At Our Expense

At RealClearPolitics Frank Miele complains that Congress’s powers have been stretched beyond anything actually found in the Constitution:

the Constitution does not make clear anything about oversight responsibility. The theory of oversight responsibility in entirely the creation of the judicial branch and is not found anywhere within the four corners of the Constitution. Article I, Section 8, of the Constitution spells out the affirmative powers of Congress, mostly in rather restrictive, finite terms. Congress can borrow money. Congress can establish Post Offices. Congress can punish piracy. Congress can declare war. That sort of stuff. Nothing remotely close to oversight.

That’s because oversight is a so-called “implied” power — not to be confused with an “imaginary” power. It derives, we are told, from the “necessary and proper” clause included at the end of Article I, Section 8. That is also called the “elastic clause” because it has been stretched every which way to expand the power of Congress beyond recognition. Here is the full foundation on which the “oversight powers” of Congress rests:

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Search as you will through the “foregoing powers,” however, you will not find any reference to anything remotely like oversight of the executive branch. As a matter of fact, there is absolutely no reference to the executive branch or the president in any of the preceding 17 clauses. Therefore, it cannot be “necessary and proper” for Congress to exercise oversight, nor ultimately does the power “to make all laws” needed to enforce congressional authority have any relevance to the desire of Congress to investigate the president’s private life and business.

and that’s true. Congress’s powers have been stretched beyond anything recognizable. So have presidential powers. The power to declare war does not belong to the president but to the Congress. Additionally, most federal “laws” aren’t laws at all but regulations decided on by executive branch departments. Congress has, unconstitutionally some might say, delegated those powers to the executive branch.

The judicial branch, too, has arrogated powers to itself that the Constitution does not bestow on it. Examples of that include reviews of state laws to determine Constitutionality and extending the Court’s power to areas beyond the federal government’s enumerated powers, areas which have been controversial since the Court rendered its decisions.

Where is all of this power coming from? The answer, uncomfortable as it may be, is that centralized power comes at the expense of state power and individual freedoms. Basically, it’s at our expense.

7 comments… add one
  • steve Link

    If anything, I think Congress has generally been too docile, at least compared with the executive branch and the judiciary. It has ceded way too much to the exec. branch. Those latter two branches really run things. Congress might pass a budget, but the executive branch decides what to put in it as an example. I think this is largely a result of party first mentality.

    As an aside, if Congress doesn’t have oversight of the executive branch, who does? No one I guess, and that is largely what we have seen. If Congress can impeach, how can it not have oversight anyway? They just magically make the sudden decision to impeach? Meh. Wait until there is a Democrat in office again and we can read the arguments from Miele et al about why we need strong congressional oversight. (Easy to find Miele writing about how we needed more and stronger Benghazi investigations. This guy is not a principled writer, just another hack.)


  • TastyBits Link

    Who does oversight of Congress?

  • Let me answer both of the preceding questions.


    In theory, the voters. In practice now that elected officials pick their constituencies rather than the other way around, there’s nobody minding the store.


    The Constitutional oversight functions within the power of the Congress are a) the power of the purse; b) impeachment. That’s all. Our problem is that the Congress has delegated nearly all of its authority to the executive branch in the interest of not leaving fingerprints on things so they can’t be blamed for anything. The solution isn’t to distort the separation of powers but for Congress to do its own damned job for a change.

  • steve Link

    “The solution isn’t to distort the separation of powers but for Congress to do its own damned job for a change.”

    Uhh, I think that is what I said. I also think that it is pretty unrealistic to always just jump to impeachment. Congress needs to investigate first to find out if impeachment is merited.


  • I’m not disagreeing with you, just offering my opinion.

    They can investigate all they want. They have no authority for subpoena ad testificandum or subpoena duces tecum. Those are not Congressional powers. Under the common law those would be judicial powers so they might be able to petition the Supreme Court to issue the appropriate orders which the executive could reject under executive privilege. A lower court rather clearly does not have that authority.

  • bob sykes Link

    I think it is in the natural order of things that governments, agencies, administrators, priests, and politicians accumulate power as long as they can. The concentration of power in Washington, regardless of any Constitutional provisions, or even in open opposition to the text, will continue until the whole structure collapses.

    If Lincoln had let the South go, it might have been different. But the decision to keep the whole Union together committed us to an all-powerful central government. The annexation of Hawaii, the Spanish-American War, the Moro uprising, WW I and WW II merely reinforced the trend.

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