Rep. Chip Roy (R-Texas) issued a statement today that points to the biggest obstacle congressional Republicans will face if voters give them control of the House of Representatives in the 118th Congress that convenes on Jan. 2, 2023.
That would be themselves.
Roy — who wants his GOP colleagues to grow a collective backbone — had demanded in an October 17 letter to Bobak Talebian, Director of the Department of Justice’s (DOJ) Office of Information Policy (OIP) a copy of a DOJ Freedom of Information Act (FOIA) response providing to the Center for Investigative Reporting a “never-before-released” list of every Freedom of Access to Clinic Entrances Act (FACE Act) case filed by the Justice Department since 1994.
The FACE Act is the law under which DOJ is now prosecuting pro-life demonstrators who can even be remotely construed as blocking access to abortion clinics. Eleven individuals in Tennessee were charged on October 5 under the FACE Act.
How did DOJ respond to Roy’s demand? The department acknowledged receiving it, but then did absolutely nothing, which prompted this from the Texas representative:
“Yet again, the Biden Administration is systematically stonewalling Members of Congress — in this case flat-out ignoring a demand for basic, historical information about FACE Act enforcement, that already exists, has already been compiled, and has already been provided to a left-wing organization.
This administration should release the data to the public immediately; what are they trying to hide?
The American people and their representatives must decide whether this administration or any presidential administration can be trusted with the power delegated to the DOJ by the FACE Act — an easily weaponized, likely unconstitutional statute that usurps state powers with the sole purpose of empowering the federal government to target citizens at will.
I will continue to hold this administration accountable for its unprecedented use of the FACE Act and Congress responsible for delegating sweeping power to unaccountable executive branch bureaucrats decades ago”
When officials in the Biden administration don’t want to provide documents sought by Congress, they reply, “no,” using some concocted rationalization and thus in effect say, “so sue us,” or they simply do nothing and ignore the request. Ditto during the Obama and Clinton administrations.
Republican congressmen can then release all kinds of concerned statements, issue new demands, tell every reporter who will listen about it, write outraged op-eds, and otherwise be full of sound and fury.
But it signifies nothing because the Biden bureaucrats — including both the President’s political appointees and the career civil servants who are overwhelmingly left-wing Democrats — won’t budge, knowing as they do that they aren’t risking any unpleasant consequences.
Such brass-knuckle tactics are old-hat for Democrats. Remember then-Attorney General Eric Holder who, in 2012, defied multiple congressional requests and subpoenas for documents on the Fast and Furious program, DOJ’s gun-running to Mexico?
The Republican majority in the House voted in favor of holding Holder in contempt and referred him to DOJ for prosecution. Nothing happened because guess who controlled DOJ?
The same thing occurred in 2013 when former IRS senior executive Lois Lerner refused to answer questions about her role in using the federal tax agency to target conservative, evangelical, and Tea Party non-profit exemption applicants for illegal harassment and delays.
Democrats ignore or abuse the law to play hardball and stick it to Republicans, even as those same Republicans act like Mr. Nice Guy while huffing and puffing about separation of powers, congressional prerogatives, respect for the law, and so on.
So the question is, do congressional Republicans in the House and the Senate have the political gumption to take the fight to the Democrats using the effective weapons given to them by the Constitution? Here are six of these weapons:
- Congress makes the law, so revise the FOIA and give it teeth, which it has utterly lacked since its passage in 1966. For any government employee who refuses or directs subordinates to refuse to either provide requested documents within 20 days or provide an explanation approved by the department or agency general counsel, the penalty for a first offense should be withholding one month’s gross salary. A second offense should result in termination from government employment with no appeals allowed.
- Senate Republicans should make it clear on Day One of the 118th Congress that Biden appointees will not be confirmed as long as any congressional request for documents, testimony, or data remains unfulfilled for more than 20 days.
- All funding must originate in the House. If Biden appointees or career civil servants are not responding promptly to congressional requests, start eliminating positions in the affected department or agency. Forcing executive branch officials to terminate 100 positions for every day of delay will do wonders for timely compliance with congressional requests.
- Make liberal and effective use of legislative language stipulating that “No funds under this act should be spent on X.”
- Make liberal and effective use of budget authority to zero out specific programs.
- Stop voting for annual Continuing Resolutions (CR) without extracting major concessions from Biden and the executive branch.
What are the chances a newly elected GOP congressional majority will act on any or all of these six constitutional weapons next year? I am only cautiously optimistic, having observed, reported on, and worked for congressional Republicans for lo these many years.
The situation today is remarkably like that facing the nation a dozen years ago. Several months before voters elected the Tea Party majority in the House in 2010, I wrote these words:
As political philosopher Willmoor Kendall often said, the Constitution give Congress all of ‘the ultimate weapons’ in any showdown with either of the other two branches.
With the much-esteemed Prof. George Carey of Georgetown University, Kendall argued in The Basic Symbols of the American Political Tradition that The Federalist Papers gave the nation a constitutional morality that discouraged [constitutional] showdowns, but there is no doubt that our constitutional structure is, in the final analysis, a legislative supremacy system.
The power to issue subpoenas and convene public investigations is central to those congressional weapons and for that very reason must be used with restraint and careful consideration of the issues at hand and the potential consequences that flow from the exercise of the power.
Like the Radical Republicans of Lincoln’s day, Republicans should be preparing even now for the possibility that they may indeed be in the majority after November’s contests, and preparing a systematic and constitutionally sound plan to use those subpoenas and investigations Pelosi so fears for the public good.
There are good reasons to think the lesson suggested in that last paragraph was learned, so the outcome in 2023 could be very much better for the country than it was 12 years ago.
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