The First Branch

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.



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6 Responses

  1. Joe says:

    Interesting. In the constitutional republic, there can be various arguments made to show that the representative branch is key here, especially when determining if something is properly within a certain enumerated power (particularly if no liberty interest like the 1A is at issue). But, I’m unsure how this will affect arguments where (like the case cited) where specific executive duties are involved. It might be noted there that in general Congress should have primacy but in certain specific cases, other branches have more of an upper hand.

  2. Shag from Brookline says:

    Article II on the Executive Branch is longer (and more detailed) than Article III on the Judicial Branch. Does “mine is bigger than yours” control constitutional supremacy or primacy? Is the 1st A of greater import than the rest of the bill of rights because listed first? (I think there has already been a discussion on the latter, including changes in the ordering from earlier drafts.) Perhaps individual rights of the “people” trump Article I in significant regards, especially if such rights are absolutist (in particular with the force of the 2nd A). Congress created the administrative state which may have balanced the power of the Executive Branch’s shorter Article II. (For some reason, I’m reminded of Abbott and Costello.) Perhaps constitutional structuralism is a house of cards.

    • Brett Bellmore says:

      I don’t think this is a question of the length of the articles. It’s a question of what they say.

      Congress can remove Presidents and Judges. Neither Presidents nor judges can remove members of Congress. Congress can override Presidential vetoes. There’s a long list of ways in which Congress, by explicit grant of power, is superior to the other two branches.

      OTOH, we’re finding that, in practice, a President who has enough support in the Senate that he doesn’t have to worry about being removed from office is essentially immune to Congressional restraints. This comes from being the branch that actually executes the law: Freed from the threat of removal, the President is capable of ignoring the other two branches.

      • Joe says:

        Congress has broad powers (somewhat restrained by practice and practical realities) but Presidents can prosecute members of Congress. This might not “remove” them from office specifically, but does in some fashion.

        Presidents over history had no real concern regarding removal. Until Nixon, the only one who was really threatened was Andrew Johnson, a rather special case. QED, perhaps, this lack of restraint must have been there for years. But, the President still has various congressional restraints, particularly given the practical realities that political actors don’t go out on a limb. Funding restraints alone restrain executives here.

        Congressional actions limited Obama’s freedom of action regarding GITMO or trying people in normal courts. Again, especially since in practice, there are political restraints even if (as they rarely do) political actors technically have the power to do things Also, not just “the Senate” — if the House doesn’t act and/or goes along with the President in changing understandings of the nature of the power of one branch, that too influences things. .

  3. Shag from Brookline says:

    When is the last time that a president ignored the Supreme Court? (GOP candidate Dr. Ben Carson, who once committed to “do no harm,” more than suggests that he as president might (would?) ignore the Supreme Court in certain cases. Neither Article III nor any other part of the Constitution provides for judicial supremacy over the federal Executive and Legislative Branches.

    As to ignoring Congress, perhaps Brett has in mind executive actions. But Congress provided for the administrative state and hasn’t taken steps to undo it. And over the years many presidents have taken many executive actions, very few of which were overturned by the Judicial Branch.

  4. Joe says:

    A bit more.

    It’s first? Yes. You make laws, enforce laws & then interpret that application. Logical. More detailed? Two sections involve limits and limits on states. Some internal regulations. Rules on how to elect them. Plus, since you have two branches, there is more to cover. And, a clearer listing of just what the legislature does. This can be spun various ways. I think in part it is a matter of familiarity. The brevity of the other sections does not necessarily mean they have less power in various ways. It might have been an oversight — perhaps more detail should have been applied.

    The branches have various means of control. The courts have judicial review. Presidents have the power to prosecute (with limited exception). Congress do not have the power to override each and every thing there. The power of the purse, including salaries, is important. But, so are the powers the other branches have in other areas. So, where does that take us really?

    I think the basic issue here is that we live in a republic where we in large part trust the legislature branch, as our representatives, to govern. The breadth of Art. I etc. factors into this, but without that basic background principle the other stuff doesn’t convince as much as apparently implied. It is a case of a pre-existing sentiment seeking backing.