How Long Is History's Shadow?

• Author: Krishnakumar, Anita S.
• Position: Book review

Congress's Constitution: Legislative Authority and the Separation of Powers

BY JOSH CHAFETZ

YALE UNIVERSITY PRESS, 2017

BOOK REVIEW CONTENTS INTRODUCTION 883 I. UNDERAPPRECIATED 885 CONGRESSIONAL POWERS A. Checking the Executive 885 l. The Power of the Purse 886 2. The Personnel Power 892 3. The Speech or Debate Power 894 B. The New Marbury v. Madisons 897 II. SOME OBSTACLES TO REHABILITATING 904 CONGRESS'S POWERS A. "Sticky" Historical Developments and Precedents 907 1. The Power of the Purse 910 2. The Personnel Power 91s 3. The Speech or Debate Power 920 B. Partisanship 923 C. Congressional Shortsightedness 928 CONCLUSION 934 INTRODUCTION

Josh Chafetz's Congress's Constitution opens with the observation that it is, and long has been, in vogue to question the value of Congress--calling it dysfunctional, "the broken branch," lamenting its seeming inability to make law. (1) Chafetz quickly takes issue with such criticisms, arguing that they focus narrowly on Congress's power to legislate and ignore numerous nonlegislative powers that the Constitution confers on the first branch. The book's project is to illuminate these other, nonlegislative powers--which Chafetz argues have been underappreciated by scholars and commentators--and to demonstrate how such powers give Congress significant ability to "assert itself vigorously" against the other branches. (2) Chafetz's approach is historical and rich in political context. He urges that if we examine Congress's nonlegislative powers historically, we will see that Congress (as well as the British Parliament and colonial assemblies before it) has, through a combination of design and judicious execution, served as a powerful counterweight to the other branches on numerous occasions. Moreover, the history reveals that over the years, Congress has unwisely ceded to the other branches many powers that it once exercised vigorously.

Congress's Constitution is more, however, than just a reference guide for the origins and historical evolution of Congress's nonlegislative powers. Its central thesis is that Congress should more forcefully rehabilitate and exercise its non-legislative powers. Chafetz makes the case that it is in Congress's best interests as a coequal branch to revitalize these powers--that doing so would enhance Congress's legitimacy with the public, and that it is consistent with the constitutional design for Congress to assert itself more robustly against the other branches. Ultimately, Chafetz posits that whether Congress can successfully recapture its ceded powers will depend on its ability to persuade the public to its side. (3) He contends that the tools given to Congress in the Constitution merely set the stage, forming the basis for making Congress's case to the public, and that it is public support that ultimately determines whether Congress can successfully check the executive or judicial branches. (4)

Congress's Constitution is an impressive and important book. It provides perhaps the most authoritative account to date of how the constitutional powers of the legislative branch developed--as well as the effective and ineffective use of those powers, their contemporary constitutional status, and the most significant interpretive questions that remain open for constitutional debate. I have great admiration for Chafetz's historical analysis and his bold, optimistic vision of congressional power. Like Chafetz, I am a supporter of Congress and am predisposed to see virtue in its ability to act as a meaningful counterweight to the President and the courts. And I am perhaps peculiarly fascinated by Congress's arcane procedures, history, and rules, as manifested by my own earlier work on congressional procedure. (5)

But once Chafetz moves beyond the historical account, I harbor some skepticism about both his specific recommendations and Congress's ability to reclaim or rehabilitate its powers in the manner he advocates. I also part company, reluctantly, with Chafetz's idealistic faith in Congress to rise to the occasion and reclaim its rightful authority. I foresee at least three potential obstacles: (1) some of the powers Chafetz describes read like ancient history--the record of an era of legislative governance that has long since passed and that subsequent political events have transformed, perhaps irreversibly; (2) Chafetz ignores or undersells important dynamics, such as partisanship, that may make Congress itself less likely to want to exercise its dormant powers and the public less likely to accept modern congressional attempts to aggressively exercise those powers; and (3) Congress as an institution may not have the integrity or farsightedness to look past what it "wants in the moment" (6) and consider what will benefit it as an institution. Indeed, Congress may not care as much as Chafetz or other academics do about preserving its own traditions and history.

This Review proceeds in two Parts. Part I is descriptive: it outlines several of the underappreciated nonlegislative powers that Congress's Constitution examines and notes Chafetz's recommendations for how Congress should reinvigorate them going forward. Part II then argues that some of the powers Chafetz recommends reinvigorating may be difficult to revive as a practical matter, and that some should not be revived even if it would be practically feasible to do so. Specifically, Part II notes that historical developments--including changes to the congressional budget process, the professionalization of the civil service, and power grabs by other branches--have dramatically altered the political landscape. (7) It may be too late, and in some cases undesirable, for Congress to exercise its latent powers in the manner of Parliament versus the Stuart Crown, or colonial assemblies, or even Congress itself during Reconstruction. Part II also considers how partisanship, the polarization of the voting public, and congressional shortsightedness may impact both Congress's willingness to exercise some of its powers robustly and the public's perception of Congress if it chooses to do so.

1. UNDERAPPRECIATED CONGRESSIONAL POWERS

   This Part provides an overview of the institutional resources and nonlegislative powers that Congress's Constitution argues the legislature can and should use to exercise substantial influence over the other branches. Chafetz's underlying theme is that Congress has ceded its constitutional authority to the other branches and should recapture that authority by revitalizing its nonlegislative powers and being more "judicious" in its use of them. (8) Section A discusses non-legislative congressional powers that historically have been used to check the executive branch. Section B explores powers that Congress has ceded to the judiciary or, perhaps more accurately, that the judiciary has seized from Congress in cases that can be viewed as modern-day Marbury v. Madisons--in that they wrest power from the political branches for the judiciary. (9)

   1. Checking the Executive

      This Section summarizes how Congress's Constitution treats three underappreciated powers that serve as a check on the executive branch: the power of the purse, the freedom of speech or debate (and specifically the freedom to leak classified information), and the personnel power. A fourth power that has traditionally served as a check on the executive branch, the power to punish contempts, is discussed in Section B because it is also a power that Congress has ceded to the judicial branch. Section B also examines Congress's internal discipline power, which likewise has been ceded to the judiciary. As Congress's Constitution reveals, Congress and its predecessors have vigorously deployed each of the powers discussed in this Section at various points in Anglo-American history. This Section both reviews the history provided in Congress's Constitution and discusses whether Congress has allowed the power at issue to fall into disuse or has continued to exercise it in recent years. In the former cases, Congress's Constitution tends to recommend that Congress reassert the underused power in the manner formerly employed; in the latter cases, it recommends new applications of the power to counteract the executive branch.

      1. The Power of the Purse

         Chafetz begins with the observation that although Congress's exercise of the power of the purse requires legislative action, appropriations laws differ from other legislation because their annual passage "is necessary to the continued functioning of the entire government" and this "guarantees that, every year, each house of Congress has the opportunity to give meaningful voice to its priorities and its discontentments." (10) I would characterize the appropriations power as a superlegislative power, or one that is not subject to the legislative roadblocks that often derail other legislation, rather than group it together with Congress's non-legislative powers as Chafetz does. But I take Chafetz's underlying point to be that the appropriations power provides Congress with unique and underappreciated opportunities, not present in the ordinary legislative process, to assert itself and to check the other branches. Chafetz focuses on three forms of the appropriations power that Congress historically has used to its advantage: (1) specific appropriations, including riders; (2) zeroing out government officials' salaries to express displeasure with executive policies; and (3) government shutdowns. As with all of the powers examined in Congress's Constitution, he argues that Congress has underutilized these powers, that scholars have underestimated their efficacy, or both.

         Annual legislative appropriations originated in the British Parliament and were tied closely to specific expenditures. (11) In acts analogous to modern appropriations riders, legislatures beginning in the late Middle Ages not only appropriated funds, but also specified how the money was to be spent--even going so far as...