Paper Topic - Hennessey

From:bjh76@georgetown.edu To: john.podesta@gmail.com, richard_leon@dcd.uscourts.gov Date: 2015-02-20 18:11 Subject: Paper Topic - Hennessey

Dear Professor Podesta and Judge Leon: Please see below my suggested paper topic for Congressional Investigations. I have also attached it in a separate document for your convenience. I am available to meet early before Monday's class, which would also be my preferred meeting time. I look forward to hearing your thoughts on my topic. Enjoy the weekend and try to stay warm! Best, Brendan *Congressional Investigations into Executive Branch Decision-making: Can Civil Enforcement of Congressional Subpoenas Serve as a Tool for Challenging Agency Decisions and Rulemaking * The Supreme Court has recognized that in order for Congress to properly legislate, it requires the ability to carry out investigations and oversight. Yet, recently Congress has turned its eye from its own internal decision-making process to that of federal agencies. Senate Republicans have indicated that they intend to investigate whether EPA was improperly influenced by an environmental NGO in drafting climate change regulations. Last Congress, House Republicans issued subpoenas seeking information related to the EPA’s efforts to possibly replace the Bush administration’s “stream buffer zone rule.” Meanwhile, on different subjects, Congress has displayed an increased willingness to seek civil enforcement of subpoenas—the House sought such enforcement against Harriet Meirs and Joshua Bolten in 2008 and Eric Holder in 2013. Yet, it does not seem to be clear to what extend Congress can gain access to agency decision-making information by using civil contempt proceedings. I am interested in evaluating whether civil enforcement of subpoenas, issued as part of a Congressional investigation, might serve as a tool for Congress to expose, and potentially affect, the decision-making processes of agencies and the officials that lead those agencies. This seems to be an important question in an era where Congress’s productivity measured by passage of legislation is at an all-time low, while regulations promulgated by executive agencies continue to have broad sweeping impacts. If Congress may successfully acquire judicial compulsion of compliance with subpoenas then such civil enforcement may prove to be a powerful tool in affecting the form and substance of federal regulation. But a predicate question must be whether Congress can attain such judicial compulsion. Would a court be able to enforce a congressional subpoena against an agency head when Congress is seeking documents related to a recent agency decision? Related questions are: would executive privilege potentially bar enforcement; would the deliberative process privilege bar enforcement; which officials would such privileges extend to; and what might be some of the consequences of pursuing such a course through the judiciary? ---------------------------------------------- Brendan Hennessey Georgetown University Law Center J.D. Candidate, May 2015 (202) 679-5084 bjh76@law.georgetown.edu