Notice & Comment

New Book by Josh Chafetz: Congress’s Constitution (AdLaw Bridge Series)

congressAmazon tells me that Josh Chafetz’s new book Congress’s Constitution: Legislative Authority and the Separation of Powers is now available for purchase. Over the last few weeks I’ve been reading the publisher proofs as I’ll be reviewing the book for the Michigan Law Review later this year. It’s a terrific read and an important and timely contribution to the debate on Congress’s role in the modern regulatory state.

Here’s a summary of the book from the Amazon listing:

A leading scholar of Congress and the Constitution analyzes Congress’s surprisingly potent set of tools in the system of checks and balances.

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.

Over at Law and Liberty, Philip Wallach of the Brookings Institution has a thoughtful review.  Here’s a taste from Wallach’s review:

In his new book, Congress’s Constitution, Cornell legal historian Josh Chafetz persuasively shows that this increasingly fashionable view of Congress is wrong: historically ignorant of the ways in which Congress and its legislative predecessors have asserted themselves, and normatively oblivious to the importance of such assertions in the overall constitutional scheme of separated powers.  Chafetz shows how Congress’s powers go well beyond legislation. They encompass the “hard” (coercive) powers of the purse, personnel (both through advice and consent and impeachment), and contempt, as well as the “soft” (attractive) powers often seen as mere housekeeping details but actually crucial to regulating the terms of political debate, disciplinary powers over members, and cameral rule-making powers.  Together these powers furnish Congress with “a potent toolbox” it has historically shown the ability to use “judiciously” to gain the public’s trust, though by no means has it always done so.

In six neatly organized substantive chapters, Chafetz takes up each of these categories of powers and shows their historical development—most often from roots in the 17th-century conflicts between Stuart kings and British Parliament, through the American colonial legislatures and Continental Congress, and into our own Constitutional history, from the early Republic all the way through to the present.  Chafetz’s presentation of this material is masterful, pitched so as to be accessible to the novice and yet genuinely informative even to the expert.  Indeed, congressional staffers trying to understand the current state of play on legal topics ranging from the possible objects of Congress’s contempt power to the propriety of defunding individual government officers’ positions to the lawful disclosure of state secrets could profit greatly from reading Congress’s Constitution.

And here are some additional quick takes on the book from the Amazon listing:

“A distinguished and authoritative work in the field of U.S. constitutional law as well as in the cross-cutting field of congressional studies.”

—David Mayhew, Sterling Professor of Political Science Emeritus, Yale University

“No institution embodies the dysfunction of modern American politics more than Congress. Josh Chafetz’s pathbreaking book shows that Congress nonetheless has more powers and more opportunities to govern effectively than most scholars or political leaders realize. A major contribution to legal studies, political science, and, most importantly, American governance.”

—Rogers M. Smith, Christopher H. Browne Distinguished Professor of Political Science, University of Pennsylvania

“While many bemoan the inevitability of an imperial presidency, Chafetz expands our constitutional imaginary, demonstrating the many routes through which Congress’s relations with the executive branch, the public, and its own members undergird a responsible and vibrant politics. This is an outstanding new contribution to an important field.”

—Mariah Zeisberg , University of Michigan

“At a time when it is fashionable to dismiss Congress and the entire system of separated powers as broken, Josh Chafetz offers a brilliant reconstruction and defense of both. Rich in historical detail and institutional insight, Congress’s Constitution is required reading for anyone interested in how the legislative branch shapes the constitutional order even when it is not legislating.”

—David Pozen, Professor of Law, Columbia Law School


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

Print Friendly, PDF & Email