Krishnakumar’s Book Review to be Published in Yale Law Journal

Professor Anita S. Krishnakumar has written a review of Josh Chafetz’s new book, Congress’s Constitution:  Legislative Authority and the Separation of Powers (Yale University Press, 2017).  cropped-webpage-i

The review, titled “How Long is History’s Shadow?”, will be published in the Yale Law Journal.  Here is the abstract:

In Congress’s Constitution, Professor Josh Chafetz takes issue with those who have questioned the value of Congress in recent years, arguing that such critics focus too heavily on Congress’s 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 its powers 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. 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. Further, Chafetz may be underestimating how some important dynamics, such as partisanship, could make Congress itself less likely to want to exercise its powers and could make the public unlikely to accept modern congressional attempts to aggressively exercise powers that have lain dormant for decades. More fundamentally, the present-day Congress may not have the integrity as an institution to look past what it “wants in the moment” in order to take steps that will benefit it as an institution—and it may not care as much about preserving its own traditions and history as Chafetz does.

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

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