Ability Of Congress Research Articles

The Traceability of Presidential Policymaking in the Face of Congressional Sanctioning

Do presidents freely issue unilateral directives to evade an obstructionist Congress, or are they constrained by their legislative opponents? Though conventional wisdom purports evasion, scholars actually find consistent evidence of presidential restraint. However, this literature almost exclusively focuses on executive orders, rather than the myriad of other unilateral directives at the president's disposal, and thus offers an incomplete picture of how effective Congress is at constraining unilateral policymaking. Accordingly, I develop a theory of how presidents adjudicate between different types of directives based on trade-offs related to their traceability, presidential incentives, and Congress's ability to retaliate based on available information. I argue that presidents rely on more traceable unilateral directives, specifically executive orders, and published memoranda, when facing ideologically aligned congresses that are less likely to retaliate. However, they use less traceable directives, like unpublished memoranda, to evade legislative opponents, but at the expense of credit claiming opportunities. Using an original dataset of executive orders, published memoranda, and unpublished memoranda issued between 1981 and 2020, I find empirical support for the theory. Overall, this study demonstrates how presidents can overcome legislative checks by controlling the traceability of their unilateral activities.

'The Constitutional Framework for Congress's Ability to Uphold Standards of Member Conduct,' Hearing Before the House of Representatives Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 117th Cong. (March 11, 2021)

This written testimony was submitted to accompany my appearance before the House Judiciary Committee, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, concerning the congressional chambers' power to discipline their own members. The testimony lays out the constitutional bases for the houses' disciplinary powers and discusses the history of their use, from the sixteenth century English Parliament to the present day. It notes the various tools of discipline--expulsion, censure, and fine--and discusses the uses and limitations of each. It concludes by suggesting that the houses make more vigorous use of their disciplinary powers.

Editor's Column: “We are the jury”: Steinbeck's America under Threat

Editor's Column: “We are the jury”: Steinbeck's America under Threat

How to Revive Congress's War Powers

Even though the United States has been at war around the globe for most of the last two decades, the vast majority of those serving in Congress have never voted to authorize a military operation. Among current members of Congress, only 18 of 100 Senators were in office when the most recent authorization - the 2002 authorization for use of force against Iraq - was enacted and only 58 of 435 Representatives were. As a result, there has been little democratic accountability for the many wars the United States has waged in the past seventeen years, which have cost trillions of dollars and thousands of American lives. The institutional structure for authorizing military force by the United States is obviously broken. There is no doubt that part of the problem is the absence of political courage among many of our elected officials. Too many members of Congress are all too happy to abdicate their Constitutional responsibility and allow the President to go it alone, taking all the political risk. No institutional reform can fix that. But at least part of the problem is that the system of checks and balances is no longer working. This essay argues that a few revisions, some simple, some more ambitious, could significantly strengthen the capacity to act for members of Congress willing to do so. This essay argues for three separate reforms. First, the War Powers Resolution should be revised to include a definition of “hostilities.” This is a gap in the original resolution, and filling this gap could, in one simple step, substantially strengthen the rest of the resolution and the ability of Congress to constrain the President. Second, Congress should enact “Rules for Limited War” that would create a default sunset for all new authorizations. Third, the War Powers Resolution should be revised to make explicit that any use of military force in contravention of international law is prohibited. While none of these suggested reforms addresses all of the problems plaguing the system for authorizing the use of military force, each would help reset the balance in the right direction.

The Source of the Stink: A Private Delegation Framework for Recidivism Risk Assessment

This paper explores the use of privately developed risk assessment algorithms in criminal sentencing, arguing that these tools are developed in a way that hinders the enforcement of constitutional protections and gives private algorithm developers undue influence in sentencing determinations. Using the private delegation doctrine, which limits Congress's ability to delegate to private actors, the paper aims to strengthen the state statutory frameworks that govern the use of these tools to restore accountability to the sentencing process.

The business cycle is alive and well

Have the dynamic relations among macro variables changed markedly since the financial crisis? A dynamic factor model provides consistent evidence of stability across 248 variables The Great Moderation appears to be ongoing; you cannot reject the hypothesis that the standard deviation of four-quarter GDP growth is the same over 1984–2007 and over 2008–2018. Even so, the apparent slower GDP growth trend implies a substantial probability that a recession may start in the next 2 years, even not adding the risk that some large unprecedented negative event may occur. Because of low interest rates and already-large deficits, the ability of Congress and the Fed to mitigate the effects of a recession are historically constrained.

Mobilizing the Public Against the President: Congress and the Political Costs of Unilateral Action

AbstractPrior scholarship overlooks the capacity of other actors to raise the political costs of unilateral action by turning public opinion against the president. Through a series of five experiments embedded in nationally representative surveys, we demonstrate Congress's ability to erode support for unilateral actions by raising both constitutional and policy‐based objections to the exercise of unilateral power. Congressional challenges to the unilateral president diminish support for executive action across a range of policy areas in both the foreign and domestic realm and are particularly influential when they explicitly argue that presidents are treading on congressional prerogatives. We also find evidence that constitutional challenges are more effective when levied by members of Congress than by other actors. The results resolve a debate in the literature and suggest a mechanism through which Congress might exercise a constraint on the president, even when it is unable to check him legislatively.

Second-Generation Textualism

In his perceptive histories of the late-twentieth-century revival of interest in statutory interpretation theory,1 Philip P. Frickey, always modest, predictably failed to account for his own large contribution to the debate. Assessing this contribution, of course, would present difficulty for anyone, as the work spans so widely. With his frequent coauthor, William Eskridge, Professor Frickey explained statutory interpretation as a form of practical reasoning that transcends any single foundational approach to the subject;2 thoughtfully explored the utility and dangers of the Supreme Court's renewed interest in canons of construction, both substantive and procedural;3 and developed an intellectually rich casebook that reintroduced Legislation as a core element of the law school curriculum.4 Writing on his own, Professor Frickey enriched our understanding of the canon of constitutional avoidance as a pragmatic instrument for a Court to use in times of political peril,5 the transitional

The Decline of Regular Order in Appropriations: Does It Matter?

This paper examines trends in the procedural fiscal performance of Congress and the president. It evaluates several hypotheses about why the regular order in Congressional budgeting and appropriations has fallen into disuse. While the question has many angles and dimensions, I consider three aspects. First, I consider changes in the use of presidential budgets and congressional budget resolutions. When do presidents make their proposals? Do the House and Senate pass and reconcile resolutions? Then I consider the timing of the passage of appropriations bills and the use of continuing resolutions. Why is Congress more frequently tardy in passing appropriations and to what extent have continuing resolutions and omnibus bills become a substitute for the traditional stand-alone appropriations.Finally, I take up the question of the extent to which the decline of regular order has affected fiscal outcomes. Has the more irregular process undermined the ability of Congress and the President to manage the government's finances? Has it created more policy uncertainty that detracts from government performance and spooks private economic actors?

Can Congress Do Policy Analysis? The Politics of Problem Solving on Capitol Hill

The conventional wisdom is that the U.S. Congress is not well-structured to do policy analysis. According to the received view, Congress's internal organization is inconsistent with analytical perceptions and definitions of policy issues. Congress caters to the demands of interest groups, and regularly makes economic decisions that policy analysts find indefensible on efficiency grounds. But negative assessments of Congress's capacity as a policy analyst cut too deeply. Drawing on an opinion survey of Washington-area policy analysts as well as on confidential interviews with senior analysts from the CBO, GAO, and CRS, this paper evaluates Congress's ability to perform eight key policy analysis tasks (Bardach 2009), including defining problems, confronting trade-offs, and telling causal stories to an audience. While we do not set out to “save” Congress’s reputation, our analysis provides a more a balanced, fine-grained view of Congress’s capacities and limitations as a problem-solving institution. The concluding section offers some speculative comments about how secular trends including partisan polarization, the widening of the policy agenda, and the growing complexity of government have interacted with Congress’s policy analytic strengths and weaknesses to affect institutional performance.

Conflicts of Rights: When the Federal Constitution Restricts Civil Liberties

“It is elementary that States are free to provide greater protections . . . than the Federal Constitution requires,” California v. Ramos, 463 U.S. 992, 1013-14 (1983), and the same goes for Congress, so far as it operates within its constitutional powers. Indeed many of our civil rights and liberties are protected by statutes or by state constitutions. But this principle has its limitations: sometimes the Federal Constitution can limit the ability of Congress or the States to expand civil liberties. In other words, sometimes the Federal Constitution is not just a floor for civil rights, it is also a ceiling. This occurs whenever civil rights conflict. Thus, conflicts among civil rights present a potentially troublesome form of judicial review since they may limit the ability of the democratic process to provide more freedom. And yet, as we shall see, courts often resolve these conflicts with little more than a flick of the wrist. This Article analyzes claims of conflicts of rights arising under the Federal Constitution and examines the argument that such conflicts do not lend themselves to rational resolution—a contention based, inter alia, on Isaiah Berlin’s thesis of the incommensurability of fundamental values.

National Security Directive declassification

Abstract The secret character of National Security Directives (NSDs) impairs Congress's ability to pursue its constitutionally mandated policy making and oversight roles when the president employs these directives to unilaterally make national security policy. In addition, their typically classified status presents numerous problems for scholars who can monitor the president's unilateral actions when he employs executive orders, proclamations, or executive agreements, but cannot do so in the case of policy created by security classified NSDs. Many of these directives remain classified for significant periods, as the results presented in this article will show. Furthermore, classification and declassification policy is unilaterally set by the president and, therefore, may be arbitrarily altered to lengthen the time it takes for NSDs to become available for congressional and public scrutiny. The article concludes that a statutory basis could provide more government openness and enhance Congress's ability to provide effective oversight of national security policy made through NSDs.

From Pinstripe Wool to Ripstop Poplin: The US President, Symbolic Politics, and the Salute

In the 1980s, President Ronald Reagan began the tradition of returning military personnel's salutes. At his inauguration, President Barack Obama returned the salutes of the troops as they paraded by the reviewing stand. Some may suggest these actions are simply a sign of respect by Presidents for the service of the military. Nevertheless, we must also understand how Presidents have used military ritual and symbols to enhance their powers. By embracing military symbols, the President is transformed from a civilian to a military figure. This transformation diminishes Congress's ability to exercise its constitutional war power. Congress is less likely to challenge a President perceived as part of the military than one perceived as the civilian chief executive.

The Administrative Presidency, Unilateral Power, and the Unitary Executive Theory

This essay examines a major change that has occurred in recent years with regard to the relationship between the president and the bureaucracy. It is a change that relies on a greater use of the president's unilateral powers to influence the bureaucracy. It is based on a theory of presidential power that is striking in its scope and implications: the unitary executive theory. In many respects, the theory fundamentally changes the nature of presidential–bureaucratic relations, yet it has received scant attention in scholarly journals. Examination of its potential impact is long overdue.

Explaining Processes of Institutional Opinion Leadership

When and how can institutions lead public opinion? Scholarly controversy exists over whether even a highly esteemed institution such as the Supreme Court can move mass opinion. In this study we use an experimental design embedded within a representative national survey to examine these questions in a context involving multiple institutions and multiple issues. Our findings suggest that the Court's ability to move opinion is potent and based on multiple processes of persuasive influence. Congress's ability to move opinion, while conditional, is surprisingly more potent than previously understood. Moreover, opinion change in response to institutional endorsements is mediated by substantive political thought to a greater extent than heuristic explanations have suggested.

The Supreme Common Law Court of the United States

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those provisions are advanced by minorities and other disadvantaged groups. Second, it has construed Congress's power to create rights narrowly, holding unconstitutional many efforts by Congress to either expand the rights of minorities and other disadvantaged groups, or to create new rights for such people. Third, the Court has construed civil rights statutes narrowly, often provoking legislative responses by Congress. Fourth, the Court has construed some constitutional provisions broadly in order to take control of areas of the law that had been thought of as within the control of the states. Fifth, the Court has expanded the scope of federal preemption of state law which results in reducing the sphere governed by state common law. While these devices do not all necessarily result in taking the law in a conservative direction, by and large that has been the use to which the Court has put them.One way in which the Court has advanced its agenda is by seizing power that, under federalism traditions, belong to state courts and state legislature. In several senses, the Supreme Court has begun to function like a Supreme Common Law Court of the United States. First, despite all of its federalism rhetoric, the Court seizes control of areas of the law that have traditionally been the domain of the states and imposes federal norms that is has created for the purpose. Second, the Court applies interpretive methods, in both constitutional and non-constitutional cases, that draw from traditional common law methodology and allow for a high degree of creativity.

Congress's contempt power: Three mechanisms for enforcing subpoenas

Since the beginning of the 110th Congress, increased oversight by congressional committees into activities of the President and Executive Branch has sparked renewed interest in both political and legal questions involving the separation of powers. Congressional subpoenas for general information, documents, and testimony from high-ranking executive officials has not only generated significant inter-branch conflict but has also developed into a controversy that could result in a legal standoff between Congress and the President. Congress's ability to obtain access to information, whether in the form of documents or testimony, from the Executive is primarily enforced through political negotiation and accommodation that generally take place outside of public view. Contempt may be used by Congress to coerce compliance, punish the contemnor, and/or remove the obstruction. This paper focuses on Congress's contempt power and congressional authority to enforce its requests for information, documents, and testimony from both private individuals and the Executive Branch. First, it examines the source of Congress's contempt power. Next, it discusses and analyzes the procedures associated with each of the three different types of contempt proceedings—inherent contempt, statutory criminal contempt, and statutory civil contempt. Finally, this paper concludes by addressing several of the unique constitutional, legal, and political problems that are associated with congressional contempt proceedings against Executive Branch officials.

Common ground: committee politics in the U.S. House of Representatives

When do committees that share jurisdiction over an issue choose to seek agreement rather than engage in a turf war? Overlapping and ambiguous turf has become endemic in Congress over the last three decades, especially on issues at the top of the national agenda like health care reform and homeland security. A common view is that this produces gridlock and conflict, and impairs not just Congress's ability to legislate, but government agencies' ability to function, as well. In Common Ground, John Baughman argues that this problem is overstated and shows that committees can and often do bargain and cooperate successfully, even on salient and contentious issues.

Sherman's March (In)To the Sea

This Article argues that the Sherman Act is unconstitutional. At the very least, scholars and jurists must not take for granted Congress's ability to statutorily deputize the federal courts with common-lawmaking powers. The federal antitrust statute - which has been described as the Magna Carta of free enterprise - raises serious constitutional questions that have heretofore gone unexplored and unanswered. Specifically, it is difficult (if not impossible) to reconcile the Sherman Act with the separation of powers, the nondelegation doctrine, and the Supremacy Clause.

Consequences of the Rehnquist Court's Federalism Decisions for Congressional Lawmaking

Scholars generally agree on the doctrinal significance of the Rehnquist Court's post-1990 federalism decisions, but there is less agreement about the consequences of these decisions. A previous study examined the direct consequences of these decisions, by inquiring into the extent to which Congress was able to revise and reenact statutes that were struck down by the Court, but it left unexamined the effects on Congress's ability to legislate in other areas. This article assesses the indirect consequences of these decisions by tracing their effects on the drafting of and debate over bills other than the ones directly invalidated by the Court. It turns out that these decisions have had only a limited effect on Congress's ability to draft constitutionally acceptable legislation, but they have had an important effect on the debate over the passage of several pieces of legislation, whether by handing opponents arguments to oppose the bills or by providing members of Congress with means to explain voles that would otherwise be difficult to defend. Copyright 2004, Oxford University Press.