Minority Party Need Not Inquire: Revisiting the Executive Duty to Respond to Congressional Oversight Authority

• Author: Tina Seideman
• Position: J.D., Georgetown University Law Center, 2022; B.A., Pepperdine University, 2017
• Pages: 733-753

NOTES

Minority Party Need Not Inquire: Revisiting the

Executive Duty to Respond to Congressional

Oversight Authority

TINA SEIDEMAN*

ABSTRACT

Ranking members of committees hold unique and important roles in govern-

ment and congressional leadership, as well as the general oversight structure.

However, in 2017, the Department of Justice’s Office of Legal Counsel issued a

guidance memorandum stating that there are only three entities to which the

Executive Branch has the duty to reply: a House of Congress in its entirety, a

committee or subcommittee of jurisdiction, or an aforementioned committee or

subcommittee’s chair. Under this guidance, then, the ranking member of a com-

mittee of jurisdiction holds the same authority to investigate and oversee

Executive Branch agencies as general members of Congress: none.

This Note proposes an alternative standard under what I have termed the

“demand-request distinction:”that the Executive Branch should recognize and

respond to inquiries from ranking members in the same way it does demands

from committee chairs. This standard preserves the prioritization of inquiries

which serve a broader body of Congress and ensures that the requirements of

Watkins v. United States are satisfied. It also reflects the historical intent of

constitutional separation of powers and the history and precedent of actions

taken by each branch of government when determining questions related to con-

gressional oversight.

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND ........................ 734

II. HISTORY AND CONTEXT ................................ 738

A. The Founding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 738

B. Modern Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 740

* J.D., Georgetown University Law Center, 2022; B.A., Pepperdine University, 2017. I would like

to thank Erin Creegan and Josh Flynn-Brown for their inspiration and resources at the beginning of this

writing process, Professors Paul Clement, Lisa Blatt, and Matthew Rowen for their constructive

feedback throughout their Fall 2021 Separation of Powers Seminar, and Steve Engel for his thoughtful

review. ©2022, Tina Seideman.

733

III. PRECEDENTIAL ACTIONS OF THE BRANCHES ................. 741

A. The Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 741

B. The Legislature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 744

C. The Executive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 747

IV. THE OLC OPINION REVISITED ........................... 748

V. PROPOSED SOLUTIONS IN CURRENT LITERATURE AND LEGAL

THOUGHT ........................................... 749

VI. A NEW STANDARD .................................... 751

VII. CONCLUSION ........................................ 752

I. INTRODUCTION AND BACKGROUND

In 2017, the Trump Administration’s Office of Legal Counsel (OLC) at the

Department of Justice (DOJ) issued a guidance memorandum to agencies regard-

ing the Executive Branch’s duties to respond to and comply with congressional

oversight and investigative inquiries, whether accompanied by a subpoena or

not.

1

One might think, given that the President was a Republican and he was fac-

ing a bicameral Republican majority in Congress at the time, that the guidance

would have favored glass door policies and open communication in favor of truly

“draining the swamp.”Instead, the guidance stated that there are only three enti-

ties to which the Executive Branch has the duty to reply: a House of Congress in

its entirety, a committee or subcommittee of jurisdiction, or an aforementioned

committee or subcommittee’s chair.

2

According to the OLC in this memorandum, the constitutional authority to

oversee the Executive Branch can only be conducted officially “by each house of

Congress or, under existing delegations, by committees and subcommittees (or

their chairmen).”

3

Thus, an investigative inquiry from any individual member of

Congress other than a committee or subcommittee chair, regardless of his or her

political weight, seniority, or caucus leadership “is not properly considered an

‘oversight’ request”as “[i]ndividual members of Congress ... do not have the

authority to conduct oversight in the absence of a specific delegation by a full

1. Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch,41

Op. O.L.C. 1 (2017) (“Oversight by Individual Members”), https://www.justice.gov/olc/file/1085571/

download [https://perma.cc/LTS3-QR4Y] [hereinafter 2017 OLC opinion]. This opinion was further

elaborated upon by OLC in 2019. Requests by Individual Members of Congress for Executive Branch

Information, 43 Op. O.L.C. __ (Feb. 13, 2019) (slip opinion), https://www.justice.gov/olc/file/1356251/

download [https://perma.cc/3ABG-FTY4] [hereinafter 2019 OLC opinion].

2. 2017 OLC opinion,supra note 1, at *1.

3. Id.

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