Category: Resolution of Inquiry

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Getting Some Answers About DOGE

So I have been planning to write posts on so many topics that I have gotten around to none of them. But a social media discussion today impels me to mention a House procedure which seems well suited, as a first step, to addressing some of the many questions which have arisen regarding the so-called Department of Government Efficiency (DOGE).

Whatever else it may be, DOGE is not in fact a government department. So what is it? As explained by this CRS report, it is in theory a renamed version of an entity originally established in the Executive Office of the President in 2014 by President Obama. It was previously named the U.S. Digital Service and was supposed to help improve agency digital services. (Whether it actually did this is not mentioned). It sounds like the U.S. Digital Service was not originally  authorized or funded by Congress. Instead, the OMB director transferred funds to the U.S. Digital Service from the “Information Technology Oversight and Reform” appropriations account for the Executive Office of the President. However, it did receive funding in one of the gigantic COVID relief bills.

In reality, DOGE seems to be an entirely different entity than the U.S. Digital Service, though presumably it is funded through the same mechanism. But although there have been some executive orders laying out DOGE’s functions in skeleton form (including one since the CRS report was issued), many questions remain. These include the status of Elon Musk, who has been identified as a “special government employee” and who may or not be serving as the “USDS Administrator” who the executive orders identify as being in charge of DOGE. Regardless of whether Musk or someone else is formally in charge of DOGE, the question remains whether that position may be filled by someone who is not an officer of the United States and not appointed in accordance with the Appointments Clause.

In theory, as we discussed long ago, the White House is allowed to employ “advisers” who need not be officers of the United States because they exercise no “independent authority or sovereign power,” as Obama’s White House Counsel explained in 2009. I expressed some skepticism of this theory when it was raised to justify Obama’s various “czars,” and I see no reason to be less skeptical of its application to the head of DOGE, which seems to be even more blatantly operational and not simply advisory. In any event, there is no way to make an informed judgment about the constitutionality of DOGE’s operation without some more information on what it is doing and what powers, if any, it has.

There are many other questions about DOGE. Who is hiring the DOGE staff? What screening mechanisms are employed with regard to conflicts of interest? What information and systems are DOGE staff allowed to access at departments and agencies? What supervision are administration officials exercising (or permitted to exercise) with regard to the activities of DOGE staff within their departments and agencies? Does the White House understand DOGE to be covered by laws about transparency, privacy, and ethics and, if so, which ones and how?

One way to get such answers would be through the normal committee oversight process. However, at the moment there does not seem to be much interest on the part of Republican committee chairs in either the Senate or House. An alternative method of getting information, which can be employed by any member of the House of either party, is to offer what is known as a resolution of inquiry. As explained by CRS in a 2017 report:

A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.

Of course, introducing a resolution of inquiry does not guarantee it will be adopted by the House. But it should get you a floor vote (after 14 days in committee). And I would think that voting against a resolution of inquiry that simply tries to get some information about what the heck DOGE is doing may not be that easy for some Republican members of the House.

Anyway, its an idea.

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Is a Lawsuit Really the House’s Only Remaining Option?

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, including the power to write new laws, repeal old laws, disapprove regulations and attach riders to appropriations bills. She also noted the specific powers invested in the Senate, such as its ability to “put nominees’ feet to the fire” during the advice and consent process. Finally, she cited the House’s constitutional authorities with respect to the executive: “we investigate, hold oversight hearings and we sometimes impeach.”

There is no question that these are powerful tools, potentially powerful anyway, and I think I have already made clear my view that a lawsuit is a very poor option for the House to employ. Nonetheless, it is difficult to see how the House could effectively use some of these methods to address the employer mandate delay. Obviously, it cannot use the Senate’s authorities. It is also hard to see how it could rewrite the law (even assuming the Senate and the President’s cooperation) to remedy the problem. After all, the House does not object to the policy embodied in the employer mandate delay; it objects to the fact that the administration adopted the policy without congressional authorization. Indeed, one of the House’s “injuries” is that the administration opposed any congressional effort to change the law so as to authorize the action it was taking.

Most of the discussion of alternative remedies at the Rules Committee hearing revolved around the power of the purse. But no one explained exactly how the House might use the power of the purse in this situation. In the first place, the spending power is just political leverage; it works the same for policy disputes and legal disagreements. But the political leverage only works to the extent it relates to something the public really cares about; abstract institutional disputes between the branches will hardly qualify. Indeed, even when the public supports Congress’s goal, using the spending power as leverage is tricky. Congress wasn’t too successful in using the power of the purse to control the executive’s conduct of an unpopular war in the last administration, as Slaughter may recall.

Now I do like the Scalia/Ginsberg suggestion that funds for White House staff be cut off, and I wonder why the House doesn’t at least try something like that. Presumably the public wouldn’t be outraged by a reduction of the White House travel budget or the like. Maybe Congress is worried that the White House would demand a reduction in leg branch appropriations in return. In any event, using the appropriations process in this way would require majority support in both chambers, if not a supermajority sufficient to overcome a veto. And even if that existed (which it obviously does not), I am not sure how exactly it would be linked to the employer mandate delay.

So as a practical matter, I think the House is left with the unilateral authorities of investigation, oversight and impeachment. Investigation and oversight seem like appropriate responses because, as discussed in a prior post, further information about the decision-making process is needed to determine whether the House’s disagreement with the IRS is simply a garden-variety dispute over administrative law or whether it reflects a true invasion of the House’s constitutional authority

However, an ordinary committee investigation will not suffice here for at least two reasons. First, the Speaker has already made a decision to elevate this matter beyond a routine oversight issue, and he wants the House as a body to weigh in. If it were sent to a committee for investigation, it would just become one of many ongoing investigations and would quickly become bogged down in the partisan muck. Second, it is very likely that the administration would refuse to produce all (or perhaps any) information regarding the decision-making process on grounds of deliberative process, attorney-client and/or presidential communications privilege.

There is another way, though. The House has a well-established and time-honored method of obtaining important information from the executive branch. The resolution of inquiry is a privileged resolution that seeks information from the president or a department head. Although it is not uncommon for such resolutions to be introduced (CRS counts 290 from 1947 to 2011), most often in recent years by members of the minority party, the House has not adopted such a resolution since 1995.

A resolution of inquiry is not a “legal” device like a subpoena, but an assertion of the House’s role in the constitutional structure, which would seem to be what is called for under the circumstances. As CRS notes, “compliance by the executive branch with the House’s request for factual information in such a resolution is voluntary, resting largely on a sense of comity between co-equal branches of government and a recognition of the necessity for Congress to be well-informed as it legislates.”

A resolution of inquiry could be addressed to Secretary Lew, directing him to produce all documents related to the decision to delay the employer mandate. (A similar resolution could be directed to President Obama, although it is traditional that resolutions to the president “request” rather than “direct” the production of information).

Would such a resolution work? Possibly, but only if the House were united in the resolution. The question then is whether Representative Slaughter and her colleagues would support such a resolution. If they are sincere about wanting to protect the House’s institutional prerogatives, I don’t see why they would not. And if they refuse, at least the Speaker would have tried to use more traditional methods before proceeding with his lawsuit.

Of course, there is no legal penalty for refusing to comply with a resolution of inquiry. But if Secretary Lew were to refuse to comply with the resolution, the House would logically proceed to use its last constitutional tool, one where it exercises judicial and not merely legislative authority, namely an investigation into whether the Secretary should be impeached.