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Notre Dame Law Review

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executive branch powers, executive privilege, constitutional law, judicial enforcement


Constitutional Law | Law | President/Executive Department


Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a result, Congress has resorted to enforcing its subpoenas in civil litigation, with terrible results. Civil enforcement, if any, occurs years after the information was sought, practically eliminating the information’s practical and political value. Changes in administrations can be expected to affect the willingness of the executive branch to thwart congressional oversight, but the problem will remain until systemic reforms discourage the most egregious forms of executive evasion. To overcome this reliance on judicial enforcement of its oversight powers, Congress needs to think more creatively and aggressively. One way of doing so, which we defend in this Article, is using Congress’s powers of the purse to condition funding to agencies on their compliance with congressional oversight requests, employing what we call oversight riders. By denying funding to executive agencies’ resistance to oversight, Congress can create personal legal incentives for executive branch officials to comply. The Article concludes by considering whether other underenforced regimes, including requirements addressing political activity, ethics, and transparency, might also be protected by similar riders.



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