Orientation and Getting Started
Early Development of the Legislative Branch and the Problem of Representation
Enumerated Powers of Congress
Implied, Expansive, and Limited Powers
The Two Congresses: Representation and Lawmaking
Separation of Powers and Interaction between the Branches
Institutional Development and Change
Congress and the American People

Checking Power

Congress and the Executive Branch

In order to the balance the power of the legislature with the executive, Madison observed: “As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.” (Federalist, No. 51)  One power that the framers ensured would be shared between Congress and the President was the lawmaking authority.  Although Congress is primarily responsible for making the laws, the President has the constitutional authority to veto any measure.  As noted in Module 4, Article 1, Section 7 gives the President two ways to veto bills passed by Congress.  One is a straightforward veto of a bill, i.e. to “return it [the bill] with his objections…” and the other is a pocket veto, whereby the president refuses to sign the bill and Congress adjourns within ten days of passage (not counting Sundays). The presidential veto was designed to serve two purposes: (1) to allow the president to defend the executive branch and (2) to prevent the legislature from enacting poor legislation. Hamilton writes: “The primary inducement to conferring the power in question upon the executive is to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design.” (Federalist, No. 73) In fact, Hamilton believed, the presence or threat of a veto could affect Congress: “A power of this nature in the executive will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition from doing what they would with eagerness rush into if no such external impediments were to be feared.” (Federalist, No. 73)

Since the president may also be in error, or may act too far outside of the mainstream of public opinion, Congress should also be given a chance to correct executive actions. “An absolute negative on the legislature, appears, at first view, to be the natural defence with which the executive magistrate should be armed.” Yet, a presidential veto by itself, or “absolute negative” on the legislature, “perhaps would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused.” (Federalist, No. 51) Hamilton noted that the “King of Great Britain, on his part, has an absolute negative upon the acts of the two houses of parliament,” whereas the President has a “qualified negative.” (Federalist, No. 69)  To counteract the possibility that the President might abuse his power, Congress was given a check on the President: the power to override the veto with two-thirds of the vote of both houses. Hence the statement in Federalist #51, “Ambition must be made to counteract ambition.” (Federalist, No. 51)

In the most extraordinary cases of executive abuses, Congress also has the power of impeachment and prosecution, though the powers are divided between the House and Senate. The House has the “sole power of impeachment” (Article 1, Sec 2, Clause 5), whereas the Senate “shall have the sole power to try impeachments” (Article 1, Sec 3, Clause 6). If the president is on trial for impeachment, the Chief Justice of the Supreme Court presides and a conviction requires “concurrence of two-thirds of the members present.” Delegates to the Convention initially were divided over the power to impeach and remove the president. John Dickinson of Delaware, supported by Gunning Bedford of Delaware and Roger Sherman of Connecticut, moved that “the Executive be made removable by the National Legislature on the request of a majority of the Legislatures of the individual states.” But George Mason of Virginia, who agreed that some means of removing the executive was in order, opposed “making the Executive the mere creature of the Legislature as a violation of the fundamental principle of good Government.” Madison and James Wilson of Pennsylvania strongly opposed involving the states in decisions to remove the executive, and the motion was rejected. (Records of the Federal Convention 1787, 2 June)

Madison supported some means of “defending the Community agst the incapacity, negligence, or perfidy of the chief Magistrate.”  (Records of the Federal Convention 1787, 20 July) The delegates debated the concept of impeachment. Charles Pinckney of South Carolina opposed any impeachment of the executive by the legislature, as it would “effectively destroy his independence.” On the other hand, Elbridge Gerry of Massachusetts said impeachments were necessary: “A good magistrate will not fear them. A bad one ought to be kept in fear of them.” Madison reported that Gouverneur Morris of Pennsylvania, who initially was opposed to impeachments, had been “changed by the arguments used in the discussion. He is now sensible of the necessity of impeachments…” And the states voted 8-2 in favor of the allowing “the Executive to be removable by impeachments.” (Records of the Federal Convention 1787, 20 July)  The framers worked through several alternative ways to hold impeachment hearings, including granting the Supreme Court the power to try cases, before arriving at the language that is in the Article I, Section 6. 

As history would have it, the requirement of a two-thirds vote rather than a simple majority for conviction and removal from office has made the difference in presidential impeachments.  The House has held impeachment proceedings for three presidents: Andrew Johnson in 1868, Richard Nixon in 1974, and Bill Clinton in 1998-99.  Johnson was impeached and escaped conviction and removal by one vote in the Senate; Nixon resigned before the House voted on articles of impeachment; and Clinton was impeached by the House, but the Senate did not come close to the vote to two-thirds majority to convict him.