September 28, 2008
Can Congress Appoint Members of the Bailout Oversight Committee?
Posted by David Zaring

Politico has a leaked internal Democratic memo with some deal terms.  One of perhaps a little Sunday afternoon note:

Composition and ratio of Congressional Oversight Panel
Issue: Size of panel and ratio of appointees: 2-1 from both House and
Senate, with members to select a chair for a total of 7 members; or
1-1 from both House and Senate, for a total of 5.

If this oversight panel is simply meant to be the way Congress will organize itself when getting reports from Tresury, fine.  But if this panel (and the bailout oversight mechanism more generally) is vested with particular statutory responsibilities, then it is possible to run into trouble.  Congress probably can't appoint its own members to an independent oversight panel created by the statute.  That's this case. Moreover, Congress can overstep its authority if, as the DC Circuit has said, it sets up a review commission that would be essentially controlled by the legislature and could overturn or overly interfere with executive power.  The mere appointment by Congress of officials to such a board might not transgress that prohibition.  But in another context:

Congress has here encroached “beyond the legislative sphere” because the Board of Review has been vested with a range of powers ..., [and] it sets forth requirements that both in principle and in practice continue to ensure congressional domination of the Board.

Hechinger v. Metro. Wash. Airports Auth., 36 F.3d 97 (D.C. Cir. 1994)

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