The Constitutional Implications of Institutional Failure

March 3, 2010

My post yesterday about constitutional moments was really just an aside to a discussion of Jack Balkin’s post about the constitutional implications of the institutional defects in Congress. Balkin points out that our politics are increasingly ill-suited to our constitutional design:

[W]e have developed polarized parliamentary-style parties in a constitutional system not designed for parliamentary government. So if Congress cannot be reformed to become more parliamentary, perhaps the party system will dissolve and become more consistent with the constitutional structures we do have. Perhaps the political parties will become less polarized and less ideologically cohesive. I would not bet on this possibility happening in the short run, however. Our current political polarization is supported by many features of American politics, including the primary system, first-past-the-post rules in elections, and our current system of campaign finance.

It is worth clarifying, again, that neither the Senate’s 60-vote cloture rule, nor the campaign-finance system, nor first-past-the-post elections, nor the vast majority of the many veto gates in the federal legislative process is a feature of the constitutional design of our government. Those are all things that can be changed by statute or by a change of the Senate rules. Balkin is perfectly cognizant of this, of course. His concern is what happens if we fail to achieve institutional reforms:

Either the Senate’s rules are reformed soon, or Congress becomes increasingly irrelevant to governance. It must still pass appropriations bills, but it will be increasingly unable to direct domestic policy because neither party will be able to form supermajorities in favor of major policy changes. Earmarks and minor programs remain possible, but not major ones. And if Congress becomes irrelevant, the institution of the presidency is strengthened in the long run, whether or not Barack Obama wins reelection. If the President cannot reform Congress through political exertion, he is likely to strengthen his own ability to decide matters on his own. A strengthened Presidency moves us ever closer to rule by executive decision in American politics.

Here, I would just note that it is not necessarily the case the scope of presidential power would be augmented by congressional decline. The Supreme Court is still a potent check on the administration’s assumption of powers not granted to it by legislation. It might turn out that congressional decline would only result in more administrative independence, without congressional guidance. That might lead to accretion of executive power in many areas, but it would not leave the President a free hand to simply tackle health care, climate change, and financial reform all on his own. The relevant regulatory agencies do not necessarily have the authority needed to craft policies adequate to these undertakings. And in many areas, power left derelict by Congress will devolve to the states, rather than to the administration.

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