How do we make the executive agencies obey the Constitution?
The question has arisen as to what we want congress to do regarding executive violations of the Fourth Amendment and the Constitution generally. As noted in a previous writing, the reason for the exclusionary rule is that it is the only way the courts can require the executive to obey the Constitution. But Congress has a great deal of power over the unelected agencies within the executive branch, despite their being answerable directly to the President or Governor. The power of oversight is based immediately upon the power of appropriations, called the “power of the purse.” Nothing can be done that costs any money without legislation from congress. Since 1792, congress has conducted investigations of executive actions. Because of this power, congress can ask, and the President can order, the executive agencies to tell the truth regarding violations of the Bill of Rights.
As Martin Diamond explains, Congress “may review in great detail just what has been done and not done before granting any further funds to a program, and make very clear to the administrators what it thinks should have been done in the past and now should be done in the future” (The Democratic Republic, p. 197)
Congress can insist that the executive branch obey the Bill of rights in covert actions both foreign and domestic, by simply refusing to fund certain activities, pulling the plug on the executive even in a line-item way. It can also publicize certain constitutional obscenities, appealing to the people who elect the executive, and elect the members of the same party to their seats in congress.
The executive has tried in the past to raise their own funds, as in the Iran- Contra scandal, but this would not hold up to constitutional scrutiny. The executive cannot choose another legislature to give it money, nor can they set one up for themselves. One begins to see an interesting effect, if not an intentional implication of property seizures.
The power of appropriations is deceptively fundamental. It implies the power to monitor how well the money is spent. To do so, congress conducts investigations and holds hearings. It has the power to subpoena the testimony of witnesses and the production of documents. As we have seen, the agencies will lie to congress, but this too has consequences that work to remedy the violation of our fundamental law, the Constitution.
Investigations serve to focus and to influence public opinion. So for example in the Watergate scandal, nothing would have occurred without these powers of congress, or in the Tea pot-Dome scandal, the whole thing would have passed by unknown, if the executive were simply allowed to proceed, as it sometimes does, in what Daniel Inouve described as “arrogant disregard of the rule of law.” (NY Times, Cummings and Wise, p. 396).
Congress also has a power over personnel, not only in the power of impeachment, but also in the power to consent to the appointment of major officers of the government. Congress is “the creator of the departments and agencies of the government, and also of the statutes under which they operate and which they enforce” (Diamond, p.196). Section VIII of Article 1 concludes by giving congress the power to make laws necessary for carrying into execution the powers not only of congress, but of “any department or officer” of the government of the United States.
So, it would have been within the powers of the authors of the Patriot Act to include provisions to secure oversight, accountability and meaningful recourse in covert actions, and to conduct hearings pertaining to the violation of the Fourth and Fifth Amendments resulting from their legislation. Regarding covert domestic actions, congress, by doing its job, can even work to preserve legitimate secrecy, and avoid the tragic twist that our indifference to the Bill of Rights has caused leaks and endangered national security in ways hardly yet imagined. When we hold that persons ordering certain actions be held accountable and that covert actions be made visible, at least to a committee of our elected representatives, if not so that damages can be awarded by the courts, we are appealing to the powers of Congress, and to no one else.