Congress reconvenes today after its August recess and (after slamming the door in
Black Rod’s President Obama’s face), it has a fair amount on its plate. And as we’re likely to continue to see significant clashes between the House of Representatives and the White House, I thought this might be a good time to say a little bit about a forthcoming article of mine, Congress’s Constitution, 160 U. Pa. L. Rev. (forthcoming Feb. 2012). The piece, in essence, argues that Congress has a lot more tools at its disposal in inter-branch conflicts than we are accustomed to thinking. When thinking about congressional power, we tend to focus on legislation. But passing legislation always requires bicameralism (which is quite a high inertial barrier on its own) and almost always requires presidential concurrence (which makes it a difficult mechanism to use in checking the executive).
My article, instead, focuses on powers available to individual houses and individual members of Congress. Borrowing terminology from the international relations literature (and from Joseph Nye, in particular), I divide these powers into “hard” and “soft” varieties. Hard powers include things like the power of the purse and the contempt power; soft powers include the Speech or Debate Clause privilege, the power of each house to discipline its own members, and the power of each house to determine its own cameral rules. Ultimately, the distribution of power in the federal government at any given time will be determined more by constitutional politics and the gaining of public trust than it will by application of hard-and-fast, law-like rules, making congressional soft power hugely important. The soft powers are those that enable the houses of Congress to compete for the public trust and to contest the positions staked out by the other branches in especially vigorous ways.
These powers themselves are not novel. Historically, each of them has been used in ways that enhance congressional power and in ways that diminish it. Examples discussed in the article range from the 1689 Mutiny Act to the 2001 Patriot Act, from the Pentagon Papers to WikiLeaks, and from the contempt of Congress citation against Harriet Miers to the threatened use of the filibuster to sink Elizabeth Warren and Donald Berwick.
I’m especially interested to get reactions to the piece for a number of reasons. Most immediately, I still have time to make edits before it is published. Somewhat more distantly, I’m hoping to expand the piece into a book. And finally, I think some of the issues the piece discusses are good ways to test our intuitions about the constitutional separation of powers as opposed to our intuitions about how particular Congresses use their power or to what extent particular Presidents ought to be checked. That is to say, do people really want more checks on the imperial presidency — in which case, for example, they should offer at least one cheer for the way that the current House leadership acted in the run-up to the near governmment shutdown this April (discussed at pp. 16-17 of the draft) — or did they simply want more checks on the Bush Administration?
In any event, I hope you enjoy the piece, and I’m curious to hear what you all think.