On November 19, 2001, Congress passed The Aviation and Transportation Act, (ATSA), as a reaction to the September 11 atta cks.  Reactionary legislation is never a good solution to any problem.  However, even with reactionary legislation, proper checks are in place to detect and prevent poor administration, waste, abuse, arbitrary and capricious behavior, or illegal and unconstitutional conduct.  Congressional Oversight is the “check and balance” that must apply here. So why isn’t Congress doing their job?  If we want to require Congress to do their job and not fall prey to their excuses, we must understand the very power of oversight that they hold.

Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation.  Congressional Oversight is a “derived power” and even the Congressional Research Service refers to it as an “integral part of the American system of checks and balances”.  (CRS Report for Congress 97-936, p. 2 2001)

Our founders spent a great deal of time discussing separation of powers and believed that such separation was essential to the protection of our liberty.  Our Founders also believed that a certain amount “blending” of these departments was necessary to prevent one Branch from usurping the power over the other.  In Federalist Paper 47, Madison discusses this very issue. 

Quoting Montesquieu, James Madison relates that, “There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates,” nor “if the power of judging be not separate from the legislative and executive powers.” Madison reasons that the departments are not intended to be so separated that they have no partial agency in, or no control over each other. (Fed. 47)  Montesquieu was concerned with the “whole” power of one department exercised in the hands of another department.  Madison assures the Constitutional critics that the current Constitution provides safeguards against such encroachment and abuse of liberty.

Madison demonstrates this principle of checks and balances by pointing out the very existence of them in the several state constitutions that existed at the time of the writing of the proposed Constitution.  He points out that nearly all of the constitutions blend these powers, not for the purpose of usurping, but for the purpose of partial agency and control. For example, the Senate, which is a branch of legislative department, is also a judicial tribunal for the trial of impeachments.  Finally, in response to the proponents of ABSOLUTE separation, Madison explains that the very cause of liberty for which they fight is only obtained through proper blending of power to achieve control and oversight:

It was shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other.  I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. (Fed. 48)

In summary, what Madison was saying is if you truly want liberty, separation of powers along with mutual checks is vital.  Madison understood that simply enumerating powers and identifying boundaries on paper would be an insufficient barrier “to the encroaching spirit of power.”  Liberty cannot be preserved unless you allow for departmental oversight. 

In light of the founder’s perspective and the truth behind separation of powers and each branch’s responsibility to check the power of the other and maintain oversight, we must ask, where is our current congressional oversight even within the same Branch? We see statement after statement of how appalled or outraged our Senators are at the gross display of authority by the Transportation and Safety Administration (Incidentally they make the same statements about executive overreach and do nothing about it). They demand everything from control to dissolution of the TSA.  What is with all the posturing?  THEY created the TSA in 2001.  THEY passed an Act that allowed for privatization of airports after two years.  How can the TSA turn around and tell Congress that it will not privatize. Congress has oversight over TSA, not TSA over Congress.

Congress needs to be reminded that the Congressional Research Service stated in 2001 their job in Congressional oversight is to:

·      improve the efficiency, economy, and effectiveness of governmental operations;

·     evaluate programs and performance;

·     detect and prevent poor administration, waste, abuse, arbitrary and capricious behavior, or illegal and unconstitutional conduct;

·     protect civil liberties and constitutional rights;

·     inform the general public and ensure that executive policies reflect the public interest;

·     gather information to develop new legislative proposals or to amend existing statutes;

·     ensure administrative compliance with legislative intent; and

·     prevent executive encroachment on legislative authority and prerogatives.

As we see a 95-year-old cancer patient strip-searched and 6-year-old girls groped and other outrages on a daily basis by the Transportation Security Agency, must we be reminded that we are a “government of the people, by the people, and for the people?”  When a Nigerian immigrant can fly coast-to-coast with an expired, stolen boarding pass and passport is too much to ask that Congress step up and DO THEIR JOB?  Hey Congress YOU WORK FOR US.  Your job descriptions are clearly identified in the law, in the Constitution and in the “operator’s manual” written by those who wrote the Constitution.  Do your job or be fired!  We don’t accept your “outrage,” stop flapping your gums and making excuses and start doing the job you’ve been tasked to do.