Toward a Practice of Bodycheck Constitutionalism

Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from mistreatment by the bully on the block. How about throwing some weight instead?

Senator Ron Johnson’s fists are stuffed in his pockets as he runs across the Capitol Plaza to the pillared edifice where parental figures in black robes dispense constitutional wisdom evidently inaccessible to the rest of us. The Wisconsin Republican is suing President Obama over the administrative agreement that protects members of Congress and their staff from the legal requirement—which, by the way, was the product of asinine posturing, but which is also, you know, law, which you can tell because it bears the President’s signature—that they purchase insurance on the Obamacare exchanges.

BodycheckJohnson presents a creative argument for standing, asserting a personal injury in his capacity as manager of his Senate office. Fair enough. But the real argument here is for standing for members of Congress to sue when Presidents fail to faithfully execute the laws. That is a recipe for a litigious brew. It is also an abdication of the wide-ranging self-defensive tools members of Congress already possess but refuse to use. They need not appeal to the refs. The maneuver to which they need to resort—thanks to Richard Reinsch for the image—is the bodycheck.

Congress is the First Branch, and its arsenal is ample. Impeachment is the A-bomb of weapons, but there is plenty of effective ordnance short of it. Congress can refuse, as Justice Scalia noted in his Windsor dissent, to confirm nominees or approve funding for prized programs until presidents execute with the law.

This bodycheck constitutionalism is the intended form of self-defense—see Federalist 51, which makes no mention of judicial review in separation of powers cases—and it is, for several reasons, superior to the appeal to the refs. It keeps political disputes in the political realm of prudence, conversation and compromise rather than, as in the courts, absolute winners and losers. It would invigorate an enervated Congress for more frequent battle with overreaching executives.

Moreover, the political route leaves room for the rare instances, which ought not be precluded, in which Presidents refuse to execute laws they regard as unconstitutional—which, to be sure, is different from saying they ought to sign them one day and relegate them to non-enforcement the next, or, inexplicably, to do so simultaneously. This authority to decline to give force to unconstitutional laws imbeds further protection for liberty while engaging the president in constitutionalism, and it is also part of the system of departmental defense that maintains the separation of powers.

Bodycheck constitutionalism would, additionally, spare us the spate of suits almost certainly to be unleashed by any ruling giving members of Congress standing to sue over the enforcement of laws for which they vote. The alternative, moreover, is the further exaltation of the judiciary to the center of constitutional disputation in the United States. If one believes prudent wisdom flows from the water taps in the Supreme Court building, so be it. But if one holds judges to be as fallible as the rest of us—and if one is concerned, indeed, that such exaltation might go to the heads of mortals—one might want decisions made in a branch more easily susceptible of political correction.

The judiciary was never supposed to have the power to police separation-of-powers disputes, nor was any one department supposed to wield exclusive power over constitutional interpretation. To elevate one branch to that status is to render it superior to the others in one of the most elemental powers in the regime: declaring the rules of the game.

Bodycheck constitutionalism, by contrast, would unleash the clashing of clout that powers the constitutional regime. Indeed, so ample are the powers of bodycheck constitutionalism that the mystery is why Congress does not already engage in it. One reason, in fairness to Senator Johnson and his colleagues, is that constitutional issues are rarely politically salient. Americans worship at the holy altar of getting-things-done; the idea that they ought to get done in a certain way and by certain rules to which we have mutually agreed is a nuisance.

But that does not explain the collapse of the political psychology of the separation of powers, which presumes each branch defending its interests in the name of protecting its authority. In teaching Federalist 51, George W. Carey used to present this thought experiment to his American Political Thought classes: Can we conjure the image of a Presidential candidate whose only aspiration was the big house, the jet airplane and the other appurtenances of office consequently bartering all his future power to Congress in exchange for its electoral support? Of course not. Presidents are interested in exercising power.

Increasingly, though, this is precisely the bargain members of Congress strike. For growing numbers, the trappings of office seem more important than the power they exercise. According to the psychology of Federalist 51, they ought to be interested in protecting their own power regardless of the political punch of constitutional conversation. That they are not—that their first recourse is not to the bodycheck but to the refs—speaks well of neither them nor us.

Greg Weiner, who teaches political science at Assumption College, is a former political consultant and the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics. He is currently working on a book on the political thought of Daniel Patrick Moynihan.

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Comments

  1. Anonymous says

    I find it offensive to say that requesting judicial relief of an overbearing executive or legislative action is the “equivalent of appealing to one’s parents for relief from mistreatment by the bully on the block.” The judicial branch was created the way it was for a reason: It has life time appointments. As such it cannot be bullied by anyone, that’s the whole point of the judicial branch. Does congress have other ways of defending itself, yes, but they are not always effective and usually only work for an executive that is “playing by the rules.” Congress has no real ability to control the executive without a two-third majority in both houses in agreement. Frankly that VERY rarely occurs for obvious reasons (you need people in the president’s party to vote against their own president). Impeachment is out without 2/3 in the senate, congressional override of veto is out without 2/3 in both houses.
    Congress has the power of the purse, true, and that gives them at least a little leverage but several things stop this from being as effective as it could be. 1) The president has veto power, and so without a super majority in both houses of congress, this cannot be used as a weapon to stop an executive (as he can just veto anything he doesn’t like). 2) Most of what the president wants to fund will continue to be funded regardless of if there is a shutdown because congress won’t go along with the president, if it has any connection to the “safety of human life or the protection of property” which could justify most of what the government does especially among discretionary spending (at least if stretched a bit and indirectly) and all mandatory spending continues (which is 65% of government spending). 3) even when things into spending bills, the president just ignores those parts he doesn’t like with a signing statement and spends the funds on whatever he wants (see http://goo.gl/H7FBjn) 4) When a federal agency like CFPB is funded entirely by the Federal Reserve, there is no “power of the purse.”
    Without the courts to enforce those provisions which are put into spending bills which the president consciously and purposefully ignores, there is no real power of the purse other then shutting down the government and waiting till the president gives in (if he ever will). That’s the practical equivalent of Mutually Assured Destruction at best (assuming the president isn’t in his second term and will never run for office again).
    Can the senate refuse to appoint people until the president agrees to do something, yes that’s true they can, and at times they have done so effectively (see NLRB and CFPB). But its rare for a reason, and it just got a lot more rare with the elimination of the filibuster for several reasons: 1) The president can select an “acting director” of an agency for 210 days. 2) The president can recess appoint those that congress wont confirm. (although the Noel Canning case might close this loophole soon, it could also dodge the real questions and just decide that pro-forma meetings are real meetings, which would leave the recess appointment clause open at least once a year). 3) It would require the unified support of 51 senators continuously stopping qualified candidates (that just doesn’t happen very often and most senators say they refuse to block any qualified nominee). 4) Even when that happens as it did recently, the president just “declared the senate in recess” and appointed them anyway, they have been operating like that for the last 2 years.
    Our system of government’s checks and balances almost always require two branches to override the 3rd for all actions which are not the enforcement of laws (which only require one branch to stop) and with the exception being impeachment which requires 2/3 of both houses of congress. Yes congress can provisions through with the power of the purse to limit the executive but that only works if the courts will enforce those provisions. The president can stop congress vetoing spending bills or, if they have 2/3’s, by refusing to recognize them with the judicial backup if/when someone sues refusing to help the congress enforce those provisions. And finally the congress and the president can strip the federal judiciary of jurisdiction if it is doing unconstitutional things. Two branches of the government working together can stop the 3rd, that’s the way checks and balances are meant to work (except for enforcing criminal laws against individuals). In the case of enforcing criminal laws against individuals it only requires one branch to disagree, the congress can repeal the statute it thinks is unconstitutional with 2/3 (that stops the criminal law), the president can refuse to prosecute a statute he thinks is unconstitutional (that stops the criminal law), and the court can declare it unconstitutional (that stops the criminal law).
    The court only answers balance-of-power disputes between the president and the congress, it cannot override the president and congress when they speak in unison. It does not decide what is constitutional, it can only speak for its 1/3 of government not for the whole thing. For instance if congress and the president wished, for instance, they could remote all federal court jurisdiction in all cases concerning abortion and return it to the state supreme courts to decide. That would be fully constitutional with the president and congress checking the power of the courts.

  2. Anonymous says

    I find it offensive to say that requesting judicial relief of an overbearing executive or legislative action is the “equivalent of appealing to one’s parents for relief from mistreatment by the bully on the block.” The judicial branch was created the way it was for a reason: It has life time appointments. As such it cannot be bullied by anyone, that’s the whole point of the judicial branch. Does congress have other ways of defending itself, yes, but they are not always effective and usually only work for an executive that is “playing by the rules.” Congress has no real ability to control the executive without a two-third majority in both houses in agreement. Frankly that VERY rarely occurs for obvious reasons (you need people in the president’s party to vote against their own president). Impeachment is out without 2/3 in the senate, congressional override of veto is out without 2/3 in both houses.

    Congress has the power of the purse, true, and that gives them at least a little leverage but several things stop this from being as effective as it could be. 1) The president has veto power, and so without a super majority in both houses of congress, this cannot be used as a weapon to stop an executive (as he can just veto anything he doesn’t like). 2) Most of what the president wants to fund will continue to be funded regardless of if there is a shutdown because congress won’t go along with the president, if it has any connection to the “safety of human life or the protection of property” which could justify most of what the government does especially among discretionary spending (at least if stretched a bit and indirectly) and all mandatory spending continues (which is 65% of government spending). 3) even when things into spending bills, the president just ignores those parts he doesn’t like with a signing statement and spends the funds on whatever he wants (see http://goo.gl/H7FBjn) 4) When a federal agency like CFPB is funded entirely by the Federal Reserve, there is no “power of the purse.”

    Without the courts to enforce those provisions which are put into spending bills which the president consciously and purposefully ignores, there is no real power of the purse other then shutting down the government and waiting till the president gives in (if he ever will). That’s the practical equivalent of Mutually Assured Destruction at best (assuming the president isn’t in his second term and will never run for office again).

    Can the senate refuse to appoint people until the president agrees to do something, yes that’s true they can, and at times they have done so effectively (see NLRB and CFPB). But its rare for a reason, and it just got a lot more rare with the elimination of the filibuster for several reasons: 1) The president can select an “acting director” of an agency for 210 days. 2) The president can recess appoint those that congress wont confirm. (although the Noel Canning case might close this loophole soon, it could also dodge the real questions and just decide that pro-forma meetings are real meetings, which would leave the recess appointment clause open at least once a year). 3) It would require the unified support of 51 senators continuously stopping qualified candidates (that just doesn’t happen very often and most senators say they refuse to block any qualified nominee). 4) Even when that happens as it did recently, the president just “declared the senate in recess” and appointed them anyway, they have been operating like that for the last 2 years.

    Our system of government’s checks and balances almost always require two branches to override the 3rd for all actions which are not the enforcement of laws (which only require one branch to stop) and with the exception being impeachment which requires 2/3 of both houses of congress. Yes congress can provisions through with the power of the purse to limit the executive but that only works if the courts will enforce those provisions. The president can stop congress vetoing spending bills or, if they have 2/3’s, by refusing to recognize them with the judicial backup if/when someone sues refusing to help the congress enforce those provisions. And finally the congress and the president can strip the federal judiciary of jurisdiction if it is doing unconstitutional things. Two branches of the government working together can stop the 3rd, that’s the way checks and balances are meant to work (except for enforcing criminal laws against individuals). In the case of enforcing criminal laws against individuals it only requires one branch to disagree, the congress can repeal the statute it thinks is unconstitutional with 2/3 (that stops the criminal law), the president can refuse to prosecute a statute he thinks is unconstitutional (that stops the criminal law), and the court can declare it unconstitutional (that stops the criminal law).

    The court only answers balance-of-power disputes between the president and the congress, it cannot override the president and congress when they speak in unison. It does not decide what is constitutional, it can only speak for its 1/3 of government not for the whole thing. For instance if congress and the president wished, for instance, they could remote all federal court jurisdiction in all cases concerning abortion and return it to the state supreme courts to decide. That would be fully constitutional with the president and congress checking the power of the courts.

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