Balkinization  

Friday, November 12, 2010

What Do the Lame-Duck Congress and the White House Counsel Have in Common?

Bruce Ackerman

Sandy Levinson has supplied an energetic critique of the features of our government that are “hard-wired” into the Constitution. I have been targeting smaller game – pathological institutions that can be eliminated without profound constitutional transformations. Take the White House Counsel, for example: Congress could defund it or the President could choose to eliminate it on his own.

But before anything like this can happen, legal scholarship must expose the dangers of relying on such a politicized institution to provide the president with legal advice. Beltway news media and power-brokers endow the status quo with tremendous normative authority: the Counsel’s office exists, therefore it must be OK. But the truth is that it’s a newcomer on the scene -- before John Dean hired a small legal staff in the White House Counsel’s office during the Watergate era, Presidents relied on the less politicized advice of the Office of Legal Counsel in the Justice Department. It’s the job of legal scholars to emphasize the contingency of the current arrangement, and prepare the way for constructive reform efforts.

My recent work has focused on the presidency, but an op-ed of mine in today’s Washington Post applies the same approach to Congress. Both the media and the Beltway are busy talking about the upcoming agenda for the lameduck Congress without asking whether lameduck Congresses are constitutionally legitimate. But Progressives of an earlier generation said No, and fought a decade-long struggle to abolish regular lameduck sessions by enacting the twentieth amendment in 1933. Indeed, it is only since 1994 that Congresses have routinely convened lameduck sessions after the election. Curiously, the break with earlier Progressive understandings began in the 1970's – just at the time when John Dean was breaking new ground as Nixon’s White House Counsel.

Perhaps we have been underestimating the pathological consequences of Watergate?

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