Frustrated by Congress’s apparently feeble efforts to check presidential war powers and unconvinced that another round with the War Powers Resolution will do much good, Neal Katyal recommends, in an essay recently published in the Journal, the promotion of an “internal separation of powers.” Professor Katyal suggests that we look to divisions within one branch of government—rather than divisions across multiple branches of government—to restore some semblance of balance to our political system. Don’t count on Congress or the courts to reign in Bush’s war on terror, Katyal counsels. Administrative agencies constitute the nation’s best hope for limiting presidential power in a policy arena that other branches of government have done their best to avoid.

In the main, Katyal describes the executive’s rise to dominance well: presidential war powers have expanded dramatically during the modern era, both through independent executive initiative and through delegated authority from Congress; legislative checks have weakened, in part because of the changing electoral incentives that members face, and in part because of the polarization of parties and decentralization of authority within Congress; it is only when Presidents face strong partisan opposition within Congress that their ability to wage war is substantially curtailed, suggesting that constitutional checks have given way to political checks on presidential power; and there is little indication that the courts will do for Congress what Congress will not do for itself—namely, assert and protect Congress’s institutional prerogatives in the face of executive aggrandizement. Katyal’s proposed remedy for this state of affairs, meanwhile, depends on another truth about modern politics: administrative agencies, if properly structured, can constrain presidential policymaking.

But conservatives and liberals, I suspect, will react very differently to Katyal’s essay. The political right will be inclined to upbraid bureaucratic paralysis and exalt executive “energy” and “dispatch.” The political left, meanwhile, will trumpet the benefits of collective decision-making and condemn the unilateral exercise of presidential power. And had Katyal written this essay when Clinton held office, many members of the two constituencies would probably have swapped their reactions and supporting rationales.

My own sense is that Katyal overstates the problem and oversells the solution. Let’s consider each in turn. How exactly do we know that congressional checks on presidential war powers have been “decimated” and that “legislative abdication is the reigning modus operandi”? As evidence, Katyal points to the dearth of legislative enactments concerning the war on terror, making much of Congress’s “silence” in the aftermath of some of the most egregious examples of unilateral policymaking in our nation’s efforts to combat terrorism. Additionally, Katyal disparages Congress’s tendency to enact vague statutes delegating broad powers to the presidency. For Katyal, as for most critics of the current Congress and President, legislative inactivity and imprecise statutory language serve as the primary basis for concluding that “the principles of divided government embraced by our Founders are no longer working.”

The trouble, of course, is that both tendencies can connote agreement rather than acquiescence. Members of Congress might choose to do nothing simply because the President is faithfully executing their collective interests. And as a considerable body of literature within political science demonstrates, vague statutes are most commonly enacted during periods when Congress and the President share a common outlook. All too often, arguments about preference convergence and abdication yield predictions that are observationally equivalent. And without an independent measure of congressional preferences, it is impossible to distinguish between the two arguments; and, by extension, it is impossible to diagnose the severity of the problem that we face.

Let us grant, however, that this President is unilaterally instituting at least some policies that Congress, left to its own devices, would not endorse. Katyal’s view pays insufficient attention to the other ways in which Congress can influence policy. By holding hearings, launching investigations, advancing criticisms, and issuing public appeals for a change in course, members can materially raise the President’s political costs of unilateral action, just as they make it more difficult for Presidents to credibly convey resolve to would-be allies and enemies alike. There is, moreover, considerable evidence that Presidents regularly heed such manifestations of political opposition. Repeatedly, Bush has taken bold stances in support of his favored policy position only to backtrack when critics objected. Recall the public debates over the creation of the Department of Homeland Security, over the extent of the 9/11 Commission’s subpoena power, over the Dubai Ports Deal, over domestic surveillance programs, over diplomacy toward Iran and North Korea, and over the interrogation of so-called enemy combatants. In each instance, the Bush administration boldly (sometimes belligerently) staked out a rather extreme position, only to backtrack later when confronted with vocal political opposition.

Reflecting on congressional involvement in the Vietnam War, political scientist David Mayhew notes, “Often the voicing of public opinion has policy effects without any laws being passed; presidents, bureaucrats, and judges, anticipating trouble with Congress, take action to avoid it. Thus the congressional uprising during the Tet Offensive of 1968 (no legislation was passed) was a contributing element in President Johnson’s decision to stop escalating the Vietnam War.” As Mayhew points out, a simple count of Congress’s legislative interventions during the Vietnam War reveals very little about the actual influence Congress wielded over foreign policy toward Southeast Asia. Nor does counting statutes adequately characterize Congress’s influence on the current “war on terror.” And because legislative inactivity does not necessarily connote congressional abdication, a resumption of congressional activity need not allay the deeper concerns that Katyal justifiably raises about the appropriate balance of policy powers across the legislative and congressional branches.

In a forthcoming book, my colleague Jon Pevehouse and I present a considerable amount of evidence that all Presidents in the modern era have remained carefully attuned to Congress. Employing a wide range of statistical models and surveying a half-century of foreign policy, we find that the partisan composition of Congress has a systematic bearing on the frequency, probability, and timing of troop deployments initiated by the President. When Presidents face strong and unified opponents within Congress, they exercise military force less often, are less likely to respond militarily to any specific foreign crisis, and take longer to actually launch a chosen military exercise. Of course, the reverse is also true. When a President enjoys widespread support within Congress—as Bush has for much of his time in office—he retains considerable discretion to exercise military force when, and as, he chooses. As such, Katyal’s complaints about the contemporary state of affairs may have less to do with the institutional design of either the executive or legislative branches and more to do with the outcomes of the last three national elections.

At one level, of course, these findings could be viewed as validating Katyal’s basic point. For when a single party maintains control of both the executive and legislative branches, Congress cannot be counted on to protect its institutional prerogatives and to offer a viable check on presidential use of force. This has been true, though, for upwards of half a century, beginning (arguably) with Truman’s decision to launch the Korean War without an explicit legislative mandate. Today, partisan politics—rather than a constitutionally mandated institutional design—fundamentally determines the President’s discretion to wage war. And in a world of partisan politics, a mobilized opposition within Congress can go some distance toward reigning in an imperial presidency. If they are dissatisfied with current policy, citizens have the option every two years of displacing those members who have failed to limit the President’s powers in favor of others who are more likely to do so.

What, then, should we make of Katyal’s suggestion that intra-branch divisions may succeed where inter-branch divisions have failed? Can we expect that pleas for Progressive Era ideals about neutral competence, bureaucratic expertise, and professionalism will abridge the steady accretion of executive influence witnessed over the last half-century? I suspect not. Although Katyal laments the lack of “systematic focus on internal checks” that administrative agencies might provide, there exists, in fact, important scholarly research on the relationships between the President and bureaucracy. Much of this work focuses singularly on the efforts of the President and Congress to control the bureaucracy. Dominant themes concern the twin strategies of politicization and centralization, which refer to the various ways in which Presidents fill administrative posts with like-minded personnel and then move key policy decision-making into the Executive Office of the President. Politics infuses the design and operation of administrative agencies.

Of course, Katyal recommends that we curb these tendencies by greatly strengthening the independence of the bureaucracy—a job, curiously, that would fall on a Congress that by Katyal’s account has little interest in controlling the President. Even if we set aside the tensions between Katyal’s characterization of and hopes for congressional foresight, however, we still must grapple with the essentially political nature of bureaucratic structure. Take, for example, the value of redundancy. For Katyal, administrative overlap requires that multiple agencies participate in policy-making processes, thereby ensuring that the best possible information reaches a President who, in turn, can promote the nation’s interests. Alternatively, though, redundancy may reflect the efforts of successive presidential administrations to circumvent what they perceive to be hostile factions within the bureaucracy.

Imagine the dilemma faced by President Eisenhower, whose governing style Katyal (via Richard Neustadt) disparages. Eisenhower assumed office after twenty straight years of Democratic control of the White House, leaving him a judiciary and bureaucracy replete with Democratic appointees. Should the newly elected Republican President have relied upon these individuals to formulate his policy agenda? Or, after recognizing the awesome challenges involved in dismantling existing agencies, might he instead have constructed altogether new ones? The latter option, of course, had obvious advantages. But the redundancy that subsequently emerged had nothing to do with advancing expertise or protecting the independence of civil servants. Rather, it reflected the efforts of successive Presidents to pursue distinctly political agendas. If current redundancy is the byproduct of a political struggle between Presidents and the administrators appointed by their political opponents, then we cannot expect further redundancy except through continued struggle. Meanwhile, Katyal offers no reason for either Presidents or their staffs to resist the temptation of privileging those voices that represent their own prior preferences, and instead to sort through the many competing claims that emerge from different administrative agencies sharing jurisdictional boundaries.

Even if internal checks on presidential power do some good—and it is not clear that they do—they are neither perfect, nor even approximate, substitutes for external checks. Members of Congress stand in a distinctively different relationship to the President than do bureaucrats. Members of Congress, after all, operate within a co-equal branch of government. With their own constituents, electoral calendar, resources, and constitutional prerogatives, members of Congress can effectively challenge the President in ways that bureaucrats, no matter how insulated they are from political meddling, simply cannot. Katyal admits that these internal divisions are “second-best” options, and that such “modest” checks will invariably pale in comparison to those placed on European executives by their bureaucracies. “Second best” and “modest,” however, are drastically optimistic modifiers. In reality, internal checks are likely fifth-best options, ranking behind those exerted by Congress, the courts, the public, and even international organizations against a President intent on waging an ill-defined war against terrorism.

That Katyal downplays existing evidence of congressional influence over presidential decision-making and understates the essentially political nature of the modern bureaucracy does not mean that he is altogether wrong. Bureaucratic agencies can occasionally serve as a useful check on presidential powers. Katyal, however, inflates their value. As a corrective to presidential imperialism, I would put more stock in the Democrats gaining control of the House and Senate, or the steady mounting of public outrage against the war, than in any of the structural reforms that Katyal lauds.

William G. Howell is a Professor in the Harris School of Public Policy, University of Chicago.

Preferred Citation: William G. Howell, Political Checks on a Politicized Presidency: A Response to Neal Katyal’s “Internal Separation of Powers,” 116 Yale L.J. Pocket Part 111 (2006), http://yalelawjournal.org/forum/political-checks-on-a-politicized-presidency-a-response-to-neal-katyala8217s-a8220internal-separation-of-powersa8221.

[Editor's Note: Political Checks on a Politicized Presidency: A Response to Neal Katyal’s “Internal Separation of Powers” is a Response to Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314 (2006).]