Legislative Checks on the Executive: How Congress Can Reclaim Its Power

Federal Government Checks and Balances Series — Part 1

The U.S. Constitution sprang from the concept of separation of powers. James Madison wrote that the Constitution was designed to “first enable the government to control the governed; and in the next place, oblige it to control itself.” 

The branches of the federal government that operate within this framework are the legislative, executive, and judicial. Put simply, the legislative makes laws, the executive enforces those laws, and the judicial interprets the laws. The Constitution intentionally grants each branch separate and distinct powers.

What are the powers of the legislative branch?

Article I of the Constitution frames the roles of the legislative branch, which includes the Senate and the House of Representatives. These bodies together total 535 senators and representatives of the states and districts and are known as Congress. Article I gives Congress the power to legislate. In fact, the legislative branch is the only branch with power to create laws. Although the executive may have policy priorities, it is not within the executive’s power, under the Constitution, to enact them. Under certain circumstances, Congress may delegate its powers to the executive branch. However, Congress can always reclaim the powers it delegates.

As part of their separate duties, each branch is granted power to check and balance the powers of the other two branches in ways unique to their roles. 

The framers of the Constitution were especially wary of a strong executive power after living under a monarchy. The Constitution contains robust limits on executive power, with built-in checks on that power by both the legislative and judicial branches. Although the judicial branch can rule against executive actions, it has no practical ability to enforce its rulings. As a result, legislative checks on the executive are particularly important.

How does the legislative branch check, or hold accountable, the executive branch?

Because the executive's job is to enforce laws, Congress can check executive power by controlling the laws the executive executes. Congress can make new laws, change or repeal existing laws, and in some cases override executive orders. The “necessary and proper” clause in Article I of the Constitution assigns Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers.” 

Congress expressly holds the power to check the executive branch by:

• Overriding executive orders through legislation

• Overriding presidential vetoes

• Giving advice and consent for cabinet appointments and international treaties and agreements 

• Ordering investigations into government-wide misconduct through the Committee on Oversight and Government Reform (House of Representatives)

• Impeaching (House of Representatives) executive branch officials such as the president and vice president

• Removing from office after impeachment (Senate with two-thirds majority vote)

What are some ways Congress has ceded powers to the executive?

The legislative branch has increasingly relinquished its powers to the executive by allowing executive orders — official documents through which the president manages the operations of the federal government — to proceed unchallenged. Intensifying party loyalty and political division have contributed to this dynamic. Both parties have used executive orders to effectively enact the president’s preferred policy over the past few decades. The current presidential administration has issued a record number of executive orders — 130 in their first 90 days.

When either major party holds a majority in both the House of Representatives and the Senate, they enjoy power to control lawmaking action or inaction. The Republicans currently hold this majority. If Congress declines to challenge the executive, they cede their power to the president. Legal scholar Michael D. Tanner suggests the cause of this inaction could be attributed to a strategy for those who want to be re-elected: Do nothing and you cannot be criticized. This trend has paved the way for the current moment, which may be the most substantial delegation of power from Congress to the president in the nation’s history.

The following examples illustrate a few ways Congress has ceded power to the executive — and how Congress can reclaim that power. 

Asylum laws

America has long been a beacon of hope for many refugees fleeing to safety. On January 20, 2025, an executive order suspended all asylum applications, including those already approved and awaiting appointment, until further evaluation of the program takes place. Many of these cases are in litigation within the judicial system, though the executive has defied pertinent court orders.

Congress could override the president’s order, and there is already bill language that would help. The Refugee Protection Act of 2022, if passed, would allow the approvals and appointments to continue. Congress’ role in making immigration laws is summarized in this quote from Congress’ official website, “The Supreme Court has generally assigned the constitutional power to regulate immigration to Congress, with executive authority mainly derived from congressional delegations of authority.”

Independent agencies

Most of the day-to-day business of government is done by administrative agencies. Agencies are created by legislation, and some fall directly under the purview of the executive. However, some regulatory agencies were specifically designed to provide apolitical oversight over important areas, including the stock market, product safety, bank deposits, monopolies, and insider trading. The new executive order “Ensuring Accountability for All Agencies” pulls these intentionally independent agencies under executive oversight. One result of this order is the firing of 10 Democrats with high-level positions at independent agencies.

To check this power grab, Congress could form a committee to investigate the legality of this order or the subsequent firings. A coalition of Democratic senators has already filed an amicus brief to protest the firings.

Spending authority

Article I affords the legislative branch the power of the purse, or the authority to tax and spend the people’s money. The executive branch may impound the funds, meaning they can suspend or reduce distribution. These actions are especially conventional in the case of underspending. However, the Impoundment Act of 1974 tightened the executive power to prevent the abuse of impoundment. The current executive has frozen funding across multiple agencies, going so far as to dismantle agencies such as the Department of Education and programs like USAID, leaving billions of congressionally appropriated funds unspent and billions of people without allocated services. These actions are under review in federal courtrooms and by the Supreme Court.

Congress could call for an investigation into the funding freezes, as some Democrats in the House of Representatives have already done.

Tariffs

Section 8 of Article I gives Congress plenary, or complete, power over tariffs. Over time, Congress has shared that power with the executive in what has become a hotly debated shift of powers. By passing a spending bill that willingly ceded this power to the president, Congress is allowing one of the most controversial actions of the current administration. The president has imposed tariffs on every country in the world, negotiating with a few, alienating others, and entering into a trade war with China. This administration, as with several presidents before, invoked the International Emergency Economic Powers Act to impose tariffs.

A bipartisan bill has been introduced in the House in an attempt to regain some of the ceded power by requiring congressional review of any proposed tariff. 

How could Congress take back its power?

The Constitution authorizes the legislative branch to create the nation’s laws, provide advice and consent to the president regarding appointees, and investigate and impeach those who violate laws within government. Those who want to restore balance of powers can support the Constitutional framework that already exists. They can rescind their “delegation of powers” right now. 

Congress is equipped to “block the autocratic ambitions” of which President Oaks warns. Voters elected their legislative representatives and entrusted them to fulfill their roles, including checking and balancing executive powers. The voice of the people can help remind their representatives of these reasonable expectations, the importance of their constitutionally endowed powers, and their critical role to act with ethical governance and uphold laws that protect individual freedoms.

This article was written by Sherilyn Stevenson with Yvette Baker Farnsworth.