Gridlock and Congressional Power

January 26th, 2015

We live in an era of dysfunction. I’ve written at some length how the Executive has reacted to this gridlock through the expansion of his own executive power, or what David Pozen refers to as “self-help.” I’ve also addressed how courts react to this gridlock with respect to the judicial power. Rounding out this trilogy, is gridlock and congressional power–how the Congress attempt to expand its power when the President does not get along.

One of the most fascinating examples of the latter involves House Speaker John Boehner’s decision to invite Israeli PM Benjamin Netanyahu to address Congress without the approval of the President. I tend not to write about issues of foreign policy, unless there is a connection to domestic law. This is such a case. At the Originalism Blog, Mike Ramsey spells out with lucid details why this action is likely unconstitutional. David Bernstein largely agrees.

This conflict fits into the ongoing theme of gridlock. Politico reports that for some time, Boehner has been trying to secure the President’s permission to invite Netanyahu.

Soon after becoming House Speaker in 2011, Republican John Boehner started running the traps on inviting Israeli Prime Minister Benjamin Netanyahu to speak to a joint meeting of Congress.

But when Barry Jackson, then Boehner’s chief-of-staff, checked with President Barack Obama’s top advisers, Jackson said he was left waiting a month only to get no response.

Under normal circumstances, the President would likely approve of the Speaker wishing to invite the PM of an ally to address Congress. But we are not living in normal times. Politico suggests that this battle has become quite personal.

But the sequence of events does capture how much the normal courtesies between this White House and Congress have deteriorated — even in front of guests from another country.

“There appear to be no rules anymore. If you can do it, do it,” said Patrick Griffin, who recalls nothing quite like this even in the tempestuous times Griffin served as White House liaison between President Bill Clinton and Speaker Newt Gingrich (R-Ga.). Democratic Leader Nancy Pelosi (D-Calif.), herself a former speaker who oversaw similar joint meetings for foreign guests, said the management of the invitation was “inappropriate” and Boehner risks squandering his power in a fit of “hubris.”

But privately, Democrats admit too that this White House — as seen in the South Korea episode — is no innocent. And Jackson, who has served at both ends of Pennsylvania Avenue, said he is baffled that the administration should talk now about “protocol” after being so quick to exert its executive power to run over Congress.

“This is not the first time where they got cross-wise thinking the House was not an equal branch,” Jackson said. “When I heard about this, I shook my head.”

Here, Boehner seemed to be responding to the breakdown of what would normally be a routine matter for the house. In a well-functioning government, the President would approve the address by the Israeli PM. But, we don’t have that today, so Boehner bypassed POTUS. To Pozen’s theory, this could be viewed as a legitimate form of self-help. I don’t think this is valid, in the same way I don’t think the President can sidestep Congress. As Ramsey notes, here it is even worse as the President is the sole organ of foreign policy, and Congress has no constitutional imperative to host foreign leaders.

Relatedly, my friend Adam White queried on Twitter whether the courts can receive amici from foreign sovereigns. In light of the fact that the judicial power extends to matters involving public ministers, there would seem to be a very strong place for briefs from foreign governments. Also, courts would often have to apply the law of nations (under the ATS for example), so foreign nations would have something to say there. Interestingly, no foreign briefs were filed in Zivotofsky.