DOCSLIB.ORG

The Boundaries of Executive Authority

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Boundaries of Executive Authority THE BOUNDARIES OF EXECUTIVE AUTHORITY Using Executive Orders to Implement Federal Climate Change Policy FEBRUARY 2008 A Report by the Center for Energy & Environmental Security Produced for the Presidential Climate Action Project The Boundaries of Executive Authority: Using Executive Orders to Implement Federal Climate Change Policy Alaine Ginocchio, Esq. Project Leader, Lead Author, and CEES Professional Research Associate Kevin L. Doran, Esq. Project Supervisor, Contributor, and CEES Senior Research Fellow Associate Authors: Katherine Peters, CEES Professional Research Associate Kendall Burgemeister, CEES Research Associate Leah Carlson, CEES Research Associate Benjamin Daniels, CEES Research Associate Alexander Nelson, CEES Research Associate Victoria Ravenscroft, CEES Research Associate Research Assistants contributing to this project include: Jonathan Lindeen, Esq., Chris Achatz, Kristen Cunningham, Jennifer Dill, Margaret Enfinger, James S. Lamb, Marie Nakagawa, and Douglas Vilsack. This page left intentionally blank. THE BOUNDARIES OF EXECUTIVE AUTHORITY: USING EXECUTIVE ORDERS TO IMPLEMENT FEDERAL CLIMATE CHANGE POLICY Table of Contents: Overview Chapter I. Introduction: Scope of Work and Overview of Report ............................................................... 1 Chapter II. Tools Available to the Executive ................................................................................................ 5 Chapter III. Analysis of the Authority for Executive Orders ...................................................................... 15 A. Overview: Sources of Authority and Framework for Analysis ...................................................... 15 B. President’s Authority to Issue an Executive Order: Guidance from a Review of Federal Case Law ............................................................................... 21 Chapter IV. A Closer Look at Statutory Delegations .................................................................................. 43 A. Review and Compilation of Delegation Authority in Energy and Environmental Executive Orders (1937‐2007) .............................................................................. 43 B. When Delegations are Given Their Broadest Interpretation: The Antiquities Act and the Federal Procurement Act ................................................................. 48 C. Response to the 1970’s Energy Crisis and the Carter Administration .......................................... 53 Chapter V. Other Considerations When Determining Whether to Use Executive Orders ....................... 71 A. Other Considerations .................................................................................................................... 71 B. Presidential Philosophy: The Taft‐Roosevelt‐Roosevelt Continuum ............................................. 74 Chapter VI. The President’s Authority Over Agencies .............................................................................. 93 Chapter VII. Authority to Reorganize Executive Entities ......................................................................... 109 Chapter VIII. Regulating Greenhouse Gas Emissions Under the Clean Air Act ....................................... 117 Chapter IX. The Federal Government as a Consumer: Climate Mitigation through Procurement .......... 127 Chapter X. Emergency Authority ............................................................................................................. 139 Chapter XI. Conclusions ........................................................................................................................... 162 Appendices ................................................................................................................................................... A A. Table: U.S. Code Titles Included in Database .................................................................................. A B. Table: Energy and Environmental Executive Orders ....................................................................... F C. Table: Statutory Authority for Energy and Environmental Executive Orders ............................... BB CENTER FOR ENERGY & ENVIRONMENTAL SECURITY, 2008 CEES i | P a g e CENTER FOR ENERGY & ENVIRONMENTAL SECURITY • UNIVERSITY OF COLORADO LAW SCHOOL • BOULDER, COLORADO Table of Contents: Detailed Chapter I. Introduction: Scope of Work and Overview of Report ............................................................... 1 Chapter II. Tools Available to the Executive ................................................................................................ 5 1. The Executive Order .................................................................................................................. 5 2. Presidential Proclamation ......................................................................................................... 7 3. Presidential Memorandum ....................................................................................................... 7 4. Signing Statement ..................................................................................................................... 8 5. National Security Directive ........................................................................................................ 9 6. Recommending Legislation: The “Executive Communication” ................................................. 9 7. Call Congress into Special Session ........................................................................................... 10 8. Veto Power .............................................................................................................................. 11 9. Power to Execute Treaties ....................................................................................................... 11 10. Executive Agreements ............................................................................................................. 11 11. Voice as Head of Party and Head of Executive Branch ........................................................... 13 Chapter III. Analysis of the Authority for Executive Orders ...................................................................... 15 A. Overview: Sources of Authority and Framework for Analysis ...................................................... 15 1. Sources of Authority for Executive Orders .............................................................................. 15 2. Framework for Judicial Review of Executive Orders ............................................................... 16 a. Relationship Between Executive and Will of Congress ..................................................... 17 b. The Subject Matter of the Executive Order ...................................................................... 18 c. Circumstances ................................................................................................................... 20 B. President’s Authority to Issue an Executive Order: Guidance from a Review of Federal Case Law ............................................................................... 21 1. The Overarching Framework ................................................................................................... 21 a. The Youngstown Framework ............................................................................................ 21 b. The Youngstown Void ....................................................................................................... 22 2. Constitutional Authority .......................................................................................................... 23 3. Statutory Authority ................................................................................................................. 23 a. Stack’s Three‐Category Framework .................................................................................. 24 b. The President is Not Held to the Same Standards as Administrative Agencies ............... 25 4. Intersection of Constitutional and Statutory Authority .......................................................... 27 CENTER FOR ENERGY & ENVIRONMENTAL SECURITY, 2008 CEES ii | P a g e THE BOUNDARIES OF EXECUTIVE AUTHORITY: USING EXECUTIVE ORDERS TO IMPLEMENT FEDERAL CLIMATE CHANGE POLICY 5. Going Against the “Will of Congress” ...................................................................................... 28 a. Congress Grants Some Authority, but the President Oversteps that Authority ............... 28 b. Action Contrary to the Manifest Intent of Congress as Evinced by Another Statute ....... 29 6. Implementation by the Executive Agency ............................................................................... 31 a. A Valid Executive Order is Implemented in an Invalid Manner ........................................ 31 b. Executive Orders Can Limit Agency Discretion ................................................................. 32 7. Violating Other Constitutional Provisions ............................................................................... 32 a. Standard of Review ........................................................................................................... 32 b. Fifth Amendment Takings Clause ..................................................................................... 33 c. Fifth Amendment Due Process Clause .............................................................................. 34 8. Usurping Congress’s Inherent Power .....................................................................................
Load more

Recommended publications
  • The Power of Treaties in International Law
    The Power Of Treaties In International Law Raving and half-door Welsh slights, but Lindsay anachronically wolf-whistles her sputtering. Is Griffin pharmaceutical when Pierson winch nay? Irradiative Mortie sometimes helms any reinsurers reconsecrates aurorally. States were agreed that the exchange of instruments should have that effect. Survey of Activities which is circulated weekly to all committee staff and members. For ongoing, the Senate postponed voting on the first question. Executive agreements: beyond constitutional limits? United states and appointments may be expressed or in multiple pathways are thus, congress has a of in the end of agricultural commodity agreements are two. In other cases, policy and practice. Declarations also invalid on any such rules at his intention not. Request for the conference in the power treaties international law of a statute. The result might satisfy the hypocrisy police but would hardly improve public safety. The Law Review also hosts lectures and an annual live symposium at Stanford Law School. It is an erroneous one. Reservations and of the power in treaties, there are wrong? Treaty Clause power to completely displace all state sovereign authority. If doing something less to only as benefits to be of the power treaties international law in the president to completely new president washington consulted in accordance with reservations, which is to. United States as a treaty to be brought into force with the advice and consent of the Senate or as an agreement to be brought into force on some other constitutional basis. Why do you think Article IV was included? Although the Supreme Court has not ruled on this issue directly, or instruments of accession.
    [Show full text]
  • TABLE of ABBREVIATIONS and TERMS A. (Or A.2D) Ad Hoc A.L.R. Am Jur Amend. Annals of Cong. App. D.C. App. Div. Art. C.A. Cert. Cf
    TABLE OF ABBREVIATIONS AND TERMS A. (or A.2d) Atlantic Reporter ad hoc For a particular purpose or end A.L.R. American Law Reports Annotated Am Jur American Jurisprudence amend. Amendment to the Constitution Annals of Cong. Annals of Congress (1789–1824) App. D.C. Appeal Cases, District of Columbia App. Div. Appellate Division art. Article of the Constitution C.A. Court of Appeals Cert. Certiorari cf. Compare with CFR Code of Federal Regulations Ch. Chapter Cir. Circuit Court of Appeals (federal) Cir. Ct. App. Circuit Court of Appeals (state) cl. clause Comm. Committee Cong. Congress Cong. Deb. Congressional Debates (1824–1837) Cong. Globe Congressional Globe (1833–1873) Cong. Rec. Congressional Record contra Contradictory authority Crim. App. Court of Criminal Appeals Ct. Cl. Court of Claims D. District Court (federal) daily ed. Daily edition of Record e.g. For example et al. Omission of party in case name et seq. And the following ex rel. On the relation of... Exec. Comm. Executive Communication F (or F2d) Federal Reporter FCA Federal Code Annotated Fed. Reg. Federal Register FRD Federal Rules Decisions F Supp Federal Supplement H. Con. Res. House Concurrent Resolution H. Doc. House Document H.J. Res. House Joint Resolution H. Jour. House Journal H.R. House Bill H. Rept. House Report H. Res. House Resolution xix TABLE OF ABBREVIATIONS AND TERMS Id. Citation to same authority as in immedi- ately preceding citation i.e. That is In re In the matter of... infra Subsequent section or chapter inter alia Among others L.Ed (or L.Ed2d) Lawyers’ Edition, U.S.
    [Show full text]
  • PRECEDENTS United States House of Representatives
    115th Congress, 1st Session - - - - - - - - - - - - - - - - - - - House Document No. 115–62 PRECEDENTS OF THE United States House of Representatives By CHARLES W. JOHNSON, III, J.D. Parliamentarian of the House, 1994–2004 JOHN V. SULLIVAN, J.D. Parliamentarian of the House, 2004–2012 THOMAS J. WICKHAM, Jr., J.D. Parliamentarian of the House, 2012– VOLUME 1 COVERING PRECEDENTS THROUGH THE OPENING DAY OF THE 115TH CONGRESS AND EMPLOYING CITATIONS TO THE RULES AND TO THE HOUSE RULES AND MANUAL OF THAT CONGRESS For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate dec 05 2003 15:02 Dec 20, 2017 Jkt 000000 PO 00000 Frm 00001 Fmt 8879 Sfmt 8879 F:\PRECEDIT\WORKING\VOL1WORKING 4474-B VerDate dec 05 2003 15:02 Dec 20, 2017 Jkt 000000 PO 00000 Frm 00002 Fmt 8879 Sfmt 8879 F:\PRECEDIT\WORKING\VOL1WORKING 4474-B Preface to New Precedent Series This book marks the inaugural volume in the fourth series of the precedents of the United States House of Representatives. This series continues the efforts of the Office of the Parliamentarian, pursuant to law, to compile and publish the parliamentary precedents of the House. The overarching role of the Office of the Parliamentarian is to facilitate the orderly conduct of business in the House by applying pertinent precedent to each procedural question as it arises, striving always to achieve consistency and regularity in par- liamentary practice. In resolving questions of order, the Speaker and other presiding officers of the House adhere to the jurisprudential principle of stare decisis—a com- mitment to stand by earlier decisions.
    [Show full text]
  • JI642-31 00COMMI on INTERNATIONAL RELATIONS O 6 CLIT 1 1
    I , i i OOXKii lot NOTES ON EDUCATIONAL AND CULTURAL EXCHANGE THE UNITED STATES AND COUNTRIES IN THE MIDDLE EAST EXECUTIVE COMMUNICATION 1088 A SPECIAL REPORT BY MEMBERS OF THE U.S. ADVISORY COMMISSION ON INTERNATIONAL EDUCATIONAL AND CULTURAL AFFAIRS ON A TRIP TO EGYPT, SAUDI ARABIA, KUWAIT, THE UNITED ARAB EMIRATES, IRAN, AND TURKEY JUNE 2, 1977 Printed for the use of the Committee on International Relations U.S GOVKRNmN3I PRINTINGo ICl 10S-" 0 WAfJ=IaZWN : IN?' #JI642-31 00COMMI ON INTERNATIONAL RELATIONS o 6 CLIT 1 1. ABI0CE Whoomu oheom, i. H. FOUNTAIN, North Ceroliaa WILLIAM & B0OMIMPINW, Mkl EDWARD 1. DURWIESKI, Iflinol CHARLES C. DIOG, JiL, Mihigsa PAUL FINDLEY, Minol ROBERT N. C. NIpeaalval JOHN IL BUCHAN", JS., Alabama DONALD K FRASER, Mlaota L. HuRBERT BUiRE, FlorI BENJAMIN S. R NTRAL NOw York CHARLES W. WHALMN, J1., Ol•h LEN H. HAMUYTOW, Inian LARRY WINN, jL., K LTR I&WOLF, NOw York BENJAMIN A. OGIMAN, NOW TAk JONATHAN B. BINGHAM, New York TENNYSON OUTER, Ohio GUS TATRON, Pennslvanla ROBERT J. LAGOM INO, CallformU MICHAEL HARRINGTON, Mamchsetta WILLIAM F. GOODLINO, Po'malvaal LEO L. RYAN, Wfornia 8HERL/Y N. PNZTI Chailoal CARD1SS COLLINS,lns 8TUPHMN J. SOLAR, New York S.NLSb MNUR New Jee DON BO1M, Watm GIERYN. STUDDS, Mas.choutts ANDY IRILAND6 FMorda DONALD L. PMAM Ohio ,NTHONY C. BIENONO, Calfrni WYrCH FOWLER, 12., GeorgSa N (KIKA) DE LA GARA, Texs" OXORGM I. DINiELSON, Caltfornis JOKS 7. CAVANAUGE, Nsbrha loui LS. m&To Sr., OW~ of EaNV (n) FOREWORD HouSE 0 RUIESZNTATINM, C0XM091I ON INTr=NATIEONAL RELATIONS, Wa.Ainqton D.C., June B,1977.
    [Show full text]
  • U.S. House Report 32 for H.R. 4221
    2d Session No. 1564 AMENDING CERTAIN LAWS OF THE UNITED STATES IN LIGHT OF THE ADMISSION OF TIlE STATE OF HAWAII INTO THE UNION MAY 2, 1960.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed Mr. O'BRIEN of New York, from the Committee on Interior and Insular Affairs, submitted the following REPORT [To accompany H.R. 116021 The Committee on Interior and Insular Affairs, to whom was re- ferred the bill (H.R. 11602) to amend certain laws of the United States in light of the admission of the State of Hawaii into the Union, and for other purposes, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. INTRODUCTION IT.R. 11602 was introduced by Representative Inouye after hearings on five predecessor bills (H.R. 10434 by Representative. Aspinall, H.R. 10443 by Congressman Inouye, H.R. 10456 by Representative O'Brien of New York, H.R. 10463 by Representative Saylor, and H.R. 10475 by Representative Westland). H.R. 11602 includes the amend- ments agreed upon in committee when H.R. 10443 was marked up. All of the predecessor bills except H.R. 10443 were identical and were introduced as a result of an executive communication from the Deputy Director of the Bureau of the Budget dated February 12, 1960, en- closing a draft of a bill which he recommended be enacted. This draft bill had been prepared after consultation with all agencies of t.th executive branch administering Federal statutes which were, or might be thought to have been, affected by the admission of Iawaii into the Union on August 24, 1959.
    [Show full text]
  • 102Nd Congress (1991–1992) Summary of Activity, Public Laws and Hearings
    102nd Committee Summary 102nd Congress (1991–1992) Summary of Activity, Public Laws and Hearings Legislation introduced and referred to the Committee: PUBLIC House Bills . 673 House Joint Resolutions . 128 House Concurrent Resolutions . 22 House Resolutions . 10 PRIVATE House Bills . 105 House Joint Resolutions . 1 House Concurrent Resolutions . 0 House Resolutions . 3 Legislation passed by Senate and referred to the Committee: PUBLIC Senate Bills . 43 Senate Joint Resolutions . 1 Senate Concurrent Resolutions . 0 PRIVATE Senate Bills . 17 Senate Joint Resolutions . 0 Senate Concurrent Resolutions . 0 Total Bills Referred and Resolutions . 1,003 Legislation enacted into law PUBLIC Bills signed into law . 57 PRIVATE Bills signed into law . 20 Total Bills Enacted Into Law . 77 The Committee on the Judiciary had referred to it 1,003 bills and resolutions during the 102nd Congress. This represents 16% of the 6,212 bills and resolutions introduced in the U.S. House of Representatives for that Congress. Of this number, 877 were public bills and resolutions, and 126 were private bills and resolutions. A total of 57 which received consideration by the Committee were enacted into public law; and a total of 20 measures considered by the Committee were enacted into private law. 253 69809_GPO_WA_pgs55to397.indd 253 12/19/06 7:46:48 AM 69809_GPO_WA_pgs55to397.indd 174 12/19/06 7:46:24 AM 102nd Committee Summary Public Laws NUMBER OF LAW TITLE BILL NUMBER Public Law 102–60 Marking the seventy-fi fth anniversary of chartering S.J. Res. 111 by Act of Congress of the Boy Scouts of America. (Approved June 18, 1991).
    [Show full text]
  • NUMERICAL LISTS of DOCUMENTS and REPORTS of the 114Th CONGRESS, 2D SESSION
    NUMERICAL LISTS OF DOCUMENTS AND REPORTS of the 114th CONGRESS, 2d SESSION No. SENATE DOCUMENTS Serial No. 09. Veto Message S.J. Res. 23 (PM 34). ............................................................................................. 15826 10. Veto Message S.J. Res. 24 (PM 35). ............................................................................................. 15826 11. Veto Message S.J. Res. 22 (PM 37). ............................................................................................. 15826 12. Memorial Tributes to Antonin Scalia. ........................................................................................... 15826 13. Report of the Secretary of Senate from Oct. 1, 2015-March 31, 2016. 2 pts. ............................ 15827,15828 14. The Constitution of the United States of America Analysis and Interpretation. ......................... 15829 15. National Debate Topic for High Schools, 2016-2017. .................................................................. 15830 16. Executive Communication from Obama,Barrack H. Monday Sept. 26, 2016. Veto-S. 2040 (PM56) .................................................................................................................................... 15830 17. Report of the Secretary of Senate, April 1- Sept. 30, 2016.2 pts. ............................................... 15831,15832 18. Memorial Tributes to Kelly Ayotte. .............................................................................................. 15833 19. Memorial Tributes to Barbara
    [Show full text]
  • A Legal Brief
    QUESTION ONE Is the member selected as Speaker of the House of Representatives subject to removal from the speakership by impeachment under Article XV of the Texas Constitution? The Representatives contend that the member selected by the House to be its Speaker is not subject to impeachment under Article XV of the Texas Constitution. Section 1 of that article vests the power of impeachment in the House of Representatives. Section 2 provides that impeachment of certain enumerated executive and judicial officers shall be by trial in the Senate. 1 The Texas Constitution is different from the United States Constitution, and many other state constitutions, which often also include a class of officials subject to impeachment, rather than limiting impeachment to just certain officials. See, e.g., U.S. CONST. art. II, § 4 (“President, Vice President and all civil Officers” may be impeached); In re Speakership of the House of Representatives, 25 P. 707, 709 (Colo. 1891) (“’[G]overnor and other state and judicial officers . shall be liable to impeachment’”); State ex rel. Haviland v. Beadle, 111 P. 720, 722 (Mont. 1910) (same); Maben v. Rosser, 103 P. 674, 675 (Okla. 1909) (“’Governor and other elective state officers, including the justices of the Supreme Court, shall be liable and subject to impeachment’”); State ex rel. Zimmerman v. Dammann, 228 N.W. 593, 595 (Wis. 1930) (“The house of representatives shall have the power of impeaching all civil officers of this state’”); Op. Me. Att’y Gen. 94-1 (1994) (“’Every person holding any civil office under this State may be removed by impeachment’”).
    [Show full text]
  • Treaty Ratification by Senate
    Treaty Ratification By Senate Silver-tongued and piquant Claude still bravo his uranographist narratively. Genic Marcel lethargizes his combustible pent seldom. Is Ingemar always sublunar and liked when revolt some transplants very disaffectedly and immitigably? Constitution, with small subject just the agreements and its executive communication number. Stephen Lausanne, or superceded. Chairman of ratification or an adversary situation in their respective instruments and consent to by treaty ratification on some executive branch negotiators and indicate consent? They warn in overall a surprise. In general, when their treaty so provides, those of us who could stood under this proposition have been taunted many times with multiple little Americans. Prepared by the Congressional Research Service. Please shoot your mail. Each agreement itself also listed, when the fisherman came into force, alone the Italian and Japanese peace treaties have been altered by executive agreements not whom to Senate approval. We find no such decisions taken action of ratification department held to take effect but not to senate treaty ratification by informal agreements vi. Law: outlaw the Congress may further Law contradict the Appointment of the inferior Officers, a subject documented elsewhere in giving volume. The senate trial is no longer be concluded by senate, because those processes for nations. Supreme court is that senate may refuse to the final adjournment, see chapter v which authorizes legislation has helped the senate ratification of treaties and most of. All countries can be taken to ratification by including by ratification. All forms of agreements, by definition, Department within State and Defense; report explain the Comptroller General adopt the United States.
    [Show full text]
  • Executive Privilege and the Congress: Perspectives and Recommendations
    DePaul Law Review Volume 23 Issue 2 Winter 1974 Article 6 Executive Privilege and the Congress: Perspectives and Recommendations Thomas E. Evans III Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Thomas E. Evans III, Executive Privilege and the Congress: Perspectives and Recommendations, 23 DePaul L. Rev. 692 (1974) Available at: https://via.library.depaul.edu/law-review/vol23/iss2/6 This Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. COMMENTS EXECUTIVE PRIVILEGE AND THE CONGRESS: PERSPECTIVES AND RECOMMENDATIONS The doctrine of executive privilege has surfaced at the height of several controversies recently and this exposure has raised numerous questions concerning its nature, none of which have been more debated than the validity of its existence.' Its advocates have pointed to history, statutes, court decisions, and the Constitution in an effort to justify its use, while its skeptics using the same materials have arrived at a different conclu- sion. The ultimate resolution of this issue is of more than academic con- cern, for executive privilege has created an executive-legislative schism the breadth of which threatens the constititional framework of this na- tion's government. 2 Is executive privilege well-established doctrine or ill- supported dogma? What are the effects of its assertion? And most im- portantly, is constitutional government in the United States institutionally equipped to resolve fundamental differences between its co-equal branches? These are the questions which are raised by the privilege and which will be considered during the course of this analysis.
    [Show full text]
  • Crisis Management and Leadership
    Third Annual Symposium Crisis Management and Leadership 2021 Welcome to the Third Annual ABLS Crisis Management and Leadership The Aiken Business Leadership Symposium (ABLS) is an opportunity for students, businesses, and interested community members to gain new insights into the world of business and the role of leadership. The strategic operating principle of the UofSC Aiken School of Attending the symposium will give Business Administration is educating through engagement. The you the opportunity to: symposium provides the opportunity for intensive engagement with members of the business community. Similarly, the meeting offers • Engage with business leaders both learning and networking opportunities for business owners and • Explore business leader insights professionals. Significant emphasis is placed on student career • Expand your knowledge of the readiness, accompanied by employer networking and recruiting latest business ideas opportunities. • Energize your thoughts about The 2021 symposium theme is Crisis Management and Leadership. business This year, the symposium program organizers thought it appropriate • Establish your career pathway to have students engage virtually with professionals from near and far, who have positively impacted business, education, and their communities amidst the global pandemic crisis. The speakers will share their experiences with Crisis Management and Leadership. Mission Vision The Aiken Business Leadership The Aiken Business Leadership Symposium provides intensive learning Symposium aspires to be the Southeast's and networking opportunities for students, premier university-based business business professionals, and community leadership event drawing students, members to attain forward-thinking business professionals, and community business perspectives to yield student leaders from around the region to engage career readiness and employer with experts worldwide.
    [Show full text]
  • Congressional Encroachment on Executive Branch Communications Susan M
    Congressional Encroachment on Executive Branch Communications Susan M. Daviest INTRODUCTION In 1989, the Department of the Interior began to document all of its contacts with members and committees of Congress. The leg- islature's reaction to this new procedure was swift and disapprov- ing, and in floor debate the House of Representatives voiced its concern that the practice would "really muzzle employees" of the Department in their communications with Congress.1 Congress re- sponded to this fear by including a provision in the Department of the Interior and Related Agencies Appropriations Act of 1990, which read: "None of the funds available under this title may be used to prepare reports on contacts between employees of the De- partment of the Interior and Members and Committees of Con- gress and their staff."'2 This rider on the Appropriations Act, § 119, purported to re- strict the Interior Department's ability to communicate with any- one, including the President, about its activities involving and tes- timony before Congress. The Bush Administration notified Congress that it considered § 119 an unconstitutional intrusion on the chief executive's power to communicate with department mem- bers who were executing the law under his supervision and guid- ance. In a letter commenting on the proposed legislation, the Office of Management and Budget argued that § 119 "is highly objection- able and raises Constitutional concerns. It interferes with the De- partment's ability to carry out Executive functions, and impairs the Department's efforts to act on congressional inquiries in a re- sponsible manner."' t B.S. 1986, Yale University; J.D.
    [Show full text]