Congressional Power

The Framers of the Constitution clearly intended the Congress to be the most energetic and powerful branch of the national government. It was to the Congress that power was given to make laws, tax, spend and even declare war. The President and the Supreme Court may act independently of the Congress or even contrary to its wishes, but the Constitution extends to the Congress a much larger menu of powers than it does to the other branches.

While the Constitution affords the Executive and Judicial branches powers which can be used to check and balance the Legislative branch, the Framers took the additional precaution of dividing the Congress in two, creating a House of Representatives and a Senate. This was made necessary, Madison argued in The Federalist No. 51 because:

. . . It is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.

Consequently, while the Legislative branch is granted the most impressive array of powers by the Constitution, it can only exercise those powers when both the House and the Senate are in agreement. A bill cannot become law, taxes cannot be raised, war cannot be declared, and amendments to the Constitution cannot be proposed independently by one house. The Legislative Process and the Budget Process require not only agreement between the Legislative and Executive Branches, but also within the Congress itself.

The Powers of the Congress

Article I of the Constitution establishes the structure, composition and authority of the Legislative branch. For the most part, the powers it grants to the Congress are shared jointly and equally by the House of Representatives and the Senate. Two significant exceptions to this rule, raising taxes and providing "Advice and Consent" to the President, are noted in the discussion below.

The Power to Make Law

The lawmaking authority of the national government lies almost exclusively in the hands of the legislative branch. Section 1 of Article I declares that:

All legislative Powers herein granted shall be vested in a Congress of the United States.

The President, Supreme Court Justices or any other individual, for that matter, cannot even introduce a bill in the House or Senate. Only members of Congress can do so. The Congress might seek the opinion of Executive or Judicial branch officials as it considers the creation of new laws or the modification of old ones; however, it is ultimately the Congress that determines the content and direction of the bills it passes. Because the President can veto legislation, the Congress will sometimes negotiate with the President to win presidential approval of the bills they pass. However, the veto power is a blunt instrument and must be used carefully. The Congress can override presidential vetoes and it can even cease cooperating with an overly beligerent President. As the legislative branch, the Congress has the clear upper hand in making and altering the laws of the land. (See also "The Legislative Process)."

Power of the Purse

A closely related power of the Congress is the exclusive authority to raise and spend money. The Constitution provides that Congress has the power to impose taxes and borrow money to "pay the Debts and provide for the common Defense and general Welfare of the United States." This authority is generally referred to as the "Power of the Purse," meaning the power to control what money is raised by the national government and how it is spent.

Each year, the Congress raises and spends almost two trillion dollars. Given the complexity and importance of the the Congress' exercise of this power, the Budget Process is discussed at length in its own section.

One notable exception to the equal sharing of legislative authority between the House and Senate is the requirement that "All Bills for raising Revenue shall originate in the House of Representatives" (see Article I, Section 7). The Framers believed that Members of the House, being closest to the people, would have the greatest "knowledge of the interests and feelings of the people" and would be, therefore, more prudent than Senators in imposing taxes on the people. While the Senate must concur with any proposal made by the House, as with any other bill, the requirement that efforts to raise taxes begin in the House was clearly intended to provide a check against excessive taxes. Given the colonists' rejection of "taxation without representation" during the Revolutionary, it was also more than a symbolic gesture to keep the power of raising taxes in the hands of the closest representatives of the people.

Power to declare war

While the President is designated as the Commander in Chief of the armed forces of the United States of America, the Congress has power to "declare war." Presidents, without an official Declaration of War by the Congress, have repeatedly mobilized military forces and even engaged in "actions" that were "wars" in every sense the of the word. Because the Congress has the power of the purse, it ultimately has the ability to stop any presidentially initiated military action. It can simply refuse to provide any additional funding for the venture. The issues surrounding the use of the war power by the President and Congress have a long and complicated history. They are discussed in greater detail in "Presidential Power."

Oversight & Investigation

In addition to its legislative authority, the Congress, through practice and tradition, has assumed significant oversight and investigatory power. As the branch of government that creates the laws, the Congress has an obvious interest in making sure those laws are implemented properly and efficiently. When the Congress creates a program or establishes a new governmental policy, its implementation is assigned to an executive branch department or agency, such as the Environmental Protection Agency or the Department of Agriculture. Congressional committees pay careful attention to the implementation of policies within their jurisdiction. If a program is being mismanaged or if the responsible department or agency is heading in a direction other than that intended by the Congress, a committee can hold hearings and call agency or department heads before them to answer for their actions.

Sometimes the Congress even investigates the President and his staff. High profile investigations of past Presidents have examined Nixon's involvement in the Watergate Hotel break-in, Ronald Reagan's knowledge of the Iran-Contra deal, and Bill Clinton's campaign fund-raising practices during the 1992 and 1996 elections. These investigations can put obscure members of Congress in the spotlight or propel well-known members to superstar status. During the 1990s, two members of Congress gained national prominence because of their leadership of special congressional committee investigations. Senator Fred Thompson (R-TN), chaired his committee's "Special Investigation" of President Clinton's and Vice President Gore's alleged campaign finance violations. Representative Chris Cox (R-CA, 47) chaired the House of Representatives' Select Committee on U.S. National Security and Military/Commercial Concerns with the People's Republic of China. The Cox Committee issued a strongly-worded rebuke of the Clinton Administration, detailing information about widespread efforts by the Chinese government to obtain United States nuclear weapons technology.

Given the Congress's propensity to investigate people, and not just policies and programs, some members of Congress have been accused of putting political partisanship ahead of governing and the legislative process. Instead of identifying public policy problems and working cooperatively to develop solutions to them, these members, the critics charge, engage in a process of "revelation, investigation and prosecution" (R.I.P.) to defeat political foes outside the traditional legislative and electoral processes.1 While many Democrats would probably like to return the favor and launch investigations of George W. Bush and his administration, they are limited in their ability to do so because they have been in the minority during his two terms in office. Presidents are much more likely to be the subject of intense congressional scrutiny and investigation when the Senate and House are controlled by the opposing political party.

Whether it is used for good or ill, for partisan or nonpartisan purposes, the Congress's investigative and oversight authority is one of the most feared tools employed by the legislative branch. In many instances, the mere threat of a hearing or an investigation is enough to bring an agency or department into line with congressional wishes. A carefully worded letter or a well-timed phone call by a member of Congress can have the same impact as a full-blown investigation. Agencies and departments recognize that if they do not follow Congress's lead, the Congress has the ability to slash their budgets or even eliminate them altogether.

"Advice & Consent" of the Senate

While the House, not the Senate, is authorized to originate bills which raise taxes, the Senate is given the exclusive authority to give the President "Advice and Consent" on treaties and judicial and executive branch appointments. The Constitution declares that:

He 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, in the Courts of Law, or in the Heads of Departments.

Treaties

Article II of the Constitution grants to the President the authority to "receive Ambassadors and other public Ministers" and to "make Treaties" with the "Advice and Consent" of the Senate. In the case of treaties, "consent" means the support of two thirds of the Senate.

Treaties are generally ratified by the Senate without controversy. The ratification of the North America Free Trade Agreement, ratified by a sharply divided Senate in 1992, is a notable exception to this norm.

Current Treaties in Force

The United States is party to numerous bilateral (involving two nations) and multilateral (involving several nations) treaties.

Current Treaties in Force (Source: U.S. State Department)

One of the oldest treaties still in effect to which the United States is a party is the "Jay Treaty," a treaty of "amity, commerce and navigation" between the United States and Great Britain signed in London on November 19, 1794. It was ratified by the Senate and entered into force on October 28, 1795.2 One of the more significant treaties entered into during 1999 was an agreement with the Russian Federation "concerning the safe, secure, and ecologically sound destruction of chemical weapons."3

Confirmation of Judicial and Executive Appointees

Article II also states that the President shall, again with the "Advice and Consent" of the Senate, 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."

While most presidential nominations are approved by the Senate, the process has become politicized, much like the congressional oversight and investigation processes discussed above. Since the early 1980s, there have been several controversial and hard-fought battles over Supreme Court Justice nominees, with Robert Bork, whose nomination failed, and current Justice Clarence Thomas being the most notable. This process is discussed at length in "The Supreme Court."

For an update on the status of current nominees awaiting Senate approval, you can visit the Senate's "Legislative Activities: Nominations" page.


NOTES
1. Benjamin Ginsberg and Martin Shefter. Politics by Other Means: The Declining Importance of Elections in America (New York: Basic Books, 1990), 26-31.
2. United States Department of State. Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 1997 (Washington, D.C.: U.S. Government Printing Office, 1997), 49.
3. United States Department of State. 1999 Treaty Actions. (Washington, D.C.: State Department Web Site).