Aneil Kovvali (Harvard University) has posted Power Games (112 Michigan Law Review First Impressions (2014, Forthcoming)) on SSRN. Here is the abstract:
According to the Madisonian account, Congress competes with the President for power and guards against presidential encroachments. Recent scholarship has suggested that this vision fails for reasons of political economy. But the Madisonian vision fails for a more basic reason: Congress lacks the tools to respond rationally to presidential aggression. While the President can choose whether to cooperate or defect on a situation-by-situation basis, Congress's tools for controlling the President tend to make cooperation impossible across a wide variety of situations. For example, if he is given command over a well-armed and well-supplied military, the President can decide on a situation-by-situation basis whether or not to cooperate with Congress by deploying the military in a manner consistent with Congress's preferences. Congress's most effective tool for controlling the President is to starve the military of funding, an approach that would deny it the benefits of cooperation across a wide variety of situations. Because of the high costs of this tool, Congress rationally chooses not to employ it, and must simply tolerate occasional presidential misadventures.
This essay uses a simple two-player game to build intuition before evaluating Congress's tools for disciplining the President. The essay also explores the possibility that some of Congress's odd rules -- including those that delegate substantial portions of Congress's power to individuals who appear to be uninterested in Congress's political fortunes -- may be rational responses to its difficulties in competing with the President. The resulting discussion has relevance for recent events, from debates over the use of force to senatorial showdowns.