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05/03/2017

Philip Wallach on "Congress' Constitution" by Josh Chafetz
Michael Ramsey

At Liberty Law Blog, Philip Wallach (Brookings Institution) reviews (mostly favorably) Josh Chafetz's new book Congress' Constitution (Yale University Press, forthcoming 2017):  Congress’s Constitution – If They Can Keep It.  From the introduction:

Our Constitution makes Congress the first branch of government, but the Capitol is today regarded almost as a house of ill-repute, both for the character of its members (not necessarily ours, but theirs) and its general contribution (or lack thereof) to the national well-being.  As a legislature, its primary means of asserting itself must be to pass legislation, but it has become infamously inept in that work in this age of severe polarization and powerful interest groups happy to block changes to a status quo they find lucrative.  Given the apparent permanency of these underlying factors, many observers now see the waning of Congress’s importance as both inevitable and unequivocally desirable.

In his new book, Congress’s Constitution, Cornell legal historian Josh Chafetz persuasively shows that this increasingly fashionable view of Congress is wrong: historically ignorant of the ways in which Congress and its legislative predecessors have asserted themselves, and normatively oblivious to the importance of such assertions in the overall constitutional scheme of separated powers.  Chafetz shows how Congress’s powers go well beyond legislation. They encompass the “hard” (coercive) powers of the purse, personnel (both through advice and consent and impeachment), and contempt, as well as the “soft” (attractive) powers often seen as mere housekeeping details but actually crucial to regulating the terms of political debate, disciplinary powers over members, and cameral rule-making powers.  Together these powers furnish Congress with “a potent toolbox” it has historically shown the ability to use “judiciously” to gain the public’s trust, though by no means has it always done so.

And from the more critical part:

Chafetz is less effective, however, in meeting the more general challenges of justifying Congress and explaining how it might recover some of the legitimacy it has clearly lost in recent years.  As a closing chapter, he offers a rather clipped brief in favor of Congress’s importance and particular virtues.  He gestures in some promising directions, including defending Congress’s importance to a politics that “is our peaceable means for dealing with deep and persistent conflicts” in a “diverse political community.”  But he is mostly operating on faith here rather than presenting evidence.  As an example of Congress promoting “interbranch deliberation” that usefully educates the public, he points to Congress’s performance in the confirmation hearings of Robert Bork, without addressing clearly what makes an argument a useful one, or what cost in terms of heightened partisan animosity might be worth paying for the benefit of a robust political debate.

Chafetz avoids undertaking a sustained assessment of why Congress is failing to live up to its best self, and that is a shame.  He rightly points out that we have seen Congress rather meekly acquiesce in the diminishment of funds subject to annual appropriations, thereby ratifying a major shift in the constitutional balance of power—but does not probe the sources of that meekness.  He could well have added that by increasingly relying on continuing resolutions, rather than passing annual departmental appropriations,  Congress’s abdication has become even more nearly complete, and the discipline that its power of the purse is supposed to provide is a distant memory. He does not much consider whether the incentives facing individual representatives may have shifted over time, thereby making it less likely that the legislators of the 21st century will play the constructive, combative role he envisions.  And, having bracketed off Congress’s legislative function at the outset of the book, he does not return to it in his big picture thinking about Congress, which is a bit frustrating.  It would have been nice to see Chafetz engage the work of one of his mentors, Guido Calabresi, who in A Common Law for an Age of Statutes tried to envision ways in which Congress and the courts should be adapting our system of separated powers to a governing regime made qualitatively different by many decades of legal accumulation.

And here is the book description from Amazon:

Congress is widely supposed to be the least effective branch of the federal government. But as Josh Chafetz shows in this boldly original analysis, Congress in fact has numerous powerful tools at its disposal in its conflicts with the other branches. These tools include the power of the purse, the contempt power, freedom of speech and debate, and more.

 Drawing extensively on the historical development of Anglo-American legislatures from the seventeenth century to the present, Chafetz concludes that these tools are all means by which Congress and its members battle for public support. When Congress uses them to engage successfully with the public, it increases its power vis-à-vis the other branches; when it does not, it loses power. This groundbreaking take on the separation of powers will be of interest to both legal scholars and political scientists.
 
I would say, in response to the book description -- for which Professor Chafetz surely isn't responsible -- that there is nothing inconsistent in (a) Congress being the least effective branch, and (b) Congress having ample tools at its disposal.  As the review implies (but I would also say -- and have said -- more strongly): Congress needs to get its act together for the sake of separation of powers.
 
RELATED:  Via Volokh Conspiracy, President Trump criticizes the filibuster (in an interview with Martha MacCallum):
 
[TRUMP:]  We don’t have a lot of closers in politics and I understand why. It’s a very rough system, it’s an archaic system. You look at the rules of the Senate, even the rules of the House, [but] the rules of the Senate and some of the things you have to go through, it’s really a bad thing for the country in my opinion.

There are archaic rules and maybe at some point, we’re going to have to take those rules on because for the good of the nation things are going to have to be different. You can’t go through a process like this. It’s not fair, it forces you to make bad decisions. I mean, if you’re forced into doing things that you would normally not do except for these archaic rules, so

[MARTHA] MACCALLUM: Like what, how would you change them?

TRUMP: Well, you know, you look at the voting and you look at the filibuster system. And it used to be. You know, I always thought of filibuster where you stand up and you talk all day and then somebody else–

MACCALLUM: You don’t have to do that anymore.

TRUMP: No, you don’t have to do it anymore. Today you say filibuster guys sit home and they watch television or whatever they do. I think, you know, the filibuster concept is not a good concept to start off with but if you’re going to filibuster, let somebody stand up for 20 hours and talk and do what they have to do or even if they are reading comic books to everybody, let them do it but honestly, the whole with so many bad concepts in our rules and it’s forcing bad decisions. I really see. I see just — I’ve seen this — I’ve seen it over the years where bad decisions are made, decisions that nobody wanted are made because of archaic rules and that’s something that I think we’re going to have to change.

Agreed, except I think the President is mistaken on two points.  (1) Eliminating to filibuster (and similar reforms) is not necessarily in the President's (or the presidency's) long-term interest.  It will make Congress stronger as compared to the President.  That's why it should be supported in the interest of separation of powers.  Sometimes it may help the President get what he wants, but that's not the reason to support it.  (2) As he acknowledges toward the end of the remarks, it's wrong to attribute Congress' current underperformance to "archaic" rules.  The rules, and the way they are implemented,  are not longstanding ones, other than in name.