Congress's Constitution.

• Author: Chafetz, Josh

Congress has significantly more constitutional power than we are accustomed to seeing it exercise. By failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. This Article considers a number of constitutional tools that individual houses--and even individual members--of Congress, acting alone, can deploy in interbranch conflicts. Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set of tools in an ongoing interbranch power struggle. This holistic perspective is necessary, because these powers in combination are much greater than the sum of their parts.

Borrowing terminology from international relations scholarship, this Article groups the congressional powers under discussion into "hard" and "soft" varieties. Congressional hard powers are tangible and coercive; the hard powers discussed in this Article are the power of the purse and the contempt power: Congressional soft powers are intangible and persuasive; soft powers considered by this Article include Congress's freedom of speech and debate, the houses' disciplinary power over their own members, and their power to determine the rules of their proceedings. Each of these powers presents opportunities for Congress to enhance its standing with the public, and thereby enhance its power. This Article aims to demonstrate both the ways in which these powers are mutually supporting and reinforcing and the ways in which Congress underutilizes them. In doing so, the Article examines a number of examples of congressional use of and failure to use, these powers, including the release of the Pentagon Papers, the 1995-1996 government shutdowns and 2011 near-shutdown, the 2007-2009 contempt-of-Congress proceedings against White House officials, and the use of the filibuster, among others.

The Article concludes by arguing that Congress should make a more vigorous use of these powers and by considering their implications for the separation of powers more generally.

INTRODUCTION I. HARD POWER A. The Power of the Purse B. Contempt II. SOFT POWER A. The Freedom of Speech or Debate B. Internal Discipline C. Cameral Rules III. THE SEPARATION OF POWERS AND CONGRESS'S PROPER PLACE. A. The Desirability of Congressional Self-Assertion B. The Possibility of Congressional Self-Assertion CONCLUSION INTRODUCTION

It is commonplace to hear commentators (often, but not always, of the conservative persuasion) decry the growth in power of the judiciary over the course of the twentieth- and early-twenty-first centuries. (1) It is also commonplace to hear commentators (often, but not always, of the liberal persuasion) decry the growth in presidential power over that same period. (2) And there has been no shortage of suggested means for curbing the power of these purportedly bloated branches. Advocates of limiting judicial power have suggested everything from jurisdiction stripping (3) to minimalist or highly constrained interpretive methods (4) to eliminating judicial review entirely. (5) Advocates of limiting executive power have suggested everything from inculcating greater degrees of presidential virtue (6) to prosecuting executive branch officials for abuses of power (7) to rewriting Article II of the Constitution. (8) Reading these various proposals, one might be forgiven for lamenting the absence of a third branch, whose "[a]mbition [might] be made to counteract [the] ambition" of the other two. (9)

Of course, it wasn't always thus. The colonial experience with overly powerful executives (10) and judges answerable only to a distant crown (11) led to the creation of almost unfettered legislatures in the early Republic. (12) After only a decade of experience with such legislatures, Madison, among many others, concluded that "[t]he legislative department is ever/where extending the sphere of its activity and drawing all power into its impetuous vortex." (13) And although fears of both an imperial President (14) and an overreaching judiciary (15) began early, there have been periods of American history in which the great constitutional fear was of an overly powerful Congress. (16) It is, however, safe to say that we are not currently living in such a period--nor have we been for some time, nor do we show any signs of moving in that direction.

If any proof of this fact is needed, consider the closing years of the George W. Bush Administration, from January 2007 to January 2009. (Indeed, pause first to consider what it means that we tend to tell political time by presidential administration, rather than by congressional term. For the record, the period under discussion is the 110th Congress.) In the 2006 midterm elections, the Democrats had wrested control of both houses from the Republicans, picking up thirty House seats and six Senate seats. (17) What's more, they did so without losing a single seat that they controlled prior to the election, marking the first time in American history that a party successfully defended every one of its congressional seats. (18) President Bush himself characterized the results as "a thumpin'" for his Republican Party. (19) Between January 2007 and January 2009, every national opinion poll found a net disapproval rating for President Bush of between sixteen and fifty-six percent. (20) That is to say, the most positive poll from Bush's point of view over this two-year period found that 38% approved of the job he was doing and 54% disapproved; (21) the least positive poll found that a mere 22% approved, while 78% disapproved. (22) But while this period of extreme presidential unpopularity (23) coincided with increasing judicial confrontation with the Administration, (24) one is hard-pressed to think of ways in which Congress became increasingly confrontational. Indeed, as we shall see later, in the one minor confrontation between the executive and Congress during these two years, Congress declined to use many of the tools available to it. (25) In short, during a time in which the political conditions were maximally favorable to Congress and in which both houses were controlled by members of the party that did not control the White House, Congress nevertheless played the constitutional shrinking violet.

At this point, the perceptive reader may be asking what, realistically, Congress could have done. After all, President Bush still had veto power over any legislation meant to check him, and it seems unlikely that his opponents in Congress could have mustered the votes to override a veto. But to cast congressional power entirely in terms of legislation is to significantly understate the scope of Congress's powers under the Constitution. This Article will highlight a number of ways in which individual houses, and even individual members, of Congress, acting alone, can begin to restore some measure of constitutional equipoise.

To borrow terminology from the international relations literature, we can think of these congressional powers as coming in both hard and soft varieties. Hard power is, quite simply, "the ability to coerce." (26) In the international arena, a nation's hard power is "usually associated with tangible resources like military and economic strength." (27) Soft power, by contrast, is "the ability to get what you want through attraction rather than coercion or payments." (28) In foreign affairs, it "arises from the attractiveness of a country's culture, political ideals, and policies. When our policies are seen as legitimate in the eyes of others, our soft power is enhanced." (29) A nation neglects its soft power resources at its own peril in the international sphere. (30)

An institution neglects its soft power resources in the domestic sphere at its own peril as well. In many cases, the American Constitution deliberately "leaves not simply the resolution of substantive issues, but also the resolution of the meta-question as to the proper site of resolution for those issues, to constitutional politics." (31) In doing so, it embodies a judgment that government will be better when the constitutional structure creates the opportunity for interbranch tension and conflict. (32) This space for conflict allows the branches to compete publicly for the affections of the people in a manner that increases representativeness, reduces the risk of one branch asserting tyrannical control over the nation, and promotes healthy deliberation as to the public good. (33) Part of that process of competition must involve a deliberative engagement with the citizenry--that is, each branch must make its case in the public sphere. (34) And this is where each branch's soft power must come into play. A branch that consistently loses the public relations war will find itself consistently losing power. (35)

The remainder of this Article, then, will be devoted to tracing those powers--both hard and soft--that individual houses, and even individual members, can use in interbranch conflicts. Many of these powers have received only scant treatment in isolation; they have never before been grouped and conceptualized as a set of tools in an ongoing power struggle between the branches. (36) This is an essential point, for these powers taken together are more than the sum of their parts. If viewed in isolation, some will appear too weak; others will appear so strong that it is hard to imagine Congress resorting to them with any frequency; still others will appear easily evadable by the other branches. But if these powers are viewed as mutually reinforcing, then it becomes clear that Congress has a range of options from which to select the appropriate tools to deal with any separation-of-powers controversy. My claim, then, is not that I have unearthed a set of congressional...