Professors Joseph Fishkin and David Pozen (“the authors”) recently wrote an intriguing essay on “constitutional hardball.”
As a result of increased political polarization, the authors posit, government officials—defined to include elected members of Congress—from both parties are increasingly playing constitutional hardball.
The authors add, “For a quarter of a century, Republican officials have been more willing than Democratic officials to play constitutional hardball.”
The authors provide a compelling look at the ways in which Republicans have engaged in constitutional hardball over the past twenty-five years.
They also provide an engaging and generally persuasive explanation of why hardball tactics have gained traction among Republican officeholders.
The authors admit uncertainty as to how and whether one can accurately measure if one party’s officials have been greater practitioners of constitutional hardball.
The authors also acknowledge that their “political location,” presumably on the left, may make them “more attuned to examples of hardball practices [they] see on the right.”
This Response contends that it is not clear that Republicans have outpaced Democrats in playing constitutional hardball.
Indeed, the opposite conclusion may be warranted. This Response will not attempt a comparison of dubious empirical validity of the levels of Democratic and Republican constitutional hardball.
Rather, it will delineate some important omissions and questionable assertions in the authors’ essay. Taken together, these observations, while accepting the authors’ thesis that Republican officials have increasingly engaged in “constitutional hardball,” cast doubt on the purported asymmetry.
Part I of this Response discusses one of the authors’ primary examples of Republican constitutional hardball—government shutdowns resulting from tensions over spending and other matters between Presidents Obama and Clinton on the one hand and congressional Republicans on the other.
It begins by discussing whether these shutdowns are properly described as constitutional hardball by the Republicans. Part I also notes that congressional Democrats engaged in similar tactics, albeit to increase rather than limit government spending, during the Reagan and George H.W. Bush Administrations.
Part II highlights important examples of Democratic constitutional hardball, especially hardball by the Obama Administration, that are omitted from the authors’ analysis. It disputes the authors’ claim that when Democrats have engaged in constitutional hardball, they have been more diffident and apologetic about doing so.
Part II also briefly reviews reasons why Democrats have been increasingly inclined toward constitutional hardball, ranging from the felt need to achieve progressive goals during the Obama Administration to the dramatically increased percentage of consistent liberals among Democratic voters.
Part III discusses in some detail a particularly important example of Obama Administration constitutional hardball: its efforts to reach and implement, over significant opposition in Congress, a nuclear agreement with Iran. These efforts circumvented Congress and involved lying to the public, engaging in legally aggressive lifting of sanctions on Iran, and even spying on the agreement’s domestic opponents.
I. “Shutting Down the Government”
A. Who to Blame for a “Shutdown”
So-called shutdowns and threatened shutdowns of the government by Republicans in Congress loom large in the authors’ analysis. These shutdowns are mentioned frequently in both the text and footnotes.
The authors seem to believe that shutting down the government is something Republicans—but not Democrats—are inclined to do. Indeed, the authors suggest that until recently, Democrats shutting down the government to get leverage in a policy dispute was “unthinkable.”
The authors also seem to believe that government shutdowns and threats thereof were a more or less novel invention of Speaker Newt Gingrich and House Republicans after the GOP took control of Congress in 1995.
Both of these beliefs are false.
Before elaborating on why those beliefs are false, it is worth pausing to examine the proposition that when Congress refuses to accede to the President’s budgetary demands, as occurred in the showdown between the Gingrich-led Republicans and President Clinton in 1995,
it means that Congress and not the President is shutting down the government. From a purely constitutional perspective, if Congress passes a spending bill that would keep the government open and the President vetoes it, then the President—not Congress—has shut down the government. At a minimum, if the President and Congress are unable to reach a compromise that would lead the President to sign a spending bill passed by Congress, both the President and Congress played constitutional hardball to shut down the government.
Let us assume, however, as the authors apparently do, that if Congress refuses to agree to the President’s demands and the President in turn vetoes legislation that would keep the government open, it means that Congress is shutting down the government. If so, there were several shutdowns (a) orchestrated by Democrats and (b) that preceded the Gingrich–Clinton confrontation. Contrary to the authors’ narrative, not only was it never “unthinkable” for Democrats to shut down the government to pursue a policy objective, congressional Democrats did so almost as soon as it became possible.
B. Examples of Democratic Shutdowns
Before 1980, gaps in government funding did not necessarily result in cessation of any government operations. In 1980, federal officials determined that under the Anti-Deficiency Act,
a funding gap legally required a full or partial shutdown of the portions of government that had run out of funding.
In 1981, the Democrat-controlled House refused to agree to President Reagan’s budget demands, resulting in a four-day shutdown when Reagan vetoed a compromise bill that passed the House and Senate.
During the remaining Reagan and Bush years, the government shut down eight times after congressional Democrats refused to agree to the budgetary or policy demands of the Republican President.
During the Reagan years, the media often portrayed these incidents as Reagan shutting down the government.
For the sake of consistency, however, if congressional Republicans shut down the government when they refused to pass spending bills acceptable to Presidents Clinton and Obama, then the Democrats in Congress shut down the government when they declined to pass spending bills acceptable to Presidents Reagan and Bush. This undermines the notion that congressional Republicans beginning in 1995 have played a uniquely rough and novel game of political hardball by threatening and occasionally following through with government shutdowns.
Two caveats are in order. First, the 1995 shutdown was unusual in that some congressional Republicans, including Speaker Gingrich, made public statements essentially welcoming a shutdown.
That may make the 1995 shutdown different in degree if not in kind from earlier shutdowns and is evidence that could reasonably be used to shift significant responsibility for the shutdown away from the President. Second, the authors’ focus is on the twenty-five-year period beginning in 1993. While that does not excuse ignoring the Reagan and Bush shutdowns, it leaves open the possibility that in the relevant time period congressional Republicans were significantly more likely to play hardball with shutdowns than were the Democrats.
II. Examining Democratic Constitutional Hardball
The authors’ claim of asymmetry depends on two assertions. First, during the relevant period, Republicans were more likely to engage in constitutional hardball. Second (and secondarily), when Democrats did engage in constitutional hardball, they typically did so diffidently and apologetically, more as a desperate reaction to Republican intransigence than as a willful strategy. This Part critically examines these assertions.
A. Democratic—Especially Obama Administration—Constitutional Hardball
The authors acknowledge several “arguable examples of Democratic constitutional hardball.”
These include the Clinton Administration’s assertions of executive privilege from 1995 to 1999, filibusters of President Bush’s first-term circuit court nominations, and the use of pro forma sessions to block President Bush’s recess appointments in 2007 and 2008.
During the Obama Administration, these include using the reconciliation process to amend the Affordable Care Act (ACA) without the standard opportunity for Republicans to filibuster in the Senate, “repeatedly test[ing] the limits of executive authority in implementing the ACA,” making recess appointments to the Consumer Financial Protection Bureau and National Labor Relations Board, eliminating the filibuster for non–Supreme Court nominees, and implementing Deferred Action for Childhood Arrivals (DACA) in the face of congressional inaction on immigration reform.
The authors’ examples include extremely significant policies, arguably more significant than any given policy the Republicans have played constitutional hardball with.
For example, passing the ACA via reconciliation led to the regulatory overhaul of almost twenty percent of the American economy, the signature legislative achievement of President Obama’s first term, without a single favorable vote from a Republican in Congress.
Repeated deviations from the text of the ACA allowed the Administration to continue to enforce the Act without needing to reach any compromises with Republicans who captured first the House and then the Senate after the enactment of (and in partial reaction to the enactment of) the ACA.
DACA gave indefinite immunity from deportation and the ability to be employed legally to millions of undocumented immigrants.
This allowed President Obama to satisfy important Democratic political constituencies without having to make compromises with conservative congressional Republicans regarding future immigration limitations or bolstered enforcement of existing immigration laws.
The authors’ list leaves out other significant examples of constitutional hardball played by Democrats during the Obama Administration, many of which are discussed in Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.
Several Obama Administration initiatives constituted constitutional hardball as defined by the authors in the sense that they were political maneuvers that “violate[d] or strain[ed] constitutional conventions for partisan ends.”
Constitutional conventions, the authors explain, are “unwritten norms of government practice.”
While the exact boundaries of what constitutes constitutional hardball are fuzzy,
examples of this sort of constitutional hardball neglected by the authors arguably include:
- Refusing to defend the Defense of Marriage Act (DOMA) in the Supreme Court, on the spurious grounds that no legitimate legal arguments could be made in its defense.
The majority and dissenting opinions both criticized the Justice Department for its refusal to defend DOMA.
- Ignoring Office of Legal Counsel (OLC) opinions that a pending presidential action would be illegal when the opinions conflicted with the Administration’s political or strategic goals, including in the very consequential example of U.S. participation in the military campaign against Qaddafi’s Libya.
- Engaging in obviously politicized hiring in the Civil Rights Division of the Justice Department to ensure that the division pursued progressive priorities and interpreted relevant laws consistent with the Obama Administration’s favored outcomes.
- Entering into consent decrees with environmental groups to enact policies that Congress would never agree to through the tactic known as “sue and settle.”
- Taking over the day-to-day operations of General Motors without any statutory authority to do so and imposing a bankruptcy deal on Chrysler that benefited labor unions that provide support for the Democratic Party at the expense of secured creditors.
- Appointing various policy “czars” to evade the Senate confirmation process.
- Using an extremely aggressive interpretation of Title IX to strip college students accused of sexual misconduct of basic due process protections through a “Dear Colleague” letter, without ever starting the formal notice and comment process.
The authors identify a second type of constitutional hardball: actions “reasonably viewed by the other side as attempting to shift settled understandings of the Constitution in an unusually aggressive or self-entrenching manner.”
As Lawless discusses, the Obama Administration made the unusually aggressive argument to the Supreme Court that the ministerial exemption to ordinary legislation—a doctrine accepted by every federal court that had previously considered the issue—should be rejected.
The authors, in their defense, might argue that they are primarily telling a story about asymmetry in playing constitutional hardball at the congressional level, rendering the presidency something of a sideshow.
If so, however, the asymmetry they document may not flow from the Republicans more aggressively adopting hardball tactics. During the period the authors studied, Republicans controlled one or both houses of Congress under a Democratic president for twelve years, while the Democrats controlled one or both houses of Congress under a Republican president for only three and a half years.
Congressional leaders are likely much more inclined to play constitutional hardball when confronted with a political opponent in the White House, and that may be sufficient to explain any asymmetry. Similarly, a President is more likely to play constitutional hardball when confronted by a hostile Congress, and it seems to be stacking the deck to focus on Congress’s hardball and not the President’s when divided government prevailed.
Congressional Democrats nevertheless did sometimes play constitutional hardball during the Obama years. In addition to passing the ACA through the reconciliation process and abolishing the filibuster for judicial nominations below the Supreme Court level,
in 2014 every Democratic Senator who cast a vote did so in favor of a constitutional amendment that would subject any spending, by any corporation or individual, to “reasonable limits” if the goal of the spending was to “influence elections.”
The American Civil Liberties Union declared that, if passed, the bill would “fundamentally ‘break’ the Constitution and endanger civil rights and civil liberties for generations.”
B. President Obama Was Not “Diffident and Apologetic” About Constitutional Hardball
The authors acknowledge that many of President Obama’s unilateral executive actions may appropriately be described as constitutional hardball.
According to the authors, however, unlike Republicans, “when Democrats have played hardball, they have been more diffident and apologetic about it.”
In January 2014, President Obama told his cabinet during the first meeting of the year:
We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone . . . .
. . . And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.
Two weeks later, Obama proclaimed during his State of the Union Address:
But what I offer tonight is a set of concrete, practical proposals to speed up growth, strengthen the middle class, and build new ladders of opportunity into the middle class. Some require Congressional action, and I’m eager to work with all of you. But America does not stand still—and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.
Congressional Democrats responded with a standing ovation.
There are many possible ways to describe these statements and congressional Democrats’ reaction. “Diffident” and “apologetic,” however, are not among them. Nor was Obama diffident and apologetic when he made such pronouncements as, “But if Congress won’t act soon to protect future generations [from climate change], I will.”
Or, with regard to immigration reform, “[T]he American people don’t want me just standing around twiddling my thumbs and waiting for Congress to get something done.”
Professor Pozen, in common with many defenders of the Obama Administration, has suggested that Obama’s rhetoric and unilateral actions can best be seen as reactions to congressional Republicans’ obstructionism and that his rhetoric often reflected the theme that he was forced into unilateralism by that obstructionism.
I don’t read the rhetoric transcribed above as being so modest. But in any event, the “obstructionism” defense relies on the premise that Congress is obligated to cooperate with the President’s agenda.
While this is a common perspective among laypersons, especially when a President they approve of is in office, the Constitution is designed to place primary lawmaking authority with Congress. A Republican Congress pursuing its own agenda at a Democratic President’s expense should be considered a normal exercise of congressional authority that requires presidential compromise, not a justification for the President to respond with hardball unilateralist tactics.
C. Why Democrats Engage in Constitutional Hardball
The authors detail a variety of ideological and practical political reasons why Republican officials play constitutional hardball. Among other things, they point to academic literature strongly suggesting that Republican federal officeholders moved further to the right in the relevant time period than Democrats moved to the left.
Moreover, Republicans have a self-image as insurgents against a monolithic liberal establishment, which makes them less invested in existing norms.
Additionally, many political scientists see the Republican Party as more ideological and the Democratic Party as more of a coalition of interest groups.
Such factors might indeed disproportionately incline Republicans toward constitutional hardball.
The authors, however, neglect the forces pushing, and that have pushed, Democrats to engage in constitutional hardball. In particular, Democrats tend to support social and economic reform through government action.
This may incline them toward impatience with obstacles, including constitutional obstacles, to activist government. Liberal Democrats, at least, considered themselves to be out of power nationally from at least the Nixon Administration until the Obama Administration, making them particularly eager to seize any available opportunity to pursue their ideological goals.
Meanwhile, since the rise of critical legal studies in the 1970s, many left-leaning legal scholars have derided the very notion of the rule of law, which has surely had some effect on the overall left legal culture.
These factors could easily combine to incline Democrats toward constitutional hardball, especially when they control the executive branch.
Finally, while the authors pay a great deal of attention to radicalization and uniformity of opinion among Republicans, they neglect a later, countervailing, more consistent, and even stronger trend among the Democratic base, undoubtedly pushing their party toward constitutional hardball.
According to Pew Research, in 1994 thirteen percent of Republicans held consistently conservative political positions.
That went down to six percent in 2004, only to rise to twenty percent in 2014.
Meanwhile, only five percent of Democrats had consistently liberal views in 1994.
This rose to thirteen percent in 2004 and twenty-three percent in 2014.
Even more significantly, among “politically engaged Republicans,” the percentage of consistent conservatives has waxed and waned since 1994, ultimately rising from twenty-three percent to thirty-three percent.
Among politically engaged Democrats, meanwhile, there was a steady upward march in the percentage of consistent liberals, from only eight percent in 1994 to thirty-eight percent in 2014.
One does not need to be a political scientist, meanwhile, to observe that the mainstream of the Democratic Party is to the left of where it was during the Clinton presidency.
III. The Iran Deal as an Example of Constitutional Hardball
In determining whether constitutional hardball has been asymmetric, one must examine the importance, and not just the volume, of various examples of Democratic constitutional hardball. The Obama Administration’s efforts to sign and implement a nuclear agreement with Iran with limited if any congressional input, and at times in violation of federal law, is a particularly important example of Democratic constitutional hardball. This particular example failed to make it into books and essays critical of the Obama Administration, including Lawless, because it played out toward the end of the Administration, and many of the details of the Administration’s hardball tactics became matters of public knowledge and controversy only after President Obama had left office.
The ultimate result of the Obama Administration’s efforts to reach an agreement with Iran was the Joint Comprehensive Plan of Action (JCPOA), an international agreement signed by the United States meant to limit Iran’s nuclear capacities in exchange for relief from international sanctions.
The authors mention JCPOA only in passing in a noncommittal footnote,
but the Administration’s actions deserve far more scrutiny than that. JCPOA is worth reviewing in detail here because the deal was the Obama Administration’s signature foreign policy achievement, and there appears to be no other source that tries to comprehensively describe all the mechanisms through which the Obama Administration played constitutional hardball to reach and effectuate the agreement.
By the time the Obama Administration was concluding its first term, President Obama and his team were intent on rapprochement with Iran.
Signing a nuclear deal with Iran was key to this rapprochement because without a deal the U.S. government was legally obliged to enforce major sanctions on Iran.
Successfully negotiating and implementing this deal was arguably the Obama Administration’s highest second-term priority.
To sell the deal, the Administration found it necessary to lie to the American public about its origins. The Administration began secret negotiations with Iran in mid-2012.
When reporter James Rosen asked at a press conference about rumors regarding these negotiations, the State Department spokesperson lied and denied that “government-to-government” talks were underway.
Administration officials told the public that engagement with Iran began in 2013. The Administration claimed that it was “tak[ing] advantage of a new political reality in Iran, which came about because of elections that brought moderates to power in that country.”
As David Samuels reported in the New York Times Magazine, this story of nascent moderation in the Iranian government “was largely manufactured for the purpose for selling the deal.”
The most significant obstacle facing the Administration was the Republican-controlled Congress. Congress was more sympathetic than the Administration to Israel’s security concerns regarding Iran and was much more skeptical that Iran was a trustworthy, or just worthy, partner.
Even in October 2014, when Democrats still controlled the Senate, the Administration concluded it would lose a majority, much less a supermajority, vote there.
The Obama Administration, therefore, planned from the get-go to circumvent Congress.
Ben Rhodes later acknowledged that the Administration affirmatively didn’t want congressional involvement: “‘I’d prefer a sober, reasoned public debate, after which members of Congress reflect and take a vote,’” he said, shrugging. ‘But that’s impossible.’”
By early 2015, some speculated that the Obama Administration’s plan was to get the United Nations Security Council to endorse a deal and then present the deal to Congress and the public as binding international law.
This provoked Senator Tom Cotton to write an open letter signed by forty-seven Senators informing the Iranian government that any deal signed by Obama but not approved by Congress would not be binding U.S. law.
The Obama Administration consistently denied that the agreement would be a treaty that required a two-thirds majority in the Senate, even though the agreement had at least some indicia of a treaty.
In fact, the Administration consistently maintained that Congress did not have to approve the deal in any way, as it was merely an informal political commitment.
For purposes of this Response, whether the Administration’s position was legally sound is beside the point; even one of the staunchest defenders of JCPOA’s legality, Professor Jack Goldsmith, acknowledges that “agreements of this significance and scope would typically require approval by two-thirds of the Senate through the domestic treaty process.”
Evading the treaty process through what Bradley and Goldsmith call “a significant constitutional innovation” constituted constitutional hardball.
In April 2015, Senator Bob Corker introduced legislation giving Congress thirty to sixty days to review and vote on any nuclear agreement with Iran.
The Administration initially opposed this legislation but eventually gave in when it recognized that Corker had the votes to override a presidential veto.
While “[t]he Review Act represented an attempt to reclaim a congressional role, not to authorize unilateral executive action,”
it also represented “a recognition that the President was determined to conclude the deal without Congress.”
In practice, then, the Corker legislation was a significant victory for Obama Administration constitutional hardball because it represented implicit recognition by Congress that JCPOA would not have to be approved as a treaty. Instead of the Obama Administration needing two-thirds of the Senate to approve a treaty, or even majorities of both houses to approve an executive agreement, opponents of the bill would need at least sixty votes in the Senate to disapprove the agreement and overcome a filibuster by deal supporters. Opponents would then need a two-thirds vote in each house to overcome a presidential veto.
The Administration pushed forward with a U.N. vote in July 2015.
The U.N. resolution legally only abrogated international sanctions, not U.S. sanctions.
Administration officials publicly insisted that Congress would still have an opportunity to weigh in. Secretary of State John Kerry stated that “[n]o ability of the Congress has been impinged on.”
After the vote, however, the Administration emphasized that the world considered the JCPOA a done deal and that it would undermine U.S. standing if Congress proceeded to reject the agreement.
To undermine opposition to the JPCOA, the Administration withheld various important documents related to the Iran deal from Congress by mixing classified and unclassified documents and then claiming they were all highly sensitive classified documents that could not be released.
This violated the spirit of a provision of the Iran Nuclear Agreement Review Act intended to ensure congressional and public access to relevant unclassified documents.
Putting aside Administration misrepresentations about the deal’s constraints on Iran’s nuclear abilities, which are too complex and detailed to get into here,
the Administration lied about or covered up various benefits that Iran was going to get from the deal. For example:
- The Obama Administration issued a special license permitting Iran partial access to U.S. financial institutions, breaking a promise to Congress that it would deny Iran such access, and despite the fact that sanctions were still in place prohibiting such access.
The Administration then unsuccessfully attempted to pressure U.S. banks to do business with Iran and later lied about it to Congress.
In internal emails, the Administration admitted that these efforts went beyond what the U.S. was required to do under the nuclear deal.
Finally, Administration officials attempted to pressure foreign financial institutions to do business with Iran, while assuring these institutions that they would likely not receive more than a warning letter for violating U.S. sanctions.
- The U.S. government made a $1.7 billion cash payment to Iran, which some commentators argue violated U.S. law.
Regardless of legality, to many observers, including some within the Obama Administration,
the payment “appear[ed] to have been a ransom, just as an Iranian general claimed it was at the time—a huge cash payment to accompany the lopsided exchange of 21 Iranians, duly charged or convicted under American law, for five American hostages who had been seized by Iran and held on fabricated charges in secret proceedings.”
The Administration claimed that the money was paid in cash not to cover up the payment but because the U.S. government did not have the ability to wire money to Iran. President Obama said, “[W]e do not have a banking relationship with Iran[,] . . . and [so] we could not wire the money.”
In fact, the U.S. government secretly wired money to Iran before and after the cash payment.
This suggests that the payment was in cash to hide it from Congress and the public. The Administration evaded oversight by stalling and refusing to publicly answer questions about the payment.
- President Obama lifted sanctions imposed via executive order by repealing those executive orders.
When it came to nuclear-related sanctions, he issued national security waivers required by statute all at once, even though the clear intent of these statutes was for them to be lifted one-by-one in response to specific Iranian behavior.
The Administration dubiously redefined almost all Iran sanctions as “nuclear-related” so they could be lifted.
- The Obama Administration consistently maintained that once a nuclear deal with Iran was signed, it would only lift nuclear-related sanctions and not those related to terrorism or human rights.
Iran Air had been sanctioned in 2011 under an executive order allowing sanctions against proliferators of weapons of mass destruction.
At the time, the Obama Administration stated that these sanctions were a result of Iran Air’s material support to Iranian government entities tied to terrorism and because it “facilitated proliferation-related activities.”
When the JCPOA was signed, the United States lifted these sanctions. At a press conference, a State Department spokesperson was asked why the sanctions were lifted—Iran Air seemed to still be involved in terrorist activities and had not promised to stop.
The spokesperson responded, “Iran Air was never actually sanctioned under [terrorism-related sanctions]. That said, they were designated, as you said, in June of 2011 pursuant to an executive order, 13382, which is an authority aimed at freezing the assets of proliferators of weapons of mass destruction and their supporters . . . .”
This implies that the Administration’s rationale for lifting the sanctions is that they were “nuclear-related” because they had been imposed under an executive order aimed at nuclear proliferation and were aimed in part at proliferation-related activities.
The reporter followed up by asking whether there was any indication that Iran Air had ceased engaging in the activities that had resulted in the sanctions being put in place in 2011. The spokesperson responded, “I’m not at liberty to go into the reasons behind the fact that it was removed from the [Specially Designated Nationals and Blocked Persons] list. All I could tell you is that we wouldn’t have done that if we weren’t comfortable doing so.”
In fact, Iran Air had continued engaging in sanctionable activity, something the Administration likely hid from Congress.
- The Administration secretly and arguably illegally waived sanctions on Iran’s state-owned propaganda outlet,the Islamic Republic of Iran Broadcasting.
The Trump Administration is once again enforcing those sanctions.
The Obama Administration also spied on U.S. opponents of the Iran deal, both in Congress and in private pro-Israel organizations.
Pro-Israel activists reported that the Administration seemed to know exactly what they were saying and doing, and acted accordingly.
There have also been serious allegations that the Obama Administration undermined federal law enforcement efforts against the Hezbollah terrorist group to placate Hezbollah’s Iranian backers.
Debates about the soundness of the JCPOA as policy and the extent to which the executive branch can and should (within legal boundaries) circumvent Congress with regard to agreements with foreign powers are likely to continue indefinitely. But there seems little doubt that the Obama Administration’s aggressive efforts to sign and implement JCPOA despite congressional opposition and legal impediments involved a rather vigorous game of constitutional hardball.
In the age of President Trump, American norms of political and legal behavior are being challenged as never before.
It’s important to recognize, however, that Trump’s flouting of longstanding conventions of political discourse and his verbal attacks on the press and the rule of law are at least in part the culmination of a broader decline in norms that has been underway for some time. This decline, in turn, can be attributed in significant part to political polarization, in which both parties have shifted toward their ideological extremes and in which politically involved Americans see their partisan opposites not as well-meaning fellow citizens but as the enemy.
These factors have been the primary drivers of the constitutional hardball described by the authors.
The authors place disproportionate blame for the rise of constitutional hardball on Republicans. This Response shows that the case for such blame is not nearly as clear-cut as the authors suggest. Regardless, it seems undeniable that both parties are engaged in tit-for-tat constitutional hardball which shows no signs of diminishing. While constitutional hardball is not always inappropriate, the increased level of hardball is gradually undermining extraconstitutional norms that underpin the American political and legal system. If that trend continues, the American people will be the inevitable losers.