Thread by @MattGlassman312

WARNING: Constitutional theory ahead!

We always talk about “co-equal” branches of government under the Constitution. But in a structural sense, that’s not actually true. Congress has primacy. A thread. 1/

If you spend time around members of Congress, you’ll inevitably hear “Congress is the first branch of government” and “Article I is the legislative branch.”

Both are true, of course, but there’s often an implication that isn’t true: that because Congress is in Article I, that gives it special standing within the separation of powers.

That’s false. The ordering of branches in the constitution may reflect Framer beliefs about their relative importance—indeed, there’s plenty of reason to believe that the Framers did believe Congress was the primary branch and did place it first because that’s what they thought.

But that ordering doesn’t make Congress more powerful than the other branches, anymore than the existence of congressional powers in both Article I (ex. tax power) and in Article IV (ex. power to govern the territories) says anything about the relative strength of those powers.

That said, the Framers did create a system in which Congress has primacy. They did this not by ordering it first, but by creating a structural relationship between the branches that is not symmetric, but instead makes Congress supreme, at least in theory.

Congress has the power to unilaterally remove actors in the other two branches. The other two branches do not have the unilateral (or collective) power to remove members of Congress.

That is, Congress can impeach and remove both civil officers andfederal judges, including the constitutional actors (POTUS/SCOTUS). But the only power to remove members of Congress lies with Congress itself (via the expulsion power) or with the voters (via the federal elections.)

This is often overlooked. Whatever one might say about the “equality” of the branches of government, the constitution lays bare that one branch, and only one branch, can sit in unilateral existential judgement of the actors who comprise the other branches.

While it has not shaken out this way as a matter of historical/modern development, it is not hard to imagine alternative course of events in the late 18th century and early 19th century that led to a wholly different development of the U.S. constitutional system...

..one in which the separation of powers remained as a parchment fiction, but in practice became a Congress-dominated parliamentary-style government, with the House and Senate simply removing the symbolically-elected POTUS and installing the Speaker as POTUS/prime minister.

What makes this important right now is there are currently dueling charges of abuse of power between the branches, and among their supporters. Actors in both branches are asserting there are things going on in each branch that may be criminal or abuses of institutional power.

The House is investigating Trump for impeachment-level abuses of power six ways to Sunday. Trump (and surrogates) is arguing the investigations themselves are fraudulent abuses of power. He is literally accusing opposition members of treason.

At first glance, the charges appear symmetric. And, in fact, they may very well be symmetric—anyone holding public office, legislative or executive, can abuse their power. But the structural primacy of Congress within the makes the remedies available completely different.

If a judge or member of the executive branch is abusing their power, it is within the power of Congress (and arguably the *duty* of Congress) to rectify the behavior, either through impeachment or the threat of impeachment.

But if *Congress* is abusing its power, there is no formal recourse for POTUS or the judiciary. The only remedies are expulsion (if it’s an individual member) or the elections.

All branches, of course, can try to influence the public sphere debate to affect the elections (see below). That’s both normal and healthy. So there’s no inherent problem with POTUS or any other actor in any branch arguing Congress is abusing power and should be punished.

But in the case of collective abuse of power by Congress, there’s only one formal judge: the voters. The other branches have two: the voters *and* Congress. Consequently, it’s a bit odd to charge Congress with abusing its power for investigating other branches abuse of power

Obviously, the executive branch can/should investigate criminal or other illegal activities by members of Congress, and challenge unlawful/unconstitutional practices of Congress collectively. That’s the executive enforcing Congress’s law and guarding its power, respectively.

But the role of the executive in assessing or punishing any abuse of congressional power is totally informal, no different than any voter in the public sphere. They can argue the case, but it is not their job to judge. Unlike Congress, which has both informal and formal power.

Congress is in a much tougher spot than the President in trying to defend its power. Presidents are unitary actors, and most presidents have noted after leaving office the immense sense of responsibility they felt to maintain the power of the presidency.

Not so in Congress. Individual members may not feel the responsibility to defend their institution, and even those who do man not feel like they have any ability to do so.

And cross-pressures constantly attack them: public policy goals (supporting POTUS war powers because they believe in the war aims), partisan goals (not wanting to embarrass a co-partisan POTUS or hurt their party by sinking legislation that decreases congressional power), and…

…electoral goals (running “against Congress” in reelection campaigns) all conflict with goal of maintaining or enhancing institutional power. This collective action problem strongly hints toward power drifting toward POTUS, absent concerted efforts by Congress to maintain it.

Nevertheless, Congress is still the center of the system, because it is the only branch unilaterally controlled by the people, and the only branch that has the ability to existentially threaten the others.

In the normal course of politics, this rarely matters---the branches are co-equal because the disputes don't rise to the existential level. But on occasions when they do become existential fights, Congress has the more formal powerful weapons.