smoke

I write better when I smoke. Don’t ask me to reduce it to a science.

464 vs. 108

The main difference between EO 464 and Memorandum Circular (MC) 108 is that 464 effectively gave the Prez blanket authority to prevent nearly anyone of consequence in the Executive Department to appear before Congress. 108, on the other hand, specifically targets inquiries supposedly “in aid of legislation.”

Is this a substantial change? Or was the scrapping of 464 merely sleight of hand?

In striking down (kinda) EO 464, the Supreme Court in essence ruled:

  • Congress can compel the appearance of public officials in inquiries “in aid of legislation;”
  • That EO 464 is constitutional insofar as it bans executive officials from appearing during the “question hour” (investigations directed merely to congressional oversight over the implementation of laws); and
  • That only the President can invoke executive privilege.

MC 108 very clearly adheres to the formulation implied by this SC decision but it also lays down procedures which are intended (transparently) to rein in … uhrm … Senatorial exuberance.

First of all, 108 doesn’t say executive department officials cannot appear before inquiries in aid of legislation, but it forces the legislature to justify the summonses.

Upon receipt of the request to appear before either House of Congress by any official, said official shall promptly request from Congress information, if it is not so provided in the invitation, regarding the possible needed statute which prompted the need for the inquiry, the subject matter of the inquiry and the questions relative to and in furtherance thereof

This apparently addresses the widely held perception that inquiries in aid of legislation are actually nothing of the sort – that they are actually fishing expeditions conducted purposely to garner media mileage for the committee members running the show.  By asking the legislature to provide some indication of what the intended new legislation and what the possible questions will be, 108 provides at least a semblance of protection for the Executive Department from the kind of barratry the Senate seems to have taken a liking to. I say only a “semblance” because once the summoning House (Senate or Lower House) has provided the requested information, there really is nothing stopping them from letting the questioning morph into a 3rd degree once they have the hapless official before them.

What is not explicit, but can prolly be assumed, is that if the summoning House refuses to provide the requested information, then the summoned official can “delay” coming to the hearing until the information requested has been given. In other words, refusal by the House sets up a stand-off.

This is the first substantial distinction between 464 and 108. 464 was guilty of overbreadth – as the SC pointed out. 108 is more focused on inquiries in aid of legislation – not to frustrate valid inquiries, but to protect against witch hunts.

Secondly, assuming the requested information is provided, that information is then forwarded to the President – together with the summoned official’s recommendation (e.g., ‘I think I should go;’ or ‘I think I shouldn’t go’)  – who will then decide if the proposed inquiry will fall within the scope of executive privilege.

The official, after obtaining such information, shall forward the request and all pertinent documents, together with a brief background and recommendation, to the President through the Executive Secretary;

The President shall consider whether the subject matter of the inquiry is in aid of legislation and/or fails within the scope of executive privilege;

This is where 108 most closely mirrors 464 in that the official’s appearance is still predicated on the President’s consent. Under 464, the President is not required to explain why no consent is given (either by inaction or by outright refusal). Under 108, the Executive Secretary is directed to explicitly claim executive privilege and to explain why the claim was made.

Upon a determination that the subject matter of the inquiry falls within the scope of executive privilege, the President of the Executive Secretary, acting “By order of the President”, shall inform the Senate President or the Speaker of the House of Representatives, as the case may be, of the ground invoked to justify it and the context in which it is made (e.g., whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.)

While the difference may be negligible to those who would be satisfied with nothing less than the absolute power of Congress to interrogate anyone, the fact is this requirement to explain is a substantial guarantee because it exposes the claim to contestation; something that could not legally be done under 464 (you can’t compel people – even the Prez – to decide one way or the other; at most, you can compel them to make the decision).

Third, 108 explicitly instructs the summoned official – once he is before the summoning House – to exercise discretion and determine whether the questioning is tending to elicit responses which might undermine State security or prejudice public interest. In such a case, the official is told to ask for an executive session. If the summoning House refuses, the official is told to ask for a chance to consult with the Prez.

It doesn’t take a genius to see that if this situation arises (and it likely will), then that official’s interrogation will either be brought to a screeching halt, or the interrogators can draw it out and milk what they will call the official’s “defiance” for all the public outrage and melodrama they can.

But again, this signifies a major departure from 464 in that it gives the summoning House the chance to be reasonable and to respect a co-equal branch of government. Under 464, the official could simply clam up and that would be that. Not very respectful of the Legislature either, truth be told. So, under 108, the Executive is forced to ask for a time-out, and the Legislature is given the opportunity to be gracious. Respect all around. Under 464, the Executive refuses to play, and the Legislature gets the chance to be the offended party. Disrespect all around.

To summarize 464 v. 108 …

picture2.png

Seems like substantial distinctions to me.

What is less clear to me is why the Palace seems to have gone out of its way to make 108 so potentially abrasive. Here’s what I mean.

Section 1, talking about Question Hour, says:

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

Note the mandatory “shall.” The Senate isn’t going to like being told how to run its business.

The entire Section 3 is basically about throwing Congress’ rules  right back in its face. Whoever wrote this damned thing probably isn’t married. New Rule: don’t remind me of my own rules when I don’t feel like obeying them.

Especially funny is when Section 3 talks of officials having the right not to answer questions like:

(1) Those which contain arguments;
(2) Those which include offensive or unparliamentary language or expression;
(3) Those which pertain to matters sub judice;
(4) Those which refer to the internal affairs of a foreign country or contain unwarranted discourtesy to it;
(5) Those which seek an opinion on a question of law;
(6) Those which relate to matters failing within the responsibility of another department head;
(7) Those which repeat question/s previously asked and answered;
(8) Those which violate the rights of officials as guaranteed under the laws and the Constitution; and
(9) Those which are neither directly material nor pertinent to the subject matter of the inquiry or legislation.

But those are exactly the kinds of questions that draw public attention! Those are exactly the kinds of questions Senators ask! And (see number 2, please) how they like to ask them!!! LOL! And as for number 4, *gasp-OMFG!* ja-ja-jamby might feel al-al-alluded to! If I had only watched every single televised session as obsessively as some people have, I might even be able to match the objectionable questions to the Senator who asks them. LOL!

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3 Responses

  1. […] the meantime, Senators also want Memorandum Circular 108 scrapped. Check out smoke’s comparison of E.O. 464 and M.C. […]

  2. […] Quezon III links to an entry by Smoke that is as skeptical as I am, and explains it in detail to boot. Oh, the Palace has riposte for […]

  3. cvj says:

    Jamby’s questions may be covered by Section 4, but not Miriam’s pronouncements.

    Anyway, Richard Rorty said that if you take care of freedom, the truth will take care of itself. The Admin appreciates this.

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