Faculty Blog, Friedman, Hansen

Keeping the President in Check, One Congressional Hearing at a Time

The State of the Union address is not just an annual ritual—it is a requirement. Article II, Section 3 of the Constitution provides that the President “shall from time to time give to the Congress Information of the State of the Union.” That the speech is, today, more rhetorical than informative does not mean it is pointless. The political scientist Daniel Hoffman rightly noted that Section 3 is “an explicit statement of the [P]resident’s right and duty to keep Congress informed.”

In practice, of course, Congress has developed other means for accessing the information it needs to keep Presidents in check. A primary vehicle is oversight through hearings and investigations. Much of Congress’s oversight activity is routine, but even routine appearances from the representatives of the executive branch may provide opportunities for Congress to learn information that is not otherwise forthcoming from the White House—and that may be odds with the President’s own policy preferences.

Consider, for instance, the recent testimony before Congress of leaders from the national intelligence community. Led by Dan Coats, the director of national intelligence, and Gina Haspel, the director of the Central Intelligence Agency, they appeared to deliver the most recent worldwide threat assessment. Contrary to assertions by the President, their testimony and the accompanying report make clear that the intelligence community does not believe North Korea is likely ever to denuclearize, or that Iran currently is developing nuclear weapons.

Perhaps, in an age in which settled norms about how our elected leaders go about the business of governing are regularly being cast aside, we should not be astonished that members of the national security bureaucracy – part of the executive branch and nominally overseen by the President – would contradict the White House in an on-the-record public hearing.

Nor should the conflicting messages from the executive branch be cause for alarm. The national intelligence community still takes its lead from the President—but in presenting in offering a different perspective on the nature and quality of the threats the nation is facing, the community is simply providing members of Congress the information they need to reach their own conclusions about the national security and external relations we should be pursuing.

Indeed, Congress of late has shown a renewed interest in exerting its authority to check this President’s inclinations in these areas. In just the past few months, members of the House of Representatives and Senators have set aside partisan differences to challenge a variety of the President’s national security and foreign affairs determinations regarding the efficacy of sanctions against Russia for its meddling in the last presidential election and, relatedly, the necessity of a continued American military presence in Syria.

The framers likely understood the need for the President to take the lead in national security and external relations, to dispatch and manage the spies who would gather intelligence about those foreign actors who might be plotting against the United States. The sheer size of the national intelligence apparatus today might come as a surprise, but no more so than any other aspect of the contemporary world through which we move.  The framers were pragmatists, after all, and sought to create a system of government that would be adaptable, so that it might endure.

The framers likely would appreciate that, in order for Congress to play its constitutional role today, it needs a great deal of information in the possession of the executive branch. One response to this need is a requirement that the President give Congress an annual update, “from time to time,” on the state of the nation. The modern response is for Congress to request updates directly from the professionals responsible for, in this case, gathering and analyzing intelligence. This response embraces the essence of the separation of powers scheme the framers devised: the President may choose the national security advisors he prefers, on the understanding that Congress may, from time to time, seek their unvarnished opinions.

Lawrence Friedman teaches constitutional law and Victor Hansen teaches criminal law at New England Law | Boston and they are the authors of The Case for Congress: Separation of Powers and the War on Terror.