President Donald Trump increasingly acts as though he believes he can ignore Congress and set wide-ranging national policies on his own.
He has, for instance, recently taken unilateral steps to cut off foreign aid to countries he says are sending too many migrants to the United States. He wants to redirect some of the Pentagon’s budget to building the border wall that Congress rejected. His administration has separated families at the border, rolled back student loan protections and energy efficiency standards, and reportedly blocked AT&T Inc.’s US$85 billion acquisition of Time Warner.
Congress has responded by scheduling hearings and requesting documents from the administration. So far, Trump has largely dismissed this congressional oversight as “presidential harassment” and attempted to resist by claiming executive privilege exempts him from oversight.
In his State of the Union address, Trump went so far as to say that “if there is going to be peace and legislation, there cannot be war and investigation.”
As a constitutional law scholar, I’m certain that the answer to who wins this fight is clear.
Presidential power to override Congress is limited to a very small set of circumstances. As for everything else, the Constitution empowers Congress to set the nation’s course and keep it on track through oversight.
Congress can eliminate almost every federal agency in the country or, instead, redirect agencies’ efforts toward building homes for the poor and require daily reports on progress toward that goal. As long as the votes are there in Congress to pursue a course of action, presidents can’t do much about it.
Carrying out laws
Oversight allows Congress to ensure the executive is properly carrying out the laws as Congress intends.
The Brookings Institution, a centrist think tank, has created a new “oversight tracker,” which shows that Congress is doing this across a wide range of issues and agencies: energy, education, immigration, commerce, civil rights, rule of law, ethics and more.
Congress is asking the administration important policy questions. Are adequate rules, resources and incentives in place to reunite families who have been separated at the border? Are the nation’s anti-trust laws being used to achieve political rather than legal ends? Are student loan providers being held accountable for their failure to treat students fairly? Why have energy efficiency improvements slowed down or reversed?
All federal agencies, commissions and offices that presidents direct were created by Congress. Congress has created more and more federal agencies over time, and increased the scope of the executive branch’s authority. But the power of individual presidents remains constitutionally limited to the powers that Congress gives them.
Operating within limits
The executive branch started out small.
The executive branch remained small until the early 20th century, when the Great Depression led Congress to expand and create various agencies to deal with the economy, poverty and unemployment.
In the 1960s and ‘70s, Congress expanded the executive branch to its approximate current shape and size, adding agencies like Housing and Urban Development, Transportation, Energy and Education. Since then, the number of federal employees has hovered around 2 million.