How Unstated Legal Ideas Have Deformed the Constitution

[The first of four blog posts drawing on tonight’s Hallows Lecture at Marquette Law School.]

For several decades, we have been witnessing a Congress in long decline and a corresponding ascent of the President and the courts. I see this as a fundamental deformation of the Constitution—a deviation from its original and better design—and this deformation is the subject of my lecture today.

Congress has long been regarded as the keystone of the federal government. James Madison thought it self-evident that “[i]n republican government, the legislative authority necessarily predominates.” Under the Constitution, only the Congress is given the power to enact laws, levy taxes, and appropriate monies for the government.

The President, by contrast, is given a short list of powers and duties, some rather inconsequential, such as the duty to receive ambassadors, presumably in a reception at the White House (or the like). Over time, the President’s power has tended to wax during times of war and wane in times of peace. But at least in matters of domestic policy the President has been subordinate to Congress.

As for the third branch: The federal courts have always been small in number relative to state courts, and historically they have largely directed themselves to questions that state courts cannot effectively or appropriately decide.

Today, Congress passes relatively few laws, follows the President’s lead on taxes, and stands by while the President reallocates appropriations without sanction. Meanwhile, the President issues a blizzard of Executive Orders, in the manner of an elected monarch. And the Supreme Court is expected to issue blockbuster decisions on a routine basis informing the country what it can and cannot do with respect to gun control, abortion, affirmative action, religious freedom, takings of property, and myriad other issues.

The deformation of the Constitution by this new distribution of authority has immense consequences. When Congress passes few laws, new problems tend to be addressed by federal agencies or, worse, by presidential Executive Orders, which are inherently impermanent. When Congress becomes inactive, the healthy back and forth between the legislature and the courts breaks down. Courts benefit from feedback from Congress, whether in the form of revisions to statutes that have been interpreted by courts, or in the form of threats to strip away the courts’ jurisdiction when they interpret the Constitution in a way that stirs up popular discontent.

There are a number of plausible reasons why Congress has been sidelined relative to the Executive and the courts. One is simply a matter of numbers. We have one President, nine Supreme Court Justices, and 545 members of Congress. In a rapidly changing world, it is no surprise that it is easier for one person to act, or for a majority of nine persons to act, than for majorities (or more) of both houses of Congress to agree on the solution to emerging problems, especially when Congress is deeply divided.

Other factors are also plausibly relevant. The enormous costs of seeking reelection requires that members of Congress spend more time fundraising than legislating. The invention of the jet airplane means that members of Congress can spend four days out of every week in their home district rather than hanging around Washington getting to know their colleagues. The emergence of the internet and social media means that members of Congress, like other elected politicians, prefer appearing in Tweets and videos rather than studying white papers devoted to serious policy analyses.

I am not competent to discourse on the effects of these factors. Instead, I propose to discuss three legal ideas that have contributed to the decline of Congress, and the concomitant transfer of power to the President and the courts. I call these unstated ideas, because, remarkably, they have emerged without any debate about whether they are sound. They are just assumed to be correct by relevant actors.

My objective is to make these ideas explicit, and to raise questions about whether they are sound. As I have briefly indicated, there are other plausible reasons for the relative decline of Congress and the rise of the Executive and the courts. So debunking ideas quite likely will not result in correcting the deformation of the Constitution we are witnessing. But to the extent that these unstated ideas serve to legitimize the transformation taking place, exposing them to the light of day may encourage greater pushback against it.

The first of the three unstated ideas I call the “three buckets” picture of the structure of the federal government. This is the idea that the federal government consists exclusively of three branches—executive, legislative, and judicial—and that every agency, commission, or chartered federal corporation must therefore be located “in” one of these three branches. The unstated idea that every federal entity must be “in” one of the three branches is why I call this the “three buckets” idea: Everything must go in one bucket or another.

Why has the three buckets picture contributed to the deformation of the Constitution? The reason is that we have a pretty clear notion of the basic function of two of the three buckets. The basic function of the legislative branch is to enact federal statutes—the laws of the United States. The basic function of the judicial branch is to resolve cases and controversies between adverse parties.

The basic function of the Executive Branch is less certain. As Michael McConnell shows in his recent book, The President Who Would Not Be King, the framers had no clear conception of what is entailed by the “executive power.” They basically took Blackstone’s list of the prerogatives of the King of England and gave some to Congress, some to the President, and eliminated others altogether. Over time, some aspects of the executive power have come into focus. We have come to regard the President as the “sole organ” who speaks for the United States in matters of international relations, even though the text of the Constitution sends mixed signals about this.

But in domestic affairs, the exact role of the President has remained contested. A key dilemma is what the framers had in mind by imposing a duty on the President to “take care that the laws be faithfully executed.” Does this mean (for one, very current example) the President must be able to fire any employee in the federal government (now some 2 million in number) whom he deems to be executing the laws in an “unfaithful” manner? Or does it mean simply that the President must make do with his power to appoint principal officers (subject to confirmation by the Senate) and otherwise abide by whatever provisions regarding removal Congress has enacted?

What is the upshot of the uncertainty about what is included in the executive power, once we have embraced the three buckets picture of the federal government? It is quite simple. If some federal entity is not part of Congress, or is not part of the judiciary, then under the “three buckets” idea, it inevitably follows that it must be in the Executive Branch. The executive bucket becomes a kind of residual container into which everything pours that cannot be clearly located in one of the other two buckets, which are much more clearly delineated.

This picture of the three buckets becomes deformative when combined with another idea that is explicitly and repeatedly asserted by the President’s lawyers—the idea of the “unitary executive.” That will be the topic of my next post.