Take Care is pleased to host a symposium on Congress's Constitution—an 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 Kate Shaw, Associate Professor of Law at Cardozo Law School

The first six months of the Trump administration have provided a stark illustration of the porousness of the border between the Constitution and politics. To many people, this discovery has been both startling and profoundly destabilizing. If the answer to a question like “what are high crimes and misdemeanors?” turns out to be, “whatever Congress and the American public decide,” it’s easy to justify taking a dim view of the law’s ability to order and to constrain.

Josh Chafetz’s new book—essential reading for students of the separation of powers, the Constitution, and politics more broadly—suggests that this tight interrelationship between law and politics is not cause for alarm, but rather an essential and (mostly) healthy aspect of our separation-of-powers design.

Chafetz takes us through a number of (often riveting) inter-branch disputes across history. One lesson that emerges again and again is how powerfully the trajectories of these battles are impacted by public opinion and approval. In fact, one of the reasons that the law as such is so murky here is that in separation-of-powers disputes, one side almost invariably blinks before any final resolution, judicial or otherwise. And the side that blinks frequently does so because actual or perceived public opinion has eroded the tenability of a particular position.

As a general matter, in separation-of-powers battles, the president has one sizable advantage over Congress: the bully pulpit. For at least a hundred years, for better or worse, we have had, in the words of Jeff Tulis’s classic The Rhetorical Presidency,“a common understanding of the essence of the modern presidency—rhetorical leadership.”^[1] President Trump’s use of Twitter and other modes of direct popular communication have only further accelerated the development of this paradigm of presidential governance, together with its pathologies. (I’ve written about the role of these sorts of presidential statements in legal disputes, including here.)

Chafetz acknowledges that presidents have an edge over Congress in the public sphere, though he contends that the president’s “unified voice” and unilateral powers are often overstated, and Congress’s ability to “go public” often downplayed. But even if the executive is less unitary—and Congress less polyvocal and fractious—than we often assume, 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. And the advent of social media like Twitter is only likely to widen the president’s advantage. In 2017, it appears that every U.S. Senator and nearly every member of the House is active on Twitter. But it’s difficult to conceive of members of Congress even approaching the president on these sorts of fora when it comes to reach and range.

Even outside of Twitter, it’s hard to deny that if Congress is genuinely to compete with the president in direct engagement with the public, it needs to find new ways to marshal and deploy its rhetorical resources.

Luckily, as Chafetz shows, there’s a rich and largely overlooked set of traditions for the modern Congress to draw on, in order to try to balance these scales. These are both woven throughout the book and are the focus of one chapter, titled “The Freedom of Speech or Debate.” Despite its title, the chapter’s focus is broader than just the constitutional guarantee that “for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place.” Rather, the chapter discusses generally some of the ways legislators engage in the public sphere, focusing largely on the selective release of information, including classified information. It also details the ways in which members have been understood as shielded from reprisal for such engagement (not enough, in Chafetz’s view). But there’s no doubt much more to be said on the topic.

For a book this scholarly, Congress’s Constitution is wonderfully concrete and pragmatic, genuinely concerned with providing actionable recommendations about how Congress could better utilize the tools in its arsenal. In that constructive spirit, I want to offer one specific suggestion on the subject of congressional use of rhetoric in public engagement. Beginning in 2018—assuming nothing seismic has happened between now and then—Congress should return to the historical practice of bipartisan, congressional responses to the State of the Union address.

Return to, you ask? Well, yes. As it turns out, what were originally known as “Annual Messages” the president delivered to Congress were followed by congressional responses, with each house responding (sometimes point by point) to the president’s address. As Tulis details in The Rhetorical Presidency,^[2] President Washington even hosted a committee from each house of Congress in order to provide his own reply to their responses. As President, Jefferson broke with the practice of delivering the Annual Message to Congress in person, and what we now call State of the Union messages were sent in writing until Woodrow Wilson revived the practice of in-person address. But that revival was not accompanied by a revival of the practice of response. Instead, beginning in the 1960s, the opposition party began offering partisan responses, typically in the form of televised speeches that air shortly after the president’s speech. Tulis suggests that recent presidents have missed an opportunity to insist on responses from the House and Senate, rather than a political party. But Congress could take this step on its own.

What would a return to this short-lived early practice of congressional response accomplish? Perhaps some small work at reviving institutional prerogatives in a way that would transcend partisanship. The idea of a point-by-point response likely to garner bipartisan agreement in today’s polarized environment is surely quixotic. But seeking common ground on some general proposals or messages should be within reach. And to provide an institutional rather than a political response could signal to the public and the president Congress’s interest in acting as both a partner and a competitor in a deliberative process whose end result will be—or at least aim to be—genuine improvements in people’s lives.

Scholarly critiques of the shortcomings of Madisonian conceptions of the separation of powers in light of contemporary partisanship are familiar and forceful. But there have been glimmers of genuine bipartisanship in Congress in recent weeks: the overwhelming supermajority vote on a Russia sanctions bill; some bipartisan movement to protect the investigation of Special Counsel Robert Mueller from potential interference by the executive branch (whatever the efficacy and constitutionality of the bill’s current iterations).

Whatever the coming months bring, one thing that’s clear is that Congress must find new opportunities for successful discursive engagement with the public, by both individual members and the body as a whole. As Chafetz argues, “institutional authority is something built by successful public engagement through time.”^[3] Given the steady erosion of Congress’s institutional authority in recent decades, a slow and steady process of reconstruction, including through the use of rhetorical tools, may be the best path forward.

^[1] Jeffrey K. Tulis, The Rhetorical Presidency 4 (1987). Tulis has a new edition of The Rhetorical Presidency coming out this November. I was lucky enough to get an advance look at the new Afterword, and it includes a brilliant meditation on President Trump’s use of rhetoric during the campaign and the first two months of his administration. Anyone interested in the topic should pick up a copy as soon as it’s available.

^[2] Tulis, at 55-59.

^[3] Josh Chafetz, Congress’s Constitution 314 (2017). 

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