By Nicole Banister | Due Process Institute | Policy Counsel
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” – James Madison, Federalist Paper 51.
The framers of the Constitution took great pains to ensure that each branch of government would provide an effective check and balance on the others. “The Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility.”[1] This constitutional principle is even more critical at a time when one house of Congress will seek to provide effective oversight of an executive branch mired in controversy.
One often-unknown area where the lines between the executive and legislative branches are blurred is in the ability of executive agencies to detail employees to Congressional committees. Known as “detailees,” these individuals remain employees of the executive agency and on the executive agency payroll. The assignments usually last for twelve months and must abide by House and Senate rules. While the Senate does not place a cap on the number of detailees committees may receive, the House limits the number to ten percent of the committee’s permanent staff ceiling.
Admittedly, detailees provide numerous benefits to Congressional committees and offices. Because they are paid by the executive agency from which they are detailed, they can be a cost-effective way to add capacity to Congressional staff. Most detailees are mid-career professionals who likely bring extensive experience in their specific policy area. Furthermore, they provide significant insight into agency activity as they are assigned to the committee tasked with oversight of their executive agency, such as the Federal Communications Commission detailee assigned to the Senate Subcommittee on Communications, Technology, Innovation, and the Internet.
While detailees may appear to be a sensible addition to Congressional committees, their existence is not only contrary to the Constitution but also undermines the ability of constituents and advocates to have their voice heard. Because there is no requirement that detailees introduce or identify themselves as executive agency employees, advocates or members of the public seeking meetings with committee staff are completely unaware that they might be dealing with executive agency representatives. Their business cards and their email addresses are indistinguishable from Congressional staffers. So, while a constituent group may raise concerns about Treasury Department action to a Senate Banking Committee staffer, a current Treasury employee is often hidden in plain sight during that meeting.
In meetings with Judiciary Committee staff, criminal justice reform advocates are often raising issues regarding Department of Justice policies and actions. Unbeknownst to them, the Department of Justice representative is not only present in that meeting but able to counter the advocates’ arguments with their own position. While regular full-time staff may attempt to hear both sides of the issue fairly and equally, the fact is that the DOJ detailee sits in that same committee office with that staffer. How can outside groups expect to adequately advocate for legislative reforms to the criminal justice system when the very agencies they seek to change are imbedded in Congressional offices? Not only are detailees influencing the direction of legislative action, two political science professors, Russell Mills and Jennifer Selin, found that “when committees have more detailees, they hold fewer oversight hearings.” The duty of loyalty for a DOJ employee is to the DOJ not to the member’s constituents. When it comes to seeking policy change, detailees inherently push the agenda of their executive agency. While they may attempt to be neutral and fair-minded, at the end of the day the DOJ detailee is a prosecutor not a Congressional staffer.
This conflict of interest has expanded over the past two decades. According to a recent report, while the number of committee staff has decreased by thirty-five percent in the House and fifteen percent in the Senate over the past twenty years, the number of detailees has increased by over three-hundred percent. As of today, there are at least seventy-six executive agency detailees assigned to Congressional committees and offices.
Created as a part of the Legislative Reorganization Act of 1946,[2] the detailee arrangement has undoubtedly influenced the creation of legislation and existence of oversight hearings for decades. While the same Act sought to reassert congressional oversight power and “reorganize the unwieldy congressional committee system,” it also established the program to subvert the separation of powers and imbed executive branch operatives within legislative bodies.[3]
While the detailee program may appear to be a mere money-saving tactic by a Congress with a modest budget and a dwindling staff rather than a constitutional crisis, it directly contradicts the intention of the framers. As Chief Justice Burger notes “it is crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency.”[4] The Constitution is strict in its division between executive and legislative power and the placement of executive agents within policy-making roles clearly contravenes fundamental constitutional principles.
The concerns laid out by James Madison in Federalist Paper 51 focus on the danger of one branch of government attempting to usurp the power of the others, leading to tyranny. The founders intended that three branches of government would each have enough independence and power to adequately check the others. By granting individuals within the executive branch the power to influence policy making, we are ceding greater authority to Article II at the expense of Article I. Of relevance to many in the coming months, consider that if the new Congress is intending to conduct effective oversight of the Trump Administration, having members of executive agencies operating within Congressional committees disrupts and dismantles that authority. For any constituent or advocate hoping to make their voice heard to their members of Congress, the intrusion of the executive branch denies them their fundamental right to a representative government.
[1] I.N.S. v. Chadha, 462 U.S. 919, 951, (1983).
[2] 60 Stat 812.
[3] David Fontana & Aziz Z. Huq, Institutional Loyalties in Constitutional Law, 85 U. Chi. L. Rev. 1, 7 (2018)
[4] I.N.S. v. Chadha, 462 U.S. 919, 958–59 (1983).