64 Pages Posted: 15 Aug 2011 Last revised: 24 Feb 2012
Date Written: August 14, 2011
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.
Keywords: Constitution, constitutional law, constitutional politics, Congress, congressional power, executive power, contempt of Congress, power of the purse, Speech or Debate Clause, congressional ethics, cameral rules, filibuster, government shutdown, Pentagon Papers, WikiLeaks
Suggested Citation: Suggested Citation
Chafetz, Josh, Congress's Constitution (August 14, 2011). University of Pennsylvania Law Review, Vol. 160, pp. 715-778, February 2012. Available at SSRN: https://ssrn.com/abstract=1909457
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