Panel II: Congress and the Constitution: The Separation of Powers in Action

Episode Transcript
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Speaker 1 (00:03):
I'm tre Zanudo. I'm the vice panel's chair for this
year's symposium.

Speaker 2 (00:07):
Huh.

Speaker 1 (00:07):
Thank you for being here.

Speaker 2 (00:09):
Brian, early in the morning after what I imagine for most
of you as a real late night. But this morning's
panels titled Congress and the Constitution the Separation of Powers
in Action. In recent years, Congress has increasingly turned to
a range of procedural tools and ideas to assert its
role within the separation of powers framework established by the Constitution.

(00:31):
These mechanisms allow Congress to navigate and counterbalance the authority
of administrative agencies, reflecting its constitutionally granted powers to legislate, oversee,
and hold the executive accountable. Considering the opportunities and challenges
arising from such engagement, this panel will examine whether Congress
should pursue a more active role in day to day

(00:53):
enactment and oversight of laws. Moditting this panel is the
Honorable Judge Robert Luck of the Circuit in the Great
State of Florida. Judge Luck earned his j d from
the University of Florida's Frederick G. Levin College of Law.

Speaker 1 (01:09):
Afterward, he clerked for the Honorable Judge Edward Earl Carnes
of the Eleventh Circuit. Prior to his current role, Judge
Luck served as an AUSA for the Southern District of
Florida and as judge on the Eleventh Judicial Circuit of Florida,
the Third District Court of Appeal Miami, and the Florida
Supreme Court. Relevant to his expertise on the subject, Judge

(01:33):
Luck was earlier in his career a legislative correspondent for
two United States Senators. Our esteemed panelists are Josh Chaifitz,
Professor of Law and Politics at Georgetown Law. Josh Chafitz
received his Doctor in Politics from Oxford, where he studied
as a Rhodes Scholar, and his jd from Yale Law School.

(01:53):
Following law school, he clerked for Judge Guido Calibrezi of
the Second Circuit. His research interest include structural constitutional law,
American and British constitutional history, legislation and legislative procedure, American
political development, and the intersection of law in politics. His
second book, Congress's Constitution, Legislative Authority and the Separation of Powers,

(02:16):
inspired this panel. Jillian Metzger, Harlan Fiske Stone, Professor of
Constitutional Law at Columbia Law School. Jillian Metzger received her
jd from Columbia Law School. She clerked for US Supreme
Court Justice Ruth Bader Ginsburg and Judge Pertitia m. Walde
of the d C Circuit. A leading administrative and constitutional

(02:36):
law scholar, Jillian Metzger writes and teaches in the areas
of administrative law, constitutional law, and federal courts, with an
emphasis on federalism and privatization. Metzger's recent work covers topics
ranging from constitutional tax on the administrative state, to appropriations,
administrative law under the Roberts Court, and the role administrative

(02:56):
agencies in an a polarized world. Jonathan Adler is the
Johann Verhe Memorial Professor of Law and the founding director
of the Coleman P. Burke Center for Environmental Law at
Case Western University School of Law. Jonathan Adler received his
j d from George Mason University School of Law. Professor

(03:17):
Adler clerk for the Honorable David Bsontel on the d
C Circuit. He teaches environmental, administrative and constitutional law courses
and has testified before Congress a dozen times. Amandon Eely
is of Council in the Washington d C Office of Gibson,
Don and Crutcher, and is a member of the Public Policy,

(03:37):
Congressional Investigations, White Collar and National Security Practice Groups. Mandon
Eely earned her j d from Duke University School of Law.
Miss Neely clerk for the Honorable David Bisontel on the
d C Circuit. Miss Neely held several senior staff positions
in Congress. She served as Director of Governmental Affairs for
the Senate Homeland Security and Governmental Affairs Committee and General

(04:00):
Counsel to Senator Rob Portman under Senator Portman's chairmanship. She
also served as Deputy Chief Council for the Permanent Subcommittee
on Investigations and the Honorable Justin Amash, who represented Michigan's
third Congressional District in the US House of Representatives from
twenty eleven to twenty twenty one. A double Wolverine, Justin

(04:21):
Amash earned his BA and jd from the University of Michigan.
During his time in Congress, mister Mosh earned a reputation
as an independent thinker who closely embraced the principles of
the Constitution. While here at Michigan Law, Justin Amosh was
a favorite student of Professor Richard primus again, thank you
for being here. There will be Q and A at

(04:42):
the end of the panel, so please keep your questions
in mind, and I'll now pass the floor to the
Honorable Judge Luck. Thank you.

Speaker 3 (04:56):
Great, thank you so much for that warm introduction. Thank you,
thank you so much for that warm introduction. Tray, We
appreciate it. I think I can speak. I'm sure I
could speak on behalf of my co panelists and saying
how honored we are to be here this morning, having
the panel with everybody here. Any symposium on the role
of Congress and our system of government must begin. It

(05:16):
must with a discussion of the powers that Congress actually
has under our constitution. So that's what we are going
to do this morning. Professor Chafitz, who literally wrote the
book on Congress's Constitution, will give us an overview on
the tools that Congress has at its disposal in the
struggle between the branches of government. Professor Metzger, Professor Adler,

(05:37):
and ms. Neely will discuss three of those tools, the
appropriation's power, reauthorization and investigations. And then finally you're going
to hear from a former Congressman and Michigan law alum
justin image who will discuss how each of these tools
are in fact used or not used in practice. Now,

(05:57):
we're going to do a little bit different than you
see it normal panels. This We're going to structure it
a little bit differently. What we're going to do is
after a panelist does their talk for about five or
seven minutes, we're then going to have a full discussion
about what the panel hast talked about before we move
on to someone else. So instead of serially going remarks
remarks remarks, We're going to do discussion after each remarks.

(06:17):
I think that way the hope is that we have
a really great and dynamic back and forth, which we're
going to try to do and I'm going to try
to facilitate, and then at the end we're really looking
forward to having questions from everybody here. So with that,
Professor Chabins.

Speaker 4 (06:32):
Thank you so much, Judge Luck, thank you to Trey
and to all the organizers. This has been a beautifully
run conference so far, and I really appreciate all of
your hard work and also being able to be here
with you all today. I especially appreciate it because FEDSOC
has a sort of long and glorious history of really
caring about congressional power. You know, I've done work with
with fedsoc's Article one project before, and I think this

(06:55):
is a sort of really important component of the work
that the Federal Society has done, and I'm very pleased
to be able to be here and speak to you
about it today. As both Trey and Judge Luck mentioned,
my own sort of largest contribution to this field is
a book I wrote a few years ago called Congress's Constitution,
which is largely about the sort of tools that are
available to Congress in inter branch conflict, primarily conflict with

(07:19):
the executive branch, but conflict with the judiciary as well.
And part of the sort of core premise of that
book is that sort of statutory restrictions, things on the
order of the War Powers Act or the Ethics and
Government Act are relatively unavailing, right, They're likely to be
passed only in sort of extreme times, right. Both of
those were passed in the aftermath of Watergate. And you know,

(07:42):
in normal times, if the president doesn't like restraints on
his or her power, which is likely to be the case,
then the president can veto those. If the judiciary doesn't
like restraints on its power. It can either strike them
down or interpret them into oblivion. And so those kinds
of direct legislative attacks on the power of the other
branches are likely to be relatively unavailing. So what does

(08:02):
that leave Congress with? And my argument in the book
is that it does leave Congress with a relatively potent toolbox.
So I'm just going to mention a number of the
powers that I talk about in the book, sort of
very briefly. As Judge Luck mentioned, my colleagues on the
panel are going to go into several of them in
greater detail. But first, and I think perhaps most importantly

(08:23):
primus inter paris, is the power of the purse, right,
both the taxing and the spending power. The idea that
the legislature is the principle and first mover in levying taxes. Right,
taxes cannot be levied except by congressional approval, but also
in spending decisions. Right, that money cannot be spent without
congressional approval, but also that when Congress demands that money

(08:45):
be spent, that money has to be spent.

Speaker 3 (08:47):
Right.

Speaker 4 (08:47):
This is a power that was heavily fought for in
seventeenth century England. It was sort of at the core
of the struggles between the Crown and Parliament, and it
was at the core of what the eighteenth century American
colonists and founders sort of thought they were doing when
they created legislatures. And I'm certainly happy to talk more
about the history of any of these powers as we

(09:08):
go forward. The second major power I talk about is
what I call the personnel power. So this is obviously
the Senate's role in confirming nominees, it's both chambers role
in the impeachment proceedings, and it's also more generally both
chambers roles in when they're drafting organic statutes. The choices
they make about structuring agencies, right, how many officers, how

(09:30):
many employees are going to be in any given agency,
what their job descriptions are going to be, how much
tenure protection or not they're going to have.

Speaker 2 (09:39):
Right.

Speaker 4 (09:39):
Those are all sort of personnel based choices that Congress
can use, and that it can use in various ways
to sort of limit or to empower the other branches.
Third is the power of oversight and the sort of
concombinant power of contempt of Congress. Right, So, the ability
to gather information from and the other branches, but also

(10:03):
to use those, as I talked about more in a
subsequent work a Larva article called Congressional over speech, to
use the information gathered as a way of making a
public case, right, not simply passively receiving information, but actually
structuring hearings so as to make a case sort of
to the public in a way that may or may
not be congenial to the other branches. Relatedly, a sort

(10:25):
of fourth important power comes from the speech or debate clause,
the fact that members of Congress can, you know, as
even as sort of individual members can take to the
floor and can disseminate information that the other branches may
really not want disseminated.

Speaker 3 (10:38):
Right.

Speaker 4 (10:38):
So, in this vein, I think about the fact that
Senator Mike Gravel read the Pentagon papers into a subcommittee
record in the seventies. I think about the fact that
Senators Widen you'd all in Rockefeller informed the public in
floor speeches about secret OLC interpretations of the Patriot Act
in the early two thousands. And then, finally, and perhaps

(11:00):
at least obviously, but the Rules of Proceedings clause right,
the Constitution's power, so the Chamber's power to determine.

Speaker 3 (11:08):
Their own rules.

Speaker 4 (11:09):
These can be used in ways that build capacity, and
it can be used in ways that destroy capacity. But
from the sort of earliest days of sort of partisan
conflict in the mid seventeen nineties, right when Albert Gallatin
creates the Ways and Means Committee in the House of Representatives,
the Chambers have used their power, and Gallatin, by the way,
sort of explicitly creating that committee as a pushback against
Hamilton's Treasury Department. Right, the Chambers have sort of used

(11:32):
their power over their own internal proceedings and their own
internal structures as a way of asserting themselves against the
other branches. So that is like the very very quick
overview of the congressional toolbox. But I want to sort
of note that at the end of the day, the
efficacy of those tools really depend on a and I

(11:55):
should say I didn't say this in the book because
it didn't occur to me that I would need to
say this in the book. It was not front of mind.
But it really depends on a baseline assumption that the
other branches, and most especially the executive branch, will make
at the very least a good faith effort at law
compliance at the end of the day, the executive branch
is the one with all of the guns. It's the
one that has way more personnel than any of the

(12:16):
other branches, and so if it simply decides to opt
out of law compliance, there's absolutely nothing that any of
these tools can do.

Speaker 3 (12:23):
Right.

Speaker 4 (12:24):
Congress can cut off funding, But if the executive branch says,
I don't really care about the appropriation's clause of the Constitution,
I'm going to break into the treasury and take what
I want, There's not a whole lot that Congress as
an institution can do about that at the end of
the day. And I think it's important to say that
at this moment, and in a room full of people
who are sort of interested in Congressional power and devoted

(12:46):
to the proposition that Congress does have a rightful place
in the constitutional order, because I think it is fair
to say that we are currently facing an existential threat
to Congressional power and through it, to our constitutional order itself.
In the last month and a half, we have seen
an administration that claims that, notwithstanding the clear text of

(13:09):
appropriation statutes, that it has the right to impound funds
without making even the pretense of a compliance with the
Impouwment Control Act. Now this may sound sort of minor
and technical, and Professor Metzker is going to talk I
think more about impoundment in a minute.

Speaker 3 (13:22):
But the point I want.

Speaker 4 (13:23):
To make here is simply that what impoundment actually is
is a claim that the executive doesn't have to comply
with statutory law. Appropriation statutes are statutes, they are law,
and for the executive to say we don't have to
spend money that has been appropriated in a mandatory fashion
is simply to say we get to choose when we

(13:44):
will comply with statutory law and when we won't. That's
a power that the seventeenth century Stuart monarchs referred to
as the dispensing power. They were, as many of you know,
forcibly driven from office not once but twice over the
course of that century. And indeed, the first two provisions
of the sixteen eighty nine Bill of Rights after the
Glorious Revolution are dedicated to denying that what it calls

(14:08):
the pretended power of suspending or dispensing with the laws.

Speaker 5 (14:11):
Right, and yet that is the claim that.

Speaker 4 (14:12):
The current administrator of the Office of Management and Budget
has made that the president has an inherent right to
do that. This administration has also ignored the clear language
of appropriations riters, denying it the power to do certain things.
It has destroyed agencies that have been created by statute,
despite the fact that there is no statutory authorization for
the destruction of those agencies. It has dismissed officers who

(14:36):
have statutory tenure protections, and its fired employees notwithstanding civil
service protections. Just yesterday, it announced that it was withholding
hundreds of millions of dollars from a university because it
dislikes that university's policies, despite the fact that that withholding
is not consistent with either the procedural or the substantive
provisions of the applicable law. And just yesterday we found

(14:58):
out that the administration believes that it has the authority
to not only fire the head of an agency that
has tenure protection, but then to appoint an acting head
of that agency, notwithstanding the fact that the national that
the Federal Vacancy's Reform Act explicitly exempts that agency from
having an acting director. In other words, the claim is
that there is an inherent article to authority to appoint

(15:18):
someone to that office. Despite a statutory denial of authority
to appoint someone to that office. These are not, I think,
cases where sort of reasonable, legally informed people can disagree.
These are situations in which the executive is claiming an
inherent authority.

Speaker 3 (15:35):
To opt out of the law.

Speaker 4 (15:37):
These are, I think, consistent with the actions of a
president who, within the span of a week, compared himself
to Napoleon and declared that he is the king, and
whose official White House social media accunts, not his personal accounts,
but official White House accounts, then posted a picture, an
AI generated picture of him wearing a crown and royal regalia.

(15:58):
The sort of thing that when it was suggested to
George Washington that he become a king, he responded angrily,
not only that he would not do so, but that
the very suggestion was offensive and inappropriate in a republic.
So I want to sort of suggest to all of you,
especially because people in this room are the kind of
people who are going to be key players in what

(16:22):
happens over the next four years, that if the commitment
to congressional power, if the commitment to Congress having and
exercising the tools of its office, is one that you
genuinely and deeply hold. Then there need to be responses
to this kind of action, and those responses largely it
would be great if more of those responses came from
members of Congress. But the responses need to be broader

(16:43):
than just coming from Congress, because these actions that I've
described to you are, each and every one of them
end runs around congressional power and n runs that have
been justified not even by spurious claims of legality, but
simply by the claim I can do what I want.

Speaker 3 (16:58):
Thank you, Thank you, Professor Chafitz. So I'll end, I'll
start by ending there. I'll start her discussion by ending
where you ended, which is how has I know it's
only been six or seven weeks the second Trump administration's
actions with respect to congressional power, some of the things
you just talked about so far differed from or similar
to previous administrations. I know there was critique of how

(17:22):
other administrations handled certain acts that had not been authorized
by Congress. The Supreme Court specifically has specifically said that
certain actions were outside the authority given to certain administrations.
Is this just a matter of degree? How is this
substantively different or similar to things that have happened with
other administrations, and then I'll open up to other panel

(17:43):
members to come in.

Speaker 4 (17:44):
Right. So that's a great question, and it's like it's
very clear, right, administrations of both parties going back decades,
if not centuries, right, have pushed the bounds of executive authority. Right,
that is not in and of itself new in any way.
I think, you know, there comes a point where a
difference of degree becomes a difference in kind. So I

(18:08):
think there's sort of two broadways I want to answer that, right.
One is, I think the kinds of claims being pushed
by this administration are in many cases substantively different, which
is to say, they are not making sort of plausible,
good faith efforts to provide legal justifications or to claim

(18:29):
compliance with the law. Right, they are simply bulldozing ahead
and sort of doing what they want and letting the
sort of legal chips fall where they may right there.
They're not putting forth sort of plausible legal arguments, even
if those legal arguments later turn out to be wrong.
And then the second is just the sheer, the sheer

(18:51):
scope of it, right, the sheer sort of amount that
has been done altravirious over the last whatever it's been
now six or eight weeks. I think dwarf anything that
we've seen out of any other administration. And so I
think it is the case that you know, for any
individual thing, well, I shouldn't even say that, for many
of the individual things, you can find sort of facially

(19:12):
similar examples in previous administrations. Now, I think that's not
necessarily the case with impoundment. Every president since Nixon has
at least has has at least claimed to comply with
the Impowerment Control Act, right, And there have been sort
of precious few situations since Nixon where presidents have plausibly
not complied with the Empowerment Control Act. But in many

(19:32):
of the other situations, I think you can find sort
of individual acts from previous administrations of both parties that
look facially similar. But I think the real issue is
the is the sort of aggregative one, right, the fact
that while any individual act may have plausible precedent, the
sort of overwhelming onslaught of it, the sum total here
is sort of different enough as to make it. I

(19:55):
think a difference in kind and not not simply a
degree does.

Speaker 3 (19:58):
And that's where I'd like the other panel members way
in is there agreement on that or any disagreement regarding
whether so. The two things that I think Professor Chafits
pointed out is no plausible legal arguments in supportive of
the actions of the current administration, and that the scope
is somehow different and making it different in kind as
opposed to degree Professor Adler, I see you, yeah.

Speaker 5 (20:16):
One away, I do disagribe it.

Speaker 6 (20:18):
Certainly in terms of scope and volume, I fully agree
with Professor Chaffitz. But in terms of have we in
the last several administrations seen administrations take actions first and
then try and cobble together a legal justification afterwards. Absolutely
have we seen administrations take actions with no consideration whatsoever

(20:42):
of the legality until after the action is taken, and
then try and come up with answers after the fact.

Speaker 5 (20:47):
Absolutely have we.

Speaker 6 (20:49):
Seen administrations make arguments that no one who really looked
at the underlying legal issues thought were good faith arguments.
I mean, just to we could just just for example,
look at the Obama administration's implementation the Affordable Care Act,
waving away the employer mandate penalty, the so called if
you want like your doctor, you can keep it fixed.
The stuff that I've written about Sir Baggley's written extensively

(21:10):
about this. A lot of these were not good faith actions.
They were actions that were taken because the administration felt
in order to achieve its policy objectives, it had to
take them. In the case of the employer mandate penalty,
we know that the IRS did not think about the
legal justification until after it did it. We also, for example,
in the Biden administration, we can argue whether there was

(21:31):
a good faith argument to for example, for the student
loan withdrawal, but there was no good faith argument to
after announcing it to then jerry mander the contours of
the program and of midstream with the sole purpose of
denying anyone Article three standing to be able to sue
now time During both the MoMA administration and the Biden administration,

(21:54):
I was one of folks so was saying, people need
to call this out because there will be an administration
that will be more brazen and we'll do these sorts
of things with less pretense about trying to conform with
the law. And that is in fact what we are
seeing now. Because I would agree the current administration is
more brazen. There is less pretense of compliance and instead

(22:16):
of doing it here and there is doing it across
the board, but we certainly saw that this was coming
and could come. And I think the other important difference
between this administration and prior administrations is there's significant pushback
across the ideological spectrum, which especially during the Obama administration,
but also certainly true for many things in the Biden administration.

(22:38):
There was a surprising lack of cross ideological public pushback,
and I think that's a problem. There's not as much
cross ideological pushback now as I would like, but there's
certainly a lot more than there was during some of
the prior examples that I think created some very problematic

(22:59):
precedence that and administration, as aggressive as the current one is,
is trying doing its best to take advantage of along
every margin.

Speaker 3 (23:08):
So anyone else who so, Professor Mesker, in terms of
degree or kind, what are we seeing? How is this
just different in kind? Or is this just another step
along the imperial presidency?

Speaker 7 (23:20):
I mean, I do think that it's hard to underestimate
the effect of the wide array of just flood the
zone and flood the zone with actions that you know,
some may just push the envelope, some are really in
the face of a governing statute, and the whole point
is to have that statute be challenged. And it's fine,
I mean fine, if you're going to, for example, you know,

(23:43):
remove somebody who has independence and has removal protection and
you want to tee up the issue of Humphrey's executor.
I think where the court is right now, it's actually
legitimate to tee that up at some point. But you
do it in one case, you see what happens, rather
than you fire people from across the board a whole
bunch all at once, which is just an effort then
to also style me these agencies from being able to function,

(24:06):
the idea of for example, you know, sending people home
more administrative lyef so the agencies can't actually function.

Speaker 5 (24:11):
These are these are new things.

Speaker 7 (24:14):
That's not the kind of thing we've seen before, and
we also haven't seen it on the kind of scope
that we're seeing it now. And I think those are different.
I mean, I think for sure you can come up
with examples from all of the recent administrations which are
aggressive pushing of the executive power able that is that
is the theme, and then and that that is certainly

(24:34):
a phenomenon. I do think this feels to me different
whether it you know where it ends and part of
the problem is is just the first few weeks, so
we don't know where it's going to end up, and
whether or not you know this is an initial spade
and there'll be any response to the judicial pushback or not.
The one thing I was going to disagree with you
is I don't think there's been anywhere near enough across

(24:57):
ideology here pushback. I have to say, I think that
that there are many reasons and dynamics for that. And
I think you're right that there weren't very many Democrats
who are criticizing things the Biden administration did. I'm not
saying this is you know, that's different, but I am
not seeing today what I would expect, particularly from Congress,
in terms of push I'm just.

Speaker 6 (25:17):
Not I would agree say I would agree on Congress,
and I think that's a problem. I would say, And
if I think, I think the Affordable Care Act stuff
is the best example, I mean I point to Professor
Bagley's work on that because I think he was uh
the only prominent left of center legal figure to call

(25:37):
out the Obama administration for things that were not even arguable,
and that the administration took actions and tried to cobble
the legal justifications for afterwards. And you know, so is
there enough on the right now? No, but you know
there are there are fewer right of center academics and
are left to center academics, and there are more right

(25:57):
of center academics criticizing the Trump administration or of magnitude
more than left of center academics criticized the Obama administration
for the Affordable Care Act. And I'm not saying that's,
you know, oh, therefore it justifies it. Now, I'm saying
is that we have to recognize that these sorts of
norm violations tend to increase exponentially, because what a new
administration does is they say, ah, there's the one example
I want to I want, but I can now use

(26:19):
it ten times. And so the natural course of these
sorts of things is to have the increase in scale.
And you know, we should not just be worried about
what's going to happen in the rest of this administration.
We should also worry about the next administration that says, Okay,
if Trump is doing ten times what Obama did, what
does it look like if the next administration tries to
do ten times what Trump did.

Speaker 3 (26:39):
All right, I want to get a little more specific.
We've been talking in the general and Professor Chafits mentioned
specific tools that Congress has, and we're going to analyze
and dig a little deeper into three of those tools.
You're next going to hear from Professor Metzker. She will
tell us about the constitutional and statutory background to the
appropriation's power, and it is such a critical congressional tool,

(27:03):
especially in the times that we're talking about right now.

Speaker 5 (27:05):
So Professor Metzker, thank you.

Speaker 7 (27:09):
And what I'm going to be giving you is an
overview of normal the normal framework, and then talking to
you a little bit at the at the end about
where some of some of that may be changing. So
appropriations are really, I think a truly crucial mechanism of
Congressional control and both over policy making and also just

(27:33):
control over the executive branch. They have long been understood
to be Congress's bailiwick, and there's a very strong constitutional
basis for that. For one, there's suspending clause of Article
one that's reinforced by the appropriations clause of Article one,
Section nine, which provides that no money shall be drawn
from the Treasury, but in consequence of appropriations made by law.

(27:55):
In addition, there are what Professor schaff has referred to
the tax power, other provisions, the provision to coin money,
other ways that it's just clear if you look at
the Constitution and these repeated reinforcing textual references, that this
was a core power that was given to Congress. And

(28:16):
there's of course also the history you refer to about
how much control over the purse was critical to the
struggles between the executive and the legislature in both British
history and then we saw it also colonially. The Supreme
Court has recognized this, so they have a decision from
last term cfpv. Versus Community Financial Services Association, which really

(28:41):
emphasized Congress's broad discretion to structure appropriations as it deems best,
and noted in particular that you saw in early days
a number of legislative bodies exercising again similar kind of discretion,
sometimes requiring expenditures of a particular amount is something that
the Supreme Court noted in that opinion. And there also

(29:04):
have been cases where a famous one is Trained versus
the United States, which came out of the Nixon administration,
where the Supreme Court enforced statutory a mandatory appropriation against
the administration not falling through on it. So this is
this is sort of well established background, and using that
power of the purse, Congress has enacted several framework statutes

(29:28):
to governed appropriations. Some of these go back a long time.
One from eighteen oh nine is called the Purpose Act,
and it requires that appropriations be spent for the purposes
for which they were appropriated, unless the statute provides otherwise.
Another long standing statute is what's known as the Anti
Deficiency Act. This one dates back to shortly after the

(29:48):
Civil War. The Anti Deficiency Act is the reason that
we have shutdowns, and it basically prohibits agency in the
executive branch from spending or obligating funds above the amounts
that have and appropriated. And then a third member measure
is the one that Professor schaff has referred to the
Empowerment Act. It's actually the Budget and Empowerment Control Act

(30:09):
of nineteen seventy four, the Budget Act. Parts of that
set out the process or the official regular order process
for drafting and enacting the federal budget. It's a process
that's honored in the breach more than anything else these days,
I think. But the Empowerment Control part is the part

(30:29):
that restricts the president's ability to refuse to spend, and
it's of course what's really been in the news of late.
It actually imposes pretty tight controls on the president in
this regard. So in particular, the president can make under
the terms of the Empowerment Control Act two kinds of moves,
deferrals and recisions. A deferral can be made only for

(30:52):
certain purposes, to provide for contingencies to achieve savings made
possible through buyer through changes, fronments of greater efficiency, and
specifically it's provided by law. Those are the only three grounds.
And it's absolutely clear that one ground the president cannot
defer spending for is because the president is a policy matter,
disagrees with spending. And in addition the procedural limits, the

(31:16):
president has to send a special message to Congress, has
to identify the amount, the appropriations, account the details. This
is very detailed regulation of how a president can go
about doing what's called a deferral, and critically, the funds
also have to be released and spent within the fiscal year.
In terms of a recision, what the president can do
there is propose a recision on policy grounds, but the

(31:39):
president has no unilateral authority to do a recision. The
recision gets proposed, and there's forty five days and a
sort of fast track basis which Congress has to approve it,
and if Congress doesn't approve with those funds, then must
go back to be obligated. Right, So these are two
very restrictive options in the statute for not spending fund funds.

(32:01):
O and B and GO are the agencies that oversee
federal funding, and over time they have developed a third
category called programmatic denials, sorry, programmatic delays, and these are
supposed to apply really only where operational factors unavoidably impede
the obligation of budget authority, notwithstanding the agencies reasonable and

(32:22):
good faith efforts to implement the program. There's been a hurricane,
you can't spend the funds, the program can't go forward
within the time period. You're running into a legal requirement
that you just can't meet within the time period. Right,
that's the kind of thing that programmatic delay is supposed
to be about. The other thing to focus on these
are the framework statutes. But then you have individual appropriation statutes,

(32:43):
and some of those individual appropriation statutes do give a
fair bit of discretion. They will be you can spend
up to or no more than a lot of appropriation
statutes have provisions where you can transfer funds from one
appropriations count to another. You can often reprogram within an
appropriation's account, so there certainly is discretion there. But there

(33:05):
are also a lot of mandatory statutes, statutes that require
funding statutes that don't leave discretion in the executive branch.
And there are also something else. Professor Schafs referred to
a number of appropriation writers in appropriation statutes right things
that basically the traditional form is to say no funds
are available to be used for particular form, particular action,

(33:28):
or activity. And one that was in the news recently
was the NIH writer, and it says it prohibits an
IIH from using any funds to develop or implement a
modified approach to determining indirect cost rates on grants other
than the rape provided in the Appropriations Act. Right, so
the agency is prohibited from using any of its funding
to do this action, so it can even suggest or

(33:50):
propose it. So basically what you come down to is
the executive branch, can't spend funds on anything that the
funds haven't been appropriated for by Congress, can only spend
those that have been appropriated, and can't refuse to spend
funds for purposes with which they disagree. And of course
agencies need funds to act. So these are really critical

(34:10):
constraints and explain why appropriations are such an important congressional
mechanism of control. Another key feature to bear in mind
is that most appropriation measures that fund the government, not
most appropriations. Overall, we have a large number of what
are called permanent measures, I think Social Security or Medicare,

(34:32):
but most of the appropriations that fund the government are
done on an annual basis. So this is actually an
important mechanism of ongoing control.

Speaker 5 (34:39):
Right.

Speaker 7 (34:39):
This is a way that Congress can, under its modeled
wheeled control over what agencies are doing. And another thing
that plays in here is the must pass nature of appropriations.
Right if you don't if you don't get that appropriations
bill through, you need to at least get a continuing
resolution or otherwise the government shuts down down and that

(35:01):
gives a certain amount of urgency that we all witness
regularly in the news. To reach in some kinds of
compromise to for the executive brand and the in Congress
to come together and pass things that maybe neither maybe
has provisions, neither wants, but it sort of forces that
degree of compromise, so that that's another feature that matters.

(35:21):
I just have three other points that I just want
to make briefly. One is that you courts, in my view,
if you if you appropriations are are largely more I
think in the political sphere than in the judicial sphere.
That that's been the true up until now. And courts
in general, when you look at the doctrines and approaches

(35:43):
that they have, they tend to marginalize appropriations. And this
is particularly true of administrative law, but it's also true
in constitution law. So if you think about constitutional law
and you think about delegations, and one of the core
issues with delegations is Congress is giving away all this
power usually courts and assessing that kind of challenge don't
look at what's happening on the appropriations front. Congress might
be giving a broad delegation and then what it's doing

(36:05):
is very carefully sort of consulting and controlling through appropriations
over the year and A good example of that is Gundhy,
where there were actually lots of hearings over the fact
that Congress wanted to be making sure that the agencies
had enough money so that they could go after all
of the preact offenders, which I'm going to assume some
of you know the case and not take the time

(36:26):
to explain it right now. But that is a good
sign that Congress knew perfectly well what the Justice but
I'm doing, and through a measure that was enacted into law,
had sanctioned it. So that's marginalized, and sometimes that marginalization
is I think appropriate. It reflects the fact that courts
aren't the prime venue for appropriations battles, but in other cases,
I think it does reflect courts failing to appreciate how

(36:48):
important appropriations are. It also means that a lot of
internal executive branch lawyering is where you get the controls
and the enforcement of legal constraints on appropriations.

Speaker 8 (36:59):
There is it's a huge.

Speaker 7 (37:00):
Amount of executive brand lawyering that deals with money, government money,
government funds, the restrictions on it, adhering to it, trying
to enforce it. That has always been a critical feature
of our system. One of the biggest concerns about what's
happening now is what it's saying about what's happening to
that internal system of norm reinforcement, which is so critical
to preserve the rule of law in this area. Courts

(37:23):
can only do so much. They are not going to
be involved in these debates.

Speaker 3 (37:28):
Let me ask you about that part. Sorry, let me
ask you about that last part, Professor Mesker, So near
and dear to my heart is how these things are
actually litigated in the courts. And so you've raised, in
my mind to be a very interesting issue of what
is the mechanism for how these come to courts? How
are they litigated in the courts. It's one thing to
say that the president has violated the law or the

(37:48):
executive has violated the law. It's another to say who
is able to enforce what the law is? And so
I guess my question to you is how do these
appropriate issues, which is what you were touching on, surface
and judicial decisions, and what are the special issues facing
courts in this context as they litigate these issues that
are coming up.

Speaker 7 (38:06):
No, it's a great question. There are some real issues here.
So one of the things to think about that is
I'll just tick off a few. So sovereign immunity is
one issue that comes up. You know, you can sue
for an injunction that will require an agency to take
actions that will cost money. There's a case, a bo

(38:28):
In case that says that. But you're also supposed to
if you're suing for money back from the government on
a contract or a claim, you're supposed to do that
in the court of claims right and so. And we
saw recently in the in the Supreme Court this issue
coming up as should where should the jurisdiction be, should
be suing for injunction or not? If you don't sue

(38:49):
for an injunction, you can't get an injunction right away.
By the time it gets litigated, the agency is dead.
The organization that's getting the grant is dead because it's
not The problem is it's about to go bankrupt. So
there's a real tension there. When there were lawsuits over
the border wall funding and the transit, there was huge

(39:09):
questions about where's the cause of action? Can you come
into court in the traditional implied equitable action for that
there's no separate right of action? Who has standing? Sometimes
the interests that are being asserted. You know, for example,
this border wall is affecting environmental interests and clear injury
there for that. But that environmental interest connection to Congress's

(39:30):
appropriations control there's a bit of a leap there, right,
So there's some real real challenges I think on those fronts.

Speaker 3 (39:37):
So anyone else have anything, Yeah, mss Neelie, what are
your thoughts, especially with regard to standing, who gets to litigate,
how these things are litigated, and can you be successful,
especially if it's a grantee where it's sort of the
we're either going to operate or not operate. We're dead
or not dead if we don't get the money.

Speaker 9 (39:55):
I think we're going to be finding that out very shortly.
I actually have a different point of you don't mind
if I raise it, And I think it's just a
very practical point that a Congressman Amash, actually you probably
have the greatest insight on this. With the Empowerment Control Act,
we're saying that the president has to spend appropriated funds.

Speaker 10 (40:13):
President saying no, I don't.

Speaker 9 (40:15):
So let's say there's an emergency in your district, there's
a flood, there's a fire. Congress appropriates funds to help
recovery efforts, and the President says, hmm, I don't have
to release those funds, but you know, congressmen, I could
release those funds.

Speaker 10 (40:31):
What can you do for me?

Speaker 9 (40:33):
And I think we saw that exact situation with funds
for Ukraine during the first administration at Trump administration that
was actually the grounds for impeachment when President Trump was
reluctant to release funds for Ukraine and had the perfect
phone call with President Zelenski and kind of said, President Zelenski,
what can you do for me? Can you run some

(40:54):
investigations that might be helpful to me? What would it
mean to you if the President said, what can you
do for me to get the funds?

Speaker 8 (41:02):
Well, I think that kind of self dealing if it's
if it's for a personal benefit, it's it's impeachable. I mean,
this is the position I took. And and uh, I guess,
you know, maybe one of the reasons I'm here today
and not sitting in Congress. So yeah, I think we
see more of that sort of self dealing obviously with

(41:23):
the Trump administration because it's very overt. I don't know
how much of it happens under under other administrations because
some of that is done behind the scenes. But for me, look,
if someone is asking for a benefit, a personal benefit,
and they're saying, we're going to release funds if you
give me that personal benefit, that's an impeachable offense. And

(41:47):
the Trump administration seems to be willing to do this
kind of thing over and over again, whether it's in
the realm of appropriations or or elsewhere where they essentially
hang something out there and they say, this bad thing
had happened to you, unless you help me out.

Speaker 3 (42:05):
Professor Mesker, Sorry, Professor Mesker. One of the things you
sort of touched on was how things have changed over time.
A lot of these laws are sort of a more
recent vintage or have come up post Civil War, post Watergate,
with growing partisanship and division. Where are we headed with this?
Do we need new infrastructure? Are the old laws good enough?

(42:29):
And how do those old laws fit in the current paradigm.

Speaker 7 (42:35):
I'm somewhat tempted to also bump it to the congressman
because I think traditionally appropriations were an area of much
more bipartisan effort an agreement. There's sort of, you know,
some to be a forest trading between the two. But
the appropriations committees have a reputation of having gotten along

(42:55):
and overcome more partisan divides. There are some signs the
last study I looked at, I think went back to
the UH to the first Trump administration of more polarization
in the in the appropriation space. And I think you're
also seeing that just in general, you know, with the
very slim majorities in Congress and very different views on

(43:17):
funding and things like the debt ceiling and the government
shutdown as a couple of points of leverage if you
care very much about particular issue on this, we're seeing
a lot of divides over appropriations and overfunding the government. Uh,
you know those I do think those are issues that
we have to think about. I think there are issues

(43:38):
with the deficit that we have to think about. I
don't know how you restore norm and practice that are
what really keep this system working once they're destroyed, And
that to me is the biggest challenge, because I think
you can enact new statutes, you can do well, maybe
you can do hard law measures, but the culture of

(43:58):
law compliance, the reck ignition, how much you have to
adhere to these constraints, and how basic it is the
democracy and rule of law is very hard to recreate,
and that's what's really undertack.

Speaker 3 (44:11):
All right, So we're going to talk about the next
tool in the toolbox that Professor Chafis mentioned, and that
is the sort of the law piece, or what we'll
call the reauthorization piece. We're going to hear from Professor
Adler on that. He'll talk about Congress as legislative power
and now the doctrine of lawmaking has exacerbated the problem
of having to use old statutes in order to address

(44:33):
new problems.

Speaker 6 (44:34):
Professor Radler, well, thank you, and let me add my
thanks to the organizers. It's always great to be at
the symposium. My introduction to the Federal Society, and I
guess I'm going to date myself here. Was actually at
the Student Symposium at Yale when I was an undergrad
in nineteen ninety one, and I've been hooked ever since,

(44:55):
and I certainly hope that a lot of the students
here have that sort of experience. It's this, to my mind,
the Student Symposium is really the premiere event, and it's
the kind of the og FEDSOK event. So it's always
great to be here, and it's great to be back
in an Arbor. So in some respects, I want to
talk briefly about kind of the legislative power that we're

(45:17):
most familiar with, right, the one that's part of Schoolhouse Rock,
the part of the legislature's authority to enact laws. But
I think one of the ways I want us to
think about it is not simply the power to enact laws,
but the way that Congress structures its lawmaking, and in particular,
the way Congress thinks about its own need or desire

(45:39):
to revisit laws over time affects its ability to push
back against and constrain the other branches, the executive branch
in particular, and how on our current moment, when Congress
seems less interested in legislating than it has been historically,
this sort of consideration and focus is particularly needed.

Speaker 5 (46:04):
Right, So, we know Congress rights laws.

Speaker 6 (46:06):
We know that it's a little bit more complicated than
the I'm just a bill a Schoolhouse Rock video that
I show it to my legreg students. The bi camerals
men presentment process is important.

Speaker 5 (46:19):
It's difficult, right.

Speaker 6 (46:21):
One of the most important things that people generally have
to learn about the legislative process is that it's not
just enough to have a majority. The majority you need
in the House represents different constituencies in the majority you
need in the Senate. Certainly you need in the normal circumstance,
presidential acquiescence or agreement unless you're going to try and
override the veto. But the existence of various structures within

(46:44):
Congress its ability to create its own rules, which which.

Speaker 5 (46:47):
Professor Chaveins talks about in his books, also.

Speaker 6 (46:50):
Creates veto gates and other hurdles to lawmaking that require
assembling coalitions that in effect represents supermajority to get a
legislation done. And one thing that's interesting in the way
that Congress has ahistorically approached some of that lawmaking responsibility
is to recreate a dynamic, which a Professor Metzker just

(47:14):
talked about occurs in the appropriations process of creating a
dynamic where Congress has created very strong incentives for itself
to revisit what it has.

Speaker 5 (47:22):
Done in the past.

Speaker 6 (47:23):
Right, So appropriations, it happens if you don't have a
permanent appropriations because you got to appropriate the money the
next year, and if you don't want the government to
shut down, you got to appropriate the money. But with statutes,
what Congress does sometimes and there's an emphasis here on sometimes.
Is it not only an act of law that tells
you what you can or can't do? So maybe I'll

(47:45):
use the Clean Water Act as an example. We had
a Clean Water Act case this past week at the
Supreme Court. Right, you cannot discharge a pollutant into a
navigal water of the United States from a port source
without a permit, and that's permanent rights. And until Congress
revises that provision of the Clean Water Act, you cannot
discharge pollution from a point source into a water of

(48:07):
the United States without that permit. But then what Congress
also does. It says EPA, you have the authority to
issue permits or to delegate authority to states to issue permits.
What's interesting is that that power actually Congress conceives of
the way it enacted the Clean Water Act as time limited.
It enacted the Clean Water Act in nineteen seventy two

(48:29):
and said you were authorized to do this for a
period of time, with the idea being that the program
may work as intended, it may not work as intended.
We may learn more things about the nature of water
pollution and how best to control it. We may get
really good at controlling one type of water pollution and
realize we need to change.

Speaker 5 (48:48):
Our focus to other types of water.

Speaker 6 (48:50):
Pollution, or we may have different in views about how
much we should prioritize this, So we're going to create
a limit on that author is a that requires us
to come back to it, And certainly in the area
of environmental law in the late twentieth century, that was
the norm.

Speaker 5 (49:07):
The Clean Water Act authorization expires.

Speaker 6 (49:10):
And it's reauthorized and at that moment amended in nineteen
seventy seven, nineteen eighty one, nineteen eighty seven. Similar story
for the Clean Air Act. Similar story for most of
the major environmental regulatory statutes.

Speaker 5 (49:23):
But Congress at some point stopped doing that for a
lot of statutes.

Speaker 6 (49:28):
And what's interesting is that if you look at the
various sorts of statutes that Congress has and it reauthorizes,
there are some where Congress has created structures that create
the appropriations like dynamic of where Congress has to revisit them.

Speaker 5 (49:43):
In a paper that.

Speaker 6 (49:44):
Professor Walker and I I did several years ago, we
identified several examples of these. The farm Bills is probably
one of the easiest ones to understand. If Congress doesn't
reauthorize the Farm Bill. When the authorization expires, the permanent
law puts in place things that were adopted in nineteen
thirty eight that don't make a lot of sense, and

(50:04):
so none of the interests that have any concern about
what occurs in the Farm Bill are willing to allow
that to happen for a period of time, so they
make sure the Farm Bill gets reauthorized. The National Defense
Authorization Act is another example, and the Patriot Act is
an example of something that where there is limited authorization,

(50:25):
there are others a lot of user fee programs, right
because the money that those user fees are only are
time limited, and so when the authorization ends, the user
fees don't get paid anymore. And so if you're the
FDA or if you're the EPA with pesticide registration, you
care about getting that money again. If you're a pesticide
company that wants to registered pesticides, you really want the

(50:47):
EPA to have that money again, and there is political
pressure to ensure that that reauthorization. The problem is, though,
is that in statutes that don't actually have an underlying
structure that force the need to revisit it. Congress has
gotten into the practice. Just as it's gotten into the
practice of not passing lots of new legislation, it's gotten

(51:10):
into the practice of not reauthorizing things that it doesn't
really need to write. So the Clean Water Act has
not been reauthorized since nineteen eighty seven, the Clean Air
Act has not been reauthorized since nineteen ninety and with
the exception of things that just relate to infrastructure funding,
there hasn't been any action on those fronts in that

(51:31):
time period. And so that means is that we have
statutes that may have been reasonable efforts to deal with
the sorts of problems they were designed to address when
they were enacted.

Speaker 5 (51:42):
And last revised, that no longer fit the world we
live in.

Speaker 6 (51:46):
Right, That's why we have all this litigation and fighting
over how to use the Clean Air Act to deal
with greenhouse gases, because it wasn't written for greenhouse gases.

Speaker 5 (51:54):
And I could bend rear at.

Speaker 6 (51:55):
Length for why using tools that were created for traditional
pllutants simply do not work for greenhouse gases, and the
Supreme Court has concurred in that the Cream Water Act. Similarly,
it's not that we didn't know or think about things
like non point source pollution.

Speaker 5 (52:11):
In the twentieth.

Speaker 6 (52:11):
Century, there was no political will to focus on it,
and so we have a statute that's primarily focused on
point source pollution. Point source pollution is for the most
part dealt with, and the statute doesn't get revised and
Congress doesn't really authorized. The last thing I'll just note
that's interesting is that, at least in theory, Congress is

(52:34):
not allowed to appropriate under its own rules. It's not
allowed to appropriate money for onur authorized programs. But the
only way to enforce that is through Congress's own rules,
at least the only way that I'm aware of enforcing that.
I don't believe there's any sort of private right of
action that could be used for that.

Speaker 5 (52:52):
And so if Congress is going to use.

Speaker 6 (52:54):
This power both to keep laws up to date and
avoid the problem of statutory opsol up lessons, but also
to make sure it is in continuing dialogue with the
executive branch about what sorts of power the executive.

Speaker 5 (53:05):
Branch should have in various areas.

Speaker 6 (53:07):
It needs to take more seriously its own responsibilities to
think about how statutes are structured with regard to authorization,
but also to enforce its own rules about whether or
not it can appropriate money for things where authorization has expired.

Speaker 5 (53:21):
And I'll stop there.

Speaker 3 (53:22):
So, Professor Adler, I want to pick up in that
last point, is this failed authorization problem? Does that set
suggest that Congress should actually sunset laws and programs the
way some states do that where something automatically sunsets at
five years and then has to be revisited. In other words,
Congress have to affirmatively approve and reenact every program for
them to continue. Is that Is that the solution?

Speaker 5 (53:46):
There's a long The short answer is maybe.

Speaker 6 (53:47):
I mean, when Professor Walker and I did our delegation
and time paper, we argued, I think correctly that.

Speaker 3 (53:54):
You don't.

Speaker 5 (53:55):
There's not like a single.

Speaker 6 (53:56):
Across the board approach that's going to work best for
every sort of program and every sort of agency, And
that the idea of things expiring and stopping is certainly
a very powerful incentive to force Congress to revisit things,
and it is.

Speaker 5 (54:13):
A tool to use.

Speaker 6 (54:15):
But in an ideal world, at least Congress would think
about what sort of program is this, what sort of
time frame is this. There are areas of the law,
There are areas of regulation where things change more quickly
than others. There are areas where Congress's initial efforts to
enact laws are more tentative or more experimental than others.

(54:37):
So in the ideal world there'd be some kind of
thinking about what sort of timelines or expirations would you
want in different areas. The question then becomes, if Congress
is not going to do that, would some sort of
across the board sunset be better than nothing?

Speaker 5 (54:52):
And I'm open to that.

Speaker 6 (54:56):
I think the state experience is less conclusive of in
that regard than then I think we would like that
to say, there are.

Speaker 5 (55:03):
States that have used sunsets effectively, but.

Speaker 6 (55:08):
You know there are there are certain sorts of programs
that might not need that sort of medicine to the
same degree.

Speaker 3 (55:14):
Professor Chaff it's my my senator proposed at one point
something like a five year sunsetting of just about everything
in order to fix this. I know a big premise
of your book is that the legislative function has atrophied,
and so we should try to use these other powers,
these other soft and hard tools that are out there.
What do we do with this problem in an atropheed

(55:37):
legislative framework? How does this all work together?

Speaker 4 (55:40):
Right, So I agree with Professor Adler, this is a problem, right,
that that that Congress is not as regularly revising statutes.
I think that is a serious issue. I mean, you know,
I think the most likely explanation for it, right is
the rise of partisan polarization. That it's it's simply significantly
harder to find cross partisan agreement on reauthorizing various statutes.

(56:06):
And for that reason, I think a sort of five
year cutoff would would potentially be disastrous. I think the
state experience is probably not terribly illustrative here because there
are very few states that tend to have divided government, right.
There are some, but states are much more frequently have
unified government than the federal government does, and state legislators
traditionally and even still today tend to be somewhat more

(56:30):
interested in working across partisan lines, even where even where
there is divided government, So things that are feasible at
the state level are not, under current conditions terribly feasible
at the federal level. So for that reason, I think
sort of these automatic cutoffs across the board would would
be a disaster. We'd wind up with the FAA would

(56:50):
disappear tomorrow, and I want to fly home tomorrow. So
you know, I think I think that can't be the
right answer, but I do absolutely think, you know, we
would be a lot better off if Congress returned to
these statutes a lot more frequently. And it's worth thinking
through some of the kind of sort of smaller bore

(57:12):
suggestions that Professor Adler and Professor Walker have talked about.

Speaker 3 (57:16):
Mss Neelie, You've spent a ton of time in Congress,
what do you think the solution is if it's not
a five year sunset, if that is catastrophic, what is
the way to help us deal with this old statute
new problem issue where you have statutes that either haven't
been authorized in a long time and sort of don't
fit modern problems, or are just sort of going along

(57:39):
and being appropriated without having been revisited, or are sunsetting
and you're in this sort of dead period of like, oh,
we have to do something, but nothing committee done. What
do we do with this?

Speaker 10 (57:50):
I think that is a challenge.

Speaker 9 (57:51):
And actually, one one other problem that just kind of
occurred to me with a five year whatever sunset is
that if a program like the FAA just went way tomorrow,
do you think that the executive branch would actually say, Okay,
FA is gone, we're grounding all planes. Or do you
think the executive branch would say, Okay, this is an emergency,
I'm going to find some sort of emergency power, or

(58:12):
this is insane, we're going to keep this running. And
is that going to contribute to the imperial executive I
think probably the latter, because everyone wants to fly home tomorrow.
It's really cool to hear. So I love Michigan. Just kidding,
So I think that. And I also will say that
with a five year sunset or a seven year sunset,

(58:34):
I spent a good three years negotiating a bill to
deal with a program that was going to expire after
seven years that Senator Portman had gotten enacted. And during
those three years, the people running the program were kind
of like, well, you know, it's expiring in three years,
and you don't know if it's going to get reauthorized,
so they were really reluctant to do things with it
and to exercise that authority. So I do think that

(58:56):
a five or six or seven year sunset for every
single statute is probably not a workable solution.

Speaker 10 (59:02):
What the solution is, I don't know.

Speaker 9 (59:03):
One potential idea would be to think about what the
rules are and the set in the House about amendments.
One thing that makes members reluctant to bring bills to
the floor is the fact that amendments will come up
that will be tough votes, and they could be amendments
based on a lot of different topics. And if you
can limit what those topics that could arise are when
you're renegotiating legislation, that might be one way to approach

(59:28):
part of the problem.

Speaker 3 (59:29):
Congressman, do you think something like the Budget Control Act,
where there's a strict process for how to authorize these things,
no filibuster, some sort of process for reauthorization, could streamline
and help this problem or is it unfixable.

Speaker 8 (59:43):
I don't think it's unfixable. But I do think that
if you don't address the institutional problems, the institutional dysfunction,
you can't address the problems with sunsets. I mean, the
point is right that if you had something that was
critical that we're to sunset, you're more likely to get
a president, especially maybe someone like President Trump, to say

(01:00:06):
who'd say, well, I'm just going to do what I want.
I don't care that they didn't reauthorize this. I would
like to see sunsets for new legislation, things that are
new programs that have come up. I mean, you know,
some of these old programs, maybe they've been going on
for years since a sunset might not work the same way.
But something new, okay, you're trying it out, you're giving

(01:00:27):
it's like a test run. So I would like to
see that. But you know, I'll talk about this more
in my portion of the presentation today. I think if
you don't fix the institutional problems, I mean, the sunset
issue is like a symptom of the bigger problem.

Speaker 3 (01:00:41):
I suspect that's true of a lot of what we're
talking about today. But with that, we're going to turn
to the third tool in the toolbox, and that is investigations.
And for that we're going to hear from, as I said,
miss Neelie, who really spent the bulk of her career
working in the halls of Congress. She's going to discuss
Congress's authority to investigate.

Speaker 10 (01:00:59):
So thank you, and.

Speaker 9 (01:01:03):
I'll just pause and really thank the Federal Society for
hosting this convention, for Michigan for putting this on, and Trey,
thank you for organizing the panel. You've done a brilliant
job and it's really really great to be here with y'all. So,
like Professor Metzger, I will spend a little bit of
time talking about the norms or the way the world
usually works, so you have an idea of what these

(01:01:23):
tools are. They're in Congress's toolcit and we'll talk about
where Congress gets the authority to investigate, what the practical
tools they actually have are. And then I'll touch on
what's going on today and we can get into that
in the Q and a little more too. So in
terms of the authorities the text lists among you might
be a little bit concerned. Nowhere does Article one or

(01:01:45):
anywhere in the Constitution say anything about Congress has the
power to investigate. But I think that the originalists among
you can take a little heart here. At the Federal Convention,
James Madison reported that George Mason commented that members of
Congress are not only legislators, but they possess inquisitorial powers.

(01:02:06):
And they were looking back to the examples of the
House of Commons and Great Britain, and it was understood
that at the time at the founding that the investigative
power was inherent in the legislative power. Congress just can't
write good laws without having a good understanding of the facts.
And Congress can't be assured of getting those good facts

(01:02:26):
unless it has the ability to compel reluctant witnesses to
come forward and provide that information.

Speaker 10 (01:02:32):
And the Supreme Court has.

Speaker 9 (01:02:34):
Acknowledged that authority repeatedly, as has the DOJ Office of
Legal Counsel. Congress's investigative authority, however, is not unlimited, and
we've been seeing a lot of recent case law here.
It's a really fascinating developing area of the law. For
anyone looking for a note topic for a journal, the
development of the law and Congression investigations is.

Speaker 10 (01:02:55):
A really great area.

Speaker 9 (01:02:57):
But for our purposes today, suffice it to say that
Congress can't go on a fishing expedition, and unlike a
grand jury, it is not entitled to quote unquote every
scrap of paper. And crucially, Congress must have a legislative
purpose underpinning its investigations, and that begs the question, can
Congress have other purposes for its investigations? Yes, absolutely, we

(01:03:20):
see that all the time. They investigate to advance a
political agenda to bolster the president's agenda. They investigate to
expose wrongdoing. They might be trying to support a parochial cause,
but they do have to articulate at least some legislative purpose.

Speaker 10 (01:03:38):
So that's the power to investigate.

Speaker 9 (01:03:40):
And then how does it practically go about actually conducting
these investigations. We see it in the headlines all the
time that Congress holds hearings.

Speaker 10 (01:03:49):
That's sort of the culmination of an investigation.

Speaker 9 (01:03:52):
But the two chambers actually they have the authority to investigate,
and they delegate that to the committee's and each committee
has its own specific rules for conducting investigations, and it's
very important if you're representing someone before Congress to know
what that committee's rules are. But generally speaking, most of
the committees will gather information initially by asking parties for
a briefing or looking at publicly available information, and then

(01:04:14):
it may send a letter request to the target of
the investigation, whether it's a private party or a public institution.

Speaker 10 (01:04:20):
And that letter may be just from the chairman of.

Speaker 9 (01:04:22):
The committee, it may be on behalf of multiple members
of the committee. And then I think most powerfully it
would come from the chairman and the ranking minority member,
because a target knows they're in trouble when they're getting
heat from both parties. If a party does not produce
the information, Congress can, as I mentioned, subpoena the information

(01:04:43):
from the party and enforce that subpoena. They can also
conduct depositions which are under oath or less formally, they
can do a voluntary transcribed interview. And then of course
you see the committee hearing since I mentioned. And then
when it comes to oversight of the exis executive branch,
you will generally see more fireworks when one at least

(01:05:04):
one chamber of Congress is controlled by the opposing party
to the president.

Speaker 10 (01:05:09):
But in that case you.

Speaker 9 (01:05:11):
Can see the investigation has become much more political in nature.
Think Hunter Biden laptop or the alleged collusion between the
Biden administration and social media companies to restrict.

Speaker 10 (01:05:21):
Conservative speech over the last few years.

Speaker 9 (01:05:24):
But when Congress is doing its job right, oversight should
not stop at the party line. You will see over
the next twenty months lots fewer investigations I think about scandals,
gend up or real amongst the administration that will come
back when Democrats take control of a.

Speaker 10 (01:05:39):
Chamber, but there is there.

Speaker 9 (01:05:43):
I think you will see a lot of oversight of
kind of the workaday functions of the federal government. And
this will be an interesting form of oversight because it
will be the Congress sort of participating with the administration
and the oversight of its own operations. And we've already
seen this happen the House Committee on Oversight and Government Reform.

(01:06:03):
They formed the DOGE Subcommittee, and their whole purpose is
to expose waste in the federal government. And I think
that you will see the administration really cooperating this with this,
and a lot of administrations you wouldn't see that, and
there probably will be some political overlays to some of this,
but they could request documents from federal agencies, they can
compel documents from federal contractors and really highlight some of

(01:06:26):
the work that the DOGE is doing, and it's to
doges the Department of Government efficiencies benefit. I think to
have Congress doing this because they will need legislation in
order to actually effectuate some of what their goals are.
That's maybe a somewhat rosy view of Congress's role in
this current dynamic, but I do think that as politics evolve,

(01:06:52):
we might see Congress taking a little bit more of
an affirmative action to hold the administration itself accountable.

Speaker 10 (01:06:59):
For race issues.

Speaker 9 (01:07:02):
We've seen recently people like Senate Budget Committee Chairman Lindsay Graham.
He's trying to find ways to codify some of Doge's work,
and he's admittedly said and acknowledge that they need to
fix some of the problems that maybe Doge has introduced
and effectively saying that Chongress needs to take back a
little bit of control here. And then I think we
are starting to see President Trump's approval ratings decline a

(01:07:24):
little bit, and I think that members of Congress, if
that continues, Republican members of Congress might see oversight as
an opportunity to express their independence and to try to
win back some swing voters. But that only is if
I think that if President Trump's approval ratings decline and
they're experiencing some concern back in their home districts, and

(01:07:46):
how they will effectuate that oversight of an unwilling executive
is a topic for further conversation, but I will I
will pass it back to her.

Speaker 3 (01:07:54):
Our moderator, Well, let's go to that last point, So,
when both chambers as we have now are held by
the same party as the president, what does that congressional
oversight look like? And what should it look like? So,
in other words, what is it going to look like?
Do you predict now or what's going on right now?
And what should happen in a properly function in Congress.

Speaker 9 (01:08:14):
Well, the original vision was that there was a real
concern about factions, and we I think are experiencing now
what factions really look like. But the idea was that
there would be institutional loyalty, loyalty to the Congress, loyalty
to the executive branch, and that Congress would exercises oversight
authorities based on that institutional loyalty. And we're not seeing

(01:08:36):
that as much right now. We're seeing loyalty toward party.
So I personally am a big believer and that Republicans
should do oversight of Republican administrations and Democrats should do
it of democratic administrations. I think it's important to hold
our government accountable. What will it look like if they
decide that they need to get information the administration does

(01:08:58):
not want to produce this interesting because one way that
they would enforce a subpoena, including it's a private party
or a government entity, is to refer the subpoena or
a contempt citation over to the Department of Justice. The
Department of Justice is not going to be very inclined
to bring a case against its own administration. And even

(01:09:20):
though the statute says that the Department of Justice actually
has to bring the case, we've seen Department of Justice
decline to do that any number of times. So they
have to look for, I think, softer power ways of
enforcing or persuading the administration to cooperate. What I saw
during the first Trump administration was Senator Department as a

(01:09:40):
chairman of the Permanent sub Commitee on Investigations and Chairman
of the Homeland Security Committee or ranking member of the
Homeland Security Committee, was willing to push the administration to
get information. And a lot of that happens behind closed doors.
The administration does not necessarily want to come up before
Congress and expose problems. Some of that you will see happen, well,

(01:10:01):
you won't see it. It will be behind closed doors.
So they will come to you and say, Okay, we
don't want to have to testify about this, Please don't
send us a subpoena. Let's talk about how we can compromise.
And there's a lot of back and forthwarth trating on.

Speaker 3 (01:10:13):
That, Professor Chaef, It's again, you've written a lot about
the soft power part of this. How does this investigation
part come within the soft power, especially when you have
this sort of monolith party of Congress and the president
and both houses being of the same party. How does
how does that work in the context of Congress trying
to red assert itself.

Speaker 4 (01:10:34):
Right, Well, I mean, you know, I absolutely agree we're
going to see less investigation of the administration, at least
of the White House in this in this Congress, precisely
because of unified partisan control.

Speaker 5 (01:10:49):
You know.

Speaker 3 (01:10:50):
The one thing I.

Speaker 4 (01:10:50):
Would I would just add to what you said is that,
you know, yes, so the the the from the Bush administration,
the Obama administration, and the for Trump administration, there were
all there were administration officials held in contempt of Congress
in all three of those administrations. All three times the
Department of Justice refused to prosecute. All three times the

(01:11:11):
House of Representatives. It was in the House each time.
All three times, the House of Representatives responded by filing
a suit in federal district court in the District of Columbia.
And this is a This is a chump's game for
the House every time, because what happens is the House
might actually at the end of the day get favorable rulings.
In fact, for the most part, it has gotten favorable rulings.
The thing is, the favorable rulings on the contempt in

(01:11:31):
the Bush administration came during the Obama administration. The favorable
rulings on contempt during the Obama administration came during the
Trump administration. And the favorable rulings on the Trump administration
contempt came during the Biden administration. So that not only
that the Congress that was trying to do with oversight
was out of office, but the administration they were trying
to oversee was out of office by the time they
won these cases. Right, So going to court is just

(01:11:51):
a chump's game for Congress in these cases. And so
they have to use some other kind of power, right.
I think the best available option in this goes back
to you know something that Professor Metzker talked about it
the best available option is the power of the purse. Right,
The best available option is to say, you know what,
if you're not if the White House Counsel's Office isn't
gonna isn't going to come testify before us, then we're
not going to pay for a White House Counsel's office. Right,

(01:12:12):
And that is something that that Congress could easily do
but has chosen not to, right across these across these
various administrations. But at the end of the day, it's
it's got to find, you know, if it if it
wants to, if it truly wants to get information from
an unwilling uh administration, it's got to find some uh,
you know, some mechanism that it can that it can
tug on, you know, potentially holding hearings and administer and

(01:12:35):
embarrassing the administration is one way to do it. And
I've talked to staffers at various points about ways to
sort of uh structure the theatricality of those hearings when
witnesses refuse to show up, things like, you know, having
an empty chair with their name in front of it,
asking questions of the empty chair. You know that there
are ways that you can dramatize, right, refusal to play along.

(01:12:56):
But you know, Congress needs to start I think start
thinking more creative about them.

Speaker 9 (01:13:00):
Whistleblowers are another great source of information and we might
be seeing more of that going forward.

Speaker 3 (01:13:06):
Professor Mesker H. Frustratis mentioned the appropriation's power as a
mechanism to sort of spur on oversight investigations. What do
you think about that tool, especially again when you have
a unified party between Congress and the president.

Speaker 7 (01:13:21):
I mean, I think the the partisan valance means that
when you have a unified party, you're not going to
see these tools being used to enforce oversight, and that's
part of the problem. I think the how much goes
on even cross party, even when you have divided government,
how much goes on in terms of negotiations behind the
scenes is an important point to emphasize because I think

(01:13:42):
that we definitely do see that. You know, part of
the problem with appropriations could definitely serve that purpose, but
the often appropriations end up being very high stakes battles,
and you know, no one issue is uh, you know,
it becomes a big comes critical. The only thing that
I wanted to just put on the table is one

(01:14:04):
other thing that we have seen, and this cross is
both democratic and Republican administrations are new sort of assertions
of immunity from the process that we get from the
executive branch. There are long standing claims of executive privilege
in particular instances, but we start to see much more
assertions of testimonialmmunity that you don't even have to show
up at all, making the threat to the power of

(01:14:27):
oversight that much more stark, leading to the empty chair.

Speaker 3 (01:14:32):
So our final panelists, justin Imaje, spent a decade on
the ground dealing with these congressional tools that we've spent
the last hour talking about. He will explain how the
centralization of power and the House Speaker and the Senate
Majority leader undermines the separation of powers, and how the
conventional tools that we've been discussing lose their strength when
leadership consolidates. Congressman, Thanks Jege.

Speaker 8 (01:14:56):
Thank you, Judge, And I want to say thank you
to the Federal Society. I was a member of the
Michigan Law Federal Society, and I sat in this room
and took classes, and so I'm really happy to be here.
And I especially appreciate the ironic theme for this year's symposium,

(01:15:16):
so I could talk for hours about what's wrong with Congress.
It's really one of my favorite topics. I held town
halls many times, spoke for hours on end. I'm going
to try to actually read from some prepared remarks so
that I can get through this in a very straightforward
way without getting sidetracked, and then we'll have some discussion,

(01:15:39):
and I think that's where more of the interesting conversation
will happen. So we've heard today about the ways Congress
can check the president authorizations, appropriations, investigations, and more. These
are vital tools rooted in constitutions, in the Constitution's design
to ensure no single branch dominates our government. But there's

(01:16:02):
a problem. Too few notice. The centralization of power in
the House speaker and Senate majority leader renders those checks ineffective.
This isn't a minor glitch. It's a fundamental threat to
the separation of powers that keeps our republic balanced. Let
me explain why, in three steps, how leadership has overtaken Congress,

(01:16:23):
why this cripples its ability to act, and how it
shifts power to the executive branch. Article one vests all
legislative powers in Congress, the House and Senate collectively, not
a handful of leaders. The Speaker's role was to facilitate debate,
not dictate outcomes. That's not our reality anymore. Leadership rams

(01:16:47):
spending bills through with little debate, sometimes relying on continuing
resolutions to dodge real fiscal decisions, avoiding the tough votes
constituents expect. Amendments wants a cornerstone of legislative input, are
now rare. When Nancy Pelosi was Speaker, she blocked him

(01:17:07):
from being offered from the floor for four years. And
to put that in context for you, up until Speaker
Ryan's tenure, there had never been an entire term of
Congress where amendments were not allowed to be offered from
the floor at all. So under Speaker Ryan's tenure, it

(01:17:30):
was the first two year term we ever had where
not a single amendment was allowed to be offered from
the floor. Now that doesn't mean there wasn't an amendment
voted on the floor. It just meant that a member
of Congress could not come to the floor, for example,
on an appropriations measure through an open rule, meaning where

(01:17:52):
the member can just offer an amendment and it will
be voted on. That didn't happen one time under Speaker Ryan.
During his last term, and it didn't happen the next
two terms under Nancy Pelosi, and then under Kevin McCarthy.
It only happened one time, I believe, and I don't

(01:18:12):
think it's happened at all under Mike Johnson. So to
show you how dysfunctional this is, we had since the
beginning of Congress, we'd never had any terms where amendments
could not be offered, and now we've had, over the
past seven eight years, a consistent system of denying members

(01:18:33):
of Congress the ability to speak out on the floor
through amendments. It's not just a quirk, it's a liberate
chokehold on the rank and file, ensuring only leadership's priorities
see daylight. In the Senate, the majority leaders sets the agenda,
sidelining open deliberation, deciding what gets a vote and what
dies in silence. This centralization isn't about efficiency, it's about control.

(01:19:00):
It turns a body of five hundred and thirty five
representatives into a machine run by a few, overwriting the
will of hundreds. Congress stops functioning as the Framers intended.
When power consolidates like this, it's no longer a legislature.
It's a fiefdom. Centralization doesn't just grab power, it hollows
out Congress's ability to check the executive oversightvia investigations and

(01:19:24):
control through appropriations. Whither under leadership's dominance, the Rules Committee
serves the speaker, not the body. The Oversight Committee bends
the same will choking scrutiny. I served on the Oversight Committee,
And to give you some context there, when I served

(01:19:46):
on the Oversight Committee, they would present to us the
script that we were to read at the hearings. So
when you watch these hearings on TV and you think
these members of Congress are just you know, speaking off
the cuff, or maybe they're working with their staff on
writing some questions, what happens a lot of times, especially
in the very publicized events, is the speaker, working with

(01:20:09):
the chairman of the committee, will draft the entire script
for the meeting. And as an example, one time, I
refused to read the script they wanted to give me.
And I was actually the second highest ranking member on
the Oversight Committee, and they insisted that I then go

(01:20:30):
like seventh or eighth in line rather than go second,
even though I was the second highest ranking member. So
I refuse to read their script. They pushed me to
the back so that I wouldn't be during I guess,
the primetime viewing segment. But this is a consistent problem
where things come from the top. It's not really as

(01:20:52):
organic as you might think. And the reason it happens
is also because under this system, members of Congress end
up knowing very little. So if not for the fact
that they were given a script, they actually might not
know anything about the subject. So sometimes when you're watching
these members of Congress speak and it seems like they
don't know anything about the topic, it's because they don't

(01:21:13):
know anything about the topic, which is why you'll often
hear the question they ask the witness will happen at
the very end because the leadership is trying to protect
them from a back and forth. They don't want it
back and forth. They just want to be rate the
witness and then move on to the next person. So

(01:21:34):
under this system, dissenters lose influence, committee assignments, chairmanships, and
campaigns support vanish, leaving members nearly powerless. Senators face the same.
The majority leader dictates terms and choice strength to fit
the leadership's agenda. Recent appropriations bills show it no debate,

(01:21:55):
no challenge, just leadership stamp, hundreds of pages dropped hours
before a vote, daring anyone to object the last debt
ceiling hike, a backroom deal, no hearings. Centralization doesn't even
bring the efficiency its defenders promise. It slows legislation as
leaders scramble to guess what the body might tolerate, weakens

(01:22:19):
Congress by sidelining its members and silences the broader input
that keeps it accountable. Centralization doesn't stop at paralyzing Congress.
It hands the president in outsize the advantage. Instead of
engaging five hundred and thirty five lawmakers, each accountable to
their constituents, the executive negotiates with a few leaders, the speaker,

(01:22:41):
majority leader, and often the Senate minority leader. Picture a
president dialing up Mike John let's settle this debt. Limits,
tax policies, even military actions are resolved in these narrow talks.
By passing the broader House and Senate, the executive doesn't
have to wrangle a diverse Congress. He just needs a
handshake from a couple of power brokers. If every presidential

(01:23:05):
request hit a wall of leaders saying good luck getting
that through, the whole body. The executive would falter and
Congress would stand stronger. Instead, he has to convinced just
a few leaders, giving a considerable leverage in any exchange.
Centralization hands the executive in an edge. It leaves the
judiciary overbirded and the system askew. A quiet handover of authority.

(01:23:28):
We're all paying for the tools highlighted today. Authorizations, appropriations,
investigations are essential, but they're meaningless without a Congress free
to use them. Centralization the speaker and majority leader doesn't
just limit debate. It undermines the separation of powers at
its core, tilting our government away from the people's voice.

(01:23:49):
Both chambers must reclaim their roles. Open processes where every
member can weigh in, robust committee work that digs into policy,
and a structure that empowers the rank and file, not
just a select few at the top. Imagine a House
where the Rules Committee answers to the body, not the speaker,
or a Senate where the majority leader can't kill a
bill single handedly. This isn't an abstract concern, it's a

(01:24:12):
practical necessity to check the executive and represent the people.
We can't keep attending two leaders equals five hundred and
thirty five voices. We must rebuild the Congress that reflects
the framer's vision, embraces its own power, and checks the
executive as intended. It's time to stop seating ground and
start fighting for the legislature our founders designed.

Speaker 3 (01:24:31):
Thank you, Thank you, Congressman. So you know, in doing
a little bit of research here, I noticed that you
actually offered yourself up as a speaker at one point.
I think as an outside speaker, but as speaker, so speaker, Imash,
what specific rule changes would you prioritize to fix the

(01:24:52):
problems that are there? And then I'm going to open
that up to everyone else to see what suggestions they have,
and then we're going to turn it over for questions
from everyone here.

Speaker 8 (01:25:00):
So I have offered myself up as speaker. There weren't
enough takers, but it's not as far fetched as people
might think. I think there is the potential for someone
to bridge the gap between the parties now. And maybe
it's not a person from outside of Congress, but I

(01:25:21):
think there is potential for that. I think you have
to ensure that the rules are followed first and foremost.
So every week I served in Congress, every single week.
The rules were waived or suspended every single week. So
at the beginning of the term, we set the rules

(01:25:41):
for the body, and then every week we waive them
or suspend them. Sometimes they'd have a rule that required
two thirds majority and then they'd wave it or suspend
it with a simple majority. So this happened time again.
You have to follow the rules, but I think you
have to make Congress more transparent. You have to set

(01:26:04):
some put some principles in place, some rules within the
body that are followed and followed consistently. For example, I
wouldn't allow a vote to take place until several days
after the very last change in the legislation. If a

(01:26:25):
comma's changed, if a period's changed, you got to have, say,
three days before you vote on that thing. That's important
because things might come to the floor Sometimes. What they'll
say that you know they have these three day rules
or a seventy two hour rule or whatever it might be,
and they'll say they'll put a shell bill on the floor.
It could be a bill for a completely different subject.

(01:26:48):
They'll shove in a manager's amendment from the leadership team
and they'll say, oh, well, this bill has been on
the floor for a long time. But yeah, but you
just amended it three minutes ago. Now we have to
vote on it. Okay, but it's been available for three days,
so people will say things like that, and it's disingenuous.
So we have to have a rule where you can't

(01:27:09):
change things like in that fashion and then have a
vote immediately. I think you have to make the legislation
more transparent for everyone, and this would be helpful to
the public, help people hold Congress accountable. Right now, the
way most legislation is written, especially longer legislation, is a
bunch of cross references. So when you hear that a

(01:27:30):
bill is three thousand pages or five thousand pages, it's
actually much longer because it's referencing a whole bunch of
other acts. So who knows how many pages it is.
And every single congress person who's dealing with this, if
they actually care about the issue as I did, has

(01:27:50):
to have their staff then piece it together so that
you can actually read it in some kind of coherent fashion.
Otherwise it's just nonsense. You know, you just be flipping
pages back and forth. So you have to have a
system where you can you can read the legislation all right,
I want to.

Speaker 3 (01:28:05):
Do lightning round. You're king of the world or King
of the United States. You get one fix for the
problems that you've identified. What are they? I'll start miss Neelie,
I'll start down by you.

Speaker 10 (01:28:17):
Oh that is not fair at all.

Speaker 3 (01:28:19):
Sorry.

Speaker 9 (01:28:23):
Well, I don't know that this solves any of the problems,
but it is something that I've been advocating for some time,
and Congress has been trying to fix it a little bit.
But Congress, in terms of its relative power associated with
the executive branch, underpays its staff and is not able
to have a long tenured staff because the staff just
don't make enough money to be able to stay. I

(01:28:44):
do think that to acquire more expertise on Capitol Hill,
you need to hire more professional staff, and they need
to pay them.

Speaker 3 (01:28:50):
Commenced early Professor Mesker.

Speaker 7 (01:28:54):
I'm not sure I've got a fix to the appropriations
and budget problems. I wish I did, But I do
have a question for the Congressman at some point once
we're done with our lightning run Fetcher.

Speaker 4 (01:29:05):
Chaefits you wrote a whole book, yeah, and no firm solutions.
I do absolutely agree that staff are way underpaid there
are way too few of them, way too little continuing
expertise there. Staff are The total staffing numbers in Congress
are lower than they were in the late nineteen seventies.

(01:29:26):
Staff pay in real dollars is lower than it was
in the nineteen eighties.

Speaker 5 (01:29:29):
This is awful, right.

Speaker 4 (01:29:31):
This means you have people sticking around for a year
or two in these positions that are tremendously important, and
then you can trast that with the executive branch right
where people are able to make sort of long careers
out of it. It's not surprising then that you have
these sort of informational and expertise asymmetries.

Speaker 3 (01:29:47):
So I won't fix.

Speaker 4 (01:29:49):
Everything, or even a huge part of everything, but I've
fully sort of co.

Speaker 3 (01:29:53):
Signed that Professor Radler.

Speaker 6 (01:29:55):
First, I was hoping Pfessor Chaevs was going to say
inherent contempt and some should ask him about that. I
think one thing that would be helpful is to prevent
leadership from being able to preclude points of order. So,
for example, both a housand Senate rules have a point
of order that can to bar the appropriation of funds

(01:30:15):
for unauthorized programs. Those point of orders don't get raised.
I think in the House.

Speaker 5 (01:30:20):
At least that's because of close rules.

Speaker 6 (01:30:23):
But a rule change that prevents making a point of
order from being out of order, so at the very
least the majority has to vote to make it go away.

Speaker 5 (01:30:31):
I think would do a lot to.

Speaker 6 (01:30:34):
At least make it transparent that we're appropriating money for
unauthorized programs. Would solve everything, of course not, but I
think it'd be a good step.

Speaker 3 (01:30:43):
All right, let me open up to the floor and
then we're going to have a professor Metzker's question. Also,
so I saw your ann first, if you can just
tell us your name or what school you're from.

Speaker 11 (01:30:54):
Ularly, the law committee chair at appointments help.

Speaker 3 (01:31:12):
The so committee chair appointments, how they're done. Would that
be a a fix to some of the problems you identified, Congressman, Yeah.

Speaker 8 (01:31:21):
I think that would be helpful, and that's something I supported.

Speaker 3 (01:31:24):
Uh.

Speaker 8 (01:31:25):
You you have these committee chairs that are again top
down from the leadership, and increasingly I think people don't
recognize this that chairmen are just beholden to the leader leaders.
You know, it used to be the case that a
chairman might actually present something that is very different from
what the Speaker or the Senate majority leader wanted it's

(01:31:46):
it's very rare these days that such a thing happens.
If it happens, it's newsworthy. It doesn't happen very often,
Professor champins.

Speaker 3 (01:31:55):
So I think that's so.

Speaker 4 (01:31:58):
I think a little bit of his oracle context here
might be a little bit helpful. So, right, So, the
House was as centralized from about eighteen eighty five to
nineteen ten as it is today, incredibly centralized. So Speaker
Canon was known as Zar Canon was regarded by many
as more more powerful than the president. And then in

(01:32:20):
nineteen ten you get this sort of cross partisan alignment
that takes him down. And actually one of the one
of the things that comes out of that is that
the Rules Committee afterwards is taken away from the Speaker
and is elected by elected by the floor. But also
that committee chairmanships then moved to a seniority system rather
than a centralized appointment system.

Speaker 3 (01:32:41):
The result of that.

Speaker 4 (01:32:42):
Was not actually a Congress that was sort of more
representative of its median member. The result of that was
these fiefdoms in various committees. Right, so, certain sort of
interest groups wound up controlling certain committees. Most infamously, the
Southern Democrats wound up in control of the judiciary committees,
which gave them strangleholds on on civil rights legislation. Right, So,
I think, while I very much agree with with Congress

(01:33:06):
Minamasha's call for taking some power away from the leadership,
you've got to be careful how you do it, because
it doesn't necessarily create a body that is sort of
more representative to its media and member.

Speaker 3 (01:33:19):
Yes, I saw you right there. Yeah, if you tell me,
you know, yeah, you sorry, tell me your name and
what school you're from.

Speaker 10 (01:33:26):
Hi, my name is Ava.

Speaker 12 (01:33:27):
I'm a too well at Duke. One congressional kind of
tool that I've been thinking about lately as it relates
to separation of powers is Congress's ability to draft statutes
in terms of judicial review being placed on agency actions.
And I was thinking, you know, this could go two ways, right,
If Congress doesn't want the power to make a lot

(01:33:49):
of decisions, it could sort of take the courts out
of the judicial review process and you know, prevent them
from reviewing agency acts. Or it could go the other
way and assert itself and say, you know, we want
to delegate all of this power and we want to
remove the Court's ability to kind of review these sorts

(01:34:09):
of things. So I'm wondering, if you see, from both
a practical perspective and theoretical perspective, how the tool of
you know, establishing standards of judicial review and statutes works
for Congress, and if that's something that you know, it's
thinking about it all, or if that's something that might
come into play as it's dealing with the court's anti

(01:34:30):
administrative turn and also you know, asserting itself potentially I'll.

Speaker 3 (01:34:35):
Start with Professor Adler on that one and then open
up to anyone else.

Speaker 6 (01:34:39):
So, I mean, it's certainly important. We don't know how
far Congress could go in terms of precluding judicial review,
but authorizing judicial review certainly helps discipline the executive branch.
And I think related to that, and I think it's
important to understand is the creation of citizens supervisions that
allow for individuals to not merely see the agency, but
also to direct lease to regulated parties. That really expanded

(01:35:04):
initially with environmental laws as well as with some other
laws in the nineteen seventies and eighties, in part because
Congress didn't think the executive branch was going to enforce
those laws as aggressively as Congress wanted to. So, for example,
under the Clean Air Act, if you're operating without a permit,
you don't merely have to worry about EPA or the
Justice Department enforcing against you if they fail to. Citizen

(01:35:25):
suits can file, and there's nothing under current law, at
least nothing the executive branch can do in terms of
enforcement discretion to prevent that suit from being filed. Clean
Water Act has an even more aggressive provision which doesn't
even allow the federal government to take over the suit
it actually and enforce the provision less stringently than the

(01:35:45):
citizen suit would have. So it's certainly true that Congress
can do more in that regard. Just be aware there's
a serious argument that not one that I subscribe to,
but there is a serious argument that at some point
some of these citizens whup provisions may peed upon conceptions
of Article two and the president's authority to see that

(01:36:06):
the laws are faithfully executed, and that is an argument
we are increasingly seeing raised in courts.

Speaker 7 (01:36:11):
Pfessor Metzker, Yeah, I mean, so, one thing I was
just going to mention quickly is that we are seeing
some pullback of congressionally created interests as a basis for standing.
So that's one thing that's been happening. But the other
thing is one area where Congress could get involved, particularly
with judicial review, would be in terms of the remedy side.
And we've been having very big debates about national injunctions.

(01:36:34):
The extent to which you want courts to be able
to enjoin a program nationwide or vacate a rule in
the kind of nationwide wide way. That's an area where
it would be very helpful to have Congress stepping in.
I think to address.

Speaker 3 (01:36:47):
Saw your hand right there, if you just help, Yes,
your name and what school you're from.

Speaker 13 (01:36:54):
Hi, I'm lukem from Penn State Law. Thank you so
much for this. So here is the the issue. I
would like this goes out to primarily Professor Metzker, but
maybe all of you. My understanding is that impoundment was
thought to be constitutional before President Nixon, and then Congress

(01:37:15):
tried to take it away, and obviously this is an
issue again under President Trump. Is impoundment just in and
of itself constitutional? Is that something the president has the
authority to do lawfully or not?

Speaker 3 (01:37:29):
And I would the only thing I would add to
that that I'd like for you to address, too, is
how this overlays with executive discretion with prosecution. In other words,
the analogy is often made that you know something is
against the law, the executive needs to take care, but
no one thinks that the executive has to enforce every
law at every second, at every time. There's some discretion
built in. This came up a lot during some of

(01:37:50):
the DACA litigation. How does this all play together in
concept of impowment?

Speaker 7 (01:37:55):
Sure, I'm happy to And actually that's a very helpful
riff on your question, because there is a long historical
practice of presidents sometimes not spending the full amount that
had been appropriated. But if you look at the underlying
statutes they allowed the president to do that, they were
the presumption was in terms of there either expressly or

(01:38:19):
the presumption was in terms of them having discretion. And
so you really can't separate out the fact that that
was the statutory basis from the acceptance of that. And
in fact, as I tried to convey, there's actually both
strong constitutional basis and a lot of practice of this
being a very core congressional power, so that if Congress

(01:38:39):
said no, it would be different. I think it's different
than prosecution in that I think prosecution investigation we tend
to put more from the outset as a core executive power,
and appropriations and funding are not. Charles Black famously said
that you could just cut off funding for the executive
brand because this is so much of a of a

(01:39:02):
congressional power and not something the executive brand has any
inherent power to. And with that different baseline, it's not
really the best analogy to think of it in terms
of prosecution investigation.

Speaker 4 (01:39:11):
French chaps, Yeah, So just on the sort of historical
practice of it, there are sort of impoundments that occur
throughout the nineteenth century, not the eighteen oh three Jefferson
one that people sometimes talk about. If you actually look
at that statute, that says up to fifty thousand dollars
to purchase up to fifteen gun boats. So that's not
an impoundment, that's just following the statute. There are a

(01:39:33):
few impoundments in the nineteenth century that people who work
on this tend to call routine impoundments, and those are
almost exclusively cases where the Congress has specified what needs
to be bought and it just turns out you could
buy that same thing for a little bit less money,
and you get an i think eighteen ninety eight Attorney
general opinion from Judson Harmon Griver, Cleveland's attorney general, saying,

(01:39:54):
you know, again, as long as we're following Congress's instructions,
if we can save money, that's fine. You don't get
what are called policy the impoundments until after World War Two.
You get a little bit from FDR, and then you
get a little bit more from Truman, but really they're
very much sort of at the margins, and Congress pushes
back against them, and then Nixon begins using them really
as an instrument of policy. And as soon as Nixon

(01:40:14):
begins using them as an instrument of policy, you get
pushed back from both of the other branches. So you
get pushed back from the Supreme Court and Train versus
the United States, and you get the Impoundment Control Act
of nineteen seventy four. And what I'll just say is right,
The debate isn't about violating the Impoundment Control Act. The
Empowerment Control Act, as Professor Metzker pointed out, is permissive.
It tells the president, under certain situations, you can rescind funds.
Right with Congress's approval or you can delay dispersing those funds.

(01:40:39):
What the Impoundment Control Act is very clearly is very
clear on is that policy impoundments are not acceptable, and
that is as a matter of underlying constitutional and statutory law,
right because the appropriate you know, if the appropriation is
phrased in mandatory terms, then impoundment is simply saying I'm
not going to follow the terms of the appropriation, right,
and that is basically claiming a dispensing power on the

(01:40:59):
part of the president.

Speaker 7 (01:41:02):
One thing we haven't mentioned. So Congress appropriates funds and
then the executive branch obligates the funds. One of the
things that's happening right now is that it's not just
appropriated funds that are being taken away and not spent.
It is obligated funds, So funds for which there is
a legal obligation on the executive branch. The executive branch
has already committed the funds and those are not being spent.

(01:41:23):
So that's an even further step more extreme. And I
don't think we've seen obligated funds not be spent this way.

Speaker 3 (01:41:32):
Yeah, on this side, So sir in the back over there, yeah,
the beard too.

Speaker 14 (01:41:39):
All right, thank you all for being here today.

Speaker 6 (01:41:41):
My name is C. J.

Speaker 14 (01:41:42):
Mwanel at George Mason University's antonin Scalia Law School. So
we've got fifty state governments across the country, obviously the
more or less active microcosms of many of the issues
that we see at the national level. And the panel
talked a little bit about the Sunshine Provisions, the lot
of state legislatures and act along with legislation, but are
there any other specific practices or tools implied by state

(01:42:04):
legislatures that Congress can look to to reclaim some of
its proper institutional duties and remedy some of the issues
that we've talked about.

Speaker 3 (01:42:13):
Congressman, I'll start with you with that question, and then
miss Neelie, I'll bring you into that.

Speaker 2 (01:42:18):
Well.

Speaker 8 (01:42:18):
I mean I've brought her up before, which is legislation
should be easier to read. And I think we shouldn't
be dismissive of this point. I think it's often you know,
just well, okay, legislations, it's legislation, and they have staff
who can read this. Most members of Congress have a
relatively small group of people working in their office. You

(01:42:38):
might have two three legislative staff, and you are getting
a whole bunch of stuff sent at you, and these
might be thousands of pages. And then it's also put
into code because it's all cross references. And I don't
think the average person recognizes how complicated that can be
for a staff that's on in a very highly pressured,

(01:43:03):
time sensitive situation trying to figure out what's going on.
So if you can just make it easier to read,
that would be helpful to the state of Michigan. For example,
when I served in the state legislature before I served
in Congress. When you get legislation here, it is just
like a track changes document. You can see things crossed
out inserted. It's very easy to read. Now the legislation
is also shorter than typical congressional legislation, but we could

(01:43:28):
vastly improve federal legislation by making it track changes style.

Speaker 3 (01:43:33):
Yeah, Florida, I know has a seventy two hour cool
down period, especially for the end of the year appropriation,
which is the biggest legislation I know other states have
similar both statutory and constitutional requirements. Miss Neely, what are
your thoughts on reform?

Speaker 10 (01:43:46):
Two words balanced budget, maybe a third requirement.

Speaker 3 (01:43:49):
Florida has that too.

Speaker 9 (01:43:51):
Yeah, thank you. Yeah, I just a very very quick google.
In twenty twenty one, according to the Tax Policy Center,
forty five states required the honor to submit a balanced
budget to the legislature. Forty four states required the legislature
to pass a balance budget.

Speaker 10 (01:44:05):
I think we could learn a lot from that.

Speaker 3 (01:44:08):
We're going to end there. We like to end on
time and start on time. Really, give this a panel
a hand. This was just so informative.

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