Congress Reconsidered
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No. 19-5331 in the UNITED STATES COURT of APPEALS for the DISTRICT of COLUMBIA C
USCA Case #19-5331 Document #1871493 Filed: 11/16/2020 Page 1 of 87 [ORAL ARGUMENT SCHEDULED FOR FEBRUARY 23, 2021] No. 19-5331 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff-Appellee, v. DONALD F. MCGAHN, II, Defendant-Appellant. On Appeal from the United States District Court for the District of Columbia EN BANC BRIEF FOR APPELLANT JEFFREY BOSSERT CLARK Acting Assistant Attorney General SOPAN JOSHI Senior Counsel to the Assistant Attorney General MARK R. FREEMAN MICHAEL S. RAAB COURTNEY L. DIXON DENNIS FAN Attorneys, Appellate Staff Civil Division, Room 7243 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 353-8189 USCA Case #19-5331 Document #1871493 Filed: 11/16/2020 Page 2 of 87 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel certifies: A. Parties and Amici The defendant-appellant is Donald F. McGahn, II. The plaintiff-appellee is the Committee on the Judiciary of the United States House of Representatives. Amici curiae in this Court are: Republican legal experts, former government officials, and former members of Congress (Steve Bartlett, Jack Buechner, Tom Coleman, George Conway III, Mickey Edwards, Stuart Gerson, Gordon Humphrey, Bob Inglis, James Kolbe, Steven Kuykendall, Jim Leach, Mike Parker, Thomas Petri, Trevor Potter, Reid Ribble, Jonathan Rose, Paul Rosenzweig, Peter Smith, J.W. Verret, Dick Zimmer); James Murray; former members of Congress and former Executive Branch officials (Thomas Andrews, William Baer, Brian Baird, Michael Barnes, John Barrow, Douglas Bereuter, Howard Berman, Rick Boucher, Barbara Boxer, Bruce Braley, Carol Mosley Braun, Roland Burria, Lois Cappa, Jean Carnahan, Robert Carr, Rod Chandler, Linda Chavez, Bill Cohen, James Cole, Jerry Costello, Mark S. -
The Breadth of Congress' Authority to Access Information in Our Scheme
H H H H H H H H H H H 5. The Breadth of Congress’s Authority to Access Information in Our Scheme of Separated Powers Overview Congress’s broad investigatory powers are constrained both by the structural limitations imposed by our constitutional system of separated and balanced powers and by the individual rights guaranteed by the Bill of Rights. Thus, the president, subordinate officials, and individuals called as witnesses can assert various privileges, which enable them to resist or limit the scope of congressional inquiries. These privileges, however, are also limited. The Supreme Court has recognized the president’s constitutionally based privilege to protect the confidentiality of documents or other information that reflects presidential decision-making and deliberations. This presidential executive privilege, however, is qualified. Congress and other appropriate investigative entities may overcome the privilege by a sufficient showing of need and the inability to obtain the information elsewhere. Moreover, neither the Constitution nor the courts have provided a special exemption protecting the confidentiality of national security or foreign affairs information. But self-imposed congressional constraints on information access in these sensitive areas have raised serious institutional and practical concerns as to the current effectiveness of oversight of executive actions in these areas. With regard to individual rights, the Supreme Court has recognized that individuals subject to congressional inquiries are protected by the First, Fourth, and Fifth Amendments, though in many important respects those rights may be qualified by Congress’s constitutionally rooted investigatory authority. A. Executive Privilege Executive privilege is a doctrine that enables the president to withhold certain information from disclosure to the public or even Congress. -
Congress's Authority to Influence and Control Executive
Congress’s Authority to Influence and Control Executive Branch Agencies Updated December 19, 2018 Congressional Research Service https://crsreports.congress.gov R45442 SUMMARY R45442 Congress’s Authority to Influence and Control December 19, 2018 Executive Branch Agencies Todd Garvey The Constitution neither establishes administrative agencies nor explicitly prescribes the manner Legislative Attorney by which they may be created. Even so, the Supreme Court has generally recognized that Congress has broad constitutional authority to establish and shape the federal bureaucracy. Daniel J. Sheffner Congress may use its Article I lawmaking powers to create federal agencies and individual Legislative Attorney offices within those agencies, design agencies’ basic structures and operations, and prescribe, subject to certain constitutional limitations, how those holding agency offices are appointed and removed. Congress also may enumerate the powers, duties, and functions to be exercised by agencies, as well as directly counteract, through later legislation, certain agency actions implementing delegated authority. The most potent tools of congressional control over agencies, including those addressing the structuring, empowering, regulating, and funding of agencies, typically require enactment of legislation. Such legislation must comport with constitutional requirements related to bicameralism (i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented to the President for signature). The constitutional process to enact effective legislation requires the support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President’s veto. There also are many non-statutory tools (i.e., tools not requiring legislative enactment to exercise) that may be used by the House, Senate, congressional committees, or individual Members of Congress to influence and control agency action. -
Contempt of Courts? President Trump's
CONTEMPT OF COURTS? PRESIDENT TRUMP’S TRANSFORMATION OF THE JUDICIARY Brendan Williams* Faced with a letter from the American Bar Association (ABA) assessing him as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice,” Lawrence VanDyke, nominated by President Trump to serve on the Ninth Circuit Court of Appeals, cried during an October 2019 confirmation hearing before the Senate Judiciary Committee.1 Republican senators dutifully attacked the ABA as liberally-biased.2 In a Wall Street Journal column, a defender of VanDyke assailed what he called a “smear campaign” and wrote that “[t]he ABA’s aggressive politicization is especially frustrating for someone like me, an active member of the ABA[.]”3 VanDyke was confirmed anyway.4 Contrary to Republican protestations, the ABA has deemed 97% of President Trump’s nominees to be “well qualified” or “qualified.”5 Indeed, in the most polarizing judicial nomination of the Trump Administration, Justice Brett Kavanaugh, Kavanaugh’s defenders pointed to the ABA having rated him “well qualified” despite the association having once, in 2006, dropped his rating to “qualified” due to concerns about his temperament.6 *Attorney Brendan Williams is the author of over 30 law review articles, predominantly on civil rights and health care issues. A former Washington Supreme Court judicial clerk, Brendan is a New Hampshire long-term care advocate. This article is dedicated to his father Wayne Williams, admitted to the Washington bar in 1970. 1Hannah Knowles, Trump Judicial Nominee Cries over Scathing Letter from the American Bar Association, WASH. POST (Oct. 30, 2015). 2Id. -
When Congress Comes Calling: a Study on the Principles, Practices, and Pragmatics of Legislative Inquiry When Congress
When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry of Legislative on the Principles, Practices, and Pragmatics A Study When Congress 1200 18th Street, NW, Suite 1000 Washington, DC 20036 Comes Calling 202.580.6920 Email: [email protected] A Study on the www.constitutionproject.org Principles, Practices, and Pragmatics of Legislative Inquiry Morton Rosenberg Constitution Project Fellow WHEN CONGRESS COMES CALLING: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry © 2017 The Constitution Project All Rights Reserved. Requests for permission to reproduce selections from this book should be sent to: The Constitution Project, 1200 18th Street NW, Suite 1000, Washington, DC 20036; or by e-mail to [email protected] The Constitution Project’s mission is to safeguard constitutional rights and values when they are threatened by our government’s criminal justice and national security practices, and to strengthen our system of checks and balances. The views expressed in this study do not necessarily reflect the views of individual members of The Constitution Project’s Board of Directors. For information about this report, or any other work of The Constitution Project, please visit our website at www.constitutionproject.org or e-mail us at [email protected]. Book design by Keane Design & Communications, Inc., keanedesign.com. Contents Preface Part I: Principles, Practices and Pragmatics of Legislative Inquiry Chapter 1 – Introduction: Updating the Study of Legislative Inquiry and Adapting it to the Changed Climate of Congressional Oversight ............................................................................. 1 Chapter 2 – The Institutional Framework of Congressional Oversight: Purposes, Powers, Limitations and Practicalities ................................................................................................... 5 A. -
Congress's Contempt Power: Law, History, Practice, and Procedure
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure Todd Garvey Legislative Attorney May 12, 2017 Congressional Research Service 7-5700 www.crs.gov RL34097 Congress’s Contempt Power and the Enforcement of Congressional Subpoenas Summary Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to non- compliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of providing testimony, or a refusal to produce requested documents. Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena. -
Executive Authority for National Security Surveillance William C
American University Law Review Volume 50 | Issue 1 Article 2 2000 Executive Authority for National Security Surveillance William C. Banks M. E. Bowman Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Law Commons Recommended Citation Banks, William C., and M.E. Bowman. "Executive Authority for National Security Surveillance." American University Law Review 50, no.1 (2000): 1-130. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Executive Authority for National Security Surveillance This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol50/iss1/2 BANKSPP.DOC 8/15/2001 11:33 AM ARTICLES EXECUTIVE AUTHORITY FOR NATIONAL SECURITY SURVEILLANCE * WILLIAM C. BANKS ** M.E. BOWMAN TABLE OF CONTENTS Introduction............................................................................................ 2 I. National Security Surveillance: The Early Years ...................... 10 II. The Components of Modern National Security Law................ 19 A. Awakening to the Modern World....................................... 19 B. Assigning Responsibility for Domestic Intelligence........... 26 C. Legislative -
Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 112 CONGRESS, FIRST SESSION
E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 112 CONGRESS, FIRST SESSION Vol. 157 WASHINGTON, MONDAY, DECEMBER 12, 2011 No. 190 Senate The Senate met at 2 p.m., and was the State of Delaware, to perform the vacancies because Republicans were in called to order by the Honorable CHRIS- duties of the Chair. the majority in that court. So they TOPHER A. COONS, a Senator from the DANIEL K. INOUYE, wanted to defeat this competent State of Delaware. President pro tempore. woman, and that is what they did with Mr. COONS thereupon assumed the these vacancies still there in that PRAYER chair as Acting President pro tempore. court. The Chaplain, Dr. Barry C. Black, of- f They blocked the nomination of fered the following prayer: Richard Cordray to lead the Consumer RECOGNITION OF THE MAJORITY Let us pray. Financial Protection Bureau, despite LEADER God, our King, You are clothed in his obviously deep qualifications for majesty and strength. Your throne has The ACTING PRESIDENT pro tem- the job. He has a long history of pro- been established from the beginning pore. The majority leader is recog- tecting the middle class against unfair and You existed before time began. nized. practices by financial predators and he Help our lawmakers today to do their f would have been a great asset in our fight to protect Main Street from the work, striving to labor for Your glory. SCHEDULE Give them the purity of life and hon- kind of Wall Street greed that caused esty of purpose to walk in Your way. -
Race, Gender, and Party Support of Congressional Primary Candidates∗
The Party’s Primary Preferences: Race, Gender, and Party Support of Congressional Primary Candidates∗ Hans J.G. Hasselly Neil Visalvanichz Short Title: The Party’s Primary Preferences. Keywords: Primary Elections, Race, Gender ∗We would like to thank Zoli Hajnal, Eric Gonzalez-Jeunke, Jamil Scott, Paru Shah, Keith Schnakenburg, David Searle, the North-East Research Development Workshop, participants at the American Political Science Association conference in 2015 and the Midwest Political Science Association Conference in 2019, and three anonymous reviewers for their comments and suggestions. We are also grateful for the research assistance of Emily Goldman. Author order is alphabetical. Both authors contributed equally to this project. yAssistant Professor, Florida State University. 600 W. College Ave., 531 Bellamy, Tallahassee, FL 32309, USA. Email: [email protected]. zAssistant Professor, Durham University. The Al Qasimi Building, Elvet Hill Road, Durham, DH1 3TU, United Kingdom. Email: [email protected] Abstract Party support has a strong influence on candidate success in the primary. What remains unexplored is whether party actions during the primary are biased along racial and gender lines. Using candidate demographic data at the congressional level and measures of party support for primary candidates, we test whether parties discriminate against women and minority candidates in congressional primaries and also whether parties are strategic in their support of minority candidates in certain primaries. Our findings show parties are not biased against minority candidates and also that white women candidates receive more support from the Democratic party than do other types of candidates. Our findings also suggest that parties do not appear to strategically support minority candidates in districts with larger populations of minorities. -
Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 112 CONGRESS, FIRST SESSION
E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 112 CONGRESS, FIRST SESSION Vol. 157 WASHINGTON, TUESDAY, DECEMBER 6, 2011 No. 186 Senate The Senate met at 10 a.m. and was Mrs. SHAHEEN thereupon assumed MEASURE PLACED ON THE called to order by the Honorable the chair as Acting President pro tem- CALENDAR—S. 1944 JEANNE SHAHEEN, a Senator from the pore. Mr. REID. I understand that S. 1944 is State of New Hampshire. Mr. REID. Madam President, I note at the desk and due for a second read- the absence of a quorum. PRAYER The ACTING PRESIDENT pro tem- ing. The Chaplain, Dr. Barry C. Black, of- pore. The clerk will call the roll. The ACTING PRESIDENT pro tem- fered the following prayer: The legislative clerk proceeded to pore. The clerk will read the bill by Let us pray. call the roll. title for the second time. O God, who has blessed us abundantly Mr. REID. I ask unanimous consent The legislative clerk read as follows: with inner joy and an outer supply of that the order for the quorum call be A bill (S. 1944) to create jobs by providing all good things, we are grateful for rescinded. payroll tax relief for middle-class families Your helping us in our poor attempts The ACTING PRESIDENT pro tem- and businesses, and for other purposes. to do Your will. Lord, forgive the pore. Without objection, it is so or- Mr. REID. I object to any further things that keep us divided, the false dered. -
El Salvador: Political and Economic Conditions and U.S. Relations
El Salvador: Political and Economic Conditions and U.S. Relations Clare Ribando Seelke Specialist in Latin American Affairs April 5, 2013 Congressional Research Service 7-5700 www.crs.gov RS21655 CRS Report for Congress Prepared for Members and Committees of Congress El Salvador: Political and Economic Conditions and U.S. Relations Summary Congress has maintained a strong interest in developments in El Salvador, a small Central American country with a population of 6 million. During the 1980s, El Salvador was the largest recipient of U.S. aid in Latin America as its government struggled against the leftist Farabundo Marti National Liberation Front (FMLN) insurgency during a 12-year civil war. A peace accord negotiated in 1992 brought the war to an end and formally assimilated the FMLN into the political process as a political party. After the peace accords were signed, U.S. involvement shifted toward helping successive Nationalist Republican Alliance (ARENA) governments rebuild democracy and implement market-friendly economic reforms. Funes Administration Twenty-one years after the signing of the peace accords, El Salvador is governed by an FMLN Administration. In March 2009, Mauricio Funes, a former television journalist and the first FMLN presidential candidate without a guerilla past, defeated Rodrigo Ávila of the conservative ARENA party for a five-year presidential term. President Funes has generally pursued moderate policies that have enabled him to form cross-party coalitions in the National Assembly, but caused periodic friction with more radical members of his party. Now in his fourth year in office, President Funes still has high approval ratings, but faces a number of serious challenges. -
No Radical Hangover: Black Power, New Left, and Progressive Politics in the Midwest, 1967-1989
No Radical Hangover: Black Power, New Left, and Progressive Politics in the Midwest, 1967-1989 By Austin McCoy A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (History) in the University of Michigan 2016 Doctoral Committee: Associate Professor Matthew J. Countryman, Co-Chair Associate Professor Matthew D. Lassiter, Co-Chair Professor Howard Brick Associate Professor Stephen Ward Dedicated to Mom, Dad, Brandenn, Jeff, and K.C., all of the workers who have had their jobs stolen, and to all of the activists searching for answers. ii Acknowledgements Since I have taken the scenic route to this point, I have many thanks to give to family, friends, and various colleagues, collaborators, and communities that I have visited along the way. First, I would like to thank my dissertation committee—Howard Brick, Stephen Ward, Matt Lassiter, and Matthew Countryman. Your guidance and support enhanced this my dissertation. Your critical comments serve a cornerstone for this project as I proceed to revise it into a book manuscript. Howard, your classes and our conversations have expanded my thinking about the history of the left and political economy. Stephen, I appreciate your support for my scholarship and the fact that you always encouraged me to strike a balance between my academic and political work. Matt, I have learned much from you intellectually and professionally over the last seven years. I especially valued the fact that you gave me space and freedom to develop an ambitious project and to pursue my work outside of the classroom. I look forward to your continued mentorship.