Checks and balances are at the absolute core of our governmental workings.
The framers designed a system that was directly opposed to one person or one group of people having all the power, and we see that through the myriad ways Congress can check the president. So what are those checks? How have they waned over the last few decades? And finally, why would Congress opt to use (or not use) them?
Joining us today is Eric Schickler, professor of Political Science at UC Berkeley and author of Investigating the President: Congressional Checks on Presidential Power.
Referenced in this episode:
Transcript
C101_Congress check presideent.mp3
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And just as a quick aside, we had a team meeting this week at Civics 101, and we asked, what do we do, you know.
Hannah McCarthy: I do know I was there. Our listeners were not. So you might want to elaborate.
Nick Capodice: So our show explains the basics of how our democracy works. That's our tagline. But sometimes things don't work the way they have before.
Archival: That executive order he signed [00:00:30] that ended the practice purported to end the practice enshrined in the constitution of birthright citizenship.
Archival: For more presidents proposal to halt all federal grant and loan disbursement, a move federal judges are blocking, was illegal and an assault on the Constitution.
Archival: A South Bay man said that he got an email from the Department of Homeland Security saying he had to leave the United States, even though he's an American citizen.
Hannah McCarthy: And to that point, in recent interviews in [00:01:00] particular, we have had guests say things like, well, you know, here is how this or that worked for the last 200 years or so, and here's how it's working in 2025.
Nick Capodice: Exactly. And that's going to kind of be a theme for this entire episode, because today we are talking about a classic old school 101 topic checks and balances. One check in particular, how Congress checks the power of the president or doesn't. And [00:01:30] it's worth laying out right at the top what our guest today, a scholar who has written multiple books on Congress and congressional power, specifically thinks about Congress's powers.
Eric Schickler: I believe the framers set up this system of government that has many flaws, and is not the system I would have designed. If it were me, I would have designed a very different system.
Nick Capodice: This is Eric Schickler, a professor of political science at the University of California, Berkeley. He studies political parties, polarization [00:02:00] and the US Congress.
Eric Schickler: But they set up this system of checks and balances and separation of powers and federalism. Over 200 years ago, you know, while it had many weaknesses, one of the virtues of it was that these separated institutions had the power and the incentive to defend their power, their own power. In this system, preventing any one branch, any one set of actors from getting too much power.
Hannah McCarthy: We do, by [00:02:30] the way, have an entire series on core civics concepts like checks and balances and the powers of each branch. It is called starter Kit. We'll put a link to that in the show notes, but we should do a little 101 on this episode first. Nick, what are the specific mechanisms Congress uses to check the president?
Nick Capodice: All right. There are four. I'm going to talk about today and I'm going to do them one by one. So number one, the first way Congress checks the chief the power of the purse.
Eric Schickler: Probably [00:03:00] first and foremost is the power of spending. That no money can be spent without Congress approving it. And, uh. And so that gives them the power of the purse. You also can't lay taxes without Congress approving them.
Nick Capodice: Number two, political appointments.
Eric Schickler: Control over the staffing of the executive branch. So executive branch officials have to be confirmed by the US Senate, which gives them the Senate a lever to influence the executive branch. [00:03:30]
Nick Capodice: Number three is investigations.
Eric Schickler: Congress has the power to supervise the executive grants, to investigate the executive branch and and sort of look around and see if there are problems with what it's doing. Are they ignoring what Congress wants? Well, you hold an investigation, you expose that and then you can take action.
Nick Capodice: And number four is that action one we've talked about many times on the show. Do you want to say it, Hannah?
Hannah McCarthy: Uh, you mean impeachment?
Nick Capodice: Sure do.
Eric Schickler: And then, of course, the final kind of club is impeachment. [00:04:00] The power of the House by a simple majority to impeach the president. And then the Senate would hold a trial and by two thirds vote has the power to convict the president, which then removes the president from office.
Hannah McCarthy: We'll also put a link to our impeachment episode in the show notes. Please give it a listen if you haven't already. Quick history aside, three presidents have been impeached in the United States so far Andrew Johnson, Bill Clinton and Donald Trump. But [00:04:30] as of the recording of this episode, none have been removed from office following their trial in the Senate.
Nick Capodice: Thank you. Hannah. And going back to how we started this episode, we're going to talk about how one check in particular used to work and how it works now. And in just this instance, when I say now, I do not mean 2025. I'm talking about the last few decades after a marked increase in something we hear about so often, it almost has lost all meaning. And [00:05:00] that is polarization.
Archival: And our poll shows voters are both energized and polarized right now, with voters in both parties seeing the other side as an existential threat to the country.
Archival: How will the next president unite a nation that has become so incredibly polarized? Joining me now to talk about it, 1 in.
Archival: 6 Americans have actually stopped talking to a family member or a close friend because of politics since the 2016 election.
Hannah McCarthy: And, you know, these days, we do hear a lot that people think [00:05:30] America is more polarized today than it was at any other time in modern history. We did have a civil war. But, Nick, how is polarization tied to Congress checking the president?
Nick Capodice: Basically, if you put party above all else, party above the institution, in this instance, Congress, the checks that institution wields get weaker.
Eric Schickler: Paul Pearson and I just finished a book, Partisan Nation, and the core argument [00:06:00] of that book is that our constitutional system of separation of powers was premised on this idea from James Madison, that people who are in a given office, say, a member of Congress or a president or a Supreme Court justice are going to look out for the power of their office. You know, the famous phrase is the ambition of the of the man needs to be tied to the power of their office, ambition to counter [00:06:30] ambition. And that was kind of what underwrote our constitutional system for about 200 years.
Nick Capodice: However, things started to shift in the 1970s, and then there was a big shift in the 1990s, and polarization has continued to rise. We are now at a point where some politicians care more about protecting the party than they do about protecting, in essence, the purpose of their job, their [00:07:00] powers. What the Constitution says they can and can't do.
Eric Schickler: When members of an institution, in particular members of Congress, care only about their party and their ideology and don't care about the power of their branch. Then that undercuts that system. That gives them an incentive to just side with the president of their own party and ignore the power of their institution. Right. The [00:07:30] development of nationalized polarization, where the two parties are essentially these two armies fighting it out, where the stakes are seen as existential, has diminished the extent to which officeholders in other positions, members of Congress and also Supreme Court justices, show primary allegiance to their office and instead leads them to behave like members of a team. A Partisan team. And that just entirely [00:08:00] undercuts the this madisonian system, and is what gives rise to the danger of a president who's essentially unchecked by anyone.
Hannah McCarthy: Does Eric have any recent examples of Congress not acting like this?
Nick Capodice: Yeah he did. He had one specific example. I was barely alive when this happened. You certainly were not. Hannah, do you know about the Iran-Contra affair?
Archival: A few months ago, I told the American people I did not trade arms for hostages. [00:08:30] My heart and my best intentions still tell me that's true. But the facts and the evidence tell me it is not.
Hannah McCarthy: I do definitely not enough. I believe it was during the Reagan administration. People were selling arms illegally.
Nick Capodice: Yeah, and it was a many year, many twists and turns. Scandal. Higher ups in the Reagan administration sold weapons to Iran. Iran was under a weapons embargo at the time, and the contra part is that they used money from this sale to support [00:09:00] the Contras, which was a rebel group in Nicaragua.
Hannah McCarthy: All right. Congress passed the arms embargo, and Reagan's office went around it and sold stuff anyway.
Nick Capodice: Yeah. So if you're a ride or die Reagan fan who happens to also be in Congress, what are you going to do?
Hannah McCarthy: Well, I know he had them. So what did they do?
Eric Schickler: While many Republicans stuck with Ronald Reagan, there were key Senate Republicans who were really [00:09:30] concerned about what happened about about laws passed by Congress being circumvented. And they worked on the Iran-Contra Committee to uncover what happened. And, you know, several of them signed a report by the Democratic majority that was highly critical of the Reagan administration. So you can, in a sense, think of that as an almost last hurrah for how Congress used to work.
Nick Capodice: But then, Hanna, along comes 1994 Shawshank Redemption, [00:10:00] Beanie Babies and the Republican Party takes control of the Senate and the House, where they'd been out of power for 40 years.
Archival: Conventional wisdom holds the party of a sitting president loses seats in the midterm elections. But this was a political earthquake with the fault line running right through Capitol Hill. When the dust had settled and the debris.
Eric Schickler: And you get the rise of Newt Gingrich and Gingrich's entire theory in in rising to power was the way to win control of the House [00:10:30] is to destroy the House's credibility, to argue that the Democratic House was fundamentally corrupt, unethical, and hostile to the American people.
Archival: It tells you something about how out of touch they are with the American people that every item in our contract is supported by 60% or more of the American people. Some of the items are supported as much as 80% of the American people and outside Washington. This [00:11:00] is a contract with Americans for America.
Eric Schickler: And so he made that the centerpiece of their campaign and brought in a generation of Republicans who came there basically campaigning on the idea that the system is fundamentally corrupt. And the House is a kind of enemy. Starting in the mid 1990s, you get a new kind of member of Congress who doesn't see themselves as there for a career and therefore doesn't [00:11:30] have the kind of stake in Congress's power that previous generations had.
Nick Capodice: All right. So we got the then and the now. We have laid out how things work for most of us, history, and how they've started to shift in the last couple of decades. And now I'm going to get to the now. Now, what does it look like when Congress uses or doesn't use their powers that check the president in 2025 at a time of an extreme us versus them mentality? But first we got to take a quick break.
Hannah McCarthy: And [00:12:00] before that break, just a reminder. You can check out any of our hundreds of episodes as well as some snazzy Civics 101 swag at our website civics101podcast.org. We're back. We're talking about the relationship between Congress and the president. And, Nick, you just set us up for the then versus now breakdown of the ways that Congress checks the president.
Nick Capodice: Absolutely. And I'm going to focus on one of those. And [00:12:30] it's the one with the name that I've always loved. It sounds like something you'd hear at the Ren Faire. The power of the purse. Here again is Eric Schickler, professor of political science at UC Berkeley.
Eric Schickler: So traditionally, you know had. The understanding essentially has been that, you know, Congress writes appropriations bills. Those bills say this amount of money is going to be spent on this program. And the president is obligated, with very narrow [00:13:00] exceptions, to spend that money.
Nick Capodice: An appropriations bill simply is a bill that appropriates money.
Hannah McCarthy: As in the bill that says where the money is going to go.
Nick Capodice: Yeah, the government can't pay for a ham sandwich or a water treatment plant or an interstate high speed rail program, unless it is through an appropriations bill. And the Constitution is pretty blunt about this. Like hands on its hips in the doorway with a stern expression. Article one, section nine. It says, quote, no money shall [00:13:30] be drawn from the Treasury, but in Consequence of Appropriations made by law.
Hannah McCarthy: Congress is also in charge of bringing money in the tried and true way in this nation, of course, is taxes.
Nick Capodice: It is indeed so a little bit more of our very to the point Constitution here. Quote. All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills.
Hannah McCarthy: And can you just get to why the House specifically?
Nick Capodice: Because [00:14:00] it is the People's Chamber. The number of people in your state determines how many reps you have in the house, and they have short two year terms. They are on the hook to listen to their constituents. James Madison wrote about this in Federalist 58. He even dropped the expression in there. He said, quote, this power over the purse may in fact be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people. End [00:14:30] quote.
Hannah McCarthy: So Congress says this is how we're spending money. What if, hypothetically, a president in turn said, no, not going to do it?
Archival: President Trump signing an executive order to cut funding to public broadcasting. We're taking a look at funding that includes NPR, PBS, what they receive, the salaries, executive talent, their pay. Joining us now to discuss is Rachel.
Nick Capodice: Look, I'm not even going to dance around the word hypothetically today, Hannah. A very recent example of something [00:15:00] directly tied to this just happened. May 1st, law Day. By the way, President Trump signed an executive order directing the Corporation for Public Broadcasting, to, quote, cease federal funding for NPR and PBS. End quote. And that funding was the result of a congressional appropriation.
Archival: Federal funding notably accounts for about 15% of PBS and 1% of NPR's budget, with the rest largely coming from outside donations.
Nick Capodice: Now, the amount of money the CPB [00:15:30] gets isn't terribly relevant here, because we're talking about who has the power to spend and not spend, not how much, but I'm going to put it in anyways. It is $535 million, 0.001% of the federal budget.
Hannah McCarthy: We made an episode on the Corporation for Public Broadcasting a while ago, by the way, and we dropped it in the feed last week for people who maybe missed it or wanted a little reminder. So check that out if you want. So Congress approved that funding for the CPB. They put that in their budget. [00:16:00] And that was two years ago, right?
Nick Capodice: Yeah. Their funding happens in two year cycles. This is by design to protect public media from being affected by political pressures.
Eric Schickler: If the president in the past were to refuse to do that. Well, a couple of consequences would follow. One is, you know, the potential for legal action from those who are supposed to receive the money. But another is, and probably the more powerful one just came from Congress itself. Well, if the president [00:16:30] wants appropriations for other things that the president cares about, we're not going to give you those appropriations unless you spend abide by our preferences, by the laws we passed jointly with you. And so that was a tremendous lever, because, you know, it's been clear, essentially, that the president cannot spend money that has not been appropriated. And so that, in a sense gives Congress a veto. And so, you know, if the president is, you know, arbitrarily [00:17:00] refusing to spend money that Congress has approved, well, Congress has a pretty powerful lever. It could, for example, threaten not to fund the white House and the executive branch itself.
Nick Capodice: Like many of our episodes, this one is about how things change. And I think it's important to note here that a fundamental shift in the way the executive branch views its power versus Congress did not begin with President Donald Trump, but with another president, Richard Milhous [00:17:30] Nixon.
Eric Schickler: So what Nixon did is something called impoundments, where he simply refused to spend billions of dollars that Congress had appropriated, targeting programs that the Democrats were in the majority in Congress really liked. Especially, you know, uh, programs in health and Human Services. And so Nixon disapproved of those programs, and he and simply withheld billions of dollars in spending. [00:18:00]
Hannah McCarthy: Now, how did Nixon justify withholding funds? The Constitution could not be clearer on this.
Nick Capodice: Well, Nixon argued it had been done in the past. It was a tried and true presidential tradition, and he cited other presidents who had done this. But the problem here is in all of those instances, that was money that everyone agreed should not be spent in these situations. It was more like Congress appropriates money to fight a war. Okay. War [00:18:30] ends. So the president says, let's spend that money somewhere else because after all that war is over. Both parties in Congress say that makes a lot of sense.
Eric Schickler: The president not spending that money is not really violating the will of Congress. Whereas here, Nixon was taking money that Congress had self-consciously approved for particular purposes and refusing to spend it. So that's set up a big showdown. There were court challenges. Um, it seemed [00:19:00] pretty clear the courts were going to rule against Nixon.
Nick Capodice: And in the meantime, Congress passed a new law called the Impoundment Control Act. This law said that a president can withhold funds if and only if a majority in both the House and the Senate agree. Impoundment, by the way, is when a president seeks to delay or cancel funding that is already approved by Congress. So this act was Congress pushing back more tightly, gripping its hold on the power of the purse? [00:19:30]
Eric Schickler: This law passed the House with an overwhelming majority, passed the Senate unanimously. Honestly? Uh, well, yes, a different world. We lived in a very different world back then, a Republican president. And yet this bipartisan bill passes overwhelmingly.
Hannah McCarthy: But, Nick, the act, the law that Eric is talking about, it isn't having its intended effect today.
Archival: President Trump promises more job cuts. Elon Musk leading the DOJ's efforts to downsize the [00:20:00] government. And The Washington Post reports Trump is preparing to dissolve the leadership of the U.S. Postal Service and absorb the independent mail agency into his administration.
Hannah McCarthy: Billions and billions of dollars. About $430 billion dollars appropriated by Congress have been blocked, stalled or frozen by Donald Trump with the help of Elon Musk and Doge. And agencies and organizations are going to court over this. They're filing suit saying this [00:20:30] money was appropriated to us and we are not getting this money, and that is unconstitutional. Constitutional. And we're going to see how these lawsuits play out. But in the meantime, does Congress have the power to do anything here? I mean, assuming they want to. It is their power that's being overridden.
Nick Capodice: Well, there's a difference between what they can do and what they will do. They recently passed a government funding bill, and that bill could have had language in it that stopped this impoundment entirely. [00:21:00]
Eric Schickler: Congress could have very easily included explicit provisions saying, you know, all of these appropriated monies must be spent, right? Period. It spelled that out. And it could have also said to the president, we're not going to, you know, say there's some program the president really cares about. We're not going to appropriate money for that until we see that you're carrying out the other appropriations we have are free, right? That's entirely in Congress's power. They could [00:21:30] say the zero out key programs that the president cares about and say, you know, we're happy to fund these. We're not going to do it unless you show you're going to follow the law. Nothing to stop Congress from doing that in principle.
Hannah McCarthy: But they didn't.
Nick Capodice: They didn't.
Hannah McCarthy: So what stopped them?
Eric Schickler: What stops them is a lack of political will, in particular, that there are zero Republicans in Congress right now who would support that kind of action? Zero. [00:22:00] Even the ones who are critical about particular cuts. Susan Collins, chair of Senate Appropriations, says she's concerned about what's going on. Was chair of appropriations. She could exert real influence and say, we're not going to support a funding bill unless it includes these real restrictions with teeth that forced the president to follow the law. She has done nothing like that. And, you know, and that that's because she's being [00:22:30] a good team player, a good player for her party.
Nick Capodice: Congress has a whole arsenal of tools to act on this, but so too does the president. It's a two way street because the more we age and grow as a nation, the more acts we create. And with acts come exceptions to almost every rule. Now here's how it could go. Congress could say you can't spend or withhold money, Mr. President. And the president could respond by saying, well, I can, because I'm declaring an emergency and I can spend as I please. And Congress [00:23:00] could respond saying, well, we're removing emergency powers and the president could come back and say, nope, I'm going to veto that. And then two thirds of both chambers could override the veto. These Hannah, these are the checks in place, not theoretically actually in place, enacted by Congress itself. But none of those checks are going to happen. If there isn't, as Eric said, the political will to do so.
Hannah McCarthy: Okay. But [00:23:30] why? I mean, I understand that Congress can check the president that they are choosing not to, and that the reason is they don't have the political will to do so. But why? Why do they lack the political will?
Nick Capodice: Well, it might be because Congress itself is being checked by quite possibly the most powerful check you can have in a [00:24:00] democracy. Us. The people.
Eric Schickler: So I think the public.
Eric Schickler: Tends not to be very focused on these balance of power questions and interbranch relation questions and and worrying about it in terms of, you know, defending Congress's power per se. I think that's especially the case when Congress itself is not giving a clear articulation of that interest. Right. And, uh, you know, maybe if you [00:24:30] had members of both parties saying Trump is is violating the Constitution is taking action. That's against the intentions of the framers, which I think is right. That might get the public's attention. But in the absence of that, and I don't think there's that much public pressure on the institutional question. Um, I think there may well be public pressure if, for example, these cuts damage programs that the public really counts on, right. And so they'll [00:25:00] be concerned, you know, for example, if there the cuts to the Social Security Administration continue to lead the long wait times for, for uh, customer service. I mean, that will that kind of thing generates pressure. But but unfortunately, I don't think that the public is is concerned for Congress's role per se. And I don't think Congress itself has done a good job of trying to make that salient to voters.
Nick Capodice: So the purpose [00:25:30] of this episode, now that we're at the end of it, is to just create a better understanding of what one check could and should look like, that the president is not the be all, end all of exerting the people's will. And Congress is our most direct line to governmental power and action. And maybe one thing that could aid in that understanding is what we try to do here each and every week, Anna, to help people understand their right to make change, to understand [00:26:00] how the government was built to function and why it was built that way. So as I feel I'm going to say a lot at the end of these episodes in the months to come, if you don't like something, complain loudly. It's your check, so use it.
Nick Capodice: Well, that is it for today on Congress. Check. And the president I was gonna say, like, check, please. That [00:26:30] felt a bit foolish. This episode is made by me. Nick Capodice with you, Hannah McCarthy and Christina Phillips. Our senior producer. Marina Henke is our producer. And Rebecca LaVoi, our executive producer. And boy howdy, do we check that executive pretty much every day. Thank you. Rebecca. Music. In this episode from Epidemic Sound, Telecinco, kilo, Kaz, Scott Grattan, Chris Zabriskie. You, beauty and wait for it. Moby. Yeah. Write that Moby. Moby is offering hundreds [00:27:00] of free music tracks to nonprofits for creative projects. This isn't like a paid advertisement here for Moby. I, I, I had play in my Discman in the early aughts until it pretty much broke in half. So thank you, Moby. Good on you. Sat next to you a bar on Avenue B in 2003. Do you remember that? Anyways, Civics 101 is a production of New Hampshire Public Radio.