Congress and the Challenges of Historical Gloss

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Kristen E. Eichensehr 

Curtis Bradley’s new book on Historical Gloss and Foreign Affairs is the definitive account of a mode of constitutional interpretation that has proven key to the development of foreign relations law, both within and outside the courts. Bradley is an enthusiastic supporter of using gloss and persuasively explains why doing so is often necessary given the “laconic” nature of the Constitution’s provisions related to foreign affairs (Chap. 2). At the same time, Bradley acknowledges the risk that reliance on historical gloss tends to favor the executive branch, which can act and stake out legal positions more easily than Congress (30). Bradley nonetheless argues that when one understands how Congress benefits from historical gloss, “Congress looks more formidable than it is sometimes described” (166) and “can often have the last word in foreign affairs” (167). 

While Bradley convincingly shows that Congress sometimes benefits from gloss, he says less about how Congress can avoid losing out to gloss-based arguments by the executive. If congressional acquiescence is required for a valid executive branch claim of historical gloss (26), then what must Congress do to not acquiesce? In other words, what counts or should count as a congressional objection sufficient to defeat an executive branch claim of acquiescence?

Bradley argues persuasively that Congress sometimes benefits from historical gloss, including, for example, gloss supporting broad delegations from Congress to the executive on foreign relations-related issues (Chap. 8). (In that particular context, though, one might reasonably ask whether it’s Congress or the executive that benefits more.) He is also correct that “Congress has so many plausible textual hooks for the exercise of authority that it probably has less need for historical gloss than does the President” (147). But the fact that Congress has less need than the executive to invoke gloss affirmatively to justify its own power says nothing about its need to defend against the (much more frequent) executive invocations of gloss and accompanying claims that Congress has acquiesced in executive assertions of authority. 

The question of what counts as congressional objection or non-acquiescence has important implications beyond arguments specifically about historical gloss. While historical gloss draws inspiration from Justice Frankfurter’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson’s concurring opinion in Youngstown set out the iconic tripartite framework for assessing how presidential powers “fluctuate depending upon their disjunction or conjunction with those of Congress.” Jackson’s Category 2 “zone of twilight” considers “congressional inertia, indifference or quiescence,” and Category 3 is defined by the President “tak[ing] measures incompatible with the express or implied will of Congress.” So what must Congress do if it wants to ensure that courts, the executive, and commentators will not deem it to have acquiesced in executive claims of power for purposes of analyzing either historical gloss or Youngstown? 

One obvious answer is to enact a statute. Bradley argues that “legislative enactments are relevant to Congress’s gloss-based authority” because “[a]t a minimum, these enactments show that claims of exclusive executive authority for these issues are contested, thus undercutting any gloss-based claims that the executive may make in support of such authority” (167). 

But there are two problems with relying on statutes. First, sometimes passage of a statute isn’t sufficient to defeat a historical gloss-based claim by the executive. Case in point: Zivotofsky v. Kerry, where the Supreme Court held that the President could defy a congressional statute about listing of place of birth in passports, despite historical practice that the majority opinion conceded was “not all on one side.” Although Bradley argues that “a longstanding congressional practice, even if contested, will tend to defeat gloss-based claims of exclusive executive authority” (9), the Court in Zivotofsky held that President’s power over recognition of foreign governments was exclusive and allowed him to defy Congress’s statutory direction. While this kind of Youngstown Category 3 win for the President is “very rare” (167), such a pronouncement by the Court is nonetheless chastening for those who seek greater congressional checks on presidential claims of exclusive power. 

The second problem with asking Congress to defeat executive claims of historical gloss by passing statutes is that statutes are hard to enact. Bradley argues that “[e]ven when historical gloss favors presidential authority, it does not tend to show that this authority is unregulable by Congress. . . . In other words, gloss in the separation of powers area tends not to disable majoritarian politics.” (32). But even minoritarian politics can hamper Congress’s attempts to counter gloss: When Congress passes a bill that tries to cabin the President, the President can veto it, which means that Congress needs to marshal supermajority support to enact the bill over the President’s objection. Put differently, a minority of Congress can prevent the legislature from restraining the President in a legally binding way. The first Trump Administration provided multiple examples. Congress passed and President Trump vetoed joint resolutions that sought to terminate the national emergency he declared to build the border wall, to direct withdrawal of U.S. armed forces from hostilities in Yemen, and to direct the termination of hostilities with Iran following the killing of Iranian Major General Qassem Soleimani. Congress did not re-pass any of the resolutions with the required supermajority. Historical gloss’s preservation of majoritarian politics is perhaps cold comfort if practical realities require supermajoritarian politics. 

For purposes of historical gloss, what happens if Congress cannot pass a statute? Can it still counter an executive claim that it has acquiesced? I think the answer is yes, and so does Bradley. Bradley briefly notes that “because it is difficult for Congress to express its opposition to practice in the form of statutes, interpreters should consider congressional ‘soft law,’ such as House and Senate resolutions and committee reports, in discerning whether a practice is sufficiently settled” (32). But how exactly should interpreters “consider” such congressional actions? And when are they sufficient? 

In an article inspired by the vetoed bills described above, I argued for a “Youngstown canon” such that “when Congress passes a bill or resolution by a majority of both houses and the president vetoes it, then the expressed congressional opposition to the president’s view should be used to narrowly construe the underlying statutory or constitutional authority the president is claiming if that authority is ambiguous.” By resisting presidential action, Congress signals its non-acquiescence for purposes of historical gloss and Youngstown analysis. This Youngstown canon proposal sets a floor on what and how to consider congressional objection, focusing on instances where majorities of both houses of Congress oppose the President and their views are prevented from becoming law only by the action of the same President they are trying to restrain. But what of other attempts at congressional opposition, like the one-house resolutions and committee reports Bradley mentions? Or what about opposition expressed by Houses of Congress in briefs filed in litigation? 

Those of us who urge Congress to push back against executive claims of power need to be clearer and more specific about what exactly Congress should do and how its actions should affect subsequent legal claims by the political branches and review of such claims by the courts. Building on Bradley’s authoritative treatment, there is more glossing of gloss yet to come. 

Kristen E. Eichensehr is David H. Ibbeken ‘71 Research Professor of Law at the University of Virginia School of Law. You can reach her by e-mail at keichensehr@law.virginia.edu.