Partisanship, especially the hyper variety, which has resulted in severe gridlock in Washington D.C., goes hand in hand with the accretion of Presidential power. One feeds the other. Hyper partisan gridlock has moved the President to take actions he believes are beneficial for the nation as a whole. When Congress, as a strategy in a grand power struggle, refuses to act, even on measures that are bi-partisan in origin and have widespread public support, any President will push the envelope to get around it. Critics on the right, of course, as well as some (presumably) non partisan constitutional lawyers (like Jonathan Turley of Georgetown University) have argued the President’s solo actions are unconstitutional.
While Obama’s defenders often say hyper-partisanship in D.C. is the reason the President acts unilaterally, their legal justifications have rested on traditional constitutional arguments around executive powers; and precedents going back to the beginnings of the “imperial presidency,” often traced to FDR. (Clear signs of it were apparent in the presidencies of the first Roosevelt and Woodrow Wilson).
Supporters of the President have used hyper partisanship as a political defense, but not as a legal justification for unilateral action. Recess appointments by the President, “creative” enforcement of immigration law, and executive orders, such as raising the minimum wage for workers under federal contracts, are examples of going solo when hyper partisan gridlock precludes actions that arguably benefit the nation as a whole; and which the polls say have very strong public support. The recess appointment issue has already been heard by the U.S. Supreme Court, and a decision is due shortly.
Is there any basis for lawyers and jurists to consider hyper partisanship, not just as a political argument, but as a legal one, when they defend the continuance of the “imperial presidency?” (I say “continuance” here, because even Turley, a strong critic of Obama, points to a series of presidencies, especially Bush II, which, in his view, have mangled the constitution).
Put another way, is there a basis for saying Hyper Partisanship is Unconsitutional? That question isn’t quite as facetious as it sounds.
James Madison, among other founders of the Republic and framers of the Constitution, not only omitted any reference to political parties in the original document and bill of rights,
but notably warned about factionalism and the dangers of partisanship. Madison’s most famous essay about this was in Federalist Papers #10. This is a must read, even if you already perused or heard about it in Government 101.
The Federalist Papers are a bible for jurists who look to the framers’ beliefs and intent as the basis for interpreting the Constitution today. At least four of the sitting Justices on the current Supreme Court can be fairly described as “Originalists.” They try to channel the framers when faced with difficult issues. “What would you have to say about police drones with cameras peering into windows, Mr. Madison?” These sacred ceremonies are not conducted in candlelight by justices in a haunted house in Georgetown; and they surely wouldn’t be caught holding hands. But they do consult in some manner with the framers and founders.
Madison argues in Federalist #10, that majority parties, and partisans generally, are prone to run roughshod over minorities, taking actions which are contrary to the rights and interests of the community as a whole. Acting in the “best interests of the people, or the nation as a whole,” are elusive concepts, but philosophers of democratic and representative government, from John Locke and John Stuart Mill to James Madison, advanced them passionately.
Madison’s philosophy resulted in the many checks, balances, and complex governmental structures that make it generally hard for the federal government to act. But I doubt even Madison would have been pleased with today’s hyper- partisan gridlock.
The main danger of majority hyper partisans today is not their proclivity to run roughshod over helpless minorities through selfish actions; but rather in preventing government from taking actions that oppose the interests of the whole community. (Why would they do this? Again, its a strategy with a view toward re-gaining power in the future,). Examples include failure to promote clean energy, stem the bleeding of middle class jobs, or support infrastructure, road, and transit spending that benefits commercial activity. (See, for example, the stunning refusal of House Republicans to replenish the Highway Trust fund). Gridlock on the roads, mirrors gridlock in Congress.
Hyper partisanship has prevented federal agencies (created by Congress) from operating because every nominee to head them is rejected. It has prevented courts from functioning because judges can’t be appointed. It has stopped regulatory agencies (also creatures of Congress) from settling disputes because board member nominations can’t be approved for the required quorum.
Is all that merely the Congress exercising its joint role in executive appointments? Or is it the political tactics of a hyper partisan majority (in the House), the kind the framers feared would run roughshod over minorities or the “public good?”
What would James Madison say about that? And will the four ardent Originalists on the High Court ask the question? (Playing on the words of legendary Mariner baseball announcer, Dave Niehaus, “Get out the incense and the rye bread, grandma, its grand salami time”).
Would channeling Madison influence opinions about “recess appointments?” Might law suits in the lower courts, arguing that partisan gerrymandering (drawing state legislative and congressional district lines to deliberately empower one political party and weaken others) is unconstitutional, be affected by reading what the framers said about hyper partisanship?
I am realistic enough to know the current Court probably won’t go there. They can be Originalists, Literalists, or believers in a Living Constitution, whichever one is needed to reach a desired outcome. But it wouldn’t hurt if lawyers reminded the four Originalists that recent examples of the “imperial presidency” have their roots in hyper-partisanship, and that the founders are now saying “I told you so.”