The Congress

Current Issues

Executive Privilege II (also posted under The Executive).  Karl Rove asserted executive privilege in refusing to comply with the House Judiciary Committee's subpoena for testimony in its investigation into the administration's politicization of the Department of Justice and the political prosecution of former Alabama Governor Don Siegelman.  The documents spell out the sides' positions on executive privilege and provide a nice case-study in negotiations between the Congress and a former administration official over testimony in this sensitive matter.  Read Rove's response to the Committee's mere request for testimony here; read Chairman Conyers's cover letter here and the Committee's subpoena here; read Rove's first response to the subpoena here and Chairman Conyers's reply here; and finally read the latest exchange here (Rove) and here (Conyers).  Whew--and that's not even all of it.  Chairman Conyers gave Rove until July 15, 2008, before the Committee would "consider all other appropriate recourse."  Watch for the Committee's next move . . . .

Executive Privilege (also posted under The Executive).  The Administration asserted Executive Privilege on June 20, 2008, in response to a subpeona from the House Oversight and Government Reform Committee for certain documents related to the White House's apparent overruling of the EPA on decisions and recommendations related to the Clean Air Act.  According to the New York Times, the EPA e-mailed its conclusion to the White House in December that greenhouse gases are pollutants that must be regulated under the Clean Air Act, but the White House refused to open the e-mail (!).  The EPA is now set to release a "watered down" version of that document.  In addition, the EPA administrator rejected the unanimous recommendation of EPA staff and denied California a waiver to regulate greenhouse emissions in that state.  The following documents give a picture of the back-and-forth between Congress and the Administration.  Click here for the Administration's response (including letters from several agencies; check out particularly the AG's analysis); click here for the EPA's response (including some of those same letters); click here for Representative Waxman's statement (Representative Waxman is the Chair of the House committee); and click here for the Draft contempt resolution.

Nondelegation and Separation of Powers (also posted under The Executive).  The U.S. Supreme Court denied review on June 23, 2008, of a district court opinion upholding a Congressional waiver to the Secretary of Homeland Security, permitting the Secretary to waive certain environmental laws in constructing a boarder fence.  The lower court distinguished Clinton v. New York (the line-item veto case) and held that Congress could issue such a waiver without running afoul of the nondelegation doctrine and separation of powers principles, especially in an area (like foreign affairs and immigration) where the executive exercises "significant independent constitutional authority."  Click here for the edited lower court opinion.

The "War on Terror."  The "War on Terror" raises numerous issues related to Congressional authority in wartime.  Click here for recent materials related to the Suspension Clause.