Parliamentary Oversight of the Executive Branch: United States

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Summary

Congressional oversight of the executive branch is a critical part of the United States federal government’s system of checks and balances. This report provides an overview of the major forms of congressional oversight as well as the organizations involved. Congressional oversight processes include those related to investigations, impeachment, confirmation of nominees, appropriations, authorization, and budget. Congress conducts much of its oversight through committees, with the support of a number of federal  agencies and offices that investigate, audit, and provide information and analysis on executive branch activities.

I. Introduction

Under the United States Constitution, the federal government includes three branches:

  • the legislative branch, consisting of a bicameral Congress with a House of Representatives and a Senate;
  • the executive branch, consisting of the President, the Vice President, the Cabinet, and various agencies and other bodies; and,
  • the judicial branch, consisting of the Supreme Court and the federal appellate and trial courts.[1]

Although the branches of the government are distinct and, in broad terms, equal in power, the legislative branch constrains and checks the power of the executive in important ways, including by exercising oversight powers.[2]

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II. Oversight Processes

Congressional oversight of the executive branch has existed since the earliest days of the United States Congress.[3] Major processes related to congressional oversight include the investigative, impeachment, confirmation, appropriations, authorization, and budget processes.

A. Investigative Process

The Supreme Court has held that the power to investigate is implied in the Constitution’s vesting of legislative powers in Congress.[4] In furtherance of these powers, Congress may compel the disclosure of documents or require the attendance and testimony of witnesses at hearings through the issuance of subpoenas.[5] Failure to comply with a valid subpoena or the provision of false statements to Congress may result in criminal liability.[6] Investigatory hearings and reports published in conjunction with such hearings may receive extensive media attention and result in resignations, firings, or impeachment proceedings.[7]

B. Impeachment Process

The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal civil officers after determining that the officers have engaged in treason, bribery, or other high crimes and misdemeanors.[8]  While this is a critical tool for holding government officers accountable, it is rarely used,[9] and is considered a political mechanism for checking executive branch authority.[10]

C. Confirmation Process

The Constitution requires Senate confirmation for a number of high-ranking executive branch positions,[11] especially those “exercising significant authority pursuant to the laws of the  United States.”[12] This process can be used by senators to provide policy directions to and obtain commitments from nominees seeking confirmation.[13]

D. Appropriations Process

The Constitution requires appropriations measures for general government operations and certain discretionary funding.[14] Appropriations measures may include explicit statutory controls, including language constraining how the funding may be used.[15] Nonstatutory controls also exist where agencies reliant on future appropriations risk receiving less funding and becoming subject to more stringent controls if they ignore the recommendations of Congress.[16]

E. Authorization Process

Authorizing measures are pieces of legislation that establish, continue, or modify an agency, program, or activity on a permanent, annual, or multiyear basis.[17] Such measures may contain statutory controls in the form of explicit directions, as well as nonstatutory controls imposed by committees.[18]

F. Budget Process

Members of Congress can use the budget process to relate program priorities to financial claims on the national budget and incentivize the elimination of less-desirable programs in favor of more-desirable ones.[19]

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III. Committees and Offices

Congressional oversight traditionally involves the delegation of powers though the committee system[20] and the support of a number of federal agencies and offices, including the Council of  the Inspectors General on Integrity and Efficiency (CIGIE),[21] the Office of Management and Budget (OMB),[22] the Government Accountability Office (GAO), the Congressional Research Service (CRS), and the Congressional Budget Office (CBO).[23]

A. Committees

Either chamber of Congress may delegate its oversight powers to committees composed of its members.[24] A committee’s ability to investigate the executive branch is substantial and wide-ranging as long as the subject matter is within its jurisdiction[25] and the investigation is “related  to, and in furtherance of, a legitimate task of the Congress.”[26]

B. Council of the Inspectors General on Integrity and Efficiency

Inspectors General (IGs) are executive branch positions created by statute with broad powers to audit and investigate their affiliated agencies, and with special protections to ensure their independence.[27] Violations of federal criminal law and other significant problems detected by IGs must be reported to Congress.[28] The CIGIE facilitates coordination among the various IGs, provides regular reports to Congress, and is in frequent communication with Congress on oversight matters.[29]

C. Government Accountability Office

The GAO supports congressional oversight by auditing agency operations to determine whether federal funds are being spent efficiently, investigating allegations of improper activities, reporting on how well government programs are meeting their objectives, performing policy analyses, and issuing legal opinions and reports on agency rules.[30]

D. Congressional Research Service

The CRS provides objective, nonpartisan policy analysis and research services to members of Congress on a wide-range of issues, including congressional oversight.[31] The CRS, however, cannot conduct audits or investigations.[32]

E. Office of Management and Budget

While the OMB is mainly concerned with developing policy and budgets for the President,[33] it also serves as an information clearinghouse for executive agencies and is a useful source of information about agency activities for investigative and oversight committees.[34]

F. Congressional Budget Office

The CBO works for Congress as a nonpartisan, objective source of analysis on budgetary matters.[35] Major CBO products include cost estimates and scorekeeping for legislation.[36]

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IV. Recommended Sources for Further Research

The statutes, cases, reports on federal government websites, and books cited in the footnotes, as well as the books, articles, and other such reports listed below, are suggested for further research.

Books

  • ROBERT C. BOYD CENTER FOR LEGISLATIVE STUDIES, CONGRESS INVESTIGATES: A CRITICAL AND DOCUMENTARY HISTORY (Roger A. Bruns et al. eds., rev. ed. 2011).
  • CHARLES L. BLACK JR., IMPEACHMENT: A HANDBOOK (1974).
  • LANCE COLE & STANLEY M. BRAND, CONGRESSIONAL INVESTIGATIONS AND OVERSIGHT: CASE STUDIES AND ANALYSIS (2011).
  • CQ PRESS, GUIDE TO CONGRESS (7th ed. 2013).
  • LOUIS FISHER, CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS AND THE PRESIDENT (6th  ed. 2014).
  • PHILIP  G. JOYCE, THE CONGRESSIONAL BUDGET OFFICE: HONEST NUMBERS, POWER, AND POLICYMAKING (2011).
  • PAUL C. LIGHT, GOVERNMENT BY INVESTIGATION: CONGRESS, PRESIDENTS, AND THE SEARCH FOR ANSWERS, 1945–2012 (2014).
  • WALTER J. OLESZEK, MARK J. OLESZEK, ELIZABETH RYBICKI & BILL HENNIFF, JR., CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS (10th ed. 2016).
  • ALLEN SCHICK, THE FEDERAL BUDGET: POLITICS, POLICY, PROCESS (3d ed. 2007).

Articles

  • Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083 (2009).
  • Matthew Mantel, Congressional Investigations: A Bibliography, 100 LAW LIBR. J. 323 (2008).
  • Shirin Sinnar, Protecting Rights from Within? Inspectors General and National Security Oversight, 65 STAN. L. REV. 1027 (2013).
  • Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 MARQ. L. REV. 881 (2014).

Reports

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Prepared by Andrew Winston
Senior Legal Reference Librarian[*]
August 2017

[*] This report was prepared with the assistance of Law Library intern Brian Kaviar.

[1] See U.S. CONST. arts. I-III; see also INS v. Chadha, 462 U.S. 919, 951 (1983), which states that “[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility.”

[2] See Bowsher v. Synar, 478 U.S. 714, 722 (1986), which states as follows:

That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured to assure full, vigorous, and open debate on the great issues affecting the people and to provide avenues for the operation of checks on the exercise of governmental power.

[3] ALISSA M. DOLAN ET AL., CONG. RESEARCH SERV., RL 30240, CONGRESSIONAL OVERSIGHT MANUAL 1 (2014), https://ntrl.ntis.gov/NTRL/dashboard/searchResults/titleDetail/PB2015102393.xhtml.

[4] See Watkins v. United States, 354 U.S. 178, 187 (1957), which states that “[t]he power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws. . . . It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.”

[5] See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 (1975), which states that “[i]ssuance of subpoenas . . . has long been held to be a legitimate use by Congress of its power to investigate.”

[6] 2 U.S.C. §§ 192, 194; 18 U.S.C. §§ 1001, 1621.

[7] See DOLAN ET AL., supra note 3, at 68–69.

[8] U.S. CONST. art. II, § 4; see also id. art. I, § 2, cl. 5 & § 3, cl. 6, 7.

[9] JARED P. COLE & TODD GARVEY, CONG. RESEARCH SERV., R 44260, IMPEACHMENT AND REMOVAL 1 (2015), available at https://judiciary.house.gov/wp-content/uploads/2016/06/Todd-Garvey-Written-Statement.pdf.

[10] See Nixon v. United States, 506 U.S. 224, 231 (1993), which states that “the Senate alone shall have authority to determine whether an individual should be acquitted or convicted.”

[11] U.S. CONST. art. II, § 2, cl. 2.

[12] Buckley v. Valeo, 424 U.S. 1, 126 (1976).

[13] DOLAN ET AL., supra note 3, at 21.

[14] See U.S. CONST. art. I, § 9, cl. 7.

[15] 31 U.S.C. § 1301(a).

[16] DOLAN ET AL., supra note 3, at 19.

[17] Sandy Streeter, The Congressional Appropriations Process: An Introduction, in CONGRESS OF THE UNITED STATES: OVERSIGHT, PROCESSES AND PROCEDURES 150 (Carol S. Plesser ed., 2007).

[18] DOLAN ET AL., supra note 3, at 18.

[19] Id. at 17–18.

[20] Walter J. Oleszek, Congressional Oversight: An Overview, in CONGRESSIONAL OVERSIGHT: AN OVERVIEW, A MANUAL AND SELECT DEVELOPMENTS 5 (Jamie C. Howell ed., 2010).

[21] DOLAN ET AL., supra note 3, at 98.

[22] Id. at 120–21.

[23] Id. at 15–16.

[24] See Legislative Reorganization Act of 1946, ch. 753, 60 Stat. 812 (codified as amended in scattered sections of 2 U.S.C.); Legislative Reorganization Act of 1970, Pub. L. No. 91-510, 84 Stat. 1140, 1156 (codified as amended in scattered sections of 2 U.S.C.).

[25] See House Rule X, 115th Cong. (2017); Senate Rule XXV, 115th Cong. (2017). An updated list of congressional committees can be found on Congress.gov at https://www.congress.gov/committees.

[26] Watkins v. United States, 354 U.S. 178, 187 (1957); see also DOLAN ET AL., supra note 3, at 25.

[27] DOLAN ET AL., supra note 3, at 91; see also Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat. 1101 (codified as amended at 5 U.S.C. App.); Inspector General Act Amendments of 1988, Pub. L. No. 100-504, 102 Stat. 2515 (codified as amended at 5 U.S.C. App.).

[28] DOLAN ET AL., supra note 3, at 95–96.

[29] COUNCIL OF THE INSPECTORS GENERAL ON INTEGRITY AND EFFICIENCY, CONGRESSIONAL RELATIONS HANDBOOK 1 (2015), https://www.ignet.gov/sites/default/files/CIGIE%20Congressional%20Relations%20Handbook%20January%202015.pdf; see also Inspector General Reform Act of 2008, Pub. L. No. 110-409, 122 Stat. 4302 (codified as amended at 5 U.S.C. App.).

[30] About GAO, GAO, http://www.gao.gov/about/index.html (last visited July 7, 2017); see also Budget and Accounting Act of 1921, ch. 18, 42 Stat. 20 (codified as amended in scattered sections of 31 U.S.C.).

[31] ABOUT CRS, THE LIBRARY OF CONGRESS: CONGRESSIONAL RESEARCH SERVICE, https://www.loc.gov/crsinfo/about (last updated Apr. 20, 2017).

[32] DOLAN ET AL., supra note 3, at 107.

[33] Office of Management and Budget, THE WHITE HOUSE, https://www.whitehouse.gov/omb (last visited July 21, 2017).

[34] DOLAN ET AL., supra note 3, at 121.

[35] Introduction to CBO, CONGRESSIONAL BUDGET OFFICE, https://www.cbo.gov/about/overview (last visited July 21, 2017).

[36] Products, CONGRESSIONAL BUDGET OFFICE, https://www.cbo.gov/about/products (last visited July 21, 2017).