Legislative-Executive Checks and Balances
Legislative-Executive Checks and Balances
The U.S. Constitution divides the powers of government into three branches: legislative, executive, and judicial. Generally speaking, the legislative branch, Congress, makes the nation's laws. The executive branch enforces the laws through the president and various executive offices. The judicial branch, made up of the Supreme Court and lower federal courts, decides cases that arise under the laws.
This division of government is called the separation of powers. The purpose of the separation of powers is to prevent tyranny, which is arbitrary (random) or unfair government action that can result when one person has all the power to make, enforce, and interpret the laws.
In addition to the broad separation of powers into three branches, the Constitution keeps the legislative and executive branches separate with various specific provisions. Article I, Section 6, prevents members of Congress from serving as officers of the government in the executive branch. Article I, Section 5, says each chamber of Congress, namely the House of Representatives and the Senate, is the sole judge of who wins congressional elections and who is qualified to serve there. The same part of the Constitution gives the House and Senate sole authority to make their rules of operation.
Article I, Section 6, is known as the Speech and Debate Clause and says representatives and senators cannot be punished for speeches made in Congress. Neither can they be arrested while in office, except for treason, felony, and breach of the peace. (Treason is defined as levying war against America or giving aid and comfort to its enemies. A felony is the most serious kind of crime, usually punishable by imprisonment for more than a year. Breach of the peace refers to disorderly conduct.)
Article II, Section 1, says the president must get a salary, which Congress sets, but that Congress may not raise or lower the salary while the president is in office. The same provision prevents the president from getting any compensation other than the salary set before the president entered office.
Checks and balances
The men who wrote the Constitution in 1787 wanted each branch's power to be separate, but not absolute. They considered absolute power, even over just a portion of the government, to be dangerous. They were especially fearful of giving too much power to the president, who might come to resemble an uncontrollable king. They were also fearful of giving too much power to the House of Representatives, which they saw as the chamber of Congress that would represent the popular will of America. The men who wrote the Constitution wanted to protect the wealthy class of society from the passions of popular democracy.
To prevent the power of any one branch from being absolute, the Founding Fathers wrote the Constitution to contain a system of checks and balances. These are powers that each branch has for limiting the power of the other branches. Some scholars say the system of checks and balances actually creates a government of shared powers instead of one with separated powers.
Chambers of Congress
The term "checks and balances" usually refers to the power that one branch of government has to limit the powers of the other branches. For example, the president checks the power of Congress with the ability to veto laws that Congress passes.
Congress, however, has an internal system of checks and balances. Its two chambers, the House of Representatives and the Senate, check each other, because a law cannot pass Congress unless both chambers approve it by simple majorities.
This internal check was important to the Founding Fathers, the men who wrote the Constitution in 1787. Many of them saw the Senate as the voice of wealthy Americans, and the House as the popular voice of free Americans (primarily whites) generally. As described by Philip Kurland and Ralph Lerner in The Founders' Constitution:
The first or lower chamber could then be viewed as an embodiment of the popular will of the day, an assemblage of representatives who come close to being reflexes of the people at large. Across the range of republican opinion, it was agreed that such a body was the necessary foundation of popular government resting on consent. But where the people at large can be arbitrary, tyrannical, and passionate, so too can their faithful mouthpieces [the representatives in the House]. Or, partaking of the failings to which any unchecked body is exposed, a single assembly may be improperly influenced or self-serving or foolish with none to call it to its senses. Such a people, such an assembly, require a check [the Senate] to save them from themselves. Alternatively, one could argue that it is precisely in a regime grounded on popular sovereignty [authority] and devoid of any class vested with hereditary prerogatives [privileges] that a second chamber [the Senate], free to veto "the united will of the whole community, is not only absurd and ridiculous, but highly dangerous."
Most of the Founding Fathers agreed that a unicameral, or single-chamber, legislature would be highly dangerous. Many of them feared that the House, if unchecked, would make laws unfavorable to the wealthy class of society. According to Burdett Loomis in The Contemporary Congress, Virginia delegate James Madison (1751–1836) felt it was safer "to divide the legislature into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependence on society, will admit."
Under the Constitution of 1787, representatives were chosen by Americans with voting rights, while senators were chosen by state legislatures. This was supposed to give the chambers different compositions. The House would represent free Americans, and the Senate would represent the states. Under the Seventeenth Amendment in 1913, however, the Constitution changed to provide for popular election of senators, too. Some political scientists believe this weakened the checks and balances between the two chambers, since they both came to be elected the same way, by the people of America.
The rise of the two-party system of Republicans and Democrats in America in the late 1800s also changed the way checks and balances works in Congress. When one party controls the House and the other controls the Senate, Congress can be a battleground for the two parties. Some citizens and scholars, however, believe that the private interest groups that contribute money to the political parties control both of them. Moreover, when one party controls both chambers, there is much less competition between the chambers. Many citizens, historians, and political scientists, therefore, wonder if the chambers of Congress effectively check each other as they originally were supposed to do.
The checks and balances between Congress and the president are many. The most important are the president's power to veto, or reject, laws that Congress passes, and Congress's power to override a presidential veto. Other legislative-executive checks and balances are the executive recommendation power, the legislative appropriations power, senatorial advice and consent, the division of powers concerning war, congressional oversight work, and removal of the president and other executive officers by impeachment.
Veto power and override
The U.S. Constitution gives the president the power to veto laws passed by Congress. It also gives Congress the power to override a presidential veto. This gives both the executive and legislative branches a role in making America's laws.
To pass Congress, a bill must receive a simple majority of votes in both chambers. This means at least 218 of the 435 representatives in the House must vote in favor of a bill for it to pass. In the Senate, either 51 of the 100 senators or else 50 senators plus the vice president of the United States must vote in favor of a bill to pass it. When the Senate is split 50-50, the vice president gets to cast the tie-breaking vote as president of the Senate under Article I, Section 2, of the Constitution.
Article I, Section 7, of the Constitution says:
Every bill which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated. . . . If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
Under this procedure, there are four things that can happen to a bill when Congress passes it and presents it to the president for consideration. Two are ways the bill can become a law. If the president signs the bill within ten days, not counting Sunday, it becomes a law. The president can also choose to do nothing with the bill. If ten days pass, not counting Sunday, and Congress is still in session when the president has not acted on it, the bill becomes a law as if the president had signed it.
After Congress passes a bill, the president has the power to veto it. The usual way to do this is to send the bill back to Congress with a veto message within ten days of receiving it. The veto message explains to Congress and the nation why the president is rejecting a bill. This is called a return veto.
The other way to veto a bill happens when Congress adjourns, or takes an official break, before the president has had the bill for ten days. Because such an adjournment prevents the president from having a full ten days for a return veto, the Constitution provides that bills do not become laws in such situations. This kind of veto is called a pocket veto, for it is as if the president simply puts the bill in his pocket, waiting for Congress to adjourn.
Generally speaking, members of Congress believe that pocket vetoes can happen only at the end of each official two-year term of Congress. (Congress's two-year terms begin the January after every November election for the House of Representatives.) Presidents, however, use the pocket veto when Congress breaks between the first and second one-year sessions of its terms, and even during congressional recesses, or breaks, in the middle of a session. The Supreme Court has declined to decide the issue of when the president may use a pocket veto. The Supreme Court prefers to stay out of disputes between the executive and legislative branches of government.
The presidential veto is powerful. Obviously, it allows presidents to reject bills of which they disapprove. The mere threat of a veto can discourage Congress from considering or passing a bill in the first place. A veto threat also gives the president the power to encourage Congress to change a bill to the president's liking before passing it.
According to a study by the Congressional Research Service in April 2004, presidents used the return veto 1,484 times and the pocket veto 1,065 times up to that point in history. The number of pocket vetoes is high because Congress often passes many bills in a flurry of activity less then ten days before it adjourns. Many of these die from pocket vetoes.
As of 2005, Franklin D. Roosevelt (1882–1945; served 1933–45) holds the record for the president with the most vetoes—635. As of 2005, eight presidents never used the veto power. George W. Bush (1946–; served 2001–) did not use his veto power during his first term in office. Prior to Bush, the last president not to use the veto power was James A. Garfield (1831–1881), who served for only a short time in 1881 before dying after being shot by an assassin.
Line Item Veto
The U.S. Constitution gives the president the power to veto bills passed by Congress. To exercise the veto power, the president must reject an entire bill. The veto power does not include the power to veto portions of a bill.
The governors of most states have a power called the line item veto. This allows them to veto portions of appropriations bills of which they disapprove. The line item veto is supposed to allow governors to cut down on excessive government spending.
Presidents, especially Ronald Reagan (1911–2004), have asked Congress to give them a line item veto power, too. According to Louis Fisher in The Politics of Shared Power, Reagan said to Congress in his 1986 State of the Union address, "Tonight I ask you to give me what forty-three governors have: Give me a line-item veto this year. Give me the authority to veto waste, and I'll take the responsibility, I'll make the cuts, I'll take the heat." President Bill Clinton (1946–) echoed the request in his State of the Union address in 1995.
In 1996, Congress surprised the nation by passing the Line Item Veto Act. The Act allowed the president to strike specific dollar amounts and tax benefits from appropriations bills passed by Congress. Congress could override the line item veto only by passing another bill containing the portions the president had stricken. The new bill would be subject to the normal veto and veto override provisions of the Constitution.
The Line Item Veto Act was a surprise because it shifted power over the annual federal budget from Congress to the president. According to the authors of The Challenge of Democracy, U.S. senator Dan Coats of Indiana said of the Act, "It's Congress's way of saying, 'We've lost control of the spending process."'
The line item veto, however, did not last long. In the case of Clinton v. City of New York in 1998, the U.S. Supreme Court struck down the act. The Court said the act violated the Constitution because under the Constitution, the only way for a president to use the veto power is to veto an entire bill. In order to give the president line item veto power, the nation would have to adopt a constitutional amendment. Many scholars, including Louis Fisher, believe the line item veto would give presidents too much power over government spending compared with the power of Congress.
When the president vetoes a bill by returning it to Congress while Congress is still in session, the Constitution allows Congress to try to override the veto. It says that if the president vetoes a bill:
he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law.
Under this provision, Congress can override a return veto when two-thirds of both chambers vote in favor of a bill after the veto.
The language of the Constitution makes it sound like Congress must vote on whether to override every return veto. In practice, however, the chamber that first gets the bill back from the president holds an override vote only if there is a chance that two-thirds of its members will vote in favor of the bill (as opposed to the simple majority required to pass the bill in the first place). Through practice, Congress also has established that only two-thirds of the members present for an override vote, not two-thirds of the entire membership, must vote for a bill to override the veto. To hold an override vote or conduct any other business, however, a chamber must have a quorum of members in attendance. A quorum exists when a majority of the chamber's members are present.
If the president pocket vetoes a bill, Congress does not get a chance to override the veto. This is because a pocket veto happens when Congress adjourns before the president has the bill for ten days. Adjournment prevents Congress from reconsidering the bill and holding an override vote.
It is very hard, politically, to override a return veto. Normally, neither of the two major parties, the Republicans and Democrats, has two-thirds of the seats in the House or Senate. Members of the president's political party rarely vote to override a veto. According to a Congressional Research Service study in April 2004, Congress had overturned only 106, or 7.1 percent, of the 1,484 return vetoes to that point in history. As of 2005, the president whose vetoes were overruled the most times was Andrew Johnson (1808–1875). Congress voted to override fifteen of Johnson's twenty-nine return vetoes. This was the period of Reconstruction, in which Congress was trying to help bring the South back into the Union after the American Civil War (1861–65). Johnson disagreed with Congress's Reconstruction policies. The disagreement fueled the House's 1868 impeachment of Johnson for violation of a federal law. The Senate came one vote short of convicting Johnson and removing him from office.
The Constitution contains a veto power only for the president. Congress, however, created a veto power for itself. In 1932, for example, it passed a law giving the president the power to reorganize the offices of the executive branch without first getting congressional approval. Either chamber of Congress, however, could reject a reorganization by passing a simple resolution against it within sixty days of the president's action. (A resolution is a statement of congressional will or opinion.) This process gave each chamber of Congress the power to veto presidential action on reorganization.
Legislative vetoes have many forms. They can be simple resolutions by one chamber of Congress, concurrent resolutions by both chambers, and even resolutions by a single committee of Congress.
Congress has used its veto power to strengthen its control of the departments and agencies of the executive branch. Many laws, for example, have given Congress the power to disapprove a department or agency's spending decisions. Other laws have given Congress the power to disapprove department or agency action.
The legislative veto power has been challenged in court many times. In 1983, in INS v. Chadha, the U.S. Supreme Court decided that the legislative veto violates the Constitution. The Constitution says the only way Congress can pass a bill or resolution is when both chambers approve it and present it to the president for executive veto consideration. Legislative vetoes violate this by giving either one or both chambers of Congress the power to take official action that the president cannot veto.
Despite the Supreme Court's ruling, Congress continues to include the legislative veto power in the nation's laws. According to Louis Fisher in The Politics of Shared Power, Congress enacted four hundred legislative vetoes between the time of the decision in INS v. Chadha and the end of 1987. Congress also gets around the Supreme Court's decision by using informal arrangements with agencies. Through such arrangements, agencies agree to give Congress unofficial legislative veto power over agency spending or action. Agency officials make such arrangements to appease Congress in order to get the funding and programs they want.
Executive recommendation power
Article II, Section 3, of the Constitution says the president "shall from time to time give the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient [proper]." Every year in January, the president carries out this duty by giving a State of the Union address to Congress and the nation. The address outlines what the president would like to see Congress do in the upcoming year. The president conveys such information to Congress in reports during the year, too.
The power to recommend action to Congress serves as a check on Congress's power to pass laws. Congress is not required to do what the president asks. There can be political pressure, however, to do much of what a popular president recommends. For example, after Republican president Ronald Reagan (1911–2004; served 1981–89) won a landslide reelection to a second term in 1984, he was able to get large tax cut bills through Congress even though the Democrats controlled the House of Representatives.
Legislative appropriations power
The Constitution gives the House of Representatives the power to write, and both chambers of Congress the power to pass, bills for raising revenue through taxes and other methods. By tradition, the House also writes appropriations bills. An appropriations bill, also called a spending bill, is one that gives money to a government department or agency. Under Article I, Section 9, of the Constitution, "No money shall be drawn from the Treasury, but in consequence of appropriations made by law."
The appropriations power is supposed to serve as a check on the president. It restricts the president and the various executive departments and agencies to spending only the money Congress appropriates. The power, however, has led to conflict between the legislative and executive branches. Three of those conflicts involve impoundment, reprogramming, and personnel ceilings and floors.
Impoundment happens when the president refuses to spend money Congress has appropriated to a specific department, agency, or program. Presidents and executive agencies use impoundment to control government spending. They also use it to prevent the government from spending tax dollars on projects of which the president's administration does not approve.
The administration of President Richard Nixon (1913–1994; served 1969–74) used the impoundment power a lot from 1969 to 1974. Many in Congress felt this violated the Constitution, an opinion shared by prior members of Congress when presidents used impoundment. When Congress passes an appropriations bill, the only way for the president to strike it is by using the veto power under the Constitution. By signing appropriations bills but impounding money for specific programs, the president was creating a sort of line item veto, the power to strike only portions of a spending bill. In other words, impoundment was giving the president greater control over spending and violating the will of Congress concerning government funding.
To fix the situation, Congress passed the Budget and Impoundment Control Act of 1974. In addition to changing the whole federal budget process, the act changed the impoundment power. It requires the president to submit reports to Congress when the president impounds funds. If an impoundment is temporary, either chamber of Congress can disapprove it. If an impoundment is permanent, both chambers have to approve it before it takes effect.
Congressional power to disapprove impoundments is a form of legislative veto. As noted earlier, the Supreme Court declared legislative vetoes illegal under the Constitution in the 1983 case of INS v. Chadha. However, the executive and legislative branches continue to use the impoundment procedures in the Act of 1974 to guide the exercise of the impoundment power.
Each year the federal government sets a budget for spending for the period October 1 through September 30. The overall budget is based on detailed budget requests that the various departments and agencies submit to the president and Congress. Budget requests specifically identify the programs the departments and agencies want to fund.
Congress gets to set the final annual budget in its appropriations bills. These bills, however, do not contain specifics concerning the programs being funded. Instead, the bills appropriate lump sums of money to the various departments and agencies, such as the Central Intelligence Agency (CIA) or the U.S. Army. The details on the amount being appropriated for specific government programs appear in the reports of the congressional committees that write the appropriations bills.
Reprogramming happens when a department or agency takes money appropriated for one program and spends it on a different program. Reprogramming, like impoundment, can frustrate Congress. This is particularly true when an agency uses reprogramming to fund a project that Congress specifically decided not to fund in its appropriations bills. For example, in July 2002, President George W. Bush had $700 million transferred from unidentified programs into programs for planning an invasion of Iraq. Bush made the transfer without notifying Congress, as he was required by law to do. According to the Center for American Progress, White House allies in Congress told USA Today that Bush's move was acceptable because the amount was small compared to overall spending bills.
During the latter half of the twentieth century, Congress tried to gain control over reprogramming. It began by requiring some departments or agencies to advise Congress when reprogramming occurred. Next, some congressional committees required departments and agencies to ask permission for certain reprogramming. In 1974, the appropriations bill for the Department of Defense specifically made it illegal for the Pentagon to use reprogramming to fund projects rejected by Congress. Future defense appropriations bills have repeated this restriction.
Many scholars and government officials believe that requiring committee approval of reprogramming is a legislative veto that is illegal after INS v. Chadha. Departments and agencies, however, live with such procedures to appease the committees that are responsible for funding their projects. In addition, the federal government is so large that it is impossible for Congress to catch and correct every instance of reprogramming.
Personnel ceilings and floors
Another way presidents have tried to control spending is through personnel ceilings. A personnel ceiling is a limit on the total number of employees a department or agency may hire.
Presidents, through the Office of Management and Budget (OMB), use personnel ceilings to prevent agencies from spending all the money appropriated by Congress for specific projects. In other words, if an agency cannot hire the people it needs for a particular project, the project goes nowhere and the money appropriated for it is saved or spent elsewhere.
Just as Congress tries to control impoundment and reprogramming, it also tries to control personnel ceilings. Its tactic for doing so is called personnel floors. A personnel floor is a minimum number of employees that a department or agency must hire. Congressional committees often write personnel floors into the reports supporting appropriations bills. Congress occasionally includes a personnel floor in an actual bill, making the floor a mandatory part of the law. Floors in committee reports are not absolute, but departments and agencies might follow them to appease their funding committees.
Senatorial advice and consent
There are two powers in the Constitution that the president shares with the Senate alone. One is the appointment of executive officers, judges, and other important positions in the federal government. The other is the making of treaties, or formal agreements, with other nations.
Executive appointments and removals
Article II, Section 2, of the Constitution says the president "shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law."
Under this provision, when Congress creates important positions in the federal government, the president gets to nominate, or recommend, people for those positions. The Senate then gets to consider and either approve or disapprove the nominations.
There are thousands of positions that the president gets to appoint under the nomination power. With support from trusted advisors, the president personally works on the most important nominations. These include the heads of the executive departments, called secretaries (except for the head of the Department of Justice, who is called the attorney general). The president also works personally to nominate the heads of important agencies (such as the Central Intelligence Agency), Supreme Court justices, and commissioners on the independent regulatory commissions (IRCs). IRCs are governmental bodies, such as the Federal Communications Commission (FCC), that regulate specific areas of the national economy.
Before making an important nomination, the president often checks with key members of the Senate to see if the Senate will approve the nomination. This helps the president eliminate people who have no chance of being appointed. Sometimes a person who is nominated, called a nominee, withdraws his or her name from consideration if it looks like the nomination will fail. For example, in December 2004, President George W. Bush nominated former New York City police commissioner Bernard Kerik (1955–) to be secretary of the Department of Homeland Security (DHS). The DHS is a department that Congress created after the terrorist attacks of September 11, 2001, to coordinate protection of the American homeland. One of the DHS's duties is to enforce immigration laws concerning illegal aliens. Illegal aliens are people from other countries who live and work in America without complying with immigration laws. One week after being nominated to lead the DHS, Kerik withdrew his name because he once employed a housekeeper and nanny who was an illegal alien, and he had failed to pay taxes on some of her wages. This information probably would have led the Senate to vote against Kerik for the DHS post.
When the president makes a nomination, the appropriate Senate committee holds hearings to consider the matter. For example, the Senate Judiciary Committee holds hearings to consider nominations to the U.S. Supreme Court and lower federal courts. Upon recommendation from its committees, the Senate usually approves the president's nominations, but occasionally rejects them, requiring the president to make another nomination. If enough senators oppose a nominee, they can prevent the nomination from coming to a vote by using a procedure called a filibuster. A filibuster is a way to use up all of the time assigned to aparticular issue without allowing the issue to come to a vote in the Senate. During the first term of Republican president George W. Bush, a minority of Democratic senators used the filibuster to block the Senate from voting on some of Bush's nominations of federal judges. The conflict led some senators to call for revising their filibuster rules to make it harder for a minority of senators to block Senate votes.
There are thousands of positions to fill that the president does not have time to handle personally. The president's cabinet and staff handle the details of these nominations. For less important positions located in a particular state, the president's staff usually checks with senators from that state who are also in the president's political party. If the president fails to extend this courtesy to senators for such appointments, the Senate might reject a nomination. The effect of this practice, called "senatorial courtesy," is to encourage presidents to check with senators before nominating people to positions located in a particular state.
The Constitution refers only to the power to make and approve appointments to federal offices. It does not address who has the power to remove people from important executive positions. Through case law, the Supreme Court has established that except in cases of impeachment, the president has the sole authority to remove people from purely executive positions, such as the heads of the executive departments. The president can remove such people at any time for any reason, because these positions must be held by people in which the president has complete confidence.
To remove commissioners from IRCs, the president must follow the guidelines set by Congress in the laws governing the commissions. Commissioners are supposed to be independent of the executive branch, so the president does not have the right to remove them at will.
Under the Constitution, justices of the Supreme Court and judges of the lower federal courts cannot be removed "during good behavior." Instead, they can only be removed by impeachment and conviction for "treason, bribery, or other high crimes and misdemeanors." Congress has the sole authority to remove judges through the impeachment process. As of 2005, Congress has removed just seven judges from office through impeachment.
A treaty is a formal agreement with another nation. The Constitution gives the president the power to make treaties "provided two-thirds of the senators present concur [agree]." When the president signs a treaty, the Senate Foreign Relations Committee studies it before submitting it to the entire Senate for a vote. Presidents starting with George Washington (1732–1799; served 1789–97) have involved the Senate in the process of negotiating treaties. This way a treaty has a greater likelihood of being approved by the Senate.
The Senate usually approves treaties signed by the president. One of the most famous exceptions was the Treaty of Versailles, which ended World War I (1914–18). The Treaty of Versailles created the League of Nations, an international organization that was the forerunner of the United Nations. President Woodrow Wilson (1856–1924; served 1913–21) negotiated this important treaty without Senate involvement, and the Senate refused to approve it.
The House plays no role in the process of negotiating and approving treaties. If a treaty program requires federal money, however, the House can determine whether the program gets money through its role in passing appropriations bills.
The Constitution does not say who has the power to cancel treaties. According to Louis Fisher in The Politics of Shared Power, treaties have been cancelled by congressional laws, Senate resolutions, new treaties, and presidential action. The Supreme Court has not resolved the issue. Generally speaking, the Supreme Court prefers to have Congress and the president work together to determine who has the power to cancel treaties.
In addition to treaties, presidents often sign executive agreements with the heads of other nations. Executive agreements are not officially treaties, so they do not require the consent of the Senate. The U.S. Supreme Court, however, has ruled that executive agreements are part of the supreme law of the land, just like treaties.
Presidents typically use treaties for the most important issues and executive agreements for less important issues. Sometimes, however, presidents use an executive agreement for an important issue. Presidents Franklin D. Roosevelt and Harry S. Truman (1884–1972; served 1945–53), for example, used executive agreements at meetings in Yalta and Potsdam to end World War II (1939–45). Using an executive agreement instead of a treaty is significant, because the Senate can require a president to change a treaty before the Senate will approve it.
The Constitution divides the nation's war powers between Congress and the president. Congress has the power to create an army and navy, and to make rules and appropriate money for their operation. Congress also has the sole power to declare war. The president is "commander in chief of the army and navy." This means the president ultimately controls the operations of the military forces.
This separation of war powers was important to the men who wrote the Constitution in 1787. According to Louis Fisher in The Politics of Shared Power, convention delegate James Madison (1751–1836) wrote:
Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced [begun], continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous [comparable] to that which separated the sword from the purse, or the power of executing from the power of enacting laws.
Hence, the men who wrote the Constitution generally felt that the president would be able to use military forces without congressional approval only to defend against an attack. To wage an offensive attack would require a declaration of war by Congress.
Presidents have generally ignored this constitutional separation of powers. America has fought in several hundred military actions since the adoption of the Constitution in 1788. As of 2005, Congress has declared war only eleven times for five wars: the War of 1812 (1812–14), the Mexican-American War (1846–48), the Spanish-American War (1898), World War I (1914–18), and World War II.
During the Vietnam War (1954–75), Presidents Lyndon B. Johnson (1908–1973; served 1963–69) and Richard Nixon sent more than five hundred thousand American soldiers to fight without a congressional declaration of war. Over fifty–eight thousand of them died. When the war became politically unpopular, Congress passed the War Powers Resolution of 1973.
The War Powers Resolution requires the president to report to Congress "in every possible instance" within forty-eight hours after sending troops into hostile situations. The president is then supposed to withdraw the troops unless Congress declares war or otherwise authorizes the military action within sixty days. Presidents, however, have routinely ignored the requirements of the War Powers Resolution, taking for themselves absolute authority over America's military decisions, offensive and otherwise. Some members of Congress occasionally object when the president violates the War Powers Resolution. For example, in October 1983, President Ronald Reagan sent nineteen hundred troops to the Caribbean island of Grenada to take control away from communist Bernard Coard (1944–), who had taken control of Grenada in a military coup. Eleven members of Congress filed a lawsuit, saying Reagan's invasion violated the U.S. Constitution, which gives Congress sole power to declare war. A federal court of appeals dismissed the case because the invasion was over.
To make sure the government is operating as Congress wants it to operate, Congress engages in legislative oversight. This is the process of reviewing the work of government departments and agencies and investigating specific problems. Congress has the power to engage in oversight by virtue of its power to make the laws and appropriate money for governmental operations.
Committees of Congress handle oversight of the departments and agencies for which they write laws and appropriate money. Oversight can take many forms. Much is informal, as when members of a congressional committee meet with federal bureaucrats to see how a program is working. Congress often takes the more formal step of asking an agency to submit an official report of its operations or a specific problem. If a problem is serious, a committee can hold hearings to investigate the situation. Oversight work can lead to informal correction of a problem by a department or agency or to official correction through new laws or different appropriations.
Congressional oversight often leads to conflict with the executive branch. Sometimes the president or executive agencies withhold information from Congress to protect national security, or safety. Other times they withhold information that has nothing to do with national safety, but that they do not want to share with Congress or the nation for some other reason. In the case of United States v. Nixon in 1974, the Supreme Court ruled that the executive branch can withhold information relating to "confidential executive deliberations," or discussions, unless there is a compelling, or strong, governmental interest for forcing the executive branch to release the information. Struggles between Congress and the president over withholding information often end up being resolved in federal court.
The Constitution says, "The president, vice-president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." This is called the impeachment process. It is the only way to remove the president, vice president, and federal judges from office.
Congress alone has the power to impeach and remove federal officers. The process has two parts. Under the first part, the House of Representatives holds hearings and votes on whether to impeach an officer. Impeachment is a formal charge that an officer has committed treason, bribery, or other high crimes or misdemeanors. To impeach someone, the House must vote for impeachment by a simple majority.
If an officer is impeached in the House, the second part of the process is an impeachment trial in the Senate. The Senate conducts the trial much like a courtroom trial, but there is no judge or jury apart from the Senate. (An exception to this is impeachment trials of presidents, over which the U.S. Constitution requires the chief justice of the Supreme Court to preside. Even then, however, the chief justice simply enforces the Senate's rules for the trial. He does not question witnesses or vote on whether to convict the president, as the senators do, because the Constitution limits his role to presiding over the trial.) At the end of the trial, the Senate votes on whether to convict the officer of the charges made by the House. Two-thirds of the senators present must vote in favor of conviction to convict an officer. If the Senate convicts an officer, the officer is removed from office. The Senate can also prevent a convicted officer from serving in another federal office in the future.
The Constitution says that when the House impeaches the president of the United States, the chief justice of the United States presides over the impeachment trial in the Senate. The chief justice is the head of the U.S. Supreme Court. Normally the vice president of the United States has the right to preside over Senate activities, but that would be inappropriate in a presidential impeachment trial because the vice president stands to get the president's job if the president is removed from office.
When presiding over a presidential impeachment trial, the chief justice gets to rule on what evidence may and may not be presented to the Senate for consideration. Under its own rules, however, the Senate may overrule any ruling that the chief justice makes. The chief justice, moreover, does not get to vote on whether to convict the accused president. The chief justice's main role is to see that the process runs smoothly.
As noted, impeachment can happen when a federal officer commits treason, bribery, or other high crimes and misdemeanors. The Constitution defines treason as levying war against America or giving aid and comfort to its enemies. Bribery is when someone gives a government officer money or something else of value to influence the officer's official conduct.
The Constitution does not define "high crimes and misdemeanors." Some scholars think it means a serious violation of a criminal law. Others think it means what Alexander Hamilton (1757–1804) called it in The Federalist, No. 65, "a violation of public trust." In practice, the House and Senate get to define the term themselves in the impeachment process. For example, in 1998, the House impeached President Bill Clinton (1946–; served 1993–2001) for lying under oath regarding whether he had an affair with White House intern Monica Lewinsky (1973–). The case generated much debate over whether lying under oath is a "high crime or misdemeanor" under the constitutional requirements for impeachment.
Although the Supreme Court has not addressed the issue as of 2005, members of Congress probably cannot be removed from office by impeachment. The House of Representatives impeached a U.S. senator once, William Blount of Tennessee in 1797. Blount was accused of conspiring to conduct military activities for the king of England. The Senate, however, voted not to conduct an impeachment trial, reasoning that it did not have power under the Constitution to conduct an impeachment trial of a senator. No senator or representative has been impeached since then.
Under Article I, Section 5, of the Constitution, however, each chamber of Congress gets to make its own rules for how to expel its members for misconduct. Under that provision, a two-thirds vote is necessary to expel a member from either the House or Senate. Although declining to hold an impeachment trial, the Senate expelled Senator Blount in 1797.
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