A Right to 'Know' or a Right to 'No'?
Examining the Congressional-Executive Branch Struggle Over Access to Information
More than 90 people attended a half-day conference co-sponsored by the Levin Center at Wayne Law and The Constitution Project on Tuesday, Oct. 25, 2016, in Washington, D.C. The conference was live-streamed on C-SPAN and looked at the tension between Congress' constitutional responsibility to oversee the workings of the executive branch and the president's claims of executive privilege and deliberative process in order to protect the inner workings of the White House. The conference consisted of two panels of experienced practitioners and distinguished scholars.
The Constitution gives Congress the responsibility to serve as a check on the operations of the vast expanse of the executive branch. That responsibility has long been recognized as an integral part of our system of checks and balances.
In 1927 the Supreme Court explicitly stated in the case of McGrain v. Daugherty: "We are of the opinion that the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function."
That was reinforced in the 1957 case of Watkins v. the U.S. when the Supreme Court clearly acknowledged Congress' inherent power to conduct investigations, stating it was a broad power, including "inquiries concerning the administration of existing laws", needed statutes, defects in our social, economic, or political system, and "probes…to expose corruption, inefficiency or waste."
In order for oversight to work, Congress has to know what's going on in the executive branch. That means making demands on the executive branch for information – both documents and witnesses – and that often creates a tension between the two branches. The degree of that tension between the Congress and the administration over access to executive branch information varies from Congress to Congress based on a number of elements. These include the popularity of the president, congressional leadership, the issues being investigated, the degree of public interest, the presence or absence of criminal culpability, the individual personalities involved and the state of the law. Given the election of a new president and new Congress, this was a this was a meaningful time to review the rights, rules and principles that govern this inter-branch tug of war, and to contemplate the path forward. Questions addressed included whether reform is necessary to ensure that Congress can access the information it needs to check the executive branch effectively and how Congress should best be held accountable for using its oversight powers and tools appropriately.
Welcome and overview
- Former U.S. Sen. Carl Levin, chair, Levin Center at Wayne Law
- Virginia Sloan, president, The Constitution Project
Panel one: Recent Developments in the Law on Congressional Access to Information
- Steve Castor, deputy general counsel, House Committee on Oversight and Government Reform
- David Hayes, distinguished visiting lecturer in law, Stanford Law School
- Ronald Weich, dean, University of Baltimore School of Law
- Andrew Wright, associate professor, Savannah Law School
- Moderator: Linda Gustitus, Washington co-director, Levin Center at Wayne Law; former staff director, U.S. Senate Permanent Subcommittee on Investigations
Panel two: Is the Current System Working or Does it Need Reform?
- Josh Chafetz, professor of law, Cornell Law School
- Kerry Kircher, former general counsel, U.S. House of Representatives
- Mort Rosenberg, former specialist in American public law, Congressional Research Service
- Moderator: Jocelyn Benson, director, Levin Center at Wayne Law