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Affirming Congress' Constitutional Oversight AFFIRMING CONGRESS’ CONSTITUTIONAL OVERSIGHT RESPONSIBILITIES: SUBPOENA AUTHORITY AND RECOURSE FOR FAILURE TO COMPLY WITH LAWFULLY ISSUED SUBPOENAS HEARING BEFORE THE COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTEENTH CONGRESS SECOND SESSION September 14, 2016 Serial No. 114–92 Printed for the use of the Committee on Science, Space, and Technology ( AFFIRMING CONGRESS’ CONSTITUTIONAL OVERSIGHT RESPONSIBILITIES: SUBPOENA AUTHORITY AND RECOURSE FOR FAILURE TO COMPLY WITH LAWFULLY ISSUED SUBPOENAS AFFIRMING CONGRESS’ CONSTITUTIONAL OVERSIGHT RESPONSIBILITIES: SUBPOENA AUTHORITY AND RECOURSE FOR FAILURE TO COMPLY WITH LAWFULLY ISSUED SUBPOENAS HEARING BEFORE THE COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTEENTH CONGRESS SECOND SESSION September 14, 2016 Serial No. 114–92 Printed for the use of the Committee on Science, Space, and Technology ( Available via the World Wide Web: http://science.house.gov U.S. GOVERNMENT PUBLISHING OFFICE 22–561PDF WASHINGTON : 2017 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 COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY HON. LAMAR S. SMITH, Texas, Chair FRANK D. LUCAS, Oklahoma EDDIE BERNICE JOHNSON, Texas F. JAMES SENSENBRENNER, JR., ZOE LOFGREN, California Wisconsin DANIEL LIPINSKI, Illinois DANA ROHRABACHER, California DONNA F. EDWARDS, Maryland RANDY NEUGEBAUER, Texas SUZANNE BONAMICI, Oregon MICHAEL T. MCCAUL, Texas ERIC SWALWELL, California MO BROOKS, Alabama ALAN GRAYSON, Florida RANDY HULTGREN, Illinois AMI BERA, California BILL POSEY, Florida ELIZABETH H. ESTY, Connecticut THOMAS MASSIE, Kentucky MARC A. VEASEY, Texas JIM BRIDENSTINE, Oklahoma KATHERINE M. CLARK, Massachusetts RANDY K. WEBER, Texas DON S. BEYER, JR., Virginia JOHN R. MOOLENAAR, Michigan ED PERLMUTTER, Colorado STEVE KNIGHT, California PAUL TONKO, New York BRIAN BABIN, Texas MARK TAKANO, California BRUCE WESTERMAN, Arkansas BILL FOSTER, Illinois BARBARA COMSTOCK, Virginia GARY PALMER, Alabama BARRY LOUDERMILK, Georgia RALPH LEE ABRAHAM, Louisiana DARIN LAHOOD, Illinois WARREN DAVIDSON, Ohio (II) C O N T E N T S September 14, 2016 Page Witness List ............................................................................................................. 2 Hearing Charter ...................................................................................................... 3 Opening Statements Statement by Representative Lamar S. Smith, Chairman, Committee on Science, Space, and Technology, U.S. House of Representatives ..................... 4 Written Statement ............................................................................................ 6 Statement by Representative Eddie Bernice Johnson, Ranking Member, Com- mittee on Science, Space, and Technology, U.S. House of Representatives .... 10 Written Statement ............................................................................................ 12 Witnesses: Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School Oral Statement ................................................................................................. 15 Written Statement ............................................................................................ 17 Mr. Ronald D. Rotunda, Doy and Dee Henley Chair and Distinguished Pro- fessor of Jurisprudence, Chapman University Dale E. Fowler School of Law Oral Statement ................................................................................................. 45 Written Statement ............................................................................................ 47 Mr. Charles Tiefer, Professor of Law, University of Baltimore; Former Acting General Counsel, U.S. House of Representatives Oral Statement ................................................................................................. 62 Written Statement ............................................................................................ 64 Ms. Elizabeth Price Foley, Professor of Law, Florida International University College of Law Oral Statement ................................................................................................. 85 Written Statement ............................................................................................ 88 Discussion ................................................................................................................. 114 Appendix I: Answers to Post-Hearing Questions Mr. Charles Tiefer, Professor of Law, University of Baltimore; Former Acting General Counsel, U.S. House of Representatives .............................................. 152 Appendix II: Additional Material for the Record Documents submitted by Representative Eddie Bernice Johnson, Ranking Member, Committee on Science, Space, and Technology, U.S. House of Representatives .................................................................................................... 156 Article submitted by Representative Frank D. Lucas, Subcommittee on Space, Committee on Science, Space, and Technology, U.S. House of Representa- tives ....................................................................................................................... 791 Articles submitted by Representative Randy Neugebauer, Subcommittee on Space, Committee on Science, Space, and Technology, U.S. House of Rep- resentatives ........................................................................................................... 795 (III) IV Page Article submitted by Representative Mo Brooks, Committee on Science, Space, and Technology, U.S. House of Representatives ............................................... 802 Article submitted by Representative Donald S. Beyer, Committee on Science, Space, and Technology, U.S. House of Representatives .................................... 807 Article submitted by Representative Warren Davidson, Committee on Science, Space, and Technology, U.S. House of Representatives .................................... 822 Documents submitted by Representative Paul Tonko, Committee on Science, Space, and Technology, U.S. House of Representatives .................................... 825 Article submitted by Representative Donna Edwards, Committee on Science, Space, and Technology, U.S. House of Representatives .................................... 834 Article submitted by Representative Barry Loudermilk, Committee on Science, Space, and Technology, U.S. House of Representatives ..................... 836 Article submitted by Representative Brian Babin, Committee on Science, Space, and Technology, U.S. House of Representatives .................................... 839 Documents submitted by Representative Gary Palmer, Committee on Science, Space, and Technology, U.S. House of Representatives .................................... 842 Documents submitted by Representative Ed Perlmutter, Committee on Science, Space, and Technology, U.S. House of Representatives ..................... 853 Article submitted by Representative Drain LaHood, Committee on Science, Space, and Technology, U.S. House of Representatives .................................... 856 Documents submitted by Representative Katherine M. Clark, Committee on Science, Space, and Technology, U.S. House of Representatives ..................... 860 Article submitted by Representative Bruce Westerman, Committee on Science, Space, and Technology, U.S. House of Representatives ..................... 880 AFFIRMING CONGRESS’ CONSTITUTIONAL OVERSIGHT RESPONSIBILITIES: SUBPOENA AUTHORITY AND RECOURSE FOR FAILURE TO COMPLY WITH LAWFULLY ISSUED SUBPOENAS WEDNESDAY, SEPTEMBER 14, 2016 HOUSE OF REPRESENTATIVES, COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY, Washington, D.C. The Committee met, pursuant to call, at 10:02 a.m., in Room 2318 of the Rayburn House Office Building, Hon. Lamar Smith [Chairman of the Committee] presiding. (1) 2 3 4 Chairman SMITH. The Committee on Science, Space, and Tech- nology will come to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. Welcome to today’s hearing titled ‘‘Affirming Congress’ Constitu- tional Oversight Responsibilities: Subpoena Authority and Re- course for Failure to Comply with Lawfully Issued Subpoenas.’’ I am going to recognize myself for an opening statement and then the Ranking Member for her opening statement. Today’s hearing has dual purposes, one general and one specific. First, this hearing will explore the scope of Congress’s investigative authority as a general matter. Second, and in particular, this hear- ing will affirm the legitimacy of the Committee’s ongoing inquiry, which includes the issuance and enforcement of its subpoenas. Let me begin with the factual background. For months, the Science Committee sent correspondence and requests for voluntary cooperation and information from two state Attorneys General and several environmental groups. After these requests were stonewalled, on July 13, 2016, the Committee issued subpoenas for information that relates to the origin of state investigations into scientific research conducted by nonprofit organizations, private companies, and individual scientists. The Committee is concerned that such investigations may have an adverse impact on federally funded scientific research. If this is the case, it
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