Congress's constitution

University of Pennsylvania Law Review

Volumn 160, Issue 3, 2012, Pages 715-778

  Chafetz, Josh ^a  

^a MIT Sloan School of Management   (United States)

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EID: 84859565371     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (276)

1. See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 457-63 (2d ed. 1997) (concluding that federal judges have impermissibly expanded the scope of the Fourteenth Amendment);
2. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 130 (1990) ("The pace of judicial revision of the Constitution has accelerated over the Court's history, as has the exertion of judicial power. .");
3. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 174-76 (1999)
4. (proposing a constitutional amendment that would eliminate judicial review); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 224 (1994) ("By far, the greater problem today is not the too-forceful exercise of presidential power to interpret law, but the too-feeble acquiescence of the executive branch in the courts' assertion of dominant interpretive power.");
5. John Yoo, An Imperial Judiciary at War: Hamdan v. Rumsfeld, 2005-2006 CATO SUP. CT. REV. 83, 110-11 ("Hamdan portends much more than whether the administration can subject ten or twenty al Qaeda suspects to military commission trial. It clearly announces that the imperial judiciary respects few limits on how far it is willing to extend its powers of judicial review.").
6. BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC 1-41 (2010) (expressing alarm over the increasing lawlessness of the presidency);
7. CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY (2007) (examining ways in which presidential power expanded during the Bush Administration);
8. ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 377 (1973) (decrying the "expansion and abuse of Presidential power" under Nixon);
9. Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 MINN. L. REV. 1789, 1812 (2010) ("The modern President is far more powerful, and has far more resources at his disposal, than the Framers could possibly have imagined.");
10. James P. Pfiffner, Constraining Executive Power: George W. Bush and the Constitution, 38 PRESIDENTIAL STUD. Q. 123, 139 (2008) ("Even if one posits that President Bush has not and would not abuse his executive power, his claim to be able to ignore the law, if allowed to stand, would constitute a dangerous precedent. .").
11. John Yoo, Congress to Courts: 'Get Out of the War on Terror,' WALL ST. J., Oct. 19, 2006, at A18 (defending the jurisdiction-stripping provisions of the Military Commissions Act).
12. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 111-98 (2d ed. 1986) (advocating judicial practice of the "passive virtues" to avoid deciding certain issues);
13. BORK, supra note 1, at 146 (advocating for the use of an originalist interpretive method because it constrains judges and provides a neutral criterion for judgment); CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 3-72 (1999) (arguing that the Court should use a minimalist approach and say no more than is necessary to justify the outcome in the case before it);
14. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 863 (1989) (advocating originalism as a means of avoiding "the main danger in judicial interpretation of the Constitution. that the judges will mistake their own predilections for the law").
15. See, e.g., Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1369-1401 (2006) (arguing that disagreements about rights ought to be settled by legislatures and not courts).
16. See, e.g., Cynthia R. Farina, The Virtuous President: An Essay on Constitutional Culture and Conscience 7-12 (unpublished manuscript) (on file with author) ("The President must possess. an active and sensitive constitutional conscience, which guides his choices when the law is debatable, and which may at times counsel him that certain ways of exercising power, even if not unlawful, are not right.").
17. See, e.g., Erwin Chemerinsky, Civil Liberties and the War Terror, Seven Years After 9/11 History Repeating: Due Process, Torture and Privacy During the War on Terror, 62 SMU L. REV. 3, 12 (2009) ("[T]his is a strong statement, but I believe that those responsible for the rendition camps and torture, especially Dick Cheney, David Addington, Jay Bybee, and John Yoo, are war criminals and that there should be an investigation and prosecution into their crimes. I do not choose that language lightly.");
18. Claire Finkelstein & Michael Lewis, Debate, Should Bush Administration Lawyers Be Prosecuted for Authorizing Torture?, 158 U. PA. L. REV. PENNUMBRA 195, 196-204, 215-19 (2010), http:// www.pennumbra.com/debates/ pdfs/AuthorizingTorture.pdf (Finkelstein, Opening and Closing Statements) (arguing that executive branch officials who knowingly encourage others to break the law ought to be held criminally liable);
19. Milan Markovic, Essay, Can Lawyers Be War Criminals?, 20 GEO. J. LEGAL ETHICS 347, 350 (2007) ("Yoo and Bybee-and perhaps other lawyers who have or will engage in similar activities-can and should be held criminally accountable.");
20. Jens David Ohlin, The Torture Lawyers, 51 HARV. INT'L L.J. 193, 196-215 (2010) (finding that the actions of the Bush Administration lawyers who drafted the "torture memos" were sufficient to establish the possibility of accomplice liability);
21. Andrew Sullivan, Obama's First Problem is US War Crimes, SUNDAY TIMES (London), Nov. 30, 2008, http://www.timesonline.co.uk/tol/comment/columnists/ andrew-sullivan/article5257597.ece ("[T]he evidence we now have, undisputed evidence, proves already that war crimes were indeed committed-by the president and vice-president on down. There is, in the end, a simple and sobering truth: these people have to be brought to justice if the rule of law is to survive in America.").
22. See, e.g., Garrett Epps, The Ill-Made Prince: A Modest Proposal for a New Article II, at 5 (Aug. 7, 2009) (unpublished manuscript), available at http://ssrn.com/abstract=1445643 (suggesting that Article II be completely redrafted to "repair the dangerous gaps and mistakes" in the current version).
23. THE FEDERALIST NO. 51, at 322 ( James Madison) (Clinton Rossiter ed., 1961).
24. See AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 75, 105 (2005) (noting the absolute veto possessed by royal governors in the colonies).
25. See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 162-63 (1998) (noting that the revolutionary legislatures were "the heirs to most of thirthe prerogative powers taken away from the governors by the Revolution" and that "[t]he American legislatures, in particular the lower houses of the assemblies, were no longer to be merely adjuncts or checks to magisterial power, but were in fact to be the government-a revolutionary transformation of political authority").
26. See, e.g., JOSEPH J. ELLIS, FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION 196-98 (Vintage Books 2002) (2000) (discussing Jeffersonian efforts to portray John Adams as a quasi-monarchist);
27. GERARD N. MAGLIOCCA, ANDREW JACKSON AND THE CONSTITUTION: THE RISE AND FALL OF GENERATIONAL REGIMES 74-76 (2007) (noting the 1840 Whig reaction to President Andrew Jackson's expansive conception of executive power).
28. See, e.g., WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON 15-134 (1992) (discussing the impeachment and near-conviction of Justice Chase for his partisan rulings);
29. Spencer Roane, Roane's "Hampden" Essays: Richmond Enquirer, June 11-22, 1819 (accusing the Marshall Court of arrogating itself too much power in McCulloch), reprinted in JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 106, 106-54 (Gerald Gunther ed., 1969).
30. In 1930, the eminent legal historian Charles Warren wrote: There is a phase in the development of our Federal Constitution, which will not be found detailed in any law book or in any American history and which deserves the consideration of students of our Governmental workings-the sturdy struggle which the Executive of the United States has, throughout our National life, been forced to make against Congressional encroachment. Charles Warren, Presidential Declarations of Independence, 10 B.U. L. REV. 1, 1 (1930).
31. Gary C. Jacobson, Referendum: The 2006 Midterm Congressional Elections, 122 POL. SCI. Q. 1, 1 (2007).
32. Jill Zuckman, Virginia Holds Key to Control of Senate: Democrat Leads with GOP Ouster on the Line, CHI. TRIB., Nov. 9, 2006, at 1.
33. See President Bush-Overall Job Rating, POLLINGREPORT.COM, http://www.pollingreport.com/BushJob.htm (last visited Dec. 15, 2011) (compiling and reporting national opinion polls measuring President Bush's job approval rating between September 7, 2005, and January 6, 2009).
34. See Richard A. Brody, The American People and President George W. Bush: The Fall, the Rise and Fall Again, 6 FORUM, no. 2, 2008, at 1, 15 ("President Bush has been unique in the weakness of his level of support. No other president for whom we have polling data has reached and sustained a level of public approval in the low thirties.").
35. See, e.g., Boumediene v. Bush, 553 U.S. 723, 771 (2008) (holding, contrary to the position of the Bush Administration, that alien detainees at Guantanamo Bay possessed the constitutional right to petition for a writ of habeas corpus); Munaf v. Geren, 553 U.S. 674, 685-88 (2008) (rejecting the Government's argument that federal courts lacked the jurisdiction to hear a habeas petition from a U.S. citizen detained by American forces abroad); Massachusetts v. EPA, 549 U.S. 497, 528-32 (2007) (rejecting the arguments of the EPA that the Clean Air Act did not authorize the regulation of greenhouse gas emissions from new motor vehicles); Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1194-227 (9th Cir. 2008) (finding NHTSA's regulations under the Energy Policy and Conservation Act inadequate and remanding to the Administration for new standards).
36. Joseph S. Nye, Jr., Soft Power and American Foreign Policy, 119 POL. SCI. Q. 255, 256 (2004).
37. JOSEPH S. NYE, JR., BOUND TO LEAD: THE CHANGING NATURE OF AMERICAN POWER 32 (1990).
38. see also Harold Hongju Koh, Can the President Be Torturer in Chief ?, 81 IND. L.J. 1145, 1153 n.38 (2006) ("[W]e cannot accomplish our goals [in the War on Terror] without diplomacy and international law-soft power tools that were developed precisely so that countries would not have to rely exclusively on force all the time.").
39. Josh Chafetz, Multiplicity in Federalism and the Separation of Powers, 120 YALE L.J. 1084, 1113 (2011) (book review).
40. Cf. Mariah Zeisberg, The Relational Conception of War Powers (describing a "relational account" of the war powers that is "premised on the value of maintaining the branches in relationships of mutual review, even when that review leads to interbranch interpretive conflict"), in THE LIMITS OF CONSTITUTIONAL DEMOCRACY 168, 169 ( J effrey K. Tulis & Stephen Macedo eds., 2010).
41. In this context, "making its case" involves more than simply pandering to current public opinion. In many situations, it requires an active attempt to persuade-to lead and shape public opinion. See DAVID R. MAYHEW, AMERICA'S CONGRESS: ACTIONS IN THE PUBLIC SPHERE, JAMES MADISON THROUGH NEWT GINGRICH 14-19 (2000) (arguing that political preferences are largely endogenous to politics and that therefore political figures in the public sphere are involved in both opinion expression and opinion formation).
42. See, e.g., Stephen Breyer, Making Our Democracy Work: The Yale Lectures, 120 YALE L.J. 1999, 1999 (2011) ("[I]n a democracy public support for any public institution is necessary. Without it the institution may wither, perhaps die.");
43. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. PA. L. REV. 991, 1006 (2008) (noting that, in an interbranch conflict, "through the mysterious process by which public opinion forms, the public will throw its weight behind one branch or the other, and the branch that receives public support will prevail");
44. Douglas Rivers & Nancy L. Rose, Passing the President's Program: Public Opinion and Presidential Influence in Congress, 29 AM. J. POL. SCI. 183, 194 (1985) (finding that "public opinion is an important source of presidential influence in Congress"). To take just one example, it is clearly the case that an unpopular President-that is, one who has been doing badly on the public relations front-will face more Senate opposition to his judicial nominations than a popular President.
45. See GEORGE L. WATSON & JOHN A. STOOKEY, SHAPING AMERICA: THE POLITICS OF SUPREME COURT APPOINTMENTS 88-89 (1995). That is to say, a President who has lost the support of the public cannot expect deference in this area; rather, the Senate will be more assertive in its demands to exercise power. And this can be true even when the same party controls both the Senate and the Presidency, as demonstrated by President Bush's failed nomination of Harriet Miers to the Supreme Court in 2005.
46. See JAN CRAWFORD GREENBURG, SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT 263-84 (2007) (describing the controversy over the Miers nomination).
47. Adrian Vermeule has considered a suite of congressional procedure issues in Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361 (2004). His focus, however, is not primarily on their separation-of-powers implications, but rather on comparing the rules laid out in the Constitution with those produced by a positive political theory of ideal institutional design. See id. at 363. Perhaps as a result of our distinct purposes, Vermeule also focuses on an almost completely different set of procedures than I do here.
48. In cases of presidential impeachment only, the Chief Justice presides over the Senate trial. See id. § 3, cl. 6. But the Chief Justice does not vote, and any rulings he makes from the chair can be overridden by a majority of Senators. See RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON IMPEACHMENT TRIALS, at R. VII, in COMM. ON RULES AND ADMIN., U.S. SENATE, SENATE MANUAL CONTAINING THE STANDING RULES, ORDERS, LAWS, AND RESOLUTIONS AFFECTING THE BUSINESS OF THE U.S. SENATE, S. DOC. NO. 110-1, at 207, 208-09 (2008). The involvement of the judiciary in impeachments is thus de minimis.
49. H.R. Res. 32, 110th Cong. (2007) (denouncing various forms of gender-based persecution). These and other uses of congressional resolutions are discussed thoroughly in Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 STAN. L. REV. 573 (2008). Accordingly, I have chosen to focus on other examples of soft power here.
50. I refer to them as absolute vetogates because Professor Eskridge, among others, has used the term "vetogates" somewhat more promiscuously. See William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 NOTRE DAME L. REV. 1441, 1444-48 (2008) (including, inter alia, substantive congressional committees, the House Rules Committee, and conference committees on the list of vetogates). Although the "vetogates" on Eskridge's expanded list are undoubtedly serious choke points for legislation, most of them can be-and occasionally are-evaded. For example, substantive committees can be circumvented in the House by discharge petitions and in the Senate by introducing legislation directly onto the floor or introducing it as a floor amendment to another bill.
51. See CQ PRESS, HOW CONGRESS WORKS 86-87 (4th ed. 2008) (describing discharge petitions);
52. id. at 108 (describing the use of nongermane amendments to "wrest bills out of reluctant committees" in the Senate); see also CHARLES WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT 132-35 (1985) (describing how the 1964 Civil Rights Act was introduced directly onto the Senate floor in order to avoid getting bogged down in the Judiciary Committee). Or consider the 2010 health care reform law, which avoided conference committee
53. See STAFF OF THE WASH. POST, LANDMARK: THE INSIDE STORY OF AMERICA'S NEW HEALTH-CARE LAW AND WHAT IT MEANS FOR US ALL 49-62 (2010) (describing the congressional maneuvering designed to avoid conference committee on the bill). Bicameralism, on the other hand, is a hard-wired constitutional requirement; I therefore refer to it as an "absolute vetogate."
54. See Doris M. Gill, The Treasury, 1660-1714, 46 ENG. HIST. REV. 600, 610 (1931) ("Charles II and James II were granted a revenue for life on their accession, so that it was only necessary for the king to apply to parliament to supply deficiencies in his income and to cover war expenses.").
55. On the tendency of the early Stuarts to resort to prerogative taxation, see Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083, 1100-16 (2009).
56. G.M. TREVELYAN, THE ENGLISH REVOLUTION, 1688-1689, at 96 (1977).
57. Rebecca Kysar has recently attacked sunset provisions on a number of fronts. See Rebecca M. Kysar, Lasting Legislation, 159 U. PA. L. REV. 1007, 1051-65 (2011). The merits of Kysar's particular attacks are beyond the scope of this Article, but it should be noted that none of her arguments address the separation-of-powers implications of sunset provisions, which are my focus here.
58. See Beryl A. Howell, Seven Weeks: The Making of the USA PATRIOT Act, 72 GEO. WASH. L. REV. 1145, 1172, 1178-79 (2004) (noting that the Bush Administration preferred a bill lacking a sunset clause).
59. STAFF OF S. COMM. ON THE BUDGET, 105TH CONG., THE CONGRESSIONAL BUDGET PROCESS: AN EXPLANATION 5 (Comm. Print 1998);
60. see also ALLEN SCHICK, THE FEDERAL BUDGET: POLITICS, POLICY, PROCESS 57 (3d ed. 2007) ("Direct spending is not controlled by annual appropriations but by the legislation that establishes eligibility criteria and payment formulas, or otherwise obligates the government.").
61. See OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, FISCAL YEAR 2012: HISTORICAL TABLES, BUDGET OF THE U.S. GOVERNMENT 145 tbl.8.1 (2010) (recording that, for fiscal year 2010, total spending was $3.5 trillion, of which $2.1 trillion went to mandatory spending and net interest).
62. See Robert C. Byrd, Policy Essay, The Control of the Purse and the Line Item Veto Act, 35 HARV. J. ON LEGIS. 297, 314 (1998) (noting the considerable growth in mandatory spending since the 1960s).
63. See Alan L. Feld, The Shrunken Power of the Purse, 89 B.U. L. REV. 487, 492 (2009) (noting that the prevalence of "permanent fiscal legislation limits Congress's ability to review and change priorities through the appropriation process").
64. Charles L. Black, Jr., The Working Balance of the American Political Departments, 1 HASTINGS CONST. L.Q. 13, 15 (1974).
65. Mike Dorf, who suggested the air conditioning hypothetical in conversation, is also the source of the hypothetical about cutting the salaries of judicial staff. See Michael C. Dorf, Fallback Law, 107 COLUM. L. REV. 303, 331 (2007). Dorf raises the possibility that such cuts would be an unconstitutional violation of a structural principle of judicial independence, but he does not take a position on the question. See id. at 331-32.
66. Not entirely. "Essential" government personnel continue to report for work, even during government "shutdowns," although they cannot be paid until the government reopens. See Auth. for the Continuance of Gov't Functions During a Temp. Lapse in Appropriations, 5 Op. O.L.C. 1, 11-12 (1981) (noting that, even during a shutdown, the executive branch possesses "leeway to perform essential functions and make the government 'workable'"). But this leeway is rather tightly constrained.
67. Auth. to Employ the Servs. of White House Office Emps. During an Appropria tions Lapse, 19 Op. O.L.C. 235, 235 (1995) (discussing the limits of "emergencies involving an imminent threat to the safety of human life or the protection of property").
68. See generally ELIZABETH DREW, SHOWDOWN: THE STRUGGLE BETWEEN THE GINGRICH CONGRESS AND THE CLINTON WHITE HOUSE 330-41, 355-67 (1996) (describing the shutdowns);
69. SHARON S. GRESSLE, CONG. RESEARCH SERV., 98-844GOV, SHUTDOWN OF THE FEDERAL GOVERNMENT: CAUSES, EFFECTS, AND PROCESS 2-3 (2001) (same).
70. See Richard S. Conley, President Clinton and the Republican Congress, 1995-2000: Political and Policy Dimensions of Veto Politics in Divided Government, 31 CONGRESS & PRESIDENCY 133, 151 (2004) ("By early January 1996 it became clear that the public was beginning to ascribe far greater blame to the Congress than to the president for the policy confrontation and stalemate.").
71. It would, nevertheless, be a common mistake. See, e.g., Chris McGreal, Midterms 2010: Lessons of 1994, GUARDIAN (London), Nov. 4, 2010, at 13 (suggesting, based on the evidence of the 1995 shutdown alone and without regard to context, that the President enjoys a significant advantage in a budget shutdown);
72. Steve Benen, Norquist Thinks the GOP Will Win from Another Shutdown, WASH. MONTHLY POL. ANIMAL BLOG (Nov. 19, 2010, 11:30 AM), http://www. washingtonmonthly.com/archives/individual/2010-11/026718.php (noting that some Republicans "seriously believe that the public would credit Republicans for shutting down the government" and asking "whether Republican leaders are crazy enough to think this is a good idea");
73. Joseph Lazzaro, The Looming Springtime Shutdown of the U.S. Government, DAILYFINANCE (Feb. 20, 2011, 9:00 AM), http://www.dailyfinance.com/2011/02/20/ looming-springtime-governmentshutdown (suggesting that "history" teaches that Congress will lose the public opinion battle over a government shutdown).
74. STEVEN M. GILLON, THE PACT: BILL CLINTON, NEWT GINGRICH, AND THE RIVALRY THAT DEFINED A GENERATION 159 (2008).
75. See Ann Devroy & Eric Pianin, Talks on 7-Year Balanced Budget 'Goal' Collapse, WASH. POST, Nov. 18, 1995, at A1 (discussing the President's slipping public approval ratings and the mounting pressure from House Democrats who "urg[ed] passage of a new continuing resolution and instruct[ed] the President to work with Congress to develop a seven-year balanced budget 'without preconditions'");
76. Todd S. Purdum, President and G.O.P. Agree to End Federal Shutdown and to Negotiate a Budget, N.Y. TIMES, Nov. 20, 1995, at A1 (stating that, "[w]hile early public opinion polls" favored the President, "[t]he consensus on Capitol Hill was that Mr. Clinton would have had a hard time sustaining a veto if Democrats were given another chance to vote on" "a stopgap spending measure. that. included the goal of balancing the budget in seven years").
77. See Carl Hulse, Taking Control, G.O.P. Overhauls Rules in House, N.Y. TIMES, Jan. 6, 2011, at A1 (noting that sixty-three House seats switched from Democratic to Republican control, giving the Republicans a 242-to-193 edge, and that six Senate seats shifted from Democratic to Republican control, leaving the Democrats with a slim 53-to-47 margin in that chamber).
78. Peter Baker & Carl Hulse, The Great Divide: Obama and G.O.P., N.Y. TIMES, Nov. 4, 2010, at A1.
79. See Peter Baker, Washington Worries About Its New Power Couple, N.Y. TIMES, Nov. 10, 2010, at A24.
80. Jennifer Steinhauer, 2011 Budget Bill with Cuts Is Approved by Congress, N.Y. TIMES, Apr. 15, 2011, at A1.
81. See Felicity Barringer & John M. Broder, Congress, in a First, Removes an Animal from the Endangered Species List, N.Y. TIMES, Apr. 13, 2011, at A16 ("A rider to the Congressional budget measure. dictates that wolves in Montana and Idaho be taken off the endangered species list. . The rider is the first known instance of Congress' directly intervening in the list.").
82. See Trip Gabriel, Budget Deal Fuels Revival of School Vouchers, N.Y. TIMES, Apr. 15, 2011, at A18 (noting that the budget deal included a provision financing school vouchers in Washington, D.C.).
83. See Editorial, The Crisis Next Time, N.Y. TIMES, Apr. 11, 2011, at A24 (noting that a provision in the budget deal prohibits the District of Columbia from spending any public money on abortion provision).
84. See James Risen, Obama Takes on Congress over Policy Czar Positions, N.Y. TIMES, Apr. 17, 2011, at A17.
85. In a signing statement, President Obama suggested that this provision of the budget law may be an unconstitutional infringement of his inherent Article II powers. See Statement on Signing the Department of Defense and Full-Year Continuing Appropriations Act, 2011, 2011 DAILY COMP. PRES. DOC. 263 (Apr. 15, 2011).
86. On the separation-of-powers tussle over "policy czars," see generally Kevin Sholette, Note, The American Czars, 20 CORNELL J.L. & PUB. POL'Y 219 (2010).
87. Indeed, some have even proposed moving to a biennial cycle for discretionary spending. See Marcus K. Garner, Isakson Pitches Biennial Budget, ATLANTA J.-CONST., Apr. 16, 2011, at A4 ("Isakson, Democratic co-sponsor Sen. Jeanne Shaheen of New Hampshire and a growing list of co-sponsors want Congress to pass a budget every two years, rather than every year. Despite a long history of indifference, the idea appears to be gaining support in key committees."). Needless to say, this would further reduce Congress's ability to use the power of the purse in pursuit of its goals.
88. Kate Stith has even suggested that such a hands-off approach to the budget on the part of Congress may be unconstitutional. See Kate Stith, Congress' Power of the Purse, 97 YALE L.J. 1343, 1345-46 (1988) ("Congress abdicates, rather than exercises, its power of the purse if it creates permanent or other open-ended spending authority that effectively escapes periodic legislative review and limitation. Accordingly, I propose that not every legislative grant of spending authority necessarily qualifies as an 'Appropriation[] made by Law' under the Constitution." (alteration in original)). Whether such congressional abdication is unconstitutional or not, it clearly does represent a less-than-emphatic use of Congress's constitutional powers.
89. Cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 968-69 (1979) (noting that law serves largely to structure bargaining that takes place outside of the courtroom).
90. See, e.g., Bruce Ackerman & Oona Hathaway, Limited War and the Constitution: Iraq and the Crisis of Presidential Legality, 109 MICH. L. REV. 447, 510 (2011) (arguing that Congress should vigorously employ its power of the purse to check presidential unilateralism in warmaking).
91. See JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS 212-14, 222-34 (2007) (describing the theory and history of the houses' power to punish nonmembers for contempt);
92. see also MORTON ROSENBERG & TODD B. TATELMAN, CONG. RESEARCH SERV., RL34097, CONGRESS'S CONTEMPT POWER: LAW, HISTORY, PRACTICE, AND PROCEDURE 2-4 (2008) (noting that a congressional contempt power "has been deemed implicit in the Constitution's grant to Congress of all legislative powers" by the Supreme Court);
93. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 842, at 305 (Fred B. Rothman & Co. 1991) (1833) ("[I]t is obvious, that, unless such a power [to punish nonmembers for contempt], to some extent, exists by implication, it is utterly impossible for either house to perform its constitutional functions.");
94. C.S. Potts, Power of Legislative Bodies to Punish for Contempt (pt. 2), 74 U. PA. L. REV. 780, 780 (1926) ("[C]ourts in this country and in England have practically without exception recognized the existence of the right of legislative bodies to protect their rightful privileges and to remove obstructions to the proper performance of their functions, by use of their contempt powers against offenders. . [T]he right has been justified by courts on both sides of the Atlantic. on the ground of necessity.").
95. For Congress to perform any of its functions, it must have access to information. See J.W. Fulbright, Congressional Investigations: Significance for the Legislative Process, 18 U. CHI. L. REV. 440, 441 (1951) ("The power to investigate is one of the most important attributes of the Congress. It is perhaps also the most necessary of all the powers underlying the legislative function.");
96. James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153, 209 (1926) ("To deny Congress power to acquaint itself with facts is equivalent to requiring it to prescribe remedies in darkness.").
97. And in order for it to have reliable access to information, it must have the contempt power. See Allen B. Moreland, Congressional Investigations and Private Persons, 40 S. CAL. L. REV. 189, 189 (1967) ("In practical terms, the inquisitorial authority of the Congress ends at the point where a witness will be excused. for refusing to obey a congressional summons to appear or to produce papers, or for refusing to answer questions posed by a member or committee of Congress.").
98. See ROSENBERG & TATELMAN, supra note 101, at 15-20 (describing the procedures the houses have used in exercising their inherent contempt power); see also Michael A. Zuckerman, The Court of Congressional Contempt, 25 J.L. & POL. 41, 68-80 (2009) (recommending certain procedural innovations in how the houses handle contempt proceedings).
99. The Supreme Court has insisted that the congressional power to punish is limited to "'the least possible power adequate to the end proposed;' which is the power of imprisonment." Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821). The houses have also made use of reprimands.
100. See, e.g., 2 ASHER C. HINDS, HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 1616-1619, at 1083-89 (1907) (describing the House's reprimand of Samuel Houston, then a private citizen, for assaulting a member of Congress because of the member's remarks during a debate).
101. Indeed, I am not aware of any. The closest situation of which I am aware is one in which the Department of Justice sought a court order enjoining a private party from complying with a congressional subpoena. See United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976). The Department's attempt to enjoin compliance with the subpoena likely implies that, had the House found the private party in contempt for refusing to comply with the subpoena, the Department would have declined to prosecute. Ultimately, however, the matter was settled by negotiation, so the issue of contempt never arose. See Patricia M. Wald & Jonathan R. Siegel, The D.C. Circuit and the Struggle for Control of Presidential Information, 90 GEO. L.J. 737, 745-46 (2002) (describing the appellate court's role in fostering a negotiated settlement).
102. For just a sampling of the literature on the U.S. Attorney controversy, see OFFICE OF THE INSPECTOR GEN. & OFFICE OF PROF'L RESPONSIBILITY, U.S. DEP'T OF JUSTICE, AN INVESTIGATION INTO THE REMOVAL OF NINE U.S. ATTORNEYS IN 2006 (2008), available at http://www.justice.gov/opr/us-att-firings-rpt092308. pdf;
103. John McKay, Train Wreck at the Justice Department: An Eyewitness Account, 31 SEATTLE U. L. REV. 265, 267-92 (2008);
104. Mark J. Rozell & Mitchel A. Sollenberger, Executive Privilege and the U.S. Attorneys Firings, 38 PRESIDENTIAL STUD. Q. 315, 319-24 (2008);
105. David C. Weiss, Note, Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, and Pretextual Justification in the U.S. Attorney Removals, 107 MICH. L. REV. 317, 322-32 (2008).
106. See Carrie Johnson, Deal Clears Rove, Miers to Discuss Prosecutor Firings, WASH. POST, Mar. 5, 2009, at A8 (noting that the interviews would be transcribed and without cameras and that certain matters would be off-limits);
107. See Stanley M. Brand & Sean Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly Means by Which Congress May Enforce Investigative Demands Against Executive Branch Officials, 36 CATH. U. L. REV. 71, 81, 84 (1986) (noting the effect of delay in hindering congressional oversight).
108. See, e.g., Julian Davis Mortenson, Executive Power and the Discipline of History, 78 U. CHI. L. REV. 377, 387-88 (2011) (book review) (describing the Bush Administration's "assertions of [executive] constitutional preeminence" and Bush Administration official John Yoo's attempt to provide scholarly justification for these assertions).
109. But cf. Jon D. Michaels, The (Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and Beyond, 97 VA. L. REV. 801, 810-28 (2011) (suggesting that, at least twice in recent decades, the executive branch has voluntarily and unilaterally limited its own discretion).
110. See CHAFETZ, supra note 101, at 69 (discussing the Haxey case); HENRY ELSYNGE, THE MANNER OF HOLDING PARLIAMENTS IN ENGLAND 179-81 (London, Richardson & Clark 1768) (same);
111. F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 241 (H.A.L. Fisher ed., 1908) (same);
112. CARL WITTKE, THE HISTORY OF ENGLISH PARLIAMENTARY PRIVILEGE 23-24 (Da Capo Press 1970) (1921) (same).
113. See, e.g., 1 H.C. JOUR. 37 (1554) (noting that the Speaker petitioned Queen Mary for "free Speech in the House" and that the Queen granted the petition). For the history of the Speaker's petition generally, see J.E. Neale, The Commons' Privilege of Free Speech in Parliament, in 2 HISTORICAL STUDIES OF THE ENGLISH PARLIAMENT 1399-1603, at 147, 157-59 (E.B. Fryde & Edward Miller eds., 1970).
114. An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown (Bill of Rights), 1689, 1 W. & M., c. 2, § 9. On this provision in the Bill of Rights, see generally S.A. de Smith, Parliamentary Privilege and the Bill of Rights, 21 MOD. L. REV. 465, 468-75 (1958);
115. Geoffrey Lock, The 1689 Bill of Rights, 37 POL. STUD. 540, 552-54 (1989).
116. See MD. CONST. of 1776, Declaration of Rights, art. VIII, reprinted in 3 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA 1686, 1687 (Francis Newton Thorpe ed., 1909) [hereinafter THORPE];
117. S.C. CONST. of 1776, art. VII (same), reprinted in 6 THORPE, supra note 149, at 3241, 3244. In South Carolina, at least, those privileges clearly included freedom of speech and debate. See MARY PATTERSON CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES 94 (1943) (noting a claim of the speech or debate privilege in the South Carolina colonial legislature as early as 1701).
118. See JACK P. GREENE, NEGOTIATED AUTHORITIES: ESSAYS IN COLONIAL POLITICAL AND CONSTITUTIONAL HISTORY 189-99 (1994) (discussing the extent to which New World legislatures borrowed Old World privileges).
119. ARTICLES OF CONFEDERATION of 1781, art. V, para. 5.
120. Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).
121. The House of Representatives has always met publicly, as a general rule, although it can go into secret session under certain specified conditions. See RULES OF THE HOUSE OF REPRESENTATIVES R. XVII, § 9, H.R. DOC. NO. 110-162, at 760-62 (2009). The Senate met secretly for its first five years.
122. See 1 ANNALS OF CONG. 15 ( J oseph Gales ed., 1834) (editor's note). This secrecy, however, was criticized on the grounds that it was inconsistent with popular sovereignty, and the Senate eventually bowed to public pressure and opened its proceedings to the public.
123. See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801, at 10 (1997).
124. As with the House, the Senate retains the ability to go into secret session under certain specified conditions. See STANDING RULES OF THE SENATE R. XXI, in COMM. ON RULES AND ADMIN., U.S. SENATE, SENATE MANUAL CONTAINING THE STANDING RULES, ORDERS, LAWS, AND RESOLUTIONS AFFECTING THE BUSINESS OF THE U.S. SENATE, S. DOC. NO. 110-1, at 1, 20 (2008). It should be noted that the ability to meet in secret is very seldom used.
125. See Eric Lane et al., Too Big a Canon in the President's Arsenal: Another Look at United States v. Nixon, 17 GEO. MASON L. REV. 737, 758 (2010) (noting that the House met secretly only six times between 1825 and 2008 and that the Senate met secretly only fifty-four times between 1925 and 2010). Moreover, the Constitution itself, through the Journals Clause, requires a certain level of openness.
126. See U.S. CONST. art. I, § 5, cl. 3 ("Each House shall keep a Journal of its Proceedings, and from time to time publish the same. ."). As David Currie has noted, "[N]either chamber interpreted the journal provision to require a verbatim transcript of its proceedings." CURRIE, supra, at 10. However, newspapers carried extensive coverage of debates in the House from the beginning, and they covered Senate debates with the same level of detail once the Senate opened its galleries. Indeed, The Annals of Congress, published by Gales and Seaton between 1834 and 1836, is simply a compilation of such newspaper accounts for the Congresses meeting between 1789 and 1824. See Seth Barrett Tillman, The Annals of Congress, the Original Public Meaning of the Succession Clause, and the Problem of Constitutional Memory 8-10 ( June 30, 2011) (unpublished manuscript), available at http://ssrn.com/abstract=1524008 (describing the Annals). It is thus clear that American political and constitutional norms have long required that legislative proceedings be open, except in sharply limited circumstances. This norm has, of course, only strengthened with the advent of televised congressional proceedings.
127. This, indeed, was the theme of a petition that Thomas Jefferson wrote to the Virginia House of Delegates in 1797 on the subject of the speech or debate privilege. See Thomas Jefferson, Petition to Virginia House of Delegates (asserting that the privilege exists to ensure that representatives "in the discharge of their functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive; and that their communications with their constituents should of right, as of duty also, be free, full, and unawed by any"), in 8 THE WORKS OF THOMAS JEFFERSON IN TWELVE VOLUMES 322, 322 (Paul Leicester Ford ed., 1904). See generally CHAFETZ, supra note 101, at 88-89 (discussing Jefferson's comments); id. at 90-93 (discussing the importance of constituent communication in understanding the scope of the Speech or Debate Clause).
128. N.Y. Times Co. v. United States (Pentagon Papers), 403 U.S. 713 (1971) (per curiam).
129. Lionization of New York Times v. United States is widespread. See, e.g., CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT 73 (2001) (listing it as one of the Court's four "greatest moments" in the second half of the twentieth century);
130. William R. Glendon, The Pentagon Papers-Victory for a Free Press, 19 CARDOZO L. REV. 1295, 1306 (1998) (arguing that the importance of the case "cannot be overstated");
131. Gordon Silverstein & John Hanley, The Supreme Court and Public Opinion in Times of War and Crisis, 61 HASTINGS L.J. 1453, 1479 (2010) ("Most casual readers think of the Pentagon Papers case as a great victory for the freedom of the press. And it was. But it was at least equally significant as a statement on the separation of powers and executive power in wartime." (footnotes omitted));
132. see also J.M. Balkin & Sanford Levinson, Commentary, The Canons of Constitutional Law, 111 HARV. L. REV. 963, 974 n.43 (1998)
133. (listing New York Times v. United States as one of only eighteen "truly canonical" American constitutional law cases)
134. (citing Jerry Goldman, Is There a Canon of Constitutional Law?, AM. POL. SCI. ASS'N NEWSL. (Law and Courts Section of the Am. Political Sci. Ass'n), Spring 1993, at 2-4).
135. The Pentagon Papers is the popular name for the top secret Pentagon study prepared between 1967 and 1969 and officially titled "History of U.S. Decision Making Process on Vietnam Policy." The complete study was over seven thousand pages long and was bound in forty-seven volumes. Only parts of it were leaked.
136. See DAVID RUDENSTINE, THE DAY THE PRESSES STOPPED: A HISTORY OF THE PENTAGON PAPERS CASE 2, 27 (1996).
137. Three editions of the Pentagon Papers were eventually published in book form. The first, published by Bantam, consisted of the New York Times's edition of the Papers, as well as various supplementary material by the Times. NEIL SHEEHAN ET AL., THE PENTAGON PAPERS AS PUBLISHED BY THE NEW YORK TIMES (1971).
138. It is the shortest of the three. The other two-the Gravel edition, THE PENTAGON PAPERS: THE SENATOR GRAVEL EDITION (1972) (in five volumes)
139. [hereinafter GRAVEL EDITION], and the gov ernment's own edition, U.S. DEP'T OF DEFENSE, UNITED STATES-VIETNAM RELATIONS, 1945-1967 (1971) (in twelve volumes)-are both significantly longer. Each of these contains material that the others lack, but even combined they do not comprise the entirety of the Pentagon Papers. In 2011, the government finally released the entirety of the Papers.
140. See Michael Cooper & Sam Roberts, After 40 Years, the Complete Pentagon Papers, N.Y. TIMES, June 8, 2011, at A12.
141. Neil Sheehan, Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement, N.Y. TIMES, June 13, 1971, at A1;
142. Neil Sheehan, Vietnam Archive: A Consensus to Bomb Developed Before '64 Election, Study Says, N.Y. TIMES, June 14, 1971, at A1;
143. Neil Sheehan, Vietnam Archive: Study Tells How Johnson Secretly Opened Way to Ground Combat, N.Y. TIMES, June 15, 1971, at A1.
144. United States v. N.Y. Times Co., 328 F. Supp. 324, 325 (S.D.N.Y. 1971).
145. See Chalmers M. Roberts, Documents Reveal U.S. Effort in '54 to Delay Viet Election, WASH. POST, June 18, 1971, at A1.
146. See United States v. Wash. Post Co., 446 F.2d 1322, 1323 (D.C. Cir. 1971) (per curiam).
147. N.Y. Times, 328 F. Supp. at 331.
148. United States v. N.Y. Times Co., 444 F.2d 544, 544 (2d Cir. 1971) (en banc) (per curiam).
149. United States v. Wash. Post Co., 446 F.2d 1327, 1329 (D.C. Cir. 1971) (en banc) (per curiam).
150. United States v. Wash. Post Co., 403 U.S. 943 (1971);
151. N.Y. Times Co. v. United States, 403 U.S. 942 (1971).
152. N.Y. Times Co. v. United States (Pentagon Papers), 403 U.S. 713 (1971) (per curiam).
153. See Sanford J. Ungar & George Lardner, Jr., War File Articles Resumed, WASH. POST, July 1, 1971, at A1 ("Newspapers throughout the nation, expressing satisfaction the once-secret Pentagon papers on Vietnam.").
154. Daniel Ellsberg, Foreword to MIKE GRAVEL & JOE LAURIA, A POLITICAL ODYSSEY: THE RISE OF AMERICAN MILITARISM AND ONE MAN'S FIGHT TO STOP IT 9, 9-10 (2008).
155. See N.Y. Times Co. v. United States (Pentagon Papers), 403 U.S. 713 (1971) (per curiam); see also RUDENSTINE, supra note 159, at 302 (noting that the Court announced its judgment at 2:30 PM on June 30).
156. See Gravel v. United States, 408 U.S. 606, 608-09 (1972).
157. For criticism of Gravel's second holding, see CHAFETZ, supra note 101, at 99- 100; Sam J. Ervin, Jr., The Gravel and Brewster Cases: An Assault on Congressional Independence, 59 VA. L. REV. 175, 184-88 (1973).
158. See INSIDE THE PENTAGON PAPERS 183 (John Prados & Margaret Pratt Porter eds., 2004) ("[T]he Pentagon Papers revelation 'lent credibility to and finally crystalized the growing consensus that the Vietnam War was wrong and legitimized the radical critique of the war.' The leak also began a period of militancy on the part of the press.");
159. Heidi Kitrosser, What If Daniel Ellsberg Hadn't Bothered?, 45 IND. L. REV. 89, 93 (2011) ("[T]he leak . . . is invoked in judicial opinions and in public debates alike for the proposition that it is dangerous to defer heavily to executive branch judgments, including executive claims that certain information is too dangerous to release. It is highly plausible that this social learning effect imposes practical constraints on the executive's ability to take legal action against classified information leaks and publications."); id. at 100 ("The Papers thus helped to disrupt the momentum of the national security state and the imperial presidency. It forced a crisis in the culture of deference and trust on which those phenomena relied.").
160. See, e.g., ACLU v. Dep't of Def., 389 F. Supp. 2d 547, 561 (S.D.N.Y. 2005) (noting the "unfortunate tendency of government officials to over-classify information");
161. Steven Aftergood, Reducing Government Secrecy: Finding What Works, 27 YALE L. & POL'Y REV. 399, 401-07 (2009) (summarizing the literature on overclassification);
162. Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 COLUM. L. REV. 929, 1085 (1973) (noting that "substantial overclassification is inevitable given the variety of inducements to official secrecy").
163. See David E. Pozen, Deep Secrecy, 62 STAN. L. REV. 257, 260 (2010) (explaining that secrets are deep when "we do not know [that] we do not know" some relevant fact); see also id. at 274 (offering a more formal definition of a "deep" secret as one where "a small group of similarly situated officials conceals its existence from the public and from other officials, such that the outsiders' ignorance precludes them from learning about, checking, or influencing the keepers' use of the information").
164. See Heidi Kitrosser, It Came from Beneath the Twilight Zone: Wiretapping and Article II Imperialism, 88 TEX. L. REV. 1401, 1406-07 (2010) (describing the Terrorist Surveillance Program, whose existence was kept secret from 2001 to 2005).
165. Patriot Sunsets Extension Act of 2011, Pub. L. No. 112-14, 125 Stat. 216 (to be codified at 50 U.S.C. §§ 1805, 1861, 1862).
166. See Charlie Savage, Senators Say Patriot Act Is Being Misinterpreted, N.Y. TIMES, May 27, 2011, at A17 ("During the debate, Senator Ron Wyden . . . said that the executive branch had come up with a secret legal theory about what it could collect under a provision of the Patriot Act that did not seem to dovetail with a plain reading of the text. . . . Senator Mark Udall, Democrat of Colorado, backed Mr. Wyden's account.").
167. 157 CONG. REC. S3386 (daily ed. May 26, 2011) (statement of Sen. Ron Wyden);
168. See generally Trevor W. Morrison, Constitutional Alarmism, 124 HARV. L. REV. 1688, 1724-30 (2011) (reviewing ACKERMAN, supra note 2) (arguing that the work of the Office of Legal Counsel should be disclosed);
169. Sudha Setty, No More Secret Laws: How Transparency of Executive Branch Legal Policy Doesn't Let the Terrorists Win, 57 U. KAN. L. REV. 579, 601-29 (2009) (same).
170. Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV. 865, 885 (2007).
171. see also Kathleen Clark, Congress's Right to Counsel in Intelligence Oversight, 2011 U. ILL. L. REV. 915, 936-51 (describing the institutional features that allow Congress to keep secrets). 200 5 GRAVEL EDITION, supra note 160, at 314.
172. See ERWIN N. GRISWOLD, OULD FIELDS, NEW CORNE: THE PERSONAL MEMOIRS OF A TWENTIETH CENTURY LAWYER 310 (1992) ("As far as I know, . . . none of the material which was 'objectionable' from my point of view was ever published by anyone, including the newspapers, until several years later.");
173. Erwin N. Griswold, 'No Harm Was Done,' N.Y. TIMES, June 30, 1991, at E15 ("In hindsight, it is clear to me that no harm was done by publication of the Pentagon Papers.");
174. Erwin N. Griswold, Secrets Not Worth Keeping, WASH. POST, Feb. 15, 1989, at A25 ("I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat.").
175. Mark Fenster, Disclosure's Effects: WikiLeaks and Transparency, 97 IOWA L. REV. (forthcoming 2012) (manuscript at 4-5) (italics omitted), available at http://ssrn.com/abstract=1797945.
176. For a discussion of WikiLeaks and its disclosures, see generally Yochai Benkler, A Free Irresponsible Press: WikiLeaks and the Battle over the Soul of the Networked Fourth Estate, 46 HARV. C.R.-C.L. L. REV. 311, 315-51 (2011);
177. For the details of the Plame affair, see generally Richard B. Kielbowicz, The Role of News Leaks in Governance and the Law of Journalists' Confidentiality, 1795-2005, 43 SAN DIEGO L. REV. 425, 464-65 (2006).
178. Cf. Kenneth A. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Oxymoron, 12 INT'L REV. L. & ECON. 239, 244 (1992) ("[T]here is not a single legislative intent, but rather many legislators' intents. Congress is a 'they', not an 'it.'").
179. Or, as Spider-Man more pithily put it, "[W]ith great power there must also come-great responsibility!" STAN LEE, STEVE DITKO & ART SIMEK, AMAZING FANTASY NO. 15, at 11 (1962)
180. reprinted in 1 THE ESSENTIAL SPIDER-MAN (2004).
181. U.S. CONST. art. I, § 6, cl. 1.
182. Philip Pettit, The Cunning of Trust, 24 PHIL. & PUB. AFF. 202, 209-10 (1995).
183. See Eran Vigoda-Gadot, Citizens' Perceptions of Politics and Ethics in Public Administration: A Five-Year National Study of Their Relationship to Satisfaction with Services, Trust in Governance, and Voice Orientations, 17 J. PUB. ADMIN. RES. & THEORY 285, 288-91, 301 (2007).
184. Marc J. Hetherington, The Political Relevance of Political Trust, 92 AM. POL. SCI. REV. 791, 803 (1998).
185. JACK MASKELL, CONG. RESEARCH SERV., RL31382, EXPULSION, CENSURE, REPRIMAND, AND FINE: LEGISLATIVE DISCIPLINE IN THE HOUSE OF REPRESENTATIVES 1 (2005).
186. 9 H.C. JOUR. 24 (1667).
187. 11 H.C. JOUR. 236 (1695).
188. See Bribery Act, 2010, c. 23, § 12(8). Roughly simultaneously, the United Kingdom Supreme Court ruled that parliamentary privilege did not protect members charged with submitting false claims for expense reimbursement. R v. Chaytor, [2010] UKSC 52 [89]-[93] (appeal taken from Eng.);
189. see also Yvonne Tew, Case Note, No Longer a Privileged Few: Expense Claims, Prosecution, and Parliamentary Privilege, 70 CAMBRIDGE L.J. 282, 282-83 (2011) (discussing Chaytor and the narrow construction of the scope of parliamentary privilege that it adopted).
190. See ERSKINE MAY'S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT 134-35 (Sir William McKay et al. eds., 23d ed. 2004) (noting that, at the time of its publication, no member of Parliament had ever been convicted of bribery in a court of law);
191. see also Dawn Oliver, The Committee on Standards in Public Life: Regulating the Conduct of Members of Parliament, 48 PARLIAMENTARY AFF. 590, 595-96 (1995) (noting the long history and theory behind exclusive parliamentary jurisdiction over matters of parliamentary ethics).
192. PA. CONST. of 1776, ch. II, § 9, reprinted in 5 THORPE, supra note 149, at 3081, 3085. 226 See AMAR, supra note 10, at 75 (noting that, under their Revolutionary constitutions, "[t]wo states held elections for the lower house twice a year, ten others ran annual elections, and only one-South Carolina-gave lower-house members two-year terms. Although several state upper houses featured multiyear terms, none exceeded five years."); see also WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 241-43 (Rita & Robert Kimber trans., Rowman & Littlefield Publishers, expanded ed. 2001) (1973) (describing the brief legislative terms in the Revolutionary state constitutions).
193. U.S. CONST. art. I, § 5, cl. 2.
194. The supermajority requirement was added at the urging of James Madison, who "observed that the right of expulsion . . . was too important to be exercised by a bare majority of a quorum: and in emergencies of faction might be dangerously abused." 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 254 (Max Farrand ed., rev. ed. 1966).
195. U.S. CONST. art. I, § 5, cl. 2.
196. RICHARD D. HUPMAN, SENATE LIBRARY, SENATE ELECTION, EXPULSION AND CENSURE CASES FROM 1793 TO 1972, S. DOC. NO. 92-7, at 3 (1972).
197. But cf. Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 DUKE L.J. 177, 227-30 (2008) (arguing that the House of Representatives can and should refuse to allow resignations precisely in order to punish malfeasors);
198. Eric Lipton & Eric Lichtblau, Report Urges U.S. to Consider Charging Ensign, N.Y. TIMES, May 13, 2011, at A13 ("The Senate Ethics Committee took the unusual step of releasing the results of its investigation into [former Senator John] Ensign, even though it no longer has the power to punish him.").
199. United States v. Johnson, 383 U.S. 169, 170-71 (1966).
200. United States v. Brewster, 408 U.S. 501 (1972).
201. As Mike Dorf has noted, judicial enforcement of norms can "crowd out" enforcement of those same norms by other institutional actors. Michael C. Dorf, How the Written Constitution Crowds Out the Extraconstitutional Rule of Recognition, in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION 69, 77 (Matthew D. Adler & Kenneth Einar Himma eds., 2009).
202. Alison Mitchell, House Votes, with Lone Dissent from Condit, to Expel Traficant from Ranks, N.Y. TIMES, July 25, 2002, at A13.
203. For an entertaining account of Traficant's life and crimes, see David Grann, Crimetown USA, NEW REPUBLIC, July 10 & 17, 2000, at 23.
204. See Shaun Bowler & Jeffrey A. Karp, Politicians, Scandals, and Trust in Government, 26 POL. BEHAV. 271 (2004) (arguing that scandals by individual members of Congress cause a decline in the public perception of Congress as an institution).
205. Cf. Letter from John Emerich Edward Dalberg-Acton to Mandell Creighton (Apr. 5, 1887) ("Power tends to corrupt and absolute power corrupts absolutely."), in JOHN EMERICH EDWARD DALBERG-ACTON, ESSAYS ON FREEDOM AND POWER 358, 364 (Gertrude Himmelfarb ed., 1948).
206. United States v. Brewster, 408 U.S 501, 563 (1972) (White, J., dissenting); see also supra text accompanying note 247.
207. See H.R. Res. 895, 110th Cong. § 1 (2007) (establishing the Office of Congressional Ethics).
208. See, e.g., Eric Lipton, House Ethics Office Gains, Dismissals Aside, N.Y. TIMES, Mar. 23, 2010, at A18 ("Wielding the sheer power of political shame . . . , the Office of Congressional Ethics ha[s] helped spur worried party leaders to rein in abuses and make errant lawmakers pay a price.").
209. See Josh Chafetz, Comment, Cleaning House: Congressional Commissioners for Standards, 117 YALE L.J. 165, 169-72 (2007) (suggesting what a model of a truly vigorous cameral ethics body, modeled on the British Parliamentary Commissioner for Standards, would look like).
210. U.S. CONST. art. I, § 5, cl. 2.
211. See FLOYD M. RIDDICK, SENATE PROCEDURE: PRECEDENTS AND PRACTICES, S. DOC. NO. 97-3, at 568 (1981) (noting that "[t]he Senate operates under the practice of unlimited debate");
212. Richard R. Beeman, Unlimited Debate in the Senate: The First Phase, 83 POL. SCI. Q. 419 (1968) (discussing the history of "unlimited debate" in the Senate).
213. For a description of the modern filibuster, see Josh Chafetz, The Unconstitutionality of the Filibuster, 43 CONN. L. REV. 1003, 1006-11 (2011).
214. See also Aaron-Andrew P. Bruhl, The Senate: Out of Order?, 43 CONN. L. REV. 1041, 1043-46 (2011) (discussing the effect of the supermajority requirement in the 111th Congress);
215. David R. Mayhew, Supermajority Rule in the U.S. Senate, 36 PS: POL. SCI. & POL. 31, 31 (2003) ("Automatic failure for bills not reaching the 60 mark. That is the current Senate practice . . . .").
216. See, e.g., GREGORY KOGER, FILIBUSTERING: A POLITICAL HISTORY OF OBSTRUCTION IN THE HOUSE AND SENATE 39-42 (2010) (suggesting that the Constitution anticipates some measure of obstruction in Congress);
217. GREGORY J. WAWRO & ERIC SCHICKLER, FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE 280-81 (2006) (arguing that the filibuster is constitutional but that a simple majority can change the Senate rules at any time);
218. Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster Constitutional?, 158 U. PA. L. REV. PENNUMBRA 245 (2010), http://www.pennumbra. com/debates/pdfs/Filibuster.pdf (debating the constitutionality of the filibuster);
219. Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 224-52 (1997) (concluding that the filibuster is unconstitutional insofar as it entrenches itself but that an unentrenched filibuster would be constitutional); (Pubitemid 127437489)
220. Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 CONST. COMMENT. 445, 450-70 (2004) (arguing that the filibuster is constitutional);
221. Martin B. Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster, 28 HARV. J.L. & PUB. POL'Y 205 (2004) (arguing that the filibuster is unconstitutional and discussing possible Senate maneuvering for eliminating it);
222. John C. Roberts, Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule, 20 J.L. & POL. 505 (2004) (arguing that an entrenched filibuster is unconstitutional and therefore that the filibuster can be eliminated by majority vote);
223. Virginia A. Seitz & Joseph R. Guerra, A Constitutional Defense of "Entrenched" Senate Rules Governing Debate, 20 J.L. & POL. 1 (2004) (defending the constitutionality of the filibuster)
224. American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong. §§ 721-728 (2009).
225. Ben Geman, Senate Turns Down Resolution to Block EPA Gas Regulations, THE HILL, June 11, 2010, at 3 (first alteration in original).
226. Massachusetts v. EPA, 549 U.S. 497, 532-35 (2007).
227. See Juliet Eilperin, White House Tried to Silence EPA Proposal on Car Emissions, WASH. POST, June 26, 2008, at A2 (describing the Bush Administration's stifling of greenhouse gas regulation in the wake of Massachusetts v. EPA).
228. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009) (Endangerment Finding).
229. See Louis Peck, A Veteran of the Climate Wars Reflects on U.S. Failure to Act, YALE ENV'T 360 (Jan. 4, 2011), http://e360.yale.edu/feature/a-veteran-of- the-climate-wars-reflects-on-us-failure-to-act/2356 (interview with former Representative Rick Boucher) (explaining that he supported the bill because "if Congress did not act, EPA would regulate").
230. See, e.g., Bradford Plumer, Does Obama Need Congress to Act on Climate Change?, NEW REPUBLIC ONLINE (Dec. 4, 2008, 3:40 PM), http://www.tnr.com/blog/ thevine/does-obama-need-congress-act-climate-change ("Republicans may not be able to stymie carbon regulations for long, since the choice isn't between something or nothing; it's between Congress capping emissions or Obama doing it for them. As the saying goes, better to sit at the table than find yourself on the menu.").
231. Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 75 Fed. Reg. 25,324 (May 7, 2010) (codified at 40 C.F.R. pts. 85, 86, 600 (2011)).
232. See, e.g., Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles, 76 Fed. Reg. 57,106 (Sept. 15, 2011) (to be codified in scattered parts of 40 C.F.R.).
233. For a discussion of some regulations that are currently in the works pursuant to the endangerment finding, as well as greenhouse gas regulations passed pursuant to other statutory sources of authority, see Jonathan H. Adler, Heat Expands All Things: The Proliferation of Greenhouse Gas Regulation Under the Obama Administration, 34 HARV. J.L. & PUB. POL'Y 421, 428-44 (2011).
234. For a brief statement of the EPA Administrator's planned timeline for greenhouse gas regulations, see Letter from Lisa Jackson, EPA Adm'r, to Senator Jay D. Rockefeller IV (Feb. 22, 2010), available at http://epa.gov/oar/pdfs/LPJ- letter.pdf.
235. See CNN & OPINION RESEARCH CORP., CNN OPINION RESEARCH POLL, APR. 9- 10, 2011, at 6 (2011), available at http://i2.cdn.turner.com/cnn/2011/images/04/ 11/rel6a.pdf (finding that, in April 2011, seventy-one percent of respondents opposed stripping the EPA of the authority to regulate greenhouse gases);
236. Washington Post-ABC News Poll, WASH. POST (June 8, 2010), http://www.washingtonpost.com/wp-srv/politics/polls/postpoll-060810.html (finding between sixty-five and seventy-five percent support for federal government regulation of greenhouse gases in four polls conducted between April 2009 and June 2010).
237. See generally Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865-66 (1984) (holding that the courts must defer to reasonable agency interpretations of ambiguous statutory language).
238. See Robert Pear, President Nominates Professor to Health Job, N.Y. TIMES, Apr. 20, 2010, at A13.
239. See Robert Pear, Obama to Bypass Senate to Name Health Official, N.Y. TIMES, July 7, 2010, at A11.
240. Jim Kuhnhenn, Obama Picks Consumer Advocate Warren, Opposed by Big Bankers, Will Build Financial Watchdog Agency, HOUSTON CHRON., Sept. 18, 2010, at A3.
241. Paul Wiseman, Warren Gets a Lead Role in Consumer Protection: Harvard Professor to Help Set Up Watchdog Agency, USA TODAY, Sept. 16, 2010, at 1B.
242. See Joseph Williams, Liberals Push Elizabeth Warren Nomination, POLITICO (May 28, 2011, 7:15 AM), http://www.politico.com/news/stories/0511/55864.html ("Liberal boosters for consumer advocate Elizabeth Warren are redoubling their pressure on President Barack Obama to pick her to lead a new financial watchdog agency-despite Republicans' all-out attempts to . . . block Obama from giving her the job over the Memorial Day recess.").
243. See Binyamin Appelbaum, Former Ohio Attorney General to Head New Consumer Agency, N.Y. TIMES, July 18, 2011, at B1 (noting the nomination of Richard Cordray). It is worth noting that President Obama's decision not to recess appoint Warren seems to have had significantly more to do with the fact that "she never won the full support of the president or his senior advisors" than it did with any concern about the recess appointment mechanism. Id.
244. Helene Cooper & Jennifer Steinhauer, Bucking Senate, Obama Appoints Consumer Chief, N.Y. TIMES, Jan. 5, 2012, at A1.
245. See Memorandum from Virginia A. Seitz, Assistant Att'y Gen., Office of Legal Counsel, to Kathryn Ruemmler, Counsel to the President ( Jan. 6, 2012), available at http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf.
246. Katrina vanden Heuvel, Why Obama Should Appoint Elizabeth Warren, WASH. POST (May 24, 2011), http://www.washingtonpost.com/opinions/why-obama- shouldappoint-elizabeth-warren/2011/05/23/AFastWAH-story.html;
247. see also Editorial, Nearly a Year After Dodd-Frank: President Obama Must Nominate-And Fight For-Top-Notch Financial Regulators, N.Y. TIMES, June 14, 2011, at A24 ("Why go with a compromise candidate when Republicans have vowed to block any nominee? Mr. Obama and Senate Democrats should back Ms. Warren and expose to American voters just exactly whose interests the Republicans put first.").
248. Laurence H. Tribe, Games and Gimmicks in the Senate, N.Y. TIMES, Jan. 6, 2012, at A25.
249. Moreover, Congress has used its power of the purse to ensure that such a nominee would have to serve without pay. See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. D, Title VII, § 709, 121 Stat. 1844, 2021 (2007) (codified at note preceding 5 U.S.C. § 5501) ("Hereafter, no part of any appropriation contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate has voted not to approve the nomination of said person.");
250. see also HENRY B. HOGUE, CONG. RESEARCH SERV., RS21308, RECESS APPOINTMENTS: FREQUENTLY ASKED QUESTIONS 5 (2010) (noting this provision, but also noting that, because of the filibuster, "[a]s a practical matter, nominations are rarely rejected by a vote of the full Senate").
251. This dynamic is hardly new-indeed, an early-twentieth-century observer of latenineteenth- century British parliamentary obstructionism noted the same phenomenon: A[n] . . . effect of obstructive tactics is that the business of making the laws of a nation tends to be centred in a small group of men. The English Cabinet is a case in point. This situation is a logical result of the diminution of the powers of the legislature. Misuse of functions by a large body inevitably transfers those functions to a smaller unit. Geddes W. Rutherford, Some Aspects of Parliamentary Obstruction, 22 SEWANEE REV. 166, 177 (1914).
252. See Presidential Appointment Efficiency and Streamlining Act of 2011, S. 679, 112th Cong. (as passed by Senate, June 29, 2011);
253. see also Carl Hulse, Lawmakers Seek to Speed System of Confirmation, N.Y. TIMES, Apr. 25, 2011, at A1 (noting that a proposal to "end Senate review of about 200 executive branch positions" has the support of both parties' leadership in the Senate).
254. See U.S. CONST. art. II, § 2, cl. 2.
255. See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 120-21 (1982) ("[T]he courts in exercising the power to induce the updating of statutes should only deal in areas of legislative inertia.");
256. WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 156-61 (1994) (arguing that dynamic statutory interpretation can help counteract political dysfunction).
257. See Matthew Lund, Comment, The Eighty Percent and Twenty Percent Solutions to Nuclear Proliferation, 2009 BYU L. REV. 741, 743 ("During the Cold War, political efforts and the threat of mutually assured destruction prevented the use of nuclear weapons.").
258. See, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1371-81 (1997) (defending judicial supremacy in constitutional interpretation entirely on the grounds of the importance of law's settlement function). (Pubitemid 127437500)
259. See Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. CHI. L. REV. 691, 716 (2004) (book review) ("Does not our Constitution deliberately prefer division, tension, uncertainty, and dynamic equilibrium over 'authoritative' resolution?");
260. NICCOLÒ MACHIAVELLI, THE DISCOURSES, bk. 1, ch. 4, at 113 (Bernard Crick ed., Leslie J. Walker trans., Penguin Books 1998) (1531).
261. JEREMY WALDRON, THE DIGNITY OF LEGISLATION 34 (1999).
262. Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1028 (1984).
263. Mariah Zeisberg, Constitutional Fidelity and Interbranch Conflict, 13 GOOD SOC'Y, no. 3, 2004, at 24, 28.
264. ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC 4 (2010);
265. See JÜRGEN HABERMAS, JUSTIFICATION AND APPLICATION: REMARKS ON DISCOURSE ETHICS 54-55 (Ciaran Cronin trans., 1993) (describing the conditions for ideal deliberation).
266. See generally RAOUL BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH (1974).
267. The canonical statement of this argument is Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2312 (2006).
268. Richard Fenno has repeatedly stressed that members of Congress pursue good public policy as one of their primary goals. See RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES 1 (1973) (listing "good public policy" as one of three "basic" goals of members);
269. RICHARD F. FENNO, JR., HOME STYLE: HOUSE MEMBERS IN THEIR DISTRICTS 157 (1978) (noting that at least some members cultivate support in their districts precisely in order to have leeway to pursue good policy in Washington);
270. id. at 221-22 (noting that some members are willing to risk losing reelection in their pursuit of good policy). Indeed, even David Mayhew, whose work is often characterized as asserting that members single-mindedly pursue reelection, also notes that "[a]nyone can point to contemporary congressmen whose public activities are not obviously reducible to the electoral explanation." DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 16 (2d ed. 2004). Quantitative work bears out Fenno's thesis that good policy is often a driving force for members' behavior.
271. See James E. Campbell, Cosponsoring Legislation in the U.S. Congress, 7 LEGIS. STUD. Q. 415, 418-19 (1982) (finding that a member's ideology is a significant factor in her decision of what bills to cosponsor);
272. John E. Owens, Good Public Policy Voting in the U.S. Congress: An Explanation of Financial Institutions Politics, 43 POL. STUD. 66, 70 (1995) ("The existing literature on the House Banking Committee shows that most members are motivated more by good public policy goals than by reelection or influence in Washington.");
273. see also DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 21 (1991) (noting that Fenno's view that making good public policy is one significant goal of members is "[s]urely closer to reality" than views that attempt to reduce their motivations to solely self-interested factors).
274. See Josh Chafetz, The Political Animal and the Ethics of Constitutional Commitment, 124 HARV. L. REV. F. 1 (2011), http://www.harvardlawreview.org/ media/pdf/chafetz.pdf (arguing that a republican commitment to the public good explains in some measure why powerful actors accept political outcomes they do not like).
275. See Charlie Savage, Long After Nomination, an Obama Choice Withdraws, N.Y. TIMES, Apr. 10, 2010, at A16 (noting that the Senate never held a floor vote on Johnsen);
276. Carol J. Williams, Political Logjam on Federal Judgeships, L.A. TIMES, Aug. 31, 2010, at A4 (noting that Liu's appointment was blocked in the Senate). Although Democrats had a filibuster-proof majority for much of the time that the Johnsen and Liu nominations were pending, there was enough Democratic opposition to keep them from coming to the floor.