Institutional Standoffs Not All That Rare

Posted June 22, 2012 at 4:43pm

Much has been made of recent high-profile clashes between the branches of government as if they are unique or rare, but such constitutional standoffs are more the rule than the exception.

At least that’s the opinion of Senate Historian Donald Ritchie and other government experts.

“They are a result of the constitutional separation of powers and have been going on since George Washington was president,” Ritchie said.

“In the past, some of the greatest clashes occurred during the presidencies of Andrew Jackson, John Tyler, Andrew Johnson, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Richard Nixon and Bill Clinton, peaking with the impeachment efforts against Johnson, Nixon and Clinton,” Ritchie continued. “This fulfills James Madison’s explanation of the separation of powers: ‘Ambition must be made to counteract ambition.’  

“One branch is always trying to check another,” Ritchie said. “Not all of the clashes have been between the president and Congress, however. They have also been between the courts, Congress and the president, and between the two houses of Congress.”

Ritchie’s comments come as the Supreme Court is expected to rule as soon as today on whether the Affordable Care Act — the trademark legislative accomplishment of Democrats in the last Congress and President Barack Obama — is constitutional.

Several other clashes are either working through the courts or headed in that direction, including a possible House vote this week to hold Attorney General Eric Holder in contempt of Congress over the administration’s decision to deny the House Oversight and Government Reform Committee documents by citing executive privilege.

“From at least James Madison’s point of view, this is really how it was expected to work out,” said Steven Smith, who heads the Weidenbaum Center on the Economy, Government and Public Policy at Washington University in St. Louis.

“Each institution will end up having somewhat different interests and assert them,” Smith said. “In due course, these questions were to be settled by the Supreme Court … and the court ends up being a pretty important arbiter of these disputes.”

Smith noted that branches tend to clash more under divided government, such as what currently exists with a Democrat in the White House and a Republican-controlled House.

But the Supreme Court is not exempt from some of those pressures. For instance, Sens. Patrick Leahy (D-Vt.) and Chuck Grassley (R-Iowa) and Senate Majority Whip Dick Durbin (D-Ill.) are asking the Supreme Court to televise its proceedings.

Leahy and Grassley — the chairman and ranking member of the Senate Judiciary Committee — wrote to Chief Justice John Roberts last week, urging the court to consider live television coverage of its proceedings when it delivers the health care ruling.

“We believe permitting the nation to watch the proceedings would bolster public confidence in our judicial system and in the decisions of the Court,” they wrote.

Grassley is a co-sponsor of a bill by Durbin to require the Supreme Court to permit television coverage of all open sessions unless it decides by a majority vote that allowing such coverage in a particular case would violate the due process rights of any of the parties involved. The Judiciary Committee passed the bill in February, which was introduced in an effort to prod the court to televise the health care law arguments, in February, but it’s still unclear whether the full Senate will consider it.

Members of Congress have also pushed back against pressure coming from the judicial branch.

Earlier this month, U.S. District Judge Reggie Walton ruled that Oversight and Government Reform Chairman Darrell Issa (R-Calif.), Holder’s chief nemesis on the contempt imbroglio, did not have to testify in the trial of former major league baseball pitcher Roger Clemens. Clemens’ lawyers wanted Issa to testify in the case over whether Clemens lied to Congress during its investigation of steroid use. Lawyers for the House invoked the Speech or Debate Clause, a rule that seeks to protect lawmakers from being unduly influenced by other branches of government.

Another standoff pitted Senate Republicans against the Obama White House over recess appointments. In January, Obama appointed Richard Cordray to head the Consumer Financial Protection Bureau and filled three slots on the National Labor Relations Board.

Republicans questioned the legitimacy of the recess appointments and charged the White House with overreach. The GOP contends that Congress was not in recess when the appointments were made because it held short pro-forma sessions every three days during the holiday break when Obama made his move. The White House argued that the pro-forma sessions were a gimmick and didn’t count as a bona fide session.

Last week, a Texas bank and two free-market advocacy groups filed suit against the Cordray appointment and are seeking to have parts of the Dodd-Frank financial system reform law, which created the CFPB, deemed unconstitutional. The plaintiffs are represented by C. Boyden Gray, former White House counsel to George H. W. Bush.

Another showdown set the George W. Bush White House against Senate Democrats over judicial nominations. With Democrats filibustering Bush’s appellate court nominees, frustrated Republicans, led by then-Majority Leader Bill Frist
(R-Tenn.), threatened to eliminate the filibuster to prevent judicial confirmations.

Ultimately, 14 Senators — seven Democrats and seven Republicans — developed a gentlemen’s agreement in 2005 that broke a judicial logjam.

Sarah Binder, a historian of Congress at George Washington University and senior fellow at the Brookings Institution, believes most of these affairs are more partisan dust-up than constitutional crisis.

“I think true crises are rare,” Binder said.

“I more see the [recent issues] as institutional flare-ups,” she said. “As the parties have polarized, there is greater effort to stake out positions that are seemingly unacceptable to the other side.”

For example with the Holder issue, “This isn’t both Democrats and Republicans in the House calling on the attorney general to cooperate. These are House Republicans calling on a Democratic administration to cooperate. The fact that House Democrats have opposed it suggests to me that it’s not really huge constitutional crises here, but they are endemic to periods of divided government.”