//  8/25/17  //  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.

By Mark Graber, University System of Maryland Regents Professor, UM Carey Law School

Josh Chafetz’s wonderful Congress’s Constitution: Legislative Authority and the Separation of Powers has remarkable affinities with Richard Neustadt’s classic Presidential Power.[1]  To be sure, these works seem quite different.  Chafetz spends page after page elaborating the tools of congressional power, from the power of the purse to the power to control legislative proceedings.  Congress’s Constitution belongs on every constitutional lawyer’s bookshelf as the authoritative account of how the constitutional powers of the national legislature developed.  Neustadt, in contrast, scorned formal powers.  His concern was how a president could “make those powers work for him” (xx).  Nevertheless, while Congress’s Constitution devotes far more energy than Presidential Power to the instruments of authority, Chafetz comes to a Neustadtian conclusion.  “Congressional authority at any particular historical moment,” he states “is in part a function of the success or failure of Congress’s public engagement in past historical moments and in part a function of how adroitly congressional members and leaders make use of historical reservoirs of authority in the present to create a future congenial to them” (314-15).  Richard Neustadt would wholeheartedly approve.

Congress’s Constitution and Presidential Power work within similar theories of power and political development, though neither self-consciously develops a theory of either.  Both texts treat power as a function of who wins particular struggles.  Congress successfully exercises power when defeating a presidential nominee for the lower federal courts.  Presidents successfully exercise power when persuading others that their interests are best served by carrying out the president’s agenda.  Effective exercises of congressional and presidential power are the primary drives of political and constitutional development.  Congress gained power when Henry Clay improved congressional capacity for governance and lost power when Newt Gingrich led an ill-advised governmental shut down.  Presidential power ebbed under James Earl Carter and strengthened under Ronald Reagan because the latter was better able to wield the tools of presidential power than the former.

Congress’s Constitution is a masterpiece when viewed from these conceptual lens, which are the conventional conceptual lenses of political science and academic law.  Chafetz lovingly details the history of the powers Congress may use to exercise authority, highlights the effective and ineffective use of those powers, elaborates their contemporary constitutional status, and sets out the most important interpretive questions that remain open for constitutional dispute.  Congress’s Constitution explores how Congress may directly check the president, such as by exercising constitutional powers over appointment and removals, and how Congress may gain institutional leverage more generally by exercising such constitutional authority over cameral rules to improve legislative functioning.  The text contains historical nugget after historical nugget—all of which are weaved together to tell a compelling story of the ebbs and flows of legislative power from medieval England to Donald Trump’s America.  Readers will learn of the struggle over legislative control of the Speaker of the House, which was crucial to legislative efforts to check the executive, and the battles to exercise some control over the burgeoning administrative state.  Scholars teaching and writing on the separation of powers will find Congress’s Constitution an invaluable source of basic information about the development and exercise of contemporary legislative powers.

Congress’s Constitution is an important check on claims that the United States has become a presidential dictatorship. Chafetz details how both in times of divided and unified government, Congress has the tools and exercises those tools to check the President.  Democrats refused to confirm several of President Obama’s nominees even during the two years when the Democrats in the Senate enjoyed a filibuster-proof majority.  The Republican majority in the Senate forced the second President Bush to trim the excesses of his administration’s enhanced interrogation program.  Members of Congress, Chafetz cheerfully acknowledges, often support presidents of their party, but they have historically been more than willing to oppose—and oppose successfully—presidential programs they think unwise or that trench on their legislative turf.  The ebbs and flows of congressional power reflect how effectively members of congress wield power (and, Neustadt would remind us, how effectively presidents wield power) rather than any inherent weaknesses in legislative capacity.  Chafetz writes, “the authority possessed by political actors is neither static nor determined by something outside the process of politics.  Rather, political power is, to a large extent, a consequence of political behaviors and interactions.”

Rival traditions in political science offer different conceptual lens for looking at congressional and presidential power.  One tradition conceptualizes power in terms of agenda control rather than specific outcomes, what Peter Bachrach and Morton Barach label as the second face of power.[2]  This perspective focuses on what presidents and members of congress are disputing rather than the outcome of their disputes.  Presidents, in this view, have more power when separation of powers disputes are over whether a president may remove a member of an agency at will, no matter what the outcome of that debate, then when the dispute is over whether the president may empower that agency to make public policy.  A related tradition, associated with Karen Orren and Stephan Skowronek,[3] treats political development in terms of “durable shifts” in institutional practices that particular individuals have only a limited capacity to control or reverse.  To take an obvious example, while presidents and members of congress may adjust more or less successfully to globalization, neither the Congress nor the President can control to a substantial degree the economic, technological, and political forces responsible for globalization.

Stephen Skowronek’s The Politics Presidents Make: Leading from John Adams is a justly acclaimed study of presidential power from this more impersonal developmental perspective.  Skowronek maintains that presidents assume office at different points in developmental cycles, which he calls presidential time.  Presidential capacity is largely determined by their place in the developmental cycle rather than by their skill at exercising the prerogatives of office. Presidents who take office when their coalition is in a state of permanent decay are inevitably failures.  Presidents who take office when resistance forces have collapsed from internal weaknesses are often successful.  Abraham Lincoln was a more successful president than Franklin Pierce, Skowronek claims, because Lincoln wielded presidential power at a time when presidential power could be successfully wielded, not because Lincoln was a more effective powerholder than Pierce. 

Congressional power, as well as presidential power, seems influenced by economic, technological, and political forces that individual members of Congress or the membership of any particular Congress have only a limited capacity to control.  Four developments, in particular, have altered the terrain on which different governing institutions in the United States compete for authority.  The first is the development of the administrative state, which along with industrialization, has in many arenas has changed the congressional role from making policy to overseeing executive policy.  The second is rise of what Jeff Tulis calls the rhetorical presidency, presidents with increased willingness and technological capacity to go over the head of members of Congress and speak directly to their constituents.  The third is the transformation of the American political system from a contest between two ideologically diverse parties to two ideologically polarized parties, a development which increased the incentives for legislative members of the president’s party to support the president when executive actions trenched on their institution’s prerogatives.  The fourth is the permanent military-industrial complex combined with the emergence of the United States as a world power, which increases opportunities for presidential authority, while weakening conventional legislative restraints on the president. 

Rebecca Thorpe in The American Warfare State: The Domestic Politics of Military Spending explains how secular developments change political agendas without ending disputes between the different elected branches of the national government.  During the nineteenth century, presidents contemplating military adventures had to go to Congress for the necessary troops and weapons.  James Polk moved troops to the Rio Grande when precipitating the Mexican War.  He could not have invaded Mexico unless Congress voted to expand and supply the army.  By the end of the twentieth century, Thorpe details, presidents contemplating repeating “Mr. Polk’s splendid war” no longer faced Polk’s constraints. 

The United States from World War II to the present has an enormous military establishment fully stocked with the weapons necessary to engage in any form of combat anywhere in the world.  If President Trump wishes to bomb North Korea, he no longer has to ask Congress for the funds to pay the pilot, buy the bomber, and produce the weapons.  These sharp increases in presidential capacity to engage in foreign military adventures have changed the subject-matter of disputes between the president and Congress over war powers, even as particular disputes remain a constant feature of the constitutional landscape.  What we miss when our analysis is limited to documenting particular disputes and particular winners of those disputes is that inter-branch conversations about presidential war power change dramatically when the president already commands the troops and weaponry necessary for engaging the military in hostilities abroad.

Chafetz is no doubt as skilled as my former teacher David Mayhew at debunking broad theories of American politics that rely too heavily on impersonal drivers of political development (Mayhew was terrifying in graduate seminars).  Congress’s Constitution documents how very human decisions from Charles II’s stubborn refusal to compromise to various uses of the nuclear option in Supreme Court confirmation decisions have had lasting and durable influence on the American constitutional regime.  This book, as I have emphasized, belongs on the shelf of every student of American constitutionalism and politics, no matter what face of power they explore and what kind of development stories they tell. 

Still, if the political universe is not as out of human control as some theories of American constitutional development suggest, the world is not quite as fully controlled by individual presidents and members of Congress as much literature on American politics suggests.  I suspect, given his general functionist approach, that Chafetz would be happy with the conclusion that Congress has considerable tools to influence public policy—and that how effectively Congress may use those tools depends in part on the skill with which they are exercised, but also on more durable features of the times in which they are exercised.

[1] Reissued as Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (The Free Press: New York, 1990).

[2] Peter Bachrach and Morton Baratz, “Two Faces of Power,” 56 American Political Science Review 947 (1962).  A third face of power concerns socialization.

[3] See Karen Orren and Stephen Skowronek, The Search for American Political Development (Cambridge University Press: New York, 2004).

The Real Problem with Seila

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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

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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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