Presidential accountability to the Constitution and the American people is indispensable to the health and maintenance of the republic. The Constitutional Convention’s emphasis on legal limits on the exercise of power and the complete accountability of the government to the governed was reflected in the advice of James Madison to “confine and define presidential power.” Apart from electoral accountability, as seen in the duty of the President to persuade voters that he is worthy of reelection, as well as maintaining public support for his programs, policies and initiatives, the Constitution provides several mechanisms for checking presidential actions, as a means of enforcing constitutional accountability.
Let us consider the various constitutional principles that promote executive accountability. For starters, the Doctrine of Enumeration of Powers, which allocates powers with specificity, reminds the citizenry, in the case of presidential power, of the authority vested in the office and with it the expectation that the President perform the responsibilities and duties assigned to it. The Take Care Clause, for example, imposes on the President the duty to “faithfully execute the laws.” The Doctrine of Checks and Balances, embraced by the Framers to protect the enumerative scheme, insures, for example, that the President cannot unilaterally make treaties or appoint officials without the consent of the Senate, which shares both powers with the President.
In the exercise of his powers in the Treaty Clause and the Appointment Clause, the President is accountable to the Senate. The President, as we have seen, is not granted any authority under the Constitution to initiate military hostilities or take the nation to war without congressional authorization. Executive aggrandizement of power, it is true, may succeed if unchecked by Congress or the judiciary, but the fact that these branches possess power to check executive abuse of power reminds us that the President may be held accountable by the legislative and judicial branches.
The occasional failure of those branches to check the Presidency and hold it accountable does not deflate the value of the mechanisms crafted by the Framers to monitor the President; it means, rather, a failure of will or lack of backbone to impose the available checks. The congressional power of investigation, as well as the powers to censure and impeach the President, like the power of judicial review, are more than sufficient to bring an errant President to heel. But consider the success enjoyed by Congress in holding the President accountable, as seen in the Watergate Hearings or in the congressional investigation into the Iran-Contra Affair. The congressional enactment of the Ethics in Government Act of 1978, moreover, provided for the creation of the Independent Counsel to investigate presidential actions and those of other superior officers within the executive branch. And, despite the Supreme Court lapses, as reflected in excessive deference to the President in foreign affairs, it has, indeed, exercised its authority on several occasions to check presidential abuse of power. For example, the Court rebuked President Harry Truman for his unconstitutional seizure of the steel mills, and it rejected President Nixon’s assertion of an absolute executive privilege in the Watergate Tapes Case.
Constitutional accountability is a cornerstone of American Constitutionalism. As the Supreme Court said in United States v. Lee (1882), all “officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” As a consequence, all governmental officers, the President included, have a responsibility to trace their actions to constitutional norms.