President Donald Trump’s latest salvo at Congress, threatening to thwart oversight and block testimony from executive branch witnesses, is a serious breach of political norms. With the release of Special Counsel Robert Mueller’s report, it is clear that Trump thinks no one should be able to hold him accountable — and he’s trying to force adherence to that principle by using aggressive stalling and blocking tacts with the Democratic lawmakers who were elected to stand up to him.
But these tactics from Trump shouldn’t surprise us. His attempt to undermine the Constitution’s checks and balances is part of a long-standing Republican strategy of seizing power through aggressive abuse of legal loopholes — a strategy known as constitutional hardball.
Legal scholars Joseph Fishkin and David E. Pozen outlined the concept in a notable paper on the topic:
Professor Mark Tushnet has defined constitutional hardball as “political claims and practices . . . that are without much question within the bounds of existing constitutional doctrine and practice that are nonetheless in some tension with existing pre-constitutional understandings.” Constitutional hardball tactics are viewed by the other side as provocative and unfair because they flout “the ‘go without saying’ as— assumptions that underpin working systems of constitutional government.” Such tactics do not generally flout binding legal norms. But that only heightens the sense of foul play insofar as it insulates acts of hardball from judicial review.
Writing for Lawfare, John Bies, the chief counsel for the non-profit American Oversight, argued that Trump’s efforts to deny Congressional checks on his administration is part of this pattern.
“Implementing a strategy designed to stonewall meaningful oversight across the board would also be a form of constitutional hardball that significantly increases the stakes in this contest of will between the branches,” he wrote.
But this isn’t unique to Trump. As Fishkin and Pozen argue, Senate Majority Leader Mitch McConnell’s decision to deny a Senate vote on Judge Merrick Garland, who President Barack Obama nominated to fill Justice Antonin Scalia’s seat when he died in 2016, was another example of constitutional hardball tactics.
“The recent blockade of Judge Garland fits Tushnet’s model nicely as there is a longstanding custom, but no clear-cut legal obligation, that the Senate provides timely advice and consent on Supreme Court nominations,” they wrote.
And of course, after the Garland blockade worked, Trump nominated Judge Neil Gorsuch to fill Scalia’s seat. McConnell bowled over Democratic opposition with another hardball tactic: Going nuclear on the Senate filibuster for Supreme Court justice nominations, meaning Gorsuch could be confirmed with only a bare majority vote.
McConnell defended these brute exercises of power by appealing to a made-up principle that Supreme Court nominees shouldn’t be confirmed during an election year. But no one should take this claim seriously. Should another seat open up in 2020, there’s little doubt that McConnell would play more hardball and work to confirm another Trump nominee to the bench.
Democrats aggressively filibustered President George W. Bush’s judicial nominees in 2002 and 2003. McConnell adopted this stance under Obama, which led Democrats to get rid of the filibuster on federal judge nominees and executive branch appointees. Many Republicans cited this precedent when McConnell later went nuclear to get Gorsuch confirmed.
So what can Democrats do? Mayor Pete Buttigieg, in his campaign for president, has drawn attention to some of these issues and has raised some interesting ideas. In particular, he has suggested court-packing as a response to the GOP’s hardball tactics.
However, his proposal is not just more hardball. He suggests increasing the number of Supreme Court seats to 15, with five appointees chosen by each party, and an additional five chosen by the consensus of the other 10. While this would be a major change, it actually tamps down partisan pressures by de-politicizing the Supreme Court and reduces the likelihood of intense power struggles over future appointments.
This kind of approach may be a promising path forward for restoring balance to the constitutional system without letting Republicans trample over Democrats.
But Fishkin and Pozen argue that while Trump’s presidency may have shaken some Democrats out of their complacency, once he is gone, the two parties are most likely to revert to their natural dynamics. That means Republicans will continue to escalate their tactics, and Democrats will only act in response to these provocations.
They also believe that Republicans’ tactics may undermine the party’s own aims. GOP hardball tactics, they argued, have “fueled demand for a mode of governance that makes governance itself more difficult.” In other words, the party may continue to lose control of the base it has worked so hard to please.
This is how constitutional hardball works. When one side in the partisan conflict raises the stakes, the other side feels compelled to respond in kind. Doing anything else is a sucker’s game.
But Fishkin and Pozen argue that, despite the tit-for-tat nature of constitutional hardball, the raising of the stakes has been dramatically tilted to one side. It’s Republicans who have, in their account, used hardball tactic much more aggressively than Democrats since at least the mid-1990s.
It’s clear, too, that Republicans don’t just play hardball with Democrats — they play it with voters, too. Their widespread use of gerrymandering to lock in seats for their party in state legislatures and the House of Representatives show how their tactics can be used to undermine basic Democracy. It’s an open question how far the Supreme Court will tolerate these attempts to let lawmakers choose their voters, rather than the other way around. But the GOP’s hardball tactics have allowed them to secure a majority on the court, making it much more likely that its gerrymandering will be deemed not to violate the Constitution.
Some of Trump’s tactics actually go beyond constitutional hardball. His administration’s refusal to comply with Congress’s legitimate request for his tax returns appears to violate the clear letter of the statute, which makes it a lawless power grab, rather than the exploitation of a loophole or disregard for a well-established norm. Many of Trump’s attempts to obstruct Robert Mueller’s investigation, too, seem to be clear violations of law. But the GOP appears poised to use its discretion and veto power in the matter of impeachment proceedings to effectively give legal and constitutional sanction to these actions.
But maybe, despite Fishkin and Pozen’s predictions, Democrats will finally get fed up with the dynamics described. How long can the branches of the federal government continue to function while the GOP feeds an increasingly radicalized base and seizes more disproportionate control over the levers of government power for extreme ends? Will Democratic voters simply accept as their votes are rendered pointless by excess gerrymandering, an unrepresentative Congress, and a Supreme Court willing to overturn any significant progressive legislation?
It’s a recipe for not just continued conflict but outrage and discord. Each step to claim more power is craven, and it reduces the perceived legitimacy of the government. The Republicans are playing with fire, but they don’t seem to care.