//  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.

Presidential power will likely go one way or the other in the Trump era.  There is little doubt which way President Trump would like to see it go: up.  Some commentary, however, has begun to pick up on a more hopeful possibility: that by performing a sort of walking reductio ad absurdum on the merits of vesting so much power in one individual, Trump will instead bring about a revitalization of Congress and corresponding diminution of the Presidency.

As Niels Bohr supposedly said, “prediction is very difficult, especially if it’s about the future,” so I won’t pretend to have any sort of crystal ball.  But for those rooting for the second outcome, Josh Chafetz’s impressive and important book Congress’s Constitution could not be more timely.

The book is important, first and foremost, because it highlights the under-appreciated tools apart from ordinary legislation through which Congress can (and does) constrain the other two branches.  Passing substantive laws, to be sure, remains Congress’s core function, and it remains vitally important: witness, for example, the recent debates over repealing the Affordable Care Act.  As Chafetz notes, however, the fact is that Congress often has difficulty disciplining the executive branch through ordinary legislation, for the simple reason that the President will likely veto any bill overturning an initiative or authority he cares about.  The powers Chafetz highlights, particularly those he calls “hard powers”—the power of the purse, the power over offices and appointments, and the power of investigation—are important because they potentially reverse these dynamics, restoring greater power of initiative to Congress.

Congress’s Constitution also offers a useful general framework for understanding how the relative authority of the different branches—and, I would suggest, the state and federal governments as well—may evolve over time, even without any formal change in the constitutional text or governing understandings of it.

Chafetz argues that the branches accrue effective governing power by “engaging” with the public and building trust over time in both their overall institutional authority and their positions on particular issues.  Under this model of separation-of-powers dynamics, Congress might readily accrue more effective governing authority if another branch (just hypothetically) embarrassed itself by offending widely held basic American values and displaying manifest corruption and incompetence.

Finally, Congress’s Constitution is important, in my view, for offering a long view of how key separation-of-powers authorities developed.  A deep history—from the English constitutional background, through the American Revolution and Constitutional Convention, to our two centuries of subsequent practice—underlies key features of our constitutional architecture.  To the extent our system of restrained and law-bound government is a valuable heritage (as I certainly think it is), highlighting the contingencies of its historical development should make us value it more, not less.

Chafetz’s book is impressive and valuable on so many levels that I’m tempted simply to urge Take Care’s readers to buy the book.  For the sake of the symposium, though, I’ll highlight one general problem, relating to the boundary between law and politics in inter-branch conflict, that the book left me wondering about.

Chafetz’s framework for separation of powers, as I understand it, depends on distinguishing what he calls “constitutional politics”—the process of accruing effective governing authority through public engagement—from the “stable, textual constitutional constraints” that structure those politics in the first place.  In Chafetz’s view, the constitutional text provides an essential structure for political competition, but it is “substantially underdeterminate with respect to the separation of powers.”  In reality, he suggests, the branch that more successfully engages with the public, building trust and support for its position, will more likely exercise real decision-making authority in any given instance.  The bulk of Congress’s Constitution is thus devoted to highlighting and clarifying the correct understanding of the various non-legislative powers that Chafetz argues Congress can and should deploy more effectively in inter-branch struggles.

While this account has a great deal of descriptive power, a problem that nagged me throughout is that the boundary between these two categories—“constitutional politics,” on the one hand, and “stable, textual constitutional constraints,” on the other—is often itself politically and legally contested.

To take an example I know well (because I address it in this draft paper), Chafetz correctly highlights Congress’s capacity to control government policy through appropriations limitations.  Yet the executive branch, across multiple administrations, has claimed authority to disregard some such limitations as unconstitutional infringements of executive authority.  Or consider another example I have written about, during the Obama years, the executive branch and some in Congress took widely divergent views on the appropriate scope of executive enforcement discretion.  Much the same thing may be true of other issues, such as war powers, diplomacy, and executive privilege.

On such questions, maintaining a healthy system of separation of powers may depend importantly not just on constitutional politics, in the sense of competition between branches for public trust and effective authority, but on political enforcement of valid constitutional understandings (even if validity in this context depends importantly on past practice and precedent).  The partisanship of our era, however, may be eroding precisely that constraint:  As competition over conflicting substantive policy goals grows more acute, perspectives on separation-of-powers issues have grown increasingly instrumental, with each side typically advocating the view that best advances its goals in the moment.  If this trend continues, the likelihood of a dangerous impasse over the basic rules of the game may well increase.

In this environment, one important contribution that constitutional scholarship can make is to offer objective accounts of the separation-of-powers principles that should structure political competition, no matter which party holds Congress or the presidency.  And in fact, in the course of his analysis, Chafetz takes thoughtful positions on numerous contested constitutional questions.  In some of these conclusions, Chafetz leans a bit more towards Congress than I might—I am not certain, for example, about his views on presidential removal authority or executive privilege.

Even so, simply by articulating a cogently argued view on these questions, and by rooting his positions in historical examples that reach beyond our immediate political conflicts, Congress’s Constitution provides invaluable perspective on the inter-branch fights to come.  For that reason, too, Chafetz has provided a valuable and important scholarly resource for our troubled historical moment.

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.

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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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