Constitutional showdowns.

• Author: Posner, Eric A.

Constitutional law and politics is full of (what the headlines call) "showdowns" between and among branches of government. (1) When the Democratic Congress began investigating the dismissal of United States Attorneys, congressional committees issued subpoenas and the White House asserted executive privilege to block advisers to the President from being forced to testify. (2) This is a familiar Washington pattern, which usually ends in a bargained compromise between the legislative and executive branches, but occasionally ends up in a large-scale showdown. In the latter case, the result may be litigation that creates a judicial precedent, a political settlement that creates a nonjudicial precedent, or both.

Showdowns occur between the President and the courts, between Congress and the courts, as well as between the President and Congress. Indeed, some showdowns involve all three branches simultaneously, or threaten to do so. When congressional committees issue subpoenas and the executive asserts privilege, the courts may eventually be asked to enforce the subpoenas. When Franklin Roosevelt at tempted to pack the Supreme Court, the attempt implicated congressional as well as judicial prerogatives, because a bill was necessary to expand the number of seats on the Court. Some legislators opposed the bill even though (they claimed) they would have favored a constitutional amendment. (3)

The idea of a constitutional showdown seems, at first, hopelessly vague. But informal talk of showdowns is extremely widespread and persistent in both scholarship and in the popular press, and there is undoubted pretheoretical appeal to the category, which seems to capture one major mechanism of constitutional development. Our project here is to put some theoretical backbone into the idea of a constitutional showdown. (4) We attempt to give a usable definition of the idea, analyze the circumstances under which showdowns will or will not occur, and offer some normative observations about whether the American constitutional system tends to produce too many or too few showdowns, and whether the showdowns it does produce occur under socially optimal circumstances.

Part I defines showdowns both conceptually and by example and organizes our succeeding claims. Part II examines the social costs and benefits of showdowns. The main benefit is that showdowns clarify the constitutional allocation of powers, reducing transaction costs and uncertainty in later periods or generations. The main costs are that showdowns can produce needless conflict and erroneous or premature resolution of constitutional issues in the current period, given that circumstances and constitutional controversies are constantly changing over time.

Part III argues that the observed rate and distribution of showdowns will in all likelihood diverge from the socially optimal rate and distribution of showdowns. The branches of government and the officials who staff them will produce showdowns when the private benefits exceed the private costs, not when the social benefits exceed the social costs. Although it is not clear, in theory, whether showdowns will be too many or too few, we suggest some institutional reasons for thinking that the American constitutional order produces too few showdowns and too much uncertainty about the allocation of constitutional powers.

In Part IV, we elicit the main normative implication: where the social benefits of clarifying the constitutional allocation of authority for future generations are large, and the countervailing costs of constitutional conflict and erroneous or premature resolution of issues are low, institutions should be encouraged to practice the active virtues as opposed to the passive virtues. (5) Rather than ducking constitutional conflicts, they should be encouraged--through incentive-based institutional design, public suasion, or other means--to engage in more constitutional showdowns than they would otherwise choose. A brief conclusion follows.

1. PRELIMINARIES

   We will define constitutional showdowns both extensionally, by examples and paradigm cases (in Section A), and intensionally, by necessary and sufficient criteria (in Sections B and C). The former procedure is appropriate for family-resemblance complexes, where there are many related ideas that share no single common property or defining feature; the idea of a constitutional showdown doubtless has a family-resemblance structure of this sort. Nonetheless we think it will be useful to the reader to attempt a conceptual definition as well, if only to indicate more clearly where our theoretical concerns lie.

   1. Examples

      To motivate the later discussion, and to indicate the sorts of cases we have in mind, consider the following examples of the three major categories of showdowns we will discuss.

      1. Presidential-Congressional Showdowns

         Impeachments are the most dramatic constitutional showdowns, and inevitably create precedents. Andrew Johnson's impeachment for violating the Tenure of Office Act, which forbade presidential removal of certain cabinet officers without congressional approval, was defeated by a single vote; the Supreme Court later cited this episode to support a conclusive constitutional rule in favor of presidential power to remove executive officers, (6) or at least "purely" executive officers. (7) The Nixon impeachment had a double precedential effect, both creating legal forms that were used in the Clinton impeachment, and provoking a constitutional showdown between Nixon and the Court that itself created a judicial precedent on executive privilege. (8)

         Struggles over appointments and executive privilege can, of course, result in constitutional showdowns even where no impeachment eventuates. A pure example of a constitutional showdown occurred when

         [o]ne year into President [George H.W.] Bush's term, Congress passed ... a provision prohibiting the United States from spending any money authorized for international conferences on the U.S. delegation to the Conference on Security and Cooperation in Europe unless that delegation included representatives of the Commission on Security and Cooperation in Europe. This Commission was composed almost entirely of members appointed by the legislative branch. .... Given the far-reaching challenge to powers of the presidency, President Bush's response was extremely forceful. He announced that the provision was unconstitutional, and that he would refuse to enforce it.... .... ... [W]hile the House of Representatives' lawyer bitterly complained about the President's refusal to enforce the law, members of Congress took no further action. (9) 2. Presidential-Judicial Showdowns

         Here too some cases result in a judicial precedent and some do not. In the latter situation, consider Lincoln's decision to defy a habeas corpus order issued by Chief Justice Taney (in Ex parte Merryman) during the opening days of the war. (10) This counts as a showdown because Lincoln's action was based on a particular view of presidential power to defy the courts in situations of extreme crisis, where doing so is necessary to save "all the laws, but one"; (11) because the judges acquiesced through inaction, and through extreme deference to Lincoln until the end of the Civil War; and because Lincoln's action created a (nonjudicial) constitutional precedent that clarified the constitutional lines of authority and is cited to this day by constitutional theorists with various views of presidential power, judicial power, and the role of emergencies in constitutional law. (12)

         The former situation is exemplified by some of the most famous cases in constitutional law, such as the Steel Seizure case, Youngstown Sheet & Tube Co. v. Sawyer, (13) and the Watergate tapes case, United States v. Nixon. (14) In the former, the Court rejected a claim by President Truman that he had constitutional power to seize steel plants to prevent a work stoppage that would have cut off war material for American forces in Korea; (15) in the latter, the Court rejected a "generalized" claim of executive privilege and forced Nixon to turn over Oval Office recordings that had been lawfully subpoenaed in a grand jury investigation. (16) In both cases, the President, unlike Lincoln, promptly acquiesced by obeying the Court's orders, and the cases have set the terms of various separation of powers controversies to the present day.

      3. Congressional-Judicial Showdowns

         A central storyline of American constitutional history involves showdowns between Congress and the judiciary. (17) As usual, such showdowns have created precedents even when no judicial decision ensued. During Reconstruction, the Republican Congress manipulated the number of Justices in order to deny Democrat Andrew Johnson appointments to the Court, first lowering the number of seats and then raising the number when Ulysses S. Grant came into office. (18) Congress's actions during this period were a prominent precedent for Franklin Roosevelt's Court-packing plan; the failure of that plan itself set a precedent that weighs against future manipulation of the Court's membership.

         Other actions of the Reconstruction Congress did result in judicial precedents. One was to enact legislation that deprived the Court of jurisdiction to hear a pending case, thus preventing the Court--were the legislation upheld--from limiting congressional power to deploy military commissions in the former Confederacy. Bowing to the political winds, the Court upheld the jurisdiction-stripping statute in Ex parte McCardle. (19) The decision has served as an important precedent in many later episodes and cases; although its authority has been questioned by commentators, (20) and the Court has in later episodes typically used aggressive statutory construction to find jurisdiction while avoiding the constitutional questions, this sort of controversial posthistory is the fate of many prominent precedents, both judicial and nonjudicial.

   2. Defi...