Congress’s Constitution

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.

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4 Responses

  1. TJ says:

    I think this is a really interesting project, and your general point makes a lot of sense to my eyes. But one quibble on your last point. I think most people’s preferences run in the following order:

    1. Checks for the other side but not for my side.
    2. Checks for both sides.
    3. No checks for either side.

    The tension between (1) and (2) is longstanding. But it would be a mistake to infer from convenient switches in time to say that liberal critics of executive power were only acting for partisan purpose. Rather, it was that they had an easier time back then because their partisan druthers were aligned with their legal druthers, and now those are in conflict.

  2. Josh Chafetz says:

    Thanks, TJ! I certainly did not mean to suggest that anyone was acting solely from partisan motives. And, as I argue in the paper, just because Congress has certain powers does not mean that every use of those powers is wise or good. Indeed, injudicious use of power tends to diminish future soft power, as it gives other actors the opportunity to argue in the public sphere that Congress cannot be trusted. (That’s why I suggested in the post that proponents of limiting executive power should offer the current House leadership “at least one cheer” — not necessarily three.) One could favor vigorous congressional checks on the executive and yet still think that the current House is using those checks in pursuit of wrongheaded policies. What concerns me, however, is when people who previously favored checks on executive power suddenly start questioning the legitimacy of the checking mechanisms, rather than accepting that the tools are legitimate but are being used to bad ends.

    Or, to put it somewhat differently, in a polyarchic political community, your option (1) is rather unrealistic — there is no permanent majority that can institute checks on the “other” side while keeping itself unconstrained. (And, I would add, that’s a good thing!) Astute political actors and theorists, recognizing this fact, should avoid undermining the mechanisms of (2), so as to ensure against getting stuck with (3).

  3. Joe says:

    “or did they simply want more checks on the Bush Administration”

    I’m not sure how much the near shutdown did to address the “imperial presidency.” The czars thing was trivial in scope. Granted, Congress there how power of the purse, but how did it do much at all about the imperial presidency? Targeting a few so-called czars, including those not even there any more, is barely worth a Bronx cheer. (I’m from there, it’s okay.)

    It’s granted that many people are more concerned when someone they oppose on a partisan level or otherwise (such as thinking them incompetent) as compared to executive power as a whole. Me personally, I want more checks on the imperial presidency, consistently (as best we can) applied.

    Anyway, it’s a good subject — the attention given to it in blogs and elsewhere aside, many do not realize the various ways Congress (or even certain groups there) can exert power over the other branches (including the courts, e.g., by delaying confirmations) and the result is that responsibility is not properly handed out at election time and elsewhere.

  4. mls says:

    Josh-I enjoyed your article, which as usual makes an important contribution to the study of Congress’s place in the constitutional scheme. My comments are rather long so I will send them to you by email. Basically, (1) I agree with your concerns regarding how Congress enforces its demands for information, but I think that it needs better internal mechanisms to channel information disputes toward the best enforcement alternative, (2) I agree with the need to improve ethics enforcement, but i think that this is a very heavy lift that is not all that likely to enhance Congress’s standing vis a vis the President, and (3) I do not agree that the filibuster reduces the power of the Senate.