March 23, 2007
Snow: Congress Has No Oversight Over White House
In a largely overlooked exchange with reporters yesterday, White House press secretary Tony Snow said that Congress does not have oversight authority over the White House.
"The Congress does have legitimate oversight responsibility for the Department of Justice. It created the Department of Justice," Snow said during the daily briefing. "It does not have constitutional oversight responsibility over the White House."
Snow was explaining why the Bush administration was determined to beat back attempts by Congress to subpoena top aides including Karl Rove and Harriet Miers, former counsel and longtime confidante of President Bush. In what was termed a compromise, Bush said he would make the aides available for interviews with the congressional judiciary committees, but that the exchanges would not be performed under oath or be recorded.
"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," Snow continued.
TPM Muckraker was among the first to seize on Snow's comment regarding Congress' relationship with the executive branch. Readers of the blog, which is highly critical of the Bush administration, were, not surprisingly, incensed.
Is Snow's statement completely off base? Constitutional law scholars are still hashing out the limits of the executive and legislative branches' authority, and reasonable arguments can be found in all camps. The common conception of the federal government is one of checks and balances, with each branch having equal means to hold back the others.
But whether that is what the Founders intended is still disputed. One small but growing school of constitutional thought that is particularly vibrant in the Bush administration, the unitary executive theory, argues that "the Constitution vests the entire Executive power in 'a President,' all persons exercising executive power must be answerable to the President," according to Columbia Law School's Michael Dorf. The theory also holds that the executive should operate, particularly in war time, with minimal interference from the other branches.
The Founders did split up certain powers between the legislature and executive, but whether that ought to be read as setting limits on oversight is up for interpretation. For instance, Congress raises and funds the armed forces, while the executive tells them where to shoot. In the 20th century and beyond, Congress has deferred to the executive in the way conflicts are carried out, which makes the withdrawal deadline for troops in Iraq such a legally significant point of contention between Democrats and the White House.
Whether what the Founders intended should still hold today is at the very heart of most major constitutional debates on war powers and the like. It will also surface in the clash between the White House and Congress over access to Bush administration officials. For now, like it or not, the executive branch is freer to act without interference than congressional Democrats might like.
Douglas Kmiec, a former Justice Department attorney under Presidents Ronald Reagan and George H.W. Bush who now teaches constitutional law at Pepperdine University, told The Gate in an e-mail, "The White House, or more properly the Executive, is by Article II a constitutionally created co-equal branch. It is directly from the people and answerable to the people by election.
"The Department of Justice is a creature of Congress having originated by the legislation of the people's representatives in 1870. Congress has oversight of the duties it has assigned to the Department by statute; it does not have a comparable oversight of the President or those who advise him with respect to the constitutional duties of the President including the appointment and removal of purely executive officers, like U.S. Attorneys.
"Congress has under the constitution the power to deny advice and consent to a particular nominee for U.S. Attorney or the power even to abolish the office of U.S. Attorney, but having created the office, the constitution denies Congress the oversight of the President's decision whether or not to retain a given U.S. Attorney."
Posted at 11:36 AM
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Attorney Scandal, Constitution
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