A Fourth Way? Bringing Politics Back Into Recess Appointments (And the Rest of the Separation of Powers, Too)

Ron Krotoszynski has written a very interesting interpretation and defense of Justice Breyer’s majority opinion in Noel Canning. In Krotoszynski’s account, the opinion is a paragon of “pragmatic formalism,” a two-step process that navigates deftly between the Scylla of hidebound formalism and the Charybdis of unmoored functionalism. The pragmatic formalist, Krotoszynski explains, begins by applying formalist tools, pulled from the standard textualist toolbox. In some cases, those tools will suffice to get to a determinate answer; if so, the pragmatic formalist is done. But the pragmatic formalist also recognizes that, in many situations, formalist tools are underdeterminate; when one of those situations arises, he then turns to historical gloss and purposivist tools to guide the inquiry. In this way, Krotoszynski suggests, the pragmatic formalist avoids the pitfalls most commonly associated with straightforward formalism and straightforward functionalism: “Strict formalism presupposes that the text invariably offers clear answers, despite the fact that this is not always so. On the other hand, functionalism tends to undervalue the importance of the text when the Constitution does offer clear rules of the road.” Pragmatic formalism is, accordingly, that most precious of modern political devices: a “third way

Executive Branch Contempt of Congress

After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed and a compromise was reached. This Article examines the constellation of issues arising out of contempt of Congress proceedings against executive branch officials. After briefly describing the Miers litigation, it examines the development of legislative contempt against executive officials in Anglo-American law. It shows that the contempt power played a significant role in power struggles between the Crown and Parliament and between the Crown and colonial American legislatures, and that this role continued into the early state legislatures. It then traces Congress\u27s uses of the contempt power against executive branch officials, including in two cases that have generally been overlooked by both judicial and academic commentators, in which a house of Congress sent its sergeant-at-arms to arrest an executive branch officer. The Article then uses that history to consider how cases of executive branch contempt of Congress should be dealt with today. It notes the variety of political tools that Anglo-American legislatures have used to enforce their contempt findings, as well as the fact that they did not turn to the courts to resolve such disputes until the late twentieth century. It then argues that the resolution of such disputes by the courts does significant harm to the American body politic. This Article therefore concludes both that Congress erred in seeking judicial resolution of the Miers dispute and that the courts erred in finding it justiciable

The Political Animal and the Ethics of Constitutional Commitment

In his article Parchment and Politics: The Positive Puzzle of Constitutional Commitment, Professor Daryl J. Levinson identifies a variety of public choice mechanisms that lead politically empowered groups to accept constitutional limitations on their political power. In this response, Professor Josh Chafetz argues that Levinson overlooks another set of mechanisms, ones which work not at the level of material interests but rather at the level of political morality. Focusing on an Aristotelian account of political morality—an account that was influential among the Framers of the U.S. Constitution and that remains influential today — Chafetz suggests that at least some of our constitutional commitment can be explained in terms of a perceived moral obligation to be ruled by the communal determination of the public good. In other words, Chafetz argues, Levinson’s otherwise compelling account overlooks the importance of an ethics of constitutional commitment

Beating a Dead Corpse

A Review of Sovereignty, RIP. By Don Herzog

How Long Is History\u27s Shadow

In Congress\u27s Constitution, Josh Chafetz takes issue with those who have questioned the value of Congress in recent years. He argues that Congress\u27s critics focus too heavily on its legislative function and ignore several important nonlegislative powers that enable Congress to exert significant authority vis-a-vis the other branches. Chafetz engages in close historical examination of these nonlegislative powers and notes that in some cases, Congress has ceased exercising them as robustly as it once did, while in others it has unwittingly ceded them to another branch. Congress\u27s Constitution urges Congress to reassert several of its ceded powers more aggressively going forward, in order to recapture some of the authority and influence it has lost over time

Congress\u27s Constitution

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

\u27In the Time of a Woman, Which Sex Was Not Capable of Mature Deliberation\u27: Late Tudor Parliamentary Relations and their Early Stuart Discontents

The English Civil War is one of the seminal events in Anglo-American constitutional history. Oceans of ink have been spilled in debating its causes, and historians have pointed to a number of salient divisions along economic, social, political, and religious lines. But a related, and equally important, question has gone largely ignored: what allowed the House of Commons, for the first time in English history, to play the lead role in opposing the Crown? How did the lower house of Parliament develop the constitutional self-confidence that would allow it to organize the rebellion against Charles I? This Article argues that developments in parliamentary procedure beginning in the late Tudor period — a period in which the House of Commons has traditionally been seen as largely subservient to the Crown — allowed the House to develop the language and conceptual categories that it would later use to oppose the early Stuart monarchs. By asserting exclusive jurisdiction over its own composition and over contempts committed against itself, the House of Commons in the late Tudor period asserted a new constitutional role. No longer content to act as the servant of the Crown, the House began to see itself as an independent power in the polity, capable of protecting itself and acting on its own behalf. The first two Stuart kings pushed back against the House’s newfound role, attempting to reassert its older role as an element of royal governance. But the House now had the tools and the language to resist this attempt at retrenchment. Ultimately, when Charles would not back down, those same tools were used to bring him down. This parliamentary mobilization had significant and lasting constitutional consequences, both for England and for the new constitutional order drafted by rebellious former colonies across the Atlantic

Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past

Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans\u27 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats\u27 2017 filibuster of Neil Gorsuch\u27s nomination to the same seat, and Republicans\u27 triggering of the nuclear option to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of unprecedented behavior. This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness work in constitutional politics. Part I examines recent conflicts in judicial appointments, beginning in the George W. Bush administration and running through the 2017 elimination of the filibuster for all nominees. It focuses on the discourse surrounding these reforms, noting that at every turn, accusations of unprecedented behavior have flown in all directions and have served as justifications for countermeasures, which are in turn characterized as unprecedented. Part II then reconstructs two pasts — two precedential pathways — for recent events, one drawing on the history of legislative obstruction and the other on the history of confirmation politics. The purpose of these historical narratives is not to adjudicate particular claims of unprecedentedness but rather to highlight the ways in which any claim of (un)precedentedness involves particular, contestable constructions of the past. The Essay concludes with some thoughts about why we might prefer some available pasts to others