Congress Gets to Check the President – That’s What the Framers Had in Mind

It is more than an understatement to say that, when Joe Biden takes office, he will face an array of national security challenges. And there is no question that many of these challenges have been made worse by the bungling and outright incompetence of the outgoing Trump Administration. Further complicating efforts by the Biden administration to right the ship is the potential need for congressional approval of numerous policy initiatives. As frustrating as the president may find congressional checks on executive power, this is the way the system works -- even in the national security arena. 

When it comes to national security, the framers left the line dividing executive and congressional responsibilities for national security somewhat blurry. Notwithstanding the post-World War II tendency of Presidents to claim ever-increasing and exclusive power in this area – and a regrettable congressional willingness to follow the chief executive’s lead – it remains that, to the extent we regard the grants of authority in the Constitution itself as a starting point, Congress has substantial national security power at its disposal. 

The play in the national security joints is revealed whenever executive action depends on congressional approval. Consider debates about a provision of the USA PATRIOT Act, Section 215. The Bush and Obama administrations famously relied upon Section 215 to justify the National Security Agency’s bulk collection of Americans’ telephone call data. More recently, other provisions of Section 215 have been used to track individual visits to particular web pages. Section 215 accordingly has been, and remains, a focal point of disputes about how best to balance the ability of the government to conduct effective surveillance against the importance of preserving Americans’ privacy. 

As with other sections of the PATRIOT Act, Section 215 requires periodic congressional review and reauthorization. Congress is currently addressing how to respond to the uses to which Section 215 has recently been put by the government, and how much discretion the executive should be allowed to track our digital interactions with the worldwide web. Positions on this issue have not broken along strictly partisan lines; a bipartisan majority in the Senate favored prohibiting the use of Section 215 to allow the government to obtain individual web browsing activity.   

Setting aside the substance of the debates, it is worth emphasizing the salutary effect of the temporal limits on congressional authorizations like Section 215. First, the statutory sunset provisions serve as a particularly useful way for Congress to fulfill its constitutional role in national security matters. With respect to the PATRIOT Act, the periodic renewal requirement has proved to be an effective check on expansive executive power. In 2015, for example, after revelations about the bulk collection of Americans’ call data, Congress explicitly removed such authorization from the renewal of Section 215. 

In addition, putting temporal limits on legislative authorizations creates opportunities for Congress over time to adapt and modify legal rules to respond to new developments in technology. Two decades ago, for instance, lawmakers might not have fully appreciated the intelligence that might be gleaned from individuals’ Internet searches—or, more crucially, the extent to which capturing such information could invade legitimate privacy concerns.

It remains, of course, that Congress in general moves slowly. As a result, unless and until Congress reauthorizes Section 215, the executive entities responsible for conducting surveillance are deprived of potentially effective tools for detecting or investigating potential national security threats. Still, and particularly where individual interests like privacy are concerned, the benefits of time-limited authorizations outweigh allowing the executive to adapt a law to whatever ends it may believe expedient. It’s not difficult to guess which of these positions the framers would have preferred. The requirement of initial congressional authorization itself reflects the constitution’s allocation of national security powers, ensuring that presidential power is appropriately checked, balanced, and, when necessary, limited.    

In the end, to the extent lapsed authority precludes their ability to act, Presidents may not like statutory time limits on their national security options. Nevertheless, there is something to be said for legislative deliberation and the way it brings more minds to bear, and allows more voices to be heard, on the question of how best to the balance competing interests like security and liberty.