Reading and Discussion: Constitutional Hardball

by Kagro X

Whenever I'm looking to put the political plays of the Bush "administration" in long-term context, I point people to "Constitutional Hardball," (PDF) a law review article written by Georgetown now Harvard Law Prof. Mark Tushnet. I think it's a real eye-opener for those who might otherwise advocate simply waiting out the Bush gang, and "fixing" the problems they've created at the ballot box. What is constitutional hardball?

A shorthand sketch of constitutional hardball is this: It consists of political claims and practices -- legislative and executive initiatives -- that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.³ It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents' victory would be a serious, perhaps permanent setback to the political positions they hold.

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³ By this I mean the "go without saying" assumptions that underpin working systems of constitutional government. They are had to identify outside times of crisis precisely because they go without saying. (An alternative term would be conventions.)

How do you know when it's happening?

One way to distinguish periods of ordinary politics from periods of transformation is that during the former pre-constitutional understandings are taken for granted, whereas during the latter such understandings are brought into question.

And what's really going on when it's happening?

The idea is that the institutional arrangements characteristic of a particular constitutional order -- characteristic, that is, of each specific period of ordinary politics -- are the presuppositions accepted by all politically significant actors in that period, whereas the whole point of constitutional transformation is to alter the previously taken-for-granted institutional arrangements. Of course the proponents of transformation are going to place pre-constitutional understandings in question, because they want to replace those understandings with others.

How does this relate, exactly, to today's situation? Read on after the jump.

Tushnet provides an illustrative example:

A crude example, far more crude than a full analysis would be: Prior to the New Deal, Congress initiated legislation subject to modest review by the President, whereas after the New Deal the President initiated legislation subject to modest review by Congress. And, during the  transformative period when Franklin D. Roosevelt was attempting to construct a new constitutional order, his efforts to seize the legislative initiative were understood to be challenges to settled pre-constitutional understandings about the relation between President and Congress -- and, as such, revolutionary.

Tushnet's article dates from 2003. How might we illustrate the concept of constitutional hardball today? Would we conclude that the Bush "administration's" assertion of broad, unconstrained executive power -- including the power to abrogate federal law (like FISA) -- constitutes an example? How about this "administration's" understanding and use of signing statements, no longer used merely as markers denoting the President's position on matters of constitutional law, but rather as policy directives to the entirety of the executive branch as to how to interpret and execute the law? The novel concept, driven by Tom DeLay (with Jack Abramoff's money), that Republican-controlled states could and should redraw their Congressional districts in between the accepted ten year intervals, purely for partisan advantage? The application of political litmus testing to the appointment of U.S. Attorneys? The White House's assertion that its senior officials are not subject to the subpoena power of the Congress? Or perhaps the Military Commissions (read: Torture) Act?

Political actors can play constitutional hardball with substantive principles. Proponents of a constitutional transformation will propose legislation that pushes the envelope of existing constitutional doctrine. The proposed statutes will not be obviously unconstitutional, because constitutional hardball consists of actions that are plausibly defensible under existing constitutional doctrine. But, they will signal that their proponents have a substantially different understanding of government's role than had seemed settled. And, importantly, the proposals, if enacted, might have the effect of enhancing the political strength of the coalition seeking to change the constitutional order.

So what does it look like to lose a "game" of constitutional hardball?

The high-stakes characteristic of constitutional hardball shows that hardball is an element of the more general phenomenon Jack Balkin and Sanford Levinson identified as partisan entrenchment. According to Balkin and Levinson, large-scale changes in deep institutional arrangements occur through a process of partisan entrenchment. Balkin and Levinson focus on partisan entrenchment in the courts. "When a party wins the White House, it can stock the federal judiciary with members of its own party, assuming a relatively acquiescent Senate." In doing so, the president extends his party's policy positions, and its positions on the meaning of the Constitution, over a much longer period than his own presidency. And, once the judges are in place, "they start to change the understandings of the Constitution that appear in positive law." For Balkin and Levinson, partisan entrenchment means that "[p]arties who control the presidency install jurists of their liking -- given whatever counterweight the Senate provides." The process of partisan entrenchment should, I believe, be understood more broadly than Balkin and Levinson's initial presentation. The full process of partisan entrenchment has several stages, in which control of the courts in only one phase. First, proponents of a particular set of arrangements gain control over one component of the government. They then use that control to devise mechanisms that ensure their continued control of that component. For example, they might develop ways of implementing civil service regulations, intended to eliminate eliminating partisan influence on the lower levels of the bureaucracy, so that lower-level bureaucrats are in fact committed to a particular partisan program.

U.S. Attorneys replaced -- without Senate advice and consent -- according to partisan litmus tests?

Or, perhaps more important, they set their substantive legislative or executive agenda to attract strong support from some, and to demobilize their opponents.

Huge and lopsided tax cuts for the "base?" The enormous shift of federal grant resources from community-based to "faith-based" organizations?

Further, those who control one component of the government try to leverage that control into taking control of other components.

Mid-census, partisan redistricting plans approved by Justice Department political operatives despite unanimous opposition from career civil servants in the Voting Rights section? Federal and local law enforcement using "enhanced powers" of surveillance to infiltrate and undermine opposition activists? The use of highly politicized U.S. Attorneys' Offices to strategically prosecute local Democrats? And what are the stakes involved in losing such a "game?"

The stakes are high when politicians play political hardball, that is, because the politicians believe that the winners might end up with permanent control (meaning, control for the full time-horizon of today's politicians) of the entire government. The winner of constitutional hardball takes everything, and the loser loses everything.

Pretty serious, wouldn't you say? And yet, it is precisely the Serious People -- that is, the political punditry and the forgers of the Conventional Wisdom -- who counsel us to ignore the dynamics of constitutional hardball, to seek the "middle ground," and prize the art of "bipartisan compromise." What might be the result of such an asymmetrical response? Tushnet answers:

I suspect that most readers are likely to think that there is something distasteful about constitutional hardball as a process. After all, playing for keeps in politics is, it might be thought, a recipe for social disaster, leading at the extreme to genocide and annihilation of the enemy. Even short of that, constitutional hardball might lead to unpleasant personal relations among politically active people. And, as L. Michael Seidman has emphasized, playing for keeps might be wrong just because it fails to acknowledge the possibility that one's political-constitutional opponents might actually be right about the Constitution -- a possibility that, according to Seidman, is ever-present. Note, though, that some of these normative questions are not about constitutional hardball itself, but are about what happens when someone wins the game. Consider, for example, the sheer distastefulness of constitutional hardball. That problem could be eliminated after constitutional transformation occurs -- after, that is, we emerge from the tunnel into the new constitutional order. Then, the politicians having control of the government can revert to ordinary constitutional politics, and their opponents can, like Eisenhower and Nixon in 1960, play the game on the winners' terms, hoping to pick up a victory or two themselves. If our normative misgivings are founded in simple distaste for constitutional hardball, exacerbated by the fact that politicians have been playing it for more than twenty years now, we can take solace in the possibility that someday the Republicans might win.

So, what do you say, folks? Shall we bide our time and rely on the courts to fix it all for us? Will oversight and exposure of the Nixon/Bush doctrine be enough? Will Americans finally and miraculously simply awaken to the realities of constitutional transformation? Did the Clinton impeachment really make us so afraid of the process itself that it should be considered unavailable to us in combating the constitutional-level game undertaken by Republicans? Is this really something we can actually debate our way out of? Can we really afford to head into 2008 under the banner of "bipartisan cooperation?"

Comments

[Mimikatz]

It is unfortubnately going to take quite a bit to make impeachment seem like a palatable solution. Impeachment ought to start with Abu Gonzales, if he won't resign after he (presumably) lies to Congress on April 17.

The Dems can then set up confrontations by not approving any more bad appointments AND not going on a formal recess until the end of the year. For example, if all objectionable Bush judicial appointments were forced to be recess appointments, none would survive Bush's term, and none would serve longer than a year.

On Iraq funding, Congres sshould fund in 3-4 month increments, depending on the progress Bush reports. otherwise he will just ignore any need to make progress reports. They can start holding the budgets of several agencies hostage. If necessary, they can give large block grants to states to perform some vital services.

The errors Gingrich made were to appear petulant, but also to refuse to fund the entire government after Clinton's veto. The Dems, if they are careful, can do it agency by agency and appointment by appointment.

And, of course, continue the investigations, because the Bushies are hanging themselves as it is.

[Kagro X]

I think Tushnet's point is that if palatability is the goal, you might as well just surrender to the new constitutional order and be happy to do so.

I have my doubts about whether Gonzales will bother lying to Congress outright on the 17th (no bets on what he might do on other dates, if any). My guess is that the play is to come with a constitutional hardball full-court press, and that he will instead come to lecture the committee about the "real" presidential prerogatives involved, and that political litmus tests for U.S. Attorneys are well within those prerogatives. That will leave us gasping for air and clutching at our breasts, but ultimately frozen in our tracks, because the remedies available to us are too unpalatable. Unless he outright lies to us, we won't know what to do.

On Iraq funding, I'm beginning to wonder what the down side is for Bush to simply accepting whatever unrestricted funding we're willing to give him. I know the idea is to make him come back to the well often, and that the assumption is that Iraq will eventually disintegrate to the point where Republicans will eventually pull the plug. But I'm not certain Bush cares. Nor am I certain that he necessarily believes he needs Congressional authorization to continue the war.

That's why I think this article is such a timely read. I think it warns us to the possibility that we may be playing an entirely different game than our opponents.

[profmarcus]

personally, i don't give a rat's ass about what it takes to "make impeachment seems like a palatable solution," and, furthermore, i don't even care if impeachment is the vehicle... the constitutional crisis that has been intensifying since the scotus decision of 12 december 2000 is altering the very foundations of the united states and transforming my country into something unrecognizable... "bipartisanship" when dealing with criminals intent on turning the u.s. into a one-party, authoritarian state, with an all-powerful chief executive/commander-in-chief committed to a state of permanent war is simply not acceptable, and waiting until 20 january 2009 is simply too long...

i am convinced that one reason bush is so intent on keeping gonzales around is that gonzo serves as something of a firewall, shielding bush from exposure to the most egregious offenses - e.g. "constitutional hardball" - pushed in large part by the justice department... with gonzo gone, bush will be massively exposed to the very real possibility that the floodgates will open... with that in mind, i think the longer alberto stays on, the more likely that the pressure behind the dam will continue to build, and, when it finally gives way, katy bar the door...

my hope, call it my fantasy, is that there will be revelations so dramatic, so incriminating, so absolutely undeniable, that a bush/cheney resignation will be a given, or, if not, impeachment will be accomplished in short order... god, i hope so... we can't afford another DAY of this administration, much less waiting until january 2009... lest we forget, bushco telegraphed its intentions BEFORE the november elections (see below), and, so far, they have not deviated one iota... from time magazine, october 2006...

In fact, when it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist describes as "a cataclysmic fight to the death" over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is "going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation."

http://takeitpersonally.blogspot.com/

[J-Ro]

Thanks for that link Kagro. I think this kind of discussion is especially important given that neither Bush or Cheney is running in 2008. The democrats don't feel nearly as threatened, given that even if a Republican wins (and that's a pretty big if at this point), they will be of a very different sort than the current administration. The temptation to wait it out (and thus not impeach) must be huge! And if you think of it in terms of political strategy it makes sense. No possible fallout from a partisan impeachment process and no bad press if you lose.

But, as you point out, the consequences are a bit longer lasting. The effects of Bush's policies will be felt subtly and powerfully for a long time. It bears keeping this in mind when planning strategy, though regrettably the short term thinking wins out most of the time.

This has got me thinking...I may have to explore this idea further. Thanks!

[P J Evans]

I have a friend who keeps saying 'impeachment will too long because of all the hearings'. What about all the times that Bush and Cheney have said, publicly, that they're breaking the law and will continue to break it? Shouldn't those admissions in themselves be sufficient evidence for impeachment?

I want the GOoPers to be a minority party for, oh, the next fifty or sixty years. Just to make sure that these people never have power again.

[notjonathon]

We've known for a long time that the goal of this Maladministration is power alone. As far back as I can remember (which is perhaps farther back than Sara can remember), colleges have been the training ground for Republican dirty tricks--after all, both Haldeman and Erlichman were older than I. At Stanford in the early 60's, the YAF and the Young Republicans were constantly trying to steal college elections, tittering and giggling among themselves whenever one of their mud pies struck an opponent.

In this Ender's Game environment, it was only a matter of time until all the pieces would come together--Adolf Bush, Hermann Cheney, Heinrich Rumsfeld and Josef Rove--to take a perpetual minority party and forge parliamentary victories that enable it to hold onto power.

[knut wicksell]

At this point, I am almost ready to welcome Hillary with all the powers plus Gitmo to send the thugs down for a tropical vacation (with really good food, according to the rethugs).

[Publicus]

The Constitution is important, but the MOST important part is the Preamble——because it describes the PURPOSE of the Constitution. Our Constitution is designed to secure the blessings of liberty for ourselves and our posterity. Of similar importance is the Declaration of Independence which describes the reasons why we have a country——to protect our unalienable rights.

When people try to interpret the Constitution in ways that conflict with its purpose——for example, by concentrating too much power in the hands of the president——they are traitors to the purpose of this country. They are friends of tyranny and enemies of liberty. This is not patriotism——it is the very antithesis of patriotism.

So, when I see flag-wavers talking about supporting the troops——but do battle against the laws which preserve our liberty——I know exactly who I am dealing with; idiots and traitors.

True patriots will always fight to prevent tyranny and preserve our unalienable rights. (I see ridiculous Supreme Court decisions where the subject is "who has the jurisdiction" to violate our unalienable rights. The correct answer is: no one.)

I know how bad Bush is; but I will always stick with the patriots; things have been bad in the past, just as they are trying now...but we will win again.

[mainsailset]

This country simply does not have the luxury of tolerance any longer. Waiting, standing by or wishing upon a star are immature responses to a deadly serious hole we are in.

It goes without saying that in order to begin to correct what this administration has achieved it must first be arrested. Unlike Bush, Rove & Cheney's perspective, the methods used must be entirely legal - the more so the better as it is the rule of law that needs to be preserved. I'm not buying the big reason to decline impeaching Bush as Cheney's next up anymore. It simply rings hollow.

[Sara]

I think it far more productive to move this issue into the arena of questions lobbed at the Presidential Candidates, (and force answers by asking them over and over again), than expecting somehow, that 67 votes in the Senate will be there if the work is done to impeach in the house, and then try in the Senate vis a vis either Bush or Cheney. Gonzales -- yea, I can count to 67. If he lies one more time -- into the hopper with a resolution in the House about impeachment of Gonzales.

In some situations it is worth the effort to pass bills, knowing that you can't get the other house or that there will be a Veto, and you don't have numbers to get past a veto. That, at times, can be about projecting what your program would be in the future with a few more Senators and Rep's and a different President. But most of the time, if you ain't got the votes or near the votes, it is bad policy to push something that is a time waster. The Republicans did not in any way benefit from an impeachment of Clinton when they never had the numbers for conviction -- and it would be just as stupid to proceed against Bush/Cheney now, as our numbers are pretty similar to where the Republicans were in 1997. What is it they say about now shooting at the King unless you have a guarenteed good shot???

But the Constitutional issues need to be re-written for normal American Voter Consumption. Remember, all too many of our target audience never had a decent Civics course, or it was First Period in the morning, and they were still asleep. We need to find a way to teach remedial Civics and Constitutional Law without belittling the audience. Right now they just don't like or trust Bush -- they are not sure why they have arrived at that point. Turning this to asking questions of the candidates -- and pushing the discussion in that arena -- that could be a big help. How many times do we have to ask the hot button questions over and over again -- let's force this constitutional matter upon them, and see how they do with it.

[Sara]

Could be wrong, but right now I predict that neither Clinton nor Obama will be the Democratic Nominee next year. They are both flush with about the same amount of cash, but they are both now between 25 and 30%, and I suspect that ratio is pretty frozen. They will use the money they have on hand to try to move up on each other -- but I think they have more or less reached their high water marks.

I find it very interesting that the polls are including Gore, who comes in just a little less than half of the front-runners at 11 - 13% depending on the poll. He is a few points down from Edwards, who is considered semi-serious. But Gore has no committee, no fund raisers in the field, and acts like his first priority is not to run. (But believe me, I think he is running, just with a very different style.).

Next Month Gore has a new book coming out on a philosophy of governance. Then he has his world wide Rock Concert on July 7th -- for the benefit of Global Warming Research and Education. He does a book tour in May-June, and perhaps a little after the Rock Event -- and then August is when he gets serious, and forms a committee to raise money, and he announces around Labor Day with a very different kind of campaign. By that time everyone is tired of Obama and Hillary, and Gore moves to the top with ease. Consensus by late November or December. But it is a very different Gore from 2000. By no means a Clinton Restoration, because Hillary never really gets above 30% again. Unlike Hillary, Al Gore has never had anything nice to say about Karl Rove, and the operatives who think like him. Hillary has. And at times she has also admired Dick Morris. Should Gore play it right and well, my guess is he could get close to LBJ's 1964 Mandate with a congress to match. That would be sufficient to totally change directions on Iraq and other Middle East policy issues. You don't do major stuff like that on a few extra marginal votes in congress -- you build to the necessary Mandate for change. 2009-2011 need to be more like the First New Deal and the 64-66 part of LBJ's term -- where we have the power, mandate and numbers for real reform. In the meantime one must work on making Bush/Cheney become the term for this generation's Herbert Hoover.

[prostratedragon]

No possible fallout from a partisan impeachment process and no bad press if you lose.

No Democracy or Republic, either.

[phred]

It seems to me that impeachment is now imperative to restore the limits on executive power. As Tushnet's article makes plain, constitutional hardball is played for long term gain. This goes way beyond Bush et al. These guys are trying very hard, and thus far succeeding spectacularly, to fundamentally derail our democracy. If Congress waits it out, then a precedent will have been set for future Presidents to exert nearly unrestrained authority. We must find a way to legally and clearly preserve a balance between the 3 branches of government wherein Presidential authority is once again restrained.

It also seems to me highly unlikely that Gonzales will either resign or be fired. The President cannot afford to have a proper Attorney General (approved by Congress) in a position to uncover all the machinations of this administration for all the world to see. If Bush forces Gonzales to suck it up and go through the impeachment process that will buy Rove more time to continue pursuing his electoral game plan for 2008. Given 2000 and 2004, that is something I would like to avoid.

[John B.]

Gore is also the keynote speaker at the American Institute of Architects National Convention in San Antonio on May 5th.
I will be there.
I think what Sara outlined is very possible.

[Kagro X]

The Republicans did not in any way benefit from an impeachment of Clinton when they never had the numbers for conviction -- and it would be just as stupid to proceed against Bush/Cheney now, as our numbers are pretty similar to where the Republicans were in 1997. What is it they say about now shooting at the King unless you have a guarenteed good shot???

I absolutely disagree with the notion that the Republicans didn't benefit from the impeachment of Clinton. They made such a mockery -- intentionally, I believe -- of the process, that the first reaction of Democrats to the suggestion that Bush ought to be impeached is, "Americans don't like impeachment."

The Clinton debacle was designed to "impeachment-proof" the next Republican president, allowing him to challenge previously accepted constitutional norms with impunity.

The old saw about striking a blow against kings is, in my opinion, inapt in an atmosphere with term limits. The Republicans realized as much, and learned quickly that the new rule is: keep the "king" on the defensive, strike as often as possible.

[chris]

But (sputter sputter) American Idol's on...

[jgj]

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[Thomas]

It seems to me that to try to evade Genrva, pack the D.A's and manufacture phoney intelligence (which is treason);; requires of those who author such acts some small show of competance. The dems only need investrigate all of the administrations illegal acts: There so many! There is of course the torture- there is the Fla election, There is 911 & their complicity with the Pak ISI prior to them sending Atta $100,000.00 --Connection to Abranoff and Kiddan and the Murder of Boulis. Just do to these racketeers what they did to Clinton!! Roberts is dirty in the touture to manufacture intelligence. These cronies are all CONSPIRATORS to break federal law and subvert the rule of law &&&&& the federal elections on their watch. How can the Military Commissions Act nulify treaty obligations when it does not recieve the necessary 66.6666% required to abrocate treaty obligations?? It is all a component of their audacious over-reach. Perhaps the dems are correct to sit on their hands untill they have sufficient numbers to do the deed deftly. Go after Roberts when its numerically doable. All the rest will scurry to the corners as the light shines.

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