The phenomenology of gridlock

Notre Dame Law Review

Volumn 88, Issue 5, 2013, Pages 2065-2088

  Chafetz, Josh ^a  

^a MIT Sloan School of Management   (United States)

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EID: 84883301475     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (134)

1. Continuing Appropriations Resolution, 2013, Pub. L. No. 112-175, 126 Stat 1313 (2012).
2. Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, 125 Stat. 38 (2011). For a narrative of the passage
3. see Jennifer Steinhauer, 2011 Budget Bill with Cuts Is Approved by Congress, N. Y. TIMES, Apr. 15, 2011, at A1. For analysis
4. see Josh Chafetz, Congress's Constitution, 160 U. PA. L. REV. 715, 732-34 (2012).
5. Budget Control Act of 2011, Pub. L. No. 112-25, § 301, 125 Stat. 240, 251-55. For a narrative of the passage
6. see Jennifer Steinhauer, Debt Bill Signed, Ending Crisis and Fractious Battle, N. Y. TIMES, Aug. 3, 2011, at A1. For some intriguing thoughts on the debt ceiling standoff and the president's constitutional options
7. see Neil H. Buchanan & Michael C. Dorf, How to Choose the Least Unconstitutional Option: Lessons for the President (and others) from the Debt Ceiling Standoff, 112 COLUM. L. REV. 1175 (2012).
8. See David Lauter, For All the Drama, Little Got Done, LA. TIMES, Aug. 2, 2011, at A1 (discussing the deal's $21 billion in cuts to the 2012 budget, its creation of a congressional supercommittee to find an additional $1.2 trillion in cuts over the next decade, and the cuts that would automatically take effect if the committee failed to come up with a plan or gain passage for it).
9. Budget Control Act of 2011 § 401 (b) (2).
10. See Jennifer Steinhauer, Facing Billions in Automatic Cuts, Pentagon Pondering Its Next Move, N. Y. TIMES, Nov. 23, 2011, at A20.
11. See Jennifer Steinhauer, Senate and House Face an Impasse on Spending, N. Y. TIMES, Sept 24, 2011, at A13.
12. Continuing Resolution, Pub. L. No. 112-68, 125 Stat. 770 (funding the government through Dec. 23, 2011);
13. Continuing Resolution, Pub. L. No. 112-67, 125 Stat. 769 (2011) (funding the government through Dec. 17, 2011);
14. Continuing Appropriations Act, 2012, Pub. L. No. 112-36, 125 Stat. 386 (2011) (funding the government through Nov. 18, 2011);
15. Continuing Appropriations Act, 2012, Pub. L. No. 112-33, 125 Stat. 363 (2011) (funding the government through Oct. 4, 2011).
16. Disaster Relief Appropriations Act, 2012, Pub. L. No. 112-77, 125 Stat. 1277 (2011);
17. Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, 125 Stat. 786 (2011);
18. Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. No. 112-55, 125 Stat. 552 (2011).
19. THOMAS E. MANN & NORMAN J. ORNSTEIN, THE BROKEN BRANCH (rev. ed. 2008).
20. THOMAS E. MANN & NORMAN J. ORNSTEIN, IT'S EVEN WORSE THAN IT LOOKS (2012).
21. Ezra Klein, 14 Reasons Why This Is the Worst Congress Ever, WASH. POST WONKBLOG (July 13, 2012, 8:00 AM), http://www.washingtonpost.com/blogs/ezra- klein/wp/2012/07/13/13-reasons-why-this-is-the-worst-congress-ever/.
22. This view is apparent in, for example, Michael Teter's contribution to the Symposium, which dramatically begins, "Gridlock has Congress in a headlock. Gripped by stalemate, America's chief lawmaking body can barely muster the ability to make law." Michael J. Teter, Gridlock, Legislative Supremacy, and the Problem of Arbitrary Inaction, 88 NOTRE DAME L. REV. 2217, 2217 (2013).
23. Jennifer Steinhauer, Leaders Reach Tentative Deal on Spending to Avoid Fight Before Election Day, N. Y. TIMES, Aug. 1, 2012, at A11.
24. David Lawder, US Congress Passes Stop-Gap Six-Month Funding Measure, REUTERS (Sept 13, 2012, 7:01 PM), http://www.reuters.com/article/2012/09/13/usa- congress-shutdownidUSLlE8KDHD120120913.
25. Rosalind S. Helderman, Congressional Leaders Reach Spending Accord, WASH. POST, Aug. 1, 2012, at A3;
26. see also Jonathan Weisman, Congress Heads for Home with Rancor Still Evident, N. Y. TIMES, Sept. 22, 2012, at A13 ("In the end, both parties were more interested in avoiding a debilitating showdown that might have shut the government down just before the election. ").
27. Jennifer Steinhauer & Jonathan Weisman, Some Republicans Try Out a New Campaign Theme: Bipartisanship, N. Y. TIMES, Sept. 16, 2012, at A18.
28. But see Jonathan Weisman, G. O. P.'s Cantor, Looking Past Politics of Debt, N. Y. TIMES, Jan. 28, 2013, at A1 (noting that Cantor's tone seems to have softened in the wake of the 2012 elections).
29. Jumpstart Our Business Startups Act, Pub. L. No. 112-106, 126 Stat. 306 (2012).
30. Jonathan Weisman, With November in Mind, House Passes a Jobs Bill, N. Y. TIMES, Mar. 9, 2012, at A16.
31. See, e.g., Nelson D. Schwartz, Experts Forecast the Cost of Failure to Compromise, N. Y. TIMES, Dec. 31, 2012, at B1 ("In the event no compromise is found, however, the Congressional Budget Office and many private economists warn that the sudden pullback in spending and the rise in taxes would push the economy into recession in the first half of the year.").
32. See, e.g., Helene Cooper & Jonathan Weisman, Obama to Insist on Tax Increase for the Wealthy, N. Y. TIMES, Nov. 10, 2012, at A1.
33. Seejeremy W. Peters, For Tax Pledge and Its Author, A Test of Time, N. Y. TIMES, NOV. 20, 2012, at A1.
34. Pub. L. No. 112-240, 126 Stat 2313 (2013).
35. see Suzy Khimm, Your Fiscal Cliff Deal Cheat Sheet, WASH. POST WONKBLOG (Dec. 31, 2012, 11:26 PM), http://www.washingtonpost.com/blogs/wonkblog/wp/2012/ 12/31/your-fiscal-cliff-deal-cheat-sheet/.
36. This led to no small amount of grousing from the left See Peter Baker, On the Left, Seeing Obama Giving Away Too Much, Again, N. Y. TIMES, Jan. 2, 2013, at A12. For responses
37. see Michael Grunwald, Obama and the Liberals: Three Quarters of a Loaf is Never Enough, TIME MAG. SWAMPLAND (Jan. 9, 2013), http://swampland.time.com/ 2013/01/09/obama-andthe-liberals-three-quarters-of-a-loaf-is-never-enough/;
38. Michael Tomasky, Dear Liberals: Stop Complaining DAILY BEAST (Jan. 3, 2013, 4:45 AM), http://www.thedailybeast.com/articles/2013/01/03/dear-liberals- stop-complaining.html.
39. See John Bresnahan et al., The Fiscal Cliff Deal That Almost Wasn't, POLITICO (Jan. 2, 2013, 12:21 AM), http://www.politico.com/story/2013/01/uie- fiscalliff-deal-that-almostwasnt-85663.html: The bipartisan package allows taxes to rise on American households for the first time in a generation, marking a 180-degree Republican shift from the 2011 debt limit showdown when the GOP balked at closing corporate jet loopholes worth a couple billion dollars. The bill is a wild swing: It raises revenue by $620 billion and cuts spending by only $12 billion.
40. Bobby Cervantes, Lindsey Graham: Save Fight for Debt Ceiling, POLITICO (Jan. 1, 2013, 10:31 AM), http://www.politico.com/story/2013/01/lindsey-graham- save-fight-for-debtceiling-85646.html.
41. No Budget, No Pay Act of 2013, Pub. L. No. 113-3, 127 Stat 51 (2013);
42. see also Jonathan Weisman, House Vote Sidesteps an Ultimatum on Debt, N. Y. TIMES, Jan. 24, 2013, at A1.
43. Indeed, low-tax advocate Grover Norquist claimed that a vote for the deal did not violate members' pledges against raising taxes. Lisa Mascaro & Kathleen Hennessey, 'Fiscal Cliff Plan Clears House -with GOP Divided, LA TIMES, Jan. 2, 2013, at A1. Other influential conservative groups disagreed, see id., and one cannot help but suspect that Norquist was at least partially motivated by a desire not to be seen as having lost influence, once it was clear that passage of the bill was a fait accompli.
44. John Aloysius Farrell et al., The GOP's Failed 'Plan 0': Inside the Fiscal-Cliff Saga, NAT'L J. ONLINE (Jan. 2, 2013, 10:10 AM), http://www.nationaljournal.com/congress-legacy/thegop-s-failed-plan-o-inside- the-fiscal-cliff-saga-20130102.
45. See Halimah Abdullah, Suffering from Sequester Burnout? You're Not Alone, CNN. COM (Feb. 28, 2013, 3:54 PM), http://www.cnn. com/2013/02/28/politics/ sequester-meh ("Americans appear indifferent to the 'sky-is-falling' rhetoric out of Washington with no congressional deal in sight ahead of Friday's deadline to avert the mandatory austerity.");
46. Eric Schulzke, Obama Turns to Charm Offensive to Counter Public Indifference of Budget Sequester, DESERET NEWS (Salt Lake City) (Mar. 13, 2013, 10:34 AM), http://www.deseretnews.com/article/865575616/Obama-turns-to-charm- offensive-to-counter-public-indifference-ofbudget-sequester.html ("[A n]ew poll shows that most Americans remain unconvinced that the automatic budget cuts that kicked in last week will negatively impact their lives or the economy as a whole."). Moreover, unlike some previous fiscal brinksmanship, the implementation of the spending cuts did not send the markets into a tailspin.
47. See Nelson D. Schwartz, Economy Rolls Along, Despite Cuts and Taxes, N. Y. TIMES, Mar. 16, 2013, at B1 (noting that the stock markets have been hitting new highs, despite the cuts).
48. See Annie Lowrey, As Automatic Budget Cuts Go Into Effect, Poor May Be Hit Particularly Hard, N. Y. TIMES, Mar. 4, 2013, at A13.
49. Consolidated and Further Continuing Appropriations Act, 2013, Pub. L. No. 113-6, 127 Stat. 198 (2013).
50. See, e.g., Jackie Calmes & Peter Baker, Back to Work: Obama Greeted by Looming Fiscal Crisis, N. Y. TIMES, Nov. 8, 2012, at A1: If Mr. Obama got a mandate for anything after a campaign in which he was vague on second-term prescriptions, he can and will claim one for his argument that wealthy Americans like himself and his vanquished Republican rival, Mitt Romney, should pay higher income taxes. That stance was a staple of Mr. Obama's campaign stump speeches for more than a year. And most voters, in surveys of those leaving the polls on Tuesday, agreed with him. Indeed, in mid-December, when Speaker Boehner indicated that he was amenable to an offer Obama had made during the 2011 debt ceiling fight, which would have raised revenue without raising tax rates, Obama "refused, believing his strong electoral victory had altered the political landscape"
51. See, e.g., Brian Knowlton & Jackie Calmes, Obama and Boehner Meet, Raising Hopes, N. Y. TIMES, Dec. 10, 2012, at A16;
52. Jonathan Weisman, Congress Sees Rising Urgency on Fiscal Deal, N. Y. TIMES, Nov. 9, 2012, at A1.
53. Peter Baker, A White House Aware of Second-Term Perils, N. Y. TIMES, Jan. 20, 2013, at A16 (internal quotation marks omitted).
54. See Nelson D. Schwartz & Jonathan Weisman, Unlikely Backers in a Battle Over Taxes, N. Y. TIMES, Dec. 12, 2012, at B1 (noting the Business Roundtable's dropping of its opposition to tax increases).
55. See Mike Doming, Obama Wins Almost 50% Republicans on Tax Mandate in Poll, BLOOMBERG (Dec. 11, 2012, 8:00 PM), http://www.bloomberg.com/news/2012-12- 12/obama-wins-almost-50-republicans-on-tax-mandate-in-poll.html;
56. Obama Tops Boehner on Budget Talks, With Much Broader Core Support, ABC NEWS/WASH. POST POLL, Dec. 12, 2012, available at http://www.langerresearch.com/ uploads/1144a5FiscalCliffNegodations.pdf;
57. As Fiscal Cliff Nears, Democrats Have Public Opinion on Their Side, PEW RES. CTR. FOR THE PEOPLE & THE PRESS (Dec. 13, 2012), http://www.people- press.org/2012/12/13/as-fiscalcliff-nears-democrats-have-public-opinion-on- their-side/.
58. DAVID R. MAYHEW, AMERICA'S CONGRESS: ACTIONS IN THE PUBLIC SPHERE, JAMES MADISON THROUGH NEWT GINGRICH 7-9 (2000) [hereinafter Mayhew, America's Congress];
59. see also DAVID R. MAYHEW, PARTISAN BALANCE: WHY POLITICAL PARTIES DON'T KILL THE U. S. CONSTITUTIONAL SYSTEM, at xviii (2011) (describing the public sphere as "the idea that political activity takes place before the eyes of an appraising public-not in a Washington, D. C realm that can be theoretically or empirically isolated.") [hereinafter Mayhew, Partisan Balance]. Mayhew, of course, takes the phrase "public sphere" from Habermas.
60. See generally JORGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBUC SPHERE (Thomas Burger trans., MIT Press 1989) (1962). In using the phrase as Mayhew does, I mean to remain agnostic on many of Habermas's particular historical and sociological claims.
61. See generally Joachim Krueger & Russell W. Clement, The Truly False Consensus Effect: An Ineradicable and Egocentric Bias in Social Perception, 67 J. PERSONALITY & SOC. PSYCHOL. 596 (1994). For a legal application
62. see, e.g., Lawrence Solan et al., False Consensus Bias in Contract Interpretation, 108 COLUM. L. REV. 1268 (2008).
63. See, e.g., Mark Bauerlein, Liberal Groupthink is Anti-Intellectual, CHRON. OF HIGHER EDUC, Nov. 12, 2004, Chronicle Review, at 6; Solan et al., supra note 55, at 1280. In fairness to Kael, her actual remark seems to have been significantly more self-aware (and perhaps more condescending, as well): "I live in a rather special world⋯ I only know one person who voted for Nixon. Where they are I don't know. They're outside my ken.
64. But sometimes when I'm in a theater I can feel them." Israel Shenker, 2 Critics Here Focus on Films as Language Conference Opens, N. Y. TIMES, Dec. 28, 1972, at 33. But even if the usually attributed line is not quite accurate, it should be. It's hard to imagine a more succinct illustration of the false consensus bias.
65. See Paul Krugman, Op-ed., Plutocracy, Paralysis, Perplexity, N. Y. TIMES, May 4, 2012, at A29;
66. Paul Krugman, Op-ed., No, We Can't? Or Won't?, N. Y. TIMES, July 11, 2011, at A19;
67. Paul Krugman, Op-ed., Now That's Rich, N. Y. TIMES, Aug. 23, 2010, at A23.
68. See John Harwood, Obama's Crucible Moment at Intersection of Politics and the Economy, N. Y. TIMES, July 30, 2011, at A16 (finding "negligible political appetite for new stimulus spending");
69. Jennifer Steinhauer, Democrats are Warming to Obama Connection, N. Y. TIMES, March 9, 2012, at A14 (referring to the early 2009 economic stimulus package as one of the primary "issues that have dogged Democrats" in the 2010 and 2012 elections). Indeed, opposition to the 2009 stimulus seems to have been a significant factor in Republican success in the 2010 congressional elections.
70. See, e.g., Kim Severson, More Resigned Than Angry, Voters Seek a Fix for the Economy, N. Y. TIMES, Nov. 3, 2010, at P1 (noting that many voters saw those who supported the stimulus "as clear villains"). Krugman's faulting of gridlock for economic policies he dislikes is especially perplexing in light of the European experience. After all, in a Westminster-style system, the 2010 elections would have resulted in Republican control of the entire federal policy-making apparatus, and the Republicans ran on the platform of an economic austerity program aimed at reducing budget deficits. Indeed, several center-right European governments implemented austerity programs in recent years, and one of their fiercest critics has been Paul Krugman.
71. See, e.g., Paul Krugman, Op-ed., Looking for Mister Goodpain, N. Y. TIMES, Feb. 1, 2013, at A27;
72. Paul Krugman, Op-ed., Europe's Austerity Madness, N. Y. TIMES, Sept. 28, 2012, at A35;
73. Paul Krugman, Op-ed., The Austerity Agenda, N. Y. TIMES. June 1, 2012, at A27.
74. See MICHAEL GRUNWALD, THE NEW NEW DEAL 447-48 (2012).
75. See MAYHEW, AMERICA'S CONGRESS, supra note 53, at 14-19 (noting that members of Congress shape, as well as reflect, public opinion);
76. cf. Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 YALE L. J. 70, 89 (2012) (noting, in the context of congressional rules, that "the rules help to form preferences").
77. See generally Josh Chafetz, The Unconstitutionality of the Filibuster, 43 CONN. L. REV. 1003 (2011). I will discuss the filibuster in more detail in Part II, infra. Second, party discipline is by no means absolute in Congress, and therefore the unity of unified government is always a matter of degree. And third, a full account of national policymaking would have to include the courts, as well; good-behavior tenure for judges means that changing the partisan composition of the judiciary requires an especially durable hold on power. It should be noted that each of these three caveats makes a highly unified government even harder to achieve, thereby strengthening the general point above.
78. See 2 U. S. C. § 2c (2006).
79. It is for this reason that I do not share the concern that the Madisonian separationof-powers system was "overwhelmed⋯ almost from the outset" by the development of political parties. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2313 (2006);
80. see also Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. 411, 443 (2012) ("[T]he Madisonian model of interbranch rivalry is especially inaccurate during times of unified government");
81. David Fontana, Government in Opposition, 119 YALE LJ. 548, 602 (2009) ("[W]hen one political party captures all of the levers of power, then the American system of separation of powers fails."). As I have argued elsewhere, this view treats the issue of unified versus divided government as an independent variable and then looks to see what each possible value of this variable implies for constraints on the executive. But unified versus divided government is more properly understood as a dependent variable-dependent, that is, on the will of the people, as expressed through electoral mechanisms. Because of all of the hurdles discussed above, and because parties have a strong incentive over time to moderate positions that are out of the mainstream, we will frequently have divided government, and under those conditions, each institution will be able to check the others. Where we see unified government, it is evidence that one party has overcome all of the hurdles; it is evidence, in other words, that the public prefers one party to the other, across several election cycles and cross-cutting constituency structures. In that case, it would seem to be a democratic feature of the system, not a bug, that the institutional checks on that party's ability to enact its agenda are weaker.
82. See Josh Chafetz, Multiplicity in Federalism and the Separation of Powers, 120 YALE L. J. 1084, 1124 n. 242 (2011).
83. The canonical work on the prevalence and workings of divided government remains DAVID R. MAYHEW, DIVIDED WE GOVERN (2d ed. 2005).
84. See, e.g., SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION (2006);
85. Sanford Levinson, Has the Obama Presidency Vitiated the "Dysfunctional Constitution" Thesis?, 43 CONN. L. REV. 985 (2011);
86. Theodore J. Lowi, Constitutional Merry-Go-Round, in CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES 189 (William N. Eskridge, Jr. & Sanford Levinson eds., 1998);
87. Louis Michael Seidman, Let's Give Up on the Constitution, N. Y. TIMES, Dec. 31, 2012, at A19.
88. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009).
89. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (2009). On the Act's implications across a wide range of policy areas
90. Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, §§ 1001-1501, 2301-03, 124 Stat. 1029, 1030-70, 1081-83 (2010);
91. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010). On the passage and impact of healthcare reform
92. see generally STAFF OF THE WASH. POST, LANDMARK: THE INSIDE STORY OF AMERICA'S NEW HEALTH-CARE LAW AND WHAT IT MEANS FOR US ALL (2010).
93. Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, §§ 2001-2213, 124 Stat. 1029, 1071-81 (2010).
94. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010).
95. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010).
96. Don't Ask, Don't Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).
97. FDA Food Safety Modernization Act, Pub. L. No. 111-353, 124 Stat. 3885 (2011).
98. Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat 284 (2011).
99. 21st Century Language Act of 2012, Pub. L. No. 112-231, 126 Stat 1619 (2012).
100. United States-Korea Free Trade Agreement Implementation Act, Pub. L. No. 112-41, 125 Stat 428 (2011).
101. United States-Colombia Trade Promotion Agreement Implementation Act, Pub. L. No. 112-42, 125 Stat 462 (2011).
102. United States-Panama Trade Promotion Agreement Implementation Act, Pub. L. No. 112-43, 125 Stat 497 (2011).
103. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat 54 (2013). For a discussion of the Act's passage
104. see Ashley Parker, House Renews Violence Against Women Measure, N. Y. TIMES, Mar. 1, 2013, at A13.
105. Pandemic and All-Hazards Preparedness Reauthorization Act of 2013, Pub. L. No. 113-5, 127 Stat 161 (2013).
106. See Peter Nicholas, Republicans Reconsider Immigration Laws, WALL ST. J., Nov. 9, 2012, at A8;
107. Jennifer Steinhauer, Speaker 'Confident' of Deal-with White House on Immigration, N. Y. TIMES, Nov. 9, 2012, at A3. Importantly, this change has been driven, not just by Republican congressional leadership, but by conservative opinion-leaders.
108. See, e.g., Eliza Gray, Fox's Own Border War, NEW REPUBLIC, Feb. 25, 2013, at 5 (describing Fox News CEO Roger Ailes's advocacy of a path to citizenship for undocumented immigrants);
109. Charles Krauthammer, The Way Forward, WASH. POST, Nov. 9, 2012, at A29 ("For the party in general, however, the problem is hardly structural. It requires but a single policy change: Border fence plus amnesty. Yes, amnesty. Use the word. Shock and awe-full legal normalization (just short of citizenship) in return for full border enforcement");
110. Mackenzie Weinger, Hannity: I've 'Evolved' on Immigration and Support a 'Pathway to Citizenship', POLITICO (Nov. 8, 2012, 6:32 PM) http://www.politico. com/blogs/media/2012/ll/hannity-iveevolved-on-immigration-and-support-a-pathway- 149078.html (reporting radio host Sean Hannity's conversion to supporting immigration reform).
111. See Ashley Parker & Michael D. Shear, G. O. P. Opposition to Migrant Law is Falling Away, N. Y. TIMES, Mar. 20, 2013, at A1;
112. Julia Preston, Senators Offer a New Blueprint for Immigration, N. Y. TIMES, Jan. 28, 2013, at A1.
113. See Laurie Goodstein, Christian Right Failed to Sway Voters on Issues, N. Y. TIMES, Nov. 10, 2012, at A1.
114. See Richard L. Hasen, Fixing Washington, 126 HARV. L. REV. 550, 581 (2012) (book review) ("The public is divided on major policy issues, especially at the extremes, and Congress's stalemate reflects those divisions.");
115. Gerard N. Magliocca, Don't Be So Impatient, 88 NOTRE DAME L. REV. 2157, 2161 (2013) ("Congress cannot get many things done because the voters that they represent do not agree on what should be done.").
116. See, e.g., Jennifer Steinhauer, No Era for Grand Deals, N. Y. TIMES, Jan. 1, 2013, at A1.
117. Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster Constitutional?, 158 U. PA. L. REV. PENNUMBRA 245, 247-48(2010), http://www.pennumbra.com/debates/pdfs/Filibuster.pdf.
118. The following discussion is a condensed version of Chafetz, supra note 2, at 761-68.
119. See, e.g., Jack M. Balkin, 3 Ways Obama Could Bypass Congress, CNN. COM (July 28, 2011, 10:48 AM), http://www.cnn. com/2011/OPINION/07/28/balkin. obama.options/index.html (suggesting that the Treasury could mint trillion-dollar platinum coins or that it could sell the Federal Reserve an "exploding option" to purchase government property);
120. Eric A. Posner & Adrian Vermeule, Obama Should Raise the Debt Ceiling on His Own, N. Y. TIMES (July 22, 2011), http://www.nytimes.com/2011/07/22/ opinion/22posner.html (arguing that Obama should declare a Schmittian state of exception and raise the debt ceiling unilaterally).
121. Remarks at a Town Hall Meeting and a Question-and-Answer Session in College Park, Maryland, 2011 DAILY COMP. PRES. Doc. 7 (July 22, 2011), available at http://www.gpo.gov/fdsys/pkg/DCPD-201100516/pdf/DCPD-201100516.pdf.
122. The D. C. Circuit subsequently invalidated these appointments in a sweeping opinion, holding that recess appointments could only be made during intersession recesses. The existence of the pro forma sessions was thus irrelevant to the court's holding. Noel Canning v. Nat'l Labor Relations Bd., 705 F.3d 490, 499-514 (D. C. Cir. 2013)
123. cert, granted 81 U. S. L. W. 3629 (U. S. June 24, 2013) (No. 12-1281).
124. See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. D, Title VII, § 709, 121 Stat. 1844, 2021 (2007)
125. (codified at note preceding 5 U. S. C. § 5501) ("Hereafter, no part of any appropriation contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate has voted not to approve the nomination of said person. ").
126. See THE DIARY OF WILLIAM MACLAY AND OTHER NOTES ON SENATE DEBATES, in 9 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 1789-1791, at 128-31 (Kenneth R. Bowling & Helen E. Veit eds., 1988) (Aug. 22, 1789, diary entry) (recounting the story of Washington coming to the Senate seeking advice and consent on a treaty, only to leave with a "discontented air" when the Senate would not vote).
127. See Justin Driver, The Consensus Constitution, 89 TEX. L. REV. 755, 761-67 (2011) (noting the critique and decline of the "consensus view" of American history).
128. See Thomas E. Mann & Norman J. Ornstein, Op-ed., 5 Myths About the 112th Congress, WASH. POST, Jan. 6, 2013, at B3 (noting that the 112th Congress enacted "the smallest number of laws in modern history").
129. This point is debated. Compare MORRIS P. FIORINA, CULTURE WAR? THE MYTH OF A POLARIZED AMERICA (3d ed. 2010) (arguing that the American public is not polarized on most issues)
130. with ALAN I. ABRAMOWITZ, THE DISAPPEARING CENTER: ENGAGED CITIZENS, POLARIZATION, AND AMERICAN DEMOCRACY (2010) (arguing that the American public is polarized)
131. and Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CALIF. L. REV. 273, 276-81 (2011) (same). For a different perspective
132. see also Shanto Iyengar, Gaurav Sood & Yphtach Lelkes, Affect, Not Ideology: A Social Identity Perspective on Polarization, 76 PUB. OPINION Q. 405 (2012) (finding public polarization along affective, rather than ideological, lines).
133. See Annie Lowrey, The Low Politics of Low Growth, N. Y. TIMES, Jan. 13, 2013, at SR 5.
134. But see John Sides & Eric McGhee, Redistricting Didn't Win Republicans the House, WASH. POST WONKBLOG (Feb. 17, 2013, 11:33 AM), http://www.washingtonpost.com/blogs/wonkblog/wp/2013/02/17/redistrictingdidnt- win-republicans-the-house/ (arguing that incumbency effects, not gerrymandering, were largely responsible for Republicans' maintaining control of the House in the 2012 elections).