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The big news on the first of October was not the eight cases the Supreme Court added to its argument docket for the upcoming term, but rather the shutdown of much of the federal government. The Constitution’s Appropriations Clause provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” so without legislation authorizing that spending, the government cannot function. Republicans in the House of Representatives brought us to that point by refusing to fund the government unless implementation of the Affordable Care Act was postponed. The shutdown was a dramatic example of an ongoing effort by a conservative faction in Congress to dismantle the federal government.
In its new term, the Supreme Court will hear at least one case that arises from the partisan-fueled paralysis, which continues even though Congress did eventually pass a temporary measure to reopen the government and raise the debt ceiling. That case, National Labor Relations Board v. Noel Canning, concerns appointments to the body responsible for overseeing federal labor law. Seats on the five-member Board are subject to Senate confirmation, and given the two parties’ very different visions of labor-management relations, this has been a contentious process for decades. In order to break the impasse, many recent presidents have relied on their power under Article II, section 2 of the Constitution to “fill up all Vacancies that may happen during the Recess of the Senate.” These temporary “recess appointments” are especially critical now thanks to the Supreme Court’s 2010 decision in New Process Steel v. National Labor Relations Board, which held that the Board cannot exercise any authority if its membership falls below three. Conservative senators saw in that decision a road map for disabling the Board by preventing nominees from coming up for a vote. Senator Lindsey Graham declared that rendering the Board “inoperable could be considered progress.”
In Noel Canning, a conservative panel of the D.C. Circuit—a court whose own vacancies have lasted for years due to partisan wrangling—held that presidents can make recess appointments only during the recess that occurs between sessions of Congress and not during recesses that occur within a session. The court reached this conclusion despite the history of more than 500 intra-session recess appointments, including appointments of Cabinet secretaries, a chairman of the Federal Reserve, a director of central intelligence, and more than a dozen federal judges. More radically the D.C. Circuit held that the president cannot make a recess appointment at all unless the vacancy occurs during that same recess. Thus, for example, if a vacancy arises because an officeholder dies while Congress is in session, the president lacks the power to appoint a temporary successor, even if Congress goes into the inter-session recess the next day.
The framers sought to design a Constitution 'against parties.' They failed.
The Supreme Court is aware of the effect that partisan gridlock has had on appointments. Last term in Arizona v. Inter Tribal Council, a case involving Arizona’s attempt to impose restrictive identification requirements on citizens registering to vote, Justice Antonin Scalia’s opinion for the Court noted that the federal Election Assistance Commission, the body responsible for overseeing implementation of the National Voter Registration Act, currently lacks a single member. Justice Samuel Alito’s dissent observed, “There is no reason to believe that it will be restored to life in the near future.”
Noel Canning offers the Court an opportunity to break a small part of the logjam by restoring the president’s power to fill crucial vacancies. Yet, whatever the outcome of Noel Canning, constitutional litigation cannot likely do much about the toxic nature of contemporary politics. That is because the current paralysis is at least partly enabled by unintended features of our constitutional system itself.
To be sure, the framers intended that the structure of the government “furnish the proper checks and balances between the different departments,” to quote the title of Federalist No. 51. At the same time, the framers shared a deep distrust of “factions”—the eighteenth-century term for what we today call political parties. So they sought, in historian Richard Hofstadter’s phrase, to design a “constitution against parties.”
They failed. Within a decade, organized national parties emerged. The election of 1796 produced a president from one party and a vice president from the other (imagine Sarah Palin as Barack Obama’s second-in-command), and the election of 1800 was thrown into the House of Representatives because the original structure of the Electoral College produced a tie between Thomas Jefferson (the Democratic-Republican Party’s candidate for president) and Aaron Burr (its candidate for vice president).
Because the framers did not anticipate national political parties, they assumed that Congress would use its powers under the Elections Clause of Article I, section 4 to ensure fair representation. Recognizing the danger that a state’s legislature might “make an unequal and partial division of the states into districts for the election of representatives,” Theophilus Parsons, a delegate to the 1788 Massachusetts convention ratifying the Constitution, responded that the members of Congress from other states “without the influence of our commotions and factions” would “hear impartially, and preserve and restore to the people their equal and sacred right of election.” Fat chance. Today senators and representatives from each state are part of the same faction—a national political party—and actively encourage partisan gerrymanders in each others’ states.
The composition of the current House of Representatives is the product of an aggressive, conscious series of partisan gerrymanders, which Justice Scalia, citing Parsons’s rosy-eyed vision in a 2003 plurality opinion, found to be beyond the Court’s power to review. Because Republicans controlled more state legislatures during the post-2010 census redistricting process, they drew maps that enabled their party to retain a majority of the seats in the House even though their candidates received around 1.4 million fewer votes nationwide than Democratic candidates did. (For particularly striking examples, consider that in Pennsylvania, Republicans won thirteen of eighteen House seats and in both Michigan and North Carolina, nine of fourteen, even though Democrats received a majority of the votes cast in each state’s congressional races.) As political scientists Norman Ornstein and Thomas Mann explain in their 2012 book It’s Even Worse Than It Looks, the United States now has two parliamentary parties—disciplined, ideologically distinct organizations—operating within a constitutional system whose separation of powers makes it impossible for the public to hold eitheraccountable.
While there may not be an immediate, direct role for constitutional litigation in restoring our politics, the Supreme Court could at least stop exacerbating the existing pathology. The Court’s treatment of political spending, for example, hastened the diversion of resources into independent expenditures that often involve attack ads by shadowy groups unaccountable to the public. This term it may further increase the role of wealthy donors, depending on the outcome of McCutcheon v. Federal Election Commission, in which the Court must decide the constitutionality of a federal aggregate limit of $123,200 in political contributions to candidates, parties, and PACs every two years. And the Court’s evisceration of the Voting Rights Act’s preclearance provisions has triggered a wave of restrictive state laws that may skew the electorate. When the Court referees disputes between the political branches—as it will in Noel Canning—it should consider ways to lower the temperature, rather than further enflaming our already heated politics.
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