Congress’s Constitution

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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.

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