This short essay, written for Notre Dame Law Review's conference on congressional gridlock, argues that gridlock is an expected and integral component of the legislative process. The bicameralism and presentment requirements of Article I of the U.S. Constitution make legislation difficult to pass in order to protect the public from the whims of shifting congressional majorities. Nevertheless, gridlock that is based primarily on partisan considerations rather than policy differences can be unconstitutional, as defined by Supreme Court caselaw, if it stymies legislation that is in the public interest. The remedy for "unconstitutional" gridlock is not judicial action, however; the solution lies in devolving policymaking authority down to the states, allowing them to address the problem as it manifests within their borders. While not ideal, this temporary fix has some federalism benefits as it encourages experimentalism in law and policy as well as citizen participation in democratic processes at the state level. Moreover, as illustrated by recent controversies over immigration reform, when states take the initiative and craft policy to address national problems, their assertiveness can help break the gridlock by forcing Congress's hand.
In September of 2012, Republicans in the U.S. Senate blocked a jobs bill that would have provided one billion dollars over five years to help military veterans find work. (1) Veterans have one of the highest unemployment rates in the country, exceeding the national average of 7.8%. (2) Most states are facing their own budget deficits, making it unlikely that they could fund such an initiative. Despite the importance of this legislation, the media reported that Republicans in the Senate blocked the bill in order to deny the Democratic President, Barack Obama, any legislative accomplishments prior to the November 2012 election. (3)
This struggle over legislation that was once supported by members of both parties illustrates how the United States political system is a paradox of contrasts. It is governed by a Constitution designed to minimize faction and disperse ambition, (4) yet political scientists concede that "democracy is unthinkable save in terms of parties." (5) Despite our reliance on them, however, political parties in Congress have been responsible for blocking legislation that would further the interests of their constituents and that solves problems that have proven intractable when approached on a state by state basis, like the Veterans Jobs Corp Act of 2012. The notion that our democracy cannot function without parties has led us to overlook whether the efforts of parties to block or defeat legislation in Congress that would otherwise be in the interest of the people is unconstitutional. Perhaps a more precise question would be whether there are constitutional safeguards in place that can and should prevent such gridlock from occurring. (6)
This Essay argues that gridlock that is "excessively partisan," as defined by U.S. Supreme Court precedent, is unconstitutional. Thanks to political parties, gridlock has reached beyond Congress and infected the states, and it has the potential to put the entire system into a state of paralysis. Nevertheless, the solution lies, not with the courts, but in those aspects of the constitutional structure that devolve lawmaking down to the states. In particular, the bicameralism and presentment requirements of Article I that make federal legislation difficult to pass allow states to experiment with different policies and procedures to address some of these problems on a local scale. (7)
The Framers of the Constitution adopted the bicameralism and presentment requirements to slow the process of federal lawmaking, permitting a certain level of gridlock to persist within the federal system. (8) This structural quirk makes excessively partisan and unconstitutional gridlock difficult to address, but the fact that states can exercise significant authority during these times suggests that partisan gridlock, although unconstitutional, may result in a net positive for helping to recalibrate the balance of power in our federal system. Indeed, the recent immigration case of Arizona v. United States (9) stands as an example of state action in the face of federal inaction, and is instructive of the systemic effects of excessively partisan gridlock in Congress. While much of Arizona's immigration law was struck down by the Supreme Court, the small portion that was upheld makes the case a victory for Arizona because it leaves the state with more expansive authority to legislate in a domain that was previously thought to be exclusive to the federal government.
As the Arizona case shows, focusing on structural safeguards to address unconstitutional legislative gridlock is preferable to judicial action because the highly charged political disputes that often trigger excessive gridlock could undermine judicial legitimacy and make the Supreme Court appear political. In addition, it is doubtful whether there are any potential causes of action to address gridlock that do not run afoul of the Speech and Debate Clause of the Constitution or the ability of each House to choose the rules of its proceedings. (10) The states are not so limited in their ability to implement solutions within their borders in response to the gridlock in Congress.
Despite the lack of justiciability, it is still important to identify a threshold for when gridlock has exceeded constitutional bounds because, descriptively, it lets us know when the system has broken down. The Supreme Court's case law provides guidance on this point because, while there may be some disagreement over whether there should be judicial action in this area, many scholars agree that gridlock and the rules that promote it can be unconstitutional. (11) Like many other political issues resolved by the Court, congressional gridlock that is based on "excessive" partisanship is unconstitutional. Excessive partisanship is the threshold that the Court has used to describe what an unconstitutional partisan gerrymander would look like, (12) and alternatively, when political patronage in state employment has exceeded constitutional bounds. (13) Since legislative gridlock likely is not justiciable in the courts, the Supreme Court's case law has little else to offer the inquiry into gridlock's constitutionality besides serving as a descriptive starting point.
Pragmatically, the absence of a judicial remedy means that self-interested political factions in Congress can and will continue to block legislation on purely partisan grounds. While this certainly is not consistent with the constitutional text and structure given the Founders' concerns about faction, states retain authority to address issues that would otherwise go unresolved if left to Congress. During times of legislative paralysis at the federal level, states have expanded authority to address short-term legislative problems. Moreover, the devolution of this authority to the states may be best over the long-term as our system settles back into the routine, state-protective gridlock that is an intentional part of our constitutional fabric.
THE CONSTITUTIONAL STATUS OF GRIDLOCK: FRAMING THE PROBLEM
Gridlock is a problem that often delays or stymies action at the federal level, but arguably, its use and presence in our political system is consistent with the Framers' intent. In Article I, Section 7, or the Presentment Clause, the Constitution provides that "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated...." (14) The Constitution further provides that a two-thirds majority in both houses is required to override the President's veto. (15) This is an extremely high threshold to meet to get legislation passed, but as James Madison pointed out in the Federalist 51, this threshold is necessary to avoid the concentration of power in the hands of a few and to respect separation of powers. As Madison famously stated:
[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. (16) As Rick Pildes and Daryl Levinson have argued, the emergence of political parties shortly after the Founding rendered nugatory much of Federalist 51; (17) the existence of parties also complicates the constitutional questions surrounding gridlock that brings the legislative process to a virtual standstill. As Levinson and Pildes observe, the homogeneity of the political party structure has undermined the traditional Madisonian conception of separation of powers, a structural flaw that has, not surprisingly, led to ideologically unified party platforms and internal legislative rules that contribute to lockstep partisan support (and opposition) to each party's governing agenda. (18)
Although our current system is an obvious departure from the Madisonian ideal, distinguishing "permissible" levels of gridlock from gridlock that is "excessive" and therefore unconstitutional remains difficult. In this symposium, Gerard Magliocca discusses gridlock that we have to "live with," that is, gridlock resulting from the fact that "the nation is genuinely divided and our politicians reflect that view," (19) versus other types of gridlock that he believes are not at work in our current political climate. Arguably, one other form of gridlock that he identifies, where "there is a consensus among...