Thursday, March 22, 2007

No Oversight?

The Carpetbagger Report

Forgive the redundancy after having just mentioned this, but it’s worth paying special attention to the new White House talking point.

Tony Snow on ABC:

“The executive branch is under no compulsion to testify to Congress, because Congress in fact doesn’t have oversight ability.”

Snow on CBS:

“The legislative branch has no oversight responsibility over the White House.”

Snow during press briefing:

“[T]he Congress does have legitimate oversight responsibility for the Department of Justice. It created the Department of Justice. It does not have constitutional oversight responsibility over the White House, which is why by our reaching out, we’re doing something that we’re not compelled to do by the Constitution, but we think common sense suggests that we ought to get the whole story out, which is what we’re doing.”

Look, I know these guys are into all kinds of strange ideas about a unitary executive, but this is ridiculous. If the legislative branch doesn’t have oversight responsibilities over the White House, does Snow think the White House has to answer to anyone?

I was struck by Snow’s notion that Congress “created the Department of Justice.” Historically, that’s true; the legislative branch was responsible for establishing cabinet agencies, which lawmakers then fund and oversee, even though the agencies are part of the executive branch.

I won’t get into a lengthy, turgid poli sci thesis here, but this new argument seems to be that the legislative branch may pay the White House’s bills, but that doesn’t mean it can serve as a check on the White House’s power. If that’s literally the best the Bush gang can come up with, they’re in trouble.

Alex, in the last thread, pointed to this helpful report (.pdf) from the Congressional Oversight Manual.

The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. The constitutional authority for Congress to conduct oversight stems from such explicit and implicit provisions as:

1. The power of the purse. The Constitution provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Each year the Committees on Appropriations of the House and Senate review the financial practices and needs of federal agencies. The appropriations process allows the Congress to exercise extensive control over the activities of executive agencies. Congress can define the precise purposes for which money may be spent, adjust funding levels, and prohibit expenditures for certain purposes.

2. The power to organize the executive branch. Congress has the authority to create, abolish, reorganize, and fund federal departments and agencies. It has the authority to assign or reassign functions to departments and agencies, and grant new forms of authority and staff to administrators. Congress, in short, exercises ultimate authority over executive branch organization and generally over policy.

3. The power to make all laws for “carrying into Execution” Congress’s own enumerated powers as well as those of the executive. Article I grants Congress a wide range of powers, such as the power to tax and coin money; regulate foreign and interstate commerce; declare war; provide for the creation and maintenance of armed forces; and establish post offices. Augmenting these specific powers is the so-called “Elastic Clause,” which gives Congress the authority “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.” Clearly, these provisions grant broad authority to regulate and oversee departmental activities established by law.

4. The power to confirm officers of the United States. The confirmation process not only involves the determination of a nominee’s suitability for an executive (or judicial) position, but also provides an opportunity to examine the current policies and programs of an agency along with those policies and programs that the nominee intends to pursue.

5. The power of investigation and inquiry. A traditional method of exercising the oversight function, an implied power, is through investigations and inquiries into executive branch operations. Legislators often seek to know how effectively and efficiently programs are working, how well agency officials are responding to legislative directives, and how the public perceives the programs. The investigatory method helps to ensure a more responsible bureaucracy, while supplying Congress with information needed to formulate new legislation.

6. Impeachment and removal. Impeachment provides Congress with a powerful, ultimate oversight tool to investigate alleged executive and judicial misbehavior, and to eliminate such misbehavior through the convictions and removal from office of the offending individuals.

Keep in mind, based on Snow’s comments today, this isn’t the executive privilege argument, this is the executive privilege argument on crack. The principle of executive privilege, while fluid, addresses a president’s need for candor from advisors. As the president said the other day, “[I]f the staff of a President operated in constant fear of being hauled before various committees to discuss internal deliberations, the President would not receive candid advice, and the American people would be ill-served.”

But today’s argument goes much further and suggests Congress lacks the authority to ask the White House questions at all. And given the frequency with which Snow used the argument today, we can expect to hear quite a bit more about this in the coming days.

I have a hunch this is going to get ugly.

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