How effective is Congress is holding the President to account?

Question can be reworded in others ways such as to what extent is Congress effective in checking the power of the executive?

Effectively	Not effectively
Power of Investigation. Congressional Committees through the power of investigation continue to effectively scrutinise the actions and legislation of the executive through congressional committees, e.g. CIA torture report was released by the Senate Intelligence Committee and Benghazi attacks in 2012 by the Senate Foreign Relations Committee (+House Select Committee on Benghazi), the IRS scandal, dubbed ‘Obama’s Watergate’ is being scrutinised by the House Oversight Committee as well as the House Ways and Means Committee and all Cabinet members are accountable to congressional committees.	However, Congressional oversight has not always been effective. With regards to national security programs (such as the NSA’s mass data collection program) Congress has been described as being the ‘lapdog to the executive branch’ (National Journal) and this has come as a consequence of two factors: (1) Congress doesn’t have the right expertise to investigate such areas and (2) polarisation is growing so its difficult to provide adequate oversight through tinted, extremely partisan views.
Others. The Senate plays a big role in scrutinizing presidential appointments to the judiciary, cabinet and other areas in the executive like federal bureaucracy. Also can impeach.	Impeachments are rare and never really successful, although Nixon did indeed resign he was not officially impeached.
Lawmakers. Although the President in his State of the Union Address sets out the legislative agenda, it is Congress as legislature who implements his proposed legislation and therefore the executive is heavily dependent on Congress for legislation to be passed. Even when a president comes to office with a healthy working majority in Congress he can still face difficulty, e.g. in 2009-2010 when Congress was dominated by the Democrats Obama still faced difficulty in implementing Obamacare and as a result, a significantly watered-down version passed. With Congress being more polarised in recent years there has been a lack of bipartisanship between legislature and executive, which is exactly what the Founding Fathers wanted, and as a result Congress is effective in scrutinizing the executive.	However, even if Congress may not listen to him during his state of the union address the President still has various weapons in his arsenal that he can use to circumvent Congress. In his state of the union address Obama ordered Congress to pass legislation on cyber security, but they made little progress so Obama went with an executive order instead to get federal agencies to impose penalties on people who pose a threat to US cyber security. He also threatened to use presidential vetoes which he’s already used on the Keystone Pipeline and although a 2/3 majority is required to overridden the veto, nowadays in a time of growing polarisation Congress rarely musters enough votes to do so. Also, signing statements allows the executive to pretty much legislate from the Oval Office.
Power of the purse. Congress has the power of the purse granted by the Constitution and therefore has control over all money which the executive branch may need, such as for instance to fund executive orders. This was most recently seen when the Department of Homeland Security’s funding was coming to an end and Congress were refusing to pass a bill to fund the DHS, had the bill not been passed the DHS would have been de-funded and Obama’s executive order would have most likely failed. Although his executive order did not fail, this highlights how through the power of the purse Congress can limit the power and influence of executive orders.	However this only applies to certain executive orders which directly require federal funding to enact – in most cases executive orders remain a virtually uncheckable power which the President uses to circumvent Congress and Congress can do very little about it. In addition to Obama’s immigration executive order he has also signed off around 24 executive orders on gun control after failed attempts in Congress to enact gun control (Assault Weapon Ban, Manchin-Toomey bill).
War Powers Act & Case Act. Through these pieces of legislation Congress continues to check the powers that the executive can exercise in the area of foreign policy. The President earlier this year submitted a report to the Senate requesting further permission to use force against ISIS, this however was met with gridlock in Congress with some thinking it stretches the Presidents power too far and some saying it doesn’t go far enough. The Senate is also in charge of ratifying treaties by a 2/3 majority – e.g. START Treaty in 2010 – this ability of the Senate to ratify treaties has also become increasingly important in the wake of the resumed negotiations over Iran’s nuclear programme (Obama wants to strike a deal, believing Iran can become an ally).	However, today Congress’ ability to check the executive’s power in foreign policy remains very limited and rules set out by the War Powers Act have not always been followed as seen by the Libya attacks in 2011 whereby no Congressional approval was granted. Nor has Congress used its constitutional power to declare war since 1941 and thus, the executive have effectively exploited their as Commander In Chief to take this power away from Congress. Also, with regards to treaties the President tends to go for ‘executive agreements’ instead which have the same effect as treaties but Congress does not need to ratify. There has been a lot of talk recently about how Obama may bypass Congress over the Iran nuclear deal and seal it with an executive agreement instead, completely ignoring Congress.

Does the executive control American foreign policy?

Who controls American foreign policy?

Controls it	Doesn’t control it
COMMANDER IN CHIEF. Traditionally Congress controlled foreign policy through its ability to declare war, however today the President has effectively exploited his role as Commander In Chief and has therefore become the main individual who has initiated a lot of US military intervention abroad such as Iraq and Afghanistan under Bush and sometimes even without Congressional approval as seen from the Libya attacks in 2011, cutting Congress out of the process.	However Congress still continues to play a vital role in, although indeed its true that they haven’t declared war since world war 2, Congress continues to control foreign policy indirectly. This is done by granting the executive congressional approval to take action overseas and this is a requirement the President must fulfill under the War Powers Act. Earlier this year the Obama administration had to submit a report to the Senate requesting congressional authorisation to use further force in the fight against the Islamic State. And this may not always go according to the Presidents wishes, during this process the Senate Foreign Relations Committee had to scrutinise key figures from the Obama administration: Ashton Carter and John Kerry before deciding whether to grant authorisation and this led to major deadlock between Democrats and Republicans with some thinking it went too far and some believing it doesn’t go far enough.
STATE OF THE UNION. Through his state of the union address it is ultimately the President who sets the tone of foreign policy and Congress who follow it. This was perhaps most prominently seen in 2015 SOTU: President Obama told Congress Republicans and Democrats to unite together in the fight against ISIS in the Middle East and pass a resolution to authorize use of force against ISIS – all of which was greeted with applause à there has already been steps taken to pass a resolution. Obama also ordered Congress to work to strengthen ties with Cuba and put aside the differences that have lasted since the 1960s by lifting the Cuba embargo, subsequently a bill was introduced in Congress to lift the half-century old embargo.	During the state of the union address the President appears to be more of a persuader in chief, merely recommending legislation to Congress and what to do in foreign affairs and recently we’ve witnessed how Congress has become increasingly obstructionist to the foreign agenda laid down by the President in his SOTU. In his state of the union address Obama talked of how ties with Iran should be strengthened, believing Iran not to pose a major threat to US security. However, in recent events Congress has disagreed with him on this and have sought to do oppose Obama’s aims towards Iranian relations, which was most clearly seen from the Israeli PM, Benjamin Netanyahu, visiting Congress which annoyed Obama – ultimately Congress’s stance towards Iran is the opposite to that of Obama’s and Netanyahu’s high profile visit to Congress epitomised how at times it may appear that the President is not in control of foreign policy.
KEY DEPARTMENTS. The executive remains in charge of foreign policy as the executive also consists of the cabinet whereby some members are heads of major departments who play a huge role in foreign policy, such as the Defence Department and State Department. The State Department under John Kerry has particularly been at the centre of all diplomatic relations during the Obama administration given the more ‘dovish’ approach to foreign policy. Kerry’s recently been on visits to Russia to discuss the Ukrainian crisis and prior to when ISIS showed up Kerry took part in meetings with Bashar al-Assad. So, it’s the executive who always remains at the forefront of American foreign policy, not Congress. (+National Security council under EXOP)	However, arguably Congress still controls foreign policy through its power of investigation which allows them to investigate any department, such as ones involved in foreign affairs, through its congressional committees. Again, in this sense Congress indirectly control foreign policy. Heads of departments are accountable to congressional committees who scrutinise their every action: most recently seen through the publication of the CIA torture report by the Senate Intelligence Committee which revealed the inhumane enhanced interrogation techniques employed by the CIA when treating suspected terrorists. And also the House Select Committee on Benghazi which investigated Hilary Clinton’s (when she was Secretary of State) poor handling of the Benghazi attacks which led to the deaths of 4 US citizens.
DIPLOMACY. It is ultimately members of the executive branch, namely the President as also diplomat-in-chief who participates in negotiations with foreign nations abroad whereas Congress remains sitting in Washington. We’ve already seen Kerry get involved in various negotiations with other world leaders and also the President in signing treaties. For instance, it was the President who negotiated the START Treaty in 2010 which sought to reduce the number of nuclear weapons both America and Russia have. So, the executive plays a part in diplomacy (he participates in G8 conferences). Also, the President can resort to executive agreements which completely eliminate Congress from the process and these don’t need to be ratified by Congress.	Congress still plays its part, they ultimately have a final say as treaties need to be ratified by Congress.
WAR ON TERROR. It is departments among the executive and agencies in the federal bureaucracy which control foreign policy as illustrated by the revelations of the mass spying programmes run by the NSA (leaked by whistleblower Edward Snownde) which has stretched spying on phone and internet records not just on US citizens but also foreign leaders and British citizens too. Similarly, the CIAs ‘enhanced interrogation’ torture programme in various parts of the world in ‘black sites’ remaining secret from Congress for over a decade shows how the executive is fully in control of everything in foreign affairs. Also, Obama’s ‘disposition Matrix’ which is effectively a kill list for drone strikes (death total 2,400+) outside of Congress’s control also epitomises how the executive controls foreign policy.	But it was Congress who authorized all of this immediately after 9/11 through the PATRIOT Act and recent attempts in Congress to end things like the NSA data collection have been limited through the USA Freedom Act. So, since it’s congressional legislation that gave the NSA and CIA permission to conduct such operations, Congress can revoke the permission. So, again, Congress has a final say.

I'd put this in the conclusion: In the very recent Zivotofsky v. Kerry case the Supreme Court made clear that it is ultimately the President’s constitutional role to conduct the nation’s foreign affairs.

American foreign policy

Again, two major developments in the area of policy;
- Trans Pacific Partnership 

Democrats blocking the fast track to negotiate the Trans Pacific Partnership trade agreement which will control 40% of the trade countries encompassing 12 countries. Elizabeth Warren the de Facto leader in the Senate opposed the bill as Obama cant be trusted to make deals in the interests of Americans as previous trade pacts have not effectively enforced labour standards. Reid sided with Warren and

Obama relies on the support of Republicans, which is unlikely. Republican presidential nominees are agreeing with the exception of Huckabee.

US Chamber of Commerce has given the President support for the fast track authority. Fast track authority was supported by 14 of the 44 Democrats in the Senate and supported by 48 Republicans 

- Renewal of the sunset provision of the PATRIOT Act

Following 9/11, the PATRIOT Act was seen as one of the biggest expansions of federal government's surveillance powers. The Sunset provisions expiring of the Patriot Act prevents federal government from collecting mass mobile phone data. 

National security or an individual's right to privacy and liberty? Which one is worth more?

Rand Paul certainly thinks the individual's rights are greater - as a Libertarian conservative; and he has fervently gone against the provisions of Patriot being renewed. Paul believes only suspected terrorists should be investigated and their data collected... 

America Politics update - Unit 4C

US politics has been rampant over the last few weeks, and in light of the 4C exam next week, here are a few more things to talk about...

Supreme Court

Two major cases over the last few days:

Employment Discrimination 

The court decided in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores that Samantha Elauf was not required to make a specific request for a religious accommodation to wear a hijab when applying for a position at a children’s clothing store owned by the company.

This case illustrates the greater protection of First Amendment rights - freedom of expression and religion... 

8-1

MAJORITY

Sotomayor

Kagan

Ginsburg

Breyer

Kennedy

Roberts

Scalia

Alito

Separation of Powers in Foreign Affairs 

The court decided in Zivotofsky v. Kerry that Congress was not entitled to order the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalem if their parents requested.

This is an incredibly important separation of powers case showing how Congress overstepped the mark by telling the State Dept to record the birth place as Israel for the American children born in Jerusalem - the Executive should have sovereign control of foreign affairs and international relations, not Congress. This case also illustrates the disintegration of the separation of powers and creates further evidence of separate institutions SHARING power. 

6-3

MAJORITY

DISSENT

Sotomayor

Kagan

Ginsburg

Breyer

Kennedy

Roberts

Scalia

Alito

Thomas

'The US constitution is no longer fit for purpose'. Discuss

Scrap it	Keep it
Imperial Judiciary. When drafting the Constitution the Founding Fathers intended that neither branch would become too powerful, however, this has failed and the US Constitution has created an ‘imperial judiciary’ in which the Supreme Court has become too powerful. For an unelected body the Supreme Court exercises too much influence through its power of judicial review and is able to strike down any laws and actions of states and the other two branches. The Supreme Court interferes in many issues that should be considered local such as Obergefell v Hodges & U.S v Windsor (gay marriage), Gonzales v Carhart & McCullen v. Coakley (abortion). Their ability to enact social change as an unelected body and interfere with issue that should be local has truly generated an image of an imperial judiciary.	The Supreme Court plays an important role in upholding the Constitution, particularly the Bill of Rights which are the basic freedoms and liberties every US citizen is entitled to and it is important the bill of rights is maintained, especially at a time when its becoming increasingly threatened with the PATRIOT Act and whatnot. Judicial review isn’t too powerful arguably as the Supreme Court lacks enforcement and initiation power and are thus, unable to excessively flaunt about their power of judicial review.
Imperial Presidency. The modern presidency, as Schlesinger argues has become an imperial presidency whereby just like the Supreme Court, the President is too powerful. The Presidents have effectively exploited their role as Commander-in-Chief in overtaking Congress’ constitutional power of being able to declare war which Congress has not used since 1941 on Japan and since then, the President has been involved in a lot of wars despite Congress not formally declaring war. This still continues to be the case today in which there is a struggle for privilege of directing American foreign policy. The Obama administration for instance has been one that is characterised by power, secrecy and arguably illegality as illustrated by his excessive use of drone strikes in the Middle-East which exceeds 2,400 as of last year which Congress does not supervise. Obama created the Internal Revenue Service which has come under a lot of controversy recently after it was discovered that the IRS selected key conservative political groups (especially ones with ‘Tea Party’ in their name). In other words, Obama set up an agency to get rid of political opponents. Also, executive orders have contributed to an image of an imperial presidency with Rand Paul referring to Obama’s executive order on immigration as the actions of a king or an ‘emperor’, allowing him to effectively bypass Congress and legislate and push forward his agenda from the Oval Office	Regardless of losing it’s core constitutional role, Congress still continues to play a huge role in foreign policy. This was seen by when Obama had to submit a report to the Senate requesting further authorisation to use force against ISIS earlier this year and the Senate vote which the President had to rely on later. Congress still continues to play a major role in foreign policy regardless of not declaring war. Also, arguably the executive is not too powerful given the fact that the Constitution grants the legislature the power of investigation through its congressional committees to scrutinise every action of the executive branch – even Obama’s IRS controversy was investigated by the House Oversight Committee and later the House Committee on Ways and Means. The executives actions in the area of foreign policy are also often scrutinised through committees, the Senate Foreign Relations Committee investigated Hilary Clinton’s poor handling of the Benghazi attacks in 2012. Power of the purse grants funding to key departments which are affected by the executive order, if they’re not funded the President’s executive order fails as was nearly the case with the DHS. Also, a Texas legislature recently put on-hold Obama’s executive order, again showing how they’re not so imperial afterall.
Gridlock. The system of constitutional checks and balances has contributed to consistent gridlock in the last few years. With increasing polarisation since the 1990s both parties have moved further away from the centre ground making it more difficult for them to agree on absolutely anything and as a consequence of this, the story of the last few years has been one of continuous gridlock which has got to a point where nothing is done, 2013 for instance was the least productive legislative year and nowhere has gridlock been more evident than on the issue of healthcare, particularly Obamacare, which led to a government shutdown in 2013, thus epitomising the true extent of how checks and balances contributes to gridlock. Gridlock has also been evident from Obama’s 2015 state of the union address in which he made clear that he will veto any attempts made by Congress to overturn Obamacare and others, and has already vetoed the Keystone Pipeline since then.	It’s important to note that the Founding Father’s wanted there to be gridlock and an increase in polarisation. So, the current state of Washington politics reflects the utility of the Constitution. The Founding Father’s wanted there to be a sense of divided government to ensure that checks and balances allowed responsible governing and scrutiny for all branches. Obama being a Democrat in the White House and a Republican stronghold in Congress ensures scrutiny and some gridlock when legislating which is exactly what the Founding Fathers wanted as this prevents neither branch from becoming too excessively powerful.
Federalism is failing. Key aspects of the US Constitution have been eroded in recent years rendering the Constitution virtually meaningless. For instance, federalism, a core aspect of the Constitution, has gradually been eroded through (arguably) Obamacare by ensuring that it is the federal government who maintains the role of welfare provider (taking it away from the states). The scope of federal government has ultimately grown in ways the Founding Fathers did not anticipate on and early examples include FDR’s New Deal and LBJs Great Society programme.	However, in 1996 President Clinton declared that ‘the era of big government is over’ and this has certainly been true through the Supreme Court. The importance of federalism has not gone unnoticed by the Supreme Court and steps have been taken to further entrench federalism such as through Shelby County v. Holder which ruled that states no longer had to request the permission of the Attorney-General before changing their voting practices under the Voting Rights Act of 1965.
Electoral College. The Electoral College is another key aspect of the US constitution, however, it’s now become an anachronism. Since it’s incarnation there have been literally over 700 congressional attempts at either abolishing or reforming the electoral college and it’s clear why: it has the tendency to suppress the popular will through two ways, the first being its ability to allow the national popular vote winner to lose the EC as was the case with Bush and Gore in 2000 when Gore got 51m votes and Bush only 50.4m and also through faithless or ‘rogue’ electors as was the case also in 2000 when Barbara Lett Simmons refused to cast her vote for Gore in protest of a lack of congressional representation for the District of Columbia despite Gore winning the popular vote in DC.	However, the electoral college is an important element to the federal identity as it ensures that every single state has a fair say in electing the president, JFK remarked that ‘we cannot abolish one component of federalism without considering the other’, an alternative system to the electoral college will allow large urban states to impose profound influence at the expense of smaller states. The electoral college has served America well for over 200 years and it’s ability to suppress the popular will has only happened four times.
Judicial Review is too powerful. The power of judicial review is too powerful as it allows the meaning of the constitution to alter without altering the text itself. This is a known problem among judicial activists who have been able to change the US constitution beyond all recognition. For instance, it is the Supreme Court that decided what ‘cruel and unusual’ is under the 8th Amendment, and arguably the 8th amendment is ineffective and is evidence that the Constitution no longer works as the CIA torture report revealed the inhumane and cruel treatment of suspected terrorists in Guantanamo Bay.	Simple fact remains that the constitution has survived over two hundred years and continues to serve its purpose effectively to this day after surviving a civil war, two world wars, the cold war, impeachment of two presidents, riots and civil disorders. The Founding Father’s wanted the US constitution to be updated very often.
Bill of Rights. The first 10 amendments, known as the Bill of Rights, are no longer respected today and for this reason the Constitution fails to function, this was most recently made evident through the Edward Snowden leaks of the NSA’s mass data collection programmes and also the CIA torture report.	The Bill of Rights still plays a core aspect of protecting citizens rights and liberties from erosion – even in the most exceptional cases such as during the war on terror the judiciary upholds the Bill of Rights and ensures the protection of fundamental rights such as in cases like Hamdan v Rumsfeld (military commission to try Guantanamo Bay detainees was unconstitutional) and Boumediene v Bush (Guantanamo detainees have the right to challenge their imprisonment through habeas corpus).