Hum, I read a comment on ACX that control of the House really doesn't provide a lot of power. If the Executive just ignores the House there are no House inherent mechanisms to bring the Executive to heel. No House subpoenas, police or prisons. That person might not have been a lawyer.
Control of the House provides a few key things: (1) its consent is necessary for any federal spending bills (and this also means that it can defund wars, which rather than the War Powers Act, is the practical way that Congress can restrain Presidential war making), (2) its consent is necessary for any new ordinary legislation (which only defends the status quo and doesn't necessarily stop regulatory action or non-legislative foreign affairs actions and agreements, but is still significant), and (3) a majority of the House has standing to sue the President for violating the law in the course of implementing existing legislation (something that ordinary citizens and ordinary taxpayers in those capacities can't do in many cases). A substantial majority like the one contemplated in the image in this post can also exercise this power without fear of defection from the party line by moderates in the majority party (something that Republicans with a razor thin majority in the House are struggling with right now).
Control of the House, or even both Houses of Congress (short of supermajorities that haven't existed at any time except 1965-1967 by Democrats under Democratic President Johnson, and 1935-1939 by Democrats under Democratic President FDR when it wasn't really necessary), isn't sufficient to pass legislation without the President's consent, due to the veto power. But the power of the purse (and the power to vote down Presidential appointees if one controls the Senate) can force a President to refrain from vetoing legislation in order to get a budget and appointees that the President can accept.
While control of the House is sufficient to impeach a federal official (not necessarily the President), the requirement of a two-thirds majority in the Senate to convict following a House impeachment makes this power a hollow one. But control of the House is sufficient to prevent judges you like from being impeached at all, which matters because many judges have resigned rather than fight the impeachment when the House votes to impeach them.
More obscurely, control of the House makes it possible to resolve disputed elections to the House in favor of the majority party (which in the pre-modern Congress was commonly done, but has since become vanishingly rare, although it could resurface as an issue by an authoritarian tilted GOP like the one in place now). And, a party with control of a majority of the representative in the House in a majority of U.S. states can choose the President when there is an electoral college tie. Control of a majority of seats in the House and the Senate also gives the party with that control the ability to resolve disputes over who received electoral college votes (a power that hasn't actually been exercised for a century and a half, even though Trump and insurrectionist MAGA Republicans tried to get Congress to do so in his favor on January 6, 2021).
In theory, the House also can't prevent the Senate from approving treaties, but the two-thirds Senate majority needed to ratify, but as noted above, this has required a bipartisan majority in all but a few years of modern U.S. history, and then, only at times where the President's party controlled the Senate anyway, so that's pretty meaningless. It is usually easier to do an end run around the two-thirds majority necessary to ratify a treaty with ordinary legislation than it is to pass a treaty that doesn't have broad bipartisan support.
Control of the House without control of the Senate also isn't sufficient to block Presidential appointments in the executive branch or the judiciary, as the filibuster was abolished for everything but the U.S. Supreme Court in 2013 and for U.S. Supreme Court appointments in 2017, although U.S. District Court judicial appointments are still subject to de facto vetos by either Senator from the state where the appointment is made under Senate rules.
FWIW, I believe that the U.S. Constitution tilts the balance too strongly in favor of gridlock, and too strongly in favor of the President and the judiciary vis-a-vis Congress, and should be tweaked in the separation of powers area.
I would favor a constitutional amendment that would allow vetos to be overridden by re-enacting legislation with a simple majority in each House of Congress, so that a Presidential veto could force Congress to reconsider hastily or thoughtlessly enacted legislation, without giving the President a dominant role in the legislative process, and a constitutional amendment that would end the Vice President's tie breaking power in the U.S. Senate.
I'd also favor a constitutional amendment allowing Presidential appointees that the President has the power to remove without cause, to also be subject to removal without cause by Congress by a simple majority of both houses without the approval of the President (which wouldn't be called impeachment).
I'd favor a constitutional amendment broadening the grounds for impeachment power for cause beyond "high crimes and misdemeanors" to include "willful failure to faithfully execute the laws or to uphold the constitution", and incapacity as defined in the 25th Amendment. I would also favor a constitutional amendment that would vest conviction for impeachments in a panel of currently actively serving federal and/or state judges whose selection could be established by a federal law, subject to direct appellate review by the U.S. Supreme Court (rather than the U.S. Senate), except in the case of impeachments of U.S. Supreme Court justices, in which case appellate review would be by a panel of state supreme court justices chosen in a manner established by a federal law.
And, I would favor constitutional amendments specifically authorizing one house legislative vetos of Presidential regulatory action when authorized by statute (something that was common before INS v. Chadha, 462 U.S. 919 (1983)), and a constitutional amendment abolishing the U.S. Supreme Court's newly established unitary executive doctrine (that prevents Congress from insulating federal officials from being fired by the President) and instead expressly authorizing Congress to insulate executive branch officials from removal by the President without good cause as defined by a federal law (and subject to judicial review).
I would also favor a constitutional amendment that either prohibits ordinary legislation from violating Senate ratified treaties and presumes that Senate ratified treaties are self-executing (which was probably the original intent of the Founders), or adopts the same process for ratifying treaties as the one for adopting ordinary laws.
I would also favor constitutional amendments that would require all immunities of the government and of government officials (including Presidential immunities, qualified immunity from civil rights actions, judicial immunity, and prosecutorial immunity) to be established by law.
I'd favor legislation enforcing the insurrection clause of the 14th Amendment as broadly as it would have been if it had correctly been ruled to be self-executing (as the Colorado Supreme Court held before it was overruled by the U.S. Supreme Court). I'd also favor legislation repealing the Alien Enemies Act.
To continue the list of reforms that would strengthen Congress and reduce gridlock:
I would favor a repeal of the filibuster (which is a U.S. Senate rule). I would also favor an end to Congressional holds on appointments (which is a U.S. Senate rule). And, I'd favor a constitutional amendment prohibiting any procedural rule of either house of Congress from remaining in force in a new session of Congress without being re-enacted by that House of Congress.
I'd favor a constitutional amendment ending the power of Congress to resolve disputed federal elections of any kind, vesting that power, instead, in the courts (but retaining the expulsion power of each House of Congress).
I would favor legislation vesting the appointment of federal trial court judges in the intermediate courts of appeal, and a constitutional amendment allowing Congress to permit intermediate courts of appeal or the U.S. Supreme Court to remove federal trial court judges for good cause.
I would favor a constitutional amendment ending the President's recess appointment power and pocket veto power. Basically, for constitutional purposes, Congress would be deemed to be always in session.
I would favor a constitutional amendment (1) expressly prohibiting the President from pardoning or commuting a sentence of himself, his Vice President, members of Congress who served at any time during the President's term, anyone the President appointed to federal office, and members of the President's family as defined by law, (2) requiring any President pardon or commutation to be presented to both Houses of Congress in writing within seven days of being issued, (3) subjecting any Presidential pardon to being overridden by a simple majority of either house of Congress within five weeks of being presented to that House, and (4) making any pardon or commutation obtained in exchange for a quid pro quo bribe or agreement voidable. But a Presidential pardon or commutation would stay the carrying out of a sentence of incarceration pursuant to a conviction or corporal punishment including the death penalty or a fine, until the time for it to be presented has lapsed (in which case it becomes void), or until an override has lapsed (in which case it becomes final).
I would favor a constitutional amendment giving every member of Congress standing to enforce any law or constitutional provision that someone with only citizen standing or taxpayer standing or citizen standing (but for the court doctrine prohibiting citizen standing and taxpayer standing) could otherwise enforce, and giving every U.S. State standing to enforce any law or constitutional provision that someone with only citizen standing or taxpayer standing or citizen standing in that state (but for the court doctrine prohibiting citizen standing and taxpayer standing) could otherwise enforce. (Thus, members of Congress could also enforce laws that no citizen or taxpayer in a U.S. state could enforce but for this doctrine because it has extraterritorial effect.)
I would favor a constitutional amendment expressly authorizing the appointment of a special prosecutor to investigate and prosecute in federal court crimes and civil offenses (including receipt of emoluments not authorized by Congress, which would be criminalized) committed by officials of the federal government (including the President, Vice President, members of Congress, and the U.S. Supreme Court), by petitioning to have one appointed in a federal court as provided by a federal law. The federal law, in turn, would give standing to bring such a petition (which would have to show probable cause that the official committed a high crime or misdemeanor subject also to further grand jury review) of a U.S. State, a U.S. territory, district, or commonwealth, or at least one-third of the members of either house of Congress. This would also deny members of the U.S. Supreme Court of all jurisdiction, original, interlocutory appellate and appellate, over such cases when a member of the U.S. Supreme Court is prosecuted.
I would favor a federal law requiring any federal judge (at any level up to and including the U.S. Supreme Court) who was appointed by a President to recuse from any case involving that President in a personal capacity, including any case where there is a claim of immunity by that President for the President's official acts.
I would favor a constitutional amendment establishing term limits for Congress, with Senators limited to two terms (with three or more years of Senate service of a partial term counting as a full term), and limiting members of the House to six terms (with one or more year of House service counting as a full term).
I would favor a constitutional amendment to establish a mandatory retirement age from the Presidency, the House, the Senate, the federal judiciary, and people appointed by the President and confirmed by the Senate, of 72 years of age (with candidates for the Presidency, the House, or the Senate prohibited from running if they would exceed that age by the completion of their term).
I would favor a constitutional amendment abolishing the natural born citizenship requirement to run for U.S. President, thus ending all legal distinctions between natural born citizens and other U.S. citizens.
I would favor a constitutional amendment abolishing the minimum age requirements for members of Congress (but not for the Presidency or Vice Presidency).
I would favor a constitutional amendment barring anyone convicted of a felony in the ten years before their term of office (or while in office) would commence from serving in President or for Congress (or from running for these offices if they would be ineligible if elected).
Whew, hope I didn't affect your schedule too much! That's extensive and authoritative looking answer and I really appreciate it. It will however, require multiple reads to digest.
Parsing this down a bit... Control of the House provides a few key things: --------------------This would affect only out year funding, correct? Can't take back budgetary authority in a signed law. --------->(1) its consent is necessary for any federal spending bills (and this also means that it can defund wars, which rather than the War Powers Act, is the practical way that Congress can restrain Presidential war making), -------------- This would be a suit in the 1st District Court? Does the House have a special on-ramp that moves their suits to the front of the queue? It seems like lots of folks have already sued the Administration and the Administration has used the Pokemon Ditto defense. Squish them here and they pop out there. ---------------->(3) a majority of the House has standing to sue the President for violating the law in the course of implementing existing legislation (something that ordinary citizens and ordinary taxpayers in those capacities can't do in many cases).
I was 15 minutes late to work, but I also had to go to a distant industrial area to switch out my broken trash bin for a new one.
In our fact pattern, yes, but there are fairly tight limits on multi-year appropriations in the U.S. Constitution except for major purchases like naval ships that take multiple years to build.
If you defund a war the comptroller in the Treasury Department stops writing checks for the war. The Deep State does its thing. Courts are only rarely involved. Congress could sue, but it usually doesn't have to.
FWIW, I was the best constitutional law student in my year at the University of Michigan Law School and won an award for that. I got a similar award for Comparative Law (i.e. comparing the laws of different countries).
10 comments:
Hum, I read a comment on ACX that control of the House really doesn't provide a lot of power. If the Executive just ignores the House there are no House inherent mechanisms to bring the Executive to heel. No House subpoenas, police or prisons. That person might not have been a lawyer.
Control of the House provides a few key things: (1) its consent is necessary for any federal spending bills (and this also means that it can defund wars, which rather than the War Powers Act, is the practical way that Congress can restrain Presidential war making), (2) its consent is necessary for any new ordinary legislation (which only defends the status quo and doesn't necessarily stop regulatory action or non-legislative foreign affairs actions and agreements, but is still significant), and (3) a majority of the House has standing to sue the President for violating the law in the course of implementing existing legislation (something that ordinary citizens and ordinary taxpayers in those capacities can't do in many cases). A substantial majority like the one contemplated in the image in this post can also exercise this power without fear of defection from the party line by moderates in the majority party (something that Republicans with a razor thin majority in the House are struggling with right now).
Control of the House, or even both Houses of Congress (short of supermajorities that haven't existed at any time except 1965-1967 by Democrats under Democratic President Johnson, and 1935-1939 by Democrats under Democratic President FDR when it wasn't really necessary), isn't sufficient to pass legislation without the President's consent, due to the veto power. But the power of the purse (and the power to vote down Presidential appointees if one controls the Senate) can force a President to refrain from vetoing legislation in order to get a budget and appointees that the President can accept.
While control of the House is sufficient to impeach a federal official (not necessarily the President), the requirement of a two-thirds majority in the Senate to convict following a House impeachment makes this power a hollow one. But control of the House is sufficient to prevent judges you like from being impeached at all, which matters because many judges have resigned rather than fight the impeachment when the House votes to impeach them.
More obscurely, control of the House makes it possible to resolve disputed elections to the House in favor of the majority party (which in the pre-modern Congress was commonly done, but has since become vanishingly rare, although it could resurface as an issue by an authoritarian tilted GOP like the one in place now). And, a party with control of a majority of the representative in the House in a majority of U.S. states can choose the President when there is an electoral college tie. Control of a majority of seats in the House and the Senate also gives the party with that control the ability to resolve disputes over who received electoral college votes (a power that hasn't actually been exercised for a century and a half, even though Trump and insurrectionist MAGA Republicans tried to get Congress to do so in his favor on January 6, 2021).
In theory, the House also can't prevent the Senate from approving treaties, but the two-thirds Senate majority needed to ratify, but as noted above, this has required a bipartisan majority in all but a few years of modern U.S. history, and then, only at times where the President's party controlled the Senate anyway, so that's pretty meaningless. It is usually easier to do an end run around the two-thirds majority necessary to ratify a treaty with ordinary legislation than it is to pass a treaty that doesn't have broad bipartisan support.
Control of the House without control of the Senate also isn't sufficient to block Presidential appointments in the executive branch or the judiciary, as the filibuster was abolished for everything but the U.S. Supreme Court in 2013 and for U.S. Supreme Court appointments in 2017, although U.S. District Court judicial appointments are still subject to de facto vetos by either Senator from the state where the appointment is made under Senate rules.
FWIW, I believe that the U.S. Constitution tilts the balance too strongly in favor of gridlock, and too strongly in favor of the President and the judiciary vis-a-vis Congress, and should be tweaked in the separation of powers area.
I would favor a constitutional amendment that would allow vetos to be overridden by re-enacting legislation with a simple majority in each House of Congress, so that a Presidential veto could force Congress to reconsider hastily or thoughtlessly enacted legislation, without giving the President a dominant role in the legislative process, and a constitutional amendment that would end the Vice President's tie breaking power in the U.S. Senate.
I'd also favor a constitutional amendment allowing Presidential appointees that the President has the power to remove without cause, to also be subject to removal without cause by Congress by a simple majority of both houses without the approval of the President (which wouldn't be called impeachment).
I'd favor a constitutional amendment broadening the grounds for impeachment power for cause beyond "high crimes and misdemeanors" to include "willful failure to faithfully execute the laws or to uphold the constitution", and incapacity as defined in the 25th Amendment. I would also favor a constitutional amendment that would vest conviction for impeachments in a panel of currently actively serving federal and/or state judges whose selection could be established by a federal law, subject to direct appellate review by the U.S. Supreme Court (rather than the U.S. Senate), except in the case of impeachments of U.S. Supreme Court justices, in which case appellate review would be by a panel of state supreme court justices chosen in a manner established by a federal law.
And, I would favor constitutional amendments specifically authorizing one house legislative vetos of Presidential regulatory action when authorized by statute (something that was common before INS v. Chadha, 462 U.S. 919 (1983)), and a constitutional amendment abolishing the U.S. Supreme Court's newly established unitary executive doctrine (that prevents Congress from insulating federal officials from being fired by the President) and instead expressly authorizing Congress to insulate executive branch officials from removal by the President without good cause as defined by a federal law (and subject to judicial review).
I would also favor a constitutional amendment that either prohibits ordinary legislation from violating Senate ratified treaties and presumes that Senate ratified treaties are self-executing (which was probably the original intent of the Founders), or adopts the same process for ratifying treaties as the one for adopting ordinary laws.
I would also favor constitutional amendments that would require all immunities of the government and of government officials (including Presidential immunities, qualified immunity from civil rights actions, judicial immunity, and prosecutorial immunity) to be established by law.
I'd favor legislation enforcing the insurrection clause of the 14th Amendment as broadly as it would have been if it had correctly been ruled to be self-executing (as the Colorado Supreme Court held before it was overruled by the U.S. Supreme Court). I'd also favor legislation repealing the Alien Enemies Act.
To continue the list of reforms that would strengthen Congress and reduce gridlock:
I would favor a repeal of the filibuster (which is a U.S. Senate rule). I would also favor an end to Congressional holds on appointments (which is a U.S. Senate rule). And, I'd favor a constitutional amendment prohibiting any procedural rule of either house of Congress from remaining in force in a new session of Congress without being re-enacted by that House of Congress.
I'd favor a constitutional amendment ending the power of Congress to resolve disputed federal elections of any kind, vesting that power, instead, in the courts (but retaining the expulsion power of each House of Congress).
I would favor legislation vesting the appointment of federal trial court judges in the intermediate courts of appeal, and a constitutional amendment allowing Congress to permit intermediate courts of appeal or the U.S. Supreme Court to remove federal trial court judges for good cause.
I would favor a constitutional amendment ending the President's recess appointment power and pocket veto power. Basically, for constitutional purposes, Congress would be deemed to be always in session.
I would favor a constitutional amendment (1) expressly prohibiting the President from pardoning or commuting a sentence of himself, his Vice President, members of Congress who served at any time during the President's term, anyone the President appointed to federal office, and members of the President's family as defined by law, (2) requiring any President pardon or commutation to be presented to both Houses of Congress in writing within seven days of being issued, (3) subjecting any Presidential pardon to being overridden by a simple majority of either house of Congress within five weeks of being presented to that House, and (4) making any pardon or commutation obtained in exchange for a quid pro quo bribe or agreement voidable. But a Presidential pardon or commutation would stay the carrying out of a sentence of incarceration pursuant to a conviction or corporal punishment including the death penalty or a fine, until the time for it to be presented has lapsed (in which case it becomes void), or until an override has lapsed (in which case it becomes final).
I would favor a constitutional amendment giving every member of Congress standing to enforce any law or constitutional provision that someone with only citizen standing or taxpayer standing or citizen standing (but for the court doctrine prohibiting citizen standing and taxpayer standing) could otherwise enforce, and giving every U.S. State standing to enforce any law or constitutional provision that someone with only citizen standing or taxpayer standing or citizen standing in that state (but for the court doctrine prohibiting citizen standing and taxpayer standing) could otherwise enforce. (Thus, members of Congress could also enforce laws that no citizen or taxpayer in a U.S. state could enforce but for this doctrine because it has extraterritorial effect.)
I would favor a constitutional amendment expressly authorizing the appointment of a special prosecutor to investigate and prosecute in federal court crimes and civil offenses (including receipt of emoluments not authorized by Congress, which would be criminalized) committed by officials of the federal government (including the President, Vice President, members of Congress, and the U.S. Supreme Court), by petitioning to have one appointed in a federal court as provided by a federal law. The federal law, in turn, would give standing to bring such a petition (which would have to show probable cause that the official committed a high crime or misdemeanor subject also to further grand jury review) of a U.S. State, a U.S. territory, district, or commonwealth, or at least one-third of the members of either house of Congress. This would also deny members of the U.S. Supreme Court of all jurisdiction, original, interlocutory appellate and appellate, over such cases when a member of the U.S. Supreme Court is prosecuted.
I would favor a federal law requiring any federal judge (at any level up to and including the U.S. Supreme Court) who was appointed by a President to recuse from any case involving that President in a personal capacity, including any case where there is a claim of immunity by that President for the President's official acts.
I would favor a constitutional amendment establishing term limits for Congress, with Senators limited to two terms (with three or more years of Senate service of a partial term counting as a full term), and limiting members of the House to six terms (with one or more year of House service counting as a full term).
I would favor a constitutional amendment to establish a mandatory retirement age from the Presidency, the House, the Senate, the federal judiciary, and people appointed by the President and confirmed by the Senate, of 72 years of age (with candidates for the Presidency, the House, or the Senate prohibited from running if they would exceed that age by the completion of their term).
I would favor a constitutional amendment abolishing the natural born citizenship requirement to run for U.S. President, thus ending all legal distinctions between natural born citizens and other U.S. citizens.
I would favor a constitutional amendment abolishing the minimum age requirements for members of Congress (but not for the Presidency or Vice Presidency).
I would favor a constitutional amendment barring anyone convicted of a felony in the ten years before their term of office (or while in office) would commence from serving in President or for Congress (or from running for these offices if they would be ineligible if elected).
Whew, hope I didn't affect your schedule too much! That's extensive and authoritative looking answer and I really appreciate it. It will however, require multiple reads to digest.
Parsing this down a bit... Control of the House provides a few key things: --------------------This would affect only out year funding, correct? Can't take back budgetary authority in a signed law. --------->(1) its consent is necessary for any federal spending bills (and this also means that it can defund wars, which rather than the War Powers Act, is the practical way that Congress can restrain Presidential war making), -------------- This would be a suit in the 1st District Court? Does the House have a special on-ramp that moves their suits to the front of the queue? It seems like lots of folks have already sued the Administration and the Administration has used the Pokemon Ditto defense. Squish them here and they pop out there. ---------------->(3) a majority of the House has standing to sue the President for violating the law in the course of implementing existing legislation (something that ordinary citizens and ordinary taxpayers in those capacities can't do in many cases).
I was 15 minutes late to work, but I also had to go to a distant industrial area to switch out my broken trash bin for a new one.
In our fact pattern, yes, but there are fairly tight limits on multi-year appropriations in the U.S. Constitution except for major purchases like naval ships that take multiple years to build.
If you defund a war the comptroller in the Treasury Department stops writing checks for the war. The Deep State does its thing. Courts are only rarely involved. Congress could sue, but it usually doesn't have to.
FWIW, I was the best constitutional law student in my year at the University of Michigan Law School and won an award for that. I got a similar award for Comparative Law (i.e. comparing the laws of different countries).
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