According to the traditional account, Congress has the "necessary constitutional means and personal motives to resist encroachments" by the president. As commentators have recognized, however, the traditional account does not match reality. Individuals in Washington, D.C., are more interested in fighting for their political party than for their branch of government, and the essentially reactive legislative branch lacks the capacity to respond to a rapidly changing policy environment. But the traditional account suffers from a more basic flaw. The president can decide whether or not to cooperate with Congress on a situation-by-situation basis. By contrast, Congress's tools for disciplining the president, such as impeachment, typically preclude mutually beneficial cooperation between the branches across a broad set of situations. Since a prolonged collapse in cooperation would be costly to Congress, it will often not be worthwhile for Congress to respond to presidential provocations. This Essay uses a simple game to show how a player with the ability to make situation-by-situation decisions can outperform a player with less flexibility. It then uses real world examples to map the game onto the reality of interactions between the president and Congress. Finally, the Essay explores the possible use of unusual institutional arrangements to address this power imbalance.
Mich. L. Rev. First Impressions
Available at: https://repository.law.umich.edu/mlr_fi/vol112/iss1/9