CongressLine by – Checks on Power

The French recently elected a new President. While most people were considering the global implications of the election, I was thinking about the role of the President of the French (Fifth) Republic. It is an interesting Executive role, and is one of only three of the major democracies that have an independent Executive, independent of the legislature. The other two are Russia and the United States.

There are many differences between the powers and roles of the Presidents of France, Russia and the United States but their independence from the legislature (National Assembly, Duma, and Congress) is very significant. An independent executive is inherently a more powerful position. Most democracies have some parliamentary variant where the executive is the leader of the majority party in Parliament, and senior members of the party hold Cabinet positions. The Prime Minister or Chancellor (in Germany) must therefore coordinate the various positions of the majority party (usually in the Cabinet) to reach a decision.

Independent executives have no such constraints. They hold office independent of whatever happens in the legislature. Control of the legislature could change; it makes no difference to the independent executive. Executive agencies and departments remain under the authority of the President. Most other Presidents in the world are purely figureheads, which is the reason you rarely hear or care about the election of the President of Germany, but you do hear about the election of the President of France, who is an independent executive and wields more power. The elections of Presidents Putin (Russia) and Bush’s successor will also be significant events for this same reason.

A powerful independent executive usually has some sort of system of checks on his/her authority. The U.S. Constitution’s most famous creation is its unique system of checks and balances. Recent Congressional changes has brought into view a number of different mechanisms Congress has at is disposal to check Presidential authority.

The most basic check on Presidential authority lies in the creation of statutory authority. Outside of powers allocated by the Constitution, every other power the President has comes from statutes (law) approved by Congress. For over 200 years Congress has been allocating all kinds of authority to the President. This check on authority however can be subject to all kinds of interpretation. The President may maintain he already has the authority to do something and goes ahead and does it. This has happened in recent cases relating to intelligence gathering authority. Sometimes Congress maintains the statute requires the President to do something that the President does not. For example the Clean Air Act (the Supreme Court recently ruled) requires the Environmental Protection Agency (EPA) to monitor certain particulate emissions from power plants. The EPA (an Executive Agency) didn’t think it had that authority.

In most cases, the statutory authority is fairly broad, giving the President wide latitude to administer some program or agency. Of course, any changes in Presidential authority would require the approval of the President too, as he has the right to veto legislation (Congress could over-ride the veto, but this is rare).

Congress also has the power to review the performance of executive agencies. They do so with oversight hearings. Though not a real check on Presidential authority, hearings could provide some pause for some more controversial actions of a President. Recent hearings featuring the Attorney General illustrate this. The Attorney General is embroiled in a controversy over the firing of US Attorneys (an executive branch prerogative). Congress chose to call the Attorney General in for a very uncomfortable hearing. If anything criminal is found during a Congressional oversight investigation, the case could be referred to the Justice Department, but then again – that is under the President’s authority. You can perhaps see the pitfalls of this type of check on executive powers. In the end, if Congress doesn’t want the President to have a specific power (assuming it is not a constitutionally granted power), they can legislate it away, if there are more than 2/3rds of the members of Congress who agree.

The US Attorneys controversy highlights another type of check on executive powers of the President. A US Attorney must be confirmed by the Senate, if not (and the President doesn’t choose to appoint him as a “recess appointment”, which will expire) he/she cannot perform the job of a US Attorney. The same is true for ambassadors, senior Cabinet posts, even military commissions. This check on authority hits at the President’s staffing needs. It can be an effective tool for Congress. Congress has been active recently in withholding confirmations on the ambassador to the United Nations and the Food and Drug Administration. Normally this check on the President is merely an annoyance, but it can be effective in causing the President to take notice on a hiring decision.

The most significant check on the President relates to money. Only Congress can raise and appropriate the funds to operate the government. Congress jealously guards this prerogative from all attempts by the President to diminish it. The government has been shut down (for lack of money) on a number of occasions because Congress did not agree with the President. Programs that are favored could be zeroed out in Congress; programs that are not supported can be lavishly funded. Of course, the President could veto the appropriations bill, but he would also be vetoing all other appropriations in the bill. No line item veto exists for the President, primarily because Congress does not want to diminish their check on his authority. (Note: the line item veto has been tried, but it was limited and was eliminated).

Today, we are experiencing a classic, if not historic, example of an appropriations clash with the President. An appropriations bill to fund the war in Iraq was passed by Congress that called for a timetable for withdrawal of troops from Iraq. The President disagreed so vehemently that he was forced to veto the entire bill to fund the war. Since there is not a super-majority to over-ride the veto, which would be an ultimate check on the President, war funding is in limbo at the moment. Appropriations legislation is one of Congress’ most effective, albeit messy, tools to check Presidential power.

The final and ultimate check on the President is Impeachment and Removal from Office. Obviously this is very unusual and up to recently was very rarely attempted. It is so unusual that while two Presidents have been impeached by the House (Andrew Johnson and Bill Clinton), none has ever been removed from office by Congress. Lately this tool however has been burnished more frequently, perhaps as a threat, to President Bush. Congress and President Clinton’s experience with this tool probably proved that it is perhaps too blunt an instrument.

Congress always guards these special measures to check Presidential power. But Congress consists of 535 people (soon to be 536). Trying to coordinate so many people is always very difficult. The Presidency consists of one person. That factor can skew the balance of power toward the President. Balancing power between the two institutions can be a cumbersome dance at times. For congressional observers it is always an interesting dance to watch.

Posted in: Congress, CongressLine