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Author: Josh Chafetz

11

Book Buying

Like many law profs, I have a generous research budget from my institution.  And, like many of us, I have a number of competing uses for it — travel, research assistants, research materials, etc.  One thing I try to do every year is ensure that I spend at least 20% of it on university press books.  There are several reasons for this.  One is that — with apologies to the author of the apocryphal Willie Sutton quote — books are often where the ideas and knowledge are.  Another is that my preferred method of reading is pen-in-hand, underlining and making margin notes as I go — something libraries tend (rightly) to frown upon when done in their books.  But the third is that I think that, as academics, we have an obligation to pay it forward, to use our resources to help sustain basic academic and intellectual infrastructure.

In their quest for something approaching a balanced budget, many university presses try to strike a balance, publishing some books that will bring in net revenue to balance out those that definitely will not.  If university presses disappeared tomorrow, the former category of books would still be published; after all, some for-profit publishing house would have the incentive to snap them up.  But the latter category would not.  And the latter category is the source of a great deal of our collected wisdom.  (I have just finished Ernst Kantorowicz’s magisterial The King’s Two Bodies, which is still in print from Princeton; I have trouble imagining that Random House would have published it.)  So the question for any university press will naturally be how much they can afford to subsidize the worthy money-losers.

Buying university press books — whether it’s the money-making kind or the money-losing kind — helps subsidize the publication of a larger number of worthy books at lower prices.  And this is good for all of us in our roles as both producers and consumers of scholarship.  It is also good for our colleagues in disciplines where books have higher production costs (because, for example, they need illustrations) and smaller potential audiences (because, for example, the field is simply smaller than law), concerns to which being married to an art historian has made me especially attentive.  We are, after all, part of a larger university and academic community, as well as our law school communities.

So, for those of you lucky enough to have generous research budgets, I hope you’ll join me in setting aside some portion for buying university press books.  It is, after all, unusual that we can feel virtuous for purchasing something that we really wanted to have, anyway!

4

The Filibuster, Executive Power, and the President’s Power to Adjourn Congress

It is no secret that the use of the filibuster has grown substantially in recent years.  (I documented the growth at pp. 1008-11 of this article.)  In the new issue of CQ Weekly, Ben Weyl notes yet another expansion of the filibuster:  Senate Republicans are currently filibustering Richard Cordray’s nomination to head the Consumer Financial Protection Bureau (CFPB), not because they have any particular objection to him, but simply because they want changes in the underlying law (Dodd-Frank).  As Weyl’s article relates, Sen. Sherrod Brown noted at a Senate Banking Committee hearing that the Senate historian could not remember another instance of this occurring.

One major effect of the filibuster is to expand presidential power, as I argue at pp. 41-47 of my new article draft.  In the case of substantive legislation, this means that more gets done via regulation than legislation — consider the number of EPA regulations dealing with global warming (nicely documented by Jonathan Adler in this article (link is to a PDF)) — after the Senate filibustered the cap-and-trade bill that passed the House in 2009.  Likewise in the nominations arena: A President whose nominee had been voted down would find it politically nearly impossible to recess appoint that person.  Additionally, federal law forbids the government to pay the salary of someone who is serving in a position after the Senate has voted not to confirm her for that position.  But a President whose nominee has been filibustered presents a very different situation.  The President can argue that he is not disregarding the will of the Senate; rather, minority obstructionism has left the Senate unable to express its will.  This, for example, is what the President did in recess appointing Donald Berwick to head the Center for Medicare and Medicaid Services, and it is what he originally did in appointing Elizabeth Warren as a Special Assistant to the President and to the Secretary of the Treasury with the responsibility of setting up the CFPB, rather than nominating her to actually run the CFPB.  Indeed, when it was still thought that the President might nominate Warren to actually run the CFPB, Katrina vanden Heuvel, writing in the Post, urged the President to use a recess appointment, noting that “[p]urblind Republican obstruction liberates the president to do the right thing.”  A masthead editorial in the Times took almost exactly the same tack.

Ah, but some will say, the House of Representatives can prevent the President from making recess appointments.  Here’s how:  Article I, sec. 5, cl. 4 of the Constitution provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”  Since the consensus (including among executive branch lawyers) is that, at the very least, a recess must be longer than three days to allow the President to make a recess appointment, the House can prevent recess appointments simply by refusing to agree to any Senate request to adjourn.

Not so fast.  Article II, sec. 3 provides that “in Case of Disagreement between them [the houses of Congress], with Respect to the Time of Adjournment, he [the President] may adjourn them to such Time as he shall think proper.”  So, in other words, if the House and Senate can’t agree on adjournment, the President can adjourn them both. (The limit on complete executive abuse of power here is the requirement in both Article I and in the 20th Amendment that Congress must assemble at least once per year, so the President cannot adjourn them for longer than that.)  Creating a disagreement between the houses would be easy for the Senate majority — a motion to adjourn is privileged and non-debatable, which means that it cannot be filibustered and must be voted upon immediately.  So, the Senate majority, by bare majority, could vote to adjourn for more than three days.  The House could either (a) concur, which would allow the President to make a recess appointment, or (b) refuse to concur, in which case the President could adjourn the houses for more than three days, and then make a recess appointment.

Now, no President has ever exercised his power to adjourn the houses, largely because there has never really been cause to do so.  But if the Senate minority continues to be indiscriminately obstructionist, pressure will continue to grow for recess appointments, and the President will have a strong rhetorical case that 40 Senators should not be able to prevent important posts from being filled.  If the House then chooses to obstruct the Senate’s ability to recess, it does not seem a stretch that the President, in consultation with the Senate majority leadership, would begin exploring the route described above.

Once again, the filibuster pushes the President to expand executive power.  Growing use of the filibuster encourages growing use of recess appointments.  A different but related form of obstructionism — the House refusing to let the Senate adjourn — could lead to the President’s unprecedented exercise of his power to adjourn.  And the houses of Congress continue to shoot themselves in the foot by making injudicious use of their constitutional powers.

(A final note: I do not have any objection per se to the Senate’s use of the appointments power as a tool to get what it wants in other substantive areas.  Indeed, I would applaud this more vigorous use of its constitutional power, just as I applaud the House for making vigorous use of its power of the purse in inter-branch conflicts.  But a Senate up-or-down vote is categorically different from a filibuster.  Senate rejection of a nominee would not “liberate” (to use vanden Heuvel’s word) the President to act unilaterally.)

4

Congress’s Constitution

Congress reconvenes today after its August recess and (after slamming the door in Black Rod’s President Obama’s face), it has a fair amount on its plate.  And as we’re likely to continue to see significant clashes between the House of Representatives and the White House, I thought this might be a good time to say a little bit about a forthcoming article of mine, Congress’s Constitution, 160 U. Pa. L. Rev. (forthcoming Feb. 2012).  The piece, in essence, argues that Congress has a lot more tools at its disposal in inter-branch conflicts than we are accustomed to thinking.  When thinking about congressional power, we tend to focus on legislation.  But passing legislation always requires bicameralism (which is quite a high inertial barrier on its own) and almost always requires presidential concurrence (which makes it a difficult mechanism to use in checking the executive).

My article, instead, focuses on powers available to individual houses and individual members of Congress.  Borrowing terminology from the international relations literature (and from Joseph Nye, in particular), I divide these powers into “hard” and “soft” varieties.  Hard powers include things like the power of the purse and the contempt power; soft powers include the Speech or Debate Clause privilege, the power of each house to discipline its own members, and the power of each house to determine its own cameral rules.  Ultimately, the distribution of power in the federal government at any given time will be determined more by constitutional politics and the gaining of public trust than it will by application of hard-and-fast, law-like rules, making congressional soft power hugely important.  The soft powers are those that enable the houses of Congress to compete for the public trust and to contest the positions staked out by the other branches in especially vigorous ways.

These powers themselves are not novel.  Historically, each of them has been used in ways that enhance congressional power and in ways that diminish it.  Examples discussed in the article range from the 1689 Mutiny Act to the 2001 Patriot Act, from the Pentagon Papers to WikiLeaks, and from the contempt of Congress citation against Harriet Miers to the threatened use of the filibuster to sink Elizabeth Warren and Donald Berwick.

I’m especially interested to get reactions to the piece for a number of reasons.  Most immediately, I still have time to make edits before it is published.  Somewhat more distantly, I’m hoping to expand the piece into a book.  And finally, I think some of the issues the piece discusses are good ways to test our intuitions about the constitutional separation of powers as opposed to our intuitions about how particular Congresses use their power or to what extent particular Presidents ought to be checked.  That is to say, do people really want more checks on the imperial presidency — in which case, for example, they should offer at least one cheer for the way that the current House leadership acted in the run-up to the near governmment shutdown this April (discussed at pp. 16-17 of the draft) — or did they simply want more checks on the Bush Administration?

In any event, I hope you enjoy the piece, and I’m curious to hear what you all think.

1

The State Opening of Congress?

At the beginning of each new session of the Westminster Parliament, there is an event known as the State Opening of Parliament. Her Majesty proceeds from Buckingham Palace to Westminster, changes into her imperial regalia, and ascends the throne in the House of Lords. At this point, the Gentleman Usher of the Black Rod (the House of Lords’s equivalent to the House of Commons’s sergeant-at-arms) is sent to summon the Commons to attend upon Her Majesty and to hear the Queen’s Speech (which is, of course, written in its entirety by the Cabinet). When Black Rod arrives at the Commons’s chamber, the door is slammed in his face. He then knocks three times with his staff of office, at which point the door is opened and the Commons follow Black Rod to the Lords to hear the speech. You can see video of the whole thing here. The point, of course, is to symbolize the Commons’s independence from both Crown and Lords.

For some reason, recent events in the United States have put me in mind of this practice .

1

Constitutional Redemption: Narratives, Historical and Fictional

It’s an honor to be here, commenting on Jack’s hugely impressive and erudite work of constitutional scholarship. If you haven’t read it yet, the most useful thing I can say to you is to stop reading what I have to say and go read what he does. I especially admire his discussion of the role of narrative in constitutional argument, and it is that part of the book that I’d like to focus on. I should say at the outset that I don’t have any criticisms—and I may not even have any comments!—to make. Really, what I have are some questions. (And I don’t mean that in the standard, law professor-y “I’m going to make my comments and then add a question mark at the end” sense. I really don’t have answers for these questions.)

Jack lays out his own narrative of constitutional development at pages 18-23. It is a powerful narrative, one that describes American constitutional development as a slow and always-incomplete attempt to redeem the promise of the Declaration of Independence, which Jack understands as embodying an attack on “the social structure of monarchy” (p. 23), or, even more ambitiously, a “demand for social equality” (p. 22). There is a great deal to find appealing in this narrative, and its brevity should not lead us to underestimate its potency (as, I think, Adrian Vermeule did in his review of the book).

Others may wish to comment on the lessons Jack draws from this narrative, or even on its historical accuracy. But that’s not my interest here. Instead, I’m interested in why the narrative’s claim to historical accuracy is important in the first place.

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