Observations On Perception

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The vote has been taken.  The electorate has changed the composition of Congress, but the authority exercised by the presidency remains where it was.  Under the Twentieth Amendment, the newly elected legislature will take office on the third of January; until then, the outgoing Congress retains its powers.  That interval will end.  The division of authority between the legislature and the executive will not.  The electorate has chosen new representatives without choosing a new president, and the judgment it has rendered cannot, by itself, alter the decisions of an office that was not before it.

An electorate chooses who will hold office; it exercises no power of office itself.  No ballot repeals a statute, withholds an appropriation, compels testimony, or revokes an executive agreement.  The vote confers a mandate, but the powers through which that mandate may be exercised are established by the Constitution.  Congress legislates, appropriates, investigates, and regulates foreign commerce.  The president conducts diplomacy, receives foreign representatives, and directs the executive departments within the authority of the office.  These powers intersect without passing from one branch to another when the electorate changes the composition of Congress.  The separation is deliberate: it prevents a legislative majority from commanding the whole of government.  It also means that an electoral judgment upon the legislature cannot compel the president to abandon a policy that remains within the executive’s lawful discretion.

The instruments of congressional restraint remain substantial.  A committee may inquire and summon witnesses, but the information obtained does not itself reverse the act examined.  Congress may legislate to restrict executive authority, but a statute requires passage through both chambers and presidential assent or sufficient votes to overcome a veto.  It may deny funds for future activities without necessarily extinguishing claims arising from commitments already undertaken.  Courts may determine whether an executive action exceeded statutory or constitutional authority, but only in controversies properly brought before them.  Each instrument has its own conditions, and none guarantees the consequence for which it is invoked.  A legislature may exercise its powers without obtaining the correction it seeks.  The distinction is not between representatives willing and unwilling to act.  It is between possessing constitutional authority and obtaining the result that its exercise was intended to produce.

What the new Congress inherits is not a clean ledger.  Laws remain in force until repealed; contracts bind according to their terms and the law governing them; obligations to other nations survive the officials who undertook them.  This continuity is necessary.  A government whose commitments dissolved at every election could neither borrow nor treat with other governments, and its own citizens could not rely upon its promises.  The difficulty lies with commitments drafted not merely to endure but to restrict the powers by which successors might revise them.  An agreement concerning Venezuelan petroleum, concluded by American officials with a private enterprise and withheld from public examination, reportedly contains protections intended to prevent future governments from altering the enterprise.  The existence of such provisions does not establish the authority to impose them.  Nor does the possibility that they exceeded that authority extinguish the claims their beneficiaries may assert.  The incoming legislature inherits both the question of their validity and the consequences of an arrangement already put into operation.

The interval before succession adds a further limitation.  Senators requested a briefing on the petroleum arrangement, and the examination was moved from October into November at the request of majority staff, on the grounds that the Senate had left Washington.  The postponement did not abolish congressional oversight, but it placed the information that oversight might produce beyond the electoral judgment it could have informed.  No refusal was necessary for that consequence to occur.  The electorate voted without the benefit of an examination that remained within the authority of its representatives to undertake.  The new Congress may resume the inquiry, but it cannot return its findings to an election already completed.  Nor can it necessarily recover the discretion restricted by commitments whose performance has begun.  An act may be challenged after its consequences have entered the legal and commercial relations of parties who were not present when the electorate rendered its judgment.  Correcting an act and reversing what the act has already done are separate undertakings.

Changing those who hold office is not the same as changing the arrangements through which public power is exercised.  Electoral judgment accomplishes the first without ensuring the second, even when the representatives it has chosen undertake the responsibilities entrusted to them.  The constitutional division of powers preserves executive authority against legislative domination, but it also limits the electorate’s capacity to alter executive conduct through the replacement of Congress.  Inquiry may establish what was done without undoing it; legislation may restrict what may be done hereafter without settling every claim arising from what preceded it.  The vote has conferred the authority to represent the electorate, not the capacity to determine every consequence of that representation.  The limit lies not in a vote left uncast, nor necessarily in a representative unwilling to act, but in the distance between the authority the electorate can confer and the governmental consequences that authority can command.

Tags: accountability, congressional oversight, constitutional order, electoral judgment, electoral mandate, executive agreements, inherited obligations, lame-duck session, representative government, separation of powers, Twentieth Amendment

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