Oversight

'Oversight' is the general term for Congress's monitoring of the activity of federal departments and agencies, and its scrutiny of presidential nominations and treaties by the Senate. Oversight is exercised through the standing committees, the select committees as and when they are created.

There are a number of factors that should, in theory, make oversight more effective than in a parliamentary system such as the UK's. Traditionally, US party discipline is weak, and congressional careers are based around the permanent standing committees rather than promotion to the executive. However, although there have been high-profile exceptions, such as the investigations into Watergate and Iran Contra (both some time ago), the reality is that oversight is not always effectively carried out. More recently, as partisan loyalties have strengthened, they have acted to undermine oversight. When the presidency and Congress were controlled by the same party, as they were by Republicans 2002-06, oversight declined and Congress was accused of being asleep on the job. Since the Republicans took over the House in 2011, the Oversight Committee under the chairmanship of Darrell Issa has vigorously scrutinised the administration on a variety of issues such as the 'Fast and Furious' operation and the IRS-Tea Party affair. However, it has been seen by many as being more preoccupied with inflicting political damage on the president than carrying out an objective investigation.

The motivation of members of Congress is also a factor. Like all politicians, members of Congress are driven in large part by a desire to be re-elected, and oversight offers them little by way of benefits either to themselves or their constituents. Nor does it improve their chances of re-election. Some members, such as Darrell Issa, will seek to make a name for themselves as zealous pursuers of executive incompetence but they are relatively few in number.

The separation of powers and high levels of checks and balances in the Constitution put Congress in a strong position to provide checks on the executive branch in particular. Oversight of the executive branch occurs when Congress scrutinises or limits its actions.

As well as congressional checks, which are created by the Constitution, a major part of the oversight process comes from the committees created by Congress. They can check the executive in a number of ways.

· Most committees are policy-based and conduct oversight based on their policy expertise. Typically they investigate a department and hold hearings for executive members.

· The House Committee on Oversight and Reform has the sole role of scrutinising the executive. In the years before the 2016 election, committee chair Jason Chaffetz used the committee to investigate Hillary Clinton's use of a private email account for her work as Secretary of State.

· Congress can create temporary committees to provide oversight if an event of concern arises. Congress created the House Select Committee on Benghazi in 2014, after the US ambassador to Libya was killed there.

The effectiveness of congressional checks may be limited. Congress may be restricted by the extent of presidential power. Congress may be unable to provide checks on the president where the president makes use of certain presidential powers. The theory of the `imperial presidency' suggests that the president has a number of tools to bypass these checks. For example, by using executive orders directing the executive branch to carry out a policy in a certain way, the president can effectively create new policies without passing legislation through Congress. Congress has criticised President Obama for his many executive orders on gun control, immigration and federal pay. President Trump was criticised for the high number of executive orders he issued in his first weeks in office, making it difficult for Congress to examine the implications of each one.

There are also a number of factors that influence the relationship between the president and Congress, such as the policy area itself. The extent to which these checks are effective changes a result of changing political circumstances. In other words, the power to vote against presidential proposals is more likely to be used if the president or policy is unpopular.

In addition, if the president and Congress are of the same party, given the increasingly partisan nature of Congress, oversight might be limited. In 2017 Devin Nunes, Chair of the House Intelligence Committee charged with investigating alleged Russian involvement in the US elections, was criticised for his lack of independence from Trump. Nunes travelled to the White House to view security documents rather than having these documents open to scrutiny by the whole committee. He drew criticism from both Democrats and Republicans with Senator John McCain saying, `You've got to have a bipartisan approach to an issue such as this if you want to be credible.' Congress is supposed to act as a watchdog on the executive branch, but can go from attack dog to lap dog, depending on which party is in control.

Factors influencing the relationship between Congress and the presidency

    • Who has the stronger and more recent mandate?

    • Does the President's party have a majority?

    • Is it a domestic or foreign policy?

    • How popular is the President?

    • How skillful is the President?

Party control. If the president’s party holds a majority then the relationship between the two branches is likely to be cooperative. Under divided

government, a president is likely to face stronger oversight and a competing political agenda. In this sense it could be argued that President Trump worked

more cooperatively with Congress in his fi rst 2 years than Obama was able to in his final 6 years.

■ Policy area. The dual presidency theory suggests that the president is much more constrained in domestic policy than foreign policy. This can be seen with

the use of executive agreements or the president initiating military action without congressional consultation as Obama did in Libya in 2011.

■ The popularity of the president. Presidents can usually wield greater influence when they are at their most popular. Congress is more likely to accede to their wishes out of a desire to maintain popularity. Members of Congress from both parties can be affected by this.

■ Partisanship. The longer term rise in partisanship has had a major effect on presidential-congressional relations, as we shall see later. In short, when the

president has a majority there is less resistance to his agenda.

2020 examples:

New York Times Article Nuclear Arms Deal

Case study CNN Congress Russia investigations

Case Study Trump's Taxes

Unlike all recent presidents Trump did not reveal his tax record when he was elected. After the Democrats gained control of the House of Representatives committees began oversight investigations in to Trumps finances and subpoenaed his tax records - Trump fought this in the courts. The Supreme Court decided that while in principle Congress had the right to subpoena the president's finances they had not refined their request narrowly enough and so returned the case to the lower courts (to be decided sometime in 2021) but they did decided that the President could be subpoenaed by the New York prosecutors instigating his possible obstruction of justice. The cases were Trump v Mazars (returned to lower courts) and Trump v Vance (New York)

In Congress, oversight comes in many forms including:

    • Hearings and investigations conducted by standing or special congressional committees.

    • Consulting with or getting reports directly from the president.

    • Giving its advice and consent for certain high-level presidential nominations and for treaties.

    • Impeachment proceedings conducted in the House and tried in the Senate.

    • House and Senate proceedings under the 25th Amendment should the president become disabled or the office of the vice president become vacant.

    • Senators and representatives serving on presidentially appointed commissions.

    • Special studies conducted by congressional committees and support agencies such as the Congressional Budget Office, the General Accountability Office, the Office of Technology Assessment, and the Congressional Research Service.

‘Necessary and Proper’

While the Constitution does not formally grant Congress the authority to oversee the actions of the executive branch, oversight is clearly implied in the many enumerated powers of Congress. The power of congressional oversight is reinforced by the “necessary and proper” clause (Article I, Section 8, Clause 18) of the Constitution, which grants Congress the 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.”

The necessary and proper clause further implies that Congress has the power to investigate the actions of the executive branch. It would be impossible for Congress to apply its oversight powers without knowing whether federal programs are being administered properly and within their budgets and whether executive branch officials are obeying the law and complying with the legislative intent of the laws.

The U.S. Supreme Court has confirmed the investigative powers of Congress, subject to constitutional safeguards for civil liberties. In the 1927 case McGrain v. Daugherty, the court found that, in investigating actions taken by the Department of Justice, Congress had constitutionally considered a subject “on which legislation could be had or would be materially aided by the information which the investigation was calculated to elicit.”

  • Two famous examples of oversight

    • In the late 1960s, televised hearings of the Senate Foreign Relations Committee on the so-called Pentagon Papers solidified public opposition to continued U.S. participation in the Vietnam War, hastening the end of the conflict.

    • Less than a year after details of the 1973 Watergate scandal were exposed, the House Judiciary Committee's impeachment proceedings against President Richard Nixon resulted in his resignation from office.