In an original assessment of all three branches, Jasmine Farrier reveals a new way in which the American federal system is broken. Turning away from the partisan narratives of everyday politics, ...Constitutional Dysfunction on Trial diagnoses the deeper and bipartisan nature of imbalance of power that undermines public deliberation and accountability, especially on war powers. By focusing on the lawsuits brought by Congressional members that challenge presidential unilateralism, Farrier provides a new diagnostic lens on the permanent institutional problems that have undermined the separation of powers system in the last five decades, across a diverse array of partisan and policy landscapes. As each chapter demonstrates, member lawsuits are an outlet for frustrated members of both parties who cannot get their House and Senate colleagues to confront overweening presidential action through normal legislative processes. But these lawsuits often backfire – leaving Congress as an institution even more disadvantaged. Jasmine Farrier argues these suits are more symptoms of constitutional dysfunction than the cure. Constitutional Dysfunction on Trial shows federal judges will not and cannot restore the separation of powers system alone. Fifty years of congressional atrophy cannot be reversed in court.
In the past thirty years, Congress has dramatically changed its response to unpopular deficit spending. While the landmark Congressional Budget Act of 1974 tried to increase congressional budgeting ...powers, new budget processes created in the 1980s and 1990s were all explicitly designed to weaken member, majority, and institutional budgeting prerogatives. These later reforms shared the premise that Congress cannot naturally forge balanced budgets without new automatic mechanisms and enhanced presidential oversight. So Democratic majorities in Congress gave new budgeting powers to Presidents Reagan and Bush, and then Republicans did the same for President Clinton. Passing the Buck examines how Congress is increasing delegation of a wide variety of powers to the president in recent years. Jasmine Farrier assesses why institutional ambition in the early 1970s turned into institutional ambivalence about whether Congress is equipped to handle its constitutional duties.
Over the past four decades, members of Congress have filed 10 lawsuits challenging military actions abroad that were ordered or sustained by presidents without prior legislative consent. In ...dismissing these cases, federal courts told the plaintiffs to use their legislative tools to show disapproval of the actions already in progress. Under this logic, the House and Senate must have a veto‐proof supermajority to end an existing military engagement before a case can be heard on the merits. These precedents contrast with previous war powers cases initiated by private litigants, which focused on prior simple majority legislative authority for presidential action.
The serial fiscal policy and budgeting woes of the United States over the last three decades have been compounded by a bipartisan evasion of institutional responsibility by elected leaders. Long ...before “sequestration” and “fiscal cliffs,” Louis Fisher argued that presidents and members of the House and Senate undermined constitutional power balance and the spirit of budgeting law. A variety of ill-conceived process “reforms” further damaged the separation of powers system. As a scholar, Fisher uses an institutional lens to explore budget concepts that are rare in political science, such as capacity, accountability, and duty. And as a public intellectual, Fisher's relevance has been secured by his repeatedly broaching these scholarly and political taboos.
In his muted leadership on deficit reduction, Barack Obama has highlighted the continuing tensions between the Constitution and the modern presidency. The framers did not structure nor envision ...vigorous day-to-day executive leadership on any subject and largely granted the power of the purse to Congress. Yet in response to new fiscal realities, the Budget and Accounting Act of 1921 required presidents to think holistically about agency estimates and budget aggregates. But neither this act nor its belated 1974 congressional sibling was designed to rein in majority will to balance the budget. Deficits result from a complex stew of old and new policy decisions made by both branches. From a constitutional view, then, deficit reduction should be an equal burden on both branches. From a modern view, the president must lead the way. By that measure, President Obama has failed. With his deliberative style and open political sensitivity to a volatile economic and electoral landscape, he has not yet offered a clear and bold fiscal vision. He has also ignored the fiscal commission he created. This neo-Whig strategy keeps pressure on Congress but also excuses the president from the spirit and purpose of the 1921 law.
In the first year after the attacks of September 11, 2001, Congress
agreed with President George W. Bush and his administration that the key
to national security at home and abroad was enhancing ...executive branch
power. To this end, leaders smoothed the legislative process and members
largely consented to the new policies and rapid review pace. By December
2002, Congress passed two major domestic laws related to the new War on
Terrorism and two war resolutions. But beginning in 2003, many members,
largely but not all Democrats, renewed their interest in legislative
powers and prerogatives by mounting small rebellions against these
once-popular policies, especially the Iraq War and the Patriot Act.
Committees and the chamber floors re-emerged as arenas for heated debate
on policy oversight, funding, and implementation and management. While
members critical of the war have had a hard time gaining traction to alter
the nation's course in Iraq, there was a golden opportunity to
recalibrate power and policy on the Patriot Act as 16 of its most
controversial provisions were scheduled to sunset in 2005. Although the
Patriot Act's second legislative round was far more complex than the
first, the result gave even more power to the executive branch.
Congress's ambition subsided, again.My
thanks to the College of Arts and Sciences, University of Louisville, for
funding related to this project. A version of this paper was presented at
the 2005 Annual Meeting of the Midwest Political Science Association and I
thank the discussant, Lilly Goren, for her comments and suggestions, as
well as the anonymous reviewers for PS.
Congress's problematic place in contemporary separation of powers arrangements is revealed in its cycles of ambivalence. First, Congress suppresses its traditional legislative processes or delegates ...power to the executive branch or an independent commission, arguing that its deliberative and representative norms should not flourish at the expense of the "national interest." Second, after the delegated power becomes controversial or expires, members express implied or explicit regret about the loss of power in myriad ways, such as new bills to curtail or delay the delegated powers, criticism of policy outcomes in oversight hearings, and foot dragging on new executive requests for additional resources. Third, at the next opportunity to recalibrate power on the policy, Congress demurs again and delegation is renewed. Variations on the cycle of ambivalence span decades of policy on military base closures, trade, war, and appropriations, all of which saw dramatic new iterations during the George W. Bush era.
