//  8/23/17  //  In-Depth Analysis

Take Care is pleased to host a symposium on Congress's Constitutionan important new book by Josh Chafetz. Contributors will assess Congress's role in the separation of powers, with a focus on developments thus far under President Trump.

By Victoria Nourse, Professor of Law at Georgetown University Law Center

It is one of the great paradoxes of American life that Americans love democracy but hate their most democratic institution, the Congress—that is, until they need Congress to fight a rogue President.  Josh Chafetz’s new book is an excellent and erudite account of precisely how much power Congress has to fight a President: the power to investigate, the power to hold witnesses in contempt, the power of the purse, the power to censure, and ultimately the power to impeach.

Many of my colleagues in legal academia will find the idea of Congress doing anything entirely laughable, however.  Why?  They have been taught that Congress is bought off, that Congress is spineless, that Congress stands up to the President only in “divided” governments.  Since this is what sophisticated law schools teach, it is not surprising that celebrated Supreme Court opinions—such as King v. Burwell, the second Affordable Care Act case—have likened Congress to a cartoon.

Constitutionalists love to talk of rights and social movements, but they seem allergic to understanding some of the most basic elements of our constitution’s power structure.  This might all be fine if it were not for the fact that Congress is essential to our democracy.  It is certainly not fine when we need Congress the most, when it holds the power to check a dangerous President.

Chafetz’s book is a powerful antidote to the legal academy’s mandarin contempt for Congress.  The chapters are deeply grounded in empirics and history; Chafetz’s tone is measured, neither viewing Congress through rosy glasses nor from on high with disdain.  It should speak to those who want to know more about the varieties and development of Congress’s powers.  It is an academic book, and that is one of its virtues in a world where elite law professors too often appear to proceed on the assumption that the Constitution has only one branch, the Supreme Court.  As all the recent talk about standing in the Emoluments Clause cases shows, the Supreme Court has resolutely set itself against interfering in inter-branch controversies.

Forget about this President: in theory, we could have a full-blown kleptocracy before any case challenging mass corruption could even reach the Supreme Court on a constitutional issue. (Remember how long it took the Guantanamo cases? The very first Gitmo cases arose in 2004 but it was not until 2008 that the Supreme Court decided Boumediene v. Bush.)

Chafetz’s opening chapter does everyone a great service by responding to a commonly held view that there is no separation of powers in America—or that the separation of powers is inherently bad, silly, or a matter of political party.   Chafetz knows these views are wrong, and so do I.  Having worked on both sides of Pennsylvania Avenue, I can tell you that the separation of powers is alive and well, at least for practicing lawyers who are hired in droves to shuttle back and forth working out exchanges of documents, interpreting powers, defending subpoenas, and monitoring budget deployment across the branches on a daily, hourly, and even minute-by-minute basis.  

Work as a chief counsel to a vice president and you will be asked: “Can the President do this under the Constitution?”  “What will Congress say in response?”  “What will the Supreme Court say”?  And you will find yourself answering as a lawyer for the President and the Presidency.  This is what Madison meant when he said that the “man” (in this case a woman) would align themselves with their institution and that this was—in his words—the “due foundation” for the separation of powers.  (Sorry, I know you think it was like the TV show Veep, but that’s not true).

Lawyers tend to view the separation of powers as a set of rules rather than the everyday Washington practice of institutions competing for electoral favor.  The otherwise delightful and brilliant new dean of the Harvard Law School, John Manning, frets over the fact that there is no “separation of powers” text in the Constitution, concluding that courts should be wary of enforcing a principle of the separation of powers. That is a bit like saying that a car is not a car because there is not a sticker on the front attesting that “this is a car.”  The framers specifically rejected such a clause, based on their experience with state constitutions.   Reread Federalist Papers No. 47-51: parchment barriers were not enough.  Text had failed.  That should be no surprise: a bumper sticker saying “this is a car” cannot run a car any more than a textual separation of powers “clause” can run a government.  

A democratic government must have people, it must have representation, and that representation must be divided across institutions which compete for political favor.  As I have written elsewhere, we have a separation of representation, not function or party.

Chafetz knows this and rightly rejects simplified explanations of the separation of powers.   Even though he did not write the book to describe today’s events, they help prove his case that the “separation of parties” thesis is wrong.  

In the Trump Presidency, we have unified party government, not to mention a President rich enough to buy campaign contributions for every member—yet we have competing institutions.   Events of the past few months show significant pushback from Congress to assertions of Presidential initiative. We have multiple congressional investigations of Russian interference in our electoral system (a fact denied by the President); we have compelled testimony from the President’s aides about potential obstruction of justice (also denied by the President); and we have veto-proof legislation that rejected the President’s foreign policy on Russia (much to the President’s chagrin).   Perhaps most importantly, we have the rejection of the President’s signature legislation, the health care repeal, and the refusal of the Senate to get rid of the legislative filibuster (a key congressional prerogative).  Surely, if party were the answer to the separation of powers (or the death of it), the legislative filibuster would be toast by now, given how easy it was to get rid of the judicial and appointments filibuster.  

If one wanted to predict when and how the Congress will check a President on any particular issue, under our current system, one has to consider the incentives created by the Constitution’s structure.  And that will force you to look at things that most lawyers think of as “mere politics.”  In the crudest of scenarios, Senators or House members do not vote to restrain the President’s Russia policy because of party or even necessarily because the President’s policy is wrong, but because they believe they will be punished at the polls, i.e. they will lose their jobs.  The “electoral connection” (or at least the anticipation of it) is powerful.  Just look at Senator Murkowski or Senator Collins and ask them why they split with their party on the recent health care repeal bill:  they told the President that their job was not to support his party, but rather to support the voters of Alaska and Maine.  These Senators aligned with their institution’s interest in separation from the President because they believed that their voters demanded it.  

This is not news to Chafetz: he is a pro, which is why this book is so important and timely.   It is likely to be news to high placed legal academics.  Particularly in the age of originalism, lawyers like texts.  If they do not see it in words, it does not exist. If doctors took the same view, we’d all be dead, felled by what the Nobel laureate Daniel Kahneman in Thinking Fast and Thinking Slowcalls the “what you see is what there is” fallacy (think invisible “germs” or “genes”).  

The idea that Alaska and Maine, with their very small populations, could drive the separation of powers on any particular day (emphasis on that day) will sound crazy to those looking for a separation of functions or parties or texts.  Alaska and Maine—that’s about federalism, not the separation of powers, the law professors might say.  They will ask, where are the rules? Where are the Supreme Court decisions? Professor Sandy Levinson will explode, insisting that’s sooooooo undemocratic: such tiny populations cannot run America.  

My claim is not that this kind of hyper-minoritarianism is good—the permanent filibuster has changed our constitutional structure for the worse.  My claim is that the electoral connection to Maine and Alaska illustrates the incentives for individual members of Congress to act against a President even of their own party: the vertical relationship of the Senator or the Representative to his or her constituents is exactly the “endogenous” politics Chafetz correctly defends as driving the separation of powers.

I tell my libertarian friends that they should care more about constitutional structure. After all, if I am correct, that most people hate Congress, and have hated it over long periods of time, that attitude will tend to default to limited government.  If voters hate Congress, they will elect representatives who hate Congress.  As we have now seen, with the failure of unified government to effect healthcare repeal, this operates only one way—inaction.  If you want a government that moves slowly, that privileges the status quo until there is an overwhelming or near unanimous consensus for change (as our system does), then you like this form of government.  If not, you hate it, which is why most people with passionate political views hate Congress most of the time.  

I repeat: it is the great American Paradox for citizens to “hate” Congress and yet adore democracy so much they volunteer to die for it—that is, until they need Congress to check a President they do not want.  Watch the events of the next few years or even months.  First there will be one or two Republican statesmen or stateswomen who defy the President openly, compelled by principle or simple electoral demand—and then there will be a tipping point where patriots in Congress will rise because they have been elected to be patriots, to fight the President.   It happened after the Civil War, it happened during Watergate.  The tired nation will finally but briefly thank Congress, and go back to the business of the day.

The Real Problem with Seila

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Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

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Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

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A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

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By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

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