Using Congressional Rules to Shift the Balance of Power, by Aneil Kovvali
Last week, the president signed the Countering America’s Adversaries Through Sanctions Act. Among other things, the act codifies sanctions against Russia into statutory law and provides that the president must navigate a congressional review process before waiving or terminating those sanctions.
In an accompanying signing statement, the president attacked the congressional review provision as unconstitutional, partly echoing an argument by Professor Daniel Hemel on this blog that the provision is an improper legislative veto. But while the concern about legislative vetoes is an interesting one, the issue is not terribly meaningful: the provision has a clear precedent in Section 2 of the Iran Nuclear Agreement Review Act of 2015; Professor Hemel himself notes that the legislative veto structure conveys no real advantage to Congress; and the president’s signing statement sheepishly commits him to following the required steps.
The review provision’s use of Congress’s unquestioned authority may be more significant. Each House of Congress clearly has the power under Article I, section 5 of the Constitution to determine the rules of its proceedings, and the review provision incorporates a careful use of this authority. This aspect of the review provision is part of a broader trend, in which Congress deploys its rulemaking authority in creative and aggressive ways to reclaim power from the Executive. The result of this trend may be a meaningful shift in the balance of power across a number of fronts:
Sanctions Review: Like the Iran act, the Russia act provides that Congress must be given time to review a presidential effort to weaken sanctions. Both statutes also contain rule provisions designed to make that review period effective by granting certain members of Congress the ability to introduce legislation that would stop the president, and to have that legislation proceed on an expedited track. For example, Section 216(c)(3) of the Russia act gives the majority leader or the minority leader of each House the ability to introduce legislation, which must then be reported to the floor within 10 days.
These rule provisions are meaningful in at least two ways. First, the unitary executive’s greater capacity for decision, activity, and dispatch is often cited in support of the Executive’s preeminence over other branches in the area of foreign affairs. These rule provisions undermine that rationale by requiring members of Congress to decide and act on an expedited basis. Second, in a move that proved especially contentious, the provisions grant members of Congress the power to force disciplining action against the president, even if Congress would rather just quietly let the matter go. Such provisions increase the credibility of Congress’s threats to respond to presidential misadventures.
Trade Promotion Authority (“Fast Track”): In various international trade negotiations, Congress has granted the president the authority to force the House and Senate to consider an agreement in an expedited fashion. Such provisions may seem to be another grant of unchecked power to the president. But a more careful examination suggests otherwise. First, Congress can require the president to make a persuasive case before granting the authority. The fast track for the planned Trans-Pacific Partnership was highly controversial, and required extensive negotiation. Second, the authority is conditioned—both as a matter of law and as a practical reality—on extensive consultation while the negotiations are ongoing. In other words, to obtain his desired outcome, the president must cut Congress in on the traditionally executive function of negotiating with foreign governments.
Congressional Review Act: The substantive terms of the Congressional Review Act seem completely superfluous—they provide that Congress can pass legislation undoing agency rules by following the standard constitutional requirements of bicameralism and presentment. But the procedural terms of the Act allow for expedited consideration of such legislation. The resulting framework undermines the idea that any domain requiring fast paced policymaking can only be addressed by limiting Congress’s authority and delegating unchecked power to the Executive.
Nominations: The bulk of these examples focus on Congress’s ability to speed up consideration of an issue and force a prompt vote. But Congress can also empower itself by refusing to act, and thus denying the president the ability to act. By using procedural tricks to avoid taking a recess, Congress can deny the president the ability to make a recess appointment. The maneuver can even be used offensively, to dissuade the president from creating a vacancy in the first place. This precise tactic seems to have been on display recently, as the Senate worked to prevent the president from easily firing and replacing Attorney General Sessions.
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These provisions vary both in their justifications and their effects. But by controlling the process by which legislative decisions are made, Congress’s use of its rulemaking authority has the potential to shift the allocation of powers. It would not be difficult to imagine further extensions of this strategy. For example, rules could be designed to expedite potential congressional overrides when courts interpret statutes in problematic ways. Regardless of whether these measures are worrisome or welcome, they are worth close attention.
Aneil Kovvali is an Associate at Wachtell, Lipton, Rosen & Katz. The views expressed in this post are his own, and do not necessarily reflect the views of the firm or its clients.