Introduction The federal government is the largest energy consumer in the United States. Within the federal government, the U.S. Department of Defense (DOD) consumes more energy than any other agency. In FY2017, DOD consumed 707.9 trillion British thermal units (Btu) of energyâroughly 16 times that of the second largest consumer in the federal government, the U.S. Postal Service ( Figure 1 ). In FY2017, DOD spent approximately $11.9 billion on energy, roughly 76% of the entire federal government's energy expenditures, and roughly 2% of DOD's FY2017 budget. Energy efficiencyâproviding the same or an improved level of service with less energyâover time can lead to a reduction in agency expenses. DOD uses energy for a variety of purposes across the various services of the military. For example, DOD's efficient management of energy can also lead to less refueling and fewer fuel convoys. Reducing the frequency and duration of fueling in combat zones could reduce exposure and risk which could save lives. This report provides an introduction to federal energy management rules applicable to DOD. The report includes an overview of federal statutes and executive orders that govern DOD energy management, and presents data on the status and trends for DOD energy use. Further, the scope of this report excludes nuclear energy for the propulsion of aircraft carriers, submarines, and energy used for military space operations. The report also references agency level guiding documents that provide the basis for how DOD implements these policies. Finally, this report identifies selected considerations for Congress. DOD Energy Management Requirements Federal energy management requirements include reductions in fossil fuel consumption, increases in renewable energy use, and energy efficiency targets for government fleets and buildings. In addition to the energy management requirements that apply to federal agencies, DOD's energy policy is designed to ensure the readiness of U.S. armed forces through energy security and resilience. DOD, through statute (e.g., 10 U.S.C. Â§2922e), has authority to suspend certain requirements to meet established operational military demands. Legislation In the 1970s, Congress began mandating energy use reductions for federal agencies, directing agencies to improve the efficiency of buildings and facilities and reduce fossil fuel dependence. Legislation aimed at reducing federal agency energy consumption can be traced back to the Energy Policy and Conservation Act (EPCA, P.L. 94-163 ) as shown in Table 1 . Among other provisions, EPCA directed the President to implement a 10-year plan for energy conservation and efficiency standards for government procurement. In 1977, Congress passed into law an act establishing the Department of Energy ( P.L. 95-91 ). The following year, Congress enacted the National Energy Conservation Policy Act (NECPA, P.L. 95-619 ), which, among other actions, established a program to retrofit federal buildings to improve energy efficiency. The Energy Policy Act of 1992 (EPAct92, P.L. 102-486 ) amended NECPA and authorized alternative financing methods for federal energy projects, including energy savings performance contracts (ESPCs) and utility energy service contracts (UESCs), among other provisions. Since NECPA and EPAct92, two laws contain provisions that set energy management requirements for all federal agenciesâthe Energy Policy Act of 2005 (EPAct05, P.L. 109-58 ) and the Energy Independence and Security Act of 2007 (EISA, P.L. 110-140 ). EPAct05 and EISA amended and addressed additional energy management targets for the federal government, among other things. Federal agencies report energy consumption annually to the Department of Energy's (DOE) Federal Energy Management Program (FEMP). EISA Section 527 (42 U.S.C. Â§17143), requires federal agencies to report to the Office of Management and Budget (OMB) on the status and implementation of energy efficiency improvements, energy reduction costs, and greenhouse gas (GHG) emissions. Subsequently, EISA Section 528 (42 U.S.C. Â§17144) directs OMB to provide a summary of this information and an evaluation of progress for the federal government to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate. The Director of OMB compiles the compliance status of the EISA requirements and description of each into an agency scorecard. Appendix B contains a selected compilation of federal energy management requirements for all agencies. The annual National Defense Authorization Act (NDAA) has included provisions related to DOD energy management and authorities. For example, Congress, by enacting the Department of Defense Authorization Act for FY1985 ( P.L. 98-525 ), granted the Secretary of Defense waiver authority for the acquisition of petroleum. NDAA for FY2000 Section 803 ( P.L. 106-65 ) amended this waiver authority to extend beyond petroleum to "a defined fuel source." This authority permits the Secretary of Defense to waive any provision that would otherwise prescribe terms and conditions of a defined fuel purchase contract if market conditions have affected or will adversely affect the acquisition of the fuel source; and if the waiver will expedite acquisition for government needs (10 U.S.C. Â§2922e). With one exception, the NDAA for FY2018 ( P.L. 115-91 ), every NDAA since 1993 contains a section on "authorized energy conservation projects." For instance, NDAA for FY2007 ( P.L. 109-364 ) added a section regarding renewable energy production or procurement goals to 10 U.S.C. Â§2911. As amended by several NDAAs, this DOD specific goal requires DOD to consume 25% of total facility energy from renewable sources by FY2025 ( Appendix A ). Further, NDAAs have contributed to a number of internal DOD energy management protocols. For instance, the NDAA for FY2011 Section 2832 ( P.L. 111-383 ) directs the Secretary of Defense to develop an Energy Performance Master Plan (including metrics for measurement, use of a baseline standard, separate plans for each branch, etc.) to achieve performance goals set by law, executive orders, and DOD policies. The NDAA for FY2015 requires an annual report that certifies whether or not the President's budget is adequate to meet objectives of the Operational Energy Strategy as outlined in 10 U.S.C. 2926. NDAAs continue to address energy security and resilience for DOD. In 2018, for example, Congress enacted the NDAA for FY2019 ( P.L. 115-232 ), authorizing appropriations of $193 million for energy resilience and conservation investment programs. Multiple statutes, in addition to those above, establish the legislative authority for DOD energy management. Selected sections of the U.S. Code applicable to DOD energy management are delineated in Appendix A . Executive Orders Over several administrations, Presidents have issued executive orders to establish energy management guidelines and targets for the federal government. Executive orders applied specifically to government vehicles, buildings, and computer equipment. Since 1991, 12 executive orders have been issued on federal energy management ( Appendix C ). Only Executive Order 13834, "Efficient Federal Operations" (E.O. 13834), is currently in effect. All the others have been revoked by subsequent orders. On May 17, 2018, President Trump issued E.O. 13834, revoking E.O. 13693 and its specific targets for federal agencies. E.O. 13834 directs the heads of agencies to meet "statutory requirements in a manner that increases efficiency, optimizes performance, eliminates unnecessary use of resources, and protects the environment," but contains no specific targets. The White House Council on Environmental Quality Office of Federal Sustainability issued implementing instructions for E.O. 13834 in April 2019. The Office of Federal Sustainability's website provides resources, guidance documents, and reported energy performance data across federal agencies to support implementation of E.O. 13834. The Office of Federal Sustainability also lists other relevant U.S. code provisions, public laws, and other resources that federal agencies are required to follow. Agency Policies and Procedures DOD issues directives, memorandums, manuals, and guidance instructions to military departments and agencies on complying with statues and executive orders. For instance, DOD Instruction (DODI) 4170.11, Installation Energy Management, and DOD Directive (DODD) 4180.01, DOD Energy Policy , provide guidance for energy planning, use, implementation and management. These and other guidance documents outline best practices to meet federal goals within the context of the agency's mission, while giving flexibility to military departments for achieving goals. Military departments within DOD are tasked with following agency policies and procedures to issue internal energy strategies to meet the specific needs of their mission. The Energy Performance Master Plan tasks each military department and defense agency to develop their own master plans toward meeting federal requirements. Military departments can have their own goals and guiding documents within the parameters of statute and executive order (e.g., the Army's Energy Security and Sustainability Strategy or the Secretary of the Navy's Energy Goals). Further, 10 U.S.C. 2925 mandates DOD to submit to Congress two annual reports on the progress of meeting federal and executive energy targets: the Operational Energy Annual Report and the Annual Energy Management and Resilience Report (AEMRR), which includes the Energy Performance Master Plan. These reports compile energy use information from the various DOD departments on their progress toward meeting federal requirements. For federal-wide requirements, implementing instructions and guidance documents are often issued by DOE. For instance, EPAct05 has a renewable electricity consumption requirement of 7.5% for the federal government by FY2013. The President, acting through the Secretary of DOE, under Section 203 of EPAct05, is to ensure that the federal government meets the requirement. In order to ensure this, DOE issued guidance to federal agencies on how to meet the requirement. DOD Energy Status DOD categorizes energy as either "installation" or "operational." Installation energy refers to "energy needed to power fixed installations and enduring locations as well as non-tactical vehicles (NTVs)." Installation energy historically represents roughly 30% of DOD total energy and is subject to federal energy efficiency and conservation requirements, as reported to Congress in the AEMRR. In FY2017, DOD spent $3.48 billion on installation energy and NTV fuels. Operational energy (e.g., jet fuel) is "the energy required for training, moving, and sustaining military forces and weapons platforms for military operations and trainingâincluding energy used by tactical power systems and generators at non-enduring locations." Federal energy management requirements outlined in Appendix A and Appendix B do not apply to operational energy. However, under 10 U.S.C. 2926, DOD does have an operational energy policy to promote readiness of military missions. From FY2003 to FY2017 the federal government reduced total site-delivered energy use by 19.2% compared to the FY2003 baseline in all sectors. During the same time period, DOD reduced site-delivered energy use by 20.9%. While overall, DOD has reduced energy use, its energy use has not necessarily been consistent from one year to the next. For example, during the War in Iraq (FY2003 to FY2004), energy use increased from 895 trillion Btu to 960 trillion Btu, as shown in Figure 2 . Installation Energy Representing roughly 30% of DOD total energy use, installation energy is subject to federal energy management requirements. Federal energy management requirements include energy efficiency targets for government buildings, renewable energy use goals, and fossil fuel reductions for the NTV fleet. According to the AEMRR FY2017, energy and cost savings compared to an FY2005 baseline resulted in $5.67 billion in total savings through FY2017. The AEMRR also notes that the DOD increased installation energy consumption levels by 0.3% from FY2016 to FY2017. Building Efficiency 42 U.S.C. Â§8253(a) requires federal agencies to achieve a 30% reduction from FY2003 levels in energy consumption per gross square foot (GSF) for goal federal buildings by FY2015 ( Appendix B ). Goal buildings are federal buildings subject to federal energy performance requirements. DOD examples of goal buildings include the Army's Holston Ammunition Plant in Tennessee and the Navy's Camp Lemonnier in Djibouti. Excluded facilities are federal buildings not required to meet the federal building energy performance requirement for the fiscal year according to the criteria under Section 543(c)(3) of NECPA. Federal agencies may typically exclude buildings that have a dedicated energy process that overwhelms other building consumption, such as one designed for a national security function or for the storage of historical artifacts. DOD manages nearly 300,000 buildings, most of which are subject to federal energy management. In FY2015, DOD did not meet the 30% reduction target, as DOD reduced building energy intensity by 16.5% relative to FY2003 levels. In FY2017, DOD consumed 91,709 Btu/GSF, a 21.8% decrease from baseline FY2003. Increasing building efficiencies and reducing energy intensity can be supported through alternative funding mechanisms (e.g., ESPCs, UESCs, power purchase agreements). In FY2017, the Army, for example, awarded $289.3 million in ESPC and UESC projects estimated to save 1,132 billion Btu annually. According to the AEMRR FY2017, these projects could avoid costs of $17.2 million annually from the project savings. In addition to the energy efficiency requirement, EISA Section 433 requires federal agencies to reduce fossil fuel consumption in new or majorly renovated buildings ( Table B-1 ) by specified amounts. By FY2020, these buildings are supposed to reduce fossil fuel consumption by 80% relative to a similar building's consumption levels in FY2003. DOE proposed a rulemaking for comment on this legislation on October 15, 2010. However, the rulemaking was not finalized, and no further action has been taken since December 2014 when the comment period closed. DOD has not reported on this requirement. Renewables EPAct05 requires federal agencies to reach 7.5% total renewable electricity consumption by FY2013. According to implementing instructions to comply with EPAct05, agencies must maintain ownership of renewable energy credits (RECs). If DOD sells a REC to meet state requirements, and it is not replaced with another REC, then the renewable electricity DOD produced does not receive credit toward the EPAct05 goal. Within these reporting requirements, in FY2013, DOD reached 5% renewable electricity consumption, and in FY2017, DOD reached nearly 6% of total electricity consumption from renewables. Solar photovoltaic sources contributed to this increase reaching 627,783 megawatt-hours (MWh) up from 396,268 MWh in FY2016. RECs are created when a renewable source of energy generates a megawatt-hour of electricity. Each REC has a unique identification number and provides data (e.g., the resource type, service date, location, etc.) that is traceable and certifiable. RECs can be traded and have monetary value. They are used by utilities to comply with state renewable electricity standards. Thus, RECs can help improve the return on investment for renewable projects. The ownership of these credits is often a contract stipulation associated with the project for the developer. State and/or local renewable requirements play a role in determining the contract stipulations for the credit ownership. In addition to EPAct05 goal of 7.5% renewable electricity by FY2013, DOD in accordance with 10 U.S.C. Â§2911(g) is required to "produce or procure" 25% renewable energy (electrical and non-electrical) by FY2025. The purchasing of RECs is not mandatory for DOD to comply with this goal. DOD's 2011 Energy Performance Master Plan set an interim goal of 15% renewable energy consumption by FY2018. Under Â§2911(g), in FY2017 DOD's renewable energy consumption reached approximately 8.7% of total facility energy use. Non-Tactical Vehicles Fleet In FY2017, DOD consumed around 8,764 billion Btu of NTV fuel, roughly 4.3% of DOD installation energy. EISA requires federal vehicle fleets to reduce petroleum consumption from the FY2005 baseline by 20% no later than October 1, 2015 ( Appendix B ). In FY2015, DOD complied with the EISA target with a reduction in NTV fleet petroleum consumption of 27% compared to FY2005 baseline. DOD has continued to reduce installation vehicle fleet petroleum consumption and reached a 34.5% reduction in FY2017. At the branch level, the FY2017 AEMRR states that the Air Force experienced an increase of 9.3% in consumption compared to the FY2005 baseline. Despite this increase, the Air Force, according to the AEMRR, does continue to implement programs to reduce consumption and increase alternative fuel use in research and development. In addition to the petroleum consumption reduction goal, federal agencies under EISA are to increase alternative fuel consumption by 10% compared to a FY2005 baseline no later than October 1, 2015 ( Appendix B ). According to the Office of Federal Sustainability, DOD met the alternative fuel consumption target in FY2015 reaching 10.6% of total fuel consumption. However, in FY2017, DOD's alternative fuel consumption decreased to 9.4% of the total installation fleet fuel consumed. These requirements apply only to installation energy and do not apply to operational energy. Operational Energy Operational energy constitutes roughly 70% of DOD's total energy use. In FY2017, DOD spent $8.2 billion on operational energy expenditures. The largest portion of this came from jet fuel at nearly 394 trillion Btu or roughly 56% of total DOD energy consumption for FY2017. DOD depends on jet fuel and other petroleum products to perform mission operations. According to DOD's FY2017 Operational Energy Annual Report , from FY2013 to FY2017, total operational energy demand remained relatively stable, around 87 million barrels of fuel per year (roughly 500 trillion Btu), while the price of crude oil fluctuated. The price of oil declined by roughly 60% in 2014, which contributed to a decrease in fuel expenditures from $14.8 billion in FY2013 to $8.2 billion in FY2017, around a 45% reduction. DOD's efficient management of fuel can also lead fewer fuel convoys. Reducing the frequency and duration of fueling in combat zones could reduce exposure and risk which could save lives. According to a 2009 report by the Army Environmental Policy Institute, for every 24 fuel-related convoys in Afghanistan there was roughly one casualty. A challenge is balancing mission operations (i.e., increasing weapons systems and combat performance) while also increasing efficiency. Considerations for Congress Some questions Congress may be interested in considering include: What kind of federal energy efficiency requirements should DOD have for operational energy, if any? To what extent do federal energy management targets need to be updated? What role is there for Congress to clarify or provide oversight on implementing federal energy management goals? How are alternative financing mechanisms supporting DOD's attainment of federal energy management goals? To what extent should Congress support these mechanisms? Operational Energy As noted, existing statutory energy management goals do not apply to operational energy, but DOD's operational energy policy is mandated by 10 U.S.C. 2926. As part of the operational energy policy, DOD establishes a strategy including plans and performance metrics. Further, DOD is mandated to submit to Congress both a report on the strategy (Operational Energy Strategy) and a report certifying that the proposed Presidential budget supports the implementation of the strategy (Operational Energy Budget Certification Report). Operational energy comprises 70% of energy use within DOD, much of which consists of petroleum-based fuels. Federal energy management goals do not apply to most of DOD's energy use. Congress may consider setting mission priorities for DOD. Congress could also consider mandating whether or not DOD should prioritize energy access over energy conservation, or vice versa. While making operational equipment more fuel efficient could increase range and decrease refueling convoys, the challenge is how to prioritize maintaining combat readiness and mission operations. Congress may consider legislation addressing operational energy, such as setting a standard fuel efficiency target or a requirement for alternative fuel use. Congress may also consider continuing to leave operational energy efficiency goals to be determined by DOD or each military branch. While this option could provide more flexibility, it could also lead to some challenges. For instance, in 2009, Navy Secretary Ray Mabus announced plans for the Navy to consume half of all fuel from alternative sources by 2020 (see textbox on Secretary of the Navy Energy Goals). The announcement also included a 2016 goal to deploy a carrier strike group using alternative fuels (e.g., nuclear power, biofuels) and energy conservation measures, an initiative known as the Great Green Fleet. The Great Green Fleet deployed in 2016 and conducted operations using alternative fuels and energy-efficient technologies and operating procedures. Some critics of the Navy energy goals noted that the Navy implemented these energy targets based on limited analysis. For instance, a House Armed Services Committee hearing in March 2012 inquired how the Navy determined the 50% goal for biofuel use, how it was determined that 50% was the amount the Navy should have, whether it could be attained by 2020, and what metrics were used to make this determination. A 2011 study by Logistics Management Institute (LMI) was referenced as a source that outlined the attainability of the goal; however, it had been released two years after the announcement of the energy plan. Supporters of the Navy's energy goals noted the benefits of a more diverse fuel supply and utilizing domestically produced biofuels. DOD is subject to oil price volatility, as such a more diverse fuel supply could potentially reduce dependence on the volatile market (see textbox on Department of Defense Fuel Procurement). According to Assistant Secretary of the Navy, Energy, Installations, and Environment Jackalyne Pfannenstiel's 2012 testimony, "without more domestically produced fuels, the [Navy] will continue to be subjected to fuel price volatility and be compelled to trade training, facility sustainment, and needed programs to pay for unplanned bills." If Congress were to set a target, reporting data and status updates could also be included in legislation to provide increased accountability of these programs. According to a 2016 naval announcement, the alternative fuel used for the Great Green Fleet was cost competitive and was made from 10% beef tallow and 90% marine diesel. Adjusting Targets In many cases, federal energy management goals in statute or executive order established targets for FY2015 (e.g., EISA petroleum and alternative fuel consumption targets were due no later than October 1, 2015). Several agencies, including DOD, did not reach the targeted goals. Congress may consider establishing new targets. Alternatively, Congress may instead remove statutory targets altogether, instead directing heads of federal agencies to establish protocols that foster efficiency and cost reductions that serve the mission of the agency. Uniform Federal Energy Targets If given the flexibility, agencies may opt to set more easily attainable targets based on budget and mission needs, which may not have as much of an impact on total federal energy use. In March 2015, then-Secretary of Energy Ernest Moniz convened a Task Force of members from the private sector, universities, and nonprofit organizations to review various components of E.O. 13693, including target setting. The Task Force argued that setting energy goals across all agencies "may drive some agencies to over-invest in the targeted area of energy-performance improvement to the detriment of other operational priorities. Conversely, uniform energy goals may understate the potential for cost-effective investments in energy efficiency for other agencies." Primary agency concerns may include their potential cost and mission impact. Congress and agencies may have different perspectives regarding these concerns. Successful attainment of established targets have varied from agency to agency. Some agencies may inherently be more energy intensive than others and as such may face challenges financing projects to reach certain targets. Technology-Forcing Targets Leaving targets to agencies may provide some flexibility, as not all agencies have the same energy needs. Agencies might choose to set ambitious targets that some may consider too costly and may not be based on consistent data. In some cases, meeting targets could come at a high cost, particularly in the early stages of development. Some may argue that the high cost for early research and development (R&D) may be acceptable, especially if in the long term it drives costs down. If Congress were to direct DOD to set a standard, DOD may set a goal that could require additional R&D to develop equipment that meets the standard, but also does not diminish combat readiness. For instance, a test of the Great Green Fleet in the summer of 2012 reportedly cost the Navy nearly $27 a gallon for 450,000 gallons of biofuel. By 2016, the Navy achieved competitive prices with conventional fuels with a 90% diesel blend with 10% biofuel. The Navy reportedly contracted with a California firm to purchase 77 million gallons of biofuel from beef fat at $2.05, including a 15 cent per gallon subsidy. The 2016 DOE Task Force report also noted the historical role of the federal government as an adopter of new technologies, providing a faster pathway toward commercial viability. While this may not always be the most economic approach, it could provide a greater benefit to a technology's deployment into the commercial market. Baseline Modification Further, Congress may consider readjusting the baselines, as some argue that the baselines may not have been properly informed using consistent data. For instance, according to a 2014 DOE report, "goals must be based on well-informed estimates of savings potential." The 2014 DOE report recommended that several criteria should be taken into consideration when establishing a baseline, such as weather, data quality and availability, consistency of agency mission operations, and varying degrees of savings. The report also noted that perhaps a three-year average should be taken to set a baseline, as this helps reduce abnormal factors experienced in any particular year. If Congress establishes a new baseline, agency reporting data and perceived progress could be affected. For example, the DOE report explains, "using a more recent baseline yearâand setting a lower percent reduction goalâmay give the impression that the federal government is not doing enough to reduce energy use, when in fact significant reductions have already been made." Implementing Federal Requirements EISA Section 433 In regards to EISA Section 433, federal agencies are mandated to reduce fossil fuel consumption by 80% by FY2020, with an ultimate goal of 100% by FY2030. As noted, the rulemaking for this legislation has not been finalized. Without a finalized rule it is difficult to track and evaluate the progress toward this goal. DOD has not included this metric in annual reports. Congress may consider in its oversight role directing DOE to finalize this rule. Alternatively, Congress may consider updating the legislation, perhaps by either adjusting the targets, or removing the requirement entirely. While tracking energy management compliance may come at a cost (e.g., labor, data collecting, etc.), the data can be used to indicate progress toward greater efficiency and could demonstrate whether or not a program has proven effective and provided cost savings. The 2016 DOE Task Force report notes that one of the major challenges in evaluating the energy efficiency of projects in the federal government is the lack of data concerning, "building profiles, energy usage, and energy spending over time." Renewable Energy Credit Ownership Additionally, Congress may consider clarifying REC ownership in legislation, instead of directing DOE to issue guidance on qualifications to meet federal targets. For instance, DOE's implementation guidance for EPAct05 requires DOD and all federal agencies to retain ownership of RECs to count toward the 7.5% renewable electricity consumption goal. However, 10 U.S.C. Â§2911(g), a 25% renewable energy production goal for DOD, does not make purchasing RECs mandatory. Further, according to a 2016 Government Accountability Office (GAO) report, DOD project documentation of renewable energy goals was not always clear, especially when determining whether or not a project contributed toward a particular goal. If Congress opts to require DOD to maintain ownership of RECs to meet all relevant energy goals, proper data and measurement collection may be a factor to consider. Additionally, if Congress were to require agency ownership of RECs, DOD's progress toward 10 U.S.C. Â§2911(g) may decline. For instance, the 2016 GAO report reviewed documentation of 17 DOD renewable energy projects. All 17 projects contributed to 10 U.S.C. Â§2911(g), but 8 of those projects did not contribute to EPAct05. In practice, military services may not necessarily retain ownership of RECs associated with all projects. Some DOD services may find that relinquishing REC ownership is within the best interest of the service and the particular contract, despite not qualifying for the EPAct05 requirement. The Navy, for instance, has had difficulty meeting renewable energy consumption targets under EPAct05, noting in the FY2017 AEMRR : "The Navy's performance regarding the renewable electricity goal is a function of the strategic decision to allow other parties to monetize the value of RECs associated with its financed energy projects." In certain projects, military services might decide to relinquish REC ownership. In some instances of ESPC/UESC contracts, RECs can be leveraged to finance additional project improvements. Financing Mechanisms DOD has steadily decreased its buildings' energy intensity in response to mandated energy reduction goals through investment in energy conservation projects. One of the challenges DOD faces in meeting these targets is implementing appropriate financing mechanisms. ESPCs have become a preferred means of making energy efficiency improvements because, in part, funds do not have to be directly appropriated (or programmed). However, as Energy Savings Contractors (ESCOs) assume a certain risk in guaranteeing savings through ESPCs, the risk is factored into their cost. DOD has been increasing reliance on UESCs and ESPCs. With $2.9 billion awarded in FY2017, these contracts can assist with increasing efficiency and meeting renewable energy management goals without up-front appropriated funds for the investment. Congress may consider options to increase the effectiveness of these mechanisms in attaining federal energy management goals. Training One option may be to increase training and awareness of UESCs and ESPCs. A Senate Committee on Armed Services report ( S.Rept. 115-125 ) accompanying NDAA FY2018 ( S. 1519 ) directed the Secretary of Defense to assess ESPCs and the potential savings through increased training. DOD disagreed with the need for more training, noting in the AEMRR FY2017, "the financial risk is too high to implement these training improvements based on assumptions about future savings and therefore [DOD] will not commit limited resources to an assessment that would draw from efforts focused on energy resilience and mission assurance." Further, DOD has stated that training improvements do not necessarily guarantee behavioral changes that would contribute to energy and costs savings. It is difficult to determine project savings if data is not being collected appropriately and consistently. Eight reports since 2013 by GAO, DOD Inspector General (DOD IG), and U.S. Army Audit Agency evaluated challenges with DOD utilizing ESPCs. The recommendations highlighted a lack of developed guidance for ESPC training, data management, and contract administration. According to a summary DOD IG report in February 2019, the Assistant Secretary of Defense for Energy, Installation, and Environment, as well as Navy, Air Force, and DLA ESPC program managers, did not collect ESPC project data due to decentralization and not requesting performance and savings data, despite DOD instruction. Five reports noted that base contracting officials were not complying with the measurement and verification requirements under Section 432 of EISA for a number of reasons, including a lack of awareness of the requirements. Training and guidance for utilizing ESPCs and UESCs is provided to all federal agencies through FEMP. However, challenges remain. During a December 2018 House Committee on Energy and Commerce, Subcommittee on Energy hearing, Leslie Nicholls, Strategic Director for FEMP, noted that measurement and verification is "not necessarily consistently applied and utilized throughout the federal government." She further noted that FEMP would like to continue training both at the technical level and for contracting officers. As noted in the February 2019 DOD IG report, DOD branches were implementing the IG recommendations regarding ESPC guidance. Congress may consider the value of training and guidance for proper measurement and data verification, and whether better data would demonstrate accurate cost savings of ESPCs and USECs relative to the cost of training. Appendix A. Summary of DOD Energy Goals and Contracting Authority in 10 U.S.C. Â§ 2208. Working-capital funds (t) Permits up to $1,000,000,000 in Working Capital Fund, Defense for petroleum market volatility. Â§ 2 410q . Multiyear Contracts: Purchase of Electricity from Renewable Energy Sources (a) Multiyear Contracts Authorized: Authorizes the use of multiyear contracts for the Secretary of Defense for a period of 10 years from a renewable energy source, as defined in 42 U.S.C. 15852(b)(2). (b) Limitations on Contracts for Periods in Excess of Five Years: The Secretary of Defense may enter into a contract over five years on the basis that the contract is cost effective and purchasing electricity from the source would not be economic without a contract for over five years. (c) Relationship to Other Multiyear Contracting Authority: this section does not preclude DOD "from using other multiyear contracting authority of the Department to purchase renewable energy." Â§ 2911. Energy P olicy of the Department of Defense (a) General Energy Policy: directs the Secretary of Defense to "ensure the readiness of the armed forces for their military missions by pursuing energy security and energy resilience." (b) Authorities: permits the Secretary of Defense to establish metrics and standards for measuring energy resilience; authorizes the selection of facility energy projects using renewables, as well as "giving favorable consideration to projects that provide power directly to a military facility or into the installation electrical distribution network." (c) Energy Performance Goals: directs the Secretary of Defense to "submit to congressional defense committees energy performance goals" for DOD annually. (d) Energy Performance Master Plan: directs the Secretary of Defense to develop a plan annually (including metrics for measurement, use of a baseline standard, separate plans for each branch, etc.) to achieve the performance goals set by law, executive orders, and DOD policies. (e) Special Considerations: directs the Secretary of Defense to consider a set of specified factors (e.g., energy resilience, economies of scale, conservation measures) when developing the Performance Goals and Master Plan. (f) Selection of Energy Conservation Measures: the energy conservation measures are to be limited to ones that "are readily available; demonstrate an economic return on the investment; are consistent with the energy performance goals and energy performance master plan for the Department; and are supported by the special considerations specified in subsection (c)." (g) Goal Reg arding Use of Renewable Energy t o Meet Facility Energy Needs : "to produce or procure not less than 25 percent of the total quantity of facility energy it consumes within its facilities during fiscal year 2025 and each fiscal year thereafter from renewable energy sources." Â§ 2913. Energy Savings Contracts and Activities (a) Shared Energy Savings Contracts: directs the Secretary of Defense to develop a simple method to accelerate contracts for shared energy savings services. Â§Â§2922 -2922h. Energy-Related Procurement : outlines contracting and procurement specifications for various energy types (e.g., natural gas, renewables, fuel derived from coal). Â§ 2922e. Acquisition of C ertain F uel S ources: A uthority to W aive C ontract P rocedures; A cquisition by E xchange; S ales A uthority : permits the Secretary of Defense to waive any provision that would otherwise prescribe terms and conditions of a fuel purchase contract if market conditions have affected or will adversely affect the acquisition of the fuel source; and if the waiver will expedite the acquisition for government needs. Â§ 2 926 Operational Energy Activities: provides DOD with an operational energy policy; delineates authorities for operational energy procurement; establishes the role for the Assistant Secretary of Defense for Energy, Installations, and Environment (ASD EI&E); requires the ASD EI&E to establish an operational energy strategy and to review and make recommendations to the Secretary of Defense on budgetary operational energy matters, as well as grants access to records and studies on military initiatives related to operational energy. Appendix B. Summary of Federal Energy Goals and Contracting Authority in 42 U.S.C. Â§ 6374e. Federal Fleet Conservation R equirements : each federal agency is directed to increase alternative fuel use and decrease petroleum fuel consumption for federal fleets, with the goal of achieving a 10% increase in annual alternative fuels and a 20% reduction in annual petroleum consumption as compared to a FY2005 baseline by October 1, 2015. Â§ 6834 . Federal Building Energy Efficiency Standards : starting August 2006, if cost-effective over the life cycle, new federal buildings must be designed to achieve energy consumption levels at least 30% below ASHRAE Standard 90.1 (for commercial buildings) or the International Energy Conservation Code (for residential buildings). In addition, starting December 2008, new federal buildings and those undergoing major renovations are to be designed so that fossil fuel consumption is reduced by 80% in 2020 compared to a similar building in FY2003, and 100% by 2030, as specified in Table B-1 . Â§ 8253. Energy Management R equirements: directs federal agencies to reduce building energy consumption per square foot by 30% compared to the FY2003 baseline by FY2015. Â§ 8256(c) Utility Incentive Program: authorizes and encourages agency participation in programs (Utility Energy Savings Contracts, or UESCs) to "increase energy efficiency and for water conservation or the management of electricity demand conducted by gas, water, or electric utilities and generally available to customers of such utilities." Â§ 8287. Authority to Enter into Contracts: authorizes the head of a federal agency to enter Energy Savings Performance Contracts (ESPCs). Each contract may be for a period not to exceed 25 years. The contract directs the contractor to incur the costs of energy savings measures, in exchange for a share of the savings resulting from the measures taken. Â§ 13212. Minimum Federal Fleet Requirement : the total percentage of alternative-fueled or "low greenhouse gas emitting" light-duty vehicles acquired by a federal fleet annually are 75% in FY1999 and thereafter. Â§ 15852 . Federal Purchase Requirement : the President, acting through the Secretary of Energy, is directed to "ensure that, to the extent economically feasible and technically practicable, of the total amount of electric energy the Federal Government consumes during any fiscal year" not less than 7.5% is renewable energy in FY2013 and each fiscal year thereafter. Â§ 16122. Federal and State P rocurement of Fuel Cell V ehicles and Hydrogen E nergy S ystems : requires the federal government to adopt fuel cell vehicles and hydrogen energy systems as soon as practicable. Appendix C. Executive Orders


A rticle II, Section 2 of the U.S. Constitution authorizes the President "to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." This executive power of clemency encompasses several distinct forms of relief from criminal punishment, of which a full presidential "pardon" is only one. The power has its roots in the king's prerogative to grant mercy under early English law, which later traveled across the Atlantic Ocean to the American colonies. The Supreme Court has recognized that the authority vested by the Constitution in the President is quite broad, extending to "every offence known to the law" and available "at any time after [a crime's] commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment." That said, there are some limits to the power conferred by the pardon provision of Article II: for instance, the President may grant pardons only for federal criminal offenses, and impeachment convictions are not pardonable. An administrative process has been established through the Department of Justice's (DOJ's) Office of the Pardon Attorney for submission and evaluation of requests for pardons and other forms of clemency, though this process and the regulations governing are purely advisory in nature and do not affect the President's ultimate authority to grant relief. This report provides an overview of the President's pardon power. After briefly discussing the historical background to the power conferred by Article II, Section 2 of the Constitution, the report explores the different forms of clemency that are available, the relatively few limits on theÂ pardon power, and the process of seeking and receiving clemency. The report concludes by addressing selected legal issues related to the pardon power: (1) the legal effect of pardons andÂ other forms of clemency; (2) whether the President may grant clemency to himself; and (3)Â Congress's role in overseeing the use of the pardon power. Historical Background The concept of governmental relief from the punishment that would otherwise apply to a criminal act has deep historical roots, with some scholars tracing it as far back as ancient Greece and Rome. An English form of pardon power vested in the king, the "prerogative of mercy," first appeared during the reign of King Ine of Wessex (688-725 A.D.). Over time, perceived abuses "such as royal sales of pardons or use of pardons as bribery to join the military" prompted Parliament to impose limitations on the pardon power. The king's power to pardon nevertheless endured through the American colonial period and applied in the colonies themselves through delegation to colonial authorities. Following the American Revolution, the English legal tradition of a pardon power held by the executive directly influenced the pardon provision included in the U.S. Constitution. At the Constitutional Convention, the two major plans offeredâthe Virginia and New Jersey plansâdid not address pardons. However, in a "sketch" of suggested amendments to the Virginia plan, Alexander Hamilton included a pardon power vested in an "Executive authority of the United States" that extended to "all offences except Treason," with a pardon for treason requiring Senate approval. It appears that the rationale for the treason limitation was, at least in part, that the head of the executive branch should not be able to absolve himself and possible conspirators of a crime threatening "the immediate being of the society." Hamilton's proposal was included in a subsequent draft of the Constitution, though the requirement of Senate approval for a pardon of treason was replaced with an exception for impeachment, apparently with the thought that exempting impeachment was sufficient to protect against abuse. Debate at the Convention over the pardon power was limited, primarily centering on questions of (1) how broad the power should be (i.e., what restrictions or exceptions to the power should exist), and (2) whether the legislature should have a role in the power's exercise. Ultimately, proposals to impose additional limits on pardons beyond an exception for impeachmentâsuch as by calling for Senate approval of pardons or requiring conviction prior to pardon âwere rejected, resulting in the expansive power in Article II, Section 2 of the Constitution. Alexander Hamilton made the case for the breadth of this executive-held power in The Federalist , arguing that it "should be as little as possible fettered or embarrassed" to ensure "easy access to exceptions in favour of unfortunate guilt." And on this view, "a single man of prudence and good sense," that is, the President, would be "better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever." In accordance with these principles, the text of the Constitution, as ratified, places few limits on the President's ability to grant pardons, as discussed in more detail below. Scope of the Pardon Power Forms of Clemency In light of references in scholarship and the popular press to the President's "pardon power," a casual observer might think that Article II, Section 2 of the Constitution authorizes only one form of relief from criminal punishment. That is not the case, however: the text of the Constitution speaks of "Reprieves and Pardons," and the Supreme Court has explained that the "language of the [provision] is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination." As such, the President has "plenary" constitutional authority under the pardon provision "to 'forgive'" an accused or convicted person "in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable." At least five forms of clemency fall under this authority: 1. pardon; 2. amnesty; 3. commutation; 4. remission of fines and forfeitures; 5. reprieve. A full pardon is the most expansive form of clemency; it "releases the wrongdoer from punishment and restores the offender's civil rights without qualification." A pardon may be granted at any time prior to charge, prior to conviction, or following conviction, but it appears that it must be accepted to be effective or at least may be refused. For instance, President Woodrow Wilson issued a pardon to George Burdick, an editor at the New York Tribune , for any federal offenses he "may have committed" in connection with the publication of an article regarding alleged customs fraud, despite the fact that Burdick had not been charged with any crime at the time of the pardon. The apparent motivation for the pardon was that Burdick had refused to testify before a grand jury investigating the involvement of Treasury Department officials in leaks concerning the wrongdoing, asserting his Fifth Amendment right not to provide testimony that would tend to incriminate him. Despite President Wilson's issuance of the pardon, Burdick "refused to accept" it and continued to refuse to answer certain questions put to him before the grand jury. In Burdick v. United States , the Supreme Court assumed that the pardon was within the President's power to issue and concluded that "it was Burdick's right to refuse it" and stand on his Fifth Amendment objection. Amnesty is essentially identical to a pardon in practical effect, with the principal distinction between the two being that amnesty typically "is extended to whole classes or communities, instead of individuals[.]" As an example, President Jimmy Carter granted amnesty to many who violated the Selective Service Act by evading the draft during the Vietnam War. In contrast to pardons and amnesty, which obviate criminal punishments in their entirety, commutation merely substitutes the punishment imposed by a federal court for a less severe punishment, such as by reducing a sentence of imprisonment. To take a well-known example, President Richard Nixon conditionally commuted to six and a half years the 13-year sentence of famed labor union leader Jimmy Hoffa, who had been convicted of mail fraud, wire fraud, and obstruction of justice. Along the same lines, the President "may remit [criminal] fines, penalties, and forfeitures of every description arising under the laws of [C]ongress," and, apparently in contrast to a pardon, a commutation or remission is valid even in the absence of the consent of the offender whose punishment is reduced. Finally, a reprieve merely "produces delay in the execution of a sentence" for a period of time "when the President shall think the merits of the case, or some cause connected with the offender, may require it," such as "where a female after conviction is found to be [pregnant], or where a convict becomes insane, or is alleged to be so." President Bill Clinton, for instance, issued a reprieve delaying by six months the execution date of Juan Raul Garza, who had been convicted of multiple capital homicide offenses, so that DOJ could conduct a study of "racial and geographic disparities in the federal death penalty system." As noted above, forms of clemency such as pardons and commutations may be unconditional or may carry specific conditions that must be met for the relief to be effective. Constraints on the Pardon Power The federal courts have recognized that the power conferred by Article II, Section 2 of the Constitution is quite broad, establishing virtually "unfettered executive discretion" to grant clemency. The judiciary accordingly has been reticent to weigh in on clemency matters within the purview of the executive branch, particularly given separation-of-powers constraints inherent in the Constitution's structure. As a result, there is very little judicial guidance regarding the limits of the President's pardon authority. Two limits are nonetheless obvious from the constitutional text: first, pardons may be granted only for "offences against the United States," that is, federal crimes, and second, pardons may not be granted "in Cases of Impeachment." Beyond the limits established in Article II, Section 2 of the Constitution, the power to grant conditional or unconditional clemency, though broad, may also be externally limited by other constitutional provisions and guarantees. The Supreme Court has, at times, alluded to such limits, noting, for example, that the President may attach to a grant of clemency conditions "which are in themselves constitutionally unobjectionable." Notably, in Hoffa v. Saxbe , the federal district court for the District of Columbia was called upon to squarely address the relationship between the President's pardon power and "the rights and liberties of the individual" as enshrined in other constitutional provisions. The case involved a commutation that was conditioned on the recipient forgoing participation in labor union management for a period of years. The recipient of the commutation challenged the condition as a violation of his First Amendment rights of free speech and association, among other things. Faced with the issue, the court took the view that "there are obvious limits beyond which the President may not go in imposing and subsequently enforcing" clemency conditions and "arrive[d] at a two-pronged test of reasonableness in determining the lawfulness of a condition: first, that the condition be directly related to the public interest," meaning that it "must relate to the reason for the initial judgment of conviction" in a way that reflects regard for protection of the public; "and second, that the condition not unreasonably infringe on the individual commutee's constitutional freedoms." Applying this two-pronged test, the district court ultimately concluded that the condition was valid because (1)Â the commutation recipient's crimes related to participation in union activities, which the public had a strong interest in the integrity of; and (2) the condition met applicable First Amendment standards. Because case law regarding the President's authority to grant clemency is limited, the two-pronged analysis laid out in Hoffa has not been endorsed by the Supreme Court, nor has there been extensive judicial development of alternative frameworks. Nevertheless, though the proposition remains largely theoretical given the dearth of case law, legal scholars have maintained that grants of clemency or clemency conditions at odds with certain constitutional guarantees like equal protection of the law, due process, and the prohibition of cruel and unusual punishment are subject to judicial review and potential invalidation. Clemency Process While not necessary, clemency is typically granted through an administrative process established in regulations that provide for consideration of applications by the Office of the Pardon Attorney within the Department of Justice (DOJ). The regulations require any person "seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine" to execute a "formal petition" and submit it to the Pardon Attorney. To be eligible to file a pardon petition, at least five years must have elapsed since one's release from confinement or one's conviction (if no prison sentence was imposed). Petitions for commutation generally may be filed only after all other forms of judicial and administrative relief have been pursued, though allowance may be made "upon a showing of exceptional circumstances." Once a petition for clemency has been submitted, the Pardon Attorney is to investigate its merit by engaging "appropriate officials and agencies of the Government" like the Federal Bureau of Investigation. At the conclusion of the investigation, the Pardon Attorney submits a recommendation through the Deputy Attorney General to the Attorney General as to whether the request for clemency should be granted or denied, and the Attorney General is to then review all pertinent information to "determine whether the request for clemency is of sufficient merit to warrant favorable action by the President." The Attorney General's final recommendation is made to the President in writing. The general standard for a pardon request "of sufficient merit" is that the petitioner has "demonstrated good conduct for a substantial period of time after conviction and service of sentence." DOJ lists five "principal factors" in determining whether a particular application warrants a favorable recommendation: 1. post-conviction conduct, character, and reputation , including, among other things, financial and employment stability, "responsibility toward family," and participation in community service; 2. the seriousness and relative recentness of the offense , with consideration of victim impact and whether sufficient time has passed "to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction"; 3. acceptanc e of responsibility, remorse, and atonement , including victim restitution and any attempts "to minimize or rationalize culpability"; 4. the need for relief , such as a legal disability like a bar to licensure, though "the absence of a specific need should not be held against an otherwise deserving applicant"; and 5. recommendations and reports from officials like the prosecuting attorneys and sentencing judge. Factors considered on a request for commutation include "disparity or undue severity of sentence, critical illness or old age," the "amount of time already served," the "availability of other remedies," "meritorious service rendered to the government" (such as cooperation with investigations and prosecutions), and/or "other equitable factors" like demonstrated rehabilitation or pressing unforeseen circumstances. Similarly, "satisfactory post-conviction conduct" is considered on application for remission of a fine or restitution, as well as "the ability to pay and any good faith efforts to discharge the obligation." During President Obama's second term, DOJ announced a "clemency initiative" to "encourage qualified federal inmates to petition to have their sentences commuted[.]" Under the initiative, DOJ prioritized applications of inmates who met special factors that included (1) being nonviolent, low-level offenders without significant ties to organized criminal enterprises; (2) lacking a significant criminal history; (3) demonstrating good conduct in prison; (4) lacking a history of violence; (5) having served at least 10 years of their sentence; and (6) serving a sentence for which they "likely would have received a substantially lower sentence" by operation of law if convicted at the time of consideration. DOJ made recommendations to President Obama on thousands of petitions received through the initiative, many of which were still pending at the end of his second term. The program ended when President Obama left office on January 20, 2017. More broadly, according to statistics kept by the Office of the Pardon Attorney, recent Presidents have granted a relatively small percentage of clemency petitionsâfor instance, President George W. Bush received over 11,000 petitions for pardon or commutation and granted a total of 200. Though DOJ's regulations and requirements guide its consideration of requests for clemency, they do not "restrict the authority granted to the President under Article II, section 2 of the Constitution." In other words, the President is free to grant clemency as he or she sees fit (subject to the constraints described elsewhere in this report), regardless of whether a prospective recipient meets DOJ standards or even participates in the formal petition process through the Office of the Pardon Attorney. For instance, as noted above, while DOJ regulations impose a five-year waiting period for submission of a pardon application through the Pardon Attorney, the President may issue a pardon at any time after the commission of a federal offense even if no charges have been filed, as was the case with President Gerald Ford's pardon of former President Nixon. When a pardon or commutation is granted, the recipient is notified, and a "warrant" is mailed to him or her (or sent to the officer in charge of the place of confinement in the case of a commutation of a sentence still being served). Though the requirements of notice and delivery are set out in DOJ regulations, it appears that they may be necessary for at least a full pardon to have legal effect. As noted above, an ostensible pardon recipient may be able to reject the pardon, at least when "personal rights" like assertion of the Fifth Amendment right against self-incrimination are at issue. Moreover, Presidents have, in the past, revoked pardons prior to delivery and acceptance. For instance, in 1869, after outgoing President Andrew Johnson issued but did not deliver a pardon, incoming President Ulysses S. Grant revoked the pardon, and a federal court upheld the revocation. Selected Legal Issues for Congress The President's use of the pardon power in particular circumstances can raise a number of legal questions, many of which may be unresolved given the limited authority addressing federal clemency matters. Three unresolved legal issues may be of particular interest to Congress given recent commentary: (1) the legal effect of clemency; (2) whether a President may issue a self-pardon; and (3) Congress's role in overseeing the exercise of the pardon power. Legal Effect of Clemency The legal effect of limited forms of clemency like commutations is fairly clear: criminal punishment is reduced "either totally or partially," but the relief "does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction." The legal significance of a full pardon, however, has been a subject of shifting judicial views over time. While early cases suggested that a pardon obviates all legal guilt of the offender, effectively wiping the crime from existence, more recent case law suggests that a pardon removes only the punishment for the offense without addressing the guilt of the recipient or other consequences stemming from the underlying conduct. In an 1866 decision, Ex parte Garland , the Supreme Court took a broad view of the nature and consequence of a pardon: A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. A few years after Garland , the Court appeared to affirm that a pardon "not merely releases the offender from the punishment prescribed for the offence, but . . . obliterates in legal contemplation the offence itself." However, in subsequent decisions, the Court backed away from the broad proposition that a pardon erases both the consequences of a conviction and the underlying guilty conduct. Most notably, in Carlesi v. New York , the Court determined that a pardoned offense could still be considered "as a circumstance of aggravation" under a state habitual-offender law, and then in Burdick v. United States , the Court noted that a pardon in fact "carries an imputation of guilt; acceptance a confession of it." Based on this more recent Supreme Court case law, multiple federal Courts of Appeals have concluded that the "historical language" from early cases "was dicta and is inconsistent with current law." Modern cases instead recognize a distinction between the punishment for a conviction, which the pardon obviates, and "the fact of the commission of the crime," which may be considered in subsequent proceedings or preclude the pardon recipient from engaging in certain activities. A pardon will accordingly relieve the recipient of legal disabilities that "would not follow from the commission of the crime without conviction," such as possession of a firearm or the right to vote, but the conduct and circumstances of the offense may still be considered for purposes of, among other things, certain benefits or licensing determinations or as a basis for censure under rules of professional conduct. Relatedly, courts have held that a pardon does not automatically expunge the record of the conviction itself or require that the court's orders be vacated. Despite the judicial trend toward a narrower understanding of the legal effect of a pardon, however, the Supreme Court has not directly revisited its broad language from Garland , and thus its precise meaning in relation to later pronouncements from the Court remains somewhat unclear. Presidential Self-Pardons Whether a President may pardon himself is an unresolved legal question that has been a subject of renewed interest following President Trump's statement in 2018 that he has "the absolute right" to do so. No past President has issued a self-pardon, and, as a result, no federal court has directly addressed the matter. That said, legal scholars and commentators have debated the question extensively and reached differing conclusions. Proponents of the view that the President may pardon himself tend to emphasize the lack of limitation in the constitutional language, as well as certain historical views and pronouncements of the Supreme Court as to the breadth of the President's pardoning power in general. By contrast, those asserting that the President lacks the power of self-pardon raise competing textual arguments and suggest that self-pardons would be inconsistent with other constitutional provisions, such as the Article I provision stating that officials convicted in an impeachment trial "shall . . . be liable and subject to Indictment, Trial, Judgment, and Punishment, according to law." An Office of Legal Counsel opinion issued shortly before President Nixon's resignation in 1974 concluded that the President cannot pardon himself "[u]nder the fundamental rule that no one may be a judge in his own case," and some scholars subsequently have supported this opinion. In any event, even were a President to pardon himself, at least one commentator has noted that it is questionable whether a court would issue a definitive ruling as to that pardon's lawfulness given practical considerations and separation-of-powers concerns. Role of Congress in President's Use of the Pardon Power Legislation The Supreme Court has taken the view that Congress generally cannot circumscribe the President's pardon authority. In Ex parte Garland , the Court remarked that the "power of the President [to pardon] is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." Consistent with this broad language, the Court later rejected post-Civil War attempts by Congress to limit the effect of pardons granted to those who aided the Confederate cause on their right to recover for seized property, stating that "the legislature cannot change the effect of such a pardon any more than the executive can change the law." More recently, in rejecting the proposition that a condition attached to clemency must be authorized by statute, the Court indicated that "the power [of clemency] flows from the Constitution alone, not from any legislative enactments, and . . . it cannot be modified, abridged, or diminished by the Congress." It thus appears that Congress lacks the authority to substantively constrain the President's power to grant clemency, though Congress may be able to take some actions that would facilitate exercise of the power, such as through appropriations. There is historical precedent for Congress funding positions in DOJ to assist in considering clemency petitions. That said, attempts to indirectly impair the pardon power through appropriations limitations could potentially be viewed as inappropriate. Given these limitations, Congress's practice for formally conveying its views on clemency matters has typically involved passing nonbinding resolutions expressing the sense of Congress as to whether clemency should or should not be granted. Legislation has also been introduced in the 116th Congress that would impose certain post hoc procedural requirements on the Attorney General in connection with pardonsâspecifically, (1)Â requiring submission of investigative materials to congressional committees upon the grant of a pardon or commutation arising from an investigation in which the President or a relative is a target, subject, or witness; and (2) requiring publication of pardon information within three days of any grant. Although such legislation may not be a direct substantive constraint on the President's authority to grant clemency, given the relative lack of case law interpreting the pardon power and the sometimes sweeping language the Court has used to describe the President's prerogative, it is unclear whether such legislation would be viewed by the courts as an impermissible imposition on an area of executive authority. Oversight Beyond legislation, Congress may have a role to play in pardon decisions through other constitutional processes. For instance, Congress has invoked its Article I authority to conduct oversight as a more indirect constraint on the use of the pardon power. And on that front, Congress has, in the past, been relatively successful in obtaining information from the executive branch on particular clemency decisions, up to and including congressional testimony from the President himself. Nevertheless, DOJ has taken the position that past examples of executive branch compliance with congressional requests for information regarding pardon decisions have been purely voluntary, and that in fact "Congress has no authority whatsoever to review a President's clemency decision." Whether a court, faced with an interbranch dispute regarding congressional demands for information on pardon decisions, would order the executive branch to comply with such demands would likely depend on the court's view of two possible constraints on Congress's oversight authority: (1) the existence of a valid legislative purpose, and (2)Â executive privilege. With respect to the first constraint, the Supreme Court has said that Congress's power to conduct oversight is inherent in the legislative process and is broad, encompassing "inquiries concerning the administration of existing laws[,] . . . proposed or possibly needed statutes," and "probes into departments of the federal government to expose corruption, inefficiency, or waste." However, a congressional investigation cannot be used "to expose for the sake of exposure," meaning that a valid inquiry "must be related to, and in furtherance of, a legitimate task of the Congress." The Court has also cautioned that Congress "cannot inquire into matters which are within the exclusive province of one of the other branches of the Government." It is on the basis of this language that DOJ has maintained that Congress's oversight authority does not extend to clemency decisions, averring that "[t]he granting of clemency pursuant to the pardon power is unquestionably an exclusive province of the Executive Branch." That said, the Supreme Court has at other times framed the issue of legislative purpose in the context of executive or judicial prerogatives as being whether it is "obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive," and a congressional committee seeking information on a clemency decision might accordingly argue that a subpoena or request for information on the decision is not a "usurpation" of the clemency function but is merely levied in aid of a "probe . . . to expose corruption, inefficiency, or waste." Assuming a valid legislative purpose, the question would become whether materials related to a pardon decision are nevertheless protected from disclosure by executive privilege. Executive privilege "is a term that has been used to describe the President's power to 'resist disclosure of information the confidentiality of which [is] crucial to the fulfillment of the unique role and responsibilities of the executive branch of our government.'" The term encompasses at least two distinct forms of privilege that have been recognized by the federal courts: (1) a "presumptive privilege for Presidential communications" that extends to "direct communications of the President with his immediate White House advisers" made "'in performance of the President's responsibilities'" and "'in the process of shaping policies and making decisions,'" as well as "communications authored or solicited and received" by immediate White House advisers; and (2) a "deliberative process privilege" that may extend more broadly to "decisionmaking of executive officials generally," shielding "documents and other materials that would reveal advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Neither form of privilege is absolute, as either "can be overcome by a sufficient showing of need." However, "the presidential communications privilege is more difficult to surmount" than the deliberative process privilege; at least in the context of a congressional subpoena, the U.S. Court of Appeals for the D.C. Circuit has indicated that the former can be overcome on a showing that "the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions," while the latter is subject to a flexible, "ad hoc" determination of need and may "disappear[] altogether when there is any reason to believe government misconduct has occurred." It does not appear that courts have addressed the application of either form of privilege to information regarding presidential clemency decisions sought by Congress. However, the U.S. Court of Appeals for the D.C. Circuit considered whether the presidential communications privilege would apply to "internal pardon documents" of the Offices of the Pardon Attorney and Deputy Attorney General that were not solicited or received by the President or his immediate advisors in Judicial Watch v. Department of Justice , concluding that such documents fell outside the scope of the presidential communications privilege but might still be covered by the deliberative process privilege. Based on Judicial Watch and the limited Supreme Court precedent addressing executive privilege, it seems that whether a court would order disclosure to a congressional committee of information concerning a presidential clemency decision in the face of an assertion of executive privilege could depend on whether the information sought is limited to internal agency documents (in which case the deliberative process privilege could apply) or includes communications among and between the President and/or senior White House officials (in which case the presidential communications privilege would appear to apply). Because the threshold of need is higher in the latter case than in the former, it seems more likely that Congress could obtain documents and information generated by the Pardon Attorney that are not requested by or submitted to the President or his advisors. Even in the case of presidential communications, however, a court could still conclude that a congressional committee is entitled to the information if the committee can demonstrate that it is critically needed. Impeachment An additional way in which Congress might assert itself with respect to presidential pardon decisions is through impeachment. James Madison alluded to this "great security" against abuse of the pardon power when he noted during the Virginia ratification convention that "if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him[.]" The Supreme Court also appeared to acknowledge the possibility of impeachment for misuse of clemency in the early 20th century case of Ex parte Grossman . In concluding that the pardon power extended to criminal punishment for contempt of court, the Supreme Court in that case indicated that if the President ever sought to "deprive a court of power to enforce its orders" by issuing "successive pardons of constantly recurring contempts in particular litigation," such an "improbable" situation "would suggest a resort to impeachment, rather than a narrow and strained construction of the general powers of the President." Consistent with these authorities, several commentators have alluded to the potential availability of impeachment as a check on the President's pardon authority. That said, some have also raised doubts as to the efficacy of impeachment as a constraint on the President, arguing that it is "useless against a President .Â .Â . who grants controversial pardons in the very last hours of his tenure" as some Presidents have. Were a President to be impeached in the House of Representatives for abusing the pardon power and subsequently convicted in the Senate, the remedy would be limited by the Constitution to his removal from office and "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States[.]" Constitutional Amendment Finally, Congress can seek to amend the Constitution to clarify or constrain the President's clemency authority. Resolutions have been introduced in the 116th Congress that would amend the Constitution to prohibit the President from granting a pardon to himself or to family members and current or former members of his campaign or administration. However, the requirements for successfully amending the Constitution are, by design, exceptionally stringentâamendments would need to be passed by a two-thirds vote of each House of Congress and ratified by three-fourths of the states. Passing a constitutional amendment as a means of addressing unpopular or controversial pardon decisions accordingly may be difficult.