Army Work on Border Barrier Construction Advances

At the request of the Department of Homeland Security, the Army Corps of Engineers has undertaken numerous barrier construction projects along the border with Mexico in California, Arizona and New Mexico.

The latest projects were itemized by the Congressional Research Service in Army Corps of Engineers and U.S. Southern Border Barriers, CRS In Focus, May 22, 2019.

Some other noteworthy new publications from the Congressional Research Service include the following.

Defense Primer: Acquiring Specialty Metals, Rare Earth Magnets, and Tungsten, CRS In Focus, May 24, 2019

The Economic Effects of the 2017 Tax Revision: Preliminary Observations, May 22, 2019

Legislative Purpose and Adviser Immunity in Congressional Investigations, CRS Legal Sidebar, May 24, 2019

An Overview of State and Federal Authority to Impose Vaccination Requirements, CRS Legal Sidebar, May 22, 2019

Active Duty Military Deaths, and More from CRS

“Since 2006 — five years after the start of major combat operations in Afghanistan and three years after the U.S.-led invasion of Iraq — a total of 16,652 active duty personnel and mobilized reservists have died while serving in the U.S. armed forces,” the Congressional Research Service said, based on data obtained from the Department of Defense. See Recent Trends in Active-Duty Military DeathsCRS In Focus, updated May 20, 2019.

Other new and updated reports from the Congressional Research Service include the following.

Military Personnel and Extremism: Law, Policy, and Considerations for CongressCRS Insight, updated May 16, 2019

United States Foreign Intelligence Relationships: Background, Policy and Legal Authorities, Risks, Benefits, May 15, 2019

Global Human Rights: The Department of State’s Country Reports on Human Rights PracticesCRS In Focus, updated May 20, 2019

Combating Corruption in Latin America: Congressional Considerations, May 21, 2019

Cuba: Trump Administration Expands SanctionsCRS Insight, May 17, 2019

The European Parliament and U.S. InterestsCRS In Focus, May 16, 2019

Long Live Cash: The Potential Decline of Cash Usage and Related Implications, May 10, 2019

Electronic Messaging Recordkeeping RequirementsCRS In Focus, May 21, 2019

Nuclear Waste Storage Sites, and More from CRS

Noteworthy new publications from the Congressional Research Service include the following.

Nuclear Waste Storage Sites in the United States, CRS In Focus, May 3, 2019

Proposed Civilian Personnel System Supporting “Space Force”, CRS In Focus, May 7, 2019

Base Closure and Realignment (BRAC): Background and Issues for Congress, April 25, 2019

Congressional Access to the President’s Federal Tax Returns, CRS Legal Sidebar, updated May 7, 2019

“Sanctuary” Jurisdictions: Federal, State, and Local Policies and Related Litigation, updated May 3, 2019

Terrorism, Violent Extremism, and the Internet: Free Speech Considerations, May 6, 2019

Electronic Warfare, and More from CRS

Noteworthy new publications from the Congressional Research Service include the following.

Defense Primer: Electronic WarfareCRS In Focus, updated April 12, 2019

U.S. Military Electronic Warfare Research and Development: Recent Funding ProjectionsCRS Insight, April 15, 2019

Assessing Commercial Disclosure Requirements under the First Amendment, April 23, 2019

The National Institutes of Health (NIH): Background and Congressional Issues, updated April 19, 2019

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, April 18, 2019

Selected Homeland Security Issues in the 116th Congress, April 23, 2019

Can the President Close the Border? Relevant Laws and ConsiderationsCRS Legal Sidebar, April 12, 2019

Central American Migration: Root Causes and U.S. PolicyCRS In Focus, March 27, 2019

Cooperative Security in the Middle East: History and ProspectsCRS In Focus, updated April 11, 2019

International Criminal Court: U.S. Response to Examination of Atrocity Crimes in AfghanistanCRS Insight, updated April 16, 2019

Nuclear Cooperation: Part 810 AuthorizationsCRS In Focus, April 18, 2019

U.S. War Costs, Casualties, and Personnel Levels Since 9/11CRS In Focus, April 18, 2019

Enforcing Compliance with Congressional Subpoenas

The House Judiciary Committee said that it will meet this week to authorize a subpoena for release (to Congress) of the complete Mueller report, without redactions, as well as the supporting evidence gathered by the now-concluded Special Counsel investigation.

If a subpoena is issued, what happens then?

“When Congress finds an inquiry blocked by the withholding of information by the executive branch, or where the traditional process of negotiation and accommodation is inappropriate or unavailing, a subpoena — either for testimony or documents — may be used to compel compliance with congressional demands,” a new report from the Congressional Research Service explains. “The recipient of a duly issued and valid congressional subpoena has a legal obligation to comply, absent a valid and overriding privilege or other legal justification.”

However, “the subpoena is only as effective as the means by which it may be enforced. Without a process by which Congress can coerce compliance or deter non-compliance, the subpoena would be reduced to a formalized request rather than a constitutionally based demand for information.”

Today, Congress has a limited set of tools at its disposal to enforce subpoenas.

“Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas,” including criminal contempt citations and civil enforcement. “But these mechanisms do not always ensure congressional access to requested information,” CRS said.

To compel executive branch compliance with a subpoena, additional steps may be necessary.

“There would appear to be several ways in which Congress could alter its approach to enforcing committee subpoenas issued to executive branch officials,” the new CRS report said.

“These alternatives include the enactment of laws that would expedite judicial consideration of subpoena-enforcement lawsuits filed by either house of Congress; the establishment of an independent office charged with enforcing the criminal contempt of Congress statute; or the creation of an automatic consequence, such as a withholding of appropriated funds, triggered by the approval of a contempt citation. In addition, either the House or Senate could consider acting on internal rules of procedure to revive the long-dormant inherent contempt power as a way to enforce subpoenas issued to executive branch officials.”

In any case, “Congress’s ability to issue and enforce its own subpoenas is essential to the legislative function and an ‘indispensable ingredient of lawmaking’,” CRS said (quoting a 1975 US Supreme Court opinion). See Congressional Subpoenas: Enforcing Executive Branch Compliance, March 27, 2019.

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Other noteworthy new publications from the Congressional Research Service include the following.

Congressional Participation in Litigation: Article III and Legislative Standing, updated March 28, 2019

Assessing NATO’s Value, updated March 28, 2019

FY2020 Defense Budget Request: An OverviewCRS Insight, updated March 26, 2019

Defense Primer: Military Use of the Electromagnetic SpectrumCRS In Focus, March 27, 2019

Defense Primer: U.S. Policy on Lethal Autonomous Weapon SystemsCRS In Focus, March 27, 2019

Iraq: Issues in the 116th Congress, March 26, 2019

Free Speech and the Regulation of Social Media Content, March 27, 2019

The Longest “Emergency”: 40 Years and Counting

Yesterday, the Department of Justice announced that an Australian man had been sentenced to 24 months in prison for illegally exporting aircraft parts and other items to Iran without a license, in violation of a law known as the International Emergency Economic Powers Act (IEEPA). The case relied on a 1979 declaration of national emergency that remains in force.

The IEEPA, which gives the President the power to regulate certain economic transactions, can only be used under conditions of a national emergency. But it is the most frequently used of all of the reported 123 emergency statutes that have been adopted under the National Emergencies Act.

A major new report from the Congressional Research Service documents the history and application of the IEEPA as a tool of presidential emergency power. See The International Emergency Economic Powers Act: Origins, Evolution, and Use, March 20, 2019.

The “emergency” that made it possible to apply the IEEPA against the Austrailian exporter who was sentenced yesterday is the first, the oldest and the longest emergency ever declared under the National Emergencies Act. It was pronounced by President Carter in response to the seizure of the U.S. embassy by Iran in 1979.

“Six successive Presidents have renewed that emergency annually for nearly forty years,” CRS noted, and it “may soon enter its fifth decade… As of March 1, 2019, that emergency is still in effect, largely to provide a legal basis for resolving matters of ownership of the Shah’s disputed assets.”

In ordinary language, a condition that persists for decades cannot properly be termed an “emergency.”

Such “permanent emergencies are unacceptable,” wrote Elizabeth Goitein of the Brennan Center for Justice in a March 17 Wall Street Journal op-ed. “Once approved by Congress, states of emergency should expire after six months unless Congress votes to renew them,” she suggested, “and no emergency should exceed five years. Conditions lasting that long are not unforeseen or temporary, which are basic elements of an emergency.”

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Some other noteworthy new publications from the Congressional Research Service include the following.

Evaluating DOD Strategy: Key Findings of the National Defense Strategy Commission, CRS In Focus, March 19, 2019

International Trophy Hunting, March 20, 2019

U.S. Global Health Assistance: FY2017-FY2020 Request, CRS In Focus, updated March 14, 2019

U.S. Health Care Coverage and Spending, CRS In Focus, updated March 21, 2019

Federal Disaster Assistance for Agriculture, CRS In Focus, updated March 19, 2019

Europe’s Refugee and Migration Flows, CRS In Focus, updated March 20, 2019

U.S. Intelligence Community (IC): Appointment Dates and Appointment Legal Provisions for Selected IC Leadership, CRS In Focus, updated March 19, 2019

Proposed Air Force Acquisition of New F-15EXs, CRS Insight, March 19, 2019

Judicial Nomination Statistics and Analysis: U.S. District and Circuit Courts, 1977-2018, March 21, 2019

A Low-Yield, Submarine-Launched Nuclear Warhead: Overview of the Expert Debate, CRS In Focus, March 21, 2019

Demolishing and Creating Norms of Disclosure

By refusing to disclose his tax returns, President Trump has breached — and may have demolished — the longstanding norm under which sitting presidents and presidential candidates are expected to voluntarily disclose their federal tax returns. At the same time, there is reason to think that new norms of disclosure can be created.

The conditions under which Congress could legally obtain President Trump’s federal tax returns were reviewed in a new assessment from the Congressional Research Service.

CRS “analyzes the ability of a congressional committee to obtain the President’s tax returns under provisions of the Internal Revenue Code (IRC); whether the President or the Treasury Secretary might have a legal basis for denying a committee request for the returns; and, if a committee successfully acquires the returns, whether those returns legally could be disclosed to the public.” See Congressional Access to the President’s Federal Tax Returns, CRS Legal Sidebar, March 15, 2019.

Against this backdrop of defiant presidential secrecy, it is interesting to note that the Department of Defense yesterday disclosed the amount of its FY2020 request for the Military Intelligence Program (MIP), as it has now done for several years. This is a practice that was adopted for the first time by the Obama Administration, even though no law or regulation required it. To the contrary, it had previously been considered classified information. (Disclosure of the budget request for the National Intelligence Program, which also occurred yesterday, has been required by statute since 2010.)

Today, disclosure of the MIP budget request and other intelligence budget information is such a regular event that it is taken for granted. It is one of several new milestones in disclosure of national security information that were achieved in the Obama years, many of which survive to the present.

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Some other new and updated publications from the Congressional Research Service include the following.

Arms Control and Nonproliferation: A Catalog of Treaties and Agreements, updated March 18, 2019

Direct Overt U.S. Aid Appropriations for and Military Reimbursements to Pakistan, FY2002-FY2020, updated March 12, 2019

Nord Stream 2: A Fait Accompli?, CRS In Focus, March 18, 2019

U.S. Global Health Assistance: FY2017-FY2020 Request, CRS In Focus, updated March 14, 2019

Low Interest Rates, Part III: Potential Causes, CRS Insight, March 15, 2019

Farm Debt and Chapter 12 Bankruptcy Eligibility, CRS Insight, March 15, 2019

Huawei v. United States: The Bill of Attainder Clause and Huawei’s Lawsuit Against the United States, CRS Legal Sidebar, March 14, 2019

Special Counsels, Independent Counsels, and Special Prosecutors: Legal Authority and Limitations on Independent Executive Investigations, updated March 13, 2019

The Mueller Report: Can Congress Get It?

If the Attorney General decided to withhold portions of the pending report of the Special Counsel, he might justify his decision by citing legal protections for grand jury information and for executive privilege.

But there are exceptions to both of these categories, and Congress has tools of its own to pursue the desired information, the Congressional Research Service said in a new assessment.

With respect to grand jury information in the Special Counsel report, “Congress could opt to seek documents or testimony from grand jury witnesses themselves,” CRS said.

As for executive privilege, it “is generally qualified, and can be surmounted (in court) if Congress can show an overriding need for the information.” See The Special Counsel’s Report: Can Congress Get It?, CRS Legal Sidebar, March 8, 2019 And see, relatedly, The Special Counsel’s Report: What Do Current DOJ Regulations Require?, CRS Legal Sidebar, March 7, 2019.

Other noteworthy new and updated reports from the Congressional Research Service include the following.

Membership of the 116th Congress: A Profile, March 7, 2019

Foreign Agents Registration Act: An Overview, CRS In Focus, updated March 7, 2019

United States European Command: Overview and Key Issues, CRS In Focus, March 12, 2019

The War Powers Resolution: Concepts and Practice, updated March 8, 2019

Strategic Competition and Foreign Policy: What is “Political Warfare”?, CRS In Focus, March 8, 2019

Defense Primer: A Guide for New Members, updated March 8, 2019

What is a National Emergency?, and More from CRS

Noteworthy new publications from the Congressional Research Service include the following.

Definition of National Emergency under the National Emergencies ActCRS Legal Sidebar, March 1, 2019

Foreign Affairs Overseas Contingency Operations (OCO) Funding: Background and Current StatusCRS In Focus, updated March 4, 2019

EU Data Protection Rules and U.S. ImplicationsCRS In Focus, updated February 7, 2019

Stock Buybacks: Background and Reform ProposalsCRS Legal Sidebar, February 27, 2019

U.S. Nuclear Weapons Policy: Considering “No First Use”CRS Insight, updated March 1, 2019

National Emergencies, & More from CRS

New and updated publications from the Congressional Research Service, some but not all of which are now published at crsreports.congress.gov, include the following.

National Emergency Powers, updated February 27, 2019

Department of Defense Use of Other Transaction Authority: Background, Analysis, and Issues for Congress, updated February 22, 2019

Defense Primer: Electronic Warfare, CRS In Focus, February 26, 2019

U.S. Foreign Assistance, CRS In Focus, updated February 25, 2019

NAFTA Renegotiation and the Proposed United States-Mexico-Canada Agreement (USMCA), updated February 26, 2019

Immigration: U.S. Asylum Policy, February 19, 2019

Uyghurs in China, CRS In Focus, updated February 15, 2019

Firearms Background Checks Under H.R. 8 and H.R. 1112, CRS In Focus, updated February 22, 2019

Arms Sales: Congressional Review Process, updated February 25, 2019

Federal Records: Types and Treatments, CRS In Focus, February 26, 2019