On November 10, members of the Cornell Law community gathered in the MacDonald Moot Court Room to celebrate the release of Congress's Constitution: Legislative Authority and the Separation of Powers (Yale University Press, 2017) by Professor Josh Chafetz. The author was joined by a panel of commentators, with Professor Aziz Rana as moderator.
Leading experts have called the book "pathbreaking," "timely," and "a major contribution" for its examination of the full range of Congress's powers. Panelist David Alexander Bateman, assistant professor in Cornell University's Department of Government, added that Congress's Constitution "gives the reader a wonderful sense of the politics of inter-branch disputes, the stakes involved, and perhaps most importantly, their often extremely public character."
Challenging Chafetz's emphasis on judicious engagement with the public sphere as a source of political power, Bateman cited instances in which Congress, or at least a faction of it, prevailed by not engaging with the public (the obstruction of Merrick Garland's Supreme Court confirmation hearing) or failed because of the structural power of the executive branch (the 1876 contested election between Rutherford B. Hayes and Samuel Tilden). Bateman concluded, however, that the book does provide an outline of how Congress could "rise to the occasion," and use its powers to check the other branches, as well as a historical justification for why it should aggressively use those powers.
Speaking next, Curtis A. Bradley, the William Van Alstyne Professor of Law at Duke University School of Law, discussed some structural elements of Congress that would complicate any effort to bolster its leverage in inter-branch conflicts. He observed that Congress is not a monolith but rather a collection of factions and individuals, often with competing agendas. Hyperpartisanship and the resulting gridlock put the legislative branch at a disadvantage compared to the much more unified authority of the executive.
On the other hand, he suggested, the unique circumstances created by the current administration might inspire a resurgent interest in empowering Congress. "[I]f nothing else, I think the book is a great corrective to our own collective pessimism," he remarked. "I would love it if it were a corrective to Congress's own imagination."
David Pozen, professor of law at Columbia Law School, examined some of the questions raised by Chafetz's "discursive" approach. On the matter of judicious engagement, for instance, he asked, "Is it really plausible that judiciousness is what the American public tends to reward? . . . Last I checked, we have a wildly undisciplined, intemperate, and, in the view of many, a moral monster in the White House."
Other questions: What are the mechanisms by which public discourse and opinion influence decisionmaking in Washington and vice versa? Where does the media fit into Chafetz's theory? Can the theory generate predictions? How can it ground normativity? Pozen concluded that the book is a path-breaking work that suggests a whole new body of analysis.
Chafetz closed the event with a response to the panelists and some additional thoughts. He mentioned that the conclusion of Congress's Constitution was something of an implicit rejoinder to the trend, in recent literature, of proposing that the separation of powers be eliminated in favor of a more parliamentary system. "That forces decisionmaking onto a flat plane," Chafetz said. He suggested that the virtue of the U.S. system is that allows for contention, negotiation, and shifting power dynamics. "The policy and politics that result from that are going to be unsatisfying to everyone, and that's great. No one is ever going to win a final political victory."
Click below to watch a recording of the book celebration: https://youtu.be/e5rekyrTehI