Constitutional Cliffhangers: When Law and Politics Mix

I promised to offer today some of the “general lessons” from my new book, Constitutional Cliffhangers. I will divide them into two posts that excerpt and paraphrase the final chapter of the book. This one will deal with the way that law and politics interact when constitutional cliffhangers play out.

For the cliffhangers that would play out entirely in court (presidential prosecutions and self-pardons), one would hope that judges would base their decisions on law, not politics. When Clinton claimed he was immune from Paula Jones’s civil suit, all nine justices disagreed, including the four liberals. Similarly, when President Nixon refused to turn over the Watergate tapes, the justices — many of whom Nixon had appointed — were unanimous in ordering him to.

But the starting point for most cliffhangers is that the law is unclear. When the law is in equipoise but the politics are screamingly unbalanced, the court’s decision will be inextricably linked with its political context. Here, the example is not Clinton or Nixon, but Bush v. Gore.

The Bush v. Gore litigation was, on its face, all about the complicated legal issues; no lawyers said in court, “My client should win because he belongs to your favorite political party, your honor.” But it was evident that if Bush won the case, he would win the presidency. That political ramification overwhelmed the legal issues. Few believe that all nine justices would have voted the same way if the parties had been reversed. When politics infuse the courts like that, the moral authority of the judicial system necessarily suffers. There is an added incentive, then, to prevent constitutional cliffhangers if we think that they would play out in court in such a politicized manner.

Several of my cliffhangers also implicate the political-question doctrine, through which courts leave decisions to the political branches. Alas, the political-question doctrine is not overly clear. Moreover, the doctrine seems to have been weakened lately as federal courts have grown more assertive about inserting themselves into conflicts like these. Compare the disputed 1876 presidential election, in which Congress’s ad hoc resolution carried the day with nary a peep from the Supreme Court, to the disputed 2000 presidential election, in which the Supreme Court’s ad hoc resolution carried the day with barely a peep from Congress.

For most of our cliffhangers, letting the courts get involved would be perceived as a good thing. In many instances, the courts can provide faster and more decisive action than Congress. The Court is, justifiably or not, currently exalted as the nation’s ultimate authority over the Constitution. Moreover, some cliffhangers involve Congress as one of the combatants, and some arise because of congressional carelessness or ineptness. For cliffhangers like those, the courts have much less incentive, and much less basis, to give Congress the last word in resolving them.

Some constitutional cliffhangers surely would play out in Congress, though, and the presence of politics there seems less controversial. Congress is full of politicians — politics clearly “belong” there. To return to Bush v. Gore, if a dispute is going to be resolved by a party-line vote, isn’t it better to have that vote in Congress than in the Supreme Court? Even a seemingly objective issue like presidential disability will be infused with politics, as both sides carefully weigh the political ramifications of their choices and ponder who might deserve the benefit of the doubt.

The Constitution assigns lots of tasks to Congress, from the mundane (passing laws, confirming presidential nominees) to the exceptional (impeachment, presidential disability disputes, winner-less presidential elections). The Constitution’s Framers opted for flexibility, painstakingly creating a structure through which these matters — often matters of great constitutional import — can be settled by ordinary political actors being ordinary and political. This system works well and would work even better if we gave it more of a chance.

But if matters are assigned to Congress because it is representative and accountable, this presents a problem when Congress falls short on either score. An imperfect Congress cannot resolve constitutional cliffhangers with the same legitimacy as a “better” Congress. And there are plenty of imperfections in Congress’s representativeness and accountability. We have corruption, our questionable campaign-finance system, gerrymandered House districts, the disproportionateness that is the Senate, the continued toleration of filibusters, sheer inefficiency, and so on.

There are too many opportunities for Congress to get things wrong. When it comes to situations like deciding which of two contenders is the rightful acting president, there is a dangerous possibility that Congress would thwart the will of the people rather than promote it. In ordinary times, the people can reassert their control in an orderly manner every two years when they vote in congressional elections. But in the middle of a struggle over control of the White House, waiting for the next election would be insufficient and courts seem like the better venue if the Constitution allows it.

Finally, there are presidential politics. In each chapter, the more popular the president (or would-be president) is, the more likely he or she is to emerge victorious, or to not get in trouble in the first place. It’s worth considering two other facets here: the president’s commander-in-chief power, and his populist power to mobilize the public.

In my Tuesday and Wednesday posts, when two people claimed the presidency, it mattered whose side the military took. This is troubling. Our norm of civilian control of the military is threatened if the military starts choosing presidents. On the flip side, though, civilian control could paralyze the military if there were two people claiming to be commander in chief, with two putative secretaries of defense. It would be intolerable for the military to choose sides, but also for it not to choose sides. Perhaps worst of all is a third possibility: the military could be divided and choose both sides. There is no good answer here, just more incentive to prevent the cliffhangers.

Also potentially decisive is the relationship between the president and the public. In yesterday’s post, for instance, the president could not even think about evading term limits unless he had very strong popular support. If that support translated into an electoral victory in November, it would confer a unique legitimacy on him. It is unclear how well suited “populist constitutional law” is for interpreting narrow procedural provisions, but Congress and the courts would resist the people at their peril.

Less comforting is the possible role of the people “out of doors.” Citizen-mobs who take to the streets can be decisive, whether because they galvanize opinion, frighten opponents, or provoke a reaction from the state. We are in the midst of a relatively quiet period in American history, mob-wise, but this potential is never far from the surface, and angry assemblages have played an important part in American constitutional history.

The more credible the courts and Congress are, the longer the mobs would hold off, and the more likely a formal decision would be to quiet things down. Conversely, if Congress and the courts are delegitimized, public demonstrations might actually be the most legitimate way to resolve the conflict. Looking back into our history, and thinking about possible futures, we should not dismiss out of hand the potential contributions of an American public that is mobilized (the etymological source of the word “mob”) and exercising its First Amendment right to assemble.

On the other hand, nobody is in a better position to whip the public into a frenzy — to inspire mobs to form, and to move them to action all over the country — than the president. The problem is that in many constitutional cliffhangers, nobody will have a better incentive to do so than the president. In calmer times, the political cost of being a shameless demagogue is high enough to keep these pressures contained. But when a cliffhanger occurs, that balance could change and those pressures could explode.

As with the military, to the extent that the role of mobs is troubling to us, it provides yet another incentive to fix and avoid these cliffhangers. Fixing and avoiding cliffhangers will be the subject of my next, and final, post.

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