//  11/2/18  //  In-Depth Analysis

As I explained in an earlier post, political polarization and negative partisanship are placing stress on our constitutional system, as recent controversies over Justice Kavanaugh’s appointment (and Judge Garland’s earlier non-appointment) reflect.  My earlier post advocated a principle of “symmetric constitutionalism” for crafting judicial doctrine in this environment.  This post reflects more directly on how polarization affects the constitutional system’s operation, and how commentators and political actors should adjust in response.

In a nutshell, it seems to me that intensifying political conflicts are steadily shredding the buffers around our constitutional architecture, yielding an environment of more bare-knuckle inter-branch and federal-state conflict.  Preserving governmental stability in this environment requires ensuring that these same conflicts do not shred the structure itself.  Accomplishing that goal, in turn, may require distinguishing more carefully than we have in the past between norms (which political actors may choose to disregard) and constitutional ground rules (which they may not).

Let me start by illustrating what I mean by shredding the buffers.  In recent years—even holding aside President Trump’s routine outrages against norms of civil political discourse—we have seen numerous significant shifts in government practice.  Among other things, Senate filibusters have become completely routine; the Senate (in response) altered its filibuster rule twice by mere majority vote; the Senate refused to consider a rival President’s Supreme Court nomination; the federal government shut down repeatedly due to funding lapses; legislators attempted to leverage must-pass debt-ceiling legislation to obtain unrelated policy concessions; and two successive administrations failed to defend high-profile federal statutes against constitutional challenges.

All these developments (among many others) reflect steady erosion of political incentives for self-restraint and forbearance.  In a political environment characterized by negative partisanship, the incentives often favor pushing hard to obtain wins for one’s side, not disappointing one’s constituents so as to preserve good-government norms.

One effect of these dynamics has been a bonanza of structural constitutional cases.  In just the past few years, the Supreme Court has considered open questions regarding (among other things) the scope of executive power with respect to recess appointments, recognition of foreign governments, selection of administrative judges, and enforcement discretion, as well as the extent of federal authority to compel state governmental action.

As these same cases also reflect, however, one of the Supreme Court’s central functions in our system has been to resolve such conflicts for the political branches.  Post-Kavanaugh, there is obvious reason to wonder how well the Court can continue to perform that role.  At the least, it seems likely that a future Democratic president would face considerable pressure to “resist” adverse rulings by Trump-appointed judges.  Indeed, state governors and Attorneys General in hard-core blue states like California likely face that pressure already.

A judicial preference for symmetric constitutionalism—the principle I advocated in my last post—could provide one way to defuse these tensions.  Courts may best preserve their authority in this environment, it seems to me, by going out of their way to highlight and reinforce the symmetric benefits of their rulings, particularly on structural constitutional questions. 

As for the rest of us, we may need to give greater attention to distinguishing dispensable norms from indispensable constitutional rules.  Sometimes doing so is easy.  Whether or not doing so would be prudent, Congress holds unambiguous authority to increase the number of Supreme Court justices (and thus “pack” the Court).  By contrast, it does not hold authority to alter the number of Senators per state, though it could add new states to the union to redress Senate imbalances—again whether or not doing so would be wise.

Other examples, however, present more difficult, and thus more significant, questions.  For instance, to return to the problem of judicial authority, presidents and other governmental actors today tend to abide by Supreme Court decisions about constitutional meaning even if they were not parties to the case addressing the question, but it seems doubtful to me that they are constitutionally required to do so.  By contrast, I do think presidents and other actors are bound by judgments within a court’s jurisdiction to which they were parties—but even that view is contested.  To the extent I am right about that, we may well confront the challenge in the years ahead of finding ways to enforce the rule that presidents are bound by judgments, even if it is no longer politically feasible to maintain the norm that presidents abide by all Supreme Court decisions.

Another example, which I have addressed at length in this article, involves funding constraints on the executive branch.  Given past delegations and accumulated executive powers, congressional control over appropriations has emerged as a central constraint on the executive branch.  Yet presidents, by the same token, have been chafing at the bit, offering ever grander claims of executive authority to defy such funding constraints.  My article addresses at length when such executive claims are valid and when they are not, but in a moment of crisis—which might well come soon if Democrats win control of the House in November—preserving the system of checks and balances may well depend on finding ways to enforce some principled view of the two branches’ relative powers, even if the dispute is not justiciable in court.

I do not at the moment have any clear answer to this conundrum, although in my work on appropriations (and elsewhere) I have tried to model what a principled approach to determining relative inter-branch authorities might look like.  In this moment of great partisan stress, the risk of the bottom falling out should give us all pause.  If nothing else, it should encourage commentators to take a far-sighted view on structural questions and temper the public’s increasing focus on immediate policy outcomes.  We can torch the furniture of norms and conventions that has made our constitutional home a comfortable place to live, but setting fire to the structure itself would be quite another matter.


Federalism and the Senate

11/15/18  //  In-Depth Analysis

Nothing valuable about our federalism depends on letting each state appoint the same number of representatives in the Senate

Richard Primus

University of Michigan Law School

The Justice Department’s New Tactic

11/12/18  //  Commentary

The government is not entitled to play leapfrog whenever it loses in federal court

Joshua Matz

Publisher

How Much of a Problem is the Senate?

11/12/18  //  In-Depth Analysis

I'd like to raise a few questions about the current bout of Senate skepticism that rests on first principles

Michael C. Dorf

Cornell Law School