From the Summary of Introduction to the Legislative Process in the U.S. Congress (R42843, Nov. 15, 2018):
This report introduces the main steps through which a bill (or other item of business) may travel in the legislative process -— from introduction to committee and floor consideration to possible presidential consideration. However, the process by which a bill can become law is rarely predictable and can vary significantly from bill to bill. In fact, for many bills, the process will not follow the sequence of congressional stages that are often understood to make up the legislative process. This report presents a look at each of the common stages through which a bill may move, but complications and variations abound in practice.
From the introduction to Lame Duck Sessions of Congress Following a Majority-Changing Election: In Brief (R45402, Nov. 13, 2018):
“Lame duck” sessions of Congress take place whenever one Congress meets after its successor is elected but before the term of the current Congress ends. Their primary purpose is to complete action on legislation. They have also been used to prevent recess appointments and pocket vetoes, to consider motions of censure or impeachment, to keep Congress assembled on a standby basis, or to approve nominations (Senate only). In recent years, most lame duck sessions have focused on program authorizations, trade-related measures, appropriations, and the budget.
Party Leaders in the House: Election, Duties, and Responsibilities (RS20881, Nov. 5, 2018): “Each major party in the House has a leadership hierarchy. This report summarizes the election, duties, and responsibilities of the Speaker of the House, the majority and minority leaders, and the whips and whip system.”
Policy and Legislative Research for Congressional Staff: Finding Documents, Analysis, News, and Training (R43434, Mar. 28, 2018) “is intended to serve as a finding aid for congressional documents, executive branch documents and information, news articles, policy analysis, contacts, and training, for use in policy and legislative research. … This report is not intended to be a definitive list of all resources, but rather a guide to pertinent subscriptions available in the House and Senate in addition to select resources freely available to the public. This report is intended for use by congressional staff and will be updated as needed.”
In a Secrecy News blog post for the Federation of American Scientists, Steven Aftergood comments on The Atophying of the Congressional Research Service’s Role in Supporting Committee Oversight, 64 Wayne L. Rev. 150 (2018) by former CRS analyst Kevin R. Kosar. Both the blog post and the paper are recommended. — Joe
From the abstract for Frank O. Bowman III, British Impeachments (1376 – 1787) & the Present American Constitutional Crisis (Aug. 14, 2018):
Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order.
This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.
From Carolyn Shapiro, What Members of Congress Say About the Supreme Court and Why It Matters, 93 Chicago-Kent Law Review ___ (2018):
Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process – what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers – evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A process-focused critique of Gorsuch’s jurisprudence could have, for example, challenged his claims that textualism necessarily constrains judges and is required by the separation of powers, and it could have given lie to the claims that judging is no more than mechanically “following the law.” Such a critique need not have ignored the real-world implications of Gorsuch’s jurisprudence and indeed could have demonstrated how his approach can undermine congressional efforts to protect ordinary people. Process language would also have allowed Democrats to use discussions of iconic cases like Brown v. Board of Education to demonstrate their commitment to the Constitution’s promises of equality and liberty and their expectation that any Supreme Court Justice embrace those principles. In future, Democrats should use confirmation hearings not only as an opportunity to question the nominee, but also as a chance to articulate their constitutional vision to the American people. The political right has shown how powerful this strategy can be. The political left should do the same.
From Questioning Judicial Nominees: Legal Limitations and Practice (R45300, Aug. 30, 2018):
The U.S. Constitution vests the Senate with the role of providing “advice” and affording or withholding “consent” when a President nominates a candidate to be an Article III judge—that is, a federal judge entitled to life tenure, such as a Supreme Court Justice. To carry out this “advice and consent” role, the Senate typically holds a hearing at which Members question the nominee. After conducting this hearing, the Senate generally either “consents” to the nomination by voting to confirm the nominee or instead rejects the nominee.
The Senate Judiciary Committee hearing for Judge Brett M. Kavanaugh is scheduled to begin at 9:30 AM. The C-SPAN Video Library will provide a near real-time keyword searchable video stream of the hearing.
H/T Gary Price’s InfoDocket post. — Joe
FiveThirtyEight’s Tracking Congress in the Age of Trump is an updating tally of how often every member of the House and the Senate votes with or against the president. — Joe
Here are five CRS reports that address the Supreme Court appointment process:
- Supreme Court Vacancies: Frequently Asked Questions, March 31, 2016 R44440
- President’s Selection of a Nominee for a Supreme Court Vacancy: Overview, June 27, 2018 IN10923
- Supreme Court Appointment Process: President’s Selection of a Nominee, June 27, 2018 R44235
- Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, March 17, 2017 R44236
- Supreme Court Appointment Process: Senate Debate and Confirmation Vote, October 19, 2015 R44234
From the abstract for Neil Siegel’s Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for the Trump Era and Beyond, Georgetown Law Journal, Forthcoming:
In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problems.
From the blurb for Congress’s Constitution: Legislative Authority and the Separation of Powers by Josh Chafetz (Yale UP, 2017):
Congress is widely supposed to be the least effective branch of the federal government. But as Josh Chafetz shows in this boldly original analysis, Congress in fact has numerous powerful tools at its disposal in its conflicts with the other branches. These tools include the power of the purse, the contempt power, freedom of speech and debate, and more.
Drawing extensively on the historical development of Anglo-American legislatures from the seventeenth century to the present, Chafetz concludes that these tools are all means by which Congress and its members battle for public support. When Congress uses them to engage successfully with the public, it increases its power vis-à-vis the other branches; when it does not, it loses power. This groundbreaking take on the separation of powers will be of interest to both legal scholars and political scientists.
The House Journal: Origin, Purpose, and Approval (R45209, May 31, 2018) “considers the origin and purpose of the Journal as well as the procedures related to its approval. It discusses why a Member might call for a vote and why a Member might vote against the Journal’s approval. The report also examines record approval votes from 1991 to 2016 (102nd-114th Congresses), addressing trends in the frequency of these votes, the percentage of votes initiated by majority party Members, and the procedures used to call for or postpone record votes.” — Joe
In his essay, An Evaluation of Historical Evidence for Constitutional Construction From the First Congress’ Debate Over the Constitutionality of the First Bank of the United States, 14 University of St. Thomas Law Journal 193 (2018), Lee J. Strang reviews “a modest selection of important evidence from the early Republic, the debate over the constitutionality of the First Bank of the United States in the First Congress, to evaluate whether, to what extent, and how Americans utilized constitutional construction in the early Republic. This Essay derives a number of tentative conclusions from this evidence. First, the participants in this early debate appeared to believe that a necessary precondition for constitutional construction — underdeterminacy — existed. Second, the participants also argued as if, after the application of a number of interpretative rules, the Constitution provided a determinate answer to the constitutional question. Third, the participants seemed ultimately to conclude that the Constitution’s meaning provided a determinate answer to the question under debate (though they continued to disagree about what that answer was).”
From the abstract of Andrew Kent’s Congress and the Independence of Federal Law Enforcement, 52 U.C. Davis Law Review (Forthcoming 2018): “Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today.” — Joe
As a part of its oversight of the Justice Department’s enforcement of the Foreign Agents Registration Act and federal investigations into potential improper influence during the 2016 presidential election, the Senate Judiciary Committee conducted bipartisan staff interviews with and submitted written questions to witnesses regarding circumstances surrounding the June 9, 2016, Trump Tower meeting. The committee on Wednesday released transcripts and hundreds of pages of related material from nine people connected to the meeting. The documents contain a record of closed-door committee interviews with five of the eight meeting attendees, including Trump Jr., British music promoter Rob Goldstone, Russian-American lobbyist Rinat Akhmetshin, translator Anatoli Samochornov and Ike Kaveladze, a Russian with ties to oligarch Aras Agalarov. Here’s the transcripts. — Joe
From the introduction for the CRS Report An Introduction to Judicial Review of Federal Agency Action (R44699 Dec. 7, 2016): “The U.S. Constitution vests the judicial power in the Supreme Court and any inferior courts established by Congress, limiting the power of federal courts to the context of “cases” or “controversies.” Pursuant to constitutional and statutory requirements, courts may hear challenges to the actions of federal agencies in certain situations. This report offers a brief overview of important considerations when individuals bring a lawsuit in federal court to challenge agency actions, with a particular focus on the type of review authorized by the Administrative Procedure Act (APA), perhaps the most prominent modern vehicle for challenging the actions of a federal agency.” — Joe
Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Florida Law Review ___ (2018) by Neomi Rao “provides a modern reconsideration of why Congress still matters by examining the “collective Congress” within the text, structure, and history of the Constitution. Like the unitary executive, the collective Congress is a structural feature of the Constitution’s separation of powers. With deep roots in political theory, the Framers created a representative and collective legislature that would provide a legitimate mechanism for bringing together the nation’s diverse interests to most effectively pursue the common good. To fully realize the benefits of collective lawmaking, the Constitution insists on the double exclusivity of the legislative power: only Congress can exercise legislative power, and Congress possesses only legislative power. The Constitution ties the ambitions of representatives and senators to Congress as an institution by prohibiting members of Congress from exercising the executive or judicial powers. This structure supports the members’ fiduciary responsibilities to the people, minimizes corruption, and reinforces the independence and integrity of the lawmaking power.
“Understanding the principles of a collective Congress provides a framework for analyzing a range of separation of powers questions, particularly those arising from the delegation of legislative power to administrative agencies. Quite simply, presidential control of administration cannot replace congressional control of legislation. Congress remains relevant in our complex modern society because it provides a unique form of accountability for ascertaining and pursuing the public good, preserving the rule of law, and protecting individual liberty. The collective Congress provides a powerful conceptual framework for understanding the scope of the Constitution’s “legislative power” and how Congress may exercise it. The administrative state blurs the line between the executive and legislative powers. The collective Congress sharpens that line and helps explain why Congress still matters in our system of government.”