The Yale Law Journal

February 2018

How Long Is History’s Shadow?


abstract. In Congress’s Constitution, Josh Chafetz takes issue with those who have questioned the value of Congress in recent years. He argues that Congress’s critics focus too heavily on its legislative function and ignore several important nonlegislative powers that enable Congress to exert significant authority vis-à-vis the other branches. Chafetz engages in close historical examination of these nonlegislative powers and notes that in some cases, Congress has ceased exercising them as robustly as it once did, while in others it has unwittingly ceded them to another branch. Congress’s Constitution urges Congress to reassert several of its ceded powers more aggressively going forward, in order to recapture some of the authority and influence it has lost over time.

While admiring Chafetz’s project—and sharing in his nostalgia for some of Congress’s lost powers—this Review questions Congress’s ability and inclination to rehabilitate its underused powers in the manner Chafetz advocates. It argues, first, that at least some of the powers Chafetz seeks to revive read like ancient history—the record of an era of legislative governance that has long since passed and that subsequent political and legal events have transformed—perhaps irreversibly. Second, it notes that Chafetz may be underestimating some important dynamics, such as partisanship, that could make Congress itself less likely to want to exercise its powers, and the public unlikely to accept Congress’s attempts to aggressively exercise powers that have lain dormant for decades. More fundamentally, the Review suggests that the present-day Congress may be too shortsighted to look past what it “wants in the moment” in order to take steps that will benefit it as an institution. Moreover, Congress may not care as much about preserving its own traditions and history as Chafetz does.

In the end, the Review therefore submits that while reinvigorating Congress’s underappreciated powers is a good idea in theory, in practice it may prove more challenging than Chafetz recognizes.

author. Professor of Law and Associate Dean for Faculty Scholarship, St. John’s University School of Law. I owe deep thanks to Kate Shaw for valuable insights and comments, to the editors at the Yale Law Journal for exceptional editorial assistance, and to my husband, Ron Tucker, for his patience with this project. Special thanks to Dean Michael A. Simons and St. John’s University School of Law for generous research support. All errors are my own.