Balkinization: "Constitutional Hardball"

"Constitutional Hardball"

Sandy Levinson

Mark Tushnet has introduced the term "constitutional hardball" to academic discourse, by which he means a willingness of players within the system to push the envelope of their powers and see what happens. Adrien Vermeule and Eric Posner have also written of "constitutional showdowns," which has a family resemblance. They draw on game theory for their analysis and analogize showdowns to the game of "chicken," which tests the willingness of someone driving a car head-on toward another car (the other "player") to be the first to turn off course and prevent the inevitable collision if neither turns away. And Jack and I are currently writing a paper on "constitutional crises."

So consider an article in tomorrow's New York Times by Philip Shenton on the extent to which the Bush Administration is relying on interim appointments rather than submitting nominations to the Senate, as one might think the Constitution requires (at least of presidents who are playing the "Constitution game" in good faith). Excerpts from the article follow:

With only 15 months left in office, President Bush has left whole agencies of the executive branch to be run largely by acting or interim appointees — jobs that would normally be filled by people whose nominations would have been reviewed and confirmed by the Senate.

In many cases, there is no obvious sign of movement at the White House to find permanent nominees, suggesting that many important jobs will not be filled by Senate-confirmed officials for the remainder of the Bush administration....

Under a 1998 law known as the Vacancies Reform Act, acting government officials can remain in their posts for 210 days with the full legal authority they would otherwise have with Senate confirmation, with the calendar reset to 210 days once a nominee’s name has been forwarded to the Senate. As of Monday, there are 462 days left in Mr. Bush’s term.

The president also has authority under the Constitution to make so-called recess appointments to senior jobs when the Senate is out of session — authority that President Bush has invoked far more often than his immediate predecessor, Bill Clinton.

But recess appointments often subject the White House to criticism that it is trying to circumvent the Senate confirmation process.. . . The indefinite appointment of acting officials might have the same effect of circumventing Congressional oversight of nominations for what remains of the Bush presidency.. . .

“You’ve got more vacancies now than a hotel in hurricane season,” said Paul C. Light, a professor of public service at New York University and one of the nation’s best-known specialists on the federal bureaucracy. “In my 25 years of studying these issues, I’ve never seen a vacancy rate like this.” . . . .
Senator Arlen Specter, the ranking Republican on the Judiciary Committee, said, “In the long history of the country, I don’t think the Justice Department has been in such disarray.”
“You have top spots unconfirmed: unconfirmed attorney general, unconfirmed deputy, unconfirmed associate,” he said. “You took a look at the organizational chart, there are many others who are unconfirmed among the assistant attorneys general ranks.”

The vacancies include three members of the cabinet [Attorney General, Secretary of Agriculture, and Secretary of Veterans Affairs].... But the White House has so far failed to provide the Senate with the names of nominees for . . . agriculture secretary and veterans affairs secretary, which are now being filled by officials placed there temporarily by Mr. Bush

So how do we describe this game that the Administration is playing? Is this just another example of the "constitutional hardball" that is a specialty of this regime? It's hard to call it a showdown unless one can think of something that Congress could do to manifest its displeasure at this evasion of constitutional checks and balances and then dare the Administration to keep driving straight ahead. I suppose Congress could try to repeal the (presumably sensible) Vacancies Reform Act, but even if it wouldn't be filibustered in the Senate, it would definitely be vetoed, with no prospect of an override. And it's hard to describe the Administration's behavior as "lawless" unless one emphasizes "spirit" over "letter." That is, this doesn't reach the level of a "crisis" unless one can argue in good faith that the Administration is truly defying the Constitution. If we had a better Constitution, perhaps this would be an impeachable offense under "maladministration," but, to quote Bob Woodword paraphrasing Donald Rumsfeld, we conduct politics in the country with the Constitution we have rather the Constitution it would be desirable to have. Can this be described as just another example of the de-facto constitutional dictatorship, i.e., governance without accountability, that we now understand is all-too-possible under our own Constitution? Even I think this may be a bit excessive, but I do wonder.

Posted 8:54 PM by Sandy Levinson [link]

Comments:

Professor Levinson, in this post, writes, "If we had a better Constitution, perhaps this would be an impeachable offense under "maladministration." Professor Balkin, in the post immediately below, writes, "On the pages of this blog in the past five years we have tried repeatedly to show that this is not true, and that in fact that the Bush Administration has repeatedly broken the laws and tried to cover things up."

It seems obvious that Bush is guilty of much worse than maladministration. Isn't holding American citizens in prison without filing charges illegal? Isn't torturing them illegal? Isn't wiretapping without a warrant illegal? I don't have to cite sections of the U.S. Code to make the case, because Congress doesn't have to cite sections of the U.S. Code to decide that something is a "high crime" or "misdemeanor." Congress, by its failure to impeach Bush, is responsible each of his crimes after his first impeachable offense.

# posted by

Henry : 10:02 PM

Regarding recess appointments, I remember when President Reagan tried to destroy the Legal Services Corporation by appointing board members who sought to abolish it. These board members would not have been confirmed, so he used to appoint the entire board (a dozen or so people) with recess appointments each January. The board would then use LSC money to lobby Congress to cut LSC funding, which GAO ruled was an illegal use of LSC funds. I propose a constitutional amendment abolishing the recess appointment power; if any exceptions are needed, which I doubt, then let them be included. Reagan's action with respect to the LSC, by the way, is additional confirmation of Paul Krugman's point a week or two ago that Bush, though worse than past presidents, is following Republican precedents and not acting differently from what has always been the spirit of of conservatism in this country.

# posted by

Henry : 10:13 PM

There is a card game called "Spite and Malice," where blocking the other players from playing their cards is as important as playing your own cards. This pissing match between the Dem Congress and the GOP President reminds me of that card game.

The Dem Congress has spent its time making life miserable for and thereby running DoJ officials out of town, so the Bushies are not giving the Dems any say in their replacements.

Meanwhile, neither branch is doing much governing. Depending on how you view government, this may or may not be a bad thing.

# posted by

Bart DePalma : 10:37 PM

Given the Vanancies Reform Act, it is very difficult to discern why we need the institution of "recess appointments" in the 21st century. Let me suggest, though, that there is no possibility of getting an amendment abolishing them because, as Daryl (no relation) Levinson has demonstrated, members of Congress, contra Madison, are not actually interested in protecting institutional prerogatives (which would counsel getting rid of recess appointments), but, instead, are loyal to their party and President, if one of their own inhabits the White House. Republicans in Congress have been more than happy, for the past six years, to act as enablers in Bush and Cheney's abuse of power, even when that has involved clearly contemptuous treatment of Congress. One would like to believe that Democrats are better in this respect, but it is almost certainly partisanship rather than abstract commitment to rectifying institutional imbalance that motivates them. It would be interesting to hear what the myriad of senatorial presidential candidates think of abolishing recess appointments!

# posted by

Sandy Levinson : 11:04 PM

The concept of "recess" in 1787 doesn't quite match what is today a full-time Senate with vacations (to raise funds to get reelected) from time to time. Reconvening the Senate with modern day transportation and communications can be quickly accomplished. The "recess" is in the mind of the originalist despite these changed conditions.

# posted by

Shag from Brookline : 5:55 AM

There is no practical way around this problem. Even if the Constitution was modified to eliminate recess appointments, the President can still simply appoint a subordinate to serve as the acting political appointee at the cost of the acting person not having the same political clout.

The only practical way to solve this problem is for our elected officials to stop acting like children. The President should submit appointees to Congress for approval and the Congress should quickly approve them if qualified. No more recess appointments, if Congress does not hold appointees hostage to political hearings or nonsense like producing documents.

Anyone want to lay odds on this happening in our toxic political culture?

# posted by

Bart DePalma : 9:19 AM

It's not clear to me what would be gained by coining another descriptive term for this. "Gaming the system" or "acting in bad faith" seem to cover the acts pretty well.

And just as an aside to stop Bart from the usual well-poisoning, it's his BFFs the GOP that is preventing anything from getting done. Oh, and there's nothing wrong with using other tactics when the administration refuses to comply with Congressional requests, either.

# posted by

sparky : 9:26 AM

Ohh, I dunno about not being able to do anything. The congress can do a lot even without being able to overcome a fillibuster to make the presidents life difficult.

For instance say he refuses to play ball on releasing info on the war one might just happen to pass a resolution about the armenian genocide. Of course like any game of chicken you have to keep the wheel straight as you drive for the cliff if you want to win so you have to be willing to put up with some negative consequences along the way.

# posted by

TruePath : 11:09 AM

Revisionist history:

The Dem Congress has spent its time making life miserable for and thereby running DoJ officials out of town....

The Democratic Congress, in a feat defying the laws of physics, forced the maladministration's DoJ into political shenanigans with the U.S. attorneys, hijacking the gummint for partisan ends, political prosecutions, violating wiretap laws prior to the Democrats ever assuming office, and in a feat of psychokinesis, compelled them to lie and bluster stoopidly when called before Congress to testify about such. The Nobel Prize in Physics awaits them a year from now....

Cheers,

# posted by

Arne Langsetmo : 2:15 PM

Surely our crack legal team can think of some way that two adversarial sides can agree on selection of people. Picking a jury springs to mind.

The problem is that to empower this in law would acknowledge that our system of good faith government is really an adversarial parliamentary one.

# posted by

Unknown : 3:19 PM