In contrast to the executive’s legal juggernaut, the House General Counsel’s Office consists of five lawyers; the Senate Legal Counsel only four. The Senate is further hamstrung by a statute requiring a resolution of the full Senate before it can even participate in litigation, which is difficult to obtain in partisan times. Although individual Senators and Representatives do sometimes submit friend-of-the-court briefs in cases that affect their institutions, studies show that these ad hoc efforts are ineffective, perhaps because the judges reading them know they lack the backing of the institutions as a whole.
Furthermore, members of Congress tend to prioritize their party’s interests over those of their institution, which means that nobody puts the interests of Congress first. Republicans and Democrats should unite to push back against aggressive use of the recess appointment power by presidents of both parties, but thus far each side has chosen to sacrifice the Senate’s constitutional prerogative to give its “advice and consent” to presidential appointments in favor of partisan in-fighting. So it should come as no surprise that Republican senators who supported the recess appointment of Judge Pryor now criticize President Obama’s similar use of that power, while Democratic Senators take precisely the opposite positions. The executive has taken full advantage of the resulting institutional paralysis, convincing judges to interpret the U.S. Constitution, and even Congress’s own statutes, in ways that invariably benefit the president at the expense of Congress.
In fact, the House and Senate are so ill-prepared to litigate in their own interests that they are often forced to turn to private outside counsel to do so for them, which can cause problems of its own. Last spring, after the Obama administration refused to defend the constitutionality of the Defense of Marriage Act, the U.S. House of Representatives hired King & Spalding partner Paul Clement to defend the legislation. A few weeks later King & Spalding withdrew from the case, a decision that was roundly criticized in the press and led Clement to resign from the firm in protest. (Clement has switched law firms and continues to represent the House.)
Whatever motivated King & Spalding to withdraw, the commotion that followed illustrates the obvious: Congress needs effective in-house counsel. After all, the president can rely on the thousands of lawyers at the Department of Justice without fear of conflicts of interest or client boycotts, and without racking up hundreds of thousands of dollars in lawyers’ fees. (Indeed Clement himself ably served as President George W. Bush’s Solicitor General, earning his stellar professional reputation and fighting to protect executive branch interests, at a reasonable government salary. Neither the House nor the Senate should be left scrambling for the same, very costly, representation while the President benefits from the best lawyers taxpayer money can buy.
The last 50 years have seen a vast expansion of presidential power that has been a result in part, of judicial decisions that interpret the Constitution and federal statutes in ways that favor the executive. For example, courts now regularly defer to executive branch interpretations of statutes, especially in the area of national security and foreign policy, which makes it harder for Congress to play its constitutional role in shaping policy. In an adversarial legal system such as our own, we should not be surprised that Congress has pretty consistently lost these legal battles, considering that it hardly ever shows up to argue its case in court. The solution is in Congress’s hands. Both the House and Senate could expand their legal staffs to at least a dozen lawyers, and then empower those lawyers to protect Congress’s institutional interests in litigation—starting with the Senate’s constitutional authority to give its “advice and consent” to the president’s nominees for high office. Most important, Congress could take a page out of the executive’s playbook by thinking about protecting its own long-term institutional interests instead of fretting over the short-term effect on the political party in power.