Legislative oversight is most commonly conducted through congressional budget, authorization, appropriations, confirmation, and investigative processes, and, in rare instances, through impeachment. But the adversarial, often confrontational, and sometimes high profile nature of congressional investigations sets it apart from the more routine, accommodative facets of the oversight process experienced in authorization, appropriations, or confirmation exercises. While all aspects of legislative oversight share the common goals of informing Congress so as to best accomplish its tasks of developing legislation, monitoring the implementation of public policy, and disclosing to the public how its government is performing, the inquisitorial process also sustains and vindicates Congress's role in our constitutional scheme of separated powers and checks and balances. The rich history of congressional investigations from the failed St. Clair expedition in 1792 through Teapot Dome, Watergate, Iran-Contra, Whitewater, and the current ongoing inquiries into Operation Fast and Furious, has established, in law and practice, the nature and contours of congressional prerogatives necessary to maintain the integrity of the legislative role in that constitutional scheme. A review of the historical experience pertinent to congressional access to information regarding the law enforcement activities of the Department of Justice indicates that the vast majority of requests for materials are resolved through political negotiation and accommodation, without the need for judicial resolution. Absent an executive privilege claim or a statute barring disclosure there appears to be no court precedent imposing a threshold burden on committees to demonstrate a "substantial reason to believe wrongdoing occurred" in order to obtain information. Instead, an inquiring committee need only show that the information sought is within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate legislative function, and is pertinent to the area of concern. In the last 85 years, Congress has consistently sought and obtained access to information concerning prosecutorial misconduct by Department of Justice officials in closed cases; and access to pre-decisional deliberative prosecutorial memoranda-while often resisted by the Department-is usually released upon committee insistence as well. In contrast, the Department rarely releases-and committees rarely subpoena-material relevant to open criminal investigations. Typically, disputes are resolved without recourse to an executive privilege claim. Instead, negotiations produce various compromises: narrowing informational requests, delaying the release of information that could have prejudicial consequences on prosecutions, or redacting sensitive materials. However, when Presidents do claim executive privilege, courts have been reluctant to resolve the dispute. Indeed, litigation over the scope of executive privilege in direct relation to congressional oversight and investigations has been quite limited. In total, there have been four cases dealing with executive privilege in the context of information access disputes between Congress and the executive, and two of those resulted in decisions on the merits. The Supreme Court has never addressed executive privilege in the face of a congressional demand for information.

Over 25 years ago, Congress addressed growing concerns regarding nuclear waste management by calling for federal collection of spent nuclear fuel (SNF) for safe, permanent disposal. To this end, the Department of Energy (DOE) was authorized by statute to enter into contracts with nuclear power providers that required the DOE to gather and dispose of spent nuclear fuel in exchange for payments by the providers into the newly established Nuclear Waste Fund (NWF). Congress subsequently named Yucca Mountain in the State of Nevada as the sole candidate site for the underground geological storage of collected SNF. Congress also mandated that federal disposal begin no later than January 31, 1998. Over 10 years ago, DOE breached these contracts by failing to begin the acceptance and disposal of SNF by the statutory deadline established in the Nuclear Waste Policy Act (NWPA). As a result, nuclear utilities have been forced to spend hundreds of millions of dollars for on-site temporary storage of toxic SNF that was expected to be transferred to the federal government for storage and disposal.

As part of a larger scheme to regulate drugs and other controlled substances, federal law prohibits the cultivation, distribution, and possession of marijuana. No exception is made for marijuana used in the course of a recommended medical treatment. Indeed, by categorizing marijuana as a Schedule I drug under the Controlled Substances Act (CSA), the federal government has concluded that marijuana has "no currently accepted medical use in treatment in the United States." Yet 18 states and the District of Columbia have decriminalized medical marijuana by enacting exceptions to their state drug laws that permit individuals to grow, possess, or use marijuana for medicinal purposes. In contrast to the complete federal prohibition, these 19 jurisdictions see medicinal value in marijuana and permit the drug's use under certain circumstances. Although the U.S. Supreme Court has established Congress's constitutional authority to enact the existing federal prohibition on marijuana, principles of federalism prevent the federal government from mandating that the states actively support or participate in enforcing the federal law. While state resources may be helpful in combating the illegal use of marijuana, Congress's ability to compel the states to enact similar criminal prohibitions, to repeal medical marijuana exemptions, or to direct state police officers to enforce the federal law remains limited by the Tenth Amendment. Even if the federal government is prohibited from mandating that the states adopt laws supportive of federal policy, the constitutional doctrine of preemption generally prevents states from enacting laws that are inconsistent with federal law. Under the Supremacy Clause, state laws that conflict with federal law are generally preempted and therefore void. Courts, however, have not viewed the relationship between state and federal marijuana laws in such a manner, nor did Congress intend that the CSA displace all state laws associated with controlled substances. Instead, the relationship between the federal ban on marijuana and state medical marijuana exemptions must be considered in the context of two distinct sovereigns, each enacting separate and independent criminal regimes with separate and independent enforcement mechanisms, in which certain conduct may be prohibited under one sovereign and not the other. Although state and federal marijuana laws may be "logically inconsistent," a decision not to criminalize-or even to expressly decriminalize-conduct for purposes of the law within one sphere does nothing to alter the legality of that same conduct in the other sphere. This report will review the federal government's constitutional authority to enact the federal criminal prohibition on marijuana; highlight certain principles of federalism that prevent the federal government from mandating that states participate in enforcing the federal prohibition; consider unresolved questions relating to the extent to which state authorization and regulation of medical marijuana are preempted by federal law; and assess what obligations, if any, the U.S. Department of Justice (DOJ) has to investigate and prosecute violations of the federal prohibition on marijuana.

Passed in 1982, the Nuclear Waste Policy Act (NWPA) was an effort to establish an explicit statutory basis for the Department of Energy (DOE) to dispose of the nation's most highly radioactive nuclear waste. The NWPA requires DOE to remove spent nuclear fuel from commercial nuclear power plants, in exchange for a fee, and transport it to a permanent geologic repository or an interim storage facility before permanent disposal. Defense-related high-level waste is to go into the same repository. In order to achieve this goal, and in an effort to mitigate the political difficulties of imposing a federal nuclear waste facility on a single community, Congress attempted to establish an objective, scientifically based multi-stage statutory process for selecting the eventual site of the nation's new permanent geologic repository. Congress amended the NWPA's site selection process in 1987, however, and designated Yucca Mountain, Nevada, as the sole candidate site for the repository by terminating site specific activities at all other sites. The Obama Administration, in conjunction with DOE, has taken three important steps directed toward terminating the Yucca Mountain project. First, the Administration's FY2011, FY2012, and FY2013 budget proposals eliminated all funding for the Yucca Mountain project. Second, the President and Secretary of Energy Steven Chu established a Blue Ribbon Commission to consider alternative solutions to the nation's nuclear waste challenge. Third, and most controversial, DOE has attempted to terminate the Nuclear Regulatory Commission's (NRC's) Yucca Mountain licensing proceeding by seeking to withdraw the license application for the Yucca Mountain facility. DOE's withdrawal motion triggered strong opposition from a number of concerned parties. The states of Washington and South Carolina-each awaiting cleanup and removal of defense-related nuclear waste at the Hanford and Savannah River Sites, respectively-have played significant roles in the legal challenge to the license withdrawal. Claims challenging the Secretary's authority to withdraw the Yucca Mountain license application were filed with both the NRC and the U.S. Court of Appeals for the District of Columbia (D.C. Circuit). Although DOE's motion to withdraw the Yucca Mountain license application was denied by the NRC's Atomic Safety and Licensing Board, the NRC suspended the Yucca Mountain licensing proceeding in 2011 due to budgetary limitations. The D.C. Circuit has since dismissed a challenge to DOE's authority to withdraw the license application and heard oral arguments on claims challenging NRC's authority to terminate the licensing proceeding. While the result of the ongoing dispute over the legality of the attempted termination of the Yucca Mountain program remains uncertain, congressional action could have a significant impact on the fate of the Yucca Mountain facility. A number of leading House Republicans have voiced strong opposition to shutting down the Yucca Mountain facility. Consequently, the Yucca Mountain dispute will not only be contested before the NRC and the D.C. Circuit, but also in Congress.