Subject: Paper Topic - Hennessey
From: Brendan Hennessey <[email-masked]>
To: John Podesta <[email-masked]>, Judge Richard Leon <[email-masked]>
Date: Fri, 20 Feb 2015 15:11:18 -0500

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
[email-masked]