Note: The Executive Reports, We Decide: The Constitutionality of an Executive Branch Question and Report Period

By Alex Hontos. Full text here.

Currently, Congress acquires information from the executive branch through two primary methods: the legislative subpoena or an “invitation” for an executive official to testify. These approaches are inadequate, the former often too blunt and subject to majority control while the latter too lenient and irregular.

Increased congressional scrutiny of the executive branch is all but certain, thus Congress (and the President) should embrace another information-gathering method: the question and report period. Common in virtually all parliamentary political systems, the question and report period permits elected representatives to directly question ministers and the prime minister during regularly scheduled monthly appearances.

Despite some legislative effort to mandate a question and report period, the legal scholarship contains no analysis of such a proposal’s constitutionality or its compatibility within the U.S. legal system. This Note attempts to fill that void in several ways. First, it provides a brief comparative and historical summary of the question and report period. Second, the Note proposes two constitutional justifications for such a period: the Necessary and Proper Clause and the State of the Union Clause. Third, the Note addresses two formidable barriers: separation of powers and executive privilege.

This Note concludes by outlining the permissible characteristics of an executive branch question and report period and calls on Congress to enact such a provision. Doing so would represent one important step for transparency, accountability, and the primacy of Congress.