//  8/21/17  //  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.

Congress’s Constitution is not a book about the Trump presidency.  Indeed, it barely contemplates a Trump presidency—how could it, given the timeline of publishing?  My response to the copyedited manuscript was due back to the press on October 8, 2016.  (One of the copyeditor’s comments, in response to a mention of “President Clinton” in the text: “Let’s add ‘Bill’ here, to avoid initial confusion with a likely President Hillary Clinton.”  I agreed.)  My only opportunity to make changes thereafter was in page proofs, which were due back to the press on January 4, 2017—and anyone who has ever published a book can tell you what happens to authors who try to make significant changes at the proofs stage.

As a result, the book mentions Trump only twice: once in a discussion of the Affordable Care Act (in which, I’m proud to say, I suggested that the law might well survive) and again in a discussion of the Senate’s refusal to hold confirmation hearings for Merrick Garland.  By contrast, John Quincy Adams has six index entries, Edward Hyde, Earl of Clarendon has four, and the troublemaker Matthew Lyon has three.

So, as I say, this book is neither about nor motivated by the Trump presidency—although, as this symposium is dedicated to discussing, it does have lessons for the present moment.  But the book itself is about the separation of powers in general, and about Congress’s role within the American system of separated powers in particular.  In brief, I argue that our system of separated powers is best understood as providing each branch with a set of tools that it can use to contest with the other branches for decisionmaking authority in particular political circumstances.  Crucially, and unlike most other discussions of the separation of powers, the public plays a large role here: where the public throws its support will, over the medium- and long-term, determine who wins and who loses interbranch conflicts.

In these conflicts, legislation itself is relatively impotent, as it requires either presidential signature or veto-proof majorities, and it can be struck down or interpreted into oblivion by the courts.  As a means of checking the other branches, then, legislation shows relatively little hope.

My book instead focuses on other congressional powers, ones that individual houses or even individual members of Congress can exercise on their own.  These include what I (borrowing from the international relations literature) refer to as the hard powers of the purse, personnel, and contempt, and the soft powers of free speech or debate, internal discipline, and cameral rulemaking authority.  Viewed as a suite, I argue, these powers give Congress a potent, but largely unappreciated, toolbox that it can use, and frequently has used, in conflicts with the executive (and, to a lesser extent, the judiciary).

The power of the purse, although exercised via legislation, requires the passage of new legislation every year—without annual appropriations, all discretionary funding ceases and most of the government shuts down.  This gives both houses annual opportunities to press their cases, not simply for narrowly conceived budgetary changes, but also for collateral changes in nearly all policy areas.  Likewise, the personnel power (encompassing the Senate’s role in confirming officers, the impeachment process, and the structuring of the state apparatus more broadly) allows Congress a say over who fills executive and judicial offices—but it too can be used more capaciously, giving members an opportunity to press for other changes they’d like to see.  And the power to hold outsiders, including executive-branch officials, in contempt of Congress is a potent tool that can enable the houses can get the information they need to oversee and constrain the other branches.

The soft powers are perhaps less obvious, but no less important.  The freedom of speech and debate ensures that even individual members of Congress are able to make their case directly to the public, including by releasing information that the executive would prefer to keep secret, without fear of sanction by the executive or the courts.  Of course members who exercise this right irresponsibly can be sanctioned by their own chamber—and this, too, should be understood as a congressional power with important interbranch implications.  A Congress that is perceived to keep its own house in good ethical order will gain in public trust; a Congress that does not—or that is seen to cede this role to the other branches—will lose that trust.  And finally, each house’s power to determine the rules of its proceedings allows it multiple opportunities for capacity-building, which in turn can strengthen its hand against the other branches.

Like all tools, any of these can be (and have been) used for both good and ill.  But they are powerful tools, and we should think of them as such—and not just as discrete tools, but as tools meant to work in tandem—in thinking about congressional power.

It is a central contention of the book that, in order truly to understand these powers, one must attend carefully to their historical development.  The discussion of each power therefore begins with a lengthy tracing of its historical development, beginning in earnest in the English Parliament at around the turn of the seventeenth century.  (Readers interested in a discussion of the methodological choices involved may wish to consult the Introduction.)  This is a book that takes the long view.

So, again: this is not a book about the Trump presidency.  But it is, I hope, a book that sheds light on the Trump presidency—as it would have on a Hillary Clinton presidency or a Marco Rubio presidency.  I have done my share of attempting to apply the book’s lessons to present circumstances: in the immediate aftermath of the election, I suggested in the Washington Post that even the Republican-dominated Congress might meaningfully constrain the Trump presidency, and in early June I evaluated in Politico how well Congress had done in that department to date.  (Politico’s too-exuberant headline notwithstanding, my evaluation was: mixed).  When the Senate eliminated the filibuster for Supreme Court nominees to confirm Neil Gorsuch, I explained in the Post why the outcome had been nearly inevitable, and I have written in both the Philadelphia Inquirer and Yale Books Unbound about the status of congressional investigations into the Trump Administration.  I’ve even written for Take Care about an unlikely parallel for the current administration.

But enough about me.  I’m thrilled at the group of brilliant and creative scholars that Take Care has brought together to discuss my book over the next week, and I’m deeply grateful to them for engaging with my book.  I can’t wait to read their takes on it, and their views on how it applies to present circumstances.  For my part, I’ll be back at the end of the week with some concluding thoughts.

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

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

U.C. Hastings College of the Law

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

8/19/20  //  In-Depth Analysis

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.

The Federal Judiciary Needs More Former Public Defenders

8/3/20  //  Commentary

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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