Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
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K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Presidential governance -- the political foundations of judicial review in the emerging constitutional regime
For the purposes of this post, assume that the Democrats win the White House in November. If this happens, they will have won the popular vote in six of the last seven elections, and the presidency in five of the last seven.
At this point we should recognize that the Reagan regime is over. A new regime--call it the Obama regime--will have begun. Just as the Republicans were the dominant party at the national level in the Reagan regime, the Democrats will be the dominant party in the new regime.
This regime, however, will be quite different from the last two previous constitutional/political regimes-- the New Deal Civil Rights regime of 1932-1980, and the Reagan regime of 1980-2008. The central reason the new regime will be different is because of party polarization. The function of judicial review--and therefore the political foundations of judicial review--will also be different in the new regime. The reason why politicians accept and support judicial review will change as the function of judicial review changes in the new regime.
Judicial review always requires political foundations that support its exercise. What are the political supports of judicial review in the upcoming Obama regime?
The emerging regime is likely to feature (1) strongly polarized parties and (2) a system of presidential governance.
In a system of presidential governance, the executive branch is the central player in governance because Congress is deadlocked. The president uses the administrative state to govern during the long stretches of time in which Congress cannot effectively legislate. The president continues to enjoy largely a free hand in the implementation of foreign policy. In a system of presidential governance, therefore, the two branches of the national government that count the most are the executive and the judiciary. Congress's role is diminished because it is effectively broken.
I think that the new regime of presidential governance is very
worrisome. It is a bad idea and will prove unsustainable in the long run. Our constitutional system was designed for governance by
three co-equal branches, not for governance by only two. Nothing I say
here should be understood as an endorsement of the emerging system of presidential governance.
I do not endorse it. Rather, I am describing what I think will happen and how judicial review
will be justified in this new (unfortunate) situation.
What supports judicial review in a regime with these two features?
Federal judges perform two important tasks in the new regime. First, judges legitimate and constrain presidential governance. They authorize and set constitutional boundaries on presidential governance. This legitimates the system, even though courts sometimes prevent presidents from doing certain things they would like to do. To enable courts to perform these tasks, judges also will change the rules of standing and justiciability, and about entry into the federal courts generally. Second, judges will continue to enforce the constitutional values of the regime against outliers in state and local governments.
Judicial review has political support in the new regime because judges perform these two tasks.
In the emerging Obama regime, Democrats are likely to hold the White House most (but not all) of the time; as a result, the federal judiciary is likely to be dominated by Democratic appointees.
A central feature of the new regime is strongly polarized parties with conflict extension as well as polarization. Conflict extension means that the parties' disagreements line up, so that if you know a person's position on one issue, you know that person's position on most other issues, even if the issues are otherwise completely unrelated. Thus, the major political parties in Congress act like parliamentary parties in a presidential system. Polarization and conflict extension accelerated during the Reagan regime and will continue in the new Obama regime.
Polarization and conflict extension make it very difficult for either party to pass laws through Congress; on the other hand, state legislatures will continue to pass laws because many states feature one party rule.
Polarization is the new normal, but it is by no means permanent. Eventually, the two major parties will depolarize, because party coalitions will slowly fracture and transform. The Republican party will remake itself to remain competitive in presidential politics, while the Democratic party will fracture because that is the fate of all majority parties. (We have already seen the beginnings of how and where the fractures will occur in the Clinton/Sanders primary race.)
Eventually, continuous evolution of the parties will produce cross-cutting cleavages that will allow for deal-making, similar to the period between the 1920s and 1990s. But throughout most of the new regime, we can expect polarization to continue.
Congress is not completely irrelevant in the new regime. Important federal legislation is most likely to pass when one party holds the White House, the House, and a filibuster proof majority in the Senate. (And during the course of the Obama regime, we should also expect significant changes to Senate and House internal rules to make it easier for government to function effectively.) Even so, moments of one-party rule will be relatively infrequent. That is because the party controlling the White House tends to lose congressional seats in mid-term elections, making it difficult to keep control of the Presidency and Both houses of Congress at once. Outside of these brief periods of one-party rule, most important legislation won't pass. Congress will engage in omnibus and stopgap measures to keep the government running. The Debt Ceiling Crisis of 2011 and the government shutdown of 2013 demonstrated that Congress can not control domestic policy in the face of a President who refuses to budge.
Hence, outside of brief periods of one-party rule, most active governance in the new regime will occur through the executive branch's control over the administrative state, or through statutory and constitutional interpretation by the federal judiciary. The executive branch will also make policy by striking individual deals with state governments. This, plus the fact that state legislatures will continue to be active, means that states will be quite powerful in the new regime, even though nationalist Democrats dominate at the federal level.
A federal judiciary appointed mostly by Democratic presidents will tend to authorize most of what Democratic presidents--and an executive branch staffed mostly by Democrats--want to do. At the same time, the courts will set boundaries on presidential lawmaking and governance. That is because the role of courts is legitimation, not mere acquiescence; legitimation requires both upholding and striking down government action.
For this purpose, federal courts will probably alter standing and justiciability rules, and rethink the premises of administrative governance. Standing doctrine developed to legitimate the New Deal; standing rules will change once again to legitimate the new system of presidential governance. The courts will also continue to engage in their traditional role of enforcing the values of the presidential wing of the party against state and local outliers.
The political supports of judicial review in the new regime stem from the functions that judicial review serves in the new regime. The function of judicial review in the new system is to legitimate (that is, simultaneously authorize and police) the emerging system of presidential governance, and to maintain the traditional judicial role of enforcing national values in the states. However, the values enforced will not be the values of Congress, which is deadlocked, but the values of the presidential wing of the dominant party.
National politicians will accept judicial review because it performs these functions. Affiliated presidents (i.e., Democrats affiliated with the regime) will accept judicial review because it (mostly) legitimates presidential governance and (mostly) enforces national values. Preemptive presidents (i.e., Republicans working in opposition to the regime) will accept judicial review for the reasons that preemptive presidents usually support judicial review-- because they need all the support they can get.