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Congress’s Constitution

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4 Responses

  1. TJ says:

    I think this is a really interesting project, and your general point makes a lot of sense to my eyes. But one quibble on your last point. I think most people’s preferences run in the following order:

    1. Checks for the other side but not for my side.
    2. Checks for both sides.
    3. No checks for either side.

    The tension between (1) and (2) is longstanding. But it would be a mistake to infer from convenient switches in time to say that liberal critics of executive power were only acting for partisan purpose. Rather, it was that they had an easier time back then because their partisan druthers were aligned with their legal druthers, and now those are in conflict.

  2. Josh Chafetz says:

    Thanks, TJ! I certainly did not mean to suggest that anyone was acting solely from partisan motives. And, as I argue in the paper, just because Congress has certain powers does not mean that every use of those powers is wise or good. Indeed, injudicious use of power tends to diminish future soft power, as it gives other actors the opportunity to argue in the public sphere that Congress cannot be trusted. (That’s why I suggested in the post that proponents of limiting executive power should offer the current House leadership “at least one cheer” — not necessarily three.) One could favor vigorous congressional checks on the executive and yet still think that the current House is using those checks in pursuit of wrongheaded policies. What concerns me, however, is when people who previously favored checks on executive power suddenly start questioning the legitimacy of the checking mechanisms, rather than accepting that the tools are legitimate but are being used to bad ends.

    Or, to put it somewhat differently, in a polyarchic political community, your option (1) is rather unrealistic — there is no permanent majority that can institute checks on the “other” side while keeping itself unconstrained. (And, I would add, that’s a good thing!) Astute political actors and theorists, recognizing this fact, should avoid undermining the mechanisms of (2), so as to ensure against getting stuck with (3).

  3. Joe says:

    “or did they simply want more checks on the Bush Administration”

    I’m not sure how much the near shutdown did to address the “imperial presidency.” The czars thing was trivial in scope. Granted, Congress there how power of the purse, but how did it do much at all about the imperial presidency? Targeting a few so-called czars, including those not even there any more, is barely worth a Bronx cheer. (I’m from there, it’s okay.)

    It’s granted that many people are more concerned when someone they oppose on a partisan level or otherwise (such as thinking them incompetent) as compared to executive power as a whole. Me personally, I want more checks on the imperial presidency, consistently (as best we can) applied.

    Anyway, it’s a good subject — the attention given to it in blogs and elsewhere aside, many do not realize the various ways Congress (or even certain groups there) can exert power over the other branches (including the courts, e.g., by delaying confirmations) and the result is that responsibility is not properly handed out at election time and elsewhere.

  4. mls says:

    Josh-I enjoyed your article, which as usual makes an important contribution to the study of Congress’s place in the constitutional scheme. My comments are rather long so I will send them to you by email. Basically, (1) I agree with your concerns regarding how Congress enforces its demands for information, but I think that it needs better internal mechanisms to channel information disputes toward the best enforcement alternative, (2) I agree with the need to improve ethics enforcement, but i think that this is a very heavy lift that is not all that likely to enhance Congress’s standing vis a vis the President, and (3) I do not agree that the filibuster reduces the power of the Senate.

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