UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF THE GENERAL COUNSEL February 7, 2020 The Honorable Carolyn B. Maloney Chairwoman Committee on Oversight and Reform US. House of Representatives Washington, DC. 205 15 Dear Chairwoman Maloney: Thank you for your February 3, 2020 letter to Secretary DeVos. She shared your letter with me, and I am pleased to respond on her behalf. Secretary DeVos took of?ce in February 2017. Since then, this Department has received on average 1.8 congressional information requests per day. We have satis?ed over 95% of those requests, and we are working diligently to complete the few outstanding. Repeatedly, we have offered and provided staff and principal brie?ngs and hearing appearances by senior Department of?cials and subject matter experts on matters of Congressional concern. Our Secretary has testi?ed ten times before the House and Senate. She is scheduled to testify before two additional congressional committees, one the last week of February and one the ?rst week of March. In fact, our Secretary and other senior department of?cials have testi?ed twelve times in the 1 16th Congress alone. This is hardly the record of a Cabinet Secretary who ignores or de?es law?il oversight, or of a Department that ignores its important constitutional obligation to cooperate with Congress. At the same time, we may not ignore our equally important authority and responsibility to protect the constitutional prerogatives of the Executive Branch, the rule of law, and the separation of powers. See generally Bond v. United States, 541 US. 211, 222 (2011); Barenblatt v. United States, 360 US. 109, 111-12 (1959); Assertion of Executive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981) (citing cases); see also Nixon v. Adm ?r of Gen. Servs., 433 US. 425, 448-50 (1977); NLRB v. Sears, Roebuck Co., 421 US 132, 150?51 (1975); United States v. Nixon, 418 US. 683, 705?06, 708 (1974); United States v. American Tel. Tel C0., 567 F.2d 121, 127, 130 (DC. Cir. 1977); Comm. on Oversight and Gov ?t Reform v. 156 F.Supp.3d 101, 110-12 (D.D.C. 2016); Remarks of Attorney General William P. Barr, 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National Lawyers Convention, Washingtonavailable at i ust ice . no iam-p-barr-delivers- 9th-annual - Congressional oversight historically has been a matter for informal political relations and negotiation. See Amer. Tel. Tel Co., 567 F.2d at 130; Brief of Amici Curiae Rep. Cummings et 400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-1100 The Department of Education ?s mission is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access. The Honorable Carolyn Maloney, Chairwoman Committee on Oversight and Reform February 7, 2020 Page 2 of 5 al., Comm. on Oversight Gov ?t Reform v. 156 F. Supp. 3d 101 (D.D.C. 2016), ECF No. 28-1 (?[The Committee] has not exhausted reasonable avenues of negotiation or accommodation; indeed, it has af?rmatively refused to pursue avenues that promised to yield information centrally relevant to its asserted interests?); Assertion of Executive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. at 31. Accordingly, persuasive authorities hold we both must engage in a dynamic process of accommodation af?rmatively furthering the constitutional scheme. See Amer. Tel. Tel Ca, 567 F.2d at 127, 130; see also Blumenthal v. Trump, No. 19- 5237, slip op. at 10 - 11 (DC. Cir. 2020); Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (DC. Cir. 1974).l Consequently, we have cooperated with your Committee, and others, in response to reasonable and lawful oversight requests by turning over massive numbers of records, providing in camera reviews of privileged documents, conducting expert issue brie?ngs for staff and principals, and, when appropriate, making Department of?cials, including the Secretary, available for live committee testimony. However, the accommodation process requires, at a minimum, that each branch explain to the other why it believes its needs to be legitimate. Without such an explanation, it may be dif?cult or impossible to assess the needs of one branch and relate them to those of the other. Congressional Requests for Con?dential Executive Branch Information, 13 Op. O.L.C. at 157-59 (June 19, 1989) (citing cases). But the Committee has re?ised to do this.2 1Congress?s power to investigate individuals, corporations, labor unions, and others to determine how and whether to legislate is well-established. But the Congressional power af?rmed in cases such as McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v. United States, 279 U.S. 263 (1929); Eastland v. U.S. Servicemen?s Fund, 421 U.S. 491 (1975); Barenblatt, 360 U.S. at 112; Hutchenson v. United States, 369 U.S. 699 (1962); and Watkins v. United States, 354 U.S. 178 (1957) should not necessarily be presumed to obtain here. For example, Congress has never claimed authority to conduct oversight, to demand documents, and to compel testimony from the federal judiciary outside of the constitutional advice and consent process. At a minimum, the fact that Congress has never claimed such power admits the Committee?s oversight authority, which is unmoored in any plain constitutional text, is subject to very de?nite separation of powers limits in all cases. Blumenthal, No. 19-5237, slip op. at 11. 2The primary statutory source of the Committee?s oversight authority is the Legislative Reorganization Act of 1946. The Act states: To assist the Congress in appraising the administration of the laws and in developing such amendments or related legislation as it may deem necessary, each standing committee of the Senate and the House of Representatives shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that purpose, shall study all pertinent reports and data submitted to the Congress by the agencies in the executive branch of the Government. The Honorable Carolyn Maloney, Chairwoman Committee on Oversight and Reform February 7, 2020 Page 3 of 5 Furthermore, we will not - and as a matter of constitutional principle must not accede to broad and paralyzing demands for information with only the remotest connection to any proper purpose or participate in hearings that are not calculated to facilitate lawful congressional activity. The Committee?s course of dealing, its refusal to provide clarity and narrow issues, and its baseless threatened subpoena all provide strong reason to believe the demand for the Secretary? testimony has nothing to do with a good, fair, and constitutional process. To begin with, in your letter of December 23, 2019, you made an unprecedented and unreasonable demand for the Secretary to appear at a hearing of unlimited duration to testify on ?oversight of federal student loans, policies on campus sexual harassment and assault, protections for students at for-profit colleges, the independence of the Department?s Inspector General, compliance with collective bargaining requirements, and other [unspeci?ed] matters.? See Letter from Chairwoman Carolyn B. Maloney, House Committee on Oversight and Reform, to Secretary Betsy DeVos, Department of Education (Dec. 23, 2019) available at Historically, oversight hearings with a Cabinet Secretary concern a speci?c topic of Committee legislative jurisdiction or an active, ongoing oversight matter. Former Secretary King?s 2016 testimony before the Committee, wrongly cited by you for the proposition that Congress may do whatever it wants, proves the point: that hearing was focused on a speci?c scandal of massive fraud, waste, and abuse involving a senior Department official. Then, in your letter of February 3, 2020, you criticized the Secretary for supporting the President. You made the remarkable claim that ?Ignoring or defying requests for oversight in order to campaign for President Trump is an abuse of [the] position of Secretary of Education.? See Letter from Chairwoman Carolyn B. Mahoney, Committee on Oversight and Reform to Secretary Betsy DeVos, Department of Education at 3 (Feb. 3, 2020) available at But this claim, aside from being a breathtakingly wrong statement of the law, is counterfactual. Here are the facts. Our staff has worked hard to accommodate the Committee?s oversight requests, but Committee staff has failed to reciprocate. We have asked repeatedly over a period of weeks for Pub. L. No. 79?601, 60 Stat. 812, 136 (1946); see also 2 U.S.C. 190d (standing committees authorized to study ?the application, administration, and execution of laws? within their subject matter jurisdiction). But this statutory grant is operative only to the extent that it is fully consistent with separation of powers and other relevant constitutional constraints. See, e. g, Bowsher v. Synar, 478 US. 714, 726 (1986); see also Bond, 541 US. at 222; Whitman v. American racking Association, 531 US. 457, 472 (2001); INS v. Chadha, 462 U.S. 919, 949-59 (1983); Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001). The Honorable Carolyn Maloney, Chairwoman Committee on Oversight and Reform February 7, 2020 Page 4 of 5 clarity regarding the bases for and lawful purpose of your demands. But your staff has stonewalled and refused to answer, instead simply declaring the Department?s prior responses from months ago are incomplete and inadequate. In the matter of the Inspector General, in February, May, and July 2019, Chairman Cummings requested information regarding the Department?s decisions relating to temporary replacement of an Inspector General. When it became clear the Committee lacked any lawful basis for oversight of an Executive Branch appointment, the ostensible basis for the Committee?s inquiry became potential interference with the independence of the Department?s Of?ce of Inspector General Then, during the pendency of the accommodation process, the OIG itself reported to Congress there had been no attempt to interfere with its independence.3 Even after this disclosure, the Department offered and the Committee accepted a bipartisan in camera review of relevant but otherwise privileged documents as a constitutional accommodation. Thereafter, the Department advised your staff we considered the matter closed. No further requests were made by the Committee. In the matters of ?oversight of federal loans? and ?protections for students at for-pro?t colleges,? the Committee joined an August 2019 oversight letter sent by Representative Bobby Scott, the chairman of the House Education and Labor Committee. Education and Labor Committee staff managed this issue, and the Department responded accordingly. Concluding an extensive accommodation process, the Department sent a summary letter on December 6, 2019. Secretary DeVos testi?ed in a ?show tria hearing on December 12, 2019. Through these months, the Oversight Committee asked for nothing more. Rather, the Department was encouraged to continue to work with Education and Labor Committee staff as that is the committee of jurisdiction. In the matters of ?campus sexual harassment and assault? and ?collective bargaining,? you demand testimony on matters for which the Committee has previously conducted no oversight. Without asking the Department a single query on campus sexual harassment and assault policies, you now threaten legal process to compel a Cabinet of?cial?s testimony when, as your staff is fully aware, there is a pending administrative rule on the subject, and any substantive comment on any of the matters covered therein is manifestly inappropriate. See HBO v. FCC, 567 F.2d 9, 57 (DC. Cir. 1976); Assoc. of Nat ?1 Advertisers, Inc. v. FTC, 627 F.2d 1151, 1170 (DC. Cir. 1984). Additionally, a non-speci?c demand for testimony on ?collective bargaining? provides no lawful basis for testimony from any Executive Branch of?cial, much less the Secretary. This is highly inappropriate overreach. 3See US. Department of Education, O?tce of the Inspector General Semt'annual Report to Congress No. 78 at 68 (Oct. 1, 2018 Mar. 20, 2019) available at US. Department of Education, O?z?ce of the Inspector General Semiannual Report to Congress No. 79 at 69 (Apr. 1, 2019 Sept. 30, 2019) available at The Honorable Carolyn Maloney, Chairwoman Committee on Oversight and Reform February 7, 2020 Page 5 of 5 All other remaining concerns are being diligently resolved. Our responses to the pending Questions for the Record from the Subcommittee on Economic and Consumer Policy?s May 22, 2019, hearing are in the Of?ce of Management and Budget approval process. We do not control OMB. The Department also responded to Subcommittee Chairman Krishnamoorthi?s document requests regarding private collection agencies and processing borrower defense claims in September 2019, and Department staff continue to compile the answers to the remaining outstanding requests. To better address the concerns embodied in this request, the Department is willing to provide a brie?ng with of?cials from Federal Student Aid to answer the Committee?s questions. Finally, as we explained to Committee staff, the original proposed hearing date of January 29, 2020, con?icted with the Secretary?s long-scheduled meeting with members of the Title IV, HEA ?tria This meeting was a ?rst of its kind event requiring key members of the higher education community across the country to travel to Washington, DC. to address problems related to the growing number of failing institutions of higher education. We are disappointed that your letter fails to mention this irreconcilable con?ict with a meeting to carry out the important business of the American people. This Department has followed the rules. Your Committee?s conduct, including the threatened subpoena to compel testimony on unspeci?ed or previously unaddressed matters, suggest a distressing disregard for the dynamic process of accommodation required by law. It also signals an unhealthy appetite for the abuse of congressional power. We invite you to work with us, cooperatively, lawfully, and professionally, on speci?c oversight matters in a manner and fashion reasonably addressing important issues of concern to the American people. We renew our offer of brie?ngs and appropriate hearing testimony by Department personnel on each of the remaining open issues you have raised in your letter, except for matters related to the pending Title IX rule on which we cannot comment until after publication. And, it is my sincere hope you will accept our invitation so that we can begin, in earnest, a good faith accommodation process. Please feel free to contact Jordan Harding, Of?ce of Legislation and Congressional Affairs, at 202-401-0020 if you have any questions. Sincere] a, Reed D. Rubinstein Principal Deputy General Counsel delegated the Authority and Duties of the General Counsel cc: The Hon. Jim Jordan