Self-help and the separation of powers.
ARTICLE CONTENTS INTRODUCTION I. CONSTITUTIONALLY DERIVED TOOLS AND TYPES OF INTERBRANCH SELF-HELP A. Definitional Preliminaries B. Congressional Tools C. Presidential Tools D. Judicial Tools E. Additional Distinctions II. SELF-HELP AND CONSTITUTIONAL CONVENTIONS A. Conventions in Constitutional Theory B. Separation-of-Powers Conventions C. Obstruction, Retaliation, and Construction III. THE UNITY OF SELF-HELP: SECOND-PARTY ENFORCEMENT IN LAW AND THEORY A. The Dilemma of Self-Help B. The International Law Solution: Countermeasures Doctrine C. Organizing Principles IV. COPING WITH CONSTITUTIONAL COUNTERMEASURES A. The Latent Doctrine of Constitutional Countermeasures B. The Dignity of Retaliation: On Taking Self-Help Seriously C. Why Can't We Wait?: The Missing Discourse of Constitutional Self-Help D. Anxieties and Extensions CONCLUSION
Sometimes people are allowed to take the law into their own hands. They may bypass the courts and the cops and take unilateral measures to cure or prevent misconduct in their midst. Across the United States, doctrines have been developed to regulate such "self-help" behavior in criminal justice, property, contracts, torts, and other areas of private law. In public international law, a whole subfield is devoted to the self-help issue.
And so one might wonder: when may a U.S. government institution "attempt to redress a perceived wrong" by another U.S. government institution through its "own action," rather than through a third-party process? (1) More specifically, when may officials in one branch of the federal government attempt to redress another branch's perceived wrong through means that, but for that wrongdoing, would be impermissible? (2)
The question goes to the core of the separation of powers; both the separateness and the balance of powers among the branches depend upon its answer. Rising levels of partisanship lend it new urgency. Yet the question never seems to get asked, at least not in these terms. American lawyers have not developed a framework for analyzing or administering self-help remedies in constitutional law. Nor have they given much attention to the unwritten practices that shape interbranch struggle more generally. The result, this Article explains, has been an imbalanced discourse around constitutional conflict and constraint--an obsession with the Constitution's formal allocation of authorities, and relative neglect of the informal norms that determine how those authorities are wielded and disputes about them settled.
The issues are abiding, but recent events help to underscore the stakes. Consider three legislative-executive clashes that have generated heated debate:
1. In January 2012, President Obama made recess appointments to top posts at the Consumer Financial Protection Bureau and the National Labor Relations Board. (3) The Senate had been holding regular pro forma sessions during its holiday break in order to foreclose this option, but the Justice Department's Office of Legal Counsel (OLC) opined that the appointments were lawful under "a practical construction" of the Recess Appointments Clause. (4)
2. In June 2012, the Department of Homeland Security announced a policy to stop deportation of, and give work authorization to, some one million undocumented immigrants who came to the country as children. (5) This "Dreamers policy" mirrors the DREAM Act that successive Congresses had failed to pass. The immigration statutes do not exempt this class of individuals from deportation (hence the push for the DREAM Act), but the Justice Department defended the policy as within the scope of delegated prosecutorial discretion. (6)
3. Over the past several years, the Department of Education has granted more than forty states the "flexibility" to pursue educational reform plans that do not comply with central requirements of the No Child Left Behind Act of 2001 (NCLB). (7) The Administration acknowledges that these waivers have effectively rewritten the regulatory framework devised by Congress, but it insists that they are justified by "unintended consequences" of that framework as well as by explicit statutory language. (8)
On one prevalent view, the common thread linking these cases is the disdain they show for constitutional boundaries. The President determines to pursue a legally dubious course of action; he finds executive branch lawyers who will bless his preferred approach; and he forges ahead, heedless of the limits that Congress has placed on him. The episodes, accordingly, "suggest that this president lacks a proper respect for constitutional checks and balances." (9) Abstracting from particulars, they reveal a deep continuity between the Obama Administration and its predecessors in the contingent, instrumental approach taken to the law when important political objectives are at stake.
This narrative is powerful. But like the Administration's official legal analyses, it reflects a dichotomous approach to parsing presidential initiative--as either wholly consistent or inconsistent with separation-of-powers principles, supportive or corrosive of checks and balances--that obscures the dynamism and complexity of interbranch conflict. It also misses some of the most interesting features of the current constitutional period. A more refined set of conceptual tools is needed.
Another reading of these cases is available, and it points toward a more nuanced perspective on the President's relationship to law. On this alternative account, President Obama responded in measured terms to a profound breakdown of the policy process that had come to jeopardize the integrity of repre-representative government. Congress was the constitutional villain. According to the Administration's public narrative, Senate Republicans conceded the suitability of the recess appointees, yet they nevertheless stonewalled the nominations in an unprecedented effort to prevent disfavored agencies from exercising their statutory responsibilities. (10) A majority of both houses voted for the DREAM Act, yet a runaway filibuster nevertheless doomed its passage in the Senate. (11) Congressional leaders from both parties supported overhauling NCLB, yet a "dysfunctional" legislative environment made that goal unattainable. (12)
Underlying these outcomes were the familiar drivers of today's pathological politics: the exceptional levels of internal coherence and ideological purity within the Republican and Democratic camps, the elevation of partisanship above institutional or geographic identity as the defining ethic, the relentless minoritarian blocking tactics, the permanent campaign. President Obama was faced with a Congress whose top Senate Republican had announced numerous times that "[t]he single most important thing we want to achieve is for President Obama to be a one-term president," (13) and whose top House Republicans reportedly gathered on the night of his inauguration to devise a plan to "mortally wound" him through "united and unyielding opposition." (14) This sort of maximalist obstructionism, the President has repeatedly suggested, is incompatible with the traditions of interbranch practice and the assumptions of separation-of-powers theory. (15) It works a serious wrong on the American people and our scheme of governance. At the extreme, it triggers a limited right of reprisal.
On a sympathetic reading, then, President Obama's maneuvers can be seen as a species of constitutional self-help--attempts to remedy another party's prior wrong rather than to ignore inconvenient legal barriers. (16) His actions were meant to be preservative, not usurpative, in nature. The key to unlocking this understanding is the observation that President Obama's denunciations of Congress consisted of more than policy critique. President Obama accused Congress of contravening not only the electorate's political preferences but also basic constitutional conventions, unwritten quasi-legal norms that allow the branches to function. Take this reading far enough, and the President's "We Can't Wait" mantra (17) comes to look less like a populist repudiation of legal limits (as in, "We can't wait for the statutes to say what I want them to say!") (18) and more like an expression of intent to redeem the constitutional order (as in, "We can't wait for Congress to start policing itself and stop destroying our government!").
There are numerous difficulties with this view, both as a description of President Obama's behavior and as a prescription for executive practice. Some unilateral measures have no remedial value. Some are illegal regardless. Nevertheless, this reconceptualization of recent events helps to illustrate this Article's principal claim, which is that many of the most pointed ways in which Congress and the President challenge one another can plausibly and profitably be modeled as self-help rather than self-aggrandizement, as efforts to enforce constitutional settlements rather than to circumvent them. The claim is less radical than it might seem. Even if certain of these efforts ultimately prove inconsistent with the best reading of the Constitution--as some surely will--this does not mean that as a class they defy legal rationalization. Our understanding of such constitutional contestation, I will propose, can be clarified by an analogy to the law of self-help and above all to the international law doctrine of countermeasures.
This study has three main goals. The first is to introduce the concept of self-help into separation-of-powers analysis, with special reference to executive power. Although the concept of self-help plays a critical role in numerous bodies of law, it barely figures as such in constitutional doctrine or scholarship. Part I defines interbranch self-help and identifies it as a significant feature of our constitutional design, as well as a plausible component of a regime committed to the rule of law. In developing these points, I aim to remain as agnostic as possible about the best abstract theory of constitutional interpretation or the separation of powers. (19) The methodology in this Part and throughout is to take constitutional law as it is currently practiced, and to try to reconstruct aspects of its immanent normative structure.
The second goal is to connect the idea of constitutional self-help to the idea of constitutional conventions, and thereby to enable a richer and more realistic portrayal of both. These ideas can illuminate, for example, how and why legislative obstruction triggers executive branch reprisals. Against the backdrop of a constitutional text that assigns Congress hardly any affirmative responsibilities, constitutional conventions arguably impose on House and Senate members a much larger set of duties to the executive and to the polity more broadly. In the gridlocked, agonistic "Age of Dysfunction" that we now inhabit, (20) Part II explains, questions about these duties have taken on additional prominence. Much of today's most vexing political behavior challenges not the interpreted Constitution, but the unwritten norms that facilitate comity and cooperation in governance. Moreover, these developments highlight the instability of the line between the two.
The third and final goal is to draw on self-help law and theory to gain critical purchase on the U.S. government's workings--to introduce an analytical framework that enhances our ability to interpret and assess constitutional conflict in general and the current political moment in particular. The basic dilemma posed by self-help is pervasive throughout public and private law, as Part III explains. Recognizing the distinctive features of other legal regimes should not stop constitutional lawyers from tapping their intellectual resources.
The leading constitutional law treatments of interbranch conflict instead abstract away from remedial practices and justifications, and turn away from legal modes of reasoning altogether. They envision the branches as engaging in "constitutional showdowns" (21) or playing "constitutional hardball." (22) These accounts valuably situate intragovernmental disputes within the framework of welfare economics (showdowns) and American political development (hardball). As suggested by the bellicose sports analogies, however, these accounts have little to say about the remedial framework in which such disputes do or could take place. They are attentive to the potential for legislative-executive struggle to generate new legal and quasi-legal understandings, but not to the ways in which unwritten norms may bear on the struggle itself. The same goes for many of the broader studies that have navigated "the web of documents, practices, institutions, norms, and traditions that structure American government" and comprise what is known as the "small-c" constitution. (23) By allowing us to interpret interbranch conflict in more law-like terms, a self-help perspective allows us to subject this conflict to closer theoretical and institutional scrutiny.
After Part III canvasses regulatory strategies that have been used to discipline self-help, Part IV considers how these strategies map onto interbranch relations. Particular attention is paid to the most developed and apposite body of self-help law, the international law of countermeasures. Applying its standards, we can see more clearly what it is about President Obama's approach to congressional obstruction that is problematic. We can also begin to refine our models of constitutional change and to re-envision other domains of constitutional contestation, such as state-federal conflict and intrabranch conflict. Indeed, the lines between these domains are somewhat artificial; self-help behaviors across the political branches not infrequently respond to self-help behaviors within Congress, and vice versa.
Not only can the law of countermeasures serve as a benchmark for U.S. practice, Part IV explains, but its core prescriptions also align with the conventions that shape and constrain retaliation within the U.S. system. It is not fan ciful, then, to imagine that Americans would draw on international law to fashion parallel principles for domestic self-help, as we have already groped our way to a reasonable approximation thereof. The project of elaborating and enforcing these principles will only become increasingly important if the Age of Dysfunction persists. There is ample reason to expect it will, (24) which makes this an auspicious time to take up the subject of constitutional countermeasures.
I. CONSTITUTIONALLY DERIVED TOOLS AND TYPES OF INTERBRANCH SELF-HELP
A. Definitional Preliminaries
A study of interbranch self-help faces a threshold issue of definition. What counts? In ordinary language, "self-help" may refer generically to "providing for or helping oneself without dependence on others," or more specifically to "the act or right of redressing or preventing wrongs by one's own action ... without recourse to legal process." (25) In legal discourse, the meaning of self-help is no less fluid. Some formulations require a unilateral "attempt to redress a perceived wrong," (26) while others extend to such speculative ex ante measures as locking the door of one's car or walking home on a well-lit street. (27) Another strain of the private law literature construes self-help more narrowly, as the option "to do something that would otherwise be legally actionable in order to prevent or cure a legal wrong." (28)
The fundamental divide concerns whether the self-help label should be reserved for rights and remedies that may be exercised only to cure a wrong that has been or will imminently be done by another. Let us refer to these rights and remedies as conditional self-help powers, and to redressive tools that are not so limited as general self-help powers. Verbally criticizing someone who harms you is a general self-help measure. Physically restraining that person is a conditional one. (29) As Richard Epstein has observed in a discussion of private law, the "question of self-help ... becomes considerably more difficult" with respect to the conditional category. (30) The commission of an act that constitutes a prima facie violation of the law, on the theory that it is justified in response to someone else's violation, is inherently more fraught than the commission of an act that would be lawful regardless.
Translating these points to the separation-of-powers field, a broad definition of interbranch self-help might include any attempt to resolve another branch's wrongdoing in lieu of or prior to third-party dispute resolution. (31) Although this approach is appealingly simple and worth keeping in view, I will focus on conditional self-help as the category of greatest theoretical interest. As Part III explains, the distinctive promise and peril of the self-help concept lie in its capacity to transform what under normal circumstances is impermissible behavior--throwing a punch, breaching a contract, invading another's land--into an acceptable method of enforcement.
Accordingly, I will emphasize an alternative definition of interbranch self-help as the unilateral attempt by a government actor to resolve a perceived wrong by another branch, and thereby to defend a perceived institutional prerogative, through means that are generally impermissible but that are assertedly permitted in context. This definition is not meant to do justificatory work. I say "perceived wrong" and "assertedly permitted" because these self-helpers, like all self-helpers, may misjudge the legality or propriety of the other party's conduct or of their own response. (32) Moreover, as we will see, these self-help efforts are problematic formally as well as substantively, insofar as they involve modes of legislative, executive, and judicial action that are typically thought to be the exclusive province of a different branch.
The extension of self-help to public law arguably raises additional complications. The "self" in interbranch self-help is an aggregate: the interests and entitlements at stake are organizational rather than personal in nature. There is nothing mysterious in this. Collective agents such as corporations routinely engage in activities described as self-help, (33) and the anthropomorphization of the branches is a standard move in constitutional theory. (34) I will consider in Part IV how the branches might be pulled apart, (35) but it is useful and parsimonious to treat them as unitary actors for the purpose of introducing the basic framework.
Is there something nonetheless contrived about characterizing the use of state authority as self-help? The currency of the concept in public international law suggests not. (36) It would indeed be strange to characterize, say, a police officer's power to make arrests as a self-help tool, even if this power is designed to redress legal wrongs. Yet the reasons for this strangeness do not necessarily carry over to other government contexts. Police officers do not make arrests to defend their institution against the encroachments of another institution with which they are in privity or competition; the notion of a self being helped is especially obscure. Making arrests, furthermore, is one of a police officer's core duties; the sense of a deviation from ordinary roles or ordinary law enforcement is entirely absent. The government behaviors highlighted here, in contrast, involve extraordinary exercises of public power by and among coordinate actors.
In short, the idea of interbranch self-help is plausible. But how is it actually carried out in the United States? Before drilling down further into the idea itself, I will provide some context by reviewing ways in which the branches seek to remedy each other's constitutional transgressions. Parts I.B, I.C, and I.D catalog tools derived from the written Constitution that may be deployed for conditional self-help, general self-help, or both. (37) Part I.E introduces additional refinements to the concept of interbranch self-help, setting the stage for Part II's consideration of its role in the murkier yet critically important realm of conventions.
B. Congressional Tools
Congress's remedial toolkit is particularly extensive. When individual members or committees believe that the President has committed a constitutional wrong, they may seek rectification by denouncing her actions under the protective umbrella of the Speech or Debate Clause, (38) blocking or delaying her nominations in the Senate, (39) conducting hearings and investigations, (40) or introducing restrictive legislation and condemnatory resolutions. (41) When one or more houses agrees, Congress may pass those bills and resolutions (subject to potential presidential veto); (42) hold executive officers in contempt; (43) defund particular agencies, programs, and positions; (44) and, in extreme cases, exercise the impeachment power. (45)
Congress's remedial options vis-a-vis the courts are similarly broad, at least in theory. The Article III guarantees of life tenure and fixed compensation protect judges from only the crudest forms of reprisal. (46) When working majorities within Congress believe the federal judiciary has acted wrongfully, they may deny salary increases and cost-of-living adjustments; (47) withhold funding for administrative and institutional supports; (48) expand or contract the courts' jurisdiction; (49) increase or decrease their membership; (50) revise statutes to repudiate interpretations; and, in certain circumstances, exercise the impeachment power (51) or resist the full implications of a ruling. After the Supreme Court invalidated a state criminal conviction for flag-burning on First Amendment grounds in Texas v. Johnson, (52) Congress responded by passing a comparable flag-burning statute and "invit[ing] [the Court] to reconsider." (53) After the Court invalidated "legislative vetoes" in INS v. Chadha, (54) Congress kept using them-and executive branch officials largely, if begrudgingly, kept complying--on an informal basis. (55)
All of the aforementioned tools are made available to Congress by constitutional text and structure, as conventionally understood. Modern commentators may debate their legality at the margins. For instance, many would question Congress's authority to demand certain categories of executive branch information relating to core presidential deliberations, or to strip certain categories of federal court jurisdiction relating to core judicial functions. But as a general matter, few doubt that these tools are legitimate means for Senators and Representatives to try to enforce their vision of the Constitution.
C. Presidential Tools
The President has several undisputed remedial tools of her own. She may use the power of the pulpit to criticize Congress and the courts (56) and to pressure them into adopting reforms. (57) She may use the veto to quash legislation--and the threat thereof to induce Congress to revise or abandon disfavored bills. (58) She may grant pardons or reprieves to individuals convicted under laws or circumstances believed to be unconstitutional. (59)
Beyond rhetoric, vetoes, pardons, and reprieves, presidential efforts to resist the other branches quickly become more controversial. Constitutional lawyers vigorously debate whether and under what conditions executive branch officials may decline to comply with federal statutes, subpoenas, and judicial rulings or decline to defend federal laws in court. History furnishes prominent examples of each mode of self-help. President Thomas Jefferson refused to enforce the Sedition Act, leading to his canonization in First Amendment lore. (60) President Andrew Johnson refused to enforce the Tenure of Office Act, leading to his impeachment. (61) Having unilaterally suspended habeas corpus, President Abraham Lincoln ignored Chief Justice Taney's order granting habeas relief in Ex parte Merryman. (62) President Franklin Roosevelt declined to defend the constitutionality of a law barring salaries for officials thought to be communists, (63) and prepared to defy a Supreme Court ruling (which never came) that would have vitiated his efforts to forestall a wave of bankruptcies. (64) Numerous high-level officials have disobeyed congressional subpoenas under a claim of executive privilege; when those officials subsequently received a criminal contempt citation, the Justice Department refrained from prosecuting. (65)
Recent years have witnessed a surge of interest in presidential action contrary to Congress's will: the "lowest ebb" category of cases identified by Justice Jackson's Youngstown concurrence. (66) While modern Presidents may occasionally depart from the Justices' constitutional reasoning, (67) they never flout Supreme Court orders directed at them, and few lawyers question this obeisance. (68) Yet even as they have ceded constitutional ground to the Court, Presidents have been forcefully asserting their interpretive authority against that of Congress. (69) Vetoes and pardons are just the lower bound. As set forth in a series of OLC opinions, executive branch legal policy now incorporates a general, perpetual claim of right to defy congressional enactments believed to be unconstitutional, including an "enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency." (70) "The Constitution demands of the executive and legislative branches alike an ethic of institutional responsibility," OLC proclaims in its most ambitious statement on the separation of powers, according to which each branch must actively and continuously protect its role "in the overall constitutional structure." (71)
This view has been operationalized in numerous high-profile cases. Within the last decade, President Bush drew significant attention to non-enforcement questions in claiming a preclusive power to disregard the Foreign Intelligence Surveillance Act, the federal anti-torture statute, and other laws seen as impinging on his national security prerogatives. (72) President Obama drew significant attention to nondefense questions by continuing to enforce a central section of the Defense of Marriage Act (DOMA) at the same time that he sought its judicial invalidation. (73)
Presidents also seek redress in subtler ways, without conceding that their actions are at odds with any legislative enactment. Whether or not they conceive of their handiwork in these terms, executive branch lawyers routinely deploy interpretive strategies designed to neutralize congressional conduct. They may invoke the canon of constitutional avoidance to bypass the most natural reading of legal texts that Congress has drafted. (74) Citing resource constraints or case-specific factors, they may invoke principles of enforcement discretion to similar effect. (75) And they may try, more generally, to dissolve apparent inconsistencies between the demands of legality and their moral or practical assessments of Congress's behavior, by incorporating moral or practical considerations into their very conception of law. (76) Of particular note, the turn to functional and custom-based modes of legal reasoning--ubiquitous in the separation-of-powers field--allows criticisms of "unwarranted" or "unprecedented" congressional behavior to be leveraged in support of assertions of presidential power. (77) President Theodore Roosevelt, for example, relied largely on functional considerations in developing the view that the Senate has a duty to approve treaties except in rare situations--and hence that in light of the Senate's failure to provide its prompt advice and consent on an important treaty he had negotiated with the Dominican Republic, he was justified in executing the agreement through a modus vivendi. (78)
D. Judicial Tools
In comparison to its congressional and presidential incarnations, judicial self-help plays only a modest role in our constitutional system. Through the practice of judicial review, the federal courts, of course, periodically determine that legislative and executive actions lack constitutional authority and therefore refuse to give them effect. And from the perspective of the courts, these judgments might be seen as attempts to resolve a perceived wrong by another branch through means that would otherwise be impermissible, albeit in a process that is initiated by a litigant rather than by the court itself. But it would be quite odd to view all these episodes as instances of self-help, the practice of which is identified in contradistinction to judicial dispute resolution. (79) Adjudication is the paradigmatic "nonself" option-the remedial mechanism set up precisely to dispense impartial justice rather than to defend one party's prerogatives--that self-help bypasses. To conceive of interbranch self-help in a manner that swallows judicial review would be to ignore what makes self-help a distinctive mode of enforcement, if not to render the concept all but meaningless.
This is not to say that judicial self-help is an oxymoron. The federal courts may respond to congressional or presidential wrongdoing through less conventional, less disinterested means that plausibly merit the self-help label. Judges might be seen as engaging in self-help, for instance, when they hold government officials in contempt, or when they criticize the political branches to some ameliorative end in extra-adjudicatory speeches, articles, or congressional testimony. (80) It might further be seen as self-help when judges figuratively depart from their assigned role of deciding cases and controversies (81) and level similar criticisms in dicta; or when they bend standard principles of adjudication or interpretation (including justiciability and deference doctrines) in an effort to resist external threats to their own authority. (82) On this understanding, judicial review exercised to consolidate the very power of judicial review, from Marbury v. Madison (83) to Boumediene v. Bush, (84) might be assessed in self-help terms.
Yet while there may be an intriguing debate to be had about the contours of judicial self-help, it is likely to remain a rarefied debate so long as we limit ourselves to irregular or judge-initiated practices and exclude the bulk of judicial review. This Article will focus on the forms of interbranch self-help that are most readily identifiable as such: those that begin, and often end, outside the courts.
E. Additional Distinctions
When convinced that another branch has gone too far, the preceding sections explained, U.S. government actors possess a variety of tools with which to try to restore the constitutional status quo ante. Now that we have a panoptic view, we are in a position to revisit the concept of interbranch self-help and the general/conditional divide highlighted above. (85) Doing so further clarifies why certain maneuvers tend to arouse special concern.
In contemporary practice, each of the political branches enjoys a mix of general and conditional self-help powers. The President's enumerated powers are understood to be general ones. She may veto any bill, pardon any convict, or criticize any congressional act, for any reason or for no reason at all, without running afoul of the written Constitution. (86) In contrast, the President may not decline to enforce a duly enacted law at least unless and until she has determined that enforcing it would be unconstitutional; in the absence of such a determination, nonenforcement would manifestly violate her obligation to "take Care that the Laws be faithfully executed." (87) The only possibly permissible use of nonenforcement is as a mode of self-help, to cure or prevent congressional wrongdoing in the form of a constitutionally defective instruction. (88) The same goes for the nondefense of statutes, noncompliance with subpoenas, and use of the constitutional avoidance canon. (89)
Legislative self-help tends to be less legally constrained, with the important exceptions of impeachment and contempt. Congressional bodies have a number of generally available means with which to resist presidential abuses, including oversight and legislation. But they may not impeach an executive officer or hold her in contempt unless she has committed certain serious offenses (90) or obstructed the legislative process. (91)
As these examples suggest, the conditional self-helper frequently undertakes a type of action associated with a different type of legal actor. (92) The separation of powers becomes less separate. When the President declines to enforce a statute or to apply the most natural reading of it, she may effectively refashion or repeal law in a legislative manner. When members of the House and Senate pursue an impeachment, they exercise traditional forms of executive and judicial power in charging and trying individuals, respectively. When judges inveigh against politicians outside of the adjudicatory process, they themselves act like politicians.
This observation about conditional self-help may generalize beyond the branches. Throughout private law, the iconic forms of legalized self-help tend to involve behaviors, such as violence and trespass, that are thought to be the exclusive province of state officials. The transgressiveness of conditional self-help lies not only in the flouting of generally applicable legal norms, but also in the crossing of generally applicable roles and boundaries.
Some "departmentalists," it should be noted, take the view that the President has no lawful option other than to refuse to enforce measures she deems unconstitutional (and irredeemable through the avoidance canon). (93) From this perspective, it may seem odd to characterize nonenforcement as a conditional self-help power, when it is at bottom a constitutional duty. There is some terminological tension but no contradiction here. Legal powers to exercise a certain special form of authority can also entail duties. Just think of jury duty, or a fiduciary's responsibility to manage another's property, or the various ways in which police officers are charged with using force as part of their job. It may not be accurate on the departmentalist account to conceptualize nonenforcement as a self-help privilege, (94) because of the President's lack of discretion, but it remains possible to conceptualize nonenforcement as a self-help power.
While conditional self-help powers are especially concerning as a matter of law, they are more transparent as a social practice. The contingent nature of their legality generates information about their users' beliefs and motivations. Because presidential noncompliance with duly enacted laws may be permissible if and only if those laws are constitutionally defective, the very act of noncompliance, if acknowledged, reveals the President's underlying critique. Furthermore, because our political culture prizes government legality, at least as a rhetorical matter, (95) such contingently lawful acts are typically accompanied by public explanations. General self-help powers, on the other hand, may conceal their etiology. Congress has near-plenary authority under the Constitution to fund or defund any program run by the Department of Agriculture. If Congress stops paying for a program, the move might represent an effort to redress a perceived constitutional wrong, or it might represent nothing more than a change in policy priorities. Or it might be a hybrid, inasmuch as different members have different motivations for supporting the legislation. The fact of defunding does not itself tell us whether any sort of self-help has occurred.
Beyond the general/conditional divide, other distinctions bear on the legibility and legality of interbranch self-help. Some self-help tools are clearly conferred by constitutional text or rooted in Founding-era practices, whereas others have a more ambiguous constitutional basis. No reader of the Constitution, for instance, could deny the President's power to veto bills presented to her, but serious scholars can and do deny the existence of a presidential power to decline to execute any (or nearly any) duly enacted law. (96) In general, Congress's self-help powers are on more solid originalist footing than the President's. Most of Congress's powers are enumerated, and the two main ones that are not--contempt and oversight--have deep common law roots and are widely seen as implicit in the Framers' design. (97)
Some acts of interbranch self-help respond to encroachments on the self-helper's own powers, whereas others target more diffuse wrongs to the constitutional system or a segment of society. When President Obama asserted executive privilege over deliberative documents relating to Operation Fast and Furious, he emphasized his desire to avert "significant, damaging consequences" to the executive branch. (98) When President Obama declined to defend part of DOMA, he emphasized his desire to vindicate equal protection values. (99) We might call the former type of act direct self-help and the latter proxy self-help. Most of the political branches' remedial tools may be used in either fashion. The only tools that necessarily entail direct self-help are the contempt power and executive privilege. Under black-letter law, Congress may not issue contempt citations and the President may not assert executive privilege except to remedy threats to each branch's own processes or prerogatives. (100)
Proxy self-help is recognized in numerous legal contexts. (101) I may use otherwise forbidden force to prevent imminent bodily harm to the person standing next to me. (102) The United States may use otherwise forbidden force to defend its allies against armed attack. (103) The immediate beneficiary of proxy self-help is not the self that does the helping, but none of the prevailing definitions of self-help require otherwise. (104) Moreover, the very distinction between the helper's and the helpee's interests--and therefore between direct and proxy self-help--is problematic in the separation-of-powers context, given that the branches are engaged in repeat-play relationships with each other and are steered by officials who have taken an oath to support the Constitution. (105) Even if President Obama's DOMA decision was made for the benefit of same-sex couples, it may have also advanced a more general principle of presidential interpretive discretion and reduced the executive's complicity in a disfavored scheme. Even when a President acts to prevent direct harm to the presidency, she may simultaneously claim that she is defending the entire Constitution or the popular will that underwrites her office.
Finally, some forms of interbranch retaliation may be subject to eventual court review, whereas others can be expected to evade judicial resolution. Under current doctrine, for instance, it seems very likely that the Senate's failure to provide advice and consent on a presidential nomination, (106) or its actions in trying the impeachment of a federal officer, raise no justiciable controversy. (107) For its part, presidential nonenforcement of statutes does not always insulate them from judicial review and may in some cases even facilitate it, as when the law's alleged defect is the manner in which it limits executive power. (108) In other cases, however, nonenforcement will preclude adversity and so deny courts the opportunity to resolve the constitutional question. The nondefense option does not carry a similar consequence (at least not at the district court level (109) and for that reason is seen by many commentators as less threatening to rule-of-law values. (110)
A table may help to distill these various distinctions. It is the set of conditional powers, once again, that is of greatest interest and that tracks the narrower definition of interbranch self-help advanced above. (111)
II. SELF-HELP AND CONSTITUTIONAL CONVENTIONS
Defined in conditional terms as the unilateral attempt to redress another branch's wrongdoing through otherwise impermissible means, interbranch self-help thus plays a prominent role in our constitutional system. Defined to include generally permissible behaviors, it plays a pervasive role. These observations prompt a number of normative as well as conceptual concerns. As Part III will explain, conditional self-help opens the door to error and abuse by interested actors, instrumentalization of the law, and escalating cycles of vengeance. Disciplining conditional self-help becomes a central challenge for any legal regime that recognizes it.
The difficulty goes still deeper in the separation-of-powers context. Interbranch self-help attaches not only to legal rules grounded in the Constitution's text but also to a broader set of emergent, quasi-legal norms that organize the workings of government. These latter norms are sometimes referred to as constitutional conventions. (112) To grasp the full scope and significance of inter branch self-help, it is necessary to integrate conventions into the analysis. (113)
This Part explores the intersections among constitutional conventions, interbranch self-help, and the separation of powers. After laying some general groundwork, I will explain how the recent rise in partisan conflict underscores the importance of both conventions and the self-help that emerges when conventions come under strain. Appreciating these dynamics, I will further suggest, can enrich understandings of constitutional construction and small-c constitutionalism generally.
A. Conventions in Constitutional Theory
On the standard view, constitutional conventions (1) are norms of domestic governmental behavior (2) that emerge from decentralized processes, (3) are regularly followed (4) out of a sense of obligation, and (5) are not directly enforceable in court but rather (6) are enforced by political sanctions, if not also by "the internalized sanctions of conscience." (115) Intragovernmental self-help and elections, not judicial review, are the institutional mechanisms to curb violations. Most commentators appear to regard these six conditions as jointly necessary and sufficient, although the literature is rarely clear on the point. (116) Of particular note, there is a broad consensus that political practices lacking any regulative or prescriptive dimension-say, the habit of holding certain meetings on one day of the week versus another--fail to satisfy condition (4). Whether out of sincere normative conviction or a more instrumental concern to avoid backlash, actors not only must follow a convention but also must believe that it ought to be followed; or at least, they must believe that others in the system so believe.
Constitutional conventions are often analogized to the rules of the game. They are rules that distribute responsibilities and facilitate cooperation among "the major organs and officers of government." (117) (This might be considered a seventh necessary condition. (118)) They regulate the "machinery of government." (119) In so doing, they supplement the organic laws' allocation of powers and duties by determining how officials "should actually apply" the discretion they have been delegated. (120) Conventions are often further described as unwritten. Although they may be memorialized in writing, nothing critical turns on this, as conventions generally owe their existence, maintenance, and influence to practical dynamics and evolutionary forces. The fact of memorialization may turn out to be otiose.
Depending on one's conception of politics and law, constitutional conventions might be considered a special class of political norms (that give rise to extrajudicial sanctions when breached) or a special class of legal norms (that do not give rise to judicial sanctions). (121) Or they might be thought to sit somewhere in between the two. (122) On the one hand, constitutional conventions resemble legal norms in their regularity, normativity, and disciplining effects on public actors. Like laws, conventions, where they obtain, are typically thought to provide content-independent reasons for compliance. (123) On the other hand, conventions differ from most domestic legal norms in their autonomy from authoritative texts, interpreters, and enforcers. Like principles of political morality, no designated actor can create or vindicate them.
Conventions, moreover, may vary in clarity, scope, and strength, both relative to each other and over time. (124) The practice of Presidents' limiting their tenure to two terms was, for many decades, seen as "central to the maintenance of the U.S. constitutional project." (125) By the end of President Grover Cleveland's second, nonconsecutive term, questions about the meaning and wisdom of this practice began to arise, culminating in its apparent override by President Franklin Roosevelt (who won a third consecutive term in 1940) and subsequent codification in the Twenty-Second Amendment. (126) The convention of a two-term presidency helped coordinate the highest levels of U.S. politics for over a century; underwent a period of contestation and deterioration from the late 1800s to 1940; and ultimately emerged, stronger than ever, as formal law.
Constitutional conventions are primarily associated with the "unwritten constitutions" of Commonwealth countries, following the pioneering work of A.V. Dicey, (127) but analogous ideas have played a recurring role in American constitutional theory. In the late nineteenth and early twentieth centuries, a number of prominent U.S. authors probed "the real constitution" that had developed organically to supplement (or replace) the canonical document. (128) A generation ago, commentators such as Jesse Choper, Louis Henkin, and Louis Poliak criticized government practices as "anticonstitutional in tradition, if not unconstitutional in law," in terms evoking the law/convention distinction. (129) Within the last decade, a small group of public law scholars, including Adrian Vermeule and Keith Whittington, has begun to mine the Commonwealth literature on conventions. (130) As Whittington has observed, American constitutional conventions might be viewed as a mode of constitutional construction. Whereas constitutional interpretation, for Whittington, seeks to recover the semantic content of the Constitution's text, constitutional construction "seeks to identify how constitutional meaning and practices are developed in the interstices of the constitutional text, where discoverable meaning has run out." (131) Conventions help to organize public life in what Lawrence Solum calls "the construction zone," or the vast domain in which the text underdetermines outcomes. (132) They help to shape a normative order in which representative politics is transacted. When they are violated, they trigger responses and counter-responses that ultimately stabilize or destabilize that order.
Understood this way, it quickly becomes apparent that conventions, and the intragovernmental self-help that backs them up, ought to be of interest to a much larger group of scholars. Some of the most ambitious projects in constitutional theory today explore the United States' small-c constitution: the relatively stable set of rules, practices, and arrangements that are not housed in the constitutional text but nonetheless are thought to serve a constitutional function "because they are important to the structure of government or because they reflect fundamental American values." (133) While small-c theories come in many different stripes, they share a commitment to assimilating into constitutional analysis "all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state" (134)--and therefore a commitment, at least in principle, to thinking systematically about constitutional conventions.
B. Separation-of-Powers Conventions
In the United States, many constitutional conventions serve to organize relations and promote cooperation among the coordinate branches. (135) We might call these separation-of-powers conventions. (136) A narrow view of this category would include only those conventions that impose linked obligations on actors from multiple branches. A broader view--which I will adopt--could also embrace those non-judicially-enforceable norms, such as Senate filibuster norms, that regulate behavior within a certain institution of government, yet in so doing substantially shape the way that institution interacts with another branch.
Some additional examples will help to crystallize the basic idea. When modern Presidents believe the Supreme Court has misconstrued the Constitution, they nonetheless acquiesce in its judgments; (137) Presidents seek to control the courts, instead, through the appointment process. (138) This is part of the convention of judicial supremacy over constitutional interpretation. When working majorities within Congress disapprove of the federal courts' rulings, they too exercise restraint, hardly ever using their powers over court size, structure, administration, and procedure in a punitive fashion. (139) "Court packing" is especially out of bounds. This is part of the convention of judicial independence. When Presidents are deciding on certain nominations, including district court judgeships and other local positions, they consult with the home-state Senators from their party. (140) This is the convention of senatorial courtesy. When Presidents intend to make recess appointments, they inform Senators beforehand, (141) and they do not install individuals in posts for which they have previously been voted down (not just filibustered) by the full Senate or the relevant committee. (142) Senators, in turn, show substantial deference to the President's selections for executive offices, particularly in cases of cabinet nominations and nominees who have served in Congress. (143)
The budget process incorporates a number of interlocking conventions. At a global level, Congress ensures that the other branches have sufficient funds to function. Budget negotiations may generate political brinksmanship, but major appropriations cutoffs are not threatened or used absent exceptional circumstances. (144) Executive agencies treat as authoritative the spending instructions contained in the committee reports that accompany "lump-sum" appropriations and authorization bills, even though these reports lack the force of law. (145) Agencies also typically seek informal approval from an appropriations committee before they move unobligated funds from one activity to another within a given account, even when they possess statutory discretion to do such "reprogramming." (146) The framework statutes that govern the various phases of the budget's preparation have been characterized as "codifying norms and practices that first developed informally." (147)
More diffusely, a slew of conventions regulate the flow of information between the political branches. Agencies are expected to communicate with designated congressional committees about notable developments and activities. Some agencies and their congressional overseers have developed protocols for sharing discrete types of information: for instance, the State Department periodically furnishes the House Foreign Affairs and Senate Foreign Relations Committees with a list of significant international agreements that have been cleared for negotiation. (148) When a congressional body seeks sensitive documents from an executive branch component, both sides engage in an "accommodation" process of consultation and compromise before threatening to issue a subpoena or to assert a nondisclosure privilege, respectively. (149) Executive branch officials who testify before Congress respond, in writing, to the "questions for the record" that they receive following the hearing. (150) Within the first two months of each legislative session, the President comes to the Capitol to deliver a State of the Union Address that is pitched, at least superficially, in nonpartisan or bipartisan terms. (151)
On certain readings of the Constitution, some of these examples may seem better characterized, not as conventions, but as obligations that are implicit in the document's design or otherwise legally binding. There is no escaping this ambiguity: the line between convention and law is destined to remain hazy under prevailing norms of constitutional argumentation. (152) This is especially true in the separation-of-powers field, given the relative dearth of judicial enforcement (153) and the plasticity of leading interpretive approaches. When in a functionalist mode, the Supreme Court asks (and, following the Court, government lawyers ask) whether a development '"impermissibly undermine[s]' the powers" of a branch (154) or '"disrupts the proper balance between the coordinate branches.'" (155) Lacking any clear conception of "balance" to undergird it, (156) this inquiry potentially legalizes all manner of interbranch grievances. When in a customary mode, the Court asks whether a practice has been "systematic, unbroken," and "long pursued" with the knowledge and acquiescence of the relevant branches. (157) Lacking any clear conception of what counts as historical practice or institutional acquiescence, (158) this inquiry is no less slippery. "Ethical" appeals to the character of the American polity, (159) although less common, may further obscure the line between Constitution and convention.
Moreover, even as executive and congressional officials operate in such an accommodating interpretive culture, they simultaneously inhabit a sociocultural environment that prizes notions such as tradition, prudence, and checks and balances. Ideals of cooperation and comity suffuse their sense of role morality. Beliefs about legal obligation, consequently, may be all the more apt to merge with beliefs about political obligation in the domain of interbranch interaction. The effort to distinguish "legally normative" constitutional conventions from "other normative" constitutional conventions may be not just conceptually fraught but psychologically naive. (160)
Whatever the best way to characterize these practices, the examples above suggest that they are closely bound up with interbranch self-help. More specifically, self-help not only polices violations of convention but is also itself subject to conventional constraints. The two are partially co-constitutive. Senators who conclude that the President has failed to abide by the norm of senatorial courtesy may vote against the President's nominations. The threat of retaliation sustains the norm. (161) However, Senators who conclude that the Supreme Court has acted wrongfully do not (in this era) threaten to create more justiceships. The convention against court packing is, among other things, a limit on how legislative and executive self-help may be exercised.
As the examples further suggest, constitutional conventions do more than generate limits on discretion or entitlements to act in certain ways. They also impose some affirmative obligations. (162) The President must ensure that the Senate is apprised of anticipated recess appointments and that congressional committees are kept informed about the agencies they oversee. Congress must do its part to ensure that those agencies are adequately staffed and supported. More nebulously, members of both branches seem to accept (if not always honor) the principle that they are to engage each other in a spirit of constitutional good faith, pursuant to an ubernorm of comity and forbearance.
The imposition of affirmative obligations on Congress is especially notable, because the text of the Constitution is all but silent in this regard. The text sets forth numerous legislative powers and limits on those powers. But except for the largely inert Guarantee Clause, (163) the Constitution's plain language does not instruct Congress to pursue or accomplish any particular ends, much less to facilitate the presidency. (164) The written Constitution gives Congress the option to do many things--regulate commerce, levy taxes, establish lower courts, and so on. The unwritten Constitution, in the form of constitutional conventions, gives Congress the responsibility to exercise some of those options, with due regard for the other branches.
C. Obstruction, Retaliation, and Construction
Most of the separation-of-powers conventions described in the preceding section remain as sturdy as ever. Other conventions centered in Congress, however, have unraveled to some extent in recent years. Our politics seems increasingly riven by partisan forms of constitutional hardball. (165)
The basic story is well known. In the Senate, filibusters were traditionally understood as an exceptional measure, "the tool of last resort." (166) By the early twenty-first century, they had become standard for many nominations and virtually all significant pieces of legislation. (167) "Holds" on nominations and bills likewise appear to have become much more common and much longer in duration. (168) Once used primarily for expressive purposes, the hold has become a de facto veto. Senators from both parties historically deferred to the President's nominations for sub-cabinet executive offices and (to a somewhat lesser degree) judgeships. Opposition-party Senators are increasingly likely to contest these selections, even where the individual's competence and integrity are conceded. (169) Senators also used to vote on a larger share of nominations. Rather than thwart them through inaction, the Senate held up-or-down votes on candidates for senior executive branch positions who had made it out of committee. (170) The deterioration of conventions transcends Senate procedure. For instance, it had long been taken for granted that the debt ceiling would be raised by statute as necessary, until House Republicans threatened in 2011 to force the government to default on its existing obligations unless President Obama acceded to future deficit reductions. (171)
These developments have led some to conclude that we have entered an Age of Dysfunction, in which gridlock has destroyed legislative capacity and "[t]he nation's political system seems completely incapable of solving, or even grappling with, its most pressing problems." (172) This conclusion is disputable. The origins and effects of each development are complex, and congressional conflict and partisan rancor are not new phenomena. As described above, numerous separation-of-powers conventions appear to remain intact, while others--such as the norm against Presidents' concealing the very fact of statutory noncompliance or the norm against partisan impeachments for non-felony offenses--are plausibly characterized as having been tested by recent challenges but ultimately reaffirmed. (173) Senate Democrats have now revised the chamber's rules to limit filibusters for executive branch and lower-court judicial nominations. (174) The convention against holding the debt ceiling hostage appears to have been restored. (175) Current levels of gridlock might not be so dire in light of historic baselines or popular preferences. (176) We may be in a temporary moment of transition. (177)
What is not much in dispute, however, is that the Senate has become increasingly polarized, individualistic, and time-constrained; that these dynamics have exacerbated collective action problems in that body and in Congress more generally; and that the resulting forms of obstructionism strike many observers as a threat to the efficacy and integrity of the political process. There is, in short, a widespread fear that the breakdown of certain separation-of-powers conventions is contributing to a breakdown of our system of representative government.
Enter self-help. The President has not sat idly by as these conventions have deteriorated and elements of Congress have "engage [d] in strategies of obstruction and confrontation that well-socialized politicians might not have attempted in the recent past." (178) To the contrary, he has made increasingly bold unilateral moves. From the outset, President Obama determined to follow his predecessors in refusing to enforce appropriations riders that would have limited his diplomatic flexibility. (179) He has asserted executive privilege over deliberative documents sought by the House Committee on Oversight and Government Reform. (180) After some hesitation, he invoked the canon of constitutional avoidance to preserve (181)--and then exercise (182)--an option to bypass Guantanamo detainee transfer restrictions.
Above all, though, President Obama has employed self-help tactics that are not predicated on a showing of a large-C constitutional violation by Congress. (183) Faced with a Republican Party that "has, at every conceivable juncture, frustrated the [Affordable Care Act's] implementation" and that would undoubtedly block new legislation to clarify or fortify its terms, his Administration has used "myriad delays, waivers, and creative reinterpretations" to salvage the statute. (184) Beyond health care, numerous executive agencies have used statutory waiver provisions to effect "nearly wholesale administrative revision" of major regulatory initiatives in fields ranging from the budget to education to welfare policy. (185) Other agencies have "pooled" their powers "to do things they could not otherwise do" in the absence of new legislation. (186) In the area of foreign policy, the Administration has increasingly bypassed Congress through "stealth multilateralism," pursuing nonbinding international agreements that do not need legislative approval and participating in international institutions tied to treaties that the Senate will not ratify. (187) The Department of Homeland Security has overseen an "extraordinary" mass release of immigration detainees in advance of sequestration--ostensibly to save money but perhaps also to counter House Republicans' efforts to trim the federal budget and thwart comprehensive immigration reform. (188) As noted at the Article's outset, President Obama has also relied on highly contestable interpretations of the Recess Appointments Clause and the immigration laws in installing blocked executive branch nominees and implementing parts of his domestic policy agenda. (189) The President's entire "We Can't Wait" campaign (190) can be seen as an advertisement for executive self-help in response to a Congress that, according to Obama, will not "do its job." (191)
The general pattern transcends this President and these examples. Obstructionism does not simply paralyze politics in a system of separated powers. It also generates its own correctives, through interbranch (and intrabranch) self-help. (192) Aggrieved officials cease to follow ordinary norms of cooperation and constraint. Whether or not it is lamentable, this dynamic is perfectly predictable once we attend to the tools and incentives of the actors within each branch, as well as the role of constitutional conventions. As Jon Elster notes, if a violation of a putative convention "causes no reaction," then the convention "never existed in the first place." (193)
President Obama's congressional antagonists do not necessarily concede that they have violated any operative conventions or otherwise triggered his conditional self-help powers. Indeed, taking a longer view, one might characterize the rise of obstructionist tactics within Congress as an emergent form of legislative self-help, in response to an antecedent rise in executive power that itself threatens the interbranch balance. There is no value-neutral baseline from which to assess competing charges of constitutional aggrandizement or abdication. (194) There is no value-neutral baseline from which to assess self-help claims more generally: the validity of a conditional self-help measure always depends upon an evaluation of the other party's conduct as well as the measure itself, and the two sides may hold very different views as to the former. They may disagree about the underlying law or facts, or about the relevant time frame for considering the facts. (195) A self-help lens may be able to facilitate positive and normative analysis, but it cannot in itself justify President Obama's--or anyone else's--actions.
Congressional Republicans have, in turn, greeted some of President Obama's self-help measures with retaliatory efforts of their own. To list just a few such efforts, members of both houses have made countless speeches assailing the President for overstepping the bounds of his constitutional role. (196) The Senate Foreign Relations Committee reported out a resolution repudiating the President's position that U.S. armed forces deployed to Libya were not engaged in "hostilities" under the War Powers Resolution. (197) Senator Ted Cruz and others have employed a battery of unorthodox procedural maneuvers in a campaign to defund "Obamacare." (198) And the House Financial Services Committee refused to accept testimony from Richard Cordray on the ground that his recess appointment to be Director of the Consumer Financial Protection Bureau was constitutionally invalid. (199) Congress may be hampered in its use of certain self-help tools by the same collective action problems that contribute to gridlock in the first instance, (200) or by an ethic of court-centrism that contributes to a preference for judicial dispute resolution. (201) But legislators who are not from the President's political party have been actively deploying those tools that do not require bipartisan support.
As recent events underscore, while self-help may be a conservative practice inasmuch as it seeks to reestablish some prior equilibrium, it can also be an engine of legal and political creativity. Government actors may reconceive of their traditional habits, authorities, and obligations in light of their counterparts' perceived transgressions. In 2007, Senate Democrats pioneered the use of pro forma sessions to block recess appointments during intrasession breaks; the move was necessary, the Senate Majority Leader said, to get the nominations process "back on track." (202) In 2010, President Obama's Solicitor General appeared to concede the constitutional efficacy of this tactic. (203) Less than two years later, OLC took a contrary position in the case of Cordray, based on a "practical construction" of the Recess Appointments Clause and its role in the separation of powers. (204)
The details here may be surprising, but OLC's bottom line is not. As explained above, under prevailing norms of constitutional argumentation in the separation-of-powers area, allegations that another branch has engaged in unprecedented or destructive behavior can almost always be mobilized to support a claim of enhanced discretion. (205) And so President Obama's defenders could insist that his recess appointments struck "a badly needed blow for checks and balances," as the Constitution "is not blind to the threat of Congress's extending its internal squabbles into a general paralysis of the entire body politic." (206) Through self-help, politicians may advance novel constitutional propositions or practices without conceding any break with the past. They innovate under the mantle of restoration.
The creativity unleashed by self-help can be more radical still. Matthew Stephenson has recently argued that, in response to "[e]xcessive Senate obstructionism," the President ought to construe the Senate's failure to act on certain executive branch nominations as implied consent. (207) Under current understandings of constitutional law, this argument is outlandish. (208) Yet if Senate obstructionism persists and comes to be seen by many as an urgent threat, the argument may gain traction. (209) Few issues are ever definitively settled in the "massively iterated--indeed, endless"--game that is the separation of powers. (21)" I noted above that constitutional conventions can be understood as a mechanism or modality of constitutional construction. (211) Interbranch self-help offers an additional, overlapping tool of construction. Even as the prospect of retaliation serves to entrench certain constitutional norms, the actual exercise of self-help may disrupt others.
If this characterization of American constitutional practice is accurate, or substantially so, then there is cause for concern. It is not at all obvious a priori that interbranch self-help will turn out well. Perhaps such self-help will tend to under-protect customary norms that embed the accumulated wisdom of many actors and ages, serve a valuable settlement function, or reflect important tenets of political morality. Perhaps it will generate avulsive tit-for-tat behavior. Perhaps it will systematically advantage the President over Congress. Perhaps it will breed more, not fewer, violations of law and convention. In the absence of second-order norms to govern how the branches may retaliate against one another, self-help may be just as likely to unsettle as to secure rule-of-law values.
Does the United States have any such second-order norms? Could they really curb institutional aggrandizement and tame constitutional conflict? To understand how self-help may be aligned with systemic goals, it is useful to turn to legal regimes that have engaged these sorts of questions more deeply.
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|Title Annotation:||Introduction through II. Self-Help and Constitutional Conventions, p. 2-48|
|Author:||Pozen, David E.|
|Publication:||Yale Law Journal|
|Date:||Oct 1, 2014|
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|Next Article:||Self-help and the separation of powers.|