Recently, much ado has been made about Congress’ power of oversight of the executive branch. Indeed, presidential spokesperson Tony Snow has gone so far as to state that "Congress does not have oversight power over the executive." One prominent dKos diarist has gone so far as to give sarcarstic credence to Mr. Snow’s assertion by wittily conceding that, Nowhere in the Constitution of the United States of America does the word "oversight" appear .
Mr. Snow’s assertion is complete and utter hogwash!
As a practicing lawyer, and more so as a retired career military officer, I have always abided by the maxim – when in doubt, RTFM – Read.The.F&#@ing.Manual. In the context of determining what powers the Congress, or for that matter, the President, has, the manual to read here is (fanfare Ta Dah] the Constitution of the United States of America. Come with me as we do this. . . .
The laws of the U.S. consist of the Constitution, the statutes duly enacted by Congress under the Constitution, the regulations promulgated by the executive branch to implement the statutes, the decisions of the judicial branch interpreting the validity and meaning of the statutes and regulations, and the decisions of the courts that fall into the category of the common law. Now it’s a maxim of U.S. law that the Constitution is the supreme law of the land – all statutes, regulations, and court decisions must ultimately comport with the constitution, as determined by the Supreme Court. All of the oaths of office for all federal officers, legislators, judges, and justices contain the oath to uphold the Constitution of the U.S. For example, the Federal Oath of Office found at 5 USC § 3331 begins:
I do solemnly swear (or affirm) that I will support and defend the Constitution against all enemies, foreign and domestic . . . .
As for the President, the Constitution itself sets forth the oath at Article II, Section 8:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
So what does the Constitution say about the relative powers of Congress and the Executive branches?
At the outset, Congress’s powers are in Article I, while the Executive powers are in Article II. This shows that the framers considered legislative powers before executive powers. This reflects the framers’ preference that the policies of government derive directly from the people whom are represented directly by the legislators, as opposed to coming from the executive, who originally was to be elected by a college of electors. And indeed, in looking at the distribution of powers, Article I Section 8 carries a virtual laundry list of powers to set policy and infrastructure. Finally, Article I, Section 8, Clause 18 contains the most important of all powers – the Necessary and Proper power: "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." (Emphasis added.
In a nutshell, the Constitution confers upon the Legislative Branch, the powers to make policy as well as the power to pass laws necessary and proper to carry out the policies into execution, including the power to pass laws dealing with powers invested anywhere in the government of the United States, including any department or officer of the United States. Congress' power to ensure that our laws are carried out expressly extends over the presidency!
In contrast, the Executive branch is primarily given the power to execute Congress’ policy:
The executive Power shall be vested in a President of the United States of America.
Since our scheme of government derives from We, the People, and the People are more directly represented by the Legislative Branch, the constitutional scheme reserves most of the power over policy creation to the Peoples’ branch while giving the power to carry out the policy to the Executive Branch.
Maybe I am viewing this much too simplistically, but it seems to me that the Constitution empowers Congress to determine what we as a republic will do, and the President gets to determine how it gets done. To me, this makes sense since the Congress represents the people while the executive does not necessarily do so. To illustrate this point further, recall that in 2000, Al Gore got a majority of the peoples’ vote and George W. Bush did not. Yet Bush became president. This being the case, it stands to reason that the Congress necessarily must have the power to make sure that what we do is carried out, and even to question how it is carried out. So even though the word "oversight" does not appear in the Constitution, the power of oversight inherently resides in the Congress as is demonstrated by the very architecture and structure of the government the Constitution has created.
So like I said before, the notion that Congress does not have oversight authority over the Executive Branch is utter hogwash.
If we look at current events, we now find that the House has issued subpoenas of executive branch officials in connection with personnel activity in the Department of Justice. The House is seeking to find out if these personnel changes reflect improper political interference in the operation of a department that Congress itself created. It wants to see if it needs to enact further laws to ensure that a department it created to serve national interests is not subverted to political interests. In other words, it is looking towards formulating a policy that says what we, as a nation, are going to do. It has the power to do this.
It is very critical to note that the subpoenas are intended to find out the facts surrounding the firing of 8 U.S. Attorneys where it is clear that the executive branch was involved in some degree. In addition, questions have been raised about the possible existence of improper political motifivations behind the firing. The Attoney General and his staff have had ample opportunity to explain what happened to Congress. But their explanations have not been sufficient, and newly revealed facts suggest that their explanations have not been candid and forthright. Congress has been left with no choice but to conduct an investigation so that it can determine if further legislation is needed.
In the final analysis, taking the sound bite that 'Nowhere in the Constitution of the United States of America does the word "oversight" appear' at face value, the presence of the term in the Constitution is irrelevant. It is the conduct of the Attorney General in providing inaccurate and inadequate explanation of his office's activities, coupled with a clear view that the White House was involved in those activities, that, in this instance, justifies oversight. It is the slimy, evasive response given by the AG that justifies oversight. It is the obvious hiding of all aspects of White House involvement in the firing decisions that justifies oversight.
We, the People, deserve a Department of Justice that works to serve our needs and demand a Department of Justice that is independent and that will not serve as a partisan tool of whomever occupies the White House. As our direct representatives, Congress has the power to ensure that We the People get everything that we deserve from, as well as everthing that we demand of, our government.
Mr. Snow, I wish you well, and hope that you recover nicely from your upcoming medical procedure and come back to work knowing that you are in excellent health. Perhaps then you can take the time to read the Constitution. Perhaps, you can even make the effort to understand it and explain it to your boss. You really need to be afraid of Congress. Very afraid.
Diarist Comment: If some of the comments appear cryptic concerning the title, the original title, which some found inappropriate, was "Executing - GWB."