Is Congress autonomous?

Sandy Levinson

As some readers know, I am a big fan of Daryl Levinson's article, "Empire-Building Government in Constitutional Law," 118 Harv. L. Rev. 915 (2005), in which he argues that the Madisonian thesis, expressed in Federalist 51, that members of Congress would be assiduous in protecting the "prerogatives" of their institution, is false, for two quite different reasons. The first, a variant of David Mayhew's well-known argument, is that members of Congress are primarily motivated to seek re-election (or, for the even more cynical, well-paying jobs on K St.), not by a concern to protect institutional prerogatives except inasmuch as they contribute to re-election. The second reason is that the rise of the political party, which the Madison of 1788 thought inimical to democracy, makes members of Congress more loyal to their parties than to their institution, especially when their party controls the presidency. This thesis is further elaborated in an article that Levinson has co-authored with Richard Pildes in the current Harvard Law Review, "Separation of Parties, not Powers."

So consider the consequences re the all-too-likely response to Hamdan. As Mark Graber has ably argued, it is far too early to have any confidence about the importance of the case. (Consider Zhou en-Lai's famous comment about its being too early even to pronounce on the ultimatele impact of the French Revolution.) But it is surely possible that the response will be exactly as Mayhew and Levinson would predict: The Republican Party is desperately eager to run one more election on the "terrorism" issue, and the Washington Post article cited by Mark suggests that they will try to make anyone who supports Hamdan--which, after all, says only, at the end of the day, that Congress has not authorized Bush to ignore the Geneva Conventions and existing laws--by refusing to give Bush a blank check to fight the war as he sees fit is, at best, a wimp and, at worst, a collaborator with terrorists. See, e.g., John Boehner's absolutely disgraceful attack on Nancy ("San Francisco liberal") Pelosi and the idiotic claim that she is supporting "special rights" for terrorists (as against the rights set down in existing law). If Republicans could run on the basis of demonstrated accomplishments, perhaps some would resist playing the "terrorism card," but, of course, they cannot, so basic incentives for re-election suggest that Republicans will try to make Hamdan into an albatross around the Democrats' neck. (Query, how many Democrats, themselves desiring re-election, will stand firmly behind Geneva and the Uniform Code of Military Justice? More or fewer than stood firm against the idiocy of the flag-burning amendmeng? And, of course, here the key number may be 60 instead of 67, if we are talking about the possibility of a filibuster against a blank check for Bush.) In addition to re-election pressures, there is also party loyalty, as Bush will play every card at his disposal to keep any independent-minded Republicans in line. John Warner, who is old enough to be beyond any further ambitions, may stand firm. But will Arlen ("all the backbone of a banana') Specter really do so, even though he is probably dying of Hodkins disease? There is nothing in the record of the past two years to give any encouragement on this point.

In any event, the response to Hamdan in Congress may be an interesting natural experiment with regard to whether anyone on Capitol Hill really cares about defending congressional independence against executive overreaching or whether, on the contrary, they will all, Republicans and Democrats alike, behave in accordance with loyalty to their own electoral intersts and their parties' perceived institutional interests.

One final, perhaps unrelated, point: Although I think that Stevens' opinion was admirable in every way, am I the only person who foundn it quite uneloquent, when all is said and done? That is, it seemed to me a wonderfully "lawyerly" opinion as it carefully eviscerated the Administration's arguments. But, in contrast, say, to Hugo Black's First Amendment opinions of the 1950s, which permanently etchned themselves in my then-undergraduate consciousness, or, for that matter, almost any of Scalia's dissents, where the reader always gets a very strong sense of what Scalia believes is a stake with regard to the country or culture outside the courtroom, there is little in Stevens' opinion that stirs the passions or leads one to want to mobilize politically. And, inasmuch as it is basically a "legal process" opinion, focusing on the lack of congressional authorization, it places the ball in Congress's court to stand firm or capitulate to those like David Addington, the subject of a superb--and extremely scary--profile in this week's New Yorker by Jane Mayer, who are, like John Yoo, certainly not remotely persuaded by the Hamdan majority. So perhaps this point isn't unrelated after all: Wouldn't it be wonderful if the opinion contained more quotable language about how basic American values are at stake with regard to the substance of the issues--i.e.. the rights enjoyed even by the (suspected) worst among us--rather than the focus on how existing law hamstrings the Administration in its desires to protect us against terrorists?
Posted 12:25 PM by Sandy Levinson [link]