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Measuring party polarization in Congress: lessons from congressional participation as amicus curiae.

CONTENTS
INTRODUCTION
I.   PARTY POLARIZATION AND THE BALANCE OF POWERS
II.  CONGRESSIONAL AMICUS FILINGS: COMPARING THE LESS
     POLARIZED 1974-1985 TERMS WITH THE HIGHLY POLARIZED
     2002-2013 TERMS
     A. Why Study Congressional Amicus Filings?
     B. Methodology
     C. The Findings
     D. A Closer Look at Abortion and Separation of Powers Cases
     E. The Changing Role of Institutional Counsel
III. SOME CONCLUDING OBSERVATIONS WITH SPECIFIC REFERENCE
     TO ZIVOTOFSKY V. KERRY
APPENDIX A: CONGRESSIONAL AMICUS FILINGS, 1974-85 & 2002-13
APPENDIX B: CONGRESSIONAL AMICUS FILINGS IN SELECT ABORTION
CASES, 1973-2007
APPENDIX C: CONGRESSIONAL AMICUS FILINGS IN SELECT SEPARATION
OF POWERS CASES, 1974-2014


INTRODUCTION

This Article will assess patterns in congressional amicus filings over the past forty years and, in so doing, call attention to how judicial filings by Congress are an excellent measure of party polarization. My findings are hardly surprising. By looking at briefs filed both by individual members of Congress and institutional counsel for the House and Senate, I document how today's lawmakers are less likely to file bipartisan briefs than earlier less polarized Congresses. Correspondingly, Democrats and Republicans are more likely to line up on the opposite side of the same case. For example, litigation over the Affordable Care Act, the Defense of Marriage Act, campaign finance, and abortion have divided Democrats and Republicans in Congress. (1) Finally, the House is far more likely than the Senate to participate as an institutional litigant, for the majority party controls House participation and participation of the Senate Legal Counsel requires bipartisan support. (2)

Each of these findings is to be expected, and much of this Article highlights how congressional amicus filings are a reliable measure of party polarization. Beyond these findings, this study examines why today's polarized Congress is less prone to defend its institutional prerogatives than earlier less polarized Congresses. In particular, lawmakers are less apt to work together to defend congressional power. There are comparatively fewer filings in separation of powers cases, and there is often a partisan divide on cases that implicate the scope of congressional power--whether it be the Senate's power to confirm or congressional authority under the commerce clause. (3) For these reasons, a study of congressional amicus filings (although principally about Congress and the courts) offers important insights into the balance of power between Congress and the Executive and, for that reason, is an appropriate subject to explore in this symposium on executive power.

This paper will be organized as follows: First, I will detail the prevalence of party polarization and how party polarization has limited congressional interest in its institutional prerogatives vis-a-vis the executive. Second, I will discuss my research findings governing congressional amicus briefs. I will consider patterns in bipartisan filings over time (comparing the less polarized 1974-1985 Supreme Court terms with the more polarized 2002-2013 terms). I will also consider the types of issues lawmakers and their institutional counsel have pursued in their filings. This investigation will reveal a decline in briefs in institutional cases and an upswing in briefs on politically salient issues that divide the parties (abortion, same-sex marriage, campaign finance, etc.). Third, I will draw some conclusions from this study and also draw some contrasts between filings by individual members of Congress and filings by the institutional counsels for the House and Senate.

Before starting my analysis of party polarization and its impact on congressional amicus filings, two observations about what this Article does and does not accomplish: First, in studying changing patterns in congressional amicus filings, I am not contending that these briefs are highly influential and that these changes are likely to spill over to Supreme Court decision-making. I suspect that these briefs are sometimes helpful to the Court, but often they are not influential at all. My interest is measuring party polarization and its manifestations. These briefs, as noted above, are a revealing measure of congressional interest in defending institutional prerogatives and, in so doing, checking the executive branch. Second, for reasons I have detailed elsewhere and will again discuss in this Article, party polarization simultaneously deflates lawmaker interest in asserting their institutional prerogatives and increases the likelihood that members of the party not in the White House will--when in power--aggressively use congressional oversight to embarrass the President. (4) For this reason, today's House Republicans are aggressively using oversight and related litigation to question the lawfulness of various actions of the Obama administration.

I. PARTY POLARIZATION AND THE BALANCE OF POWERS

Congress is poorly positioned to assert its institutional prerogatives against the President. Where the President has incentive to expand power, lawmakers have incentive to trade off institutional prerogatives in order to secure personal advantage. (5) Party polarization generally exacerbates lawmakers' tendencies to discount institutional prerogatives. Most notably, lawmakers are unlikely to come together in a bipartisan way to check the President. On the other hand, when the party in opposition to the President is in control of the House or Senate, efforts to embarrass the executive might tick up, and, with it, there might be increasing congressional oversight of the executive. For reasons I will explain at the end of this section, the increasing tendency of lawmakers to put party ahead of institution is likely to spill over to the types of briefs that are filed by lawmakers and their institutional counsel--matters that will be explored in greater detail in Part II.

Unlike Congress, Presidents inevitably expand the scope of presidential power by pursuing the policy initiatives they support. While lawmakers fight over the scope of congressional power (embracing it when it supports their policy goals and opposing it when it does not), (6) the unitary President is not at war with himself--the President claims the authority to act and leaves it to Congress to check him. Political scientists Terry Moe and William Howell put it this way: "[W]hen presidents feel it is in their political interests, they can put whatever decisions they like to strategic use, both in gaining policy advantage and in pushing out the boundaries of their power." (7) In sharp contrast, members of Congress often sacrifice institutional interests in favor of individual interests (reelection and advancing their and their constituents' policy goals). Lawmakers, in other words, are "trapped in a prisoners' [sic] dilemma: all might benefit if they could cooperate in defending or advancing Congress's power, but each has a strong incentive to free ride in favor of the local constituency." (8)

In today's polarized Congress, lawmakers are especially apt to discount institutional prerogatives. Aside from their natural disinclination to prioritize institutional objectives that might vary from their personal objectives, today's lawmakers increasingly identify with party-defined messages and seek to gain power by advancing within their respective party. (9) In so doing, Republican and Democratic lawmakers are increasingly distant from each other and increasingly unlikely to seek common ground in order to advance congressional prerogatives.

The rise in party-line voting exemplifies this phenomenon. Two noteworthy examples: (1) the enactment and proposed repeal of the Affordable Care Act (ACA) almost perfectly divided Republicans and Democrats in Congress (no Republican voted for the initial enactment in 2010, and no Democrat backed the 2015 repeal) (10); (2) the then-Democratic Senate's November 2013 repeal of the filibuster in order to push through Obama nominees whom had been blocked by Senate Republicans (a measure supported by all but three Democrats and no Republicans). (11) The ACA and filibuster, while striking, are hardly anomalies: House Republicans now vote along party lines around 92 percent of the time, and Senate Democrats vote with their party around 94 percent of the time. (12)

Beyond party-line voting, there are essentially no instances of Democrats and Republicans coming together to stand up to the President and defend congressional prerogatives. (13) Unlike the less partisan Congresses of the 1970s, there is no prospect that Republicans and Democrats in today's Congress would come together to enact the War Powers Resolution, the Impoundment Control Act, the Ethics in Government Act, or vote articles of impeachment against the President. (14) Moreover, the only circumstances where one or the other party seems willing to assert Congress's institutional prerogatives are instances where the party in opposition to the President controls one or the other chamber and uses its investigative powers to hold oversight hearings and otherwise find ways to embarrass the President. (15)

Against this backdrop, it is to be expected that the amicus filings of lawmakers and institutional filings of the House and Senate would reflect party polarization in Congress. In Section II, I will detail changes between 1974-1985 and 2002-2013 practices. At this point, let me spin out some of the ways that polarization might impact legislative filings before the Supreme Court--hypotheses that will be evaluated in Part II. There are three (16): One, amicus filings have become more partisan over time; that is, there are more filings where all (or next to all) signatories are from one or the other party, and there are very few bipartisan filings. Correspondingly, there would be next to no bipartisan filings in the salient cases that divide the parties (abortion, health care, gay rights, etc.). Two, today's amicus filings center less on separation of powers cases, where lawmakers would defend Congress's institutional prerogatives. Instead, lawmaker briefs would increasingly focus on salient cases that divide the parties. Three, the Senate Legal Counsel will have participated more regularly in the 1974-1985 period as compared with the 2002-2013 period. In particular, since the Senate Counsel cannot participate without bipartisan support, there are fewer opportunities in today's polarized Congress to elicit bipartisan support. In contrast, the House Counsel would remain an active participant in litigation, especially on issues that divide the parties. Since the House Counsel largely works at the behest of the majority party, the House Counsel is not limited by bipartisanship requirements. Relatedly, on salient issues that divide the party, the House minority may well file an amicus brief taking issue with the claims of the House Counsel. (17)

II. CONGRESSIONAL AMICUS FILINGS: COMPARING THE LESS POLARIZED 1974-1985 TERMS WITH THE HIGHLY POLARIZED 2002-2013 TERMS

In this Part, I will detail changing practices in lawmaker and institutional amicus filings before the Supreme Court. I will also elaborate upon my findings by referencing some amicus filings before lower courts as well as filings in which the House was a party to the litigation (the Defense of Marriage Act, for example, where the House participated as a party to the litigation but Democratic lawmakers filed amicus briefs opposing the formal House position both before the federal courts of appeal and the Supreme Court). (18) Before turning to my findings, I think it useful to detail my reasons for studying congressional amicus filings and the methodology of my study.

A. Why Study Congressional Amicus Filings?

Congressional amicus filings are not an obvious measure of Congress as an institution. Unlike more traditional measures of congressional activity (floor votes, committee hearings), amicus filings are not formally tied to Congress's legislative powers. (19) Nevertheless, amicus filings are a reasonably good measure both of how lawmakers interface with each other and of the types of issues that matter to lawmakers.

To start, today's Congress is an active participant in Supreme Court litigation. Unlike pre-1969 lawmakers (who rarely filed amicus briefs), today's lawmakers increasingly see amicus briefs as a mechanism to communicate their legal policy preferences. For example, throughout the Warren Court and before 1970, only one member of Congress filed an amicus brief (Senator William Fulbright in 1958). (20) Starting in 1974, lawmakers began to file amicus briefs on a "regular" basis, and 796 different senators and representatives filed briefs from 1977 to 1997. (21) Since 1997, lawmaker amicus brief filing increased, as revealed in my study of 2002-2013 amicus filings. (22)

The dramatic rise in lawmaker participation in amicus briefs is driven principally by two phenomena. First, the filing of amicus briefs became commonplace. Before 1949 amicus briefs were filed in only 1.6 percent of Supreme Court cases; by 1969, amicus briefs were filed in around 39 percent of all cases. (23) By this time, the amicus "[was] no longer a neutral, amorphous embodiment of justice, but an active participant in the interest group struggle." (24) Indeed, from 1950 to 1994, there was a steady increase in amicus filings--so that today amicus briefs are filed in nearly every case. (25) Second, amicus filings are an easy, low-cost mechanism for lawmakers to stake out policy positions. In particular, rather than see amicus briefs as a mechanism to secure desired policy outcomes, amicus curiae participation "generally is a measure of the intensity of members' preferences on issues because politicians must feel sufficiently strongly to act in a public manner to communicate their preferences to others." (26) Correspondingly, the principal audience of lawmaker amicus briefs are "select constituents[, interest groups,] and campaign contributors" particularly interested in the issue. (27)

The fact that lawmakers frequently use amicus filings as a way to register ideological preferences suggests that a study of changing congressional practices in this area is a window into the role of ideology in Congress. Correspondingly, since congressional amici are often coalitional rather than individual, (28) a study of changes in the character of multimember congressional filings is a useful way of measuring party polarization in Congress. For these reasons, whatever its limitations, a study of congressional amicus filings seems a plausible way to track polarization in Congress.

B. Methodology

In assessing changing patterns in congressional amicus filings, my research assistants and I looked at all Supreme Court amicus briefs filed in the 1974-1985 and 2002-2013 terms. We selected the 1974-1985 terms as representative of fairly low polarization for two reasons. First, the rise of congressional amicus briefs began in the 1970s, and I wanted to pick a representative low-polarization period in which there were a substantial number of amicus filings. (29) Second, as compared with any other period I might have chosen, party polarization was comparatively low in this period. Watergate-era reforms were largely bipartisan, and measures of party polarization rank this period as less polarized than others I might have studied (in which there were substantial congressional filings). (30) In comparing this eleven-year period (eleven years was somewhat random but long enough to track patterns) with another eleven-year period, we selected the 2002-2013 terms for the obvious reasons that it is the most recent period, and it is also the period in which the ideological distance between the parties has been greater than ever before. (31)

In each time period, we identified cases in which briefs were filed; the number of briefs; the number of briefs filed by representatives, senators, or both; the number of signatories on each brief; and the party affiliations of signatories. We also measured for issue salience (using the standard political science measure of whether the case was featured on the front page of The New York Times). Finally, we categorized the cases around three general issue types--social issues, institutional issues, or federalism. Social issues reference issues like race, abortion, and gay rights; institutional issues involve separation of powers issues and issues of congressional power outside federalism; federalism often combines both social issues and institutional issues (voting rights, disability rights, violence against women, family medical leave, etc.). Appendix A summarizes our raw data.

In addition to this search, my student assistants did separate searches of all Supreme Court amicus filings between 1973 and 2014 on abortion and separation of powers. Recognizing that the case distribution between the two studied periods do not operate as perfect pairs (where the portfolio of cases in one period is a perfect match for the portfolio in another period), I thought it would be useful to take an in-depth look on two issues where there were numerous cases throughout the 1973-2014 period--one obviously about social issues and the other about institutional issues. Needless to say, my efforts at making the two periods comparable were rough guesses. At the same time, I think my approach to the question is a reasonable way to get a general understanding regarding changing congressional practices between periods of relatively low and extremely high polarization.

C. The Findings (32)

As an initial matter, congressional participation in amicus briefs has increased dramatically between the 1974-1985 and 2002-2013 terms. (33) The number of cases in which members filed amicus briefs increased from 45 to 86, a stunning increase considering the fact that the Court heard substantially more cases in the earlier period. (34) The number of total briefs increased from 52 in the earlier period to 150 in the later period. Correspondingly, briefs with five or more signatories increased from 27 to 84. (35) Finally, the number of members who signed onto a brief increased from 930 to 3,807.

Between the two periods, there was a sharp decline in bipartisan briefs (36)--so much so that changing patterns in amicus filings can only be seen as a byproduct of the growing polarization between the parties. Despite the fact that the number of briefs with five or more signatories increased from 27 to 84, the number of bipartisan briefs with five or more signatories stayed at 7 for both periods. In other words, 26 percent of filings were bipartisan in the earlier period as compared with 8 percent in the later period. Likewise, when calculating all briefs (including those with four or fewer signatories), the number of cases with bipartisan briefs declined from 31 percent (14 briefs in 45 cases) to 19 percent (16 briefs in 86 cases).

This decline in bipartisan briefs, not surprisingly, tracks an even larger increase in the number of partisan briefs, especially single party briefs. (37) During the earlier period, there were 16 briefs (all with five or more signatories) that leaned to one or the other party; that is, they were principally from one party but had at least one signatory from each party. These briefs accounted for 31 percent of all briefs (16 out of 52 briefs) and 59 percent of briefs with five or more signatories (16 out of 27 briefs). During the 2002-2013 terms, lean partisan briefs declined in number--replaced by purely partisan briefs. There were just 22 lean partisan briefs, 20 with five or more signatories. Thus, lean partisan briefs accounted for 15 percent of all briefs (22 out of 150) and 21 percent of briefs with five or more members (18 out of 84).

The number of single-party briefs saw a dramatic increase between the two periods. During the 1974-1985 period, there were 22 briefs that were all Republican (6) or all Democrat (16). Four of these briefs (all Democrat) had five or more signatories. Thus, completely partisan briefs accounted for 42 percent of all briefs and 15 percent of briefs with five or more signatories. During the 2002-2013 terms, there were 112 single-party briefs, 62 Republican and 50 Democrats. Twenty-four Republican briefs and 33 Democratic briefs had five or more signatories. This means that single-party briefs now account for 75 percent of all briefs and 68 percent of briefs with five or more signatories (a stunning increase of 450 percent from the earlier period when such briefs accounted for 15 percent of member filings).

Another important difference between the two periods is the increasing focus of lawmakers on politically salient issues, measured by the appearance of at least one standalone article on the front page of The New York Times. (38) This difference is revealed by comparing the number of briefs filed in salient cases with the number of signatories on briefs in these cases. (39) During the earlier period, there were an equal number of briefs filed in salient and nonsalient cases (26 briefs each). During the 2002-2013 period, 69 percent (103 briefs) were filed in salient cases and 31 percent (47 briefs) were filed in nonsalient cases. More significantly, the number of member signatories in salient cases jumped dramatically between the two periods. In the 1974-1985 period, 65 percent of member signatories were in salient cases (610 out of 930). In the later period, 88 percent of member signatories were in salient cases (3,369 out of 3,807).

Given the increasing focus on salient issue and the rise of single-party briefs, there has also been a dramatic increase in single-party briefs with forty or more signatories on politically salient issues that divide the parties. (40) During the 1974-1985 period, there were 6 briefs with forty or more signatories (around 12 percent of all filings during this period). One of those briefs was bipartisan, none were single party, and 5 leaned Democrat or Republican (but each of these 5 had at least 14 percent signatories of the other party). During the 2002-2013 terms, there were 33 briefs with forty or more signatories (around 22 percent of all filings). None were bipartisan, 22 were single party, and 11 leaned toward one party (and 6 of those 11 had fewer than 5 percent representation from the other party). The 28 briefs that were single party or virtually single party, not surprisingly, included filings on the Affordable Care Act, the Defense of Marriage Act, immigration, voting rights, abortion, affirmative action, campaign finance, legislative prayer, the pledge of allegiance, recess appointments, and state immunity under the Eleventh Amendment. (41)

The final measure I used to track changes between the two periods concerned the types of issues addressed by member briefs. I considered cases involving social issues, cases involving institutional powers, and cases involving federalism (many of which implicated both congressional power and social issues). (42) My concern here is seeing whether lawmakers shifted their focus toward the social issues that divide the two parties and away from institutional cases that might have united the parties (as these cases frequently deal with Congress's efforts to protect its institutional prerogatives). Here, the results also point to a substantial increase in member interest in social issue cases as compared with institutional issue cases. During the 1974-1985 period, 15 out of 52 briefs (29 percent) were filed on social issues, and 20 briefs (38 percent) were filed on institutional issues. During the 2002-2013 period, 52 out of 150 briefs (35 percent) were filed on social issues, and 43 (29 percent) were filed on institutional issues. Total member participation also showed an increase of interest in social as compared with institutional issues. In the earlier period, 42 percent of members (388 out of 930 signatories) participated in social issue cases, and 40 percent (372 signatories) participated in institutional cases. (43) For the 2002-2013 period, 48 percent of members participated in cases implicating social issues (1,822 of 3,807), and 24 percent (926 signatories) participated in institutional cases.

D. A Closer Look at Abortion and Separation of Powers Cases

The above measures strongly support claims made earlier in this Article about the ways party polarization is likely to impact on congressional amicus filings. Today's briefs are more partisan and increasingly focus on the politically salient issues that divide the parties. Correspondingly, lawmakers are less engaged in institutional questions that might bring the parties together in an effort to defend congressional powers and prerogatives. At the same time, it is hard to draw definitive conclusions from the evidence reported thus far--because there might be substantial variations in the docket between the two time periods. For that reason, I will comment specifically about two issue areas over the past forty years--one concerning social issues and the other institutional issues. Specifically, this subpart will track congressional filings in abortion cases (starting with Roe v. Wade in 1973) and separation of powers cases (starting with United States v. Nixon in 1974). While my focus remains amicus filings by individual members of Congress, I will also take note of briefs filed by counsel for the House and Senate--a topic I will consider in greater detail in the next subpart.

In an effort to make abortion and separation of powers cases comparable, I chose roughly the same number of cases for each group (18 abortion cases and 19 separation of powers cases) over the 19732014 time period--selecting cases throughout the time period so that neither grouping was skewed toward the years where Congress was more bipartisan or more polarized. (44) This is not to say that the comparison is perfect; at the same time, shifting patterns in congressional filings are sufficiently stark and sufficiently consistent with earlier claims in the Article that I think the comparison sound and useful.

For abortion, ten cases were examined raising state regulatory authority, and eight cases were examined involving federal statutes or federal administrative initiatives. Of the cases involving state regulatory authority, no amicus brief was filed in the five examined cases between 1973 and 1983; the first amicus brief was filed in 1986, and amicus briefs were filed in four of the five subsequent cases involving state regulatory authority. In other words, it appears that lawmakers initially drew a line separating state regulatory issues from questions involving congressional authority and the interpretation of federal statutes. Starting in 1986, however, amicus filings tracked the growing ideological divide between the parties--a divide fueled by Reagan administration efforts to draw distinctions between Democrats and Republicans on socially divisive wedge issues, especially abortion. (45) In four state regulatory cases from 1986 to 2000, competing briefs were filed by coalitions dominated (around 90 percent) by Republicans or Democrats.

Congressional filings in abortion cases implicating federal law buttress this conclusion. A bipartisan brief was filed in the 1980 abortion funding case--as that case implicated Congress's power of the purse--and 239 lawmakers came together to defend institutional turf on that question. Aside from that filing, lawmakers participated in three of the other seven cases involving federal law. As a group, these cases were less salient as four involved efforts to either seek money judgments against abortion protesters or impose other restrictions on them. (46) In contrast, lawmakers participated in a 1991 case involving federal restrictions on abortion counseling and a 2007 case concerning federal partial birth abortion legislation. These lawmakers' briefs were overwhelmingly Democratic or Republican. Correspondingly, although not directly involving abortion, Democrats and Republicans stood on opposing sides of the Supreme Court's 2014 decision in Burwell v. Hobby Lobby Stores, (47) a case involving the Affordable Care Act's contraception mandate. Of the five lawmaker amicus briefs filed in this case, none was bipartisan and four were signed by only one party. (48)

Lawmaker filings in abortion cases back up the central claims of Part II.C. Lawmakers were comparatively more interested in questions on institutional power and less interested in social issues when Congress was less polarized. The fact that the only brief filed before 1986 was a bipartisan filing implicating Congress's appropriations power supports this conclusion. More than that, the fact that lawmakers filed partisan briefs, principally on state law issues, after 1986 also supports claims made about the impact of party polarization on amicus filings--namely, that lawmakers focus their energies on wedge issues that divide the parties.

Abortion filings are telling for another reason, especially as compared with separation of powers filings. In many of these cases, hundreds of lawmakers signed onto briefs that increasingly pitted Democrat and Republican lawmakers. In the eight cases for which lawmakers filed briefs, 1,369 signed onto briefs. In Hobby Lobby, a total of 217 lawmakers signed onto the various lawmaker briefs. (49) In sharp contrast, there were far fewer signatories in separation of powers cases. Even though lawmakers filed amicus briefs in ten of the nineteen cases studies (and counsel for the House and Senate filed briefs in two other cases), there were only 186 brief signers--so an average of 19 as compared with 171 in the eight abortion cases where briefs were filed. And while House and Senate counsel participation may deflate the number of signatories, (50) it is quite clear that there is less interest in staking out a position in separation of powers cases as compared with abortion cases. (51) For example, throughout the enemy combatant dispute, a total of sixteen lawmakers signed amicus briefs, and no amicus briefs were filed by the House or Senate counsel.

Amicus filings in separation of powers cases also point to the growing partisan divide between Democrats and Republicans. First, there is a growing trend toward partisan filings (particularly during George W. Bush-era litigation over enemy combatants (52) and during the fight over Obama recess appointments (53)). Second, although some bipartisan briefs were filed, lawmakers were not motivated by a desire to preserve or expand congressional power in these cases. In 1990s litigation over item veto legislation, lawmakers were seeking to advance their reputations as deficit hawks--defending their delegation of authority to the President because Congress could not be trusted to manage the federal deficit. (54) In 2012, litigation over the authority of Congress to allow individuals born in Jerusalem to list Israel as their place of birth, brief signers were interested in reaffirming their support for Israel. (55) Third, for reasons I will now detail in Part II.E, profound changes in the role of institutional counsel in Congress also demonstrate growing partisanship and polarization in separation of powers disputes.

E. The Changing Role of Institutional Counsel (56)

From 1978 (when the Office of Senate Legal Counsel was created) through 1995, institutional counsel for the House and Senate regularly participated in Supreme Court litigation involving separation of powers matters. Up until 1986, moreover, these lawsuits pitted Congress against the executive. (57) In these disputes, party identity did not matter. The House defended institutional prerogatives when the President was of the same party as the House majority (most notably in INS v. Chadha, a dispute involving the constitutionality of the legislative veto that involved the Democratic House against the Carter and then Reagan administrations). The Senate too defended congressional prerogatives in cases where the President and Senate majority were of the same party (including the willingness of the Republican Senate majority to stand up to the Reagan administration and join forces with Democrats in defending deficit control legislation in Bowsher v. Synar). Amicus briefs filed in these and other cases during this period were often bipartisan, and, correspondingly, lawmakers of the President's party sometimes lined up in opposition to the President. (58)

Starting in 1995, the trend of growing polarization (which started during the Reagan administration) exploded. (59) With the Republican takeover of Congress, lawmakers who had previously divided on social issues refused to cooperate on institutional questions too. Most notably, the Senate Legal Counsel did not defend congressional prerogatives before the Supreme Court in any separation of powers dispute from 1995 until 2014 (where the Senate Counsel has filed a brief in Zivotofsky v. Kerry, a follow-up to a 2012 Supreme Court case concerning Congress's power to allow American citizens born in Jerusalem to declare Israel as their place of birth when obtaining a passport). In Part III, I will return to Zivotofsky and explain how bipartisanship about Israel is not at odds with claims made in this subsection. For the balance of this subsection, I will call attention to how the institutional counsel for the House and Senate reflect growing partisanship and polarization in Congress.

As noted, the principal manifestation of party polarization in the Senate was the failure of the Senate counsel to participate in litigation, especially litigation pitting the Congress against the executive. This failure was a byproduct of the statutory requirement that the Senate Legal Counsel can only participate in litigation with broad bipartisan support. Specifically, counsel representation of the Senate requires two-thirds support of a leadership group comprising four members of the majority party and three members of the minority party. (60) And while this requirement made perfect sense when the office was created (as a bipartisan effort to defend Senate institutional prerogatives in the wake of Watergate), it has largely resulted in the muting of the Senate Counsel. For example, in the Canning recess appointment case, the Senate counsel stood on the sidelines when counsel for Senate Republicans filed amicus briefs and made oral arguments before both the D.C. Circuit and Supreme Court. (61)

When it comes to the House, the majority party controls House litigation. Although the so-called Bipartisan Legal Advisory Group (BLAG) is composed of three majority and two minority party members, a simple majority can direct House counsel participation in litigation. In recent years, the BLAG turned its attention to the social issues that divide the parties, dividing itself along party lines when defending (in 2000) a federal statute overturning Miranda v. Arizona and (in 2012) the Defense of Marriage Act (DOMA). In both cases, the Democratic minority filed amicus briefs backing Clinton and Obama Department of Justice claims that theses statutes were unconstitutional. In the DOMA case, for example, 132 House Democrats filed a July 2012 amicus brief arguing both that the DOMA is unconstitutional and that "the Bipartisan Legal Advisory Group ... does not speak for a unanimous House on this issue." (62)

On issues involving congressional prerogatives to investigate the executive, partisanship also rules the day. The House is willing to assert its institutional prerogatives when the House majority and President are of different parties; otherwise, the House will not use litigation to defend its subpoena and investigatory powers. House Democrats went into court to challenge the Bush White House's handling of a scandal involving the firing of U.S. Attorneys for partisan reasons (63); House Republicans likewise went into court to assert their prerogatives against Obama Attorney General Eric Holder's handling of the Fast and Furious gun-running operation. (64)

House and Senate participation (or lack of participation) in litigation buttresses the central claims of this paper. The House and Senate operated more as bipartisan institutions interested in preserving congressional power vis-a-vis the executive when Congress was less polarized; during the past twenty years, however, the participation of institutional counsel has become highly polarized. This polarization, moreover, spilled over to the amicus filings of individual members of the House and Senate. (65) In the Canning recess appointment case, the Senate's counsel said nothing while Senate Republicans filed an amicus brief that sought to score political points against the Obama administration. In the DOMA case, House Democrats filed an amicus brief decrying the House counsel's defense of the statute and, in so doing, called attention to how social issues often dominate political battles between the parties.

III. SOME CONCLUDING OBSERVATIONS WITH SPECIFIC REFERENCE TO ZIVOTOFSKY V. KERRY

Amicus filings by members of Congress as well as institutional filings by the House and Senate legal counsel are testament to increasing polarization in Congress. Unlike earlier lawmakers (who rarely filed single-party briefs and sometimes filed bipartisan briefs), today's lawmakers almost never file bipartisan briefs and typically file single-party briefs. Today's lawmakers, moreover, are particularly interested in staking out positions on socially divisive issues that separate Democrats from Republicans. For example, pre-1986 lawmakers saw state regulation of abortion as a state issue and did not file amicus briefs; since 1986, however, lawmakers frequently sign on to Democratic or Republican briefs in state abortion cases.

For reasons noted in Section I, lawmakers typically trade off institutional interest to pursue personal interests. The dramatic rise in lawmaker briefs on social issues and the increasingly partisan nature of those filings highlight how today's lawmakers speak to their increasingly partisan base by staking out positions on the social issues that matter to their base.

On separation of powers cases, however, lawmakers throughout the study have been less interested in staking out personal positions on cases implicating congressional power. Institutional questions rarely engage the base, and it is hardly surprising to see very few signatories on separation of powers cases and other cases that implicate congressional powers. Indeed, the very offices created to defend congressional interests in separation of powers disputes (the House and Senate counsel) are often absent from separation of powers disputes (the Senate counsel) or are increasingly engaged in social issues that divide the parties (the House counsel).

One recent exception to this practice actually highlights how separation of powers disputes matter only to lawmakers if there is an underlying policy issue that allows members to curry favor with their base. The issue in the case: the constitutionality of a statutory provision overriding State Department policy to disallow individuals born in Jerusalem to claim on their passports that they were born in Israel (so that the passport would designate the birthplace as Jerusalem, not Israel). That case, Zivotofsky v. Clinton (and now Kerry), has brought together an unusual bipartisan coalition of lawmakers who are strong proponents of Israel. In 2012 (when the dispute centered on the suitability of the case for judicial resolution), thirty-nine lawmakers from the House and Senate submitted a joint brief backing Congress's authority (twenty-three Democrats, fifteen Republicans, one Independent). (66) In 2014, after the Supreme Court ruled the case justiciable and granted certiorari to resolve the dispute, the Office of Senate Legal Counsel submitted a brief defending congressional prerogatives (marking the first time in twenty years that Democrats and Republicans were able to come together to defend the constitutionality of legislation in a separation of powers dispute). (67) For its part, a bipartisan coalition of forty-two House members filed a brief supporting congressional prerogatives (twenty-four Republicans, eighteen Democrats). (68)

The ability of Democrats and Republicans to come together in Zivotofsky is testament to Congress's bipartisan support of Israel, not lawmaker interest in the institutional questions that underlie the Zivotofsky dispute. As noted, the 2014 recess appointment case involved critical Senate prerogatives but nonetheless was pursued in purely partisan terms. Likewise, lawmakers who signed briefs in Zivotofsky regularly sign on to single-party briefs in the issues that divide the parties--as the Zivotofsky coalition is made up of some of the most liberal Democrats and most conservative Republicans. (69) Zivotofsky signatories also are some of the most pro-Israel members of Congress. Twelve of the forty-two 2014 House brief signers cosponsored a resolution expressing "solidarity with Israel as it takes necessary steps to provide security to its people by dismantling the terrorist infrastructure in the Palestinian areas" (70); twenty-two of the forty-two signed a letter to President Obama affirming the "commitment to the unbreakable bond that exists between our country and the state of Israel." (71) By way of contrast, no member of the Zivotofsky coalition spoke about the case's separation of powers implications on the House or Senate floor.

Zivotofsky, therefore, is the exception that proves the rule. A bipartisan coalition of lawmakers has cast aside other differences, standing together for Congress's institutional power while also advancing their personal agenda. Cases like Zivotofsky are extremely rare, and there is no other recent case that has brought together Democrats and Republicans to stand together against perceived executive encroachments into Congress's institutional power. (72) Instead, it is far more likely to see Republicans but not Democrats defend Congress's appointments powers against the Obama administration. Correspondingly, when Democrats but not Republicans defended the Affordable Care Act, lawmakers were less interested in defending the scope of congressional power and more interested in advancing positions that resonate with their party and their base.

And so it goes. None of the above is especially surprising, and my study of congressional amicus participation before the Supreme Court has largely corroborated several common-sense propositions about the ways increasingly partisan lawmakers register their legal policy preferences. Sadly, my assessment also suggests that the Supreme Court should treat lawmaker briefs with skepticism. They are largely partisan statements intended to win favor with constituents. Rather than reflecting the institutional beliefs of Congress, they reflect the partisanship that often cripples Congress.
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Title Annotation:Introduction through III. some Concluding Observations with Specific Reference to Zivotofsky v. Kerry, p. 933-955; Symposium: Executive Discretion and the Administrative State
Author:Devins, Neal
Publication:Case Western Reserve Law Review
Date:Jun 22, 2015
Words:6567
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