The Senate and House Counsel Offices: Dilemmas of Representing in Court the Institutional Congressional Client

Two clusters of issues regarding institutional representation of Congress are examined

Deliberation\u27s Demise: The Rise of One-Party Rule in the Senate

Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was caused in part by the Senate’s supermajority requirement to pass legislation and confirm presidential nominees. This scholarship exalted the value of procedural changes permitting the majority party to push through legislation and confirmations, and failed to appreciate salutary aspects of the supermajority requirement: that it provided a key structural support for stability and balance in governance. The Senate changed its rules in order to address the problem of partisan gridlock, and now a party with a bare majority is able to force through much of its agenda. As a result, the minority party no longer plays its traditional and vital role in Senate deliberation. These rules changes—along with increased party polarization— have diminished the Senate’s traditional role as a centrist institution, and the nation is suffering from its loss. The Senate’s record in 2017 illustrates the danger of transforming from a deliberative institution to one where a party with a bare majority can force through contentious legislation on a straight party-line vote. This recent record may foreshadow even more extreme steps. This Article examines the “nuclear option,” which was employed to ram through the confirmation of Neil Gorsuch to the Supreme Court, and reconciliation, which was used to steamroll substantive legislation on tax cuts (successfully) and health care (almost). The Senate has lost its way as a deliberative institution and has come to resemble the House of Representatives. To regain its stature as a deliberative body, the Senate must revitalize the role of the minority party and stabilize its procedure

Can the President and Congress Establish a Legislative Veto Mechanism for Jointly Drawing Down a Long and Controversial War?

In the simplest case: Congress declares war, and does not intrude on the President\u27s solo decision about when the troops come home. However, in our time, long wars, such as in Afghanistan and Iraq, occur with great tension between the two elected branches of government over the pace of a drawdown. Sometimes it may be a hawkish Congress that disagrees with a President reluctant to continue the war at full troop levels. To find a joint way to draw down the American troops in the war zone, they may seek congressional mechanisms to resolve their differences with interactive processes. Then, constitutional issues arise as to whether a congressional mechanism may use a legislative veto - authorization for a drawdown with a reservation of power for a vote by the two Houses of Congress - so as to let the President draw down troop levels while reserving congressional power to stop that draw down. Part I looks at the first issue, as to a hawkish Congress outright stopping a draw down by legislation. This is different from the provisions, analyzed much more often, by which a Congress opposed to hostilities may deny the President the authorization to fight. Weighing the arguments, the better view surveys the diverse examples of history, and it treats, as valid, congressional enactments that stop a troop drawdown out of the war zone. Because some of the issues about a hawkish Congress\u27s powers were developed in a previous article by the author, readers who want further treatment of the issues in Part I should look at that previous article. Such readers would be disappointed if seeking in Part III more treatment of the same issues about the reluctant President and the hawkish Congress as in Part I. Rather, Part II looks at the different question: May Congress take impactful steps by enacting a concurrent resolution mechanism, with the President\u27s support, for a potential later bicameral resolution stopping a drawdown - a mechanism the critics would call an unconstitutional legislative veto ? Part II starts with the clash of functionalist and formalist approaches to separation of powers: the functionalism of Youngstown Sheet & Tube Co. v. Sawyer vs. the formalism of Chadha. A close reading of Chadha shows it does not fully resolve the role of concurrent resolution mechanisms in war powers. Moreover, many academics concur that Chadha does not bar such mechanisms in war powers

Can Appropriation Riders Speed Our Exit from Iraq?

To explore the implications of riders - provisions added to appropriation bills that ride on the underlying bill - on the United States\u27 continued military force in Iraq, the author draws three hypotheticals, each focusing on the debate surrounding the policy and political disputes raised by the use of such riders. A withdrawal rider, which would authorize funding only if there exists a plan to withdraw American ground troops by a set deadline, remains the most important - and controversial - rider. Riders may also significantly affect wartime policies, like those that limit the President\u27s use of reservists in combat so as to make them available for use in domestic affairs. Finally, Congress may attach riders to legislation that conditions military and reconstruction aid on governance concessions by the Iraqi government to the Sunni minority. Whether enduring the difficult process of enacting riders to is worth a speedier exit from Iraq remains secondary to the important constitutional and democratic issues raised by riders attached to appropriations and legislation. Highlighting the tension between Congress and the President, the author presents the Constitutional and legal arguments presented by presidential power supporters and counter arguments proffered by Congressional supporters

The Specially Investigated President

This article argues that the new legal status - the specially investigated President - conferred upon recent presidents reflects an unprecedented change in the criminal investigation process of the President. Although recent presidents have experienced formal criminal investigations, each have used creative and legitimate ways to escape indictment, trial, or impeachment. By investigating President Bush and President Clinton\u27s ability to successfully avoid prosecution, this article presents an analytical framework to explain the issues surrounding the specially investigated President, and offers suggestions on how to reform the process. In his analysis, the author illustrates the tension between opposing viewpoints regarding the president\u27s vulnerability to legal prosecution. From one perspective, the president has no special immunity, privilege, or power to stop the prosecution process. From the opposite perspective, the president has the political right to protect his office. Tracing the development of the new politic-legal status of the specially investigated president , the author uncovers the elements of Congress\u27 new presidential investigation as well as its constitutional implications. Finally, recognizing that the new paradigm for presidential investigations is here to stay, the author advances several principles to guide a reformation of the process and reduce the stress the legal accusation process places on the president, the political-legal process, and the public

Testimony Before the House Committee on Science, Space and Technology

Thank you for the opportunity to testify today. I served in the House General Counsel’s office in 1984-1995, becoming General Counsel (Acting). (Since 1995, I have been Professor at the University of Baltimore School of Law,) So, I have lengthy fulltime experience, including extensive work on Congressional subpoenas. My work takes in whether the House, or this Committee, may justifiably try to enforce subpoenas against state Attorneys General (the answer being: no). I have had more years of experience than almost anyone else in House history focused on this area. While the other professors on this panel have done various things, none has been the House General Counsel. I stood behind the dais of committees many, many times, which few did, advising Chairmen on the legitimate lawful use of Congressional oversight authority

Testimony Before the House Committee on Science, Space and Technology

Thank you for the opportunity to testify today. I served in the House General Counsel’s office in 1984-1995, becoming General Counsel (Acting). (Since 1995, I have been Professor at the University of Baltimore School of Law,) So, I have lengthy fulltime experience, including extensive work on Congressional subpoenas. My work takes in whether the House, or this Committee, may justifiably try to enforce subpoenas against state Attorneys General (the answer being: no). I have had more years of experience than almost anyone else in House history focused on this area. While the other professors on this panel have done various things, none has been the House General Counsel. I stood behind the dais of committees many, many times, which few did, advising Chairmen on the legitimate lawful use of Congressional oversight authority

Letting Federal Unions Protest Improper Contracting-Out

In 2000 - 2001, a judicial and General Accounting Office (GAO) ruling precluded federal employee unions from protesting the government\u27s alleged violation of the rules governing the contracting-out procedure because the parties lacked standing. These rulings illustrate how outdated procedures have insulated the government from challenge, and have become matters of particular importance as the government increases its practice of contracting-out. Although these rulings have not closed the tribunal doors to federal employee unions, they have made protests much more difficult, leaving federal employee unions without a forum to protest violations. To better serve the needs of contractors - and the public - the authors suggest fresh executive, judicial, and congressional looks at the matter, as contracting-out protests are uniquely situated to be dealt with by any of the three branches of government

Restrain “Risky Business”: Treat High-Risk Private Security Contractors as Inherently Governmental

Should Congress limit private security contractors ( PSCs ) in wartime by declaring that high-risk activities are inherently governmental ? In government contracting law, private contractors are not permitted to conduct activities deemed inherently governmental. As a result, only governmental actors may perform those functions. The role of PSCs in war zones raises a number of questions as to where the line exists, in determining what is, or is not, within this classification. Traditionally, the government draws the line at combat and combat-related activities—only these functions are inherently governmental. This Article argues that the line should instead be drawn at high-risk activities, which would include a number of functions outside of combat. The author bases much of his argument on his personal experiences and observations as a member of the Commission on Wartime Contracting

Book Review: Limits of Law, Prerogatives of Power: Interventionism after Kosovo, by Michael J. Glennon

The author reviews Michael Glennon\u27s Limits of Law, Prerogatives of Power: Interventionism After Kosovo, discussing Glennon\u27s approach to NATO\u27s 1999 bombing to stop the Milosevic regime\u27s ethnic cleansing of Kosovo in the face of the UN Charter\u27s absolute ban on states using force except in self-defense. Finding Glennon\u27s study at once provocative and readable, the author emphasizes the strength of Glennon\u27s core point - the inability for the Kosovo campaign to be reconciled with the UN charter - but points to the dangers of using one instance (Kosovo) to prove bad law