Simone Lawson
The non-legislative powers of Congress are those that do not involve creating, amending, or repealing laws. These powers include the ability to propose constitutional amendments, select the president if no candidate receives a majority, and impeach federal officials. Congress also has the power to approve major appointments and treaties, and to gather information and oversee the executive branch. The non-legislative powers of Congress are rooted in the separation of powers principles and the nondelegation doctrine, which aims to prevent Congress from ceding its legislative power to entities not vested with legislative authority.
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What You'll Learn
The House can impeach federal officials
The US Constitution grants the House of Representatives the sole power to impeach federal officials. Impeachment is the first of the two stages involved in removing an individual from office. The second stage is the trial, which is conducted by the Senate, with the Chief Justice of the United States presiding in the case of impeachment trials of the president.
The House has initiated impeachment proceedings more than 60 times, but there have only been 21 impeachments, including three presidents, one cabinet secretary, and one senator. Of those impeached, eight officials—all federal judges—were found guilty by the Senate and removed from office.
The Constitution does not define who constitutes a civil officer, but Article II, Section 4, outlines which officials are subject to impeachment and what kinds of misconduct constitute impeachable behaviour. Alexander Hamilton defined impeachable offences as:
> those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.
Similarly, then-Congressman Gerald Ford defined an impeachable offence as:
> [W]hatever a majority of the House of Representatives considers it to be at a given moment in history; ... whatever the Senate considers to be sufficiently serious to require removal of the accused from office.
Impeachment is an important check on the Executive and Judicial Branches, recognised by the Framers as a crucial tool for holding government officers accountable for violations of the law and abuses of power.
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The Senate tries impeachment cases
The United States Constitution grants the Senate the sole power to try all impeachments. The impeachment process involves charging and trying an official of the federal government for "treason, bribery, or other high crimes and misdemeanors". The House of Representatives first passes articles of impeachment, which constitute the formal allegation(s), by a simple majority vote. Once the articles of impeachment are delivered to the Senate, an impeachment trial begins at 1 pm on the following day (except Sundays). Senators are sworn in for the trial, which takes the form of a standard trial, with the Senate having the right to call witnesses and each side having the right to cross-examine. The House members, referred to as "managers" during the trial, present the prosecution case, and the impeached official has the right to mount a defence with their own attorneys. Senators must take an oath or affirmation to perform their duties honestly and diligently. After hearing the charges, the Senate usually deliberates in private.
The Senate sits as a High Court of Impeachment to consider the evidence, hear witnesses, and vote to acquit or convict the impeached official. A two-thirds vote of the senators present is required for conviction, after which the convicted official is removed from office and may be barred from holding future office. The Senate trial is not a criminal proceeding, and the removed official may still be liable to criminal prosecution under a subsequent criminal proceeding. The President may not grant a pardon in the case of impeachment but may do so in any resulting federal criminal case.
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The House can elect the President
The House of Representatives can elect the President of the United States in the case of a tie or if no candidate receives a majority of the whole number of electors appointed. This is called a contingent election and is decided by a special vote of the House.
The Twelfth Amendment, ratified in 1804, outlines the procedure for a contingent election. It states that the House chooses one of the three candidates who received the most electoral votes, while the Senate chooses one of the two candidates who received the most electoral votes for vice president. In the House, each state delegation votes en bloc, with each having a single vote. A candidate must receive an absolute majority of state delegation votes (26 votes) to become president-elect. The House continues balloting until it elects a president.
The Twelfth Amendment also made adjustments to the Electoral College system. It mandated that electors cast distinct votes for president and vice president, and that one of the selected candidates must not be from the same state as the elector. If no candidate has a majority, the House of Representatives chooses the president.
Contingent elections for president have been rare. The Jefferson-Burr Electoral College deadlock in 1801 was decided by a contingent election in the House, as was the 1824 election, which was split between four presidential candidates. In 1948, 1968, and 2000, unorthodox voting patterns would have led to the candidates being decided in the House, but the Twelfth Amendment's provisions prevented that from happening.
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The Senate confirms appointments
The Senate plays a crucial role in confirming appointments made by the President. This is one of the non-legislative powers of Congress, where the Senate's approval is required for major appointments. The process ensures a system of checks and balances, providing a thorough vetting process for nominees.
The President initiates the appointment process by sending an official written nomination to the Senate. This nomination is then referred to the appropriate committee, which conducts a detailed review. The committee may utilise resources such as background investigations, financial disclosure forms, and committee questionnaires to evaluate the nominee. The committee stage can be demanding, and nominees are advised to prepare diligently for the scrutiny they will face. Mock hearings, or "murder boards," are often conducted to ready the nominee for the intense confirmation hearings.
Nominees who successfully navigate the committee stage proceed to the full Senate for consideration and voting. To confirm an appointment, the Senate must hold a majority vote in favour of the nominee. This process underscores the Senate's role in providing a check on the executive branch, ensuring that appointments are suitable and qualified.
Historically, the Senate has confirmed the vast majority of presidential appointments, with only 12 out of 600 Cabinet appointments being declined as of the referenced data. This highlights the generally collaborative nature of the process, despite the rigorous vetting and scrutiny involved. It is worth noting that a practice known as "senatorial courtesy" allows a senator from the President's party in the relevant state to oppose an appointment, potentially leading to its rejection.
The confirmation process for Senate appointments can be challenging, and nominees should be well-prepared. Guidance and resources are available to assist nominees in navigating the intricacies of the process. Overall, the Senate's confirmation power serves as a critical check and balance within the US government, ensuring that appointments made by the President are thoroughly vetted and approved by a majority vote in the Senate.
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The Senate approves treaties
The US Constitution gives the Senate a variety of powers that are outside the law-making process. One of these non-legislative powers is the ability to approve treaties.
The President makes treaties "by and with the advice and consent of the Senate". This means that the President can consult with members of the Senate Foreign Relations Committee and then two-thirds of the Senate must approve the treaty for it to be effective.
The process of approving treaties can be bypassed by the President through "executive agreements". These are international agreements that are made without the advice and consent of the Senate but are still binding on the parties under international law.
The Senate has approved several treaties in recent years, including:
- The Comprehensive Nuclear-Test-Ban Treaty
- The Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other Related Materials
- The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade
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Frequently asked questions
A non-legislative power of Congress is the power to impeach. This allows Congress to bring charges against a federal official, including the President, for misconduct or abuse of power.
The House has the sole power to impeach and bring charges against an individual. There is then a trial in the Senate, where a two-thirds vote of the senators present is needed for conviction. If convicted, the penalty is removal from office.
Congress has several other non-legislative powers, including:
- Proposing constitutional amendments by a two-thirds vote of both chambers.
- Selecting the President if no candidate receives a majority through the electoral college.
- Approving major executive branch appointments and treaties through majority and two-thirds votes in the Senate, respectively.
- Using investigatory powers to gather information or oversee the executive branch.
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