The Oversight Function of Congress

Investigation

Congressional oversight is the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation.

Learning Objectives

Name several key enumerated powers that imply oversight authority

Key Takeaways

Key Points

  • Congressional oversight refers to oversight by the United States Congress of the Executive Branch, including the numerous U.S. federal agencies. Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation.
  • Congress’s oversight authority derives from its implied powers in the Constitution, public laws, and House and Senate rules. It is an integral part of the American system of checks and balances.
  • Congress could not reasonably or responsibly exercise these powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost; and whether officials were obeying the law and complying with legislative intent.
  • Oversight also is derived from the many and varied express powers of the Congress in the Constitution. Congress could not reasonably exercise its powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost.

Key Terms

  • congressional oversight: Congressional oversight refers to oversight by the United States Congress of the Executive Branch, including the numerous U.S. federal agencies.
  • implied powers: They are those powers authorized by a legal document (from the Constitution) which, while not stated, seem to be implied by powers expressly stated.
  • enumerated powers: The enumerated powers are a list of items found in Article I, Section 8 of the U.S. Constitution that set forth the authoritative capacity of Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of Rights and other protections in the Constitution.

Introduction

Congressional oversight refers to oversight by the United States Congress of the Executive Branch, including the numerous U.S. federal agencies. Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation. Congress exercises this power largely through its congressional committee system. However, oversight, which dates to the earliest days of the Republic, also occurs in a wide variety of congressional activities and contexts. These include authorization, appropriations, investigative, and legislative hearings by standing committees; specialized investigations by select committees; and reviews and studies by congressional support agencies and staff.

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Arthur Andersen Witnesses: Arthur Andersen witnesses testify at the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce House of Representatives (107th Congress) hearing on January 24, 2002.

Congress’s oversight authority derives from its implied powers in the Constitution, public laws, and House and Senate rules. It is an integral part of the American system of checks and balances.

Report on the Organization of Congress

Oversight is an implied rather than an enumerated power under the U.S. Constitution. The government ‘s charter does not explicitly grant Congress the authority to conduct inquiries or investigations of the executive, have access to records or materials held by the executive, or to issue subpoenas for documents or testimony from the executive.

There was little discussion of the power to oversee, review, or investigate executive activity at the Constitutional Convention of 1787 or later in the Federalist Papers, which argued in favor of ratification of the Constitution. The lack of debate was based on the view that oversight and its attendant authority were inherent powers of representative assemblies, which enacted public law.

Oversight also is derived from the many and varied express powers of the Congress in the Constitution. It is implied in the legislature ‘s authority, among other powers and duties, that it can appropriate funds, enact laws, raise and support armies, provide for a Navy, declare war, and impeach and remove from office the president, vice president, and other civil officers. Congress could not reasonably or responsibly exercise these powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost; and whether officials were obeying the law and complying with legislative intent.

The U.S. Constitution

Although the Constitution grants no formal, express authority to oversee or investigate the executive or program administration, oversight is implied in Congress’s array of enumerated powers. The legislature is authorized to appropriate funds; raise and support armies; provide for and maintain a navy; declare war; provide for organizing and calling forth the national guard; regulate interstate and foreign commerce; establish post offices and post roads; advise and consent on treaties and presidential nominations (Senate); and impeach (House) and try (Senate) the President, Vice President, and civil officers for treason, bribery, or other high crimes and misdemeanors. Reinforcing these powers is Congress’s broad authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Activities and Training

Although the Constitution grants no formal, express authority to oversee or investigate the executive or program administration, oversight is implied in Congress’s array of enumerated powers. The legislature is authorized to appropriate funds; raise and support armies; provide for and maintain a navy; declare war; provide for organizing and calling forth the national guard; regulate interstate and foreign commerce; establish post offices and post roads; advise and consent on treaties and presidential nominations (Senate); and impeach (House) and try (Senate) the President, Vice President, and civil officers for treason, bribery, or other high crimes and misdemeanors. Reinforcing these powers is Congress’s broad authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Oversight

Oversight of various federal agencies is one of Congress’ enumerated powers.

Learning Objectives

Describe the source and nature of Congress’s oversight function.

Key Takeaways

Key Points

  • The authority to oversee the executive comes from the constitutional powers. Congress could not carry them out reasonably or responsibly without knowing what the executive is doing.
  • Reinforcing these oversight powers is Congress’s broad authority to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, all other powers vested by this Constitution in the government, or in any Department or Officer in the government.
  • Besides these general powers, numerous statutes direct the executive to give information to or consult with Congress.
  • Oversight occurs through a wide variety of congressional activities and avenues. Some of the most publicized are the comparatively rare investigations by select committees into major scandals or into executive branch operations gone awry.

Key Terms

  • subcommittee: A committee formed by an existing committee.

Background

Although the Constitution grants no formal, express authority to oversee or investigate the executive or program administration, oversight is implied in Congress’s array of enumerated powers. The legislature is authorized to appropriate funds, raise and support armies, provide for and maintain a navy, declare war, provide for organizing and calling forth the national guard, regulate interstate and foreign commerce, establish post offices and post roads, advise and consent on treaties and presidential nominations ( Senate ), and impeach (House) and try (Senate) the President, Vice President, and civil officers for treason, bribery, or other high crimes and misdemeanors. Reinforcing these powers is Congress’s broad authority to make all laws that will be necessary to carry out execution the foregoing powers, all other powers vested by this Constitution in the government, or in any Department or Officer in the government.

The authority to oversee is derived from these constitutional powers. Congress could not carry them out reasonably or responsibly without knowing what the executive is doing; how programs are being administered, by whom, and at what cost; and whether officials are obeying the law and complying with legislative intent. The Supreme Court has legitimated Congress’s investigative power, subject to constitutional safeguards for civil liberties.

Statutes

The necessary and proper clause of the Constitution also allows Congress to enact laws that mandate oversight by its committees, grant relevant authority to itself and its support agencies, and impose specific obligations on the executive to report to or consult with Congress, and even seek its approval for specific actions. Broad oversight mandates exist for the legislature in several significant statutes.

Besides these general powers, numerous statutes direct the executive to furnish information to or consult with Congress. For example, the Government Performance and Results Act of 1993, requires agencies to consult with Congress on their strategic plans and report annually on performance plans, goals, and results. In fact, more than 2,000 reports are submitted each year to Congress by federal departments, agencies, commissions, bureaus, and offices. Inspectors general (IGs), for instance, report their findings about waste, fraud, and abuse. and their recommendations for corrective action, periodically to the agency head and Congress. The IGs are also instructed to immediately issue special reports concerning particularly serious problems to the agency head, who transmits them unaltered to Congress within seven days.

House and Senate Chamber rules also reinforce the oversight function. House and Senate rules, for instance, provide for “special oversight” or “comprehensive policy oversight,” respectively, for specified committees over matters that relate to their authorizing jurisdiction. In addition, House rules direct each standing committee to require its subcommittees to conduct oversight or to establish an oversight subcommittee for this purpose. House rules also call for each committee to submit an oversight agenda, listing its prospective oversight topics for the ensuing Congress, to the House Committee on Government Reform, which compiles and prints the agendas.

The House Government Reform Committee and the Senate Governmental Affairs Committee, which have oversight jurisdiction over virtually the entire federal government, are authorized to review and study the operation of government activities to determine their economy and efficiency and to submit recommendations based on GAO reports. In addition, House rules require that the findings and recommendations from the Government Reform Committee be considered by authorizing panels, if presented to them in a timely fashion.

Activities and Avenues

Oversight occurs through a wide variety of congressional activities and avenues. Some of the most publicized are the comparatively rare investigations by select committees into major scandals or into executive branch operations gone awry. Examples include temporary select committee inquiries into: China’s acquisition of U.S. nuclear weapons information, in 1999; the Iran-Contra affair, in 1987; intelligence agency abuses, in 1975-1976, and “Watergate,” in 1973-1974. The precedent for this kind of oversight goes back two centuries: in 1792, a special House committee investigated the defeat of an Army force by confederated Indian tribes.

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Congress Hall Committee Room Marie Antoinette: One of several committee rooms in Congress Hall, in Philadelphia, PA. The room is located on the second floor, on the west side of the building, adjacent to the Senate chamber. The view is looking toward the front of the building. The portrait of Marie Antoinette, by √Člisabeth Vig√©e-Lebrun (1788), was presented as a gift from the French monarch following the American Revolution.

Advice and Consent

Advice and consent is a power of the Senate to be consulted on and approve treaties signed by the president.

Learning Objectives

Describe the origins and development of the Senate’s “advise and consent” powers

Key Takeaways

Key Points

  • The term “advice and consent ” first appears in the United States Constitution in Article II, Section 2, Clause 2, referring to the Senate ‘s role in the signing and ratification of treaties.
  • Typically, a congressional hearing is held to question the appointee. For a treaty, a two-thirds vote of the Senate is required anyway; thus, a filibuster could only delay passage.
  • Several framers of the U.S. Constitution believed that the required role of the Senate is to advise the president after the nomination.
  • Under the Twenty-fifth Amendment, appointments to the Office of Vice President are confirmed by a majority vote in both Houses of Congress, instead of just the Senate.

Key Terms

  • consent: To express willingness, to give permission.

Background

In the United States, advice and consent is a power of the United States Senate to be consulted on and approve treaties signed and appointments made by the President of the United States to public positions, including Cabinet secretaries, federal judges, and ambassadors. This power is also held by several state Senates, which are consulted on and approve various appointments made by the state’s chief executive, such as some statewide officials, state departmental heads in the Governor’s cabinet, and state judges (in some states).

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John Roberts Confirmation Hearings: Under the Constitution, the Senate have advice and consent on any nominations made by the President to the Supreme Court of the United States. Here, the Senate Judiciary Committee confirmation hearings of John Roberts to be Chief Justice of the Supreme Court of the United States, 2005.

Constitutional Provision

Article II, Section 2, paragraph two of the United States Constitution states: “The President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. ”

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Advice and Consent: Senators also have the power of “advice and consent” over other authorities in the federal or state governments.

The term “advice and consent” first appears in the United States Constitution in Article II, Section 2, Clause 2, referring to the Senate’s role in the signing and ratification of treaties. This term is then used again, to describe the Senate’s role in the appointment of public officials, immediately after describing the president’s duty to nominate officials.

The founding fathers of the United States included the language as part of a delicate compromise concerning the balance of power in the federal government. Many delegates preferred to develop a strong executive control vested in the president, while others, worried about authoritarian control, preferred to strengthen the Congress. Requiring the president to gain the advice and consent of the Senate achieved both goals without hindering the business of government.

Under the Twenty-fifth Amendment, appointments to the Office of Vice President are confirmed by a majority vote in both Houses of Congress, instead of just the Senate.

Historical Development of Power

Several framers of the U.S. Constitution believed that the required role of the Senate is to advise the president after the nomination. Roger Sherman believed that advice before nomination could still be helpful. Likewise, President George Washington took the position that pre-nomination advice was allowable but not mandatory. The notion that pre-nomination advice is optional has developed into the unification of the advice portion of the power with the “consent” portion, although several presidents have consulted informally with senators over nominations and treaties.

Use today

The actual motion adopted by the Senate when exercising the power is “to advise and consent,” which shows how initial advice on nominations and treaties is not a formal power exercised by the Senate. For appointments, a majority of senators are needed to pass a motion “to advise and consent,” but unless the appointment has the support of three-fifths of senators, a filibuster blocking the passage of the motion is possible. Typically, a congressional hearing is held to question the appointee. For a treaty, a two-thirds vote of the Senate is required anyway; thus, a filibuster could only delay passage.

Impeachment and Removal from Office

Impeachment is an expressed power that allows for formal charges against a civil officer of government for crimes committed in office.

Learning Objectives

Differentiate between the roles played by the House and Senate in impeachment proceedings.

Key Takeaways

Key Points

  • Impeachment is analogous to indictment in regular court proceedings. Trial by the other house is analogous to the trial before judge and jury in regular courts. Typically, the lower house of the legislature will impeach the official and the upper house will conduct the trial.
  • Impeachment proceedings may be commenced by a member of the House of Representatives on their own initiative, either by presenting a listing of the charges under oath or by asking for referral to the appropriate committee.
  • The Senate enters judgment on its decision, whether that be to convict or acquit. A copy of the judgment is filed with the Secretary of State. Upon conviction, the official is automatically removed from office and may also be barred from holding future office.

Key Terms

  • impeachment: the act of impeaching a public official, either elected or appointed, before a tribunal charged with determining the facts of the matter.
  • indictment: An official formal accusation for a criminal offence or the process by which it is brought to a jury.

Background

Impeachment in the United States is an expressed power of the legislature that allows for formal charges against a civil government officer for crimes committed in office. The actual trial on those charges, and subsequent removal of an official on conviction on those charges, is separate from the act of impeachment itself.

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The Senate as a Court of Impeachment for the Trial of Andrew Johnson: The Impeachment of Andrew Johnson

Impeachment is analogous to indictmentin regular court proceedings. Trial by the other house is analogous to the trial before judge and jury in regular courts. Typically, the lower house of the legislature will impeach the official and the upper house will conduct the trial.

At the federal level, Article II of the United States Constitution (Section 4), states that the President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and in conviction of, treason, bribery, or other high crimes and misdemeanors. The House of Representatives has the sole power of impeaching, while the United States Senate has the sole power to try all impeachments. The removal of impeached officials is automatic upon conviction in the Senate.

The House of Representatives

Impeachment proceedings may be commenced by a member of the House of Representatives on their own initiative, either by presenting a listing of the charges under oath or by asking for referral to the appropriate committee. Non-members may trigger the impeachment process. For example, when the Judicial Conference of the United States suggests a federal judge be impeached, a charge of what actions constitute grounds for impeachment may come from a special prosecutor, the President, a state or territorial legislature, grand jury, or by petition.

The House debates the resolution and at the conclusion may consider the resolution as a whole or vote on each article of impeachment individually. A simple majority of those present and voting is required for each article or the resolution as a whole to pass. If the House votes to impeach, managers (typically referred to as House managers, with a lead House manager) are selected to present the case to the Senate. Recently, managers have been selected by resolution, while historically the House would occasionally elect the managers or pass a resolution allowing the appointment of managers at the discretion of the Speaker of the United States House of Representatives. These managers are roughly the equivalent of the prosecution/district attorney in a standard criminal trial.

Also, the House will adopt a resolution in order to notify the Senate of its action. After receiving the notice, the Senate will adopt an order notifying the House that it is ready to receive the managers. Then the House managers appear before the bar of the Senate and exhibit the articles of impeachment. After the reading of the charges, the managers return and make a verbal report to the House.

Senate

The proceedings unfold in the form of a trial, with each side having the right to call witnesses and perform cross-examinations. The House members, who are given the collective title of managers during the course of the trial, present the prosecution case. The impeached official has the right to mount a defense with his own attorneys as well. Senators must also take an oath or affirmation that they will perform their duties honestly and with due diligence (as opposed to the House of Lords in the Parliament of the United Kingdom, who vote upon their honor). After hearing the charges, the Senate usually deliberates in private. Conviction requires a two-thirds majority.

The Senate enters judgment on its decision, whether that is to convict or acquit. A copy of the judgment is filed with the Secretary of State. Upon conviction, the official is automatically removed from office and may also be barred from holding future office. The removed official is also liable to criminal prosecution. The President may not grant a pardon in the impeachment case, but may in any resulting criminal case.

Senate Confirmation

Senate confirmation is required for certain presidential appointments stated under the Constitution.

Learning Objectives

Describe the significance of the Senate’s role in presidential appointments

Key Takeaways

Key Points

  • Under the United States Constitution and law of the United States, certain federal positions appointed by the president of the United States require confirmation (advice and consent) of the United States Senate.
  • United States Supreme Court Justices are appointed by the president and confirmed by the Senate. In theory, this procedure allows both the executive and legislative branches to have some power over the judiciary and thus check the judicial branch’s power.
  • The principle of checks and balances allows branches of government to be isolated from each other so that no branch has total power over all functions of government…an attack on or abuse of power by individuals of a single branch will not lead to tyranny or the fall of the entire government.

Key Terms

  • checks and balances: A system for multiple parties wherein each has some control over the actions of each of the others.

Senate Confirmation

Background

Under the United States Constitution and law of the United States, certain federal positions appointed by the president of the United States require confirmation (advice and consent) of the United States Senate. These positions are referred to as Presidential Appointment with Senate confirmation (PAS).

PAS positions, as well as other types of federal government positions, are published in the United States Government Policy and Supporting Positions (Plum Book), which are released after each United States presidential election.

Senate Confirmation and Checks and Balances

United States Supreme Court Justices are appointed by the president and confirmed by the Senate. In theory, this procedure allows both the executive and legislative branches to have some power over the judiciary and thus check the judicial branch’s power. However, following confirmation by the Senate, all Supreme Court justices hold office for life unless they are impeached or they voluntarily retire. Because justices serve for life, their appointments can be politically controversial if they are perceived to have been appointed to implement or serve a more partisan agenda.

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John Roberts Confirmation Hearings: Under the Constitution, the Senate have advice and consent on any nominations made by the President to the Supreme Court of the United States. Here, the Senate Judiciary Committee confirmation hearings of John Roberts to be Chief Justice of the Supreme Court of the United States, 2005.

The principle of checks and balances allows branches of government to be isolated from each other so that no branch has total power over all functions of government. As such, an attack on or abuse of power by individuals of a single branch will not lead to tyranny or the fall of the entire government. The judicial branch, however, holds the potential to nullify laws approved by the legislative branch, disregard the executive branch, and, (in essence) control the rule of law in the United States in accordance to the opinions of its sitting justices.