Explore Harvard's Nieman network Nieman Fellowships Nieman Lab Nieman Reports Nieman Storyboard

Let the oversight begin!

COMMENTARY | November 08, 2006

Andrew Rudalevige, author of 'The New Imperial Presidency,' proposes a to-do list for the 110th Congress.

By Andrew Rudalevige

For the past six years, Congress has been remarkably reluctant to fulfill its basic duties of deliberation and oversight.  “Republicans in Congress,” the American Enterprise Institute’s Norm Ornstein notes, “fundamentally see themselves as lieutenants in the president’s army.”  Democrats have been complicit, too, in delegating broad powers to the executive branch.  Thus the war on terror – and governance generally -- has largely proceeded by executive initiative.  To be sure, President Bush has asserted vast unilateral authority. But legislators have left the field vacant, or invited the president to act in their stead – from the Authorization for the Use of Military Force (AUMF) and Patriot Act in 2001 to the Military Commissions Act of 2006.

The 2006 midterm elections made it clear that legislative abdication has a political cost.  The 110th Congress will convene in January 2007 with the House in Democratic hands for the first time in a dozen years. Their majority brings with it the power to reorganize that chamber and its agenda, with subpoena power if need be. But increasingly, Republicans too have expressed dissatisfaction with Congress’s performance.  As former Majority Trent Lott (R-Miss.) recently told CNN, “We in the Congress have abdicated our responsibilities in certain respects.”  Practical politics, too, dictates a reexamination of the lockstep legislative strategy to date -- if for no other reason than that the president is no longer on the ballot, and members of Congress are.

Here then is a “top ten” list of issues that representatives and senators – of both parties – might consider for review in the next session.  In late October, Time magazine quoted a Bush advisor predicting “a cataclysmic fight to the death” between Congress and the White House if the former essays aggressive oversight.  If so, it is a fight worth having. Consider the stakes:

1. Iraq benchmarks. President Bush has argued that new “benchmarks” denoting progress will dictate American policy in Iraq.  Members should explore – perhaps with Defense Secretary Donald Rumsfeld -- the specifics of those benchmarks, and who will be held accountable (and how) for meeting them.  The upcoming Pentagon request of an additional $160 billion for the war (on top of $70 billion already approved for fiscal 2007, and $507 billion already spent in Iraq and Afghanistan) provides a ready vehicle.

2. Afghanistan.  Speaking of Afghanistan, the continuing efforts to rebuild that nation in the face of resurgent Taliban forces, is too often drowned out by news from Iraq.  What progress is being made?  And how do tensions between Afghanistan and Pakistan affect American interests in the region (and as regards the search for Osama bin Laden)?

3. Nuclear proliferation.  Ongoing efforts by Iran and North Korea to assert themselves as nuclear powers call out for careful examination of potential strategic options. Further, what progress is the U.S. making in securing “loose” nuclear material?

4. Intelligence Oversight.  The members of the Select Committees on Intelligence (at a minimum, their chairs and chamber party leaders) are supposed to be kept abreast of “any significant anticipated intelligence activity” and consulted on those activities in a “timely fashion.” Has the administration complied?  More generally, Congress has done a poor job of examining the substance and framing of intelligence before making hard decisions about war and peace. It should shift from fretting about structure and organization to conducting supervision and analysis.

5. Detention, Interrogation, and Military Commissions.  Before the election, legislators capitulated to the president’s request that the federal courts be stripped of power to hear habeas corpus appeals from Guantanamo detainees and that he be given wide authority to define and enforce violations of the Geneva Conventions. Should this decision be revisited? At the least, members should ask: how does the United States define torture? What sorts of interrogation techniques are and are not acceptable for use by American personnel?

6. The “unitary executive.”   The Bush administration has argued that the president’s inherent executive powers give him unfettered discretion over the “unitary executive branch.”  Under this reading of the Constitution, the president owes Congress very little information about policy formulation or even its implementation – and Congress cannot limit the president’s war powers.  Indeed, the administration’s Office of Legal Counsel in 2002 held that “Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield,” and laws that “seek to prevent the President from gaining the intelligence he believes necessary” themselves “would be unconstitutional.”  Do members of Congress agree that constitutional checks and balances end at a presidential “zone of autonomy” whose boundaries are drawn by the president himself?  Is there a solid legal or historical basis for such a view?

7. Signing statements’ implementation. President Bush has issued a steady flow of “signing statements” attached to newly-signed statutes putting administrators, legislators, and judges on notice as to the president’s interpretation of their provisions. The administration argues it will interpret limitations on presidential discretion consistent with the expansive view of the unitary executive noted above.  What impact have these statements had on the faithful execution of the law?  An easy place to start is with reporting requirements – for example, as required by the renewal of the Patriot Act last February.  Is the mandated information being provided?

8. Regulations and expertise.  In areas ranging from pollution standards to enforcement of the Endangered Species Act to FDA’s approval of new drugs, there have been charges that political appointees have forestalled or countermanded the results of scientific policy reviews.  Legislators might explore the process of regulatory review, both in the executive agencies and by the Office of Management and Budget.  What is the proper balance between policy preferences and policy expertise?  Has the Senate been too quick to confirm inexperienced political appointees without review of their qualifications?

9. Contracting. Reports of waste and fraud – as well as simple incompetence -- have arisen in projects ranging from the rebuilding of Iraq to the restoration of Gulf Coast after Katrina. Yet legislators recently agreed to dismantle the office of the Special Inspector General for Iraq Reconstruction as of October 2007.  They should revisit federal procurement policy and the mechanisms available for holding contractors accountable for results.

10. The power of the purse.  Legislators have paid little attention to the public purse. In fiscal 2001, the budget ran a $128 billion surplus. By fiscal 2006, the budget was $260 billion in deficit – $430 billion, if you don’t include monies diverted from the Social Security trust fund. As a result, over those six years the national debt held by the public has gone up 46% to just under $5 trillion (the total debt is over $8.5 trillion).  The Government Accountability Office (GAO) calculated last month that current commitments into the future total an astounding $46 trillion in unfunded liabilities.  Thus legislators need to think hard about trade-offs. In particular, they need to consider long-term fiscal policy in the face of growing entitlement programs and fragmented tax policy. Serious review of the $50 billion-a-year Medicare prescription drug law is a first step. But lawmakers should also work with the president both on bipartisan efforts to rework Social Security and to pick up the gauntlet of fundamental tax reform. 

Oversight is not easy work, and it is rarely rewarded by voters.  But one does not have to assume that “people who are serving their nation are doing so dishonorably,” as White House press secretary Tony Snow recently charged, in order to think it is a crucial element of self-government.  James Madison, reflecting in Federalist #51 on the trinitarian nature of the Constitution’s separated institutions, noted that “it may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary…. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs...”   Trust in government is a good thing. But it has to be earned.

110 Congress
11/12/2006, 08:31 PM

The 110 Congress, should set up an over site committee, to review why the first law, has been steps on, by Bush's people.

Imperial presidency, invisible Congress
Rudalevige in NiemanWatchdog.org last November

The NiemanWatchdog.org website is no longer being updated. Watchdog stories have a new home in Nieman Reports.