AGAINST HISTORICAL PRACTICE: FACING UP TO THE CHALLENGE OF INFORMAL CONSTITUTIONAL CHANGE.

• Author: Griffin, Stephen M.

Contentious disputes over war powers and judicial nominations in the Obama and Trump administrations as well as recent Supreme Court cases have drawn increased attention to the use of historical "practice" in American constitutional law. The use of governmental practice to inform legal analysis has a long pedigree in the American constitutional tradition. (*1) In this Essay I will argue that it is nonetheless fundamentally flawed in multiple ways that suggest it should be replaced or, at least, reconstructed. Practice-based accounts of constitutional law should be understood as raising the crucial question of how to understand the phenomenon of informal constitutional change. This is change that is acknowledged by legal authorities as part of the content of constitutional law, perhaps even equivalent in significance to a formal amendment, but has occurred outside the Article V process. To replace the use of practice, I advocate an approach which I call "constitutional change as state building." (2)

My argument has several steps. In Part I, I describe the current use of practice in constitutional law. Two types of appeals are suggested by the relevant scholarship. First, there is the "comity" version associated with Justice Frankfurter's influential test in Youngstown. (3) This version holds that repeated actions by one of the political branches of government along with "acquiescence" on the part of the responding branch can create an authoritative interpretation or "gloss" with respect to the meaning of the Constitution--new law in fact. (3 4) Second, there is the "invitation to struggle" version suggested by Edward Corwin's famous remark concerning the locus of constitutional power in foreign policy. (5) This version also stresses institutional relationships but sets them within a context of contestation between the branches of government for power and control. This latter version is perhaps best exemplified by the controversy over presidential war powers. (6)

In general terms, I argue that both of these versions are underdeveloped. They ignore the relationship of the various incidents of the use of governmental power to the kind of contextual analysis used by historians. In addition, they fail to answer the practical question of how lawyers and officials are to know when enough incidents of "practice" are sufficient to generate law. Arguably, they should be treated as proto-theories of constitutional change of the kind offered, for example, by Bruce Ackerman and Jack Balkin. (7) Yet they have not been treated as such, perhaps because practice-based accounts are mostly confined to separation of powers doctrine. (8)

To elaborate this argument, I specify seven objections to practice-based accounts of constitutional law in Part II. I illustrate the force of these objections in Part III by discussing several examples drawn from the dispute over presidential war powers. Part IV presents my alternative theory, constitutional change as state building, which requires incidents of governmental action to be institutionalized in a constitutional order before they can be regarded as valid law.

1. THE ROLE OF PRACTICE IN CONSTITUTIONAL LAW

   With respect to the use of governmental practice to inform the content of constitutional law, there would seem to be no shortage of recent examples, thanks in part to the unusual presidency of Donald Trump. (9) Indeed, we are seemingly experiencing a never-ending blizzard of new "precedents." At least until President Trump was impeached by the House of Representatives, perhaps the most striking was his declaration of a national emergency with respect to the situation at the U.S.-Mexico border, made to unlock funds he used to build the border wall that Congress refused to provide. (10) Informed commentators have argued that Trump's response to the investigation into Russian influence on the 2016 election set new precedents contrary to those established in the earlier Watergate scandal in terms of the involuntary removal of the FBI Director and the Attorney General. (11) With Trump, there are always more examples. (9 10 11 12) In response to requests for records from the House Democratic majority, the White House signaled it would not cooperate in any way, another break with the past. (13) Trump has also bypassed the Senate confirmation process by purporting to appoint "acting" heads of cabinet departments in a way arguably not allowed by federal law. (14)

   The legislative branch has been active as well in the Trump era. The Republican-controlled Senate used the "nuclear option" in order to cut down the time presidential nominees to certain offices are considered on the floor. (15) In addition, the Senate confirmed a nominee from California to the U.S. Court of Appeals for the Ninth Circuit without the consent of either senator from that state. This was a definite departure from the so-called "blue-slip" procedure and thus a break from past practice. (16)

   These examples are departures from prior practice and perhaps are "precedents" in some sense. But are they legal precedents? Do they establish new law? That is what is asserted in practice-based accounts of constitutional law. (17) These assertions take inspiration as well as borrow authority from the use of practice by the Supreme Court. The Court's resort to the use of practice or "gloss" has been reasonably common in constitutional law across the years, especially in separation of powers doctrine. (18)

   In the landmark Steel Seizure case, (19) Justice Frankfurter laid down an influential marker with respect to practice-based arguments. Following up on the use of such arguments in cases such as United States v. Midwest Oil (20) and The Pocket Veto Case, (21) he stated:

   The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive power" vested in the President by sec. 1 of Art. II. (22) Several features of Frankfurter's endorsement of "gloss" are worthy of note. Frankfurter advocates an "operational" approach to constitutional change. Studying how government operates in practice can contribute to our understanding of constitutional meaning--albeit with the important proviso that it cannot contradict the Constitution or statutory law. At the same time, Frankfurter signals that the textualist approach associated with Justice Black (23) is inadequate, a point that perhaps has special force in the context of separation of powers. These features of Frankfurter's discussion have influenced my own approach to informal constitutional change, discussed in Part IV.

   There are more recent examples of the use of practice by the Supreme Court. In NLRB v. Noel Canning, (24) the Court decided for the first time the meaning of the recess appointments clause, which gives the president the power to fill vacancies in executive offices that arise "during the recess of the Senate." (25) In determining whether it was constitutional for President Obama to appoint members of the National Labor Relations Board (NLRB) during a period when the Senate was holding short pro forma sessions, the Court emphasized the role of historical practice, (26) especially given that the case concerned "the allocation of power between two elected branches of Government." (27 28) Citing cases that included McCulloch v. Maryland (28) and The Pocket Veto Case, (29) the Court through Justice Breyer stated they showed "that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era." (30) He concluded his discussion of practice by saying that where the Court had not interpreted the constitutional clause in question, (31) "we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached." (32)

   Noel Canning and Zivotofsky v. Kerry, (33) which is something of a companion case, can be seen as embodying what I shall call a "comity" version of the value of examining "accepted understandings and practice" (34) between the political branches. In Zivotofsky, the Court examined practice in determining whether the president's power to recognize foreign governments is exclusive. It discussed six "historical incidents" (35) at some length, (36) while referring to many more. (37) In general, these incidents happened in full view of Congress and usually with its support. In fact, the Court remarked that "[a]t times, Congress itself has defended the President's constitutional prerogative." (38) It concluded that "[t]he weight of historical evidence indicates Congress has accepted that the power to recognize foreign states and governments and their territorial bounds is exclusive to the Presidency." (39)

   The discussion in Noel Canning and Zivotofsky suggests that the comity version of practice depends on there being an overlapping area of agreement between the executive and legislative branches. The historical incidents seem to be well-known to both branches. Hence the responding branch, typically Congress, has the opportunity to object and thus defend its own constitutional position against encroachment or...