by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Constitutional law professor Josh Blackman details for National Review Online readers the results of his search for the U.S. Constitutuon’s “gridlock clause.”
President Obama routinely cites Congress’s obstinacy regarding his agenda as justification for a series of executive actions that suspend, waive, and even rewrite statutes. His frustration is understandable, but his response is not justifiable. Brazenly maneuvering around the lawmaking function of Congress is an affront to the constitutional order.
There is nothing new about congressional gridlock. It is perhaps worse than ever today, but partisan impasses are not novel. There is also nothing new about presidents’ creatively reinterpreting the law in order to justify executive policies. What is new is the relationship between these two factors — invoking gridlock as a justification for redefining executive authority. This disruptive constitutional philosophy poses a threat to our separation of powers. It establishes a precedent for this and future presidents to permanently blur the lines between the executive and legislative prerogatives.
Generally, when a president suffers a congressional setback, he has two choices: advance a more moderate compromise proposal that can get past the political roadblock, or table the issue. Yet, since 2010, the president has chosen a third path: act as if Congress supported him, and proceed with his agenda unilaterally. He has done this with his unconstitutional recess appointments to the National Labor Relations Board, his unilateral modifications to the Affordable Care Act, his unprecedented expansion of immigration authority via Deferred Action for Childhood Arrivals, and many other actions.
The president isn’t just relying on congressional intransigence as a political reason for acting, as University of Chicago law professor Eric Posner has suggested he is. It is also part of his legal reason. A careful study of his executive actions reveals a broader constitutional philosophy of executive power based on gridlock.
The Supreme Court has rejected that philosophy. Blackman discusses the case in which justices struck down the president’s attempt to make recess appointments while the U.S. Senate operated without a recess.
It was clear that the justices were not in the least persuaded by the solicitor general’s reasoning. Justice Alito charged that the solicitor general was “making a very, very aggressive argument in favor of executive power [that] has nothing whatsoever to do with whether the Senate is in session or not.” The government was asserting, Alito explained, that “when the Senate acts, in [the government’s] view, irresponsibly and refuses to confirm nominations, then the president must be able to fill those positions.” Chief Justice Roberts put it bluntly: “You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the president submits.” Justice Kagan said that the NLRB’s going “dark” was directly “a result of congressional refusal.” Justice Breyer added, “I can’t find anything that says the purpose of [the recess-appointments clause] has anything at all to do with political fights between Congress and the president.” Ultimately, all nine justices emphatically rejected the president’s position.
Writing for the majority, Justice Breyer made clear that “political opposition in the Senate would not qualify as an unusual circumstance” to justify the president’s making recess appointments during the pro forma sessions. Breyer stressed that this was a “political problem, not a constitutional problem.” Justice Scalia made the point forcefully in a concurring opinion, writing that the Obama administration “asked us to view the recess-appointment power as a ‘safety valve’ against Senatorial ‘intransigence.’” Scalia charged that this was a dangerous argument that translated a political dilemma into a constitutional crisis. The lesson from all nine justices was clear: Gridlock does not give the chief executive a license to redefine his constitutional powers.
And, of course, a little gridlock can be good.