Scrutiny

By international standards, the extent to which Congress exerts control over the executive branch is considerable. Congressional committees have the authority and power to investigate what the executive does. However, the extent to which Congress can adequately scrutinise the executive is dependent upon two factors. Firstly, the founding fathers created a system in which Congress was the most powerful branch. Although the executive branch has gained in powers since then, Congress still remains a powerful branch of government. Secondly, the American system is based upon separated institutions sharing power. There is a very useful contrast to be offered here between the British system, in which the executive derives from the legislature; and the American system in which divided government has become the norm since the 1980s.

Congress holds eight checks upon the executive branch. In terms of a bill becoming a law, the legislative branch can amend or reject any item of legislation initiated by the President. Congress is often keen to wield this power, particularly during a period of divided government. Secondly, the budget must be approved by Congress. The power of the purse is self-evidently an important aspect of any political system. Agreeing to a budget is the product of a cumbersome bargaining process between the White House and Capitol Hill; as befits a system based upon the sharing of power rather than the concentration of power. Congress can even release funds impounded by the President and order him to spend those funds. In contrast, all the British executive has to do is secure support for the annual budget from the lower chamber on a majority vote. Due to strict party discipline in the UK, this is rarely a problem even during a period of coalition government.

More dramatically, Congress can override a presidential veto. As stipulated in the Constitution, this requires a supermajority. Congress can also force the Head of State to seek authorization before committing troops abroad. It is telling to note that Obama had to spend time seeking approval on Capitol Hill for proposed action against Syria during 2013. The founding fathers bequeathed a system of governance in which the Head of State could never act in a manner comparable to an old-style European monarch. It must also be recognized that only Congress can declare war. James Madison famously argued that the power to declare war should be vested in Congress, because history shows that the executive branch is more likely than the legislature to go to war. That said; Presidents from both parties have often been able to gain congressional approval via a resolution rather than seeking a declaration of war. This has been relatively easy under a period of unified government (as in the case of the Gulf of Tonkin resolution during Lyndon Johnson’s administration, and the wars in Iraq and Afghanistan under George W. Bush).

Another area of scrutiny concerns the ability of the Senate to ratify (or reject) international Treaties. The Senate is far more likely to reject a Treaty during divided government, as in the case of the Comprehensive Test Ban Treaty (1999) which Clinton described as one of the worst moments of his presidency. It is perhaps worth noting here that the majority party in the upper chamber has not rejected a Treaty signed by a President of its own party since the mid-1930s. From a similar angle, all presidential nominations to the executive and judicial branch must gain the “advice and consent” of the Senate. The main focus of the nomination process occurs within a congressional committee. To gain congressional approval, the President may have to withdraw their preferred candidate (as in the case of Susan Rice for Secretary of State under President Obama) or face a humiliating defeat. Over time, the nominating process for a member of the Supreme Court has become heavily politicized and subject to intense political drama.

Congressional committees have the power to investigate policies and actions undertaken by the executive branch. This can lead to criticism and embarrassment for the President. For example, the Senate Select Intelligence Committee published a report in 2014 into the use of torture by the Bush administration and the Senate Foreign Relations Committee highlighted the ‘failure’ of the Obama administration following events in Benghazi, Libya. Finally, Congress can impeach the President in regards to “high crimes and misdemeanors.” Clinton faced charges of perjury and obstruction of justice during his lame-duck period whereas Nixon faced almost certain removal from office by the Democrat-controlled Congress.

As one can see, the ability of Congress to scrutinise the executive is considerable. It should also be noted that Congress can hold the judiciary to account in two areas; the process of impeachment (i.e. removal from office) and by proposing a constitutional amendment when Congress feels that the Supreme Court has overstepped its power of judicial review. Easily the most famous historical example dates back to 1913, when Congress overturned a decision taken by the Supreme Court ruling income tax to be unconstitutional.