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Administrative Law Primer: Statutory Definitions of 'Agency' and Characteristics of Agency Independence [May 22, 2014]
"Congress has created a variety of federal agencies to execute the law. To this end, agencies may adopt rules to implement laws and adjudicate certain disputes arising under such laws. As such, agencies enjoy considerable power to regulate different industries and affect the legal rights of people. In order to control the manner in which agencies operate, Congress has passed numerous statutes that impose procedural requirements on federal agencies. The Administrative Procedure Act, for example, dictates the procedures an agency must follow to establish a final, legally binding rule. Other statutes govern how agencies must operate internally with respect to hiring and labor practices, the maintenance of federal records, financial management, and a diverse range of other topics. […] Next, the report will explore several important statutes that regulate agencies and these statutes' respective definitions of 'agency.' These statutes include the Administrative Procedure Act, the Freedom of Information Act, the Federal Records Act, statutes governing federal employees, and the Paperwork Reduction Act. In interpreting the reach of these statutes, courts have sometimes limited their application based on an agency's operational proximity to the President, or how much control the executive branch has over the entity."
Library of Congress. Congressional Research Service
Cole, Jared P.; Shedd, Daniel T.
2014-05-22
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Federal and State Quarantine and Isolation Authority [October 9, 2014]
From the Summary: "In the wake of increasing fears about the spread of highly contagious diseases, federal, state, and local governments have become increasingly aware of the need for a comprehensive public health response to such events. An effective response could include the quarantine of persons exposed to infectious biological agents that are naturally occurring or released during a terrorist attack, the isolation of infected persons, and the quarantine of certain cities or neighborhoods. The public health authority of the states derives from the police powers granted by their constitutions and reserved to them by the Tenth Amendment to the U.S. Constitution. The authority of the federal government to prescribe quarantine and other health measures is based on the Commerce Clause, which gives Congress exclusive authority to regulate interstate and foreign commerce. Thus, state and local governments have the primary authority to control the spread of dangerous diseases within their jurisdictions, and the federal government has authority to quarantine and impose other health measures to prevent the spread of diseases from foreign countries and between states. In addition, the federal government may assist state efforts to prevent the spread of communicable diseases if requested by a state or if state efforts are inadequate to halt the spread of disease. This report provides an overview of federal and state public health laws as they relate to the quarantine and isolation of individuals and a discussion of constitutional issues that may be raised should individual liberties be restricted in a quarantine or isolation situation."
Library of Congress. Congressional Research Service
Cole, Jared P.
2014-10-09
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Ebola: Selected Legal Issues [December 16, 2014]
"Several West African countries are currently grappling with an unprecedented outbreak of Ebola virus disease (EVD). Here in the United States, where Ebola is not endemic, a handful of EVD cases have been diagnosed, and domestic transmission of the virus has occurred in only two cases to date. This report provides a brief overview of selected legal issues regarding measures to prevent transmission of Ebola virus and the civil rights of individuals affected by the disease. Quarantine and isolation are restrictions on a person's movement, imposed to prevent the spread of contagious disease. The federal government has jurisdiction over interstate and border quarantine, carried out by the Centers for Disease Control and Prevention (CDC). However, primary quarantine authority typically resides with state health departments and health officials. Every state has the authority to pass and enforce quarantine laws as an exercise of its police powers, but these laws may vary widely by state. State and federal quarantine or isolation orders may be subject to suits alleging inadequate due process or violations of equal protection, but modern legal challenges to quarantine and isolation orders are not extensive. […] The use of these measures to contain the spread of Ebola may raise a classic civil rights issue: to what extent can an individual's liberty be curtailed to advance the common good? In addition to the constitutional issues noted above, discrimination against individuals with an infectious disease may be covered by Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA), or the Air Carrier Access Act (ACAA). While quarantine and isolation effectively minimize Ebola exposure, they may also raise various employment concerns, particularly for those workers who fear losing their jobs or wages if they are forced to comply with a quarantine or isolation order. Infected workers may also be protected under the Family and Medical Leave Act (FMLA) if it can be established that they have a serious health condition, and employers whose employees could face workplace exposure to Ebola virus may be obligated to comply with applicable Occupational Safety and Health Administration (OSHA) requirements."
Library of Congress. Congressional Research Service
Cole, Jared P.; Perry, Rodney M.; Dolan, Alissa M. . . .
2014-12-16
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Disclosure of FISA Opinions-Select Legal Issues [February 24, 2014]
"In response to the disclosure of various National Security Agency (NSA) surveillance and data collection programs, a number of legislative changes to the government's intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Most FISA opinions are classified by the executive branch. Some have raised concerns that this practice permits the government to rely upon 'secret law' to justify its activities, and have proposed requiring the public release of legal opinions and orders issued by the FISC and the FISA Court of Review. However, others might regard these proposals as raising separation of powers questions, including the scope of the executive branch's control over national security information. FISA opinions and orders, most of which seem to contain at least some sensitive facts pertaining to national security, involve the legal analysis of sensitive national security information. Requiring the executive branch to release them implicates Article II of the Constitution because it compels the President to disclose potentially sensitive documents, and could override the President's classification decisions. After briefly reviewing the FISC's current procedures, this report will examine the Article II implications of requiring the executive branch to disclose FISA opinions."
Library of Congress. Congressional Research Service
Cole, Jared P.
2014-02-24
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Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview [March 31, 2014]
"In the wake of recent disclosures concerning various National Security Agency (NSA) surveillance and data collection programs, several legislative changes to the government's intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Some have proposed altering the underlying legal authorities relied on by the government when applying to the FISC, while others have suggested changes to the practices and procedures of the FISA Courts. This report provides a brief overview of the legal implications of the latter group of proposals. Some have proposed establishing an office led by a 'public advocate' who would represent the civil liberties interests of the general public and oppose the government's applications for foreign surveillance. This proposal raises several constitutional issues. For example, assuming the advocate is an agent of the government, depending on the scope of the authority provided and the amount of supervision placed over the FISA advocate's office, the lawyer who leads such an office may be a principal or inferior officer of the United States whose appointment must abide by the Appointments Clause's restrictions. Moreover, an advocate might not satisfy Article III of the Constitution's requirements for parties seeking relief."
Library of Congress. Congressional Research Service
Cole, Jared P.; Nolan, Andrew
2014-03-31
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Stored Communications Act: Reform of the Electronic Communications Privacy Act (ECPA) [May 19, 2015]
"In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to both protect the privacy of an individual's electronic communications and provide the government with a means for accessing these communications and related records. Although passed at the infancy of the Internet, the Stored Communications Act (SCA), which is part of ECPA, has been interpreted over the years to cover the content of emails, private Facebook messages, YouTube videos, and so-called metadata, or non-content information, connected to our Internet transactions (e.g., websites visited, to/from and time/date stamps on emails). The scope of the SCA is determined largely by the entities to which it applies, 'electronic communication service' (ECS) providers and 'remote computing service' (RCS) providers, as defined in the statute. It does not apply to government access to records held by a party to the communication. The SCA has two core components. First, it creates a broad bar against service providers voluntarily disclosing a customer's communications to the government or others, subject to various exceptions, and second, it establishes procedures under which the government can require a provider to disclose customers' communications or records. As to government access, ECPA utilizes a tiered system with different levels of evidence required depending on whether the provider is an ECS or RCS; whether the data sought is content or non-content; whether the email has been opened; and whether advance notice has been given to the customer."
Library of Congress. Congressional Research Service
Thompson, Richard M., II; Cole, Jared P.
2015-05-19
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Sentencing Reform: Comparison of Selected Proposals [October 26, 2015]
"This is a comparison of selected criminal sentencing reform bills as introduced: H.R. 3713, H.R. 2944, S. 502, and H.R. 920; and S. 2123 as passed by the Senate Judiciary Committee with a manager's amendment. It consists of narrative and charts comparing the bills with respect to adjustments in the mandatory minimum sentencing provisions that apply to controlled substance and firearms offenses, the safety valve, and retroactive application of the Fair Sentencing Act (FSA)."
Library of Congress. Congressional Research Service
Cole, Jared P.; Doyle, Charles
2015-10-26
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Good Cause Exception to Notice and Comment Rulemaking: Judicial Review of Agency Action [January 29, 2016]
From the Summary: "While the Administrative Procedure Act (APA) generally requires agencies to follow certain procedures when promulgating rules, the statute's 'good cause' exception permits agencies to forgo Section 553's notice and comment requirement if 'the agency for good cause finds' that compliance would be 'impracticable, unnecessary, or contrary to the public interest' and bypass its 30-day publication requirement if good cause exists. Federal courts reviewing this agency practice have varied in their analysis, resulting in confusion as to precisely what constitutes 'good cause.' In addition, some courts have indicated that these are two distinct standards; others do not always distinguish between the two. What precisely constitutes good cause is not explicit from the APA's text. In order to understand the operation of the good cause exception, it may be helpful to divide good cause cases into several categories: (1) emergencies; (2) contexts where prior notice would subvert the underlying statutory scheme; and (3) situations where Congress intends to waive Section 553's requirements."
Library of Congress. Congressional Research Service
Cole, Jared P.
2016-01-29
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General Policy Statements: Legal Overview [April 14, 2016]
"Agencies use guidance documents to set regulatory policy on a consistent basis. While 'legislative rules' carry the force of law and are required to undergo the notice and comment procedures of the Administrative Procedure Act (APA), guidance documents are exempt from these constraints and can be issued more swiftly than legislative rules. […] This report examines one type of guidance document of particular recent prominence--agency policy statements. It explores judicial doctrine regarding the difference between legislative rules and statements of policy; discusses when such statements are judicially reviewable; analyzes when courts will grant deference to agency interpretations contained in guidance documents; and notes the relative costs and benefits of potential judicial and statutory rules regarding their use."
Library of Congress. Congressional Research Service
Cole, Jared P.; Garvey, Todd
2016-04-14
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Terrorist Databases and the No Fly List: Procedural Due Process and Hurdles to Litigation [April 2, 2015]
"In order to protect national security, the government maintains various terrorist watchlists, including the 'No Fly' list, which contains the names of individuals to be denied boarding on commercial airline flights. Travelers on the No Fly list are not permitted to board an American airline or any flight on a foreign air carrier that lands or departs from U.S. territory or flies over U.S. airspace. Some persons have claimed that their alleged placement on the list was the result of an erroneous determination by the government that they posed a national security threat. In some cases, it has been reported that persons have been prevented from boarding an aircraft because they were mistakenly believed to be on the No Fly list, sometimes on account of having a name similar to another person who was actually on the list. As a result, various legal challenges to placement on the list have been brought in court."
Library of Congress. Congressional Research Service
Cole, Jared P.
2015-04-02
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Political Question Doctrine: Justiciability and the Separation of Powers [December 23, 2014]
"Article III of the Constitution restricts the jurisdiction of federal courts to deciding actual 'Cases' and 'Controversies.' The Supreme Court has articulated several 'justiciability' doctrines emanating from Article III that restrict when federal courts will adjudicate disputes. One justiciability concept is the political question doctrine, according to which federal courts will not adjudicate certain controversies because their resolution is more proper within the political branches. Because of the potential implications for the separation of powers when courts decline to adjudicate certain issues, application of the political question doctrine has sparked controversy. Because there is no precise test for when a court should find a political question, however, understanding exactly when the doctrine applies can be difficult. […] However, a recent Supreme Court case, 'Zivotofsky v. Clinton,' appears to have narrowed the scope of the political question doctrine. In a suit seeking the vindication of a statutory right in the foreign affairs context, the Court reversed a lower court's finding that the case posed a political question. The Court explained that the proper analysis in such a situation begins not by asking whether adjudicating the case would require review of the foreign policy decisions of the political branches, but instead examining whether the plaintiff correctly interpreted the statute, followed by determining whether the statute was constitutional. The Court's opinion appears to restrict the types of claims that can pose political questions, and seems to encourage courts to decide more statutory claims on the merits. In turn, the decision could lead to increased judicial resolution of controversies concerning the separation of powers, rather than resolutions between the political branches themselves."
Library of Congress. Congressional Research Service
Cole, Jared P.
2014-12-23
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Measles: Background and Federal Role in Vaccine Policy [February 9, 2015]
"The earliest accounts of measles date back over 1,000 years. This report presents basic information about this infectious disease, its history in the United States, available treatments to prevent individuals from contracting measles, and the federal role in combatting measles - from funding, to research, to the authority of the federal government in requiring mandatory childhood vaccinations. The report provides additional resources for information on measles and recommendations for vaccination against the disease. According to the U.S. Centers for Disease Control and Prevention (CDC), 'measles is a highly contagious virus that lives in the nose and throat mucus of an infected person.' It is transmitted through coughing and sneezing, and it can live for up to two hours on a surface or in an airspace where an infected person coughed or sneezed. Someone who is not immunized against measles and comes into contact with the virus has a 90% chance of becoming infected. According to the CDC, in 2013 (the most recent year in which data are available) 'the overall national coverage for MMR vaccine among children aged 19-35 months was 91.9%.' However, MMR (measles, mumps, rubella) vaccine coverage levels continue to vary by state, with 10 states reporting 95% of children aged 19-35 months receiving at least one dose of MMR vaccine, while in 17 other states, less than 90% were vaccinated. The role of the federal government in vaccine policy, particularly in the development of guidelines for when to administer specific vaccines (and when not to) and to what populations is extensive."
Library of Congress. Congressional Research Service
Barry, Matthew B.; Cole, Jared P.
2015-02-09
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Supreme Court October Term 2017: A Review of Selected Major Rulings [September 19, 2018]
"On October 2, 2017, the Supreme Court began one of the most notable terms in recent memory. The latest term of the Court was the first full term for Justice Neil Gorsuch,who succeeded Justice Antonin Scalia following his death in February 2016. The October Term 2017 was also the last term for Justice Anthony Kennedy, who retired in July 2018. With nine Justices on the Court for the first time at the beginning of a term since October 2015, this past term witnessed the High Court issuing fewer unanimous opinions and more rulings that were closely divided relative to previous terms."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Cole, Jared P. . . .
2018-09-19
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Who's the Boss at the CFPB? [Updated January 11, 2018]
"'Update: On January 10, 2018, the U.S. District Court for the District of Columbia denied Leandra English's request for a preliminary injunction, ruling that the Federal Vacancies Reform Act (Vacancies Act) authorized the President to appoint Mick Mulvaney to serve as the Acting Director of the CFPB [Customer Financial Protection Bureau]. Since the Sidebar below was originally published, English filed an amended complaint and moved for a preliminary injunction on substantially similar grounds to those described below. In rejecting her motion, the district court held that because the provision of the Dodd-Frank Act that authorizes the Deputy Director to serve as the Acting Director when the Director is absent or unavailable did not expressly displace the Vacancies Act, the Vacancies Act remained available and authorized the President to fill the position. English had also argued that even if the Vacancies Act generally would allow the President to appoint an Acting Director, because Mulvaney is also the head of the Office of Management and Budget, an agency housed directly under the White House, he may not head an independent agency like the CFPB.'"
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2018-01-11
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D.C. Circuit Upholds as Constitutional the Structure of the CFPB - Part I [February 12, 2018]
"The entire U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a potentially important decision on January 31, upholding the structural design of the Consumer Financial Protection Bureau (CFPB). The en banc court held by a vote of 7-3 that the agency's various statutory elements of independence, including a provision that limited the President's authority to remove the CFPB Director, do not infringe upon the President's powers under Article II of the Constitution. The decision, PHH Corp. v. CFPB, comes after a previous (but since vacated) three-judge panel decision held that providing removal protections to the sole director of the CFPB violated the Constitution. Although the en banc court rejected the earlier panel's constitutional reasoning, the D.C. Circuit nonetheless reinstated the previous decision's statutory holding, which had invalidated the CFPB's interpretation of the Real Estate Settlement Procedures Act of 1974 (RESPA). The D.C. Circuit's latest decision therefore effectively rejected the CFPB enforcement action that gave rise to the case, but reaffirmed, and may expand, what is likely Congress's chief tool for ensuring agency independence: the use of 'for-cause' removal protections. This two-part Sidebar series begins with a brief summary of the Supreme Court's views of the President's removal power before addressing the PHH litigation and the en banc majority opinion. Part II of this series will address some of the separate opinions issued in the case and then highlight certain implications for Congress."
Library of Congress. Congressional Research Service
Garvey, Todd; Cole, Jared P.
2018-02-12
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D.C. Circuit Upholds as Constitutional the Structure of the CFPB - Part II [February 12, 2018]
"As discussed in Part I of this two-part Sidebar, the en banc U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a decision last week upholding the structural design of the Consumer Financial Protection Bureau (CFPB). The court ruled in PHH Corp. v. CFPB that the features of independence granted to the agency in the Dodd Frank Act, including a provision that limits the circumstances in which the President can remove the CFPB Director, do not violate Article II's vestment of executive power in the President. While Part I discusses the court's majority opinion, this part examines several of the separate opinions from PHH that take a different view of the constitutional issues at stake in the case. The Sidebar then concludes with some considerations for Congress, including the potential impact of the decision for the independence of federal agencies and the possibility of Supreme Court review of the en banc ruling."
Library of Congress. Congressional Research Service
Cole, Jared P.; Garvey, Todd
2018-02-12
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Who Can Serve as Acting Attorney General [November 15, 2018]
"A recent shake-up in the leadership at the Department of Justice (DOJ) has brought to the fore a number of unresolved legal questions surrounding the President's ability to name acting officers. The controversy began on November 7, 2018, when then-Attorney General (AG) Jeff Sessions resigned at the President's request. As a position subject to the advice and consent process contemplated in the Appointments Clause of the Constitution, the AG's office will remain vacant until a presidential nominee is confirmed by the Senate. But in the interim, the President named Matthew Whitaker, the former AG's chief of staff, to serve as Acting AG, performing the duties of that office while it remains vacant. To install Whitaker as Acting AG, the President invoked the Federal Vacancies Reform Act of 1998 (Vacancies Act), a law that authorizes certain government officials to temporarily perform the duties of most executive offices that require Senate confirmation."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2018-11-15
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Terrorist Databases and the No Fly List: Procedural Due Process and Other Legal Issue [Updated July 27, 2016]
From the Document: "In order to protect national security, the government maintains various terrorist watchlists, including the 'No Fly' list, which contains the names of individuals to be denied boarding on commercial airline flights. Travelers on the No Fly list are not permitted to board an American airline or any flight on a foreign air carrier that lands or departs from U.S. territory or flies over U.S. airspace. Some individuals have claimed that their alleged placement on the list was the result of an erroneous determination by the government that they posed a national security threat. In some cases, it has been reported that persons have been prevented from boarding an aircraft because they were mistakenly believed to be on the No Fly list, sometimes on account of having a name similar to another person who was actually on the list. As a result, various legal challenges to placement on the list have been brought in court."
Library of Congress. Congressional Research Service
Cole, Jared P.
2016-07-27
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Title IX and Sexual Harassment: Private Rights of Action, Administrative Enforcement, and Proposed Regulations [April 12, 2019]
From the Document: "Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment at educational institutions. It bars discrimination 'on the basis of sex' in an educational program or activity receiving federal funding. Although Title IX makes no explicit reference to sexual harassment or abuse, the Supreme Court and federal agencies have determined that such conduct can sometimes constitute discrimination in violation of the statute; educational institutions in some circumstances can be held responsible when a teacher sexually harasses a student or when one student harasses another. Title IX is mainly enforced (1) through private rights of action brought directly against schools by or on behalf of students subjected to sexual misconduct; and (2) by federal agencies that provide funding to educational programs."
Library of Congress. Congressional Research Service
Cole, Jared P.; Back, Christine J.
2019-04-12
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Impeachment and Trial of a Former President [January 15, 2021]
From the Document: "For the second time in just over a year, the House of Representatives has voted to impeach President Donald J. Trump. The House previously voted to impeach President Trump on December 18, 2019, and the Senate voted to acquit the President on February 5, 2020. Because the timing of this second impeachment vote is so close to the end of the Trump Administration, it is possible that any resulting Senate trial may not occur until after President Trump leaves office on January 20, 2021. This possibility has prompted the question of whether the Senate can try a former President for conduct that occurred while he was in office."
Library of Congress. Congressional Research Service
Cole, Jared P.; Garvey, Todd
2021-01-15
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Who's the Boss at the CFPB? [November 28, 2017]
"As consumers flocked to shopping outlets nationwide on Black Friday, a leadership shakeup ensued at the Consumer Financial Protection Bureau (CFPB). The CFPB's Director, Richard Cordray, announced that he had appointed Leandra English, the agency's chief of staff, to the position of Deputy Director. Cordray then resigned and stated that English would become the Acting Director of the agency, meaning that she would serve until the Senate confirms a permanent replacement. However, later that day, President Trump announced that he was designating Mick Mulvaney, the Director of the Office of Management and Budget, to serve as Acting Director of the CFPB. On Sunday, November 26, English brought suit in federal court seeking a declaration that she is the Acting Director of the CFPB, along with a temporary restraining order barring Mulvaney from acting in the position and President Trump from appointing any individual to the position. As of the date of this Sidebar, both English and Mulvaney have reportedly claimed to be Acting Director in communications to CFPB staff. Ruling from the bench on November 28, the federal judge presiding over English's suit denied English's motion for a temporary restraining order that would have prohibited Mulvaney from holding the position."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2017-11-28
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Impeachment and Removal [October 29, 2015]
"The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal 'civil officers'1 upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors. Impeachment is one of the various checks and balances created by the Constitution, and is a crucial tool for potentially holding government officers accountable for violations of the law and abuse of power. Rooted in various constitutional provisions, impeachment is largely immune from judicial review.2 When considering impeachment matters, Members of Congress have historically examined the language of the Constitution; past precedents; the debates at the Constitutional Convention; the debates at the ratifying conventions; English common law and practice; state impeachment practices; analogous case law; and historical commentaries. Although the term 'impeachment' is commonly used to refer to the removal of a government official from office, the impeachment process, as described in the Constitution, entails two distinct proceedings carried out by the separate houses of Congress. First, a simple majority of the House impeaches--or formally approves allegations of wrongdoing amounting to an impeachable offense, known as articles of impeachment. The articles of impeachment are then forwarded to the Senate where the second proceeding takes place: an impeachment trial. If the Senate, by vote of a two-thirds majority, convicts the official of the alleged offenses, the result is removal from office of those still in office, and, at the Senate's discretion, disqualification from holding future office. […] This report briefly surveys the constitutional provisions governing the impeachment power, examines which individuals are subject to impeachment, and explores the potential grounds for impeachment. In addition, it provides a short overview of impeachment procedures in the House and Senate and concludes with a discussion of the limited nature of judicial review for impeachment procedures."
Library of Congress. Congressional Research Service
Cole, Jared P.; Garvey, Todd
2015-10-29
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Applicability of Federal Civil Rights Laws to Recipients of CARES Act Loans [May 1, 2020]
From the Document: "The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) authorizes the Small Business Administration (SBA) to provide economic assistance temporarily to eligible organizations. Section 1102 of the CARES Act establishes the Paycheck Protection Program (PPP), which enlarges the SBA's authority to guarantee loans under Section 7(a) of the Small Business Act. Section 1110 of the CARES Act broadens SBA's authority to distribute Economic Injury Disaster Loans (EIDL) under Section 7(b)(2) of the Small Business Act. Applicants for the latter loan can receive an emergency grant advance that the recipient does not have to repay, even if the loan is denied. [...] This extension of federal funds to new recipients raises questions about what obligations may accompany the issuance of such loans. Various federal civil rights laws condition the receipt of federal funds on recipients' adherence to certain antidiscrimination mandates. This Sidebar examines the potential application of these civil rights laws to recipients of EIDL grants and PPP and EIDL loans. It also considers potential limits on the scope of these obligations."
Library of Congress. Congressional Research Service
Cole, Jared P.
2020-05-01
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New Title IX Sexual Harassment Regulations Overhaul Responsibilities for Schools [May 27, 2020]
From the Document: "The Department of Education (ED) published new regulations implementing Title IX of the Education Amendments of 1972 (Title IX) on May 19, 2020. Title IX prohibits discrimination on the basis of sex in education programs or activities that receive federal financial assistance. While Title IX does not specifically mention sexual harassment, courts and ED have determined that the response of a recipient educational institution to incidents of sexual harassment can constitute discrimination based on sex. The new Title IX regulations establish requirements that schools must follow in responding to sexual harassment allegations, marking a major change from the expectations announced in previous guidance documents, as well as departing in many ways from the provisions in the Notice of Proposed Rulemaking (NPRM) that invited public comment on the rules."
Library of Congress. Congressional Research Service
Cole, Jared P.
2020-05-27
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Supreme Court Rules Title VII Bars Discrimination Against Gay and Transgender Employees: Potential Implications [June 17, 2020]
From the Document: "On June 15, 2020, the Supreme Court issued a decision in a series of cases brought by gay and transgender workers alleging that their employers violated Title VII of the Civil Rights Act of 1964 (Title VII) by discriminating against them 'because of . . . sex.' The Court held 6-3 in 'Bostock v. Clayton County, Georgia' that Title VII forbids employers from firing an individual for being gay or transgender. The Court's decision in Bostock was consolidated with two other cases, 'Altitude Express, Inc. v. Zarda' and 'R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC'. (An earlier Sidebar addresses lower court decisions in these cases and provides further background on Title VII.) This Sidebar explains the Court's holding in 'Bostock' and highlights some potential implications of the decision for other areas of the law, including the 'bona fide occupational qualification' (BFOQ) exception in Title VII; constitutional exceptions and religious-based exemptions to Title VII; various aspects of Title IX of the Education Amendments of 1972 (Title IX); and statutes that incorporate Title IX's requirements, such as the Affordable Care Act."
Library of Congress. Congressional Research Service
Cole, Jared P.
2020-06-17
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No Fly List: Procedural Due Process and Hurdles to Litigation [September 18, 2014]
"In order to protect national security, the government maintains various terrorist watchlists, including the 'No Fly' list, which contains the names of individuals to be denied boarding on commercial airline flights. Travelers on the No Fly list are not permitted to board an American airline or any flight on a foreign air carrier that lands or departs from U.S. territory or flies over U.S. airspace. Some persons have claimed that their alleged placement on the list was the result of an erroneous determination by the government that they posed a national security threat. In some cases, it has been reported that persons have been prevented from boarding an aircraft because they were mistakenly believed to be on the No Fly list, sometimes on account of having a name similar to another person who was actually on the list. As a result, various legal challenges to placement on the list have been brought in court. […] The Due Process Clause provides that no person shall be 'deprived of life, liberty, or property, without due process of law.' Accordingly, when a person has been deprived of a constitutionally protected liberty interest, the government must follow certain procedures. Several courts have found that placement on the No Fly list may impair constitutionally protected interests, including the right to travel internationally, and the government's redress procedures must therefore satisfy due process. […] Resolution of the issue is currently pending as at least two federal courts have ruled that the government's redress procedures for travelers challenging placement on the No Fly list violate due process."
Library of Congress. Congressional Research Service
Cole, Jared P.
2014-09-18
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Special Counsels, Independent Counsels, and Special Prosecutors: Legal Authority and Limitations on Independent Executive Investigations [April 13, 2018]
"The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials."
Library of Congress. Congressional Research Service
Cole, Jared P.; Brown, Cynthia
2018-04-13
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Civil Service Reform Act: Due Process and Misconduct-Related Adverse Actions [March 29, 2017]
"Federal employees receive statutory protections that differ from those of the private sector, including more robust limits on when they can be removed or demoted. Although a number of laws apply to various aspects of the federal civil service system, the primary governing framework is the Civil Service Reform Act of 1978 (CSRA), as amended. The CSRA created a comprehensive system for reviewing actions taken by most federal agencies against their employees, and the act provides a variety of legal protections and remedies for federal employees. It also funnels review of agency decisions to the Merit Systems Protection Board (MSPB), subject to review by the United States Court of Appeals for the Federal Circuit (Federal Circuit). In addition to these statutory protections, the Due Process Clause of the Fifth Amendment requires the federal government to observe certain procedures when depriving individuals of life, liberty, or property. The CSRA's requirement that covered employees may not be removed from federal service, except for cause or unacceptable performance, creates a constitutional property interest in continued employment. The government cannot deprive covered employees of this property interest without adhering to due process requirements."
Library of Congress. Congressional Research Service
Cole, Jared P.
2017-03-29
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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court [March 8, 2017]
From the Document: "On January 31, 2017, President Donald J. Trump announced the nomination of Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme Court of the United States created by the death of Justice Antonin Scalia in 2016. Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. The Tenth Circuit's territorial jurisdiction covers Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and parts of Yellowstone National Park that extend into Idaho and Montana. […] This report provides an overview of Judge Gorsuch's jurisprudence and discusses how the Supreme Court might be affected if he were to succeed Justice Scalia. In particular, the report focuses on those areas of law where Justice Scalia can be seen to have influenced the High Court's approach to particular issues or provided a fifth and deciding vote on the Court, with a view toward how the nominee might approach those same issues. The report begins by discussing the nominee's views on two cross-cutting issues-the role of the judiciary and statutory interpretation. It then addresses fourteen separate areas of law, arranged in alphabetical order, from 'administrative law' to 'takings.' The report includes a table that notes the cases where the Supreme Court has reviewed majority opinions written or joined by Judge Gorsuch. Another set of tables in this report analyzes the nominee's concurrences and dissents and those of his colleagues on the Tenth Circuit."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Caitlain Devereaux; Manuel, Kate . . .
2017-03-08
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Organizing Executive Branch Agencies: Who Makes the Call? [June 27, 2018]
"In a series of executive orders, directives, and publicly released recommendations, the Trump Administration has proposed reorganizing the executive branch. The reorganization proposals range from restructuring entities within an existing agency, to moving entities from one existing agency to another, to consolidating existing agencies into newly created departments, to privatizing certain government agencies. The Administration has indicated that it considers some of these proposals to be within its existing authority, while others may require new legislation authorizing such action. These orders and proposals have prompted a recurring question concerning the composition of the federal government: who decides how to organize agencies and departments within the executive branch? The ultimate answer to this question is Congress. Legislative enactments create executive agencies and delegate authority to those entities to carry out various statutory functions and duties. But executive branch agencies also typically enjoy some discretion in determining how best to structure themselves to carry out their statutory responsibilities, provided that reorganization does not conflict with their governing statutes or legislative funding restrictions."
Library of Congress. Congressional Research Service
Cole, Jared P.
2018-06-27
