Gridlock, legislative supremacy, and the problem of arbitrary inaction.

• Author: Teter, Michael J.
• Position: The American Congress: Legal Implications of Gridlock

INTRODUCTION

Gridlock has Congress in a headlock. Gripped by stalemate, America's chief lawmaking body can barely muster the ability to make law. Some argue that this is as it should be--or, at least, as the Framers planned. (1) In actuality, rather than furthering the Framers' vision, gridlock undermines many principles that, together, establish our governmental structure.

Specifically, gridlock threatens the fundamental constitutional doctrines of separation of powers and legislative supremacy. Moreover, as many scholars have noted, (2) the Framers were concerned with preventing arbitrary governmental action. Gridlock not only makes the arbitrary exercise of governmental power more likely, but also implicates a new concern: the problem of arbitrary inaction. From tax cuts and the budget deficit, to immigration policy, to taking up key executive and judicial nominations, gridlock prevents Congress from acting on matters that undoubtedly rest within the proper realm of the federal government.

My central thesis, then, is this: congressional gridlock threatens our constitutional structure--both as originally constructed in 1787 and as it currently stands. As discussed below, stalemate undermines the core constitutional principles of separation of powers and legislative supremacy, while heightening the risk of arbitrary government decisions--and indecision. Though these core ideas are linked, I will discuss each concept in turn, in hopes of better illustrating the constitutional problems posed by congressional gridlock.

1. WHAT IS GRIDLOCK?

   This Symposium rests on a basic premise: congressional gridlock presents a problem serious enough to warrant a day and valuable ink spent discussing it. I agree. But what is "gridlock?" Put simply, gridlock--or stalemate, as I will use these terms interchangeably--is the inability of Congress to make substantive policy decisions. (3) In other words, the failure by Congress to enact legislation is not, in and of itself, gridlock. Nor are plummeting confirmation rates for judicial and executive branch nominees necessarily signs that the Senate is suffering from stalemate. If Congress chooses to maintain the status quo or if the Senate decides to reject a nominee, that amounts to a substantive decision.

   But that's not what is happening. With increasing frequency, Congress fails to make policy decisions. For that reason, we've seen far fewer laws enacted during recent Congresses than in the past; (4) the percentage of nominees for whom the Senate takes no action is increasing; (5) the number of cloture votes is at record highs; (6) and Congress is routinely turning to new legislative procedures and gimmicks to overcome gridlock, but those often serve only to allow Congress to avoid making substantive policy decisions. (7)

   Moreover, gridlock does not always result in preserving the status quo. It depends instead on the default rules in place. Take the recent example of the tax cuts enacted during President George W. Bush's first term. Those cuts were set to expire on December 31, 2012. (8) President Obama and congressional Democrats supported renewing the tax cuts for Americans earning less than $250,000. (9) Republicans preferred to extend the cuts across the board. (10) Despite the shared desire to maintain the tax cuts for most people, gridlock nearly kept Congress from enacting any extension. In that case, the absence of a substantive decision from Congress would have been a change in the status quo.

   There are many possible causes of gridlock: congressional rules (11)--and specifically, the Senate rules surrounding the filibuster (12)--gerrymandered congressional districts, (13) and a polarized electorate, (14) to name a few. The purpose of this piece, however, is not to debate the causes of, and possible fixes to, congressional stalemate. Instead, the focus is on the constitutional concerns raised by this period of acute gridlock, no matter its roots. It is to those problems that I will now turn.

2. GRIDLOCK'S THREAT TO SEPARATION OF POWERS

   The separation of powers principle forms the core of our constitutional structure. (15) Though justices and scholars disagree about much of the concept's requirements, (16) consensus exists as to the basic elements of the separation of powers doctrine. (17) Specifically, the Framers built into the principle two distinct--and in many respects, contradictory--functions. First, the Framers adopted Montesquieu's vision of a government composed of three distinct branches, each with its own legitimate sphere of authority, each serving separate functions. (18) The Framers then complicated the simple division of authority by combining the separate functions approach with a system of checks and balances. (19) This concept requires not separation, but interconnectedness. The branches check each other by involving themselves in the others' functions, at least partially.

   While efforts to reconcile these two competing elements of a "uniquely American" (20) version of separation of powers have resulted in an "incoherent" (21) and "abysmal" (22) jurisprudence, some clarity remains. In particular, for the separation of powers doctrine to fulfill its basic purposes, each branch of government must be able to act--both to meet its functional responsibilities and to check the other branches so as to maintain the proper constitutional balance of powers.

   With this understanding in mind, it is not difficult to see the threat that congressional gridlock poses to separation of powers. (23) First, gridlock prevents Congress from acting--from fulfilling its functional role as the primary lawmaking body of our national government. The 112th Congress, for example, enacted only 283 laws, far fewer than past Congresses. (24) The 111th Congress enacted 383 laws; (25) the 110th passed 460. (26) Indeed, if you look back at the period from 1973-1993, Congress enacted an average of 629 laws each session. (27) The closest any Congress has come to the futility of the current Congress was in 1995-1997, when it enacted 333 laws. (28) These figures are stark and only become more notable when one also takes account of the economic crisis the United States faced during this period. In other words, it is not from the lack of a compelling need for legislation that Congress fails to act. It is gridlock. Thus, a stalemated Congress means that the essential legislative functional needs of the national government largely go unmet and, as I will discuss later, push the executive and judiciary to fill in the gap.

   Additionally, stalemate also negatively affects the other two branches' ability to fulfill their own functions. The federal judiciary is facing a vacancy crisis that stems in large part from gridlock. (29) The judicial emergency is affecting the branch's ability to satisfy its functional responsibilities in a timely and efficient manner. (30)

   The consequences reach into the executive branch, too. For example, in 2010, the Supreme Court invalidated nearly 600 decisions by the National Labor Relations Board because the Board was operating without a quorum of at least three members. (31) Gridlock in the Senate that kept the chamber from acting on several nominations to the Board was largely responsible for the five-person Board dwindling down to two. (32) A similar fate befell the Federal Election Commission in 2007 and 2008, when it lacked the necessary membership to achieve a quorum. (33) There again, Senate stalemate was the culprit. (34) Gridlock, then, not only hinders Congress's own ability to function, but negatively affects the other branches' fulfillment of their constitutional responsibilities.

   Gridlock also frustrates the second element of separation of powers: checks and balances. The underlying purpose of this feature is to allow each of the three branches to guard against efforts by the other two to aggrandize power or usurp another branch's authority. (35) The President's main checking power comes through his veto; the judiciary's ability to check stems from judicial review. Congress's check comes through its power to legislate: to set the nation's agenda through policymaking, to override presidential vetoes and judicial statutory interpretations, and to provide meaningful oversight of the executive branch. Congress cannot perform this checking function if it cannot make deliberative decisions. Were one of the other branches deprived of its checking power--imagine a President without the veto or a judiciary without judicial review--the separation of powers problem would be manifest. (36) A legislature unable to legislate presents no less serious a concern.

   What practical effect does congressional gridlock have on checks and balances and the separation of powers? The starting point is to acknowledge that Congress's problems are not happening behind an iron curtain. The other two branches are well aware of the gridlock gripping Congress and, at least in some instances, this emboldens the other branches to fill in the power vacuum because they know that no inter-branch conflict will arise. Thus, when the President ignores the War Powers Resolution--thereby expanding executive power over an area constitutionally shared with the legislature-Congress cannot check him. (37) Nor can Congress assert its constitutional authority when the President responds to a stalemate in the Senate by recess appointing two National Labor Relations Board commissioners and the head of the Consumer Financial Protection Board, justifying the action by interpreting the Constitution's Recess Appointments Clause differently than congressional leaders and parliamentarians. (38) Gridlock also stymies efforts by Congress to respond to statutory interpretations by the federal judiciary. (39) For example, were the judiciary to extend authority beyond its constitutional role--through employing improper statutory interpretation techniques, by ignoring limits on its jurisdiction, or by...