//  8/28/17  //  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.

If “may you be fortunate in your interlocutors” isn’t already an ancient academic blessing, it should be.  And I have been extremely fortunate indeed to have eight brilliant and generous interlocutors in this Take Care symposium on Congress’s Constitution.  I am deeply grateful for their learned and thought-provoking reflections on the book, and I am deeply grateful as well to Take Care’s publisher, Joshua Matz, for organizing the symposium.

I have learned a ton from each of the contributions, and I can’t possibly respond to every insightful point they’ve raised without making this closing essay far longer than it should be.  So instead I will limit myself to noting that I was struck by some of the commonalities across responses.  In particular, it seemed to me that the eight responses fell out into three broader categories.

The pieces by Julia Azari, Kate Shaw, and David Fontana each inquired into the terms on which institutional actors communicate with their publics.  Azari—who has written a fantastic book about the ways in which presidents claim electoral mandates—suggested that presidents, and perhaps courts as well, are at a communicative advantage over Congress, which is inevitably “cacophonous.”  Fontana echoed that point, suggesting that, in contrast to the executive, “Congress does not talk well.”  Shaw, too, noted that “the president still has a distinct edge, as the only official understood as empowered and expected to speak both to and on behalf of the entire country.” Shaw provocatively suggested that Congress regain some initiative by offering a unified institutional response to the president’s State of the Union address.

These are all important points, but, as I argue in the book, I do wonder if they overstate both the unity and (sometimes) the efficacy of presidential communication.  Administrations (this one in particular) are often riven by leaks, as factions within them jockey for power and influence.  Fontana noted that “Kellyanne Conway was everywhere [on TV], then Anthony Scaramucci was, with others in between, and sure more to come after that.”  But much of what they were doing in the media was fighting with one another and others in the administration.  And if the White House’s ability to speak to the nation with a unified voice is sometimes overstated, so is its ability to speak for it.  Consider an exchange on Fox News this past weekend: when asked about international condemnation of the president’s response to white supremacist terrorism in Charlottesville, Secretary of State Tillerson responded, “We express America’s values from the State Department.” Chris Wallace followed up: “And the president's values?”  Tillerson’s reply: “The president speaks for himself, Chris.”  Not exactly univocality in action.

Moreover, at times of high-salience interbranch disputes, there is frequently an obvious spokesperson on the congressional side—often the Speaker of the House—who has no problem getting the message out.  Consider the role played by Newt Gingrich in conflicts with Bill Clinton or by John Boehner in conflicts with Barack Obama.  And to the extent that a communicative imbalance persists, as both Azari and Shaw point out, it’s a consequence of choices about how to build (or not) institutional capacity, and those choices are always up for revisiting and revising.

A second set of responses, by Jon Michaels and Bijal Shah, focused on what I term the “personnel power”—that is, all the ways that Congress structures, conditions, and populates the apparatus of the state.  Both of these pieces offer a number of specific suggestions for using the personnel power to enhance congressional power, and more broadly to make the administrative state function better.  Michaels, foreshadowing some of the material in his excellent forthcoming book, discusses enhancing civil service protections and reducing the outsourcing of civil service jobs to the private sector.  Shah, similarly, focuses on ways that Congress can foster expertise in the bureaucracy.  Both of these pieces serve as important reminders that the executive, too, is a “they,” not an “it”—and both of them treat the possibility for some amount of intra-executive tension as a good thing, perhaps even something to be encouraged.  All of their suggestions for doing so are important and worth contemplating seriously.

The third set of responses, by Vic Nourse, Zach Price, and Mark Graber, focus on what one might call the theoretical underpinnings or broader lessons of the book.  Nourse argues that Congress’s Constitution shows why the legal academy ought to rethink its neglect of (and even disdain for) Congress as an institution—to which I can only reply, “Amen!”  Price asks about the line between law and politics, a line that he rightly notes is “often itself politically and legally contested.”  This of course poses a challenge for normative theorizing about the separation of powers, a challenge that Price urges the field to take up.  And Graber compares my work to that of both Richard Neustadt and David Mayhew—so I’m tempted to just say thanks! and leave it at that.  But he also makes a very important broader point about the need to balance agency and contingency, on the one hand, and broader impersonal forces, on the other, in our attempts to understand political interactions.  As he suspects in his final paragraph, I wholly agree.

And I’ve barely begun to scratch the surface of these rich and provocative essays.  Again, I can’t express my gratitude enough to their authors, and I can’t urge you strongly enough to read them all!

And if you still find yourself riveted, maybe check out the book, too!

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.

Take Care