The separation of powers - Congressional limits on the execu...

Learning Outcomes

This article examines congressional limits on the executive branch, including:

• The constitutional basis, procedures, and practical consequences of impeachment as a political check, and why most impeachment challenges are nonjusticiable political questions.
• How Congress uses its taxing and spending powers, appropriations, and anti-impoundment rules to control and constrain executive initiatives.
• The structure of the Appointments Clause, Congress’s role in advice and consent, and statutory limits on presidential removal of principal and inferior officers.
• Why legislative veto mechanisms—whether one-house, two-house without presentment, or committee-based—violate bicameralism and presentment under INS v. Chadha.
• The scope and limits of congressional oversight and investigative powers, including subpoenas, contempt, and the requirement of a legitimate legislative purpose.
• How executive privilege interacts with congressional information demands, and how courts balance confidentiality against oversight needs in separation of powers disputes.
• Common MBE fact patterns that embed these doctrines in questions about agencies, criminal investigations, or foreign affairs, and strategies for identifying which specific congressional check is being tested.

MBE Syllabus

For the MBE, you are required to understand the constitutional framework establishing the separation of powers and the specific ways Congress can limit the President and the executive branch, with a focus on the following syllabus points:

• Analyze the impeachment process, including grounds, procedures, and the respective roles of the House, Senate, and Chief Justice.
• Explain that impeachment is a political remedy, distinct from criminal prosecution, and understand why many impeachment questions are nonjusticiable political questions.
• Understand Congress’s taxing and spending powers and the appropriations process as checks on executive action, including the concept and limits of impoundment.
• Evaluate the constitutionality of congressional attempts to control executive appointments and removals, including limits on for-cause removal restrictions and Congress’s inability to appoint or remove executive officers outside impeachment.
• Identify and assess the unconstitutionality of legislative vetoes based on bicameralism and presentment requirements (INS v. Chadha).
• Recognize the scope and limits of congressional oversight and investigation powers, including subpoenas, contempt, and the interaction with executive privilege and individual rights.
• Distinguish valid oversight and statutory design from unconstitutional efforts to exercise executive functions or to evade the President’s veto power.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which body has the sole power of impeachment under the U.S. Constitution?
   1. The Senate
   2. The House of Representatives
   3. The Supreme Court
   4. A special committee appointed by the President
2. Congress passes a statute appropriating funds for a specific environmental project and mandates their expenditure. The President, disagreeing with the project, orders the relevant agency head not to spend the funds. This action by the President is likely:
   1. Constitutional, under the President's executive authority.
   2. Constitutional, if the President deems the project unwise.
   3. Unconstitutional, as an improper impoundment of funds.
   4. Unconstitutional, unless Congress overrides the order by a two-thirds vote.
3. Congress enacts a law creating a new executive agency. The law includes a provision allowing a specific congressional committee to veto any regulation issued by the agency director by a majority vote of the committee. This provision is likely:
   1. Constitutional, as a valid exercise of Congressional oversight.
   2. Constitutional, if the agency director is an inferior officer.
   3. Unconstitutional, because it violates the principle of bicameralism and presentment (legislative veto).
   4. Unconstitutional, because it improperly delegates legislative power to a committee.

Introduction

The U.S. Constitution establishes a system of separated powers among the legislative, executive, and judicial branches. A central feature of this system is checks and balances, under which each branch possesses powers that can limit the authority of the others. Many MBE fact patterns on constitutional law are ultimately about whether one branch has encroached on another’s constitutional role.

Key Term: Separation of Powers
The constitutional structure that allocates legislative power to Congress, executive power to the President, and judicial power to the federal courts, while allowing each branch limited tools to check the others.

Congress, as the legislative branch, has several powerful tools to control and limit the executive. These include:

• The impeachment power.
• The power of the purse (taxing, spending, and appropriations).
• Influence over appointments and limits on removal of executive officers.
• The ability to legislate and structure agencies—subject to bicameralism and presentment—which forbids “legislative vetoes.”
• Robust oversight and investigative powers, backed by contempt and appropriations.

On the MBE, these topics often appear in questions that look like administrative law, criminal procedure, or foreign affairs, but the core issue is separation of powers. The rest of this article systematically analyzes each major congressional check on the executive branch.

The Impeachment Power

The Constitution gives Congress the authority to remove federal officers—including the President, Vice President, federal judges, and “civil officers of the United States”—through impeachment and conviction.

Key Term: Impeachment
A formal accusation by the House of Representatives that a federal officer has engaged in “Treason, Bribery, or other high Crimes and Misdemeanors,” triggering a trial in the Senate.

Key Term: High Crimes and Misdemeanors
A constitutional phrase encompassing serious abuses of office or violations of public trust. The term is not limited to statutory crimes and is ultimately defined by Congress in practice.

Who Does What

Impeachment is deliberately split between the two houses of Congress:

• House of Representatives

  • Has the sole power of impeachment (Article I, § 2).
  • Acts like a grand jury: by majority vote, it approves “articles of impeachment,” which function as formal charges.

• Senate

  • Has the sole power to try all impeachments (Article I, § 3).
  • When the President is tried, the Chief Justice of the United States presides.
  • Conviction requires a two‑thirds vote of the Senators present.

This division of roles is itself a separation of powers device: the House initiates, the Senate decides, and the judiciary is largely excluded.

Grounds for Impeachment

The Constitution specifies the grounds as “Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, § 4). Points to remember:

• The phrase does not require proof of an indictable crime.
• It covers severe abuses of power, corruption, or betrayal of the public trust.
• Congress has broad discretion to determine what conduct satisfies this standard.

On the MBE, do not assume impeachment is limited to clearly criminal conduct; the key is the seriousness of the misconduct and Congress’s political judgment.

Effect of Impeachment and Conviction

If the Senate convicts:

• The officer is removed from office.
• The Senate may also vote (by a separate majority vote) to disqualify the person from holding any future federal office (Article I, § 3).

That is the extent of the constitutional penalty.

• The person can still face criminal prosecution in the courts for the same conduct.
• There is no double jeopardy issue because impeachment is not a criminal proceeding; it is a political remedy.

Presidential Pardon and Impeachment

Key Term: Executive Privilege
A qualified presidential power to withhold confidential communications within the executive branch from disclosure, especially where disclosure would impair executive functions. It does not apply to impeachment in the same way as the pardon power.

Importantly, the President’s power to “grant reprieves and pardons for offenses against the United States” (Article II, § 2) expressly excludes impeachment. A President cannot pardon:

• Himself or others to block or undo an impeachment, or
• The constitutional consequences of impeachment (removal and disqualification).

Criminal offenses arising from the same conduct may be pardoned, but impeachment consequences cannot.

Judicial Review and Political Question

The Supreme Court has held that certain impeachment‑related questions are nonjusticiable political questions. For example, in Nixon v. United States (the federal judge, not the President), the Court refused to review the Senate’s choice to use a committee to hear evidence in an impeachment trial, holding that:

• The Constitution’s grant to the Senate of the “sole Power to try all Impeachments” leaves trial procedures to the Senate.
• Courts will not second‑guess how the Senate conducts impeachment trials.

On the MBE, when asked whether courts can review the Senate’s impeachment procedures, the answer is almost always no, on political question grounds.

Worked Example 1.1

Congress impeaches a federal district judge for a pattern of abusive behavior on the bench and misuse of judicial staff, none of which is a clearly defined federal crime. The Senate convicts and removes the judge. The judge sues, claiming that he was impeached for conduct that is not a crime and that the courts should reinstate him.

Answer:
The judge’s claim fails. The Constitution leaves the meaning of “high Crimes and Misdemeanors” largely to Congress, and the Senate has the sole power to try impeachments. The question whether such conduct qualifies is a political question not subject to judicial review, and the judiciary will not reinstate an officer the Senate has removed.

The Power of Appropriations (“Power of the Purse”)

Congress exercises major control over the executive through its control of federal spending.

Article I, § 8 gives Congress the power to tax and spend for the “common Defence and general Welfare,” and Article I, § 9 provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

Key Term: Power of the Purse
Congress’s authority to raise revenue (through taxing) and to control how public money is spent, primarily through appropriations statutes.

Key Term: Appropriations
Statutes enacted by Congress that authorize specific sums of money to be drawn from the Treasury for designated purposes, usually for limited time periods.

How Appropriations Check the Executive

Congress can:

• Fund or defund programs to support or restrict presidential initiatives.
• Attach conditions to the receipt or use of funds (using its Spending Power), so long as those conditions are:
  • Related to the federal interest in the program;
  • Clearly stated; and
  • Not coercive to the point of commandeering states.

Congress can also cut off or limit funding for executive activities, including military operations, even though the President is Commander in Chief. Congress cannot directly micromanage battlefield decisions, but it can make certain actions practically impossible by refusing to appropriate money.

Impoundment

Key Term: Impoundment
A refusal by the executive branch to spend funds that Congress has appropriated—especially where Congress has mandated that the funds be spent for a specified purpose.

The President has a constitutional duty to “take Care that the Laws be faithfully executed” (Article II, § 3). That duty prevents the President from simply refusing to implement a clear congressional spending mandate.

• If a statute gives the President discretion (“the Secretary may spend up to $X”), the President may choose not to spend the full amount.
• But if a statute unambiguously requires spending (“funds shall be expended for X”), the President cannot unilaterally withhold those funds.

Any attempt to do so is an unconstitutional impoundment and a direct violation of Congress’s power of the purse.

Key Term: Appropriations
As used in impoundment questions, an appropriation that uses mandatory language (“shall expend,” “must obligate”) imposes a legal duty on the executive to spend, not just a permission.

Worked Example 1.2

Congress passes a law that states: “$100 million is hereby appropriated, which shall be used by the Department of Health to fund grants for community health centers in rural areas.” The President believes these grants are wasteful and issues an order instructing the Secretary of Health not to award any grants.

Is the President’s order valid?

Answer:
No. The statute uses mandatory language—funds “shall be used.” The President has no constitutional authority to refuse to execute this law. The order constitutes an unconstitutional impoundment that violates Congress’s appropriations power and the Take Care Clause.

Limitations on Executive Appointments and Removal

Congress also limits the executive through the structure of the federal officer appointment and removal system.

The Appointments Clause

Article II, § 2, cl. 2 provides:

• The President nominates, and with the advice and consent of the Senate appoints:
  • Ambassadors
  • Public ministers and consuls
  • Judges of the Supreme Court
  • “All other Officers of the United States” whose appointments are not otherwise provided for.

Key Term: Appointment Power
The President’s authority to nominate and appoint principal officers, with Senate advice and consent, and Congress’s power to vest the appointment of inferior officers in the President alone, the courts, or department heads.

Congress may, by law, vest the appointment of “inferior Officers” in:

• The President alone,
• The courts of law, or
• The heads of departments.

Congress cannot:

• Appoint executive officers itself; or
• Vest appointment authority in its own officers (e.g., the Speaker of the House, committee chairs).

Any statute that purports to give appointment authority to members of Congress is unconstitutional on separation of powers grounds.

Key Term: Inferior Officer
An officer who is subordinate to a principal (Senate‑confirmed) officer and has limited duties, jurisdiction, or tenure. Examples often include certain agency officials or special prosecutors.

Removal Power

The Constitution is silent about removal, so the Supreme Court has developed functional rules:

Key Term: Removal Power
The authority to dismiss an officer from federal service. The President has broad removal power over executive officers, but Congress may impose some limits by statute.

General principles for the MBE:

• The President may remove purely executive, high‑level officers (e.g., Cabinet secretaries) at will.
• Congress may, by statute, limit removal of certain officers by providing that they may be removed only for cause (e.g., “inefficiency, neglect of duty, or malfeasance in office”), especially where:
  • The officer is an inferior officer or the head of an independent regulatory agency that performs quasi‑legislative or quasi‑judicial functions.
• Congress may not:
  • Give itself the power to remove executive officers (except through impeachment and conviction).
  • Condition removal on congressional approval or the consent of a congressional committee.
  • Create multiple layers of “for cause” protection that effectively strip the President of meaningful control over executive officers.

If Congress attempts to reserve to itself, or its officers, the power to remove an executive official (outside impeachment), that arrangement is unconstitutional.

Worked Example 1.3

Congress creates an “Office of Energy Savings” within the executive branch. The statute provides that the Director “shall be appointed by the Speaker of the House and may be removed by a majority vote of the House.” The Director is given authority to issue binding regulations affecting private energy companies.

Is this structure constitutional?

Answer:
No. Congress cannot vest the appointment of an executive officer in one of its own officers (here, the Speaker), nor can it reserve a removal power for itself outside the impeachment process. Giving the Director executive regulatory authority while placing appointment and removal in the House violates separation of powers.

For‑Cause Removal and Independent Agencies

Congress may create “independent” agencies—such as the FTC or SEC—whose heads:

• Exercise a mix of executive, quasi‑legislative, and quasi‑judicial powers.
• Are appointed by the President with Senate confirmation.
• Are removable only for cause.

Such removal restrictions are generally permissible, but Congress cannot go further and reserve itself a veto over removals or vest removal in an entity it controls.

Worked Example 1.4

Congress creates an independent Consumer Protection Commission. Commissioners are appointed by the President with Senate confirmation and may be removed by the President only for “inefficiency, neglect of duty, or malfeasance in office.” One commissioner is publicly criticizing the President’s policies but otherwise performing her duties competently. The President removes her solely for policy disagreement. She sues, claiming her removal is unlawful.

Answer:
She is likely correct. Congress may impose for‑cause limits on removal for heads of independent agencies. Disagreement with policy choices, without more, usually does not constitute “inefficiency, neglect of duty, or malfeasance.” The President’s removal exceeds the statutory limit on his removal power.

The Legislative Veto

Congress sometimes seeks to retain direct control over executive or agency action after delegating authority. A classic device, now unconstitutional, is the legislative veto.

Key Term: Legislative Veto
A statutory device allowing one house, both houses without presentment, or even a committee of Congress to nullify or revise executive action by resolution, without going through the full lawmaking process of bicameral passage and presentment.

Why Legislative Vetoes Are Unconstitutional

The Supreme Court, in INS v. Chadha (1983), held that legislative veto provisions violate two constitutional requirements:

• Bicameralism: For an action to have the force of law, it must be approved by both the House and the Senate.
• Presentment: It must be presented to the President, who can sign or veto it.

If a statute says, for example, that either house, both houses by concurrent resolution, or a congressional committee may overturn an agency’s rule or a presidential decision without enacting a new law, that is a legislative veto and is unconstitutional.

Congress cannot avoid the President’s veto power by “pre‑authorizing” future control of executive action via resolution.

The key MBE rule:
If Congress wants to change or reverse executive or agency action, it must:

• Pass a new statute through both houses; and
• Present it to the President for signature or veto.

Worked Example 1.5

Congress passes a statute authorizing the Environmental Protection Agency (EPA) to set national air quality standards. The statute also provides: “Any regulation promulgated under this Act shall take effect unless disapproved by a majority vote of either house of Congress within 60 days.”

Is the disapproval provision valid?

Answer:
No. Allowing a single house of Congress to nullify an EPA regulation by resolution, without passage by both houses and presentment to the President, is an unconstitutional legislative veto. Any change to binding legal rules must satisfy bicameralism and presentment.

On the MBE, variations include:

• One‑house vetoes.
• Two‑house “concurrent resolution” vetoes without presentment.
• Committee vetoes.

All are invalid legislative vetoes.

Oversight and Investigation

Congress has broad implied powers to gather information and oversee the executive branch, even though the Constitution does not explicitly grant an “oversight” power.

Key Term: Congressional Oversight
The set of tools—hearings, investigations, subpoenas, reporting requirements—by which Congress gathers information about, and exerts political pressure on, the executive branch in aid of its legislative functions.

Source and Scope of Oversight

Congress’s oversight power is derived from:

• Its legislative powers (to make informed laws).
• Its appropriations power (to monitor how funds are used).
• The Necessary and Proper Clause (to enact measures needed to carry out its enumerated powers).

Congress can:

• Conduct hearings on the performance of executive agencies.
• Require reports and testimony from executive officials.
• Issue subpoenas for documents and testimony.
• Investigate allegations of waste, fraud, or abuse.

However, congressional investigations must serve a legitimate legislative purpose:

• Gathering information to consider future legislation.
• Overseeing the implementation of existing laws.
• Exposing corruption that may lead to legislative remedies.

Congress cannot use investigations solely to “try” individuals or to expose them solely for the sake of exposure.

The Contempt Power

Key Term: Contempt Power
Congress’s authority to enforce compliance with its subpoenas and orders, either by its direct contempt authority (detaining a recalcitrant witness), criminal contempt statutes, or civil enforcement in court.

If a witness refuses to comply with a valid subpoena, Congress may:

• Hold the person in direct contempt (rare in modern practice).
• Refer the matter to the executive for criminal prosecution under federal contempt statutes.
• Seek a court order compelling compliance.

On the MBE, know that Congress has real tools to enforce subpoenas, but practical enforcement often depends on the executive branch and the courts.

Executive Privilege and Oversight

Executive officials often resist congressional subpoenas by asserting executive privilege or other protections (classified information, law enforcement sensitivity, etc.).

For MBE purposes:

• Executive privilege is qualified, not absolute.
• Courts will balance the need for confidentiality against Congress’s legitimate need for information in aid of legislation.
• Where criminal or serious misconduct is at issue, the privilege may have to yield, especially if there is a demonstrated, specific need for information.

But many such disputes are political and may be resolved outside the courts.

Worked Example 1.6

A House committee issues a subpoena for documents related to a covert intelligence program administered by an executive agency. The President instructs the agency director not to disclose the documents, citing national security and executive privilege. The committee votes to hold the director in contempt and seeks a court order compelling production.

Is the court likely to enforce the subpoena as written?

Answer:
The court will recognize both Congress’s oversight interest and the President’s executive privilege interest. It is unlikely simply to order full disclosure; instead, it will typically require accommodation—such as in camera review or limited disclosure—balancing Congress’s legitimate legislative need against national security concerns. The privilege is qualified, not absolute, but national security interests receive substantial weight.

On the MBE, you are rarely asked to resolve such disputes in fine detail. The key is recognizing that:

• Congress can subpoena executive officials.
• The executive can assert executive privilege, which is not absolute.
• Courts may mediate, balancing competing constitutional interests.

Putting the Checks Together

Beyond the specific tools discussed above, remember that:

• Congress can use its advice and consent power to block or slow appointments.
• Congress can restructure or even abolish agencies by statute, subject to constitutional limits.
• Congress can change the substantive law that agencies administer, thereby redirecting or constraining executive policy.
• Congress can refuse to confirm nominees or withhold funding to signal disapproval of executive actions.

These are political checks but have real constitutional significance.

Summary

Congress has several powerful, constitutionally grounded mechanisms to check the executive branch:

• Impeachment and removal:

  • The House impeaches (by majority vote); the Senate tries and, by a two‑thirds vote, may convict, remove, and disqualify federal officers.
  • Grounds are “Treason, Bribery, or other high Crimes and Misdemeanors,” encompassing serious abuses of public trust.
  • Presidential pardons do not apply to impeachment, and judicial review of impeachment procedures is largely barred as a political question.

• Appropriations and the power of the purse:

  • Congress controls federal spending and can shape or block executive initiatives by granting, withholding, or conditioning funds.
  • When a statute mandates expenditures, the President generally cannot refuse to spend the money; unilateral impoundment is unconstitutional.

• Appointments and removals:

  • The President appoints principal officers with Senate advice and consent.
  • Congress can specify how inferior officers are appointed but cannot appoint executive officers itself or vest appointment in its own officers.
  • Congress may limit removal of some officers by for‑cause provisions but cannot reserve removal power to itself outside impeachment or impose removal schemes that strip the President of essential control over the executive.

• Legislative vetoes prohibited:

  • Congress may not reserve for itself, one house, or a committee the power to veto executive or agency action by resolution.
  • All binding changes in legal rights must go through bicameralism and presentment.

• Oversight and investigation:

  • Congress may hold hearings, issue subpoenas, and use its contempt power to gather information for legitimate legislative purposes.
  • Executive privilege is qualified; courts will balance congressional needs against confidentiality, especially in national security or law enforcement contexts.

Recognizing which of these tools is implicated in a given fact pattern—and whether Congress has stayed within its constitutional role—is essential for answering separation of powers questions on the MBE.

Key Point Checklist

This article has covered the following key knowledge points:

• Separation of powers allocates distinct roles to Congress and the President, but Congress retains important checks on the executive.
• The House has the sole power of impeachment; the Senate has the sole power to try impeachments and, by a two‑thirds vote, may convict and remove an officer.
• Impeachment grounds—“Treason, Bribery, or other high Crimes and Misdemeanors”—cover serious abuses of office; impeachment is a political process largely insulated from judicial review.
• Presidential pardons do not apply to impeachment.
• Congress controls federal spending through appropriations; the executive may not refuse to spend funds that statutes clearly require to be spent (impoundment is generally unconstitutional when spending is mandatory).
• The President appoints principal officers with Senate advice and consent; Congress may specify appointment of inferior officers but may not appoint them itself or vest appointment in congressional officers.
• Congress may limit presidential removal of certain officers via for‑cause provisions, particularly for independent agencies, but cannot reserve removal authority to itself or impose removal schemes that destroy presidential control over executive functions.
• Legislative veto devices—whether by one house, both houses without presentment, or committees—violate bicameralism and presentment and are unconstitutional.
• Congressional oversight and investigation powers are broad but must serve legitimate legislative purposes and operate within constitutional limits, including respect for executive privilege and individual rights.
• Congress’s contempt power, combined with appropriations and legislation, gives practical force to its oversight of the executive branch.

Key Terms and Concepts

• Separation of Powers
• Impeachment
• High Crimes and Misdemeanors
• Power of the Purse
• Appropriations
• Impoundment
• Appointment Power
• Inferior Officer
• Removal Power
• Legislative Veto
• Executive Privilege
• Congressional Oversight
• Contempt Power