In this post I want to start a discussion of an observation made about twenty years ago by Garry Wills. Wills is one of my favorite authors, and a significant portion of his scholarship is devoted to the Constitution. Here is the claim: The three branches are not co-equal. As a textual and as an original matter, Congress is the preeminent branch. How do we know this?
1. Congress is discussed first (Article I).
2. Article I is the longest and most detailed of the articles.
3. Congress wields the power of impeachment over the other two branches. The other two branches cannot, by contrast, remove a member of Congress.
4. Congress controls (albeit with some limitations) the salaries and staff of the other two branches. They, though, cannot control Congress’s pay and staff.
5. Congress can override a presidential veto. He has no recourse if that happens.
These are just some of Wills’ examples. Now the obvious response is that many of these points are formalistic. In practice, the President or the Supreme Court is more powerful because Congress does not wield many of its weapons, can’t act in a unified way, and so on. True enough, but how relevant is that for a court addressing a separation-of-powers question such as Zitovsky? If you start with the premise that the constitutional text made Congress the leading branch, then shouldn’t that usually outweigh subsequent practice if you’re an originalist or a structuralist?
Anyway, I’ll have more to say about this next week.