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The Constitution sets down rules for how Congress can operate, and what it may, may not, or must do.

If a President does not do something the Constitution requires them to do, they can be impeached and replaced until someone who will do the thing gets the office.

If Congress fails to do something required of them by the Constitution, what happens?

There is no such process to impeach and remove Congress, and one would expect Congress to have failed to act because a large minority attempted to do the required thing but a small majority prevented them, so it is not clear that removing and replacing all the members would make sense.

Would the remedy be for e.g. the Supreme Court to start holding Congress as a body in contempt until it accomplished the required task? Or what?

interfect
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – feetwet Mar 06 '24 at 15:44
  • I was going to suggest recall, but apparently that is not applicable here as per this existing answer (for clarification) – t.j. Mar 07 '24 at 00:03
  • Clarification of what the question thinks constitutes a violation of the Constitution by Congress would be helpful. – ohwilleke Mar 12 '24 at 22:07

7 Answers7

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The Constitution grants Congress powers to do things but generally does not obligate them to do any particular thing. Constitutionally, it is equally valid for Congress to pass a bill, to vote a bill down, or to decline to bring a bill up for a vote. Congress always has far more that it could accomplish than it has time to accomplish so prioritizing the work is a key prerogative. Legally, they are free to consider the nomination of John Doe for a seat on the Banana Trade Stabilization Board or a bill to rename the post office building in Podunk, OH after the departing chair of the Banana Trade Stabilization Board rather than considering a budget bill or a nomination to the Supreme Court.

Some legally valid steps have political costs-- failing to pass a budget, for example, forces government shutdowns which are generally very unpopular with the public. Legally, Congress could decide not to fund the whole of government for as long as they would like. Politically, telling seniors that they weren't going to be receiving Social Security checks or telling military members that they were going to be deployed overseas for a year with no paychecks for their families and no new money for the Pentagon to use to buy food or bullets would be devastating for whoever the public sees as the culprit. So eventually compromise is found and a budget is passed.

The recourse for a failure by Congress to act is elections. Representatives and a third of Senators are elected every 2 years. Voters are free to apportion blame however they see fit-- every side is free to argue that it is being reasonable but some other group of Congresspeople is holding up the bill/ nomination/ etc.

Justin Cave
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  • "The recourse for a failure by Congress to act is elections." where in the constitution is this laid out? I think this is emergent, and this conclusion was jumped to. – tuskiomi Mar 06 '24 at 16:29
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    @tuskiomi - Where in the Constitution is the process of elections laid out? Article 1 Section 2 (House) and Section 3 (Senate). If you don't like what your representative or senator is doing (or not doing), you vote for someone else. – Justin Cave Mar 06 '24 at 16:42
  • No- where does it say that election is the process to remove members of congress who fail to carry out the duties charged on them? Keep in mind, that in OP's post, the remedies that were named for SCOTUS and POTUS are explicitly named in the constitution as remedies. I want to know where the constitution says voting out congressional members is a remedy for failing to carry out duties. – tuskiomi Mar 06 '24 at 16:56
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    @tuskiomi It doesn't have to be laid out specifically, it's inherent in the they have to be re-elected to stay in office. However, there's no method to sanction Congress in general. Individual members can be removed by the rest of that house, though. – Barmar Mar 06 '24 at 17:05
  • @Barmar It does though. Especially when the other 2 enumerated branches are explicit. note that it's fine if there is no remedy, but if the other branches have these remedies explicitly stated, and congress does not, then congress does not have such a remedy. Reading between the lines is not an authoritative source. – tuskiomi Mar 06 '24 at 17:09
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    @tuskiomi There's no procedure for sanctioning the entire SCOTUS, just impeaching them individually. The analogous process for expelling Congress members is expulsion by a vote of 2/3 of their house. – Barmar Mar 06 '24 at 17:20
  • @tuskiomi - But the other two branches do not have explicit remedies for failure to act. POTUS can be impeached for "high crimes and misdemeanors". You could argue that failing to "faithfully execute" a law was a "high crime". But there are an awful lot of laws and a limited amount of resources and determining how to prioritize enforcement is an inherent power of the presidency. There is a pretty strong case that the remedy for a POTUS failing to do something is similarly to replace them in the next election. – Justin Cave Mar 06 '24 at 17:20
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    @tuskiomi What does the Constitution say happens if SCOTUS refuses to hear or rule on any cases? – Barmar Mar 06 '24 at 17:23
  • @Barmar the constitution says (A3, S1) "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour," Quite simply, they lose their seat. This is done using the same process for POTUS and VPOTUS, which uses the same wording "shall be removed from Office" (A2, S4), and is conducted via the impeachment process. – tuskiomi Mar 06 '24 at 17:57
  • @tuskiomi but the constitution does not specify that "inaction" constitutes a breach of "good behavior." That is for congress to decide in each case. – phoog Mar 06 '24 at 18:03
  • @tuskiomi You can't impeach the whole court, can you? You impeach specific members who have not exhibited "good behavior". – Barmar Mar 06 '24 at 18:03
  • @Barmar you could indeed impeach the entire membership of the court, however, at least in theory. – phoog Mar 06 '24 at 18:04
  • I don't know, I don't think the option has ever been seriously considered. They can be removed one-by-one. – tuskiomi Mar 06 '24 at 18:05
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    @phoog Indeed. As I stated in my own answer, there's no check on Congress by other branches analogous to the impeachment power over POTUS and SCOTUS. – Barmar Mar 06 '24 at 18:05
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The only obligation the Constitution imposes upon Congress is that they must meet at least once a year:

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

I don't know what would happen if Congress violated that, because it's never occurred.

Mark
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Pat W. Mar 08 '24 at 12:40
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There's no procedure to force Congress as a whole to act, or sanction the Houses for inaction. Unlike impeachment of POTUS or Supreme Court Justices, there's no action that can be taken by another branch to sanction Congress.

If particular members of Congress are responsible for obstructing the processes, they can be expelled by a vote of 2/3 of that house. Article I Section 5 says

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

But if Congress (or either House) as a group chooses not to take some action, there's no immediate remedy. The best that can be done is wait for their terms to be over and not re-elect them. This is obviously a slow process, since Senators have 6-year terms, and only a third are up for re-election every 2 years.

Barmar
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  • In politics, 2 years is not a lot of time, and the election occurs at the same time for every rep. Senators, while serving the same term, do not serve the same schedule term. Senators from the same state always are on one of three different schedules, so that citizens of one state will at most have to wait 4 years between elections to change a senator and best 2 years. That said, if you want to vote Senator A out of office, you'll have to wait for the end of his/her 6 year term... while if you disapprove of both of your senators your wait is lower. – hszmv Mar 08 '24 at 13:56
  • @hszmv I'm not saying it's impossible, but the have time for plenty of inaction during those 2 years. Also, the memory of most of the electorate is short. It's relatively safe to do bad things near the beginning of your term if you make up for it closer to the election. I doubt we'll ever see a government shutdown in the fall of an election year. – Barmar Mar 08 '24 at 15:39
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This has actually already happened at least once. Article 1, Section 2, paragraph 3 provides that representation in the House shall be apportioned based on the decennial census. However, there was no reapportionment after the 1920 census due to a deadlock over the method of apportionment. The apportionment of the 1910 census was used from 1913 to 1933, when the apportionment of the 1930 census kicked in. There was no accountability for this failure, so far as I can tell.

David Jessup
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Aside from the list of things the Constitution actually requires Congress to do being quite short as discussed in other answers, the general answer to this is that there is nothing that can be done. Even forcing Congress to follow its own rules - which each house sets for itself - is not possible.

The Supreme Court considers such cases to be non-justiciable on the grounds that they seek to answer a political question rather than a legal one. The Supreme Court (or the judicial branch as a whole) is not granted any power by the Constitution to force the legislative branch to do anything. They can answer legal questions - such as whether a law passed by the legislative branch violates the U.S. Constitution, what a law means, or how a law should be applied to a given situation, but they can't actually order Congress to take an action.

Each house of Congress sets its own rules, which power is granted by the Constitution itself in Article I, Section 5, paragraph 2. Each house has a rule for how to handle cases where one of its rules is in dispute and those matters - including clarification of the meaning of a rule, determining if something violates it, and determining how to handle such a violation - are settled by that house internally. This is by design in order to ensure that the legislative branch remains independent of the others and able to do its job without outside interference (or not do its job, if it so desires.)

Incidentally, intentionally violating its own rules and abusing the process for rule dispute resolution is how the so-called "Nuclear Option" for (in practice) eliminating the filibuster rule in the Senate worked. Actually changing the rule (according to the rules themselves) requires a two-thirds vote of members present and voting. However, if a ruling on the meaning of a rule is appealed, the Senate itself votes on whether to sustain the appeal - by simple majority. So, they simply appealed the (correct) application of the rule and voted (by simple majority) that the rule does not mean what it obviously did mean. Since such procedures are not reviewable by courts, there was nothing further that could be done about it and the rule was effectively changed in practice, despite lacking the votes to actually change the rule.

reirab
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There are certain things that are constitutionally sent to Congress for a yes/no action. These include treaties and Supreme Court nominations. (It does not include cabinet member - Congress has no say in that.)

It is worth noting that failure to act is not the same as no. Given a failure to act, another Congress could come back a year later or a century later and say yes. (This is comparable to the passage of the 11th amendment in the Bill of Rights.) I will admit that waiting until after a person has died to confirm them as a Supreme Court justice may be academic.

There are actually very few time limits set by the constitution. The only one I can think of is for the president to approve or reject a law. (There may be a few in later amendments...)

David G.
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  • 25th amendment has a time limit. – Trish Mar 08 '24 at 14:48
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    Cabinet members are indeed voted on by the Senate. Quite a lot of executive branch employees are, including quite a lot of positions below the Cabinet level and even high-level officer positions in the military, even for promotions. As far as the 27th Amendment, that was the states that needed to ratify it, not Congress. Later amendments proposed by Congress have often included a time limit for ratification, but that one didn't have one. – reirab Mar 08 '24 at 20:02
  • @reirab They are, but not as "cabinet members". They are also head of administrative agencies and presidential successors, which do need Congressional approval. The cabinet is the term George Washington gave to his constitutionally permitted "advisors", and that, like Congresses rules, is strictly the Presidents business. – David G. Mar 10 '24 at 16:30
  • The first paragraph is incorrect. It is not Congress that votes on Supreme Court nominations and treaties, but only the Senate. Senate confirmation is required for cabinet officers just as it is for Supreme Court justices, and for hundreds of other posts as well, including every federal judge and most undersecretaries and assistant secretaries of the executive departments, among others, for a total of well over 1000 positions subject to Senate confirmation. – phoog Mar 11 '24 at 10:41
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    Also, pending congressional actions lapse at the end of the term. Congress could not now confirm Merrick Garland to the Supreme Court (and even if they could, there is no vacant seat for Biden to appoint him to, and even if there were, Biden would not be obliged to appoint him to it). – phoog Mar 11 '24 at 10:45
  • @phoog It might be only one house, and you are correct about many other posts needing approval. A cabinet member without portfolio could exist, and as not an administrative agency post, is not subject to approval. The "vacant seat" idea is wrong - there is no set size of the supreme court, and one attempt to set it (long ago) was to make it larger than 9. As for actions lapsing, that would just be their internal rules, subject to change. – David G. Mar 11 '24 at 15:29
  • @DavidG. There is no provision for "cabinet member without portfolio." There is provision for a White House staff, including various "special advisors," who are not subject to Senate confirmation, but these are not cabinet posts and have no authority. There most certainly is a set size of the supreme court; it is not set in the constitution, but it is set in statute law. Without changing that law, the court has nine seats. This requires the participation of the House of Representatives and either the president's signature or a veto override. See https://www.law.cornell.edu/uscode/text/28/1 – phoog Mar 11 '24 at 16:10
  • Practically speaking, if there were in fact a future president who would be interested in appointing (e.g.) Merrick Garland to the Supreme Court, assuming a vacancy had arisen, it would be simpler to renominate than to depend on questions about whether the earlier nomination had lapsed. And because of the constitutional requirement to "nominate and ... appoint," it is clear that the Senate could not install a previously nominated judge (or other officer) without the President's approval, regardless of any rule changes they might make. – phoog Mar 11 '24 at 16:20
  • @phoog I think we are arguing about the difference between the rules and current practice. Further, I think you are correct about current practice. The reference to .../28/1 is good (though the notes on that page are junk - they are for 28USC, not 28USC§1); my information is apparently quite dated - IIRC the attempt to enlarge the court was 19th century. – David G. Mar 12 '24 at 03:35
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If a President does not do something the Constitution requires them to do, they can be impeached and replaced until someone who will do the thing gets the office.

Incorrect. A President can only be impeached for "high crimes and misdemeanors".

If Congress fails to do something required of them by the Constitution, what happens?

There is no such process to impeach and remove Congress, and one would expect Congress to have failed to act because a large minority attempted to do the required thing but a small majority prevented them, so it is not clear that removing and replacing all the members would make sense.

Would the remedy be for e.g. the Supreme Court to start holding Congress as a body in contempt until it accomplished the required task? Or what?

Generally speaking, there is very, very little that Congress can be compelled to do, and certainly, the Speech and Debate Clause forbids the Supreme Court or any other court from holding a member of Congress personally responsible for anything related to their official duties.

If there was a remedy, it would be either in the form of a mandamus action, directing some government official who is not a member of Congress, such as the Clerk of the U.S. House of Representatives to take some ministerial action, or finding that the U.S. Government violated the constitution and that someone is entitled to damages and/or some other kind of relief as a result of the U.S. government's violation of the Constitution.

ohwilleke
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  • If congress impeached the president just for doing things they don't like (and without any high crimes/misdemeanors being involved) wouldn't SCOTUS let it stand under the good old "political question" doctrine ? – Gabriel Ravier Mar 26 '24 at 04:29
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    @GabrielRavier It would, but the language of the constitution regarding impeachment is something that Congress is not entirely indifferent to, and in the case of a Presidential impeachment, the Chief Justice of the United States presides over the trial. SCOTUS might even strike down an impeachment that didn't at least claim on its face to be for high crimes and misdemeanors. Defining what that is, is a political question, but stating that as a reason isn't necessarily one. – ohwilleke Mar 26 '24 at 19:59