Learning Outcomes
This article examines the constitutional mechanisms through which Congress limits the power of the executive branch. It details the processes and scope of impeachment, the significance of the appropriations power, congressional influence over executive appointments and removals, and the unconstitutionality of the legislative veto. After reviewing this material, you will be able to identify and analyze the key ways Congress constitutionally checks executive authority, preparing you to address these separation of powers issues on the MBE.
MBE Syllabus
For the MBE, you are required to understand the constitutional framework establishing the separation of powers and the specific ways Congress can limit the President and the executive branch. You should be prepared to:
- Analyze the impeachment process, including grounds for impeachment and the respective roles of the House and Senate.
- Understand Congress's appropriations power as a check on executive action, including the concept of impoundment.
- Evaluate the constitutionality of congressional attempts to control executive appointments and removals.
- Identify and assess the unconstitutionality of legislative vetoes based on bicameralism and presentment requirements.
- Recognize the scope and limits of congressional oversight and investigation powers concerning the executive branch.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which body has the sole power of impeachment under the U.S. Constitution?
- The Senate
- The House of Representatives
- The Supreme Court
- A special committee appointed by the President
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Congress passes a statute appropriating funds for a specific environmental project and mandates their expenditure. The President, disagreeing with the project, orders the relevant agency head not to spend the funds. This action by the President is likely:
- Constitutional, under the President's executive authority.
- Constitutional, if the President deems the project unwise.
- Unconstitutional, as an improper impoundment of funds.
- Unconstitutional, unless Congress overrides the order by a two-thirds vote.
-
Congress enacts a law creating a new executive agency. The law includes a provision allowing a specific congressional committee to veto any regulation issued by the agency director by a majority vote of the committee. This provision is likely:
- Constitutional, as a valid exercise of Congressional oversight.
- Constitutional, if the agency director is an inferior officer.
- Unconstitutional, because it violates the principle of bicameralism and presentment (legislative veto).
- Unconstitutional, because it improperly delegates legislative power to a committee.
Introduction
The U.S. Constitution establishes a system of separated powers among the legislative, executive, and judicial branches. A key feature of this system is the implementation of checks and balances, whereby each branch possesses certain powers that can limit the authority of the others. This article focuses on the primary constitutional means by which Congress, the legislative branch, exerts control and imposes limits upon the executive branch, headed by the President. These mechanisms are essential for maintaining the balance of power envisioned by the Framers and are frequently tested on the MBE. The main tools Congress employs are the impeachment power, the power over appropriations, limitations on executive appointments and removals, and its general legislative authority, which implicitly prohibits unconstitutional structures like the legislative veto.
The Impeachment Power
The Constitution grants Congress significant power to remove federal officers, including the President, Vice President, federal judges, and other civil officers of the United States, through the process of impeachment.
Process
Impeachment is a two-step process divided between the two houses of Congress:
- Impeachment (Accusation): The House of Representatives has the sole power of impeachment. [Art. I, §2] This requires a majority vote to charge an official with wrongdoing.
- Trial and Removal: The Senate has the sole power to try all impeachments. [Art. I, §3] Conviction requires a two-thirds vote of the Senators present.
Grounds for Impeachment
The Constitution specifies the grounds for impeachment as "Treason, Bribery, or other high Crimes and Misdemeanors." [Art. II, §4] The phrase "high Crimes and Misdemeanors" is generally understood to include serious abuses of power or violations of public trust, not necessarily indictable criminal offenses.
Effect of Conviction
The only penalties specified in the Constitution for conviction upon impeachment are removal from office and disqualification from holding any future federal office. [Art. I, §3] The impeached official remains subject to criminal prosecution in the courts for the same conduct.
Key Term: Impeachment A formal accusation by the House of Representatives charging a federal officer with "Treason, Bribery, or other high Crimes and Misdemeanors," leading to a potential trial and removal by the Senate.
Presidential Pardon Power Inapplicable
Crucially, the President's power to grant pardons "for Offenses against the United States" explicitly does not extend to cases of impeachment. [Art. II, §2]
The Power of Appropriations
Congress controls the finances of the federal government through its power "To lay and collect Taxes... [and] pay the Debts and provide for the common Defence and general Welfare of the United States" [Art. I, §8] and its power over appropriations: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." [Art. I, §9]
This "power of the purse" provides a significant check on the executive branch. Congress can dictate how federal money is spent, potentially limiting or directing executive actions and priorities by funding or defunding specific programs or agencies.
Impoundment
The President has a constitutional duty to "take Care that the Laws be faithfully executed." [Art. II, §3] This duty prevents the President from simply refusing to spend funds that Congress has explicitly mandated be spent for a particular purpose through an appropriations law. Such a refusal is known as impoundment. While the President has some discretion in the timing of expenditures, an outright refusal to spend appropriated funds contrary to congressional directive is generally considered unconstitutional.
Key Term: Impoundment The refusal by the President to spend funds appropriated by Congress, which is generally unconstitutional if Congress has mandated the expenditure.
Worked Example 1.1
Congress passes a law appropriating $50 million for the construction of a new veterans' hospital in State X and includes language stating the funds "shall be expended" for this purpose. President Adams, believing the hospital is unnecessary and wasteful, orders the Secretary of Veterans Affairs not to spend the allocated funds. A veterans' group challenges the President's order. Is the President's action permissible?
Answer: No. The President's action constitutes an unconstitutional impoundment. Congress, through its appropriations power, mandated the expenditure of the funds for a specific purpose. The President's duty to faithfully execute the laws requires carrying out this congressional mandate, even if the President disagrees with the policy. Refusing to spend the funds usurps Congress's power of the purse.
Limitations on Executive Appointments and Removal
While the President has the power to appoint executive officers, this power is checked by the Senate, and Congress also imposes limits on the President's ability to remove certain officers.
Appointments Clause
The President appoints ambassadors, public ministers, consuls, Supreme Court judges, and all other "Officers of the United States" with the advice and consent of the Senate. [Art. II, §2] Congress may vest the appointment of "inferior Officers" in the President alone, in the courts, or in the heads of departments. Congress cannot give the appointment power to itself or its officers.
Key Term: Appointment Power The authority vested primarily in the President, subject to Senate confirmation for principal officers, to select individuals for positions within the federal government.
Removal Power
The Constitution is silent on the President's power to remove executive officers. The general rule established by case law is:
- Presidential Removal: The President can remove high-level, purely executive officers (e.g., Cabinet members) at will.
- Congressional Limitation: Congress can impose statutory limits (e.g., removal only "for cause") on the President's power to remove some executive officers, particularly heads of independent agencies or inferior officers where independence from the President is desirable. However, Congress cannot reserve for itself the power to remove an executive officer except through impeachment.
Worked Example 1.2
Congress creates an independent commission to regulate interstate communications. The statute establishing the commission provides that its members serve fixed five-year terms and can only be removed by the President for "inefficiency, neglect of duty, or malfeasance in office." The President attempts to remove a commissioner simply because he disagrees with her policy decisions. Is the removal valid?
Answer: No. The commissioner likely heads an independent agency where some independence from the President is desirable. Congress may constitutionally limit the President's removal power over such officers to instances of "cause." Disagreement with policy decisions does not typically constitute cause under such statutes. Therefore, the President's removal attempt exceeds his constitutional authority as limited by Congress.
The Legislative Veto
Congress sometimes attempts to control executive agency action by including a provision in a statute that allows one or both houses (or even a committee) to overturn an agency decision without enacting new legislation. This mechanism is known as the legislative veto.
The Supreme Court declared the legislative veto unconstitutional in INS v. Chadha, 462 U.S. 919 (1983). It violates the constitutional requirements of:
- Bicameralism: All legislation must pass both the House and the Senate.
- Presentment: All legislation must be presented to the President for signature or veto.
A legislative veto bypasses both requirements, allowing Congress or a part thereof to take action having the force of law without following the constitutionally mandated legislative process.
Key Term: Legislative Veto An unconstitutional provision in a law allowing Congress or its committees to overturn an executive agency action without bicameral passage and presentment to the President.
Exam Warning
Be alert for fact patterns describing a statutory mechanism where Congress, one of its houses, or a committee attempts to invalidate an executive action without passing a new law subject to presidential veto. This is a legislative veto and is unconstitutional. The only way Congress can override executive action is by passing new legislation through the proper constitutional process (bicameralism and presentment).
Oversight and Investigation
Congress possesses broad implied powers to conduct investigations and exercise oversight over the executive branch. This power must be exercised in furtherance of a legitimate legislative purpose (e.g., gathering information for future legislation, exposing government waste or corruption). While a potent check, this power is subject to constitutional limitations, including executive privilege and individual rights protections.
Summary
Congress has several constitutional tools to limit executive power, maintaining the separation of powers. Key mechanisms include:
- Impeachment and Removal: The House impeaches, and the Senate tries and removes federal officers for serious misconduct.
- Appropriations: Congress controls federal spending and can direct or restrict executive actions by controlling funding; Presidential impoundment of mandated funds is generally unconstitutional.
- Appointments and Removals: The Senate confirms principal officers, and Congress can limit the President's removal power over some officials (but cannot reserve removal power to itself outside impeachment).
- Prohibition of Legislative Veto: Congress cannot overturn executive actions by means short of passing new legislation subject to presidential veto.
- Oversight: Congress can investigate and oversee executive actions.
Key Point Checklist
This article has covered the following key knowledge points:
- The impeachment process involves House impeachment and Senate trial/conviction (2/3 vote needed).
- Impeachment applies to the President, VP, federal judges, and civil officers for "Treason, Bribery, or other high Crimes and Misdemeanors."
- Presidential pardon power does not extend to impeachment.
- Congress controls federal spending via appropriations; the President generally cannot impound mandated funds.
- The President appoints principal officers with Senate advice and consent.
- Congress can limit the President's removal power for some officers but cannot remove them directly except via impeachment.
- Legislative vetoes violate bicameralism and presentment and are unconstitutional (INS v. Chadha).
- Congressional oversight and investigation powers serve as a check but are subject to limits.
Key Terms and Concepts
- Impeachment
- Impoundment
- Appointment Power
- Legislative Veto
