The Federal Bureaucracy – Proposals for Reform by Congress Part 2
Reining in executive branch overreach and bolstering congressional oversight.
In the last essay, I discussed potential reforms Congress might consider to restore Congress’ lawmaking authority as provided for by the Constitution. In this essay, I’ll present some additional reforms to help prevent abuses by the President and improve congressional oversight.
Reform 1: Enact a statute defining the President’s authority to faithfully execute the law, based on the D.C. Circuit decision in In re Aiken County, 725 F.3d 255, 259, 266 (D.C. 2013).
Such a statute might provide that:
(a) The President, subordinate executive agencies, and independent agencies -- (1) shall follow statutory mandates provided there is appropriated money available and the President has no constitutional objection to the statute; and (2) shall abide by statutory prohibitions unless the President has a constitutional objection to the prohibition.
(b) If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order indicates otherwise.
(c) The President shall not decline to follow a statutory mandate or prohibition solely because of policy considerations.
Such a statute might also provide that “Prosecutorial discretion on the part of the President, subordinate executive agencies, and independent agencies, does not include the power to disregard other statutory obligations that apply to the Executive Branch, such as statutory requirements to issue rules, or to pay benefits, or to implement or administer statutory projects or programs.” A criminal penalty might also be added by placing the provision in Title 18 of the U.S. Code and adding the following: “Criminal Penalty--Whoever violates this Act shall be fined under this title or imprisoned for not more than 5 years, or both.” Congress has the ultimate authority to define impeachable offenses. If a statute such as the one described here were enacted, House impeachment resolutions could include the violation of such a statute in an impeachment article alleging the commission of a defined, federal statutory crime.
Reform 2: Require the making public of all final legal determinations by the President’s Office of Legal Counsel when they are issued so everyone can know the reasoning behind the President’s legal positions.[1]
In one case, former Attorney General Holder ignored the legal opinion of the Office of Legal Counsel when that opinion was that a preferred bill of the President -- which would have created a voting House Member for the District of Columbia even though doing so would require a constitutional amendment -- was unconstitutional.[2] In another case, an opinion of the Office of Legal Counsel concluding that the President could declare the Senate in recess when the Senate was in session (to allow the President to make a recess appointment) was so wrong on the law that the President’s actions were held unconstitutional by all nine Supreme Court Justices, including all those he appointed.[3] Whether the Office of Legal Counsel’s opinion is being ignored by the President, or whether its opinion is wholly unfounded, the American people have a right to know what that opinion is, absent exceptional circumstances involving sensitive information. Making the Office of Legal Counsel opinions public would also help expose instances in which that office determines a certain executive action might not be subject to judicial review, in which case a congressional response may be required.
Reform 3: Provide for private rights of action in legislation and more clearly define which entities are intended to be protected by which statutory provisions, and in which ways.
When a private party sues to enforce a legislative restriction on executive action, two threshold questions typically arise. First, does the individual have a private right of action to enforce the legislative restriction? Second, does the individual have standing? Congress has plenary control over the former and can meaningfully influence the latter. Congress decides who can sue to enforce legislative commands. Private parties may not sue to enforce any legislative provision; rather, courts require that plaintiffs have a private right of action (sometimes called a cause of action) to enforce the provision. The federal courts have grown increasingly less likely to infer a private right of action where Congress has not expressly provided one.[4] In traditional federal agency rulemaking, the Administrative Procedures Act provides a right of action for private parties to challenge federal regulations.[5] But the question is not as clear in less traditional circumstances, including the sort of unilateral executive actions that have become more common in recent years. Congress can help fix the problem by providing express private rights of action in legislation restricting executive action. This is especially important for appropriation riders that limit the use of federal funds by the executive branch. Congress does not have the same control over Article III standing because the Constitution requires that litigants show their injuries are concrete enough to constitute “cases and controversies” before they can be heard in federal court,[6] but Congress can influence how courts assess the question. When providing a private right of action, legislation could include language identifying the parties it intends to protect and articulating the injury those parties would suffer if the executive ignores the legislative restriction. Such language, although not conferring constitutional standing, would make it easier for the relevant private parties to argue that they have a cognizable, individualized injury that is fairly traceable to the unlawful executive action. Adding statutory private rights of action would allow for a wider universe of entities to file lawsuits to enforce provisions that have gone unenforced. Moreover, the addition of materials to legislation and legislative history that more clearly define whom Congress intends to protect by enacting various provisions would allow litigants to point to congressional intent when making arguments on behalf of their own standing to enforce statutes in court. Such private rights of action could also be added to the Internal Revenue Code so individual citizens who are harmed by IRS abuse could be empowered to sue for specific relief.
Reform 4: Enact a statute prohibiting enforcement actions or prosecutions by any federal agency that has not been reauthorized by Congress within a certain period of time (perhaps every five years).
Currently, many federal agencies are being funded even after their statutory reauthorizations have expired. Statutorily prohibiting federal agency enforcement actions and prosecutions unless such agencies are statutorily reauthorized by Congress would require Congress to periodically reevaluate the need for and performance of each agency during its previous existence before reauthorizing it, not reauthorizing it, or reauthorizing it in another form.
Reform 5: Provide for an automatic stay of certain regulatory rules, perhaps with some exceptions, that impose costs above a certain threshold and are subject to judicial challenge while also providing that, when a stay is imposed, judicial proceedings be expedited.
Under this reform, entities subject to regulations will not have to comply with burdensome (and sometimes permanent, for all practical purposes) changes imposed by a federal agency, when such regulations may ultimately be struck down by a court.
Reform 6: Require federal agencies, when issuing regulations, to publicly set out explicit metrics the agency expects can be measured and used in the future to determine whether the regulation produces more benefits than costs.
This would require federal agencies to specify precisely what problem a regulation is intended to address and how to measure its effects quantitatively. Federal regulators should be made to consider and publicly explain how the success or failure of their own regulations will be able to be measured, putting themselves and other interested parties on notice regarding how the regulators themselves believe the success or failure of their regulation can be measured. Potential future determinations of failure under such metrics would be particularly informative regarding whether that regulation should continue in effect. The large majority of federal agency rules provide no clear, measurable metrics that could be used to determine the rule’s effectiveness, or include a means of determining if the regulations had any impact at all. Regulators could also be required to gather data regarding relevant circumstances prior to the issuance of the regulation that could be subsequently compared to their own predictions regarding the regulation’s alleged improvement of those circumstances along various metrics. Consumer Products Safety Commissioner Joseph P. Mohorovic has endorsed such a policy, stating:
Recently, I have been dismayed to see that one aspect of rule review I find especially promising -- that of incorporating or embedding review criteria into rules during their formation -- seems to be getting too little attention from the American administrative state. Indeed, one review by Sofie Miller of the Regulatory Studies Center at The George Washington University found quite simply that “agencies are not preparing new regulations with ex post review in mind.” I would like to see CPSC lead our peer agencies in changing that culture … The idea behind incorporating retrospective review models into rules from the outset -- a prospective retrospective -- is that designing a rule with an eye to how it would be evaluated in the future can improve the quality of evaluation and make the future iteration of the agency more likely to conduct that evaluation in the first place. Moreover, including review models into rules during their formation will help promote a culture of review and candid reflection throughout the agency.
Reform 7: Prohibit duplicative and wasteful “pile-on” federal prosecutions designed to force settlements.
Congress increasingly grants multiple federal agencies regulatory authority over the same activities, inviting duplicative agency enforcement actions that, when misused, can pressure even innocent parties to comply with agency demands simply to avoid the huge costs of defending themselves against multiple agencies at once. In the Dodd-Frank financial regulatory law, for example, Congress not only created the Financial Stability Oversight Council (which consists of multiple agencies) to regulate in particular areas, but also gave both the Securities and Exchange Commission and the Commodities Futures Trading Commission independent authority to regulate the same conduct.[7] One reform might be to require federal agencies to coordinate their activities, so that multiple agencies don’t pursue the same target and each agency doesn’t unreasonably exert pressure for a separate recovery. The Department of Justice is the principal law enforcement arm of the entire government, and as such, if the Department of Justice initiates an investigation, others federal agencies might be made to stand down. Alternatively, someone at the Department of Justice might be empowered to act as a sort of traffic cop in situations in which federal agencies engage in overlapping law enforcement activity. This will also help in limiting agencies’ efforts to expand their authority -- outside of their statutory authority -- through settlement agreements.[8]
Reform 8: Enact requirements that help ensure the federal punishment fits the crime.
Establish a federal enforcement proportionality standard that applies to all federal enforcement actions and that requires taking into account who pays for alleged misconduct, so that, for example, culpable actors are made to pay instead of, for example, innocent shareholders. Also, require that criminal or civil sanctions (as opposed to compensatory damages) be conditioned on the defendants’ having had clear notice that the conduct was unlawful.
Reform 9: Enact requirements to help ensure that federal prosecutors and other enforcement officials are acting to protect the public interest and not to further private interests.
Eliminate prosecutors’ power to direct funds to private entities. Stop prosecutors and agencies from keeping a percentage, or the total amount, of government fines and settlements, a practice that skews enforcement incentives because prosecutors have a self-interest in the cases they bring, using them to increase their budgets outside the congressional appropriation process even if the public interest would require them to direct their efforts differently. Create an independent review process within the Department of Justice to give defendants protection from overly zealous prosecutors who use unjustified interpretations of the law to build their own reputations (with an eye toward potentially running for office), ignoring their obligation to “do Justice.” Curb regulation through enforcement in which prosecutors make threats of criminal enforcement to extract civil settlements or high statutory penalties.[9] Also, consider requiring federal prosecutors to fully disclose all evidence discovered that is favorable to the defendant. As John Hollway has written:
Perhaps the most common problem [regarding prosecutorial misconduct] is the failure to turn over evidence favorable to the accused -- called a Brady violation after the constitutional obligation established by Brady v. Maryland in 1963 … We should first do away with Brady’s confusing “materiality” requirement, which says that only evidence of material importance to the case must be turned over to the defense. This requires prosecutors to step into the shoes of defense attorneys and decide what evidence can be useful in defending a client, something they are ill-equipped to do. Instead, make the default standard full disclosure, with protections for client and witness confidentiality. This “open file” discovery has worked in states such as Ohio, Texas and North Carolina.
Reform 10: Create a formalized procedure through which either the House or Senate, or both, could challenge the President’s abuse of executive authority in federal court, with expedited judicial review procedures.
The ENFORCE the Law Act[10] would provide for expedited procedures under which the House or Senate, as an institution, could challenge presidential failures to faithfully execute the law in federal court.
Now here are some proposals to help restore Congress’ oversight authority.
Reform 1: Enact a statute denying federal officials their salaries and pensions if they are found in contempt of Congress.
As Professor Jonathan Turley has pointed out to Congress:
Congress can also impose fines or other financial penalties for conduct that does not rise to the level of an impeachable or a criminal offense as part of a statutory scheme or as part of its implied authority. For federal employees, pensions and salaries can be conditioned on neutral and generally applied performance standards. Congress could, for example, pass legislation that denies salary or pension payments to officials found in contempt of Congress.
Reform 2: Explore options for expediting the congressional subpoena enforcement process so Congress can in a timely manner get the information it needs to conduct oversight and legislate based on that oversight.
Congressional enforcement of subpoenas issued by House and Senate committees can be a difficult and time consuming process under current law, especially with regard to subpoenas issued to executive branch agencies and officials. When faced with a refusal to comply with a congressional subpoena, Congress has three options: use its inherent contempt power, refer the matter to the U.S. Attorney for prosecution, or bring a civil action to enforce the subpoena. Inherent contempt has not been used since 1935, and the Justice Department has consistently interpreted the congressional criminal contempt statute not to apply to the executive branch. The third option, civil enforcement, can be a time-consuming process. There can be delays at the outset in getting an executive agency to acknowledge the subpoena and indicate whether it will comply, and further delays by the executive branch caused by its asserting privileges over documents and testimony that may be subject to a legal privilege. Moreover, once a civil case gets to court, litigation proceedings to enforce a subpoena can drag on, quite possibly until after an election or a President or official has left office. Congress might explore options for expediting the congressional subpoena enforcement process so that Congress can in a timely manner get the information it needs to conduct oversight and legislate based on that oversight. If subpoena enforcement were more readily available, it would make it more likely that the executive branch would comply with subpoenas and therefore obviate the need for enforcement. Some options include putting statutory deadlines on compliance with subpoenas and the production of privilege logs if a privilege is going to be asserted by the executive branch. Further, Congress might statutorily provide for expedited judicial review of congressional subpoenas aimed at the executive branch in order to speed up the litigation process. Congress could also provide by statute that when the head of any department or agency of the United States, or any other officer or employee of the United States, to whom such subpoena is issued, fails to comply with any part of such subpoena, and a final judgment of a court of competent jurisdiction orders such compliance, such head of the department or agency, or other officer or employee of the United States, shall be denied all or part of their salary as necessary to offset the amount of the reasonable expenses incurred as a direct result of the failure to comply, including reasonable attorneys’ fees and costs. The court could also be authorized to impose additional appropriate sanctions, including other directives of a non-monetary nature, or, if warranted for effective deterrence, an order directing payment of a penalty into the court. House and Senate rules could also be amended to prohibit the appropriation of federal funds to pay executive branch officials who are in contempt of Congress.
Reform 3: Require the federal courts to flag federal government attorneys whom they have admonished in court for unprofessional conduct.
The Administrative Office of the United States Court administers the PACER (Public Access to Court Electronic Records) service that makes court pleadings electronically available to the public. Information searchable on PACER already includes a listing of all parties and participants, including judges, attorneys, and trustees; a compilation of case related information such as cause of action, case number, nature of suit, and dollar demand; a chronology of dates of case events entered in the case record; and other information. A potential reform proposal would be to have the system include the ability to search cases for instances in which a federal government attorney was admonished for unprofessional conduct by a presiding federal judge. Such a proposal might read as follows: “Under the auspices of the United States Judiciary and the Administrative Office of the United States Courts, the PACER (Public Access to Court Electronic Records) service shall include information regarding whether or not the court, during the course of a court proceeding, admonished for unprofessional conduct, in writing or verbally, any attorney representing the federal government, and which attorneys were so admonished.” This would incentivize federal government attorneys to behave more professionally.[11]
Some practical advice: Committee Members should agree to yield their hearing question time to a Lead Member who would use it to ask witnesses a sustained line of increasingly narrow questions.
A last piece of practical advice to Members of Congress regards how Members should structure the questioning of witnesses at a hearing to increase the chances that lines of questioning could probe deeply enough to be meaningful. Currently, you often see Members of Congress at hearings using their allotted five-minutes’ worth of time, not for its primarily intended use for the questioning of witnesses, but instead for making political statements intended for use on social or other media to promote whatever policies they support. That’s fine as a general matter, but it fails to take advantage of the opportunity a hearing affords to subject an executive branch or other witness to a sustained, carefully worded line of questioning designed to pin down a witness on specific answers to specific questions. Many witnesses will avoid answering direct questions or take up a Member’s five minutes of question time with long-winded but non-responsive comments, so by the time a Member’s five minutes are up, no new information has been gained, and it’s then on to the next Member to do the same thing with the same result.
So what to do to prevent that? Members should meet in advance of a hearing and formulate something like the following plan: Select a Member on the committee who has a particularly keen interest in the matter to be explored at the hearing, perhaps because their district has a particular interest in the issue, or because they have independent subject matter expertise in the area, or otherwise. Let’s call that Member the “Lead Member.” Then, have other Members with less interest or expertise in the subject agree to yield their own five minutes of question time to the Lead Member when the time comes. That way, the Lead Member will be able to get through an organized series of extended questions with a single witness, going from more general to more specific questions, that don’t rehash covered ground but instead increasingly focus on the most relevant questions at hand, and potentially finally getting a reluctant witness to provide some useful information.
That’s how various committee chairmen ran their hearings in the past to excellent effect, but one rarely sees this process being used by Members in our social media age, when Members are very reluctant to give up their five minutes of question time because that’s five minutes’ worth of cameras pointed at them, which might get them some attention in the media they usually struggle to get. But if committee Members are ever more interested in answers to questions from witnesses than statements from themselves, then something like the plan outlined here would go a long way toward informing the public about what’s going on in the executive branch, or anywhere else of interest to the committee.
Links to all essays in this series: Part 1; Part 2
[1] See OLC Reporting Act of 2008, S. 3501, 110th Cong. (2008) (as reported by S. Comm. on the Judiciary, Sept. 16, 2008) (introduced by Sens. Feingold and Feinstein); Office of Legal Counsel Reporting Act of 2008, H.R. 6929, 110th Cong. (introduced by Rep. Miller). Both bills propose amendments to 28 U.S.C. § 530D to oblige the Attorney General to report to Congress on non-enforcement of statutes based on OLC opinions claiming constitutional avoidance based on the OLC’s reading of presidential power under Article II. Such an amendment has been supported by former OLC lawyers and scholars. See Hearing on Restoring the Rule of Law: Before the Subcomm. on the Constitution of the S. Comm. of the Judiciary, 110th Cong. (2008) (statement of Walter Dellinger, Visiting Professor of Law, Harvard Law School); Trevor W. Morrison, Executive Branch Avoidance and the Need for Congressional Notification, Colum. L. Rev. Sidebar (February 15, 2007).
[2] See Hans Bader, “Obama Administration Ignored Constitution and Politicizes Justice on D.C. ‘Voting Rights’ Bill,” Examiner.com (April 15, 2009), available at http://web.archive.org/web/20121226032646/http://www.examiner.com/article/obama-administration-ignores-constitution-and-politicizes-justice-on-d-c-voting-rights-bill.
[3] NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
[4] See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001).
[5] See 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”)
[6] U.S. Constitution, Article III, § 2, cl. 1; see also Raines v. Byrd, 521 U.S. 811 (1997); Flast v. Cohen, 392 U.S. 83 (1968).
[7] See Jacob E. Gersen, Administration Law Goes to Wall Street: The New Administrative Process, 65 Admin. L. Rev. 689, 709-12 (2013).
[8] See https://instituteforlegalreform.com/research/constitutional-constraints-provisions-limiting-excessive-government-fines/.
[9] See https://instituteforlegalreform.com/research/unprincipled-prosecution-abuse-of-power-and-profiteering-in-the-new-litigation-swarm/.
[10] See H.R. 4138 in the 113th Congress.
[11] On May 19, 2016, Judge Andrew Hanen of the Southern District of Texas released a 28-page opinion that took the Justice Department and its lawyers to task for violating multiple ethics and court rules by intentionally misleading and lying to the court in the case of United States v. Texas, the case in which 26 states are suing the Obama Administration challenging the constitutionality of its unilateral immigration program. In his opinion, although he could have done so, Judge Hanen decided not to strike the government’s pleadings (and thus its defense) in the lawsuit, even though the government’s “egregious conduct merits it” because of the “national importance of the outcome of this litigation.” Doing so would also be “unfair, and perhaps even disrespectful, to the Supreme Court,” in which the case was currently pending. He could also have awarded attorneys’ fees against the government and its DOJ attorneys. However, those fees would simply “be paid by taxpayers of the United States.” Thus, the Justice Department “would go unscathed.” There would be “no corrective effect and no motivation for the Government’s lawyers to act more appropriately in the future” because “there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department.” The episode illustrates the need for greater transparency highlighting the unethical and unprofessional conduct of federal government lawyers. While Judge Hanen’s opinion received some attention in the media, many other examples of judges’ chastising federal government lawyers for unethical or unprofessional behavior go otherwise unnoticed. A reform such as the one outlined above might change that.