12.4: The President versus Congress

Of course, Congress does not always roll over and freely grant the president new statutory powers. The twin concepts of separation of powers and checks and balances were intended by the Founders to set Congress and the president against one another, and it doesn’t take much effort to find proof that this design has succeeded in creating such conflict.

Modern presidents run for office promising many policy changes, but a great deal of these promises cannot be fulfilled without at least some cooperation from the legislative branch. Congressional cooperation is most easily obtained — though not guaranteed — in times of unified government, when the president’s party also has majorities in both the House of Representatives and the Senate. Under divided government, when the president’s party is the minority party in the House, the Senate, or both, policymaking often seems to be at a standstill. Laws can and do get passed under divided government, but they tend to be smaller in scope and limited to the set of issues on which the Democratic and Republican parties can find agreement — a set which has become smaller and smaller in recent decades due to polarization.

Congress and the president are more prone to use their constitutional checks to limit each other’s power in times of divided government. One way the president can check congressional power is through vetoes, which successfully halt bills about 96% of the time when they are used (as depicted in Figure 12.1 below). The president can also limit Congress’s power when choosing how to enforce the laws it passes, a choice which he often signals in a “signing statement” published when the law is enacted. Although the president cannot outright refuse to comply with or openly defy laws passed by Congress, his executive authority provides him leeway to decide how vigorously to enforce those laws.

Figure 12.1: Total vetoes by president (Source: U.S. Senate)

Besides overriding vetoes, Congress can thwart the president through other means. Because it holds the power of the purse, Congress can choose to withhold funding from the president’s preferred policies and projects. Although the president proposes budgets to Congress, Congress is free to ignore those proposals and craft budgets to suit its own preferences. Additionally, the Senate has the final say on presidential appointees and negotiated treaties, and can decline to confirm the former or ratify the latter.

The most extreme check Congress can use against the president is that of impeachment. To impeach is to formally accuse someone of wrongful conduct. The House of Representatives can, by a majority vote, impeach the president or any federal officer for treason, bribery, or “high crimes and misdemeanors,” according to Article II. The impeached member of the executive branch is then tried in the Senate, with the Chief Justice of the Supreme Court presiding if (and only if ) the president is the one being impeached. At the conclusion of the trial, a two-thirds majority vote of the Senate is required to remove an impeached president from office. (To prevent the president from using his pardon power to thwart this removal, Article II specifies that presidential pardons do not apply in cases of impeachment.)

impeachment: The charging of a federal officer with treason, bribery, or “high crimes and misdemeanors.”

Impeachment has only been used against a president four times in American history: once against Andrew Johnson in 1868 (for firing his Secretary of War), once against Bill Clinton in 1998 (for lying to Congress about his sexual affair with a White House intern), and twice against Donald Trump in 2019 (for abusing his power to arrange a foreign investigation of his electoral opponent Joe Biden) and 2021 (for inciting rioters to storm the U.S. Capitol). All four impeachments ended in acquittal by the Senate; no president has ever been removed from office through the impeachment process. (In anticipation of being impeached and removed for his involvement in the Watergate burglary, Richard Nixon chose instead to resign the presidency in 1974 so as to go out on his own terms.)