Scrutiny of the Executive

Learning Objectives

• To identify and explain the concepts of scrutiny and oversight

• To examine congressional checks on the power of the executive

Definitions

Scrutinyscru·ti·ny n. pl. scru·ti·nies 1. A close, careful examination or study.2. Close observation; surveillance.

Oversighto·ver·sight (vr-st)n.1. Watchful care or management; supervision.2. Management by overseeing the performance or operation of a person or group

Oversight of the Executive Branch

“an important and positive role to

ensure the executive branch adheres to limits to its powers and discharges its duties in a proper

and timely manner”

“a polite phrase for trying to embarrass

the president and his administration”

Oversight of the Executive Branch

• Scrutiny of the executive branch is an implied power of Congress

• Absence of the executive from Congress makes scrutiny difficult so Congress has given itself specific powers in addition to the existing checks and balances by the legislature on the executive

Checks on…Checks by…

The executive

The legislature

• Amend/delay/reject legislation• Override president’s veto• Power of the purse• Declare war• Ratify treaties (Senate)• Investigation• Impeachment, trial, conviction

and removal from office

Checks & Balances

Check Example

Amend/delay/reject legislation Rebuild American Jobs Act filibustered in Senate 03/11/11

Override president’s veto George W Bush - Medicare Improvements for Patients and Providers Act 15/07/08

Power of the purse House Resolution 29202/06/11

Declare war Iraq War (follows War Powers Resolution)Libya (controversial)

Ratify treaties (Senate) New START (The New Strategic Arms Reduction Treaty) 22/12/10

Investigation Solyndra Loan Investigation 2011

Impeachment, trial, conviction and removal from office

Bill Clinton 1998

Amend/delay/reject legislation• Every Republican senator and a few Democrats voted to

maintain a filibuster, 51-49 -- far from the 60 needed to bring the legislation to a vote. Democratic Sens. Ben Nelson of Nebraska and Joe Lieberman, an independent member of the caucus, voted with Republicans.

• Obama had urged Congress to pass the infrastructure bill, called Rebuild America Jobs Act, which he said would put hundreds of thousands of construction workers back to work on road, rail and airport projects.

• The $60 billion bill investing in roads, bridges and infrastructure, would have been paid with a 0.7% tax on Americans earning more than $1 million per year.

Override President’s Veto• 110 or 4% of presidential vetoes have been overturned• George W Bush’s vetoes were overturned on 4 occasions (36% of

his 12 vetoes); compare with Bill Clintons vetoes being overturned on 2 occasions (5% of his 37 vetoes).

• The president with the most vetoes overturned was Andrew Johnson with 15 vetoes overturned (52% of his 29 vetoes).

• Barack Obama has only vetoed 2 pieces of legislation; neither of which have been overridden.

• The most recent veto override in the US was 15th July 2008 by GWB who vetoed the Medicare Improvements for Patients and Providers Act. Overridden by House, 383-41 (283 votes required.) Overridden by Senate, 70-26 (64 votes required). Enacted as law over the President's veto.

Power of the Purse• House Speaker John Boehner introduced House

Resolution 292 in the House of Representatives on 3rd June 2011 that stated “The President has not sought, and Congress has not provided, authorization for the introduction or continued involvement of the United States Armed Forces in Libya” and that “Congress has the constitutional prerogative to withhold funding for any unauthorized use of the United States Armed Forces, including for unauthorized activities regarding Libya.”

War Powers Clause

• Article I, Section 8, Clause 11 of the United States Constitution, sometimes referred to as the War Powers Clause, vests in the Congress the power to declare war, in the following wording:

• [Congress shall have Power...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

War Powers Resolution• After Vietnam, a debate emerged about the extent of

presidential power in deploying troops without a declaration of war. A compromise in the debate was reached with the War Powers Resolution. This act clearly defined how many soldiers could be deployed by the President of the United States and for how long. It also required formal reports by the President to Congress regarding the status of such deployments, and limited the total amount of time that American forces could be deployed without a formal declaration of war (60-90 days).

• Although the constitutionality of the act has never been tested, it is usually followed, most recently during the Iraq War. The only exception was President Clinton's use of U.S. troops in the 78-day NATO air campaign against Yugoslavia during the Kosovo War.

Declare war• The Authorization for Use of Military Force Against Iraq

Resolution of 2002 was enacted October 16, 2002, and was a joint resolution passed by the United States Congress authorizing military action against Iraq.

• There is still controversy regarding Obama’s use of American troops in the NATO led operations to oust Libyan leader Colonel Gaddafi. The White House argues that the limited American role did not oblige the administration to ask for authorization under the War Powers Resolution, because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”

Ratify Treaties (Senate)• The New START (The New Strategic Arms Reduction Treaty)

is a treaty between the USA and Russia limiting the nuclear arsenal capabilities of Russia and the U.S. while allowing for inspection.

• Ratification required 67 votes in favour (out of 100 Senators). • On 22 December 2010, the U.S. Senate gave its advice and

consent to ratification of the treaty, by a vote of 71 to 26 on the resolution or ratification.

Investigation• The Solyndra Loan Investigation is examining Obama's

administration's authorization of a $535 million loan guarantee to Solyndra Corporation in 2009 as part of a program to spur alternative energy growth. Solyndra and the White House had originally estimated that this government financing for Solyndra would help to create 4,000 new jobs.

Instead of creating those 4,000 jobs, the company ceased all business activity, filed for Chapter 11 bankruptcy, and laid-off nearly all of its employees in early September 2011.

• The House Energy and Commerce Committee are involved in an on-going investigation into the Obama administration’s influence on deciding the loan.

Impeachment, trial, conviction and removal from office

• Bill Clinton was impeached on 19th December 1998, by the House of Representatives on articles charging perjury by a 228–206 vote, and obstruction of justice by a 221–212 vote. Clinton was acquitted by the Senate on February 12, 1999. The Senate vote fell short of the necessary 2/3 needed to remove him from office, voting 45-55 to remove him on obstruction of justice and 50-50 on perjury.

Although Congress has impeached Samuel B Kent (2009) and Thomas Porteous (2010) – this is not oversight/scrutiny of the executive because they were judges, and therefore members

of the judicial branch!

Congress has the power to…

• Subpoena documents and testimony• Hold individuals in contempt• Illegal to lie to Congress• Reject presidential nominees

Specific Powers

Specific Power Example

Subpoena documents and testimony

Solyndra documents November 2011

Hold individuals in contempt Harriett Miers and Joshua Bolten 25.07.07

Illegal to lie to Congress Roger Clemens 19.08.10

Reject presidential nominees John G Tower 1989

Subpoena documents and testimony• The most recent subpoena for documents from the White

House was for documents relating to the $535 million loan guarantee that the administration shepherded for Solyndra.

• However, the White House Counsel, Kathryn Ruemmler, told the House Energy and Commerce Committee and Subcommittee on Oversight and Investigation that the request for documents made by House Republicans a "vast fishing expedition" and a "significant intrusion on Executive Branch interests” and refused to comply with it.

Hold individuals in contempt• Contempt of Congress is the act of obstructing the work of

the United States Congress or one of its committees. Historically the bribery of a senator or representative was considered contempt of Congress. In modern times, contempt of Congress has generally applied to the refusal to comply with a subpoena issued by a Congressional committee or subcommittee — usually seeking to compel either testimony or the production of documents.

• The most recent people held in contempt of Congress were Harriett Miers (White House Counsel) and Joshua Bolten (White House Chief of Staff) on 25th July 2007 by the House Committee on the Judiciary –still ongoing.

Illegal to lie to Congress• Roger Clemens, seven-time winner of Major League

Baseball’s Cy Young pitching award, was charged with lying to Congress about using steroids, joining a growing list of ballplayers accused of cheating.

• A federal grand jury in Washington indicted Clemens, 48, on 19th August 2010 on six counts, including obstructing Congress, making false statements and perjury. If convicted, he faces as much as 21 months in prison under U.S. sentencing guidelines, prosecutors said yesterday in a statement.

Reject presidential nominees• John G. Tower was nominated by Georg H W Bush as

Defense Secretary on 20th January 1989, and was rejected by the Senate on 9th March 1989 by a vote of 47-53.

• To replace Sandra Day O’Connor on the US Supreme Court Bush nominated Harriet Miers, who was widely perceived as unqualified for the position, and it later emerged that she had allowed her law license to lapse for a time. The nomination was immediately attacked by politicians and commentators from across the political spectrum. At Miers' request, Bush withdrew her nomination on 27th October 2005.

EXAM FOCUS

How effective is Congress’ oversight of the executive branch?

Check Effective?

Amend/delay/reject legislation

Override president’s veto

Power of the purse

Declare war

Ratify treaties (Senate)

Investigation

Impeachment, trial, conviction and removal from office

Subpoena documents and testimony

Hold individuals in contempt

Illegal to lie to Congress

Reject presidential nominees

How effective is Congress’ oversight of the executive branch?

Homework

• Revise for Exam Question and End of Topic Test