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.
Constitutional law is a field saturated with commentary. It is hard to say something new about something this old. Josh Chafetz’s new book manages to say something both original and entertaining. When I talked to Josh about the book, I loved what I heard. When I looked at the manuscript, I loved what I read. When I glimpsed this book on my doorstep, I loved what I saw. My concern is that he—and others—studying constitutional law continue to focus too much on what federal officials do, and not enough on what they say. When our system makes it difficult for federal officials to act, so much of their power comes instead from what they say. There needs to be a separation of microphones just as much as a separation of powers, and Congress does not understand the microphone that 2017 requires.
First, I want to address why Josh’s book is such a big deal. It occupies a crucial but neglected intellectual space both in what it studies and how it studies it. Constitutional law has always been and remains preoccupied with the study of judicial behavior. Since—or maybe before—Chief Justice John Marshall said in Marbury v. Madison that “[i]it is emphatically the province and duty of the judicial department to say what the law is,” it has been emphatically the province and duty of scholars to concentrate on the judicial branch. The rise of the imperial presidency eventually led scholars to focus on the executive branch as well, even if less so.
Congress has largely remained a topic of study for those not engaged in the study of constitutional law. Political scientists tend not to study rules, and when they do study rules they tend to study the internal rules governing congressional behavior rather than the constitutionally-derived rules that Josh examines. Law professors interested in “popular constitutionalism” a decade ago tended to focus on social movements and not legislative behavior. There are exceptions to all of this, but this is a fairly accurate statement of the rule.
How can we possibly understand the Constitution without understanding how one of the three branches uses it and abuses it? How can we possibly understand Congress without understanding how it treats the Constitution? Josh’s book is the best and most systematic attempt to understand “Congress’s Constitution” that exists.
Josh also studies Congress’s Constitution from a number of complimentary and compelling perspectives. He is a law professor, so he examines formal texts and arguments from the perspective of consistency and precedent. He is a political scientist, so he looks at these legal arguments in their political context. He is a journalist, so he also makes law and politics fun and easy to understand.
My concern, however, is that the focus of the book on hard powers and soft powers relatively deemphasizes when Congress uses no powers. It is very difficult in our fragmented political moment for Congress to utilize either the hard or the soft powers that Chafetz helpfully labels and explains. The Constitution makes utilization of some of the hard powers that Chafetz identifies—the power of the purse and the personnel power, for instance—quite expensive. Legislative and other rules make another hard power (the contempt power) and some soft powers (internal discipline, cameral rulemaking authority) expensive to utilize as well. Polarization across the parties and the power that minority parties have in the Senate—and even (though less so) in the House—generate political transaction costs that add to the transaction costs generated by constitutional and legislative rules. During the Trump Presidency, polarization within the parties has only added to these transaction costs within Congress. This suggests that understanding what Congress does—and what the federal government does generally—should also involve looking beyond powers to other sources of influence. Since action has become so expensive, influence is more likely to come from elsewhere.
Consider, for instance, the experience of the first seven-and-a-half months of the Trump Administration. I tend to side with Jack Goldsmith and believe that while some powers have been used by the Trump Administration to take horrible actions, the worst so far in terms of actions has been avoided. But damage has nevertheless been done, often by what President Trump has said. Consider, for instance, his reaction to the violence in Charlottesville. The existential harm he did from those statements is found nowhere in the Federal Register or the United States Code.
The problem, simply put, is that Congress has been unable to keep up now that so much of the Constitution is about talking rather than about doing. The past generation has featured social scientists around the world talking about the presidentialization of politics everywhere—in parliamentary systems and presidential systems, in new democracies and old democracies, in the North and the South, the East and the West. While these scholars have offered many reasons why legislative bodies are losing to executive bodies everywhere, let me offer an additional reason why: Congress does not talk well.
Running for President and being elected as President of the United States is—for better or for worse—one of the most small-d democratic experiences the world has ever known. Primary elections are intensely competitive, as are general elections. Lots of people are considering running and whoever does run must appeal to hundreds of millions of people. This attracts into presidential politics those who have an interest in and capacity for communicating to many, many Americans—like someone who hosted the television show The Apprentice. This also rewards candidates who learn how to navigate today’s informational environments. Trump won because he knew how to get his name and message out there. His success in getting cable television and social media to fixate on his every move defines his presidency.
Rather than the singularity of the executive branch that dominates the discussions of contrasts between the President and the Congress, the informational environment features many members of a presidential candidate’s staff and then of the President’s staff. Kellyanne Conway was everywhere, then Anthony Scaramucci was, with others in between, and sure more to come after that. They were the latest, but not the first. James Carville was everywhere, and so was Karl Rove and then David Axelrod. Say what you will about the unitary executive in theory, but in the media the executive is anything but unitary—and that is part of why the media is saturated with one branch.
What about Congress? You hardly hear about them at all unless you follow politics rather closely. I was outraged about Charlottesville and the President’s reaction to Charlottesville, and watched television and social media coverage extensively, and yet I never heard from Senator Charles Schumer or Representative Nancy Pelosi.
Schumer and Pelosi were not attracted to their positions and were not rewarded in their positions for their ability to get their message out there the same way presidents are. They speak the dry language of Congress, not the fun language of Twitter. Almost everyone in Congress does not have to figure out how to appeal to many—let alone hundreds of millions—of Americans to get or keep their job. They have safe seats rather than competitive ones. Schumer and Pelosi can speak the dry language that appeals to law professors like myself, not the more accessible language that appeals to CNN, MSNBC, Fox News, and social media. Schumer and Pelosi are masters of the backroom deal, not of being in front of the camera.
Congressional staff have nowhere near the media presence of executive branch staff. As Aziz Huq and I have written, Congress struggles to attract quality stuff because it pays less than the executive branch and does not offer the power to write regulations. Lost in this equation is something else: congressional staff cannot generate the delayed compensation that executive branch officials generate after they leave office because of their media celebrity. Carville, Rove, Axelrod—and yes, now Conway and Scaramucci—will be very rich people forever because of the microphone they created for themselves when talking about the executive branch. Congressional staff are even more outgunned in the media relative to executive staff than are members of Congress relative to the President. Who is Schumer’s Conway? Pelosi’s Scaramucci?
Congress can never adequately take advantage of the toolbox that Josh’s book foregrounds unless this is changed. One member of Congress willing to go on Twitter and speak the language of regular people—civilized and polite regular people, but regular people nevertheless—will do more to invigorate the separation of powers than will 535 members of Congress constantly referencing the formal powers that they have been granted.