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Association). Also, section 111 of the Act of Oct. 28, 1974, exempts the following agencies from clearance of legislative proposals and comments: Securities and Exchange Commission, Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Federal Home Loan Bank Board, and the National Credit Union Administration. Act of Oct. 28, 1974, Pub. L. No. 93-495, § 111, 88 Stat. 1500 (codified at 12 U.S.C. § 250 (1982)).

The Supreme Court has long recognized the validity of direct reporting requirements. See, e.g., INS v. Chadha, 462 U.S. 919, 935 n. 9 (1987); Sibbach v. Wilson and Co., 312 U.S. 1 (1941). At the core of this aspect of congressional authority is the recognition of the legislature's need for reliable information in order to fulfill its constitutionally mandated functions. As a general proposition it may be posited that, in the absence of a countervailing constitutional privilege or a self-imposed statutory restriction upon its authority, the Congress (and its committees) has plenary power to compel information needed to discharge its legislative function from executive agencies, private persons, and organizations, and, within certain constraints, the information so obtained may be made public. The fact that the Executive has determined for its own internal purposes that a particular item should not generally be disclosed does not prevent either House of Congress, or its committees and subcommittees, from obtaining and publishing information that it considers essential for the proper performance of its functions. The case law delineating Congress' expansive oversight authority demonstrates its virtually plenary power in this area.

Thus, although there is no express provision of the Constitution which specifically authorizes the Congress to conduct investigations and take testimony for the purpose of performing its legitimate functions, the practice

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of the British Parliament and numerous decisions of the Supreme Court of the United States have firmly established that the investigatory power of Congress is so essential to the legislative function as to be implied from the general vesting of legislative power in Congress. McGrain v. Daugherty, 273 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 U.S. 109 (1959); Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975); Nixon v. Administrator of General Services, 433 U.S. 425 (1977); see also, United States v. A.T.T., 551 F.2d 384 (D.C. Cir. 1976) and 567 F.2d 1212 (D.C. Dir. 1977). Chief Justice Warren speaking for the Court in Watkins described the power as follows:

We start with several basic premises on which there is
general agreement. The power of the Congress to conduct
investigations is inherent in the legislative process.
That power is broad. It encompasses inquiries concerning
the administration of existing laws as well as proposed or
possible needed statutes. It includes surveys of defects
in our social, economic, or political system for the
purpose of enabling the Congress to remedy them. It
comprehends probes into departments of the Federal
Government to expose corruption, inefficiency or waste.
But broad as is this power of inquiry, it is not unlimited.
There is no general authority to expose the private affairs
of individuals without justification in terms of the
functions of the Congress... Nor is the Congress a law
enforcement or trial agency. These are functions of the
executive and judicial departments of government.
inquiry is an end in itself; it must be related to, and in
furtherance of, a legitimate task of the Congress. 354 U.S.
at 187.

No

Legitimate legislative tasks encompassing the power have been defined as activities that are "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the

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jurisdiction of either House." Gravel v. United States, 408 U.S. 606, 625

(1973).

In the Eastland case the Court reiterated its view that the power of

effective congressional inquiry is an integral part of the legislative process:

...

The power to investigate and to do so
through compulsory process plainly falls within
[the Gravel definition of legitimate
legislative tasks). This Court has often noted
that the power to investigate is inherent in the
power to make laws because '[a] legislative body
cannot legislate wisely or effectively in the
absence of information respecting the conditions
which the legislation is intended to affect or
change. McGrain v. Daugherty, 273 U.S. 125 175
(1927)... Issuance of subpoenas such as the one
in question here has long been held to be a
legitimate use by Congress of its power to
investigate ...

"[W]here the legislative body does not itself possess the requisite information--which not infrequently is true-recourse must be had to others who do possess it.

Experience has taught that mere requests for such

information often are unavailing, and also that information
which is volunteered is not always accurate or complete, as
some means of compulsion are essential to obtain what is
needed." McGrain v. Daugherty.

These broad principles of Congressional investigatory authority apply a fortiori to the exercise of Congress' Article I power to create the agencies and offices necessary to carry out its policy directives. Buckley v. Valeo, supra, at 138. Anticipation of a legislative need to know accurately what an agency official actually thinks with respect to his agency's budget or about changes in his agency's legislative authority, as reflected in an identifiable document, would appear well within the congressional prerogative. Reporting provisions such as the one in question in no way significantly circumscribe the President's duties to "take care" that the laws be faithfully executed or to

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"recommend to [Congress'] consideration such measures as he shall judge necessary and expedient," under Article II, section 3. These clauses are not a source of substantive presidential power and claims to that effect have been consistently rejected by the courts. See, e.g., Kendall ex rel Stokes v. United States, 37 U.S. (12 Pet.) 522, 612-13 (1838) ("To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid execution, is a novel construction of the Constitution, and entirely inadmissable."); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (" ...[T]he President's power to see that the laws are faithfully executed refutes the idea he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad."); Lear Siegler, Inc. v. Lehman, 842 F.2d 1102 (9th Cir. 1988) ("To construe this duty to faithfully execute the laws as implying the power to forbid their execution perverts the clear language of the 'take care' clause."); National Treasury Employees Union v. Nixon, 492 F.2d 587, 604 (D.C. Dir. 1974) ("That constitutional duty does not permit the President to refrain from executing laws duly enacted by the Congress as those laws are construed by the judiciary."); United States v. Solomon, 419 F. Supp. 358, 372 (D. Md. 1976) ("The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power", quoting Holmes, J. in Myers v. U.S. 272 U.S. 52, 177 (1926)); Guadamuz v. Ash, 368 F. Supp. 1233, 1243 (D.D.C. 1973) ("[N]owhere does our Constitution extol the virtue of efficiency and nowhere does it command that all our laws be fiscally wise. It does most clearly, however, state that laws, good or bad, be enacted by the Congress, and enforced

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by the President. '[I]f the power sought here were found valid, no barrier would remain to the executive ignoring any and all congressional authorizations if deemed them, no matter how conscientiously, to be contrary to the needs of the nation.'").

Nor may such requirements be reasonably seen as aggrandizing congressional power in derogation of presidential power. The Chief Executive maintains his ability to communicate with the Director with respect to budget matters and proposed legislation and to influence his ultimate views. Moreover, the President's recommendatory duty under Article II is not circumscribed in any way by such a provision. A presidential alternative, including the abandonment of a proposed course of action, is not precluded. Thus any intrusion on the ability of the President to exercise his core executive functions is likely to be deemed de minimis. Commodity Futures Trading Commission v. Schor, 106 S.Ct. 3245, 3260 (1986); Ameron v. U.S. Corps of Engineers, 809 F.2d 979, 997 (3d Cir. 1986), cert granted, 56 U.S.L.W. 3638 (S.Ct. 3/21/88). Finally, no decided case has expanded the concept of executive privilege recognized in U.S. v. Nixon, 418 U.S. 683 (1974), to cloak the kind of communications implicated by the type of reporting provisions involved here.

Инста

Morton Rosenberg

Specialist in American

Public Law