervisors to thwart their employees or subordinates from communicating freely with

Congress, and applies to any employment sanction that might follow from such communications.

Although the roots of the rider could be traced to Congress's responses to executive orders issued by Presidents

Theodore Roosevelt and William Howard Taft imposing restrictions on communications between executive branch

officials and Congress,

170

its most immediate antecedent is Congress's response to a 1970s directive of the

Postmaster General ordering that the Post Office's Congressional [*160] Liaison Office be the sole voice of the

Post Office in communicating with Congress.

171

Members of Congress objected to the idea that they would be

prevented from communicating with lower level officials in the Postal Service.

172

In response, the Senate

drafted a rider that applied only to the Postal Service, and the House a version that applied government-wide.

173

In 1997, the conference committee adopted the House version,

174

and the government-wide prohibition

has been frequently re-enacted in appropriations bills.

175

169

Financial Services and General Government Appropriations Act, 2021,

Pub. L. No. 116-260

, div. E, § 713,

134 Stat. 1380

,

1432-33 (2020).

170

See

Letter from Anthony H. Gamboa, Gov't Accountability Off., to Hon. Frank R. Lautenberg et al., Gov't

Accountability Off. Decision B-30291 at 6-7 (Sept. 7, 2004) [hereinafter GAO 2004 Letter] (discussing President Roosevelt's

Exec. Order No. 1142 (1906) (although appearing to quote a different order,

see, e.g.

, 48 CONG. REC. 5223 (1912) (speech

of Rep. John A. Moon)), President Taft's Exec. Order No. 1514 (1909) (appearing to conflate President Taft's Executive Order

No. 1142 from 1909 and his Executive Order No. 1514 from 1912, 48 CONG. REC. 5223 (1912) (speech of Rep. John A.

Moon)) and Congressional response in the Lloyd-La Follette Act, ch. 389, § 6,

37 Stat. 555

(1912) (letter giving a different

citation for the legislation)).

171

See

id. at 5

(reported in 117 CONG. REC. 151 (1971))

172

Id.

173

Id. at 4

(comparing S. 1023, 105th Cong. § 506 (1997), with H.R. 2378, 105th Cong., § 505,

111 Stat. 1272

, 1304

(1997), but perhaps meaning § 640,

111 Stat. 1318

).

97 Notre Dame L. Rev. 127, *159

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John Whitty

At least in principle, the Section 713 rider has features that help to overcome the structural shortcomings of

Congress's conventional arsenal of tools for conducting oversight. First and most obviously, the rider creates a risk

of sanction that is personal to the individual: a supervisor who thwarts a subordinate's communications with

Congress faces the prospect of a salary reduction. Second, the sanction is public, making it an embarrassing part of

the public record for the individual. Third, the sanction does not require any action by the Department of Justice.

Rather, a member of Congress may initiate a request to the Government Accountability Office for an investigation.

176

The GAO will then conduct an investigation, and if wrongdoing is found, the GAO will direct the agency to claw

back the salary paid during the relevant time period.

177

As a result, Congress can initiate a process that can

result in a public sanction for impeding access to lower-level officials without requiring resort to litigation in court or

dependance on Department of Justice enforcement. Further, the sanction risk has greater duration. Once the

violation occurs, the risk of enforcement [*161] through a clawback and public disclosure of the action survives

beyond the current Congress and the current administration. In practice, future administrations may be reluctant to

take clawback actions if there is continuity of party across administrations, but the party control of the next

administration may not be clear at the time the official has to decide whether to withhold information, so the risk of

personal exposure is likely to be a factor in their decisionmaking.

Despite the structural benefits the Section 713 rider provides Congress, it has remained relatively obscure. In the

past twenty-three years, the GAO has only found violations of the rider on two occasions. The first, in 2004, after a

six-month investigation, the GAO found that the Administrator for the Centers for Medicare and Medicaid Services

had threatened to prevent the agency's chief actuary from providing information to Congress about the implications

of upcoming Medicare expansion legislation.

178

The Administrator was recommended to pay back a portion of

174

Treasury and General Government Appropriations Act, 1998,

Pub. L. No. 105-61

, § 640,

111 Stat. 1272

, 1318 (1997).

175

See, e.g.

, Financial Services and General Government Appropriations Act, 2021,

Pub. L. No. 116-260

, div. E, tit. VII, §

713,

134 Stat. 1185

, 1432-33 (2020); Financial Services and General Government Appropriations Act, 2020,

Pub. L. No. 116-93

,

div. C, § 713,

133 Stat. 2434

, 2487 (2019); Financial Services and General Government Appropriations Act, 2010,

Pub. L. No.

111-117

, div. C, § 714,

123 Stat. 3159

, 3208-09 (2009); Transportation, Treasury, Housing and Urban Development, the

Judiciary, and Independent Agencies Appropriations Act, 2006,

Pub. L. No. 109-115

, div. A, § 818,

119 Stat. 2396

, 2500 (2005);

Consolidated Appropriations Act, 2001,

Pub. L. No. 106-554

, app. C, § 620,

114 Stat. 2763

, 2763A-160 (2000); H.R. REP. NO.

105-284, at 50, 80 (1997) (Conf. Rep.).

176

U.S. GOV'T ACCOUNTABILITY OFF., GAO-17-767G, GAO'S CONGRESSIONAL PROTOCOLS 3 (2017) (outlining

review and investigation process);

see also

Jennifer Shutt,

Democrats Could Tie Paychecks to Testimony in

Impeachment Inquiry

, ROLL CALL (Oct. 22, 2019),

https://www.rollcall.com/2019/10/22/democrats-could-tie-paychecks-to-

testimony-in-impeachment-inquiry/

[

https://perma.cc/8AR5-B5WY

].

177

Shutt,

supra

note 176.

178

GAO 2004 Letter,

supra

note 170, at 9, 13;

Cost and Payment Plans of Medicare Part D: Hearing Before the S.

Subcomm. on Fed. Fin. Mgmt., Gov't Info., & Int'l Sec. of the S. Comm. on Homeland Sec. & Governmental Affs.

, 109th Cong. 6

(2005) (statement of Frank Lautenberg, Sen., Congress) ("To make matters worse, when we were considering this bill, the

97 Notre Dame L. Rev. 127, *160

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John Whitty

his salary for violating the rider.

179

The second, in 2016, found that the Housing and Urban Development's

(HUD's) Deputy Assistant Secretary and an Associate General Counsel had prevented a HUD regional office

employee from communicating with a congressional committee for 15 calendar days.

180

In 2017, HUD

ordered its former Deputy Assistant Secretary to repay $ 7,176 based on an hourly rate of $ 74.75, but it closed the

matter as to the Associate General Counsel.

181

The rider has surfaced on other occasions as well. For

instance, in the final months of the Trump administration, [*162] Representatives in the House argued that by

preventing State Department officials from testifying without counsel, Department leadership (possibly including

Secretary Pompeo himself) may be in violation of the Section 713 Rider,

182

but it does not appear that the

Representatives referred the matters to the GAO for investigation.

The Section 713 rider thus appears to be a mixed bag. On the one hand, the design of the rider combined with the

GAO's investigation powers avoid a remedy that is dependent on either the Department of Justice or civil litigation

to provide incentives for compliance with Congress's request for information from agencies. And those sanctions

have been imposed in a relatively timely manner. On the other hand, Congress does not appear to have invoked

the provision frequently - and indeed, it seems to have remained relatively obscure even to Congress.

2. Subpoena Rider

The question, then, is whether another oversight rider could capitalize on the basic structure of Section 713 to

more effectively target noncompliance with congressional subpoenas. The Section 713 rider has several limitations.

Administration misled Congress about its cost. I am not saying it was intentional, but that was the ultimate outcome. Tom Scully,

who is head of the Center for Medicaid and Medicare Services - he was the head at the time - threatened to fire the chief

Medicare actuary if he revealed the true cost of this bill to Congress. I asked GAO to investigate the legality of Mr. Scully's

action, and GAO found out that Mr. Scully was so far out of line that he should repay part of his salary to the government. That

was more than a year ago. We are still waiting for him to pay back the taxpayers.").

179

Id.

180

Letter from Susan A. Poling, Gen. Couns., Gov't Accountability Off., to Charles E. Grassley, Chairman, Senate Comm. on

the Judiciary, and Jason Chaffetz, Chairman, House Comm. on Oversight & Gov't Reform, and Bob Goodlatte, Chairman, House

Comm. on the Judiciary, Gov't Accountability Off. Decision B-325124.2 at 15 (April 5, 2016) [hereinafter GAO 2016 Letter];

see also

Letter from Aaron Santa Anna, Acting Gen. Deputy Assistant Sec'y for Cong. & Intergovernmental Rels., Dep't of Hous.

and Urb. Dev., to Charles E. Grassley, Chairman, Senate Comm. on the Judiciary (June 19, 2017) (documenting debt collection

efforts from Elliot Mincberg).

181

Letter from Aaron Santa Anna,

supra

note 180 (documenting debt collection efforts from Elliot Mincberg).

182

Letter from Eliot L. Engel, Chairman, House Comm. on Foreign Affs., and Adam B. Schiff, Chairman, House Permanent

Select Comm. on Intel., and Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to John J. Sullivan, Deputy

Sec'y of State, Dep't of State at 3 (Oct. 1, 2019); Letter from Mark Pocan, Member, Congress, to Michael R. Pompeo, Sec'y of

State, Dep't of State (Oct. 8, 2019) (asking who prevented Ambassador Gordon Sondland from appearing for a scheduled

House interview in violation of Section 713).

97 Notre Dame L. Rev. 127, *161

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John Whitty

First, Section 713 addresses only supervisory action - actions to prevent others from communicating with Congress

- and it does not impose an obligation on the individual to respond to Congress. Second, the sanctions triggered by

Section 713 violations are limited to salary clawback and associated negative publicity. Third, while the Section 713

rider may arguably cover an official who orders a subordinate not to comply with a congressional subpoena, the

rider does not target subpoena compliance directly.

183

[*163] The following proposed rider, which we call the subpoena rider, aims to overcome those limitations:

SEC. YY. No part of any appropriation contained in this or any other Act shall be available for the payment of the

salary of any officer or employee of the Federal Government or used by such an officer or employee to -

(1) refuse to produce on a timely basis documents or testimony subject to a subpoena issued by a committee of

the House or Senate or to facilitate such conduct; or

(2) plan for, begin, continue, finish, process, or approve the prep-aration or presentation of false or misleading

documents or testimony in response to an information request or subpoena issued by a committee of Congress

regarding the actions of employees or officers of government.

184

This rider aims to provide two different sets of incentives to officials who are named in congressional subpoenas:

those related to the official's salary and those related to the Antideficiency Act.

First, like the Section 713 rider, this rider makes the official's salary contingent upon the official's compliance with

the congressional subpoena. The salary clawback could commence with the refusal to comply with the

congressional subpoena and terminate only at the time of compliance. That construction would be consistent with

the GAO's interpretation of the Section 713 rider. In the 2016 enforcement proceeding, the GAO took the position

183

Recent experience includes multiple examples of refusals to produce nonprivileged documentary or testimonial evidence

in response to a subpoena issued by a congressional committee.

See

Press Release, House Comm. on Oversight and

Reform, White House Subpoenaed in House Impeachment Inquiry (Oct. 4, 2019),

https://oversight.house.gov/news/press-

releases/white-house-subpoenaed-in-house-impeachment-inquiry

[

https://perma.cc/N9MC-JTAA

]; Letter from Pat A. Cipollone,

supra

note 126;

News Roundup: Trump Administration's Defiance of Congressional Subpoenas

, AM. OVERSIGHT (Apr. 26,

2019),

https://www.americanoversight.org/news-roundup-trump-administrations-defiance-of-congressional-subpoenas

[

https://perma.cc/E7CJ-BYKC

];

House Oversight Votes to Hold William Barr and Wilbur Ross in Contempt

, CBS NEWS

(June 12, 2019),

https://www.cbsnews.com/news/house-oversight-committee-votes-on-holding-william-barr-and-wilbur-ross-in-

contempt/

[

https://perma.cc/S28G-6Z87

]; Ramsey Touchberry,

William Barr Directs DOJ Official to Defy Congressional

Subpoena to Testify About 2020 Census

, NEWSWEEK (Apr. 24, 2019),

https://www.newsweek.com/william-barr-doj-

congressional-subpoena-1404879

[

https://perma.cc/TAX4-A2WN

] (discussing Attorney General Barr's instruction to a Justice

Department official to defy a congressional subpoena); Mary Clare Jalonick & Lisa Mascaro,

Ex-White House Lawyer Defies

House Subpoena for Mueller Docs

, AP NEWS (May 7, 2019),

https://apnews.com/70a27221eea94cecb5427143bb3eca2a

[

https://perma.cc/EF35-QNEJ

] (discussing Don McGahn's refusal to provide documents to the House Judiciary Committee).

184

This rider is modeled on a 2020 abortion rider in the Commerce, Justice, Science, and Related Agencies Appropriations

Act, 2020,

Pub. L. No. 116-93

, div. B, § 202,

133 Stat. 2385

, 2412 (2019).

97 Notre Dame L. Rev. 127, *162

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John Whitty

that an employee's salary is not available "while they prevented or attempted to prevent" a subordinate official from

being interviewed by members of Congress.

185

Likewise, in the 2004 violation, the GAO reasoned that in light

of the "continuing nature" of the Administrator's prohibition on testimony, all salary from the infraction to the official's

departure should be treated as improper and subject to clawback.

186

Denying the official's salary from the

refusal until compliance would be consistent [*164] with this understanding of the violation as a continuing one.

Viewing the violation as a continuing one would speak directly to that delay: each additional day of noncompliance

would be another potential day of salary clawback. The subpoena rider thus creates a new personal incentive for

timely compliance with congressional subpoenas.

Moreover, like the Section 713 rider, this subpoena rider creates a sanction that does not depend on the

Department of Justice for enforcement or civil enforcement court. A member of Congress could trigger the GAO

investigation.

187

The Supreme Court has held that the GAO is part of the legislative branch,

188

and

accordingly pursuing the investigation is also not dependent on the executive branch policy. As to timeliness, in

both the 2004 and 2016 findings of violations, the GAO reached a conclusion within a year.

189

While still not a

matter of months, the relative promptness of the GAO's investigation makes the sanction a meaningful one to

address delay tactics in the executive branch. In addition, if the subpoena rider enables or requires the agency to

engage in salary clawback, as with the Section 713 rider, it will create a risk to officials that may survive the current

administration.

Both the Section 713 and subpoena oversight riders invert the party most likely to seek judicial review, and

therefore overcome perennial obstacles to congressional committee suits. Currently, the House and Senate face

significant obstacles to obtaining judicial enforcement of their subpoenas, including difficulties demonstrating their

185

GAO 2016 Letter,

supra

note 180, at 2-3.

186

GAO 2004 Letter,

supra

note 170, at 12 n.24.

187

See

U.S. GOV'T ACCOUNTABILITY OFF.,

supra

note 176 (documenting GAO policies and processes in

response to requests from Congress).

188

Bowsher v. Synar, 478 U.S. 714, 730 (1986)

.

189

The timing of the 2004 investigation is straightforward. GAO received the request for investigation in mid-March 2004, and

reported its results September 7, 2004.

See

GAO 2004 Letter,

supra

note 170, at 1. The timing of the 2016 is more

involved. GAO initially received a request for investigation of 2012 events on August 1, 2013.

See

Letter from Susan A.

Poling, Gen. Couns., Gov't Accountability Off., to Charles E. Grassley, Chairman, Senate Comm. on the Judiciary, and Bob

Goodlatte, Chairman, House Comm. on the Judiciary, and Darrell Issa, Chairman, House Comm. on Oversight & Gov't Reform,

Gov't Accountability Off. Decision B-325124 (June 19, 2014). The GAO responded in mid-June 2014, finding no violation.

See

id.

On April 27, 2015, Senator Grassley and colleagues requested a reconsideration of the GAO's 2015 decision in light

of newly obtained information.

See

GAO 2016 Letter,

supra

note 180, at 2. In light of the new evidence, the GAO found

liability in its April 5, 2016 letter.

See

GAO 2016 Letter,

supra

note 180, at 2-3. The initial GAO investigation took 11

months, the reconsideration took 12 months.

97 Notre Dame L. Rev. 127, *163

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John Whitty

standing and other justiciability doctrines.

190

With these oversight riders, officials found in violation by the

GAO face an ever-increasing salary clawback. As a result, it is the officials, not the congressional committees, who

would be most likely to seek judicial review to challenge the clawback determination. Indeed, given that the officials

face loss of salary for as long for the duration of their [*165] refusal to comply with a subpoena, the officials likely

would be motivated to seek expedited relief from the courts. In that litigation, the executive officials would easily

satisfy standing requirements given their concrete and individual interests, redressable by the courts, and could

easily take advantage of the Administrative Procedure Act's provision of a cause of action for suits by persons

aggrieved by agency action,

191

all of which have proven more difficult when Congress is the plaintiff.

This subpoena rider also creates an additional layer of incentives beyond those in the Section 713 rider. By

prohibiting "the use" of appropriated funds for resistance to congressional subpoenas, the violation of the rider

would also violate the Antideficiency Act. The Antideficiency Act, which dates from 1870, was enacted to prevent

executive branch officials from spending beyond the moneys appropriated for a fiscal year and later seeking a

deficiency appropriation from Congress.

192

The Act makes it unlawful for government officials to "make or

authorize"

193

an expenditure that has not been appropriated or to work without an appropriation except in

emergencies.

194

The Antideficiency Act thus prohibits any officer or employee from using funds, including

funds expended by working on the federal payroll, in a manner other than appropriated.

195

Because

appropriations riders, whether in the form of caps on spending or limitations on the purposes for which funds may

be expended, define the limits of the funds appropriated, executive branch officials violate the Antideficiency Act if

they violate an appropriations rider.

196

190

See

supra

text accompanying notes 146-150.

191

See

5 U.S.C. § 702

(2018);

see also

Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 157

(1970)

.

192

Metzger,

supra

note 19, at 1088;

see also

STIFF, supra note 30, at 40

.

193

31 U.S.C. § 1341(a)(1)(A)

(2018).

194

31 U.S.C. § 1342

(2018);

see also

Atlas Brew Works v. Barr, 391 F. Supp. 3d 6, 9 (D.D.C. 2019)

,

aff'd,

820 F.

App'x 4 (D.C. Cir. 2020)

.

195

See

31 U.S.C. § 1341

(2018).

196

STIFF, supra note 30, at 40-41

(noting that executive officials violate the Antideficiency Act when they violate a

conditional rider, even if the agency has not exceeded its total appropriations). Appropriations riders may be enacted outside of

the appropriations process through Congress's general legislation, but the Department of Justice takes the view that

Antideficiency Act liability attaches only when the condition or rider is enacted as part of the appropriations legislation, not

afterwards.

See

Use of Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA Conferences,

31 Op. O.L.C. 54, 67 (2007)

(noting that the agency "must look [only] to the applicable legislative act making the amounts in

97 Notre Dame L. Rev. 127, *164

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John Whitty

[*166] Federal employees and officers have strong reasons to avoid violating the Antideficiency Act.

197

The

Act requires that violations be reported to "the head of the agency" who then "shall report immediately to the

President and Congress."

198

The report, signed by the agency head, must explain what the violation was,

how it occurred, its effects on the agency, and any remedies taken, including disciplinary measures or additional

policy safeguards.

199

The Act authorizes administrative discipline, including suspension without pay or

removal from office.

200

Unique among budgeting laws, it also includes a provision for criminal penalties for

"knowingly and willfully" violating the Act.

201

Even though no prosecution has been brought to date under the

Act's criminal sanctions,

202

the mere existence of criminal penalties on the books is a deterrent to executive

branch officials.

203

question available for obligation or expenditure" to identify the cap or limitation, the violation of which leads to Antideficiency Act

violations). There are grounds to challenge that narrow reading of the Antideficiency Act, as the GAO does.

See

GARY L.

KEPPLINGER, U.S. GOV'T ACCOUNTABILITY OFF., B-317450, ANTIDEFICIENCY ACT - APPLICABILITY OF STATUTORY

PROHIBITIONS ON THE USE OF APPROPRIATIONS 5(2009) ("If a statute, whether enacted in an appropriation or other law,

prohibits an agency from using any of its appropriations for a particular purpose, the agency does not have "an amount available

in an appropriation' for that purpose." (quoting

31 U.S.C. § 1341(a)(1)(A)

(2018))). The most pragmatic approach is simply to

include any oversight rider, like the subpoena rider, in the original appropriation act.

See generally

31 U.S.C. § 1341(a)

(2018).

197

See

Matthew B. Lawrence,

Disappropriation

,

120 COLUM. L. REV. 1, 82-83 (2020)

(arguing that the

Antideficiency Act gives civil servants strong incentives to comply with appropriations limits);

see also

Metzger,

supra

note 19, at 1153-54 (noting same in context of general discussion of internal checks within the executive branch).

198

31 U.S.C. § 1351

(2018).

199

See id.

; OFF. OF MGMT. & BUDGET, OMB CIRCULAR A-11,

supra

note 44, § 145.7 (2021).

200

31 U.S.C. § 1349(a)

(2018) (authorizing administrative discipline for violations of § 1341 and § 1342). As Metzger notes,

courts have construed the Antideficiency Act's reporting and penalty requirements as precluding a private cause of action.

Metzger,

supra

note 19, at 1124 (citing

Feldman v. Bowser, 315 F. Supp. 3d 299, 305 (D.D.C. 2018))

.

201

31 U.S.C. § 1350

(2018) (providing criminal sanctions for knowing and willful violations);

see also

2 U.S. GOV'T

ACCOUNTABILITY OFF.,

supra

note 23, at 6-143 (noting that the Antideficiency Act is the only budget law with both

administrative and penal sanctions).

202

See

2 U.S. GOV'T ACCOUNTABILITY OFF.,

supra

note 23, at 6-144 (noting no prosecutions under Antideficiency

Act to date).

203

As one IRS employee put it, "when it comes to the Antideficiency Act, which has criminal penalties associated with it, we

take it very seriously." Deposition of David Fisher to the Comm. on Ways & Means, U.S. House of Representatives 34 (May 11,

2016),

https://democrats-

waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/documents/HWM132060%5b1%5d.pdf

[

https://perma.cc/WH7C-J4YY

].

97 Notre Dame L. Rev. 127, *165

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John Whitty

Like the Section 713 rider, the Antideficiency Act creates sanctions for violations that are personal to the official -

such as administrative discipline ranging from suspension without pay or removal from office.

204

Avoiding

those disciplinary measures, much less the embarrassment of prompting a GAO investigation and

[*167] potentially triggering the obligation of the head of the agency to personally report to the President and

Congress, provide another layer of strong ex ante incentives for officers and employees to avoid overstepping an

appropriations rider.

4. Oversight Riders and Executive Privilege

It is worth spelling out how the subpoena rider would interact with assertions of executive privilege. Many refusals

to comply with congressional subpoena invoke executive privilege. The official will be advised by the Justice

Department to assert executive privilege. Currently, the executive official will have little financial incentive to know

whether the assertion is a valid one. Even if a court orders disclosure or finds that there was no valid basis for

withholding the information, there is no personal legal sanction for the official's noncompliance and contempt.

Congress must simply endure the delay from even the most aggressive assertions of executive privilege.

The subpoena rider would change that dynamic. The Department of Justice would still serve as counsel to the

executive official. But once prompted by a member of Congress, the GAO would also be making an independent

determination of the validity of the assertion of the privilege.

205

The GAO is not part of the executive branch,

and therefore is not bound by the Office of Legal Counsel's advice.

206

The GAO has demonstrated that

independence. For instance, in its 2004 finding of a violation of Section 713, the GAO rejected the Department of

Justice's argument regarding Section 713 and its application to the executive's constitutional powers, and found

liability. The subpoena rider thus creates an ex ante incentive for the official to know, at the time of resistance to the

subpoena, whether the assertion of executive privilege or deliberative process privilege made on his or her behalf is

a reasonable one.

207

If it is reasonable advice, the official could have some assurance that the GAO would

not find a violation of the oversight rider and, in any event, the official could successfully challenge in court the

GAO's determinations to halt the official's salary or any Antideficiency Act violations. However, if the advice is not

reasonable advice - as is the case with many blanket or extremely broad refusals to cooperate - the official will

know that his [*168] or her actions in resistance contravene congressional appropriations, which creates risks for

his or her salary and for Antideficiency Act sanctions.

204

31 U.S.C. § 1349(a)

(2018) (authorizing administrative discipline for violations of§§1341 and 1342).

205

As noted below, the GAO is not bound by Department of Justice advice.

206

Whether Appropriations May Be Used for Informational Video News Releases, 29 Op. O.L.C. 74, 74 (2005)

(citing

Bowsher v. Synar, 478 U.S. 714, 727-32)

("Bradbury Memo").

207

For an account of the boundaries of reasonable reliance on the constitutional analysis of executive branch lawyers, see

Zachary S. Price,

Reliance on Executive Constitutional Interpretation

,

100 B.U. L. REV. 197, 235-37 (2020)

.

97 Notre Dame L. Rev. 127, *166

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John Whitty

This oversight rider thus works on the problems of incentives and timing that frequently arise with assertions of

executive privilege. The rider makes the decision about whether to comply with the congressional subpoena one

that is consequential to the official personally; the possible sanctions run to the individual, in terms of salary,

disciplinary reprimands, etc., not just the reduction in the agency's funding (which, in some administrations, might

actually be desired). As a result, the subpoena rider creates ex ante incentives to evaluate whether the claimed

executive privilege is within the scope that a court would likely uphold. Moreover, those personal risks will exist

even if the agency conducts a run-out-the-clock strategy. Noncompliance with a congressional request does not

merely mean possibly being a named defendant in litigation to enforce the subpoena. Instead, noncompliance

immediately raises the prospect of a salary clawback and Antideficiency Act violations, both of which have the

potential to extend beyond the current Congress or administration and be enforced by an administration of a

different political party.

But does Section 713 or the subpoena rider unduly burden the executive branch's power to assert executive

privilege? To begin with, courts could construe the oversight riders narrowly as applied to ensure that they do not

unduly trammel on executive powers while still honoring the legislative judgment they embody. Even aside from

invoking constitutional avoidance, there is a good argument that oversight riders do not impose too great a burden

on the assertion of executive privilege. The executive official may still challenge a salary clawback or Antideficiency

Act violation in court. If the court holds the assertion of privilege to be a valid one, then it will deny any salary-based

or Antideficiency Act liability. Moreover, as noted above, the official should have an easy time meeting the

justiciability requirements for suit under the APA.

Moreover, these riders prompt the GAO to provide its own independent assessment of the validity of an assertion

of executive privilege. In most cases, one would hope the GAO and Department of Justice would agree. But the

GAO is not part of the executive branch - it is part of the legislative branch. Although in some cases the GAO's

decision could burden the assertion of executive privilege, as long as the GAO closely adheres to judicial precedent

on the scope of the privilege and gives some measure of deference to the Department of Justice's views, conflict

will arise only when the executive branch relies upon an unreasonably broad assertion of privilege. If the assertion

of privilege is only burdened when the assertion is unreasonably broad, [*169] it is difficult to see how the rider

imposes an unconstitutional burden on assertions of executive privilege. We address other constitutional objections

to oversight riders below.

5. Effects Across the Agency Hierarchy

Oversight riders could have an uneven impact on officials at different levels in the agency hierarchy. In the first

instance, oversight riders - whether the Section 713 rider or the subpoena rider - are more likely to be effective with

executive officials lower in the agency hierarchy, who presumably have a stronger interest in avoiding salary

reductions and adverse personnel sanctions, and have fewer exit options than those in agency management or

political appointees.

No doubt oversight riders would not be a sufficient incentive to create disclosure in all cases. Consider a political

appointee who simply says "no" to a congressional subpoena. If the official had financial independence, the salary

97 Notre Dame L. Rev. 127, *168

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John Whitty

sanction would be potentially embarrassing but not create a strong incentive to comply with the subpoena. Because

simply saying "no" consumes only de minimis government resources, it would not trigger appropriations limitations.

Still, most instances of executive branch resistance are coordinated efforts, not matters of a lone wolf refusing to

cooperate with Congress. And it is the coordinated resistance, from officials up-and-down an agency or

department's hierarchy, that create the real problems for oversight. That coordination, including strategic steps to

furnish minimal, evasive, or under-or over-inclusive responses to congressional subpoenas, involves the

expenditure of government time and resources. Even if the pressure of oversight riders is greatest on lower-level

employees, their reluctance to violate subpoenas would also create pressure on agency leaders to get ahead of

disclosures that could prompt forthcoming testimony of lower-level officials.

The publicity and reporting requirements that attach to both Section 713 and Antideficiency Act violations may be

particularly unwelcome to political appointees in agencies who are looking to move into private sector or other

organizations with ethical screens for top managers.

208

In the event that an administration began, with proper

notice, to enforce the criminal sanctions of the Antideficiency Act, those criminal proceedings would also require

disclosure for some employees after they move to the private sector. For instance, the [*170] Securities and

Exchange Commission (SEC) requires publicly traded companies to disclose any criminal convictions or pending

criminal cases in the last ten years against its directors and executive officers in the annual report the company files

with the SEC.

209

The SEC also requires disclosure of the civil violations of directors and executive officers,

but civil violations are only required to be disclosed if the violations are related to securities and commodities.

210

The SEC has similar requirements for employees of investment adviser firms.

211

208

See, e.g

., Ellen M. Gilmer,

Ex

-

DOJ Official Called "Radioactive' After Alleged Election Plot

, BLOOMBERG L.:

ENVI'T & ENERGY REP. (Jan. 23, 2021),

https://news.bloomberglaw.com/environment-and-energy/ex-doj-official-called-

radioactive-after-alleged-election-plot

[

https://perma.cc/TJ3G-U5P5

] (discussing reluctance of law firms to hire former top DOJ

lawyer involved in resistance to 2020 presidential election results).

209

SEC Regulation S-K, 17 C.F.R. pt. 229 (2020), establishes the specific requirements for companies that are required to

report to the SEC. Form 10-K,

17 C.F.R. § 249.310

, through Item 10,

17 C.F.R. § 229.10

, incorporates

17 C.F.R. § 229.401

,

which identifies the required disclosures that companies must make about certain personnel, and § 229.401(f) requires

disclosure of involvement in certain legal proceedings by requiring the company to "describe any of the following events that

occurred during the past ten years and that are material to an evaluation of the ability or integrity of any director, person

nominated to become a director or executive officer of the registrant ... ."

17 C.F.R. § 229.401(f) (2020)

.

210

See

17 C.F.R. § 229.401(f)(3)

-(8) (2020).

211

When registering as a new firm, the firm must disclose any convictions or felony charges against any of its employees or

managers, as well as a variety of investment-related civil actions. FORM ADV: UNFIROM APPLICATION FOR INVESTMENT

ADVISER REGISTRATION AND REPORT BY EXEMPT REPORTING ADVISERS, PART 1A, item 11(A), SEC (2019),

https://www.sec.gov/forms

. An investment adviser firm must also disclose any convictions against its managers when distributing

a disclosure brochure to a potential new client.

Id.

, PART 2A, item 9(A)(1). An investment firm must also disclose any

misdemeanor convictions and pending criminal proceedings for "any fraud, false statements, or omissions, wrongful taking of

97 Notre Dame L. Rev. 127, *169

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John Whitty

To be sure, some executive branch officials bent on obstruction may still refuse to comply with a subpoena even if

they face loss of salary, personnel or other legal sanctions under the Antideficiency Act. But oversight riders still do

something the other tools do not: they enhance the ex ante legal and career incentives for executive branch officials

to comply. Moreover, the incentive not to violate the oversight rider applies regardless of whether Congress and the

President are from the same party and creates risks that extend beyond the current Congress and President.

C. The Constitutionality of Oversight Riders

Congress's power to tax and authorize spending is one of the more explicit provisions of Article I. It expressly

provides that "no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."

212

The Constitution provides that no money may "be used in the payment of any thing not thus previously

[*171] sanctioned."

213

The explicit emphasis of the Appropriations Clause is, as Metzger writes, to "ensure[]

that the executive branch must continuously secure congressional support for its chosen courses of action."

214

The appropriations power is a critical, constitutionally created means for Congress to check the executive.

215

Congress has reinforced this constitutional authority with two statutes attaching sanctions for expenditures

without appropriations. The Purpose Act specifies that expenditures shall only be for "the objects for which the

appropriations were made,"

216

and, as just noted, the Antideficiency Act prohibits officials from expending or

committing funds that have not been appropriated.

217

Oversight riders, however, do not merely implicate Congress's appropriations power. They also implicate the

President's constitutionally vested powers.

218

The executive branch has long taken the view that Congress

property, bribery, perjury, forgery, counterfeiting, extortion, or a conspiracy to commit any of these offenses" by any employee

when registering and by its managers when distributing a disclosure brochure.

Id.

, PART 1A, item 11(B);

see

id.

,

PART 2A, item 9(A)(1)-(2).

212

U.S. CONST. art I, § 9, cl. 7

.

213

See

Reeside v. Walker, 52 U.S. (11 How.) 272, 291 (1850)

.

214

Metzger,

supra

note 19, at 1140.

215

See id.

216

31 U.S.C. § 1301(a)

;

see, e.g.

,

State and Local Deputation of Federal Law Enforcement Officers During Stafford Act

Deployments, 36 Op O.L.C. 77, 78 (2012)

.

217

See

31 U.S.C. § 1341-42 (2018);

see also

Zachary S. Price,

Funding Restrictions and Separation of Powers

,

71 VAND. L. REV. 357, 368 (2018)

.

218

For contending opinions on the constitutionality of Section 713, compare Memorandum from Jack Maskell, Legis. Att'y,

American Law Division, to Charles Rangel, House Comm. on Ways & Means (Apr. 26, 2004) (defending the constitutionality of

Congress to impose penalties for executive branch officers who impeded Congress's access to information) with

Authority of

97 Notre Dame L. Rev. 127, *170

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John Whitty

cannot use its appropriation powers to impede or frustrate the executive branch's capacity to perform its own

constitutionally assigned powers.

219

The Office of Legal Counsel takes the position, for instance, that

Congress cannot achieve indirectly through the denial of funding to the President what it could not accomplish by

other means.

220

Although executive privilege is not a duty or power expressly granted by the Constitution, the

executive branch takes the view that the President has a constitutional privilege [*172] from disclosure.

221

The GAO and the Supreme Court have taken a narrower view.

222

Even if it is conceded, as the Department of Justice maintains, that some aspects of the President's functions are

not subject to Congress's appropriations power, the kind of testimony and information that Congress routinely seeks

through subpoenas falls far from that constitutional line. Zachary Price has recently proposed a particularly

persuasive way to draw the line between the President's constitutional powers and Congress's appropriations

powers. Price suggests that Congress's appropriations powers do not reach activities the President can perform

personally, and thus without the need for additional, congressionally authorized resources - such as the power to

veto legislation, nominate officers, remove officers, demand opinions from the heads of departments, and convene

or adjourn Congress.

223

In contrast, Price argues, the President is beholden to appropriations limits as to

those powers that require resources to exercise - "resource-dependent" powers

224

- such as enforcing the law

and making war. Because these powers necessarily require resources, they can be checked through Congress's

use of appropriations powers.

225

The lion's share of Congress's subpoenas pertain to the exercise of powers

dependent on congressional appropriations and so would easily fall within the scope of what Congress can regulate

Agency Officials to Prohibit Employees From Providing Information to Congress, 28 Op. O.L.C. 77 (2004)

(arguing that

President's power to supervise includes a power to prohibit nonprivileged information from disclosure).

219

See

Metzger,

supra

note 19, at 1143 n.359 (citing

Morrison v. Olson, 487 U.S. 654, 691 (1988))

;

STIFF, supra

note 30, at 58

.

220

See

Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469 (1860)

("If Congress had really intended to make [a military

officer] independent of [the President], that purpose could not be accomplished in this indirect manner any more than if it was

attempted directly.");

see also

Authority for the Continuance of Government Functions During a Temporary Lapse in

Appropriations, 43 Op. Att'y Gen. 293, 297, 299 (1981)

("Manifestly, Congress could not deprive the President of [a

constitutional] power by purporting to deny him the minimum obligational authority sufficient to carry this power into effect.");

see

Metzger,

supra

note 19, at 52.

221

See supra

note 92 (listing memoranda on executive privilege).

222

GAO 2004 Letter,

supra

note 170, at 13;

Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032-33 (2020)

.

223

Price,

supra

note 217, at 389-90.

224

Id. at 362, 393

.

225

Id.

at 418.

97 Notre Dame L. Rev. 127, *171

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John Whitty

through appropriations. That is true, for instance, of information sought from the EPA in the Gorsuch affair, from the

DOJ regarding the Fast and Furious Operation, and the Department of Defense regarding President Trump's

impeachment proceedings. More than isolated presidential judgment, these powers emerge from and are

inextricably linked to the ability of the executive branch to expend funds, and as such, may be limited through

appropriations.

226

Put another way, so long as Congress seeks information that does not impinge on the

President's ability to personally exercise her constitutional functions, it may condition its expenditure on the

executive branch not obstructing Congress's investigation.

227

[*173] Recent litigation over the effect of riders on Department of Justice federal prosecutions for marijuana

possession nicely illustrates the scope of Congress's power over resource-dependent activities of the executive

branch. In the early 2010s, President Obama's Department of Justice continued to pursue federal marijuana

charges in states that had laws allowing the use of medical marijuana. In response, Representative Dana

Rohrabacher (R-CA), a long-time advocate of medical marijuana legalization, partnered with Representative Sam

Farr (D-CA) to introduce the Rohrabacher-Farr amendment in the House.

228

The amendment sought to bar

the DOJ from spending funds to enforce the Controlled Substances Act in states with medical marijuana reform

laws;

229

a similar amendment had been proposed but gotten nowhere in different iterations throughout the

2000s.

230

By 2014, 32 states and the District of Columbia had passed medical marijuana laws,

231

and

226

See id.

227

A cert. petition challenging

Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019)

is pending, but arguments are

postponed pending consideration of the Biden administration's request to withdraw the petition. In

Sierra Club

, the Ninth

Circuit struck down the Trump administration's decision to reprogram funds for use to construct the border wall.

228

Burgess Everett,

Lawmakers Warn DOJ to Back Off Medical Marijuana Prosecutions

, POLITICO

(

Mar. 9, 2015),

https://www.politico.com/story/2015/04/lawmakers-warn-doj-to-back-off-medical-marijuana-prosecutions-116781

[

https://perma.cc/W9KB-P4EK

]. The exact language of the amendment is nicely laid out in

United States v. McIntosh, 833

F.3d 1163, 1169 (9th Cir. 2016)

.

229

The language of the limitation rider is as follows: None of the funds made available in this Act to the Department of

Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware,

District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota,

Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina,

Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that

authorize the use, distribution, possession, or cultivation of medical marijuana.

Commerce, Justice, Science, and Related Agencies Appropriations Act, 2015,

Pub. L. No. 113-235

, div. B, § 538,

128 Stat.

2173

, 2217 (2014).

230

Bill Piper,

A Decade of Hard Work Turns into Historic Marijuana Victory in Congress

, DRUG POL'Y ALL. (Dec. 14,

2014),

https://www.drugpolicy.org/blog/decade-hard-work-turns-historic-marijuana-victory-congress

[

https://perma.cc/AC6D-

X934

].

97 Notre Dame L. Rev. 127, *172

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John Whitty

the House passed the Rohrabacher-Farr amendment in May of 2014.

232

In the Senate, it gained support from

Senators Cory Booker (D-NJ) and Rand Paul (R-KY).

233

Although the rider was [*174] never separately

voted upon,

234

it ended up in the infamous "CRomnibus" bill of 2014: a bill that was part omnibus bill,

legislation Congress passes to fund the government when an agreement can be reached, and part continuing

resolution or CR, legislation that keeps the lights on when members of Congress cannot reach a deal.

235

Congress passed the CRomnibus bill to avoid a government shutdown; it was laden with amendments and

riders, including the Rohrabacher-Farr rider, by the time it reached the President's desk.

236

The Department of Justice chose to interpret the Rohrabacher-Farr amendment narrowly, taking the view that it

merely prevents the department from "impeding the ability of states to carry out their medical marijuana laws," but

does not prevent them from continuing to prosecute individuals and organizations within states with medical

marijuana laws.

237

Dana Rohrabacher and Sam Farr contested this interpretation in a letter to Attorney

General Eric Holder, calling it "emphatically wrong."

238

The Ninth Circuit emphatically sided with Rohrabacher

231

S.V. Daate,

GOP House Votes to Leave States Alone on Medical Marijuana

, NPR (May 30, 2014),

https://www.npr.org/sections/itsallpolitics/2014/05/30/317427925/gop-house-votes-to-leave-states-alone-on-medical-marijuana

[

https://perma.cc/7YHZ-4M2Y

];

see also

PEW RSCH. CTR., MAJORITY NOW SUPPORTS LEGALIZING MARIJUANA 5

(2013).

232

Associated Press,

House Backs State Marijuana Laws

, POLITICO (May 30, 2014),

https://www.politico.com/story/2014/05/gop-house-backs-state-medical-marijuana-laws-107244

[

https://perma.cc/3Q3U-K2CH

].

233

Press Release, Drug Pol'y All., Breaking News: Senators Rand Paul (R-KY) and Cory Booker (D-NJ) to Offer

Groundbreaking Medical Marijuana Amendment on Senate Floor (June 18, 2014),

https://www.drugpolicy.org/news/2014/06/breaking-news-senators-rand-paul-r-ky-and-cory-booker-d-nj-offer-groundbreaking-

medical

[

https://perma.cc/BN4M-XBJG

]

234

See Congress Set to Pass Landmark Medical Marijuana Legislation

, AMS. FOR SAFE ACCESS

(

Dec. 10, 2014),

https://www.safeaccessnow.org/congress_set_to_pass_landmark_medical_marijuana_legislation

[

https://perma.cc/R347-EMVU

].

235

Andrew Prokop,

Why the CRomnibus is Called the CRomnibus

, VOX (Dec 13, 2014),

https://www.vox.com/2014/12/13/7385253/what-is-cromnibus

[

https://perma.cc/NA4R-C3LX

].

236

Ezra Klein,

How to Sound Smart About the 2015 Appropriations Bill

, VOX (Dec 11, 2014),

https://www.vox.com/2014/12/11/7376585/cromnibus-2015-appropriations-details

[

https://perma.cc/J4RF-LV4V

].

237

Timothy M. Phelps,

Justice Department Says It Can Still Prosecute Medical Marijuana Cases

, L.A. TIMES (Apr. 2,

2015),

https://www.latimes.com/nation/nationnow/la-na-nn-medical-marijuana-abusers-20150401-story.html

[

https://perma.cc/7H44-EDGE

] (quoting Department of Justice spokesperon Patrick Rodenbush).

238

Everett,

supra

note 228 (quoting Letter from Dana Rohrabacher, Member, Congress, and Sam Farr, Member,

Congress, to Eric Holder, Att'y Gen., Dep't of Just. (Apr. 8, 2015)).

97 Notre Dame L. Rev. 127, *173

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John Whitty

and Farr and against Attorney General Holder in

United States v. McIntosh

.

239

Defendants, owners and

operators of dispensaries and growers of marijuana, argued that their prosecutions under the Controlled

Substances Act violated the appropriations limits that Congress had established. The Ninth Circuit agreed, holding

that the Rohrabacher-Farr rider prevented the DOJ from spending money to prosecute individuals so long as those

individuals fully complied with their state medical marijuana laws.

240

The

McIntosh

decision affirms

Congress's power to regulate the President's resource-dependent powers, even those that implicate the President's

constitutionally vested authority to take care that the laws be faithfully executed.

[*175]

D. Objections: Riders and the Filibuster

Limitations riders have long been disfavored - and for good reason. Because they are enacted through the yearly

appropriations process, limitations riders generally lack review by an authorizing committee with subject matter

expertise.

241

As a result, limitations riders typically do not reflect the level of consideration, deliberation, and

committee process that ideally attaches to authorizing legislation.

242

Indeed, the growing prevalence of

limitations riders is a symptom of larger breakdown of legislative processes in Congress,

243

and Congress's

increased reliance on appropriations bills to enact substantive policy.

244

There are several levels of response to this objection. First and perhaps most importantly, there is nothing

unlawful about oversight riders - they are consistent with Congress's established powers of the purse to condition

its appropriations on those appropriations being used for some purposes and not others.

245

Second, oversight

riders involve less substantive policymaking than standard limitations riders. Unlike standard limitations riders, they

do not prohibit spending on broader policies; they do not, for instance, prohibit spending money to close the

239

833 F.3d 1163, 1179 (9th Cir. 2016)

.

240

Id. at 1177-79

.

241

See

Devins,

supra

note 29, at 464-65.

242

See id. at 464-65

(noting these and other reasons to be cautious about limitations riders).

243

Abbe R. Gluck, Anne Joseph O'Connell & Rosa Po,

Unorthodox Lawmaking, Unorthodox Rulemaking

,

115 COLUM.

L. REV. 1789, 1797 n.30 (2015)

.

244

Id.

at 1800.

245

Interestingly, the Consolidated Appropriations Act of 2021 includes a long-standing appropriations rider providing that

none of the fund appropriated will be available to fund the salary of an official who prevents or threatens to prevent any

employee from having any written communications with a member of Congress.

See

Financial Services and General

Government Appropriations Act, 2021,

Pub. L. No. 116-260

, div. E, § 713,

134 Stat. 1380

, 1432-33 (2020).

97 Notre Dame L. Rev. 127, *174

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John Whitty

Guantanamo Bay detention center,

246

or to prosecute drug crime in states that have legalized the use of

certain drugs.

247

Oversight riders merely deny funding for resistance of congressional oversight. Although it is

always difficult to make a clean distinction between process and substance - and especially so where oversight is

most intense and most resisted over controversial substance - there is still a difference between dictating a

substantive policy through a rider and creating a limit on the executive branch's power to resist Congress's attempts

at oversight.

[*176] Third, and at a broader level, oversight riders are a means for Congress to respond to the constitutional

hardball of the executive branch. Oversight riders are not useful or designed for Congress-Executive relations when

those arrangements are at their best. Their value comes as a response to the very real circumstances of divisive

constitutional hardball by the executive branch. Constitutional hardball involves practices or actions that strain

constitutional understandings for partisan ends.

248

For instance, democratic filibusters of President George

W. Bush's judicial nominations and the Senate refusal to give a hearing to President Obama's nomination of Merrick

Garland for a seat on the Supreme Court fall within the category of constitutional hardball - they each breach a

historical practice for what appear to be primarily partisan purposes.

249

Likewise, the decisions in the Obama

administration to halt deportation and grant work authorization to many immigrants who came into the country as

children could be seen as self-help in response to the hardball tactics of Senate Republicans to thwart passage of

immigration legislation that had majority support in both houses.

250

Oversight riders are tools of constitutional self-help in response to executive branch stonewalling.

251

They

are a means by which Congress can defend its own institutional prerogatives in response to the perceived wrong of

the executive branch failing to disclose information to which it is entitled.

252

Unpacking the concept of

246

Price,

supra

note 217, at 374 (discussing the Department of Defense Appropriations Act of 2014,

Pub. L. No. 113-76

,

div. C, §§8110-11,

128 Stat. 86

, 131 (2014), and spending limits expending funds to close Guantanamo).

247

Id. at 377

.

248

See

Joseph Fishkin & David E. Pozen, Essay,

Asymmetric Constitutional Hardball

,

118 COLUM. L. REV. 915,

920-21 (2018)

;

see also

Mark Tushnet,

Constitutional Hardball

,

37 J. MARSHALL L. REV. 523, 523 (2004)

(conceptualizing constitutional hardball as practices that are "within the bounds of existing constitutional doctrine" but

nonetheless strain "existing

pre

-constitutional understandings").

249

See

Fishkin & Pozen,

supra

note 248.

250

See id.

935-36 (offering Obama's deferred action policy in response to the Senate filibuster of the DREAM Act as an

example of constitutional self-help in response to hardball).

251

See

Pozen,

supra

note 27, at 12;

see also

Fishkin & Pozen,

supra

note 248, at 934 (noting President

Clinton's aggressive assertions of executive privilege were instances of constitutional hardball).

97 Notre Dame L. Rev. 127, *175

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John Whitty

constitutional self-help, David Pozen suggests that constitutional self-help is controversial (and gains interest) in

part because the means used are generally impermissible or disfavored but asserted to be justified in the context.

253

Oversight riders are controversial too precisely because they involve a hardball response by Congress through

the blunt legislative tool of appropriations.

[*177] Although self-help measures risk escalating institutional conflicts in unproductive ways, oversight riders fit

within the basic standards or norms of constitutional self-help. First, they address a core and legitimate interest of

Congress that has been thwarted by the executive branch. Second, oversight riders are targeted or reciprocal "in

the sense that they are closely bound to the motivating wrong."

254

Congress could use other tools to make life

difficult for the President. It could refuse to confirm the President's appointees, refuse to take up the President's

legislative priorities, decline to act on the President's requests to ratify treaties, institute impeachment proceedings

against recalcitrant executive officials, and use the powers of the purse to reduce the funding, salaries, or discretion

of particular executive branch offices that have failed to provide information.

255

Oversight riders are more

narrowly targeted than these other countermeasures - even reducing salaries of recalcitrant officials is a broader

sanction than directly disqualifying spending in response to resistance to legitimate congressional oversight. Even if

use of limitations riders is generally disfavored, they are a justified and proportional response to the executive

branch's obstruction of congressional oversight. Moreover, the fact that oversight riders are reciprocal and

proportionate - they are narrowly tailored to respond to the harm of executive stonewalling - also recommends them

over other possible countermeasures. Perhaps stronger medicine still is in order. But it is worth trying oversight

riders first to see if they effectively increase the costs to executive branch actors of resisting legitimate oversight in

such a way that they will help to restore a lost constitutional equilibrium.

It is also worth addressing a further, more practical objection. Appropriations bills are subject to the presidential

veto and the filibuster in the Senate like other legislation.

256

Why would the President sign an appropriations

law that included oversight riders? Appropriations bills are generally viewed as must-pass and have an annual

deadline, and as a result, they have been magnets for riders of various kinds. Occasionally these riders have

prompted filibuster in the Senate. For instance, Senate Democrats filibustered the Department of Defense

Appropriations Act

257

because the bill provided funds for Iraq and Hurricane Katrina relief,

252

See

Pozen,

supra

note 27, at 12 (noting self-help involves a branch's unilateral response to a perceived wrong

committed by another branch).

253

See id.

254

Id. at 64

.

255

These options are carefully considered in CHAFETZ, CONGRESS'S CONSTITUTION,

supra

note 134, at 194.

256

JAMES V. SATURNO, BILL HENIFF JR. & MEGAN S. LYNCH, CONG. RSCH. SERV., R42388, THE CONGRESSIONAL

APPROPRIATIONS PROCESS: AN INTRODUCTION 7

(

2016).

97 Notre Dame L. Rev. 127, *176

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John Whitty

258

successfully inducing those [*178] provisions to be dropped. Likewise, Senate Republicans filibustered the

Department of Defense Appropriations Act

259

because it included the DREAM Act, which would have

provided a path to citizenship for qualified undocumented immigrants.

260

Even though there have been

occasional, successful efforts by the House or Senate to remove a rider or provision in an annual appropriations

measure, these bills continue to include a wide range of riders, including riders to which the executive branch

routinely objects.

261

The practical need to pass annual appropriations legislation to avoid a government

shutdown makes oversight riders more politically viable than they would be as standalone legislation in periods of

divided government.

The attachment of oversight riders to appropriations legislation also has a timing advantage. The federal

government requires appropriations, so appropriations bills move through Congress in one form or another even in

periods of partisan gridlock.

262

Because the federal fiscal year begins on October 1 of each year, at any given

time the pressure arising from an oversight rider attached to an appropriations bill should become effective no more

than a year from the date that an appropriations bill will be enacted. Often the time will be much shorter, and the

target of the rider will likely be aware of the pending rider while the appropriations process is underway. In addition,

the leverage created by the need to fund the federal government and the political fallout of being seen as having

shut down the government may enable adoption of these riders, even if independent legislation regarding

subpoenas would get bogged down in partisan conflict.

III. APPROPRIATIONS AND UNDERENFORCED GOOD GOVERNMENT NORMS

Oversight riders highlight how Congress can use its appropriations powers to enforce its own institutional

prerogatives to obtain information from the executive branch and compliance with the law.

263

As noted, the

virtue of oversight riders is that they create incentives, personal to executive branch officials, to comply with the

257

H.R. Res. 2863, 109th Cong.,

119 Stat. 2680

(2005).

258

Alex Tausanovitch & Sam Berger,

The Impact of the Filibuster on Federal Policymaking

, CTR. FOR AM. PROGRESS

(Dec. 5, 2019),

https://www.americanprogress.org/issues/democracy/reports/2019/12/05/478199/impact-filibuster-federal-

policymaking/

[

https://perma.cc/SQ28-L4JL

].

259

H.R. Res. 3326, 111th Cong.,

123 Stat. 3409

(2009).

260

Tausanovitch & Berger,

supra

note 258.

261

See, e.g.

, Statement on Signing the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for

Fiscal Year 2015, 2 PUB. PAPERS 1640 (Dec. 19, 2014) (President Obama's signing statement objecting that the restrictions on

spending imposed by the act violated separation of powers).

262

See

MacDonald,

supra

note 161, at 767.

263

Cf.

Metzger,

supra

note 19, at 1153 (noting that appropriations powers can be a potent tool to combat presidential

unilateralism).

97 Notre Dame L. Rev. 127, *177

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John Whitty

[*179] law (or what they believe a fair reading will be by a federal court), and they do so on a timely basis. The

question we entertain in this final Part is whether appropriations incentives could make a difference for compliance

with a range of other good government legislation that binds the executive branch but has been underenforced in

recent years.

264

We consider three sets of good government laws: protections against partisan political

activity by federal government employees, compliance with federal ethics laws, and guarantees for transparency

and recordkeeping.

A. Political Activity

The Hatch Act is the primary federal legislation that prohibits executive branch officials from using their official

authority to engage in campaigning. Specifically, it prohibits any individuals employed by the federal government,

other than the President and Vice President, from using their official authority and influence for the purposes of

interfering with or affecting election results.

265

The regulations implementing the Hatch Act clarify that using

an official title or position while participating in political activities, such as campaigning, fall within the prohibitions of

the Act.

266

The penalties for violation of the Hatch Act include disbarment from federal service for up to five

years and a fine not to exceed $ 1,000.

267

The Hatch Act is enforced by the Office of Special Counsel (OSC), an independent federal investigative and

prosecutorial agency. During the Trump administration, the OSC found that President Trump's advisor, Kellyanne

Conway, had violated the Hatch Act on numerous occasions,

268

and Peter Navarro had also violated the

Hatch [*180] Act.

269

Many believe that the OSC did not adequately enforce the Hatch Act, including

264

Our focus is on underenforced good government norms, the requirements that govern the day-to-day activities of

government officials, but the concept of underenforced norms has been explored at length regarding constitutional norms.

See, e.g.

, Lawrence Gene Sager,

Fair Measure: The Legal Status of Underenforced Constitutional Norms

, 91 HARV. L.

REV. 1212, 1213-20 (1978) (noting the role of institutional concerns in leading to underenforcement of constitutional norms);

Kate Stith,

Congress' Power of the Purse

,

97 YALE L.J. 1343, 1393 (1988)

(noting that "the constitutional norms worthy of

the attention of scholars and decisionmakers are not limited to those that might be articulated and enforced by the courts"); Cass

R. Sunstein,

Interpreting Statutes in the Regulatory State

,

103 HARV. L. REV. 405, 468-69 (1989)

(noting that "there is a

difference between what the Constitution requires and what the Supreme Court, interpreting the Constitution, is willing to

compel" and arguing that that the reluctance of courts to invalidate statutes "strengthens judicially underenforced constitutional

norms").

265

See

5 U.S.C. § 7323(a)(1)

(2018).

266

5 C.F.R. § 734.302 (2020)

.

267

5 U.S.C. § 7326

(2018).

268

See

U.S. OFF. SPECIAL COUNS., OSC FILE NOS. HA-19-0631 & HA-19-3395, REPORT OF PROHIBITED

POLITICAL ACTIVITY UNDER THE HATCH ACT (2019).

97 Notre Dame L. Rev. 127, *178

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John Whitty

arguable violations by the appearance of Chad Wolf, at the time Acting Director of the Department of Homeland

Security, Secretary of State Mike Pompeo, and Ivanka Trump during the televised 2020 Republican National

Convention.

270

In response to concerns that the Hatch Act was underenforced and does not include adequate penalties, the

House of Representatives passed the Protecting Our Democracy Act in 2019, although it stalled in the Senate.

271

The Protecting Our Democracy Act would enhance the penalties for violation of the Hatch Act to up to $ 50,000

and grant the OSC more independent prosecutorial authority.

272

The bill would also extend the Hatch Act to

the President and Vice President.

273

Regardless of whether a new version of the Protecting Our Democracy Act is passed, Hatch Act riders modelled

on oversight riders could play a useful role in increasing the incentives to comply with the Hatch Act prohibitions.

Like an oversight rider, a Hatch Act rider would prohibit federal officials from expending any funds to use their

"official authority or influence for the purpose of interfering with or affecting the result of an election"

274

as

understood under the Hatch Act. Such a rider would make Hatch Act violations also violations of the Antideficiency

Act, triggering an additional set of penalties and possibly also expanding the number of officials with an interest in

ensuring compliance. This would increase the fines available and the prominence of the Hatch Act within the set of

prohibitions that apply to executive officials.

The difference Hatch Act riders would make is less significant than oversight riders. Oversight riders create ex

ante personal incentives to comply with the law that are lacking in the context of congressional subpoena

enforcement. Although some penalties are already attached to the Hatch Act - and potentially more will be if the

Protecting Our Democracy Act is enacted - the addition of Hatch Act riders could be a step toward further

internalizing the Act's important [*181] prohibitions on partisan use of office for high-level executive branch

officials.

269

U.S. OFF. SPECIAL COUNS., OSC FILE NO. HA-20-000279, REPORT OF PROHIBITED POLITICAL ACTIVITY UNDER

THE HATCH ACT (2020).

270

Brian Slodysko,

Watchdog Groups Say Convention Appearances Broke Hatch Act

, AP News (Aug. 27, 2020),

https://apnews.com/a6ea0162c2ea6242cb9c8284c451560f

[

https://perma.cc/XV4Z-FD4M

] (noting numerous arguable Hatch Act

violations, including by Chad Wolf and Michael Pompeo, among others); Eliza Relman,

Ivanka Trump Showers Her Father

with Praise in a Triumphant Republican Convention Speech from the White House

, BUS. INSIDER (Aug. 27, 2020)

https://www.businessinsider.com/ivanka-trump-rnc-speech-praises-trump-2020-8

[

https://perma.cc/38NE-6P9A

].

271

H.R. 8363, 116th Cong. (2020).

272

See id.

§ 1002(a).

273

Id.

§ 1002(b).

274

5 U.S.C. § 7323(a)(1)

(2018).

97 Notre Dame L. Rev. 127, *180

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John Whitty

B. Ethics

Congress has enacted numerous laws to ensure that government officials comply with basic ethics requirements

and remain accountable for their actions. The federal ethics laws include 1962 legislation banning federal

employees from switching sides on certain matters

275

and preventing them from "personally and substantially"

taking part in activities that could affect their financial interests (including the interests of family members).

276

The 1978 Ethics in Government Act, which was enacted following the Watergate scandal, requires public

disclosure of personal financial interests by senior federal executives,

277

and addresses ethics enforcement

issues through creation of the Office of Government Ethics and the Office of Senate Legal Counsel, as well as by

authorizing the Attorney General to appoint a special counsel to investigate executive branch employees.

278

In addition, in 1995 Congress adopted the Lobbying Disclosure Act, which updated earlier requirements to

include a comprehensive registration and disclosure regime for lobbyists.

279

It was updated in 2007 following

the Jack Abramoff lobbying scandal.

280

Despite the reforms following the Watergate and Abramoff scandals, the Trump era exposed additional

weaknesses in the federal [*182] ethics regime. Gaps emerged in both the legal requirements and enforcement of

275

See

18 U.S.C. § 207

(Supp. I 1962);

18 U.S.C. § 207(a)(1)(B)

(2018) (members of the executive branch are

permanently banned from switching sides on any matter that they "personally and substantially" participated in while working for

the government). For a discussion of the 1962 legislation, see JACK MASKELL, CONG. RSCH. SERV., R42728, POST-

EMPLOYMENT, "REVOLVING DOOR," LAWS FOR FEDERAL PERSONNEL 3 (2014).

276

See

18 U.S.C. § 208

(Supp. I 1962);

18 U.S.C. § 208(a)

(2018). For an overview of the conflict of interest

requirements for federal officials, see OFF. OF GOV'T ETHICS, REPORT TO THE PRESIDENT AND TO CONGRESSIONAL

COMMITTEES ON THE CONFLICT OF INTEREST LAWS RELATING TO EXECUTIVE BRANCH EMPLOYMENT (2006). For a

compilation of federal ethics rules, see U.S. OFF. OF GOV'T ETHICS, COMPILATION OF FEDERAL ETHICS LAWS (2021).

Several ethics statutes and recent bills are designed to reduce the risks arising from the revolving door between public and

private sector employers. For a recent overview, see Michael P. Vandenbergh, Jonathan M. Gilligan & Haley Feuerman,

The

New Revolving Door

, 70 CASE W. RSRV. L. REV. 1121, 1132-35 (2020) (reviewing federal ethics rules adopted in response to

the revolving door).

277

See

28 U.S.C. App. (Supp. II 1979); J. Jackson Walter,

The Ethics in Government Act, Conflict of Interest Laws

and Presidential Recruiting

, 41 PUB. ADMIN. REV. 659, 659 (1981).

278

See

Rebecca L. Anderson,

The Rules in the Owners' Box: Lobbying Regulations in State Legislatures

,

40 URB.

LAW. 375, 380 (2008)

.

279

See

Pub. L. No. 104-65

,

109 Stat. 691

(codified as amended at

2 U.S.C.§§1601

-

12 (2018));

see also

Anderson,

supra

note 278, at 382.

280

Honest Leadership and Open Government Act of 2007,

Pub. L. No. 110-81

, tit. 2,

121 Stat. 735

, 741 (codified at

2 U.S.C.

§§1601

-14 (2018)).

97 Notre Dame L. Rev. 127, *181

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John Whitty

norms regarding ethical behavior, including prohibitions on steering federal contracts to family and friends and

requirements to disclose conflicts of interests by nominees in the Senate confirmation process.

281

Other good

government ethics practices also have been challenged. Perhaps the best-known example is that President Trump

is the first President since Watergate to refuse to release his tax returns, a practice that can identify potential

conflicts of interest.

282

In addition, soon after he was confirmed, Attorney General William Barr demonstrated

that although a Designated Ethics Official may advise a political appointee to recuse from a matter in which the

Attorney General or the President has a personal interest, the appointee can simply ignore that advice without risk

of civil or criminal sacntions.

283

The recent experience has demonstrated the loopholes not only in the ethics requirements, but also in their

enforcement. For instance, the experience demonstrated that formal legal enforcement is often not possible at all or

not possible on a timely basis, instead demonstrating the extent to which many of the ethics requirements adopted

since Watergate "relied more on tradition and shame than on enforceable law."

284

The reliance on tradition

and shame suggests that [*183] the effects of federal ethics requirements are limited when executive branch

employees do not fear social or political sanctions. As Susan Hennessey has noted, "the mechanism that preserved

that [post-Watergate] system was the fear of paying a political price ... . Now we know that if there's not a credible

281

See, e.g.

, Russell Spivak,

Purse Strings and Self-Dealings: How Congress Can Use the Budget to Prevent the

Executive Branch's Ethics Violations

, 98 TEX. L. REV. ONLINE 131 (2020) (proposing funding riders to address presidential

self-dealing that is not addressed by federal criminal or civil law); Michael Sozan & Will Ragland,

Recent Political Scandals

the "For the People Act' Would Prevent From Recurring

, CTR. FOR AM. PROGRESS (Feb. 4, 2019),

https://www.americanprogress.org/issues/democracy/news/2019/02/04/465792/recent-political-scandals-people-act-prevent-

recurring/

[

https://perma.cc/9TR4-ADFZ

] (detailing recent ethics issues in the executive, judicial, and legislative branches).

282

See, e.g.

, Jeff Stein,

The IRS Turned over Nixon's Tax Returns the Same Day a Congressional Panel Asked for

Them

, WASH. POST (July 25, 2019),

https://www.washingtonpost.com/business/2019/07/25/irs-turned-over-nixons-tax-returns-

same-day-that-congressional-panel-asked-them/

[

https://perma.cc/47ZV-QJR2

].

283

Matthew Choi,

Key Moments from William Barr's Confirmation Hearing

, POLITICO (Jan 15, 2019),

https://www.politico.com/story/2019/01/15/key-moments-barr-promises-to-protect-mueller-special-counsel-1101410

[

https://perma.cc/F36D-V262

]; Matt Richardson & Jake Gibson,

AG William Barr Not Recusing Himself from Russia Probe,

Official Says

, FOX NEWS (Mar. 4, 2019),

https://www.foxnews.com/politics/ag-bill-barr-not-recusing-himself-from-russia-probe-

official-says

[

https://perma.cc/RD8Z-6NJL

]; Elizabeth Williamson,

Beyond Impeachment, a Push for Ethics Laws That Do Not

Depend on Shame

, N.Y. TIMES (Jan. 16, 2021),

https://www.nytimes.com/2021/01/11/us/politics/trump-ethics-democracy-

biden.html

[

https://perma.cc/7HZ8-RUEV

] (noting that officials can reject ethics advice without the risk of legal sanction).

284

Williamson,

supra

note 283 (discussing the Protecting Our Democracy Act and noting that the Office of Government

Ethics "relies on a president's desire to avoid scandal and impropriety, and the Senate's reluctance to schedule confirmation

hearings for nominees who have not filed the proper paperwork and committed to divestiture").

97 Notre Dame L. Rev. 127, *182

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John Whitty

fear of that, we're likely to see future presidents attempting to violate these rules or push the boundaries more and

more."

285

As with the Hatch Act, the weaknesses in federal ethics requirements and enforcement that became apparent

during the Trump administration have prompted proposals for new legislation. The first bill introduced in the new

House of Representatives, the For the People Act of 2021 (FPA), includes new ethics requirements and

enforcement provisions that closely track recent scandals.

286

For example, the FPA would require presidents

to disclose their tax returns for the prior decade,

287

limit contracting at businesses owned by certain

government employees,

288

and close other loopholes in ethics requirements. The FPA also includes an entire

subtitle addressing enforcement, including provisions to reauthorize the Office of Government Ethics, to insulate it

from political pressure, and to increase its ability to discipline federal employees.

289

The FPA is unlikely to be enacted in the form adopted by the House, however, and even if it is gaps will remain.

Unethical employees will exploit any remaining weaknesses in the requirements, and enforcement will still rely

heavily on the willingness of political appointees at the Department of Justice to enforce its requirements and

federal courts to promptly resolve disputes. Appropriations riders could provide a more nimble response regarding

ethics requirements than existing laws - they could be developed and adopted quickly as new ethics problems

arise. For example, when an extraordinary new situation arises, such as rejection of the recusal recommendation of

a Designated Ethics Official, a rider could be adopted in the next appropriations bill to prevent use of federal funds

to implement decisions by the official rejecting the recusal recommendation.

290

Ethics riders could also enhance enforcement by increasing the perceived likelihood and magnitude of the

sanction by executive branch officials subject to ethics requirements. For the reasons [*184] discussed regarding

the Hatch Act-related appropriations riders, ethics appropriations riders would add additional agency-level and

individual-level sanctions for noncompliance. The risk to offending employees may be greater than the risks of

simply violating ethics rules, since additional Antideficiency Act violations would have occurred on top of ethics

violations. The violations would be more likely to be enforced as well because by triggering Antideficiency Act

285

Id.

286

See

For the People Act of 2021, H.R. 1, 117th Cong., tit. VIII (2021).

287

See id.

§ 10001.

288

See

id.

§§8007, 8014.

289

Id.

;