Legislative Authority

Sources of Congressional Authority

The Founding Fathers believed a strong and independent Congress was essential for a healthy democracy. Legislative authority helps to ensure that laws reflect the will of the people, provides a check on executive power, and promotes transparency and accountability in government. When Congress is weakened, the risk of executive overreach increases, and the voices of ordinary citizens may be drowned out. The legislative branch (particularly the House of Representatives) was designed to be closest to the people, with short terms of office and smaller constituencies.

In the modern era, congressional authority derives from the Constitution’s formal powers and the informal soft powers it asserts against the Executive and Judicial branches. Article I specifies specific congressional powers, like forming a postal service, regulating weights and measures, appropriating funds, and declaring war.

Delegates at the 1787 Constitutional Convention designed Congress as the branch of government most responsive to citizens’ demands. They opted for a delegate model of representative democracy in which Members of Congress are empowered to govern by their mandate from the people. Thus, authority is both limited in scope and derives from the assent of the governed.

Congress is also the only branch of government given the authority to remove actors from other branches through impeachment in the House and conviction in the Senate. While rarely used, this power checks potential abuses of power by the other branches.

Much of the modern Congress’ authority derives from its control over taxation and the ‘power of the purse’ - the ability to enact annual federal budgets over a presidential veto. This funding authority also gives Congress oversight over executive agencies, which congressional committees use to bring Cabinet officials or lower-ranking bureaucrats before them to answer questions. These investigations can influence public opinion and highlight executive branch missteps.

Congress also exercises ‘soft power’ over other branches of government. For example, the Senate’s confirmation authority of Presidential appointments constrains a President’s choices, as the nominees must be acceptable to a majority of Senators. Congress can add provisions to proposals that constrain how they are implemented and use the Administrative Procedures Act to shape the writing of new rules and regulations. Similar to funding authority, these congressional soft powers can shape public opinion and help hold the executive branch accountable.

Challenges to Congressional Authority

As early as President Thomas Jefferson in 1803, when he refused to purchase gunboats funded by Congress, Presidents have sometimes defied Congressional budgets. The Constitution gives Congress the power to appropriate funds, though it does not explicitly state whether those funds must be spent. Until the 1970s, this power to underfund projects, known as impoundment, was generally seen as just that: a President has the right not to spend all funds allocated by Congress but still must spend funds in the spirit of Congress’s intent.

In 1974, Congress passed the Congressional Budget and Impoundment Control Act to curtail this power. The Act allows a President to impound appropriated funds for 45 days, after which Congress must agree or the funds must be spent. President Nixon subsequently refused to spend any money on a project he opposed. The Supreme Court ruled in 1975’s Train v. City of New York that impoundment is unconstitutional when it intentionally obstructs the will of Congress.

The case of impoundments illustrates another critical fact about legislative authority: Members of Congress must choose to exercise their powers. Even in the case of impoundments, Members of Congress must be willing to go to court to counter a President who refuses to spend appropriated funds. As of this writing, it is unclear whether contemporary courts would uphold the Train decision.

Finally, while Congress (the Senate, in particular) has the Constitutional authority to confirm Presidential appointments, Congress passed the Tenure in Office Act in 1866 via veto override to formalize its authority to prevent a President from firing an appointee unilaterally. When President Andrew Johnson fired the popular Secretary of War in 1867 despite the Act, Congress impeached the President and came one vote short of removing him from office in the Senate. Congress eventually repealed the Act, so Presidents today have broad authority to fire appointees, even after Senate confirmation.

The Take Away

Congressional power derives from the Constitution’s formal powers, such as the power of the purse, and informal powers, such as those conveyed by the Administrative Procedures Act.

Even after almost 250 years, important details of legislative authority (such as congressional control of impoundments) are still uncertain.