Congress rarely participates in litigation about the meaning of federal law. By contrast, the executive branch joins in federal litigation on a regular basis as either a party or amicus curiae. Congress simply assumes that the president’s lawyers adequately represent its interests save in those rare instances when the two branches have a direct conflict. This Article questions that assumption.
The federal judiciary’s approach to statutory and constitutional interpretation diminishes Congress’s influence, often to the benefit of the executive branch. The rise of textualism, the canon of constitutional avoidance, the reliance on Chevron deference, and the courts’ reluctance to second-guess the executive branch on issues of national security and foreign affairs all lead to judicial decisions that favor the president’s preferences over those of Congress. Furthermore, Congress rarely challenges executive encroachment on its most basic institutional prerogatives, such as the executive’s use of intrasession recess appointments to avoid Senate confirmation. Congress remains silent even when the executive branch takes positions in ideologically charged cases that are at odds with the preference of the majority of its members. Congress’s poor track record in all these areas should come as no surprise in an adversarial system in which the executive is well represented and Congress is not.
Congress can and should change this dynamic by becoming a more active participant in federal litigation. By speaking on its own behalf in court, Congress could both protect its institutional interests against executive encroachment and open direct lines of communication with the executive and judiciary that may improve the quality of judicial decisions about the meaning of federal law.59-4-2