//  8/24/17  //  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.

One of the main contentions of Professor Josh Chafetz’s new book, Congress’s Constitution,is that by taking action in both formal and informal ways that increase the public’s trust, Congress can shore up its power vis-à-vis the other branches of government.  As an initial matter, this book strikes an elegant balance, in that it both displays a seriousness of purpose and is very enjoyable.  It’s a great read not only for scholars of structural constitutionalism and legislative theory, but also for anyone who wants to know more about several varied, potentially robust, and under-appreciated legislative mechanisms for shaping public governance.

Chafetz, like others, suggests that politics determine the fault lines of the separation of powers.  To the extent he implies that that there can be no ideal separation of powers framework that exists outside of political considerations, his argument is up for debate.  However, he is certainly correct that Congress cannot escape the pressures of politics while exercising its role within any separation of powers paradigm.  It is difficult, if not impossible, for Congress to isolate its duty to promote a balanced and effective government from its interest in its constituency.  Rather unlike the executive branch, which has agencies that are insulated from politics to some extent, and even more unlike the judiciary, the legislature is the branch whose contours are defined primarily by feedback from potential voters.

Nonetheless, it is the responsibility of the two branches of government that exercise political power—the legislative and the executive—to do so responsibly.  This includes both respecting and checking one’s own and one another’s functions, even if both branches are of the same political party.  An acute concern these days is that the President does not take seriously the obligations of the highest political office.  Further, the potential for problems resulting from the President’s lack of gravitas is amplified by the fact that the White House can work, as Chafetz puts it, “unilaterally and with resolve,” while the concentration of partisan power in Congress is limited by the constraints that legislators place on one another.  Keeping these matters in mind, how can Congress use its political influence in order to provide a systematic check on the current administration?  More specifically, to what end might Congress wield the public-facing legislative tools Chafetz foregrounds in order to constrain the President’s potentially corrosive approach to decisionmaking and leadership?

A promising way for Congress to check the Executive, as well as to enhance its own efficacy and public standing, is by promoting expertise in the executive branch.  Traditionally, it has been the judicial branch’s role to compel expertise in the administrative state, otherwise known as “expertise-forcing.”  However, Congress may be able to combat presidential ineffectiveness, lack of focus, and pursuit of popularity instead of well-reasoned policy in a more flexible and responsive manner than the Supreme Court.

In addition, taking the lead on furthering concrete improvement in the government is one way that Congress could represent itself as one of the “grown-ups” among the branches, instead of allowing the judiciary alone to claim that description.  For instance, if Congress pursues expertise-forcing in response to missteps by the executive branch, instead of becoming embroiled in inflammatory discourse and/or waiting for courts to discipline the President, it could also improve its own public standing and perhaps even convince people that increased legislative power improves government.  By doing so, Congress might help elevate the overall quality of public debate as well, by moving it away from ad hominem criticism of the President and refocusing it on the merits of his approach to policymaking.        

Training the legislature’s sights on administrative expertise may also have an impact beyond improving the public’s view of Congress and garnering more productive media attention.  While Chafetz’s book focuses on high-profile altercations among the President, vocal legislators, and Supreme Court justices, interactions between Congress and the executive branch can occur at various levels of administrative hierarchy and need not include the President directly.  For instance, Congress can influence executive branch entities besides the President through administrative oversight, which may include “reading documents, commissioning scientific studies, conducting field observations, and holding hearings to question officials and affected citizens.” Such oversight can encourage an emphasis on expertise in agencies’ justifications of their policies.  (In addition, to the extent the executive branch, like Congress, is a “they” and not an “it,” centralizing legislative oversight may not be as necessary as when the legislature seeks to rein in the President himself.)

Furthermore, agencies may reconfigure themselves in response to congressional expectations of increased expertise, and these changes to their regulatory and policymaking processes could endure.  Put another way, the confluence of politics and legislative prioritization of expertise may influence administrative process in a manner that, while the result of a unique political moment, nonetheless allows a focus on substantive administration to become entrenched, especially if the civil service values expertise more so than its political leaders.

In addition, building and exercising legislative power in order to improve expertise in government could limit legislative aggrandizement.  While Chafetz’s treatment of the legislature is overwhelmingly optimistic, increases in legislative power—particularly those that are energized by politics—may also be employed to harmful ends.  If legislators can focus on boosting expertise in the government in a disciplined manner, they might purposefully limit obstructionist behavior that inadvertently shifts authority back to an incompetent President and better resist the temptation of the unethical use of legislative clout.  For all of these reasons, the quality of both the executive and legislative branches could benefit from congressionalefforts to balance political and technocratic influences on executive policymaking.

As luck (and Chafetz’s careful exposition) would have it, the legislative tools discussed in Constitution’s Congress provide a number of opportunities for the legislature to encourage expertise in the executive branch.  Here are some thoughts on their use for this purpose, listed in the same order that Chafetz presents them in his book.

Power of the purse:  Congress could make annual appropriations contingent on evidence of expertise-based policymaking, or at least attach riders focusing on the use of funds to promote it.  Put differently, legislators might take advantage of the principal-agent dynamic inherent in appropriations in order to persuade agencies to be responsive to expertise-focused priorities set by Congress. 

Personnel power:  Instead of its generally deferential approach to the selection of political appointees, the Senate could pressure the President to appoint expert heads of agencies.  Congress could even force the removal of unqualified personnel by eliminating executive offices, should it come to that.  Neither of these approaches keeps the President from refusing to nominate or from removing agency heads on the basis of partisan or personal bias, especially where the President appears comfortable with a lack of staff.  Nor do these methods block the President from eliminating any departments he sees fit to remove.  However, a heavier legislative hand in appointments could allow Congress to stress the need for expertise and capability in those department heads and agencies that the President maintains.

Contempt of Congress:  While holding non-legislative actors in criminal contempt is a nuclear option, citing executive branch actors for civil contempt may allow the legislature to reclaim the mechanism of congressional oversight, to the extent it has been deteriorated by the executive branch.

Freedom of speech:  “Secret” information is kept from the public not only, or even necessarily, on the basis of reasoned bureaucratic judgment, but also to protect the executive branch from being held accountable for its actions—or even, as Chafetz notes, for the government’s convenience.  Therefore, in order to regain control of agency oversight functions or even to delegitimize imperial or inept presidential behavior, Congress could endeavor to release information in a manner that allows the public to evaluate the executive branch.  Publically sharing and debating this information as well could also guide legislative censure of the President’s actions in the press or directly to constituents.

Internal discipline:  As noted earlier, politics necessarily informs congressional activity, but nonetheless, legislators must use their political power wisely.  In an ideal world, or at least instead of this, Congress might choose to sanction those legislators who unethically (as opposed to in an everyday manner) put partisan politics above or become involved in scandals instead of in the issuance of meaningful law.  Or, Congress might consider informal censure of those legislators found to be acutely dishonest about whether they are motivated more so by an interest in toeing the party the line than by the desire to improve the lives of their constituents, in particular if their conduct disrupts the essential work of the legislature.   Conversely, legislators could exalt their colleagues who vote on legislation in a principled manner.  These expressions of disapproval (and approval) could improve both the operation—by fostering substantive activity in the legislature, by the legislature—and the reputation of Congress. 

Cameral rules:  Finally, Congress could maintain resources and systems that allow it, instead of agencies, to take the lead on forming budgets and drafting legislation. Congress could even eschew leaning on or borrowing agencies’ efforts in lieu of hiring their own experts.  Legislators might exercise these options particularly when they’re concerned that agencies will not act with capability or integrity in the process of shaping legislative initiatives.

* * * * *

Of course, all of this assumes that a large enough majority of Congress could come to view the promulgation of expertise as a value worthy of limiting the President.  More specifically, and to Chafetz’s broader point, the legislature’s very definition of “expertise” may turn on partisanship and the level of public interest in a government run on the basis of a measured and knowledgeable approach.  (That having been said, while an appreciation of expertise may be informed by ideology, its implementation does not necessarily dictate either liberal or conservative policymaking.)  In addition, the push for expertise should not result in extreme outcomes, such as regular government shut-downs, that ultimately exacerbate the problems of an ineffective government.  But if the will is there and the pursuit of expertise is mindful and judicious, Congress has a number of noteworthy options for advancing a norm of competence within the Trump administration. 

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