Forging a Political Constitution

Today, the Supreme Court usually decides conflicts between the Executive branch and Congress, along with most other matters of grave national concern. Thomas Rives Bell's The Constitution of Conflict challenges such judicial supremacy as a distortion of the Constitution. Instead, it interprets American constitutionalism as a system of interbranch contestation and negotiation wherein government institutions work out disagreements that naturally arise in a diverse and pluralistic polity. Crucially, this view recognizes that the ends or goals pursued within the constitutional system cannot always be known in advance and are often in tension (majority rule, rights, national security, the rule of law). Hence, the need for constitutionalism that accepts the inevitability of political conflict and facilitates its peaceful settlement without expecting any final resolution. More concretely, Thomas Rives Bell urges that separation-of-powers conflicts between Congress and the Executive branch be regarded as nonjusticiable political questions. Courts should stay out of the way unless one of the other branches encroaches on the judicial power or violates individual rights. This general view of the constitutional system Bell calls “architectonic.” It is an “ends-oriented or political understanding” in contradistinction to the current legalized, court-centered approach. 

This argument is pursued in several case studies (not all of which can receive equal attention here). These include analysis of the legislative veto, executive agreements with foreign nations, recess appointments, and congressional oversight of the executive, particularly regarding executive privilege and the power of impeachment. This book is excellent in many respects, not the least of which is its recognition that a constitutional politics of more robust interbranch conflict and negotiation — and without the assumption of judicial supremacy — would require Congress to reassert itself. While affirming some of the book’s core claims and insights, I will also raise a few points of caution and demurral that revolve around the tension between its dialogic, political conception of constitutionalism and the inevitability of legal formalism in a regime based on a written constitution.

Executive agreements, which now far outnumber treaties, are, for Rives, a mostly positive illustration of his theory. The Court typically eschews foreign affairs, so Congress and the Executive have been able to negotiate various accommodations. Yet controversy continues and typically turns on whether an agreement was reached pursuant to a statutory delegation by Congress or instead based solely on the president’s Article II power. Moreover, there is no way to define which topics should be subject to a treaty and which should be left to executive agreement, so the branches must negotiate this boundary too. In modern times, the Senate typically insists on treaty and ratification for issues of arms control, human rights accords, and issues involving the military, the environment, and extradition. It does so because it thinks these topics are more important than others and so should be bound by the formality of the treaty process, even though the legal and scholarly consensus holds that executive agreements are functionally and legally equivalent to treaties. But are they equally legitimate? Rives brackets this debate and emphasizes the process of interbranch negotiation, arguing that if Congress asserted itself more in the spirit of the treaty clause, if not its letter, then more political credibility and longer-term stability would accrue to the agreements the president reaches. This position appears to affirm the political benefits of formal treaty-making while acquiescing in its decline and desuetude. Here we see the probably inescapable tension between the “architectonic,” political-negotiative conception of constitutionalism Rives avers and legal formalism rooted in the written text.

This tension reappears in an otherwise fine chapter that defends the legislative veto. It is defined as a vote by one or both chambers of Congress (or more dubiously, a committee in one chamber) to negate an executive or administrative action taken under previously delegated legislative authority. Rives properly and insightfully describes it as a constitutional adaptation, achieved via interbranch negotiation and compromise, that accounted for the unavoidability of delegation in the modern administrative state. As such, the legislative veto was an arrangement the branches had worked out and agreed to for decades. And it did indeed serve the core constitutional principle of accountability to the legislature. Immigration and Naturalization Service v. Chadha (1983) invalidated it as a violation of the constitutional requirements that a law pass both chambers and be presented to the president for his signature (bicameralism and presentment). Rejecting Chadha, Rives argues that, while contravening the literal text, the legislative veto comports with the core constitutional functions mandated by the separation of powers (legislation and execution/administration) and merely reverses the sequence and the sites at which they occur. An executive branch or administrative official “legislates” a regulation, and Congress subsequently can exercise (or not) a “veto” regarding it. The overall consistency with these constitutional functions is said to justify the derogation of the text. Such substantial anti-formalism is a tough sell despite the utility of the legislative veto for holding the administrative state accountable to the legislature. Is there a better way to justify it?

It is worth reconsidering a point (that Rives quickly passes over) made decades ago by Murray Dry. All legislation under which Congress instituted a legislative veto initially satisfied the formalities of bicameralism and presentment. Congressional retention of a veto — the reservation of this power to itself — was part of the original, qualified delegation and was approved by both chambers and signed by the president. Understood in this way, the subsequent exercise of the veto is not independent substantive legislation that requires adherence to those formalities again.  This is at least a plausible case for the constitutionality of the legislative veto that accords with the text's formal requirements.

This book affirms the position President Obama took in the 2012 controversy over recess appointments, which was that he could decide when the Senate was in recess and then make appointments without its approval. Rives accordingly rejects the Supreme Court’s decision in National Labor Relations Board v. Noel Canning (2014), which reached the opposite conclusion. One can agree that the Court should have declined jurisdiction but disagree that Obama’s action was constitutionally legitimate. Obama’s aim was to have personnel in place to keep the government running (the broad purpose of the recess appointments clause) even though Republicans in the House refused to agree with the Senate to adjourn (as required by Article I, section 5). Therefore, the Senate continued to hold pro forma sessions even as it declined to confirm several of Obama’s nominees. It is an informality too far, however, to allow the president — rather than Congress — to decide when there is a recess so that he may install his people without Senate confirmation.

Was this episode mere Republican partisan obstruction? Perhaps, but it is not unreasonable to think that the House was exercising the letter of its own power to prevent the president from circumventing the Senate and pushing him instead to nominate candidates who could be confirmed there. Indeed, the NLRB's actions are not merely apolitical, which is why Senate confirmation is required in the first place.

The last case study convincingly argues that claims of executive privilege have metastasized, so that nearly any congressional call for information can be rebuffed. Accordingly, Congress should stop asking courts to enforce its subpoenas of executive branch officials and instead compel accountability by flexing some of its other powers: holding up the president’s legislative agenda, refusing to confirm his nominees, and defunding offices and programs. It could also use its contempt power to arrest those who flout its authority. Of course, the ultimate check is impeachment. Calling on the seminal work of Raoul Berger, Rives rightly concludes that its scope is quite broad: an act need not be criminal to be impeachable. Given this fact, along with the now widely shared view that the Senate constitutionally can try an impeached former officeholder, Bell pronounces the refusal to do so after the second Trump impeachment as “Congress’s shirking of its constitutional authority” and a “major failure of the constitutional system.” By no means is he alone in this view. Nevertheless, it misses an element of the political dynamic involved in impeachment, which is again tied to legal formality. Impeachment is indeed a broad and political power, but an impeachable offense should be more than Gerald Ford’s claim that it consists of whatever a majority of the House votes for (as Bell agrees).  And therein lies the problem. While proof of criminality is not constitutionally required, and even though there is a respectable case for Trump’s criminality, political support for impeachment increases markedly if most people agree that a crime was committed. This is why, in practice, criminality has usually been the standard, even if sometimes a standard to hide behind.

Here I have highlighted the tension between the legal formalism that inheres in America’s written constitutionalism and Rives’s more dialogic, “architectonic” view. This tension will endure as long as the Constitution does. But he is surely correct that our overly legalistic political discourse erodes citizens' capacity to access and understand political disagreements, as they must if we are to remain a self-governing people. Likewise, to punt any and all separation-of-powers conflicts to the judiciary bespeaks the same flight from healthy political conflict. Reinvigorating the constitutionalism of negotiation and compromise that Bell has elucidated so well would require a large step back from the judicial supremacy that has been pervasive for so long. And yet one of the most hopeful recent inducements toward more legislative deliberation and clearer laws was the Supreme Court’s paring back of Congress’s ability to delegate its power to the administrative state. How best to reform and incentivize Congress to recapture its central place in our separation-of-powers system is no simple matter. It remains the challenge of our time, and Bell’s book helps us to understand what is at stake.

Johnathan O’Neill is Professor of History at Georgia Southern University and author of Conservative Thought and American Constitutionalism since the New Deal.