Constitutional Workarounds Mark Tushnet

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1499-1515

  Tushnet, Mark ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 69249183263     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (95)

1. See U.S. CONST, amend. XX ("The terms of the President and Vice President shall end at noon on the 20th day of January ....").
2. Id. amend. XXV.
3. The problem to which this solution responds is created by the statutory designation of the Tuesday after the first Monday in November as the date on which the presidential election is to be held, 3 U.S.C. § 1 (2006), but in the future, the length of the period between election and January 20th can be reduced by pushing the election into December or January. Note, however, that this solution is not available in the hypothesized setting and would, on the facts imagined, exacerbate rather than solve the problem of having a president in office who had been (decisively) repudiated. The parenthetical qualification responds to the observation that a president's repudiation might not be thought decisive without an election.
4. This proposal is from the organization National Popular Vote. See National Popular Vote!, Explanation of National Popular Vote Bill, *http://www.nationalpopularvote.com/pages/explanation. php. This organization describes the proposal as follows: Under the National Popular Vote bill, all of the state's electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes-that is, enough electoral votes to elect a President (270 of 538). Id.
5. Critics of the proposal have argued that conditional enactments of this sort are functionally equivalent to interstate compacts, which require congressional consent to be legally effective under Article I, Section Ten, Clause Three of the U.S. Constitution.
6. Stanley Chang, Recent Development: Updating the Electoral College: The National Popular Vote Legislation, 44 HARV. J. ON LEGIS. 205, 214 (2007) (arguing that a relevant test is whether the National Popular Vote would enhance state power relative to that of the federal government).
7. Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 ELECTION L.J. 372, 372 (2007) "The diminished political effectiveness of the non-compacting states' electoral votes is a sufficient interest to invoke the procedural safeguard of congressional consent and render the Interstate Compact unconstitutional in the absence of that consent.").
8. Daniel P. Rathbun, Ideological Endowment: The Staying Power of the Electoral College and the Weaknesses of the National Popular Vote Interstate Compact, 106 MICH. L. REV. FIRST IMPRESSIONS 117, 118 (2008) (arguing that any agreement between states disrupts the vertical balance between the states and the federal government).
9. However, in U.S. Steel Corp. v. Multistate Tax Commission, the Court found no violation of the Compact Clause in the actions taken by a body created by conditional statutes providing that the body would come into being when seven or more states enacted similar statutes. 434 U.S. 452, For an example, see ALASKA STAT. § 43.19.010, art. X (2008) which provides that "[the] compact shall enter into force when enacted into law by any seven states." The Court in U.S. Steel noted that congressional consent had been sought but not obtained. 434 U.S. at 458 n.8. which provides that [the] compact shall enter into force when enacted into law by any seven states." The Court in U.S. Steel noted that congressional consent had been sought but not obtained. 434 U.S. at 458 n.8. According to the Court, the Compact Clause was aimed at agreements among the states that "would enhance the political power of the member States in a way that encroaches upon the supremacy of the United States" or that "authorizefd] the member States to exercise ... powers they could not exercise in [the agreements'] absence." Id. at 472-73. I am skeptical of the claim that the proposal is a compact requiring congressional consent, but for present purposes we can simply assume that it was submitted to and approved by Congress (admittedly, an unlikely outcome given the adverse effects of the proposal on "swing" states with small populations).
10. The proposal rests on the assumption that the moral pressure exerted by the existence of the statutes and the popular support for their enactment will lead nearly all electors to do "voluntarily" what the statute purports to require. For the suggestion that state legislatures cannot control the votes cast by presidential electors by, for example, imposing criminal sanctions on the "faithless elector," see Vasan Kesavan, The Very Faithless Elector?, 104 W. Va. L. REV. 123, 124-125 (2001).
11. See U.S. CONST, amend. XX, § 1 ("[T]he terms of Senators and Representatives [shall end] at noon on the 3d day of January ... and the terms of their successors shall then begin.").
12. See 5 U.S.C. § 5303(b)(1) (2006) (authorizing the President to adjust pay rates).
13. The provision was enacted in 1990, before Senator Clinton took office. Pub. L. No.101-509, 104 Stat. 1389 (codified at 5 U.S.C. § 5303).
14. see Adam Nagourney, Bush and Gore Vie for an Edge with Narrow Electoral Split; Hillary Clinton Goes to Senate; Big Victory for First Lady in Contest With Lazio, N.Y. TIMES, Nov. 8, 2000, at Al (announcing Clinton's victory in 2000).
15. Exec. Order No. 13,454, 73 Fed. Reg. 1,481 (Jan. 8, 2008).
16. See 155 CONG. REC. S693 (daily ed. Jan. 21, 2009) (confirming Senator Clinton's nomination).
17. U.S. CONST, art. I, § 6, cl. 2.
18. For a discussion of the Saxbe fix and other relevant practices, see Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 STAN. L. REV. 907,909-911 (1994).
19. Compensation and Other Emoluments Attached to the Office of Secretary of State, Pub. L. No.110-455, 112 Stat. 5036 (2008).
20. I put aside here the argument, which I think plausible though not much more than that, that Senator Clinton's becoming Secretary of State did not violate the Emoluments Clause because the salary was increased pursuant to an action authorized by a statute enacted before her relevant term of service began.
21. For a more comprehensive discussion of the background summarized here, see NAFTA: Final Text, Summary, Legislative History & Implementation Directory 1-4 (James R. Holbein & Donald J. Musch eds., 1994).
22. See Maryse Robert, Negotiating NAFTA 42-44 (2000) (describing the process of ratifying NAFTA in the United States, Canada, and Mexico).
23. See id. at 42-43 (observing that Clinton endorsed a free trade accord with Canada and Mexico even though "a large number of Democrats" were opponents of NAFTA).
24. NAFTA: Final Text, Summary, Legislative History & Implementation Directory, supra note 15, at 3.
25. See ROBERT, supra note 16, at 43 (noting that approval of NAFTA was uncertain in Congress because of opposition from labor and environmental groups).
26. See, e.g., Made in the USA Found, v. United States, 242 F.3d 1300, 1304 (11th Cir. 2001) (explaining that NAFTA was adopted by "simple majorities in both Houses, pursuant to the procedures reserved for ordinary legislation" and not by use of the Treaty Clause, which requires a Senate supermajority).
27. See 139 CONG. REC. HI0,048 (daily ed. Nov. 17, 1993) (reporting that the bill passed the House 234 to 200).
28. 139 CONG. REC. S16,712-713 (daily ed. Nov. 20, 1993).
29. For this view, see Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1249-1278(1995). For the view that NAFTA was properly adopted as a congressional-executive agreement.
30. see Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 801, 802 (1995). Ackerman and Golove agree with Tribe that under the Constitution as adopted in 1789, NAFTA would have to have been enacted as a treaty but argue that constitutional changes after World War 11 effectively amended the Constitution to allow its adoption as a congressional-executive agreement. Id. at 802-03. A more conventional view is that such agreements are allowed by the Constitution for international trade agreements and that treaties must be used as a means of undertaking international obligations only in connection with agreements of a political nature, mutual defense agreements, and similar military agreements.
31. For a summary of the positions taken by academics, see Steve Charnovitz, Using Framework Statutes to Facilitate U.S. Treaty Making, 98 AM. J. INT'L L. 696, 702-704 (2004).
32. U.S. Const, art. I, § 7, cl. l.
33. See Erik M. Jensen, The TAxrNG Power: A Reference Guide to the United States CONSTITUTION 171 (2005) (asserting that "practice" has made the Origination Clause "a nullity," and commenting that "in practice the Senate's power to amend is generally understood to be so broad that the Senate can replace the entire text of a bill that technically originates in the House").
34. For a discussion of cases in which there is some distortion of the texts used in the workarounds, see infra text accompanying notes 28-29.
35. In this Article, I focus on workarounds as legislative devices and do not consider how the courts should respond to them, for several reasons. Challenges in court to some workarounds would undoubtedly face serious justiciability objections. Courts could uphold some workarounds on the merits, which would deprive those enactments of their status as workarounds. And judicial interpretation can itself be a workaround. See infra text accompanying notes 36-37. But assessing whether the courts would or should uphold specific workarounds would involve a tedious exercise in suggesting the best interpretations of a diverse and probably large number of constitutional provisions. Finally, the most interesting workarounds involve actions plainly consistent with the Constitution's text when we consider only the texts on which the workarounds are based. If workarounds involve using one part of the text to overcome another, a judicial decision finding a workaround impermissible would use the latter to overcome the former.
36. In comments on an earlier version of this Article, Richard Primus observed that "prohibits" is sometimes too strong a characterization. Sometimes the first textual provision assumes an outcome-that the President will take office on January 20-but does not prohibit other outcomes.
37. In informal conversations, Vermeule and Bradley have discussed the possibility that the courts could develop what they call "anticircumvention rules," the effect of which would be to require that one part of the text prevail over the other so as to block some workarounds. Again, determining when one provision of the Constitution has priority over another seems to me an extremely difficult if not impossible task. They also suggested that such rules arise when courts are concerned that the workaround is motivated improperly. For a discussion of that suggestion, see infra text accompanying notes 38-39.
38. Note the importance of the requirement that neither constitutional provision appears to have priority. A proposed workaround might be unconstitutional if, for example, it purported to rely on a general constitutional provision to overcome a more specific obstructive one. So, for example, Congress could not rely on the Commerce Clause to enact a nonuniform rule of bankruptcy even though bankruptcy rules clearly "regulate Commerce ... among the several States," U.S. CONST, art. I, § 8, cl. 3, because the more specific Bankruptcy Clause gives Congress the more specific power to "establish ... uniform Laws on the subject of Bankruptcies throughout the United States
39. This is notwithstanding the text giving Congress the power to set salaries generally. An alternative view of the fraud inherent in the Saxbe fix is that it relies on Congress's general power to set salaries to overcome the obstruction created by the more specific Emoluments Clause. I thank Adrian Vermeule for pointing out this view to me.
40. I am hard-pressed to come up with other fraudulent workarounds, perhaps because Congress rarely acts in ways that reflect its judgment that a specific constitutional text can be ignored. I suspect that some would treat the modern expansion of the Commerce Clause as a fraudulent workaround, but-given the Supreme Court's endorsement of that expansion-it seems to me that the expansion should be treated as at most a contested workaround.
41. U.S. CONST, art. I, § 7, cl. 1
42. see also Rainey v. United States, 232 U.S. 310, 317 (1914) (establishing that the Senate can propose, as an amendment, a new section to a revenue bill provided that the bill originated in the House).
43. See, e.g., Printz v. United States, 521 U.S. 898, 935 (1997) (holding unconstitutional a statute enacted under the Commerce Clause imposing such an obligation on local law enforcement officers).
44. 252 U.S. 416 (1920).
45. Id. at 434.
46. The very fact that there is disagreement about when congressional- executive agreements can substitute for treaties, if they ever can, establishes that those agreements are examples of contested workarounds.
47. Perhaps contested workarounds should be understood in this way: rather than one constitutional provision being used to work around an obstructive provision, judicial interpretation is used as a way of working around that provision by interpreting it to eliminate the apparent obstruction.
48. Again, this thought was first suggested in informal conversations between Vermeule and Bradley.
49. I owe this suggestion to Richard Primus.
50. This response to the definitional move is particularly acute in connection with true workarounds and has some bite in connection with contested ones, where the definitional move seeks to resolve discrete problems of constitutional interpretation wholesale. I believe that the latter point deals with a question posed to me by Adrian Vermeule. Consider this passage from Boumediene v. Bush: The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.... Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another.... ... The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. 128 S. Ct. 2229, 2258-59 (2008). This suggests that maintaining the U.S. detention facility at Guantanamo Bay might be justified by the government's power to keep the nation secure by placing the detention facility in the most secure location available but cannot be justified by a simple desire to ensure that detainees there do not have access to the federal courts. Yet, why can the power to "acquire, dispose of, and govern territory" not be the basis for working around the Suspension Clause? 1 believe that the answer must lie in the Suspension Clause itself and not in anything generic about workarounds. But, I should add, I am willing to be persuaded otherwise.
51. Mark Tushnet, Taking the Constitution Away from the Courts 9-14(1999).
52. So, for example, the Emoluments Clause reflects a judgment about how best to combat the risk of congressional corruption and self-dealing, and the Origination Clause reflects a judgment that efforts to impose taxes on the people should begin with a decision by a legislative chamber close to the people.
53. In this aspect, the idea of a thin Constitution is similar to the "basic structure" doctrine in Indian constitutional law. According to that doctrine, amendments to the Constitution can be unconstitutional if they alter the nation's basic structure. Kesavananda Bharati v. Kerala, A.I.R. 1973 S.C. 1461, 1535 (India).
54. U.S. Const, art. II, § 2.
55. See id. art. I.
56. The suggestion originated in comments by Mark Graber on a draft of this Article.
57. Cf. T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir. 1964) ("It has come to be realized that Mr. Justice Holmes' formula is more useful for inclusion than for... exclusion ....").
58. New York v. United States, 505 U.S. 144, 181 (1992) ("The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities .... 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'") (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting)).
59. They may do so no matter what external observers such as legal academics might say about the propriety or constitutionality of any specific workaround.
60. Some contested workarounds might be exceptions. See supra text accompanying notes 33-38 (observing that contested workarounds actually involve reasonable disputes about what a constitutional provision means).
61. I take this formulation from a blog post by Jack Balkin. Posting of Jack M. Balkin to BALKINIZATION, *http://balkin.blogspot.com/2008/ll/theory-of- constitutional-workarounds.html (Nov. 20,2008, 10:17 EST).
62. Some authors have observed that treaties might authorize action beyond the powers enumerated in Section Eight of Article I, for two reasons: (l)the treaty enactment process is actually more difficult than obtaining majorities in both houses, and (2) congressional-executive agreements should be limited to subjects within the scope of the enumerated powers so that the overall point of the enumeration is not worked around or evaded. See, e.g., Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 STAN. L. REV. 1557,1568 n.47 (2003) (citing the relevant scholarship on this distinction).
63. Balkin suggests that there might be different "veto players" for workarounds than for ordinary legislation, which should be distinguished from the proposition that some workarounds require agreement by a larger number of veto players. Balkin, supra note 52. I do not see why this should be systematically so for workarounds generally. Statutory workarounds are simply statutes, although a particular workaround might go through a different congressional committee-and so a different veto point-than would a proposed constitutional amendment to eliminate the constitutional difficulty to which the workaround responds.
64. This is subject to the possibility of objections (at the outset) on constitutional grounds. See supra text accompanying notes 31-32 (discussing the constitutional issues raised by a Saxbe fix).
65. We might describe the costs here as (political) transaction costs, increasing as the number of participants required for a successful workaround increases. Such costs might decrease somewhat when the required participants interact frequently on matters other than workarounds, both because familiarity might make bargaining easier and because repeated interactions allow the participants to develop trades across the workaround and the other matters on which they deal.
66. See infra text accompanying notes 74-75
67. See supra notes 45-46 and accompanying text.
68. Analysis of this claim is complicated by the fact that votes on adopting a congressional-executive agreement take two positions simultaneously: on the merits of the agreement and on the propriety of using such an agreement rather than a treaty.
69. I draw this suggestion from the previously mentioned correspondence between Vermeule and Bradley. See supra note 29. For a discussion of "constitutional moments," see Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1022, 1022-24 (1984).
70. John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 Texas L. Rev. 703,705 (2002).
71. See, e.g., Paulsen, supra note 12, at 909-911 (reviewing and criticizing the historical practice of remedying facial violations of the Emoluments Clause by later repealing a pay increase and so preventing a net increase in pay).
72. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) ('"[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned ... may be treated as a gloss'... [although p]ast practice does not, by itself, create power....") (Frankfurter, J., concurring) (quoting Youngstown Steel & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 610-611 (1953)).
73. Note that the claim is not that opportunities for corruption and self-dealing have become too small to worry about. Although I have made this claim elsewhere. E.g., TUSHNET, supra note 42, at 35. The claim here is that the ban the Emoluments Clause imposes is not significantly related to the opportunities that actually do exist. Jacob Gersen, commenting on an earlier version of this Article, pointed out that one might have to worry that the Emoluments Clause was part of a package of provisions dealing with the risk of executive domination of the legislature and that a full-scale assessment of that Clause's contemporary significance would have to consider the extent to which it interacted with the rest of the package.
74. But see Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361, 375-376 (2004) (recounting reliance in the Constitutional Convention on existing practices to explain the insertion of the Origination Clause in the proposed Constitution).
75. id. at 423-424 (observing that some members of the Constitutional Convention argued that the Origination Clause as drafted would be ineffective)
76. U.S. CONST art. 1, § 2, cl. 1 (requiring elections for each member of the House of Representatives to occur "every second year").
77. U.S. CONST, art. I, § 3, cl. 1, amended by U.S. CONST, amend. XVII (providing for the direct election of Senators to serve six-year terms).
78. Substantial bipartisan agreement on a workaround might be understood as the contemporary mechanism by which the American people agree to disregard an obstructive constitutional provision, i.e. as a form of popular constitutionalism. On popular constitutionalism generally, see Larry Kramer, The People Themselves: Popular Constitutionalism And Judicial Review (2004).
79. Similarly, we would not want to say we are attempting a workaround if the statute is later held unconstitutional by the courts.
80. Modern Emoluments Clause workarounds have been adopted without more than a handful of opposing votes (the fix for Senator Clinton was adopted by unanimous consent in the Senate). 154 CONG. REC. SI0,885 (daily ed. Dec. 10, 2008) (statements of Sen. Durbin and the Presiding Officer). I suspect that Origination Clause workarounds may have met more opposition, but on the merits of the revenue-raising legislation the Senate was substituting for the House's proposal and not on the acceptability of the workaround device.
81. The qualification "ordinarily" is necessary because it is barely possible that the repudiated President might have been defeated by a defector from her own party running as an independent candidate.
82. For my effort to present that understanding in a reasonably comprehensive account of the U.S. Constitution, see Mark Tushnet, The Constitution of the United States of America: A Contextual Analysis (2009).
83. For the foundational works on this subject see Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000).
84. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv.L. Rev. 2311(2006).
85. The actions might be improvident on the merits, that is, because they are bad components of constitutional design or because they introduce the possibility of political contention over an issue that will consume so much attention that political energy will not be available to deal with other, perhaps more important, issues.
86. The lack of political will can be quite understandable and probably defensible. Some, perhaps many, workarounds deal with relatively "small" constitutional provisions, and it would be undesirable to insist that each time we discover a problem associated with such a provision, we must use the Constitution's difficult amendment procedures to eliminate the problem-at least in a context where a workaround is available.
87. See INS v. Chadha, 462 U.S. 919, 959 (1983) ("The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.").
88. Id.
89. See Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ("While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government") (emphasis added).
90. For further discussion of these anticircumvention rules, see supra note 29 and accompanying text.
91. In my view, that is the real ground of the decision in Chadha and not that the obstructive constitutional provisions there had to be honored even though they made the government unworkable.
92. Consider the civil jury trial right, for example. Its trigger-"where the value in controversy shall exceed twenty dollars"-could not be defended on any rational grounds today. U.S. CONST, amend. VII.
93. That is one way to understand the general perception that the Supreme Court's invalidation of legislative vetoes in the Chadha decision did not effectively eliminate the device or devices essentially equivalent to it. See LOUIS FISHER, CONGRESSIONAL RESEARCH SERVICE, LEGISLATIVE VETOES AFTER Chadha (May 2, 2005), https://www.policyarchive.org/bitstream/handle/10207/4116/ RS22132-20050502.pdf ("Congress no longer relies on one-house or two-house vetoes, but committee and subcommittee vetoes continue to be a part of executive legislative accommodations.").
94. Both Jacob Gersen and Richard Primus raised this point in their comments on an earlier version of this Article.
95. Charles Darwin, On the Origin OF Species 396 (Gillian Beer ed., Oxford Univ. Press 1996) (1859).