A Presumption in Favor of Congress

I’ve posted twice about the thought that the Constitution does not make the three branches equal.  In fact, the text and the original understanding created Congress as the superior branch.  Only much later (starting with Andrew Jackson) was there a notion that the three branches were co-equal, and this did not become a widely held view until long after ratification.

Well, so what?  The answer is that when courts decide a separation-of-powers questions, there should be a presumption that Congress prevails.  In other words, Justice Jackson’s concurrence in Youngstown is wrong.  When we are in a “zone of twilight” where no legislation speaks to whether a certain power rests with Congress or the President, those claims should not be in equipoise.

Would a presumption in favor of Congress have made a difference in prior separation-of-powers cases?  That I’m less sure about, as I need to work my way through the opinions.

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11 Responses

  1. Charles Paul Hoffman says:

    We may have spoken about this before, but I wholeheartedly agree the intention was to make a strong Congress and much weaker presidency, but the Framers basically made a “mistake” in drafting the Constitution. The problem is the Ineligibility Clause, which effectively prevents anything approaching Parliamentary government. The “mistake” was that the Framers thought the President would be able to bribe representatives by offering them positions, when in reality we would very likely have seen the presidency diminish into nothingness as the Speaker of the House or a Prime Minister, acting on behalf of the congressional majority, would have exercised real power.

    The other drafting issue I would point to is the schizophrenic treatment of the House and Senate. The House was meant to be the far more important of the two, but all important powers other than introduci money bills were given to the Senate (and, even then, the Senate could amend and even reject the money bills!).

    The end result is that despite a relatively clear intent to create a strong Congress, the actual text of the Constitution made created a legislature that could not act on a unified basis and could not exercise genuine power vis-a-vis the president.

  2. Charles Paul Hoffman says:

    Note that the above is more a comment on this line of thinking, rather than on this particular post. I would presume, though, that practically all separation of powers cases should have been decided differently (the Goldwater case from the 70s over the abnegation of the treaty with Taiwan comes to mind, even if it never reached the merits—a “Congress first” position makes the president’s claim that it was a political question far less tenable).

  3. Joe says:

    “the text and the original understanding created Congress as the superior branch”

    The original understanding was conflicted and does not have the benefit of over two hundred years of history. The text is open to debate. Congress has more text? The other two branches has significant power too but in more open-ended provisions. Congress has the power of veto and removal (putting aside the de facto result of a criminal conviction)? Okay. They have certain abilities in certain spheres. The President has its own & we don’t have parliamentary government. If there is no legislation, in certain areas where the President has a special role, no, Congress very well might not have the benefit of the doubt. The recognition power very well might be one such area.

  4. Orin Kerr says:

    I understand the premise that Congress is in a sense the most significant and most powerful branch, but I don’t see how that justifies your conclusion, which you state without any analysis, that this means that “when courts decide a separation-of-powers questions, there should be a presumption that Congress prevails.” Why is the answer a presumption — by which I assume you mean a burden of proof in litigation? Why not some other way of manifesting that distribution of power?

    • Brett Bellmore says:

      I agree: The very fact that the Constitution explicitly allocates more power to Congress than the other branches, puts it in a position to control the other branches, and not the other way around, means that you shouldn’t have to resolve ‘ties’ in favor of Congress. Congress was given the power to prevail WITHOUT a thumb on the scale. All Congress needs is for the Constitution to be neutrally enforced, and it comes up on top.

      If it’s members want to come up on top, which is the real problem today: They don’t, it would be too much work and responsibility.

      • Joe says:

        “All Congress needs is for the Constitution to be neutrally enforced, and it comes up on top.”

        except when they don’t — Madison etc. noted checks and balances, which checks and balances Congress in various ways. So, judicial review can ‘control’ Congress in various ways. Congress won’t always prevail. All things being equal, they might, but only when dealing with things in their sphere & when some other branch doesn’t check them.

        • Charles Paul Hoffman says:

          This of course presumes that the Framers intended judicial review, for which there is no overt constitutional support (though obviously there are arguments that it is implicit in the judicial function). Without judicial review, ere is really no claim at all of three co-equal branches, and questions of conflict between the presidency and Congress become more difficult to resolve without a blanket “this branch wins” rule.

          • Shag from Brookline says:

            In addition, neither Article III nor any other portion of the Constitution provides for judicial supremacy horizontally over the federal Executive and Legislative branches.

          • Joe says:

            There’s good evidence of such intent & “no overt” is debatable. Anyway, academic at this point.

            And, even w/o full judicial review power, in practice, courts will have fairly strong hand since Congress won’t press legislative supremacy that often or pass laws so clear that the courts cannot de facto practice it with a polite nod to their limitations. Nor would the executive branch.

            Finally, it would be more difficult, but quite likely that the other two branches would continue to have a continual never fully completed battle of checks/balancing akin to mythical competitors of yore.

  5. Gerard Magliocca says:


    I’m afraid the analysis will have to wait until after I grade my exams.

  6. Shag from Brookline says:

    While Gerard is grading exams, the subject of this and earlier posts are somewhat addressed by the Paulsens’ new book “The Constitution: An Introduction.” Pere Michael Paulsen has posted at the VC (also available via the Originalism Blog) on certain issues addressed in the book, including on judicial supremacy. Perhaps “co-equal” is in the eye of the beholder.