Self-help and the separation of powers

Yale Law Journal

Volumn 124, Issue 1, 2014, Pages 2-90

  Pozen, David E ^a  

^a Columbia Law School ^*  (United States)

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EID: 84908317454     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (519)

1. Black's Law Dictionary 1482 (9th ed. 2009) (defining "self-help").
2. See Press Release, White House, President Obama Announces Recess Appointments to Key Administration Posts (Jan. 4, 2012), http://www.whitehouse.gov/the-press-office/2012 /01/04/president-obama-announces-recess-appointments-key-administration-posts [http:// perma.cc/L9CL-7MB3].
3. See Press Release, White House, President Obama Announces Recess Appointments to Key Administration Posts (Jan. 4, 2012), http://www.whitehouse.gov/the-press-office/2012 /01/04/president-obama-announces-recess-appointments-key-administration-posts [http:// perma.cc/L9CL-7MB3].
4. Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. _, 2012 WL 168645, at *4 (Jan. 6, 2012) [hereinafter 2012 OLC Opinion].
5. See Julia Preston & John H. Cushman Jr., Obama to Permit Young Migrants to Remain in U.S., N.Y. Times, June 15, 2012, http://www.nytimes.com/2012/06/16/us/us-to-stop -deporting-some-illegal-immigrants.html [http://perma.cc/5Z6-4CCK7].
6. See Defendants' Opposition to Plaintiffs' Application for Preliminary Injunctive Relief at 2, 17-21.
7. Crane v. Napolitano, No. 3:12-CV-3247-O (N.D. Tex. Dec. 19, 2012), 2012 WL 6633751.
8. See Reforming No Child Left Behind, White House, http://www.whitehouse.gov/issues /education/k-12/reforming-no-child-left-behind [http://perma.cc/5CFL-JELK].
9. see also U.S. Dep't of Educ., ESEA Flexibility 1 (2012) [hereinafter ESEA Flexibility], http://www.ed.gov/esea/flexibility/documents/esea-flexibility-acc.doc [http:// perma.cc/7XNY-SJSA] (characterizing the Department's waiver policy as allowing states and localities to "move forward" with reforms "in a manner that was not originally contemplated by the No Child Left Behind Act of 2001").
10. Michael McConnell, Democrats and Executive Overreach, Wall St. J., Jan. 10, 2012, http://online.wsj.com/news/articles/SB10001424052970204257504577150661990141658 [http://perma.cc/T9PB-LV5R].
11. See, e.g., Press Briefing by Press Secretary Jay Carney, White House (Jan. 5, 2012), http://www.whitehouse.gov/photos-and-video/video/2012/01/05/press-briefing#transcript [http://perma.cc/74V7-4XYF] ("[T]he case here is pretty stark. The Republicans unfortunately in the Senate simply refused to allow Richard Cordray to have an up or down vote-not for any reason that had to do with his qualifications…. Why? Because they don't even want the Consumer Financial Protection Bureau to be in operation.").
12. See, e.g., President Barack Obama, Remarks by the President on Immigration (June 15, 2012), http://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president -immigration [http://perma.cc/Y78M-R29N] ("Now, both parties wrote this legislation. And a year and a half ago, Democrats passed the DREAM Act in the House, but Republicans walked away from it. It got 55 votes in the Senate, but Republicans blocked it.").
13. Sally Holland, Education Secretary Defends No Child Left Behind Waivers, CNN (Feb. 7, 2013), http://www.cnn.com/2013/02/07/us/congress-school-waivers [http:// perma.cc/Y4G8-98LU] (quoting Education Secretary Arne Duncan's remarks at a Senate oversight hearing).
14. Norman J. Ornstein, J. Byron McCormick Society for Law and Public Affairs Lecture (Oct. 18, 2011), in 54 Ariz. L. Rev. 481, 485 (2011).
15. Michael A. Memoli, Mitch McConnell's Remarks on 2012 Draw White House Ire, L.A. Times, Oct. 27, 2010, http://articles .latimes.com/2010/oct/27/news/la-pn-obama-mcconnell-20101027 [http://perma.cc/GGN4-2PM9]).
16. Robert Draper, Do Not Ask What Good We Do: Inside the U.S. House of Representatives, at xvii-xix (2012). "We've gotta challenge [Democrats] on every single bill," Representative Kevin McCarthy stressed at this gathering.
17. See, e.g., Transcript: President Obama's Nov. 21 Remarks on Senate Filibuster Changes, Wash. Post (Nov. 21, 2013), http://www.washingtonpost.com/politics/transcript -president-obamas-nov-21-statement-on-senate-filibuster-changes/2013/11/21/b504ac1c-52dc -11e3-9e2-e1d01116fd98_story.html [http://perma.cc/N994-F9LE] (stating that "today's pattern of obstruction" has "been harmful to our democracy," is "not what our founders envisioned," and "just isn't normal," and that "what's at stake is the ability of any president to fulfill his or her constitutional duty").
18. This may not prove the best reading of President Obama's maneuvers, much less a satisfying justification for them, but it is a plausible (and, I hope, illuminating) reading. That is enough to set up the Article's larger inquiry.
19. See Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times, Apr. 22, 2012, http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers -let-obama-bypass-congress.html [http://perma.cc/A6H4-YZST] (describing "We Can't Wait" as a comprehensive strategy, devised and labeled by the President himself in the fall of 2011, "to more aggressively use executive power to govern in the face of Congressional obstructionism").
20. See Richard W. Garnett, Executive Overreach: How Both Parties Have Ignored the Constitution, Commonweal, Sept. 14, 2012, at 9, 10 ("In constitutional government, how and by whom things are done is at least as important as what is done and when, or how quickly. And this is why it is troubling, rather than inspiring, to hear the president keep saying, 'We can't wait.'").
21. James Taranto, "We Can't Wait," Wall St. J., Apr. 24, 2012, http://online .wsj.com/news/articles/SB10001424052702303459004577364091859322190 [http://perma.cc /8BSY-KU4P] ("'We can't wait' is not a campaign slogan per se but a slogan to justify various executive actions, some of dubious legality, that Obama is taking to avoid having to deal with Congress, now that Republicans have a House majority.").
22. It would be impossible to remain completely agnostic. In particular, the Article assumes it is coherent to speak of an overarching separation of powers among the federal branches of government. The notion that the Constitution adopts any "freestanding" principle of this sort has been forcefully challenged on textualist grounds by John Manning. See generally John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939 (2011). As Manning acknowledges, however, modern academics and judges routinely conceptualize the separation of powers in general, trans-substantive terms.
23. This Article further follows convention in declining to draw any sharp distinction between the principle of separation of powers and the principle of checks and balances or the dispersal of power. Cf. Jeremy Waldron, Essay, Separation of Powers in Thought and Practice?, 54 B.C. L. Rev. 433, 459-66 (2013) (questioning the common conflation of these principles).
24. See Jonathan Zasloff, Courts in the Age of Dysfunction, 121 Yale L.J. Online 479, 480 (2012), http://www.yalelawjournal.org/forum/courts-in-the-age-of-dysfunction [http://perma.cc /D8SD-RT6S] (detailing the widespread perception that the United States "has reached the Age of Dysfunction, when the formal institutions of U.S. constitutional government have become impotent to deal with the nation's most important challenges"). Not everyone agrees that we are living in an Age of Dysfunction.
25. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2008).
26. Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004).
27. Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1082 (2013). The "big-C," or "large-C," Constitution is the canonical document that dates from 1787.
28. See Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 Calif. L. Rev. 273, 276 (2011). To be clear, constitutional countermeasures and constitutional conventions are both major subjects, which deserve study regardless of whether we have entered a period of protracted government failure. The possibility that we have done so simply raises the stakes.
29. Webster's Third New International Dictionary 2060 (1993).
30. Black's Law Dictionary 1482 (9th ed. 2009) (defining "self-help").
31. See Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. Econ. & Pol'y 1, 3 (2005) (noting such definitions and criticizing them as "incautiously broad").
32. Catherine M. Sharkey, Trespass Torts and Self-Help for an Electronic Age, 44 Tulsa L. Rev. 677, 683 (2009). According to Sharkey, this is "the conventional conception of self-help."
33. See Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. Econ. & Pol'y 1, 3 (2005) (noting such definitions and criticizing them as "incautiously broad").
34. See Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. Econ. & Pol'y 1, 3 (2005) (noting such definitions and criticizing them as "incautiously broad").
35. Note that even under this expansive understanding of interbranch self-help, a lawsuit brought by Congress or the President would not count, regardless of whether the mere bringing of the suit could have redressive or deterrent effects. Nor would it count if either branch sought to secure a formal constitutional amendment, inasmuch as this strategy requires ratification by state legislatures or conventions to be legally effective. See U.S. Const. art. V.
36. See, e.g., Douglas Ivor Brandon et al., Special Project, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand. L. Rev. 845, 911-37 (1984) (reviewing cases on "self-help in commercial transactions," including numerous corporate transactions).
37. See, e.g., Douglas Ivor Brandon et al., Special Project, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand. L. Rev. 845, 911-37 (1984) (reviewing cases on "self-help in commercial transactions," including numerous corporate transactions).
38. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2008).
39. In a recent article, British legal theorist Nicholas Barber divides institutional "self-defense" mechanisms into positive and negative variants. N.W. Barber, Self-Defence for Institutions, 72 Cambridge L.J. 558 (2013).
40. In a recent article, British legal theorist Nicholas Barber divides institutional "self-defense" mechanisms into positive and negative variants. N.W. Barber, Self-Defence for Institutions, 72 Cambridge L.J. 558 (2013).
41. In a recent article, British legal theorist Nicholas Barber divides institutional "self-defense" mechanisms into positive and negative variants. N.W. Barber, Self-Defence for Institutions, 72 Cambridge L.J. 558 (2013).
42. U.S. Const. art. I, § 6, cl. 1 ("[F]or any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place.").
43. see Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715, 743-44 (2012) (explaining that, whatever else it protects, the Speech or Debate Clause "clear[ly]" ensures that "members of Congress cannot be held criminally or civilly liable for speech acts … performed in Congress").
44. See Walter J. Oleszek, Congressional Procedures and the Policy Process 259 (9th ed. 2014) ("Senators regularly place holds on diplomatic and other nominations to extract concessions from … federal agencies.").
45. See William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U. Ill. L. Rev. 781, 785-808 (describing the history and scope of Congress's power to investigate the executive branch and concluding that "any actual [legal] constraints" on this power "are difficult to discern").
46. For a recent example, see H.R. Res. 644, 113th Cong. (2014) ("[c]ondemning and disapproving of the Obama administration's failure to comply with the lawful statutory requirement to notify Congress before releasing individuals detained at United States Naval Station, Guantanamo Bay, Cuba").
47. Joint resolutions are generally subject to the Constitution's bicameralism and presentment requirements, U.S. Const. art. I, § 7, cl. 3, whereas unicameral and concurrent resolutions are not. Congressional supermajorities may, of course, override presidential vetoes.
48. See generally Todd Garvey & Alissa M. Dolan, Cong. Research Serv., RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (2012).
49. Josh Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev. 1083, 1127-48 (2009).
50. see Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715, 743-44 (2012) (explaining that, whatever else it protects, the Speech or Debate Clause "clear[ly]" ensures that "members of Congress cannot be held criminally or civilly liable for speech acts … performed in Congress").
51. U.S. Const. art. I, § 2, cl. 5.
52. See United States v. Will, 449 U.S. 200, 228-29 (1980) (holding that Article III's Compensation Clause prohibits only the repeal of salary increases and cost-of-living adjustments that have already vested).
53. Cf. Eugenia F. Toma, A Contractual Model of the Voting Behavior of the Supreme Court: The Role of the Chief Justice, 16 Int'l Rev. L. & Econ. 433 (1996) (reporting evidence linking Supreme Court voting behavior to congressional budget allocations).
54. Congress clearly has substantial powers in this regard, see U.S. Const. art. III, § 1.
55. See William A. Fletcher, Lecture, Congressional Power over the Jurisdiction of Federal Courts: The Meaning of the Word "All" in Article III, 59 Duke L.J. 929, 953 n.98 (2010) (listing important works on jurisdiction-stripping).
56. While it may be unthinkable today that Congress would pursue any strong version of this strategy against the Supreme Court, in light of the failure of President Franklin Roosevelt's "court-packing" plan, conventional wisdom continues to view the strategy as legally available. See Akhil Reed Amar, America's Unwritten Constitution 355 (2012) ("A strong case can be made that the written Constitution was designed precisely to allow Congress to rein in or resize a Court that Congress believes has acted improperly.").
57. Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 Sup. Ct. Rev. 103, 129-33 (discussing the backlash against and legacy of Roosevelt's plan, notwithstanding that "Congress has always had the power to decide the size of the Court").
58. At a minimum, federal judges may be removed from office by impeachment in the House and conviction (with a two-thirds vote) in the Senate for "Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. art. II, § 4.
59. See, e.g., Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72 (2006).
60. 491 U.S. 397 (1989).
61. United States v. Eichman, 496 U.S. 310, 315 (1990). The Court declined the invitation and likewise invalidated the federal statute as applied.
62. 462 U.S. 919 (1983). Legislative vetoes are devices through which Congress delegates authority to the executive branch on the condition that Congress retain the right to block specific implementations of that authority without having to pass another law.
63. See Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 288-91 (1993).
64. For a famous contemporary example of rhetorical resistance to the Court, see Edwin Meese III, U.S. Att'y Gen., Speech Before the Am. Bar Ass'n (July 9, 1985).
65. Originalism: A Quarter-Century of Debate 47, 50-54 (Steven G. Calabresi ed., 2007) (criticizing the Court's recent decisions on federalism, criminal law, and religion and urging adoption of a "jurisprudence of original intention").
66. The text of the Constitution gives the President not just an option but a duty to make periodic recommendations to Congress. U.S. Const. art. II, § 3.
67. See generally Charles M. Cameron, Veto Bargaining (2000) (discussing the veto power's effects on presidential-congressional bargaining).
68. U.S. Const. art. II, § 2, cl. 1.
69. More specifically, President Jefferson terminated all ongoing Sedition Act prosecutions and pardoned those who had been convicted under the Act. See Saikrishna Bangalore Prakash, The Executive's Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613, 1664-69 (2008).
70. Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side 58-60 (1963) (explaining that Jefferson simultaneously endorsed state prosecutions for seditious libel).
71. See Daniel J. Meltzer, Lecture, Executive Defense of Congressional Acts, 61 Duke L.J. 1183, 1192-93 (2012).
72. 17 F. Cas. 144 (Taney, Circuit Justice, C.C.D. Md. 1861) (No. 9487).
73. See generally Daniel Farber, Lincoln's Constitution 157-59 (2003) (describing this episode).
74. See United States v. Lovett, 328 U.S. 303, 306 (1946).
75. Neal Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112 Colum. L. Rev. 507, 517 (2012).
76. See Gerard N. Magliocca, The Gold Clause Cases and Constitutional Necessity, 64 Fla. L. Rev. 1243 (2012).
77. See generally Todd Garvey & Alissa M. Dolan, Cong. Research Serv., RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (2012).
78. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring).
79. See Neal Devins & Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va. L. Rev. 83, 88-89 (1998) (citing examples of presidential "attack[s]" on, and efforts to reverse, Supreme Court rulings).
80. See Daniel J. Meltzer, Lecture, Executive Defense of Congressional Acts, 61 Duke L.J. 1183, 1192-93 (2012).
81. See Frederick Schauer, The Supreme Court, 2005 Term-Foreword: The Court's Agenda-and the Nation's, 120 Harv. L. Rev. 4, 50 n.174 (2006) (collecting sources).
82. See Christopher N. May, Presidential Defiance of "Unconstitutional" Laws 127-31 (1998) (reviewing historical instances of presidential-congressional conflict and finding that "[i]t was not until the mid-1970s that presidential defiance of allegedly unconstitutional laws began to reach significant proportions").
83. Presidential Auth. to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 201 (1994).
84. The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 181 (1996) (internal quotation marks omitted).
85. cf. Office of Legal Policy, U.S. Dep't of Justice, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation 169 (1988) (discussing the constitutional duty of each branch to "prevent encroachments on its prerogatives by the others").
86. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689, 704-11 (2008) (detailing examples).
87. See United States v. Windsor, 133 S. Ct. 2675, 2683-84 (2013).
88. See John Locke, The Second Treatise of Government § 160, in Two Treatises of Government 265, 375 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690) (describing an executive "Power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it").
89. See generally Extra-Legal Power and Legitimacy: Perspectives on Prerogative (Clement Fatovic & Benjamin A. Kleinerman eds., 2013). It is doubtful that any exercise of the prerogative power would deserve to be seen as self-help, inasmuch as the latter entails the assertedly lawful remedying of a wrong, whereas the former entails the admittedly extralegal pursuit of some higher end. Regardless, it is important to appreciate that presidential self-help is a much broader, and more quotidian, phenomenon. With or without an emergency justification, Presidents have numerous tools with which to resist Congress and to submit that the wrongfulness of Congress's actions constitutionally authorizes, even compels, them to do so.
90. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1218 (2006) (observing that "the avoidance canon appears fairly often in the work of at least some executive components").
91. See Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 671 (2014) (detailing and critiquing the modern presidential practice of "claim[ing] wideranging authority to decline enforcement of federal laws").
92. See generally Frederick Schauer, Official Obedience and the Politics of Defining "Law," 86 S. Cal. L. Rev. 1165, 1183-87 (2013) (describing jurisprudential "strategies of reconciliation" that officials may employ to avoid acknowledging illegality).
93. While in theory Congress could employ similar reasoning to its own advantage, it rarely has occasion to do so because its enumerated powers vis-à-vis the President are already so substantial. Cf. Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1146 (1999) (explaining that "for the most part, the President relies upon Congress for the indispensable, necessary, and merely useful means of executing his constitutional powers").
94. See Letter from President Theodore Roosevelt to Joseph Bucklin Bishop (Mar. 23, 1905).
95. W. Stull Holt, Treaties Defeated by the Senate: A Study of the Struggle Between President and Senate over the Conduct of Foreign Relations 221-22 (1933).
96. Black's Law Dictionary 1482 (9th ed. 2009) (defining "self-help").
97. Raoul Berger, Executive Privilege: A Constitutional Myth 306 (1974).
98. Eugene Gressman, Take Care, Mr. President, 64 N.C. L. Rev. 381 (1986).
99. some who suggest that the canon of constitutional avoidance has no place in executive branch lawyering, see, e.g., Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin. L. Rev. 501, 507-08 (2005).
100. H. Jefferson Powell, The Executive and the Avoidance Canon, 81 Ind. L.J. 1313 (2006).
101. And some who advocate highly formalistic approaches to separation-of-powers questions, see, e.g., Martin H. Redish, The Constitution as Political Structure 99-134 (1995).
102. Gary Lawson, Prolegomenon to Any Future Administrative Law Course: Separation of Powers and the Transcendental Deduction, 49 St. Louis U. L.J. 885, 887 (2005).
103. William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1810 & n.13 (2008) (collecting sources that reflect "the increasingly conventional wisdom that the President can or must disregard some or all laws that he independently believes to be unconstitutional").
104. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 8 (1993) ("Most Americans expect modern Presidents to provide solutions for every significant political, military, social, and economic problem. In the face of such demands, various organizational and legal categories possess little meaning for the President." (footnote omitted)).
105. Curt Nichols, The Presidential Ranking Game: Critical Review and Some New Discoveries, 42 Presidential Stud. Q. 275, 276 (2012) (discussing the significance for presidential legacies of being seen as "taking advantage of the opportunity to reorder the political regime").
106. Black's Law Dictionary 1482 (9th ed. 2009) (defining "self-help").
107. See, e.g., Douglas Ivor Brandon et al., Special Project, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand. L. Rev. 845, 911-37 (1984) (reviewing cases on "self-help in commercial transactions," including numerous corporate transactions).
108. For a recent example, see John G. Roberts, Jr., 2012 Year-End Report on the Federal Judiciary, U.S. Pub. Info. Off. 3-4 (Dec. 31, 2012), http://www.supremecourt.gov/publicinfo/year -end/2012year-endreport.pdf [http://perma.cc/KE2K-94CG].
109. U.S. Const. art. III, § 2, cl. 1.
110. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1218 (2006) (observing that "the avoidance canon appears fairly often in the work of at least some executive components").
111. 5 U.S. (1 Cranch) 137 (1803).
112. 553 U.S. 723 (2008).
113. Henry Paul Monaghan, Essay, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665 (2012) (exploring the use of doctrines such as forfeiture and the avoidance canon as a strategy for enhancing Supreme Court power).
114. Henry Paul Monaghan, Essay, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665 (2012) (exploring the use of doctrines such as forfeiture and the avoidance canon as a strategy for enhancing Supreme Court power).
115. To stress again: in characterizing presidential power in this way, I mean only to capture the prevailing view, not any timeless truth of constitutional law. The original understanding of the veto power, for instance, was focused mainly on protecting the presidency itself and did not necessarily encompass policy disagreements. See Charles L. Black, Jr., Some Thoughts on the Veto, 40 Law & Contemp. Probs. 87, 89-92 (1976). Over time, the veto power evolved from a conditional into a general self-help privilege.
116. U.S. Const. art. II, § 3.
117. Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 51 (1990) ("Obviously, the argument that the President's obligation to defend the Constitution authorizes him to refuse to enforce an unconstitutional statute does not authorize the President to refuse to enforce a statute he opposes for policy reasons.").
118. In cases in which a President signed the allegedly defective measure into law, that President might be seen as jointly or partially responsible for the wrongdoing.
119. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1218 (2006) (observing that "the avoidance canon appears fairly often in the work of at least some executive components").
120. At a minimum, federal judges may be removed from office by impeachment in the House and conviction (with a two-thirds vote) in the Senate for "Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. art. II, § 4.
121. See generally Todd Garvey & Alissa M. Dolan, Cong. Research Serv., RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (2012).
122. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997).
123. In a recent article, British legal theorist Nicholas Barber divides institutional "self-defense" mechanisms into positive and negative variants. N.W. Barber, Self-Defence for Institutions, 72 Cambridge L.J. 558 (2013).
124. Departmentalism, which comes in weaker and stronger forms, refers to "the idea that the coordinate branches of government possess independent authority to interpret the Constitution." David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047, 2063 (2010).
125. Cf. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913) (characterizing privileges and duties as "jural opposites").
126. See Curtis A. Bradley & Trevor W. Morrison, Essay, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097, 1140 (2013) (noting the "pervasive existence of public 'law talk'" in the United States, as part of which the "executive branch almost always endeavors to argue that its actions are lawful-and to rebut criticisms to the contrary").
127. See Letter from President Theodore Roosevelt to Joseph Bucklin Bishop (Mar. 23, 1905).
128. See Josh Chafetz, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 193-235 (2007) (discussing the contempt power).
129. See William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U. Ill. L. Rev. 781, 785-808 (describing the history and scope of Congress's power to investigate the executive branch and concluding that "any actual [legal] constraints" on this power "are difficult to discern").
130. Letter from James M. Cole, U.S. Deputy Att'y Gen., to Darrell E. Issa, Chair, H. Comm. on Oversight and Gov't Reform, at 4 (June 20, 2012), http://www.mainjustice.com/wp-admin /documents-databases/93-1-Dep.-AG-Cole-letter-to-Issa-on-executive-privilege.pdf [http:// perma.cc/Z8KS-CARW] [hereinafter Cole Privilege Letter].
131. See Letter from Eric H. Holder, Jr., U.S. Att'y Gen., to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/February/11 -ag-223.html [http://perma.cc/5TLZ-S88V].
132. See Todd Garvey & Alissa M. Dolan, Cong. Research Serv., R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments 8-12 (2012) (describing executive branch stances on the scope of executive privilege).
133. See Josh Chafetz, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 193-235 (2007) (discussing the contempt power).
134. See Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. Econ. & Pol'y 1, 3 (2005) (noting such definitions and criticizing them as "incautiously broad").
135. See N.Y. Penal Law § 35.15(1) (McKinney 2014) (permitting use of physical force in defense of "third person[s]").
136. See U.N. Charter art. 51 (recognizing a right of "collective self-defence").
137. Webster's Third New International Dictionary 2060 (1993).
138. U.S. Const. art. II, § 1, cl. 8.
139. art. VI, cl. 3.
140. See Michael Teter, Rethinking Consent: Proposals for Reforming the Judicial Confirmation Process, 73 Ohio St. L.J. 287, 327-30 (2012).
141. See U.S. Const. art. I, § 3, cl. 6 ("The Senate shall have the sole Power to try all Impeachments.").
142. Nixon v. United States, 506 U.S. 224 (1993).
143. See Presidential Auth. to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 201 (1994).
144. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2660-62 (2013).
145. United States v. Windsor, 133 S. Ct. 2675, 2684-85 (2013).
146. See Aziz Z. Huq, Enforcing (but Not Defending) 'Unconstitutional' Laws, 98 Va. L. Rev. 1001, 1069-70 (2012).
147. Confusingly, the term "constitutional conventions" may refer either to the norms under consideration here or to the special deliberative assemblies organized for the purpose of writing or revising a constitution, such as the Philadelphia Convention organized by the Framers in 1787. Needless to say, the referents are very different. Compounding semantic difficulties, international agreements are often described as "conventions".
148. see generally Steven J. Burton, An Introduction to Law and Legal Reasoning 89-95 (3d ed. 2007).
149. And the "conventionality thesis" describes a core claim of Hartian positivism regarding the possibility conditions of legal authority, see generally Jules L. Coleman, The Practice of Principle 74-102 (2001). It is the more workaday notion of constitutional conventions, familiar to any British lawyer, that is the subject of this Part.
150. I should stress, however, that it is not necessary to rely on the idea of "conventions," as such, to interrogate self-help. In considering the dynamics that generate and regulate interbranch retaliation, we could simply refer to all relevant legal, quasi-legal, and non-legal prohibitions as "norms." I deploy the idea of conventions on the belief that it can advance understanding, but the precise manner in which these prohibitions are classified is not crucial.
151. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
152. As Jaconelli observes, "[t]he literature tends to examine only cursorily the nature of constitutional conventions, being concerned more with practical instances of what are taken … to be examples of the phenomenon …." Joseph Jaconelli, The Nature of Constitutional Convention, 19 Legal Stud. 24, 24 (1999).
153. As Jaconelli observes, "[t]he literature tends to examine only cursorily the nature of constitutional conventions, being concerned more with practical instances of what are taken … to be examples of the phenomenon …." Joseph Jaconelli, The Nature of Constitutional Convention, 19 Legal Stud. 24, 24 (1999).
154. Geoffrey Marshall, Constitutional Conventions 1 (1984). In his well-known study of British constitutional conventions, Marshall argues that their "major purpose … is to give effect to the principles of governmental accountability that constitute the structure of responsible government."
155. As Jaconelli observes, "[t]he literature tends to examine only cursorily the nature of constitutional conventions, being concerned more with practical instances of what are taken … to be examples of the phenomenon …." Joseph Jaconelli, The Nature of Constitutional Convention, 19 Legal Stud. 24, 24 (1999).
156. Jon Elster, Unwritten Constitutional Norms 21 (Feb. 24, 2010) (unpublished manuscript), http://www.ucl.ac.uk/laws/jurisprudence/docs/2010/Elster24Feb2010.pdf [http://perma.cc /YPN8-764G] ("With virtually no exception, [constitutional conventions] regulate … the 'machinery of government,' that is, the relation between the main branches of government, their prerogatives, and the limitations on their powers. None of them address issues of individual rights, be they negative or positive, first, second or third generation.").
157. James G. Wilson, American Constitutional Conventions: The Judicially Unenforceable Rules that Combine with Judicial Doctrine and Public Opinion to Regulate Political Behavior, 40 Buff. L. Rev. 645, 659 (1992).
158. see also Peter W. Hogg, Constitutional Law of Canada 7 (5th ed. 2007) ("What conventions do is to prescribe the way in which legal powers shall be exercised.").
159. A.V. Dicey, Introduction to the Study of the Law of the Constitution 424 (8th ed. 1915).
160. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
161. Commonwealth theorists routinely characterize conventions as "non-legal" yet operating on some higher plane than other customs and practices. See Ian Loveland, Constitutional Law, Administrative Law, and Human Rights 262 (6th ed. 2012) (noting the standard view, traceable to Dicey, that in addition to constitutional conventions "there are also a set of non-legal constitutional rules inferior to conventions").
162. See Frederick Schauer, Authority and Authorities, 94 Va. L. Rev. 1931, 1935-40 (2008) (describing "the conventional wisdom" about legal authority and content-independence).
163. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
164. Cf. Richard H. McAdams, Conventions and Norms: Philosophical Aspects, in 4 International Encyclopedia of the Social & Behavioral Sciences 2735 (Neil J. Smelser & Paul B. Baltes eds., 2001) (reviewing broader social science debates over how best to define and explain conventions). For purposes of this Article, it is not clear that anything important hangs on these jurisprudential niceties, or on the precise lines separating constitutional conventions from politics or law, and my aim will be to sidestep them to the extent possible. The Article's contribution to the literature on conventions lies not in any direct intervention, but in identifying and developing some of the links with self-help and the separation of powers.
165. Keith E. Whittington, The Status of Unwritten Constitutional Conventions in the United States, 2013 U. Ill. L. Rev. 1847, 1867-68 (2013).
166. As Jaconelli observes, "[t]he literature tends to examine only cursorily the nature of constitutional conventions, being concerned more with practical instances of what are taken … to be examples of the phenomenon …." Joseph Jaconelli, The Nature of Constitutional Convention, 19 Legal Stud. 24, 24 (1999).
167. A.V. Dicey, Introduction to the Study of the Law of the Constitution 424 (8th ed. 1915).
168. See, e.g., Edward S. Corwin, The Constitution and What It Means Today, at xix (3d ed. 1924).
169. Christopher G. Tiedeman, The Unwritten Constitution of the United States 136 (1890).
170. Karl N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1 passim (1934).
171. Jesse H. Choper, The Supreme Court and the Political Branches: Democratic Theory and Practice, 122 U. Pa. L. Rev. 810, 855 (1974).
172. cf. Louis Henkin, Foreign Affairs and the United States Constitution 202 (2d ed. 1996).
173. Louis H. Pollak, Advocating Civil Liberties: A Young Lawyer Before the Old Court, 17 Harv. C.R.-C.L. L. Rev. 1, 20 (1982).
174. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
175. Keith E. Whittington, The Status of Unwritten Constitutional Conventions in the United States, 2013 U. Ill. L. Rev. 1847, 1867-68 (2013).
176. See Curtis A. Bradley & Trevor W. Morrison, Essay, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097, 1140 (2013) (noting the "pervasive existence of public 'law talk'" in the United States, as part of which the "executive branch almost always endeavors to argue that its actions are lawful-and to rebut criticisms to the contrary").
177. Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 410 n.2 (2007).
178. Keith E. Whittington, The Status of Unwritten Constitutional Conventions in the United States, 2013 U. Ill. L. Rev. 1847, 1867-68 (2013).
179. See generally Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999).
180. Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95 (2010). Whether and how the interpretation-construction distinction translates to Commonwealth jurisdictions strikes me as a question that deserves greater attention.
181. Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95 (2010). Whether and how the interpretation-construction distinction translates to Commonwealth jurisdictions strikes me as a question that deserves greater attention.
182. Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1082 (2013). The "big-C," or "large-C," Constitution is the canonical document that dates from 1787.
183. William N. Eskridge Jr. & John Ferejohn, A Republic of Statutes (2010).
184. Keith E. Whittington, The Status of Unwritten Constitutional Conventions in the United States, 2013 U. Ill. L. Rev. 1847, 1867-68 (2013).
185. Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 410 n.2 (2007).
186. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
187. A.V. Dicey, Introduction to the Study of the Law of the Constitution 424 (8th ed. 1915).
188. Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1082 (2013). The "big-C," or "large-C," Constitution is the canonical document that dates from 1787.
189. Cf. Peter M. Shane, When Inter-Branch Norms Break Down: Of Arms-for-Hostages, "Orderly Shutdowns," Presidential Impeachments, and Judicial "Coups," 12 Cornell J.L. & Pub. Pol'y 503, 505 (2003) (observing that our "national system of government … depends to an exceptional degree upon certain norms of cooperation among its competing branches").
190. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
191. See Peter M. Shane & Harold H. Bruff, Separation of Powers Law: Cases and Materials (3d ed. 2011).
192. So too presidential candidates, as when Al Gore acceded to the Supreme Court's decision in Bush v. Gore, 531 U.S. 98 (2000), even though he "strongly disagree[d]" with it.
193. In His Remarks, Gore Says He Will Help Bush "Bring American [sic] Together," N.Y. Times, Dec. 14, 2000, http://www.nytimes.com/2000/12/14/us/43rd-president-his-remarks-gore-says-he -will-help-bush-bring-american-together.html [http://perma.cc/5WEY-TK69].
194. See, e.g., Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045, 1066-83 (2001) (arguing that constitutional revolutions occur through presidential appointments that yield "partisan entrenchment" in the judiciary).
195. See Charles Gardner Geyh, When Courts and Congress Collide 10-14, 51-52, 70, 91, 101, 110-11 (2006) (arguing that "judicial independence norms" have historically "operated to stay Congress's hand").
196. See Denis Steven Rutkus, Cong. Research Serv., RL34405, Role of Home State Senators in the Selection of Lower Federal Court Judges 5-10 (2013).
197. see also Michael J. Gerhardt, The Federal Appointments Process 255 (2000) (discussing other "informal agreements or arrangements that have developed over time … to fill the substantive gaps within, and moderate the ample discretion allowed by, the loose framework for making federal appointments").
198. Cf. Michael J. Gerhardt, Norm Theory and the Future of the Federal Appointments Process, 50 Duke L.J. 1687, 1712 n.92 (2001) (discussing the alleged breach and subsequent reaffirmation of this convention under President Clinton).
199. see Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715, 743-44 (2012) (explaining that, whatever else it protects, the Speech or Debate Clause "clear[ly]" ensures that "members of Congress cannot be held criminally or civilly liable for speech acts … performed in Congress").
200. see also Michael J. Gerhardt, The Federal Appointments Process 255 (2000) (discussing other "informal agreements or arrangements that have developed over time … to fill the substantive gaps within, and moderate the ample discretion allowed by, the loose framework for making federal appointments").
201. Gerard N. Magliocca, The Anti-Partisan Principle 24-65 (July 21, 2014) (unpublished manuscript), http://ssrn.com/abstract=2469426 [http://perma.cc/FEJ6-RA2R].
202. Cf. Peter M. Shane, When Inter-Branch Norms Break Down: Of Arms-for-Hostages, "Orderly Shutdowns," Presidential Impeachments, and Judicial "Coups," 12 Cornell J.L. & Pub. Pol'y 503, 505 (2003) (observing that our "national system of government … depends to an exceptional degree upon certain norms of cooperation among its competing branches").
203. See John C. Roberts, Are Congressional Committees Constitutional?: Radical Textualism, Separation of Powers, and the Enactment Process, 52 Case W. Res. L. Rev. 489, 563-66 (2001).
204. See, e.g., Peter Raven-Hansen & William C. Banks, From Vietnam to Desert Shield: The Commander in Chief's Spending Power, 81 Iowa L. Rev. 79, 108-09 (1995) (discussing the Department of Defense's reprogramming practices).
205. Elizabeth Garrett, The Purposes of Framework Legislation, 14 J. Contemp. Legal Issues 717, 732 (2005).
206. This practice was memorialized several decades ago in the International Agreement Consultation Resolution, S. Res. 536, 95th Cong. (1978), which as a unicameral resolution does not carry the force of law.
207. See, e.g., Immunity of the Assistant to the President and Dir. of the Office of Political Strategy and Outreach from Cong. Subpoena, 38 Op. O.L.C. 1, 11 (2014), http:// www.justice.gov/sites/default/files/opinions/attachments/2014/07/25/simas-immunity-final _1.pdf [http://perma.cc/9C3G-66AP] ("Through [an] accommodation process, which has been followed for decades, the political branches strive to avoid the 'constitutional confrontation' that erupts when the President must make an assertion of privilege ….").
208. See generally Todd Garvey & Alissa M. Dolan, Cong. Research Serv., RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (2012).
209. See generally Mark M. Lowenthal, Intelligence: From Secrets to Policy 227 (5th ed. 2012) (discussing the role of questions for the record in the congressional oversight process).
210. See Colleen J. Shogan & Thomas H. Neale, Cong. Research Serv., R40132, The President's State of the Union Address: Tradition, Function, and Policy Implications 1-7 (2012).
211. Cf. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 708 n.167 (2011) ("What counts as an interpretation of the constitutional text as opposed to a nontextual norm or convention depends on the operative theory of interpretation.").
212. See Curtis A. Bradley & Trevor W. Morrison, Essay, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097, 1140 (2013) (noting the "pervasive existence of public 'law talk'" in the United States, as part of which the "executive branch almost always endeavors to argue that its actions are lawful-and to rebut criticisms to the contrary").
213. Morrison v. Olson, 487 U.S. 654, 695 (1988) (alteration in original).
214. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 856 (1986).
215. Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions-A Foolish Inconsistency?, 72 Cornell L. Rev. 488 (1987).
216. John Manning. See generally John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939 (2011). As Manning acknowledges, however, modern academics and judges routinely conceptualize the separation of powers in general, trans-substantive terms.
217. See M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. Rev. 603, 604-05 (2001) (contending "it is a hopeless enterprise to talk about balance among the branches of government," as "we do not know what balance means, how to measure it, or how to predict when it might be jeopardized").
218. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring). Justice Frankfurter famously maintained that such practices can establish a "gloss which life has written upon" the words of the Constitution.
219. see also Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 412 (2012) ("Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers.").
220. See Curtis A. Bradley & Trevor W. Morrison, Essay, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097, 1140 (2013) (noting the "pervasive existence of public 'law talk'" in the United States, as part of which the "executive branch almost always endeavors to argue that its actions are lawful-and to rebut criticisms to the contrary").
221. Alison L. LaCroix, Historical Gloss: A Primer, 126 Harv. L. Rev. F. 75, 77-78 (2013) ("Historical practice is a slippery, unhelpfully capacious notion masquerading as a mid-twentieth-century neutral principle.").
222. See generally Philip Bobbitt, Constitutional Fate: Theory of the Constitution 93-119 (1982).
223. See Curtis A. Bradley & Trevor W. Morrison, Essay, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097, 1140 (2013) (noting the "pervasive existence of public 'law talk'" in the United States, as part of which the "executive branch almost always endeavors to argue that its actions are lawful-and to rebut criticisms to the contrary").
224. Frederick Schauer, The Jurisprudence of Custom, 48 Tex. Int'l L.J. 523, 524 (2013) (discussing "the possibility that internalized normative custom simply is law, and in large part law simply is internalized custom")-it is not clear to me what hangs on the quest to distinguish bona fide "historical gloss" from the mass of constitutional conventions. More productive lines of inquiry, it seems to me, would ask how all such conventions are operationalized and enforced, why government officials would or should comply with them, and whether relevant doctrines are well-suited to securing important public values.
225. See generally Tonja Jacobi, The Senatorial Courtesy Game: Explaining the Norm of Informal Vetoes in Advice and Consent Nominations, 30 Legis. Stud. Q. 193 (2005).
226. See William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U. Ill. L. Rev. 781, 785-808 (describing the history and scope of Congress's power to investigate the executive branch and concluding that "any actual [legal] constraints" on this power "are difficult to discern").
227. James G. Wilson, American Constitutional Conventions: The Judicially Unenforceable Rules that Combine with Judicial Doctrine and Public Opinion to Regulate Political Behavior, 40 Buff. L. Rev. 645, 659 (1992).
228. The Guarantee Clause provides that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion …." U.S. Const. art. IV, § 4.
229. Texas v. White, 74 U.S. (7 Wall.) 700, 729-30 (1868)
230. Luther v. Borden, 48 U.S. 1 (1849)
231. Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable, 65 U. Colo. L. Rev. 849, 850 (1994).
232. See John Harrison, Power, Duty, and Facial Invalidity, 16 U. Pa. J. Const. L. 501, 501 (2013) ("The provisions of the Constitution that grant and limit the power of Congress are concerned exclusively with power and do not create duties.").
233. Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004).
234. See Walter J. Oleszek, Congressional Procedures and the Policy Process 259 (9th ed. 2014) ("Senators regularly place holds on diplomatic and other nominations to extract concessions from … federal agencies.").
235. See Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress 136 (4th ed. 2012).
236. Josh Chafetz, The Unconstitutionality of the Filibuster, 43 Conn. L. Rev. 1003, 1008-11 (2011).
237. See Sarah A. Binder & Steven S. Smith, Politics or Principle? Filibustering in the United States Senate 11-12 (1997).
238. See Walter J. Oleszek, Congressional Procedures and the Policy Process 259 (9th ed. 2014) ("Senators regularly place holds on diplomatic and other nominations to extract concessions from … federal agencies.").
239. See Thomas E. Mann & Norman J. Ornstein, It's Even Worse than It Looks: How the American Constitutional System Collided with the New Politics of Extremism 91-100 (2012).
240. See Matthew C. Stephenson, Essay, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940, 972 (2013).
241. 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, 1176-87 (2012) (reviewing this episode and noting that while debt ceiling negotiations had occasionally generated political standoffs in the past, "the mid-2011 political crisis was the first time that it appeared that Congress might simply refuse to increase the debt ceiling, even though its own budget required more borrowing to fund its required spending levels").
242. See Jonathan Zasloff, Courts in the Age of Dysfunction, 121 Yale L.J. Online 479, 480 (2012), http://www.yalelawjournal.org/forum/courts-in-the-age-of-dysfunction [http://perma.cc /D8SD-RT6S] (detailing the widespread perception that the United States "has reached the Age of Dysfunction, when the formal institutions of U.S. constitutional government have become impotent to deal with the nation's most important challenges"). Not everyone agrees that we are living in an Age of Dysfunction.
243. see also Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance 8-12 (2012) (cataloguing similar claims by prominent commentators).
244. See Thomas E. Mann & Norman J. Ornstein, It's Even Worse than It Looks: How the American Constitutional System Collided with the New Politics of Extremism 91-100 (2012).
245. On the resilience of impeachment norms, see, for example, Michael J. Gerhardt, The Federal Impeachment Process 181-82 (2d ed. 2000).
246. David Weigel, Who Said Impeachment? The Conservatives Who Wanted to Impeach Obama Are Acting Like It Was Never Their Idea, Slate, July 29, 2014, http:// www.slate.com/articles/news_and_politics/politics/2014/07/republicans_back_away_from_t he_call_to_impeach_president_obama_the_gop_understands.html [http://perma.cc/8DTQ -8K83].
247. See Jeremy W. Peters, In Landmark Vote, Senate Limits Use of the Filibuster, N.Y. Times, Nov. 22, 2013, http://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps -to-limit-use-of-filibuster.html [http://perma.cc/UB49-BMQ6].
248. See Miguel Schor, The Re-emergence of an Important Political Convention and Why It Matters, Balkinization (Feb. 14, 2014), http://balkin.blogspot.com/2014/02/the-re-emergence-ofimportant-political.html [http://perma.cc/G2CZ-ET7X] ("The recent capitulation by Republicans on the debt ceiling illustrates that the status quo ante has been restored. Both parties understand that the debt ceiling may … not be used as a means to obtain major concessions from the other party.").
249. Gerard N. Magliocca, The Anti-Partisan Principle 24-65 (July 21, 2014) (unpublished manuscript), http://ssrn.com/abstract=2469426 [http://perma.cc/FEJ6-RA2R].
250. See, e.g., Josh Chafetz, Essay, The Phenomenology of Gridlock, 88 Notre Dame L. Rev. 2065 (2013).
251. See, e.g., Richard L. Hasen, Essay, Political Dysfunction and Constitutional Change, 61 Drake L. Rev. 989, 1013-20 (2013) (discussing "the possibility that current dysfunction is transitory").
252. Jack M. Balkin, The Last Days of Disco: Why the American Political System Is Dysfunctional, 94 B.U. L. Rev. 1159, 1172 (2014). On Balkin's account, this turn away from convention reflects the Republican Party's desperate attempt "to do almost anything it can think of to keep [a new coalition led by liberal Democrats] from gaining dominance in American politics."
253. See Memorandum from Virginia A. Seitz, Assistant Att'y Gen., Office of Legal Counsel, to Rachael Leonard, Gen. Counsel, Office of Sci. & Tech. Policy, Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy in Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Sept. 19, 2011).
254. Memorandum from David J. Barron, Acting Assistant Att'y Gen., Office of Legal Counsel, to Joan E. Donoghue, Acting Legal Adviser, Dep't of State, Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act (June 1, 2009).
255. Letter from James M. Cole, U.S. Deputy Att'y Gen., to Darrell E. Issa, Chair, H. Comm. on Oversight and Gov't Reform, at 4 (June 20, 2012), http://www.mainjustice.com/wp-admin /documents-databases/93-1-Dep.-AG-Cole-letter-to-Issa-on-executive-privilege.pdf [http:// perma.cc/Z8KS-CARW] [hereinafter Cole Privilege Letter].
256. See Statement on Signing the National Defense Authorization Act for Fiscal Year 2013, 2013 Daily Comp. Pres. Doc. 4, at 2 (Jan. 2, 2013).
257. Statement on Signing the National Defense Authorization Act for Fiscal Year 2012, 2011 Daily Comp. Pres. Doc. 978, at 3 (Dec. 31, 2011).
258. See Nat'l Security Council Press Off., Statement by NSC Spokesperson Caitlin Hayden on the NDAA and the Transfer of Taliban Detainees from Guantanamo (June 3, 2014), https://www.documentcloud.org/documents/1180482-nsc-statement-on-30-day -transfer-notice-law.html [http://perma.cc/JA99-27P3] (contending that it was lawful to exchange five prisoners held at Guantánamo for Sergeant Bowe Bergdahl, notwithstanding a statutory notice requirement that was not followed, because "the Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances").
259. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1218 (2006) (observing that "the avoidance canon appears fairly often in the work of at least some executive components").
260. Josh Blackman, Executive Self-Help and Obamacare, Josh Blackman's Blog (June 9, 2014), http://joshblackman.com/blog/2014/06/09/executive-self-help-and-obamacare [http://perma.cc/RG2E-T6VR].
261. see also Nicholas Bagley, The Legality of Delaying Key Elements of the ACA, New Eng. J. Med., May 22, 2014, http://www.nejm.org/doi/full/10.1056 /NEJMp1402641 [http://perma.cc/MHN9-H3W2].
262. David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265, 268 (2013).
263. Daphna Renan, Pooling Powers, 115 Colum. L. Rev. (forthcoming 2015).
264. See David Kaye, Stealth Multilateralism: U.S. Foreign Policy Without Treaties-or the Senate, Foreign Aff., Sept.-Oct. 2013, http://www.foreignaffairs.com/articles/139649/david-kaye /stealth-multilateralism [http://perma.cc/M7ZF-ZCAA] (documenting this trend).
265. see also Harold Hongju Koh, Remarks: Twenty-First-Century International Lawmaking, 101 Geo. L.J. 725-727, 740-44 (2013) (describing "emerging modes of 'nonlegal understandings,' 'layered cooperation,' and 'diplomatic law talk'" developed against the background of "legislative near-deadlock").
266. See Kirk Semple, Mass Release of Immigrants Is Tied to Cuts, N.Y. Times, Feb. 27, 2013, http://www.nytimes.com/2013/02/27/us/immigrants-released-ahead-of-automatic -budget-cuts.html [http://perma.cc/5W8J-X6H2]. I thank Jaya Ramji-Nogales for bringing this example to my attention.
267. See Press Release, White House, President Obama Announces Recess Appointments to Key Administration Posts (Jan. 4, 2012), http://www.whitehouse.gov/the-press-office/2012 /01/04/president-obama-announces-recess-appointments-key-administration-posts [http:// perma.cc/L9CL-7MB3].
268. See Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times, Apr. 22, 2012, http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers -let-obama-bypass-congress.html [http://perma.cc/A6H4-YZST] (describing "We Can't Wait" as a comprehensive strategy, devised and labeled by the President himself in the fall of 2011, "to more aggressively use executive power to govern in the face of Congressional obstructionism").
269. We Can't Wait, White House, http://www.whitehouse.gov/economy/jobs/we-cant-wait [http://perma.cc/RZV6-SYW2].
270. see also Scott Wilson, Rough Year Prompts a New Blueprint for Obama, Wash. Post, Jan. 26, 2014, http://www.washingtonpost.com/politics/obamas -rough-2013-prompts-a-new-blueprint/2014/01/25/99cddd0c-846d-11e3-8099-9181471f7aaf _story.html [http://perma.cc/LB5T-LCFD] (reporting that "the White House is reorganizing itself to support a more executive-focused presidency," committed to a "style of governing that aims to sidestep Congress more often").
271. Remarks at Jacksonville Port in Jacksonville, Florida, 2013 Daily Comp. Pres. Doc. 526, at 4 (July 25, 2013). What is left unsaid is that the President does not see the size of the space in which he "can act on his own" as fixed, that excessive congressional obstructionism may in his view enlarge his conventional if not also legal discretion.
272. Jon Elster, Unwritten Constitutional Norms 21 (Feb. 24, 2010) (unpublished manuscript), http://www.ucl.ac.uk/laws/jurisprudence/docs/2010/Elster24Feb2010.pdf [http://perma.cc /YPN8-764G] ("With virtually no exception, [constitutional conventions] regulate … the 'machinery of government,' that is, the relation between the main branches of government, their prerogatives, and the limitations on their powers. None of them address issues of individual rights, be they negative or positive, first, second or third generation.").
273. Jon Elster, Unwritten Constitutional Norms 21 (Feb. 24, 2010) (unpublished manuscript), http://www.ucl.ac.uk/laws/jurisprudence/docs/2010/Elster24Feb2010.pdf [http://perma.cc /YPN8-764G] ("With virtually no exception, [constitutional conventions] regulate … the 'machinery of government,' that is, the relation between the main branches of government, their prerogatives, and the limitations on their powers. None of them address issues of individual rights, be they negative or positive, first, second or third generation.").
274. Cf. Mark Tushnet, 1937 Redux? Reflections on Constitutional Development and Political Structures, 14 U. Pa. J. Const. L. 1103, 1109 (2012) (stating that, in hardball, "each side contends that the other breached the relevant implicit understandings first").
275. Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004).
276. See generally Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1981) (exploring "interpretive constructs," including broad versus narrow time frames, that are used pervasively and often unselfconsciously to characterize and assess legal controversies).
277. See, e.g., 158 Cong. Rec. S286-87 (daily ed. Feb. 2, 2012) (statement of Sen. Alexander) ("The President's recess appointments not only show disregard for the Constitution, they show disregard for every individual American who chooses liberty over tyranny, President over King.").
278. See S.J. Res. 20, 112th Cong. § 2(c)(2)(B) (2011).
279. See Sheryl Gay Stolberg & Mike McIntire, A Federal Budget Crisis Months in the Planning, N.Y. Times, Oct. 5, 2013, http://www.nytimes.com/2013/10/06/us/a-federal-budget-crisis -months-in-the-planning.html [http://perma.cc/8G3Q-G35P].
280. See Press Release, Comm. on Fin. Servs., Hensarling: CFPB Has No Valid Director So Financial Services Committee Cannot Accept Testimony on Semi-Annual Report (Apr. 22, 2013), http://financialservices.house.gov/news/documentsingle.aspx?DocumentID=330857 [http://perma.cc/MP2T-GQNB].
281. see Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715, 743-44 (2012) (explaining that, whatever else it protects, the Speech or Debate Clause "clear[ly]" ensures that "members of Congress cannot be held criminally or civilly liable for speech acts … performed in Congress").
282. see Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715, 743-44 (2012) (explaining that, whatever else it protects, the Speech or Debate Clause "clear[ly]" ensures that "members of Congress cannot be held criminally or civilly liable for speech acts … performed in Congress").
283. 153 Cong. Rec. 31,874 (2007) (statement of Sen. Reid).
284. see also Alex N. Kron, Note, The Constitutional Validity of Pro Forma Recess Appointments: A Bright-Line Test Using a Substanceover-Form Approach, 98 Iowa L. Rev. 397, 405 (2012) ("Reid indicated that the sessions were intended to increase the Senate's leverage in the appointment process, a necessary step since President Bush had used the recess-appointment power in order to circumvent Senate confirmation.").
285. See Letter from Elena Kagan, Solicitor Gen., to William K. Suter, Clerk, Supreme Court, at 3 (Apr. 26, 2010).
286. New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010) ("Although a President may fill [Board] vacancies through the use of his recess appointment power, … the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period.").
287. Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. _, 2012 WL 168645, at *4 (Jan. 6, 2012) [hereinafter 2012 OLC Opinion].
288. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1218 (2006) (observing that "the avoidance canon appears fairly often in the work of at least some executive components").
289. Laurence H. Tribe, Games and Gimmicks in the Senate, N.Y. Times, Jan. 5, 2012, http://www.nytimes.com/2012/01/06/opinion/games-and-gimmicks-in-the -senate.html [http://perma.cc/C64K-79X7].
290. see also Akhil R. Amar, Senate Democracy Is Dead, Slate (Jan. 30, 2013), http://www.slate.com/articles/news_and_politics /jurisprudence/2013/01/filibuster_reform_failure_and_recess_appointment_ruling_death_of _senate.html [http://perma.cc/9REA-74CP] (arguing that President Obama's "seemingly aggressive use of the recess-appointment power wasn't so aggressive after all," as the nominations likely would have commanded majority support and Senate Democrats "were being held hostage (literally) by House Leader John Boehner").
291. Michael J. Teter, Congressional Gridlock's Threat to Separation of Powers, 2013 Wis. L. Rev. 1097, 1101 ("Congressional gridlock poses such a threat to separation of powers that it places in peril the entire foundational premises of American government.").
292. See Matthew C. Stephenson, Essay, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940, 972 (2013).
293. See Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525-29 (2003) (explaining the "liquidation" process through which many of the Founders expected constitutional ambiguities to be resolved).
294. See Adrian Vermeule, Recess Appointments and Precautionary Constitutionalism, 126 Harv. L. Rev. F. 122, 124 (2013) (speculating that Senate obstructionism could, in combination with other factors, "eventually produce so much pent-up demand for reform of the appointments process that the President offers some radical reinterpretation of the Constitution, one that gives him substantially increased discretion over appointments").
295. Josh Chafetz, Congress's Constitution (forthcoming 2015).
296. Keith E. Whittington, The Status of Unwritten Constitutional Conventions in the United States, 2013 U. Ill. L. Rev. 1847, 1867-68 (2013).
297. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 Yale L.J. 1165, 1195 (1996).
298. Duthie v. Lewiston Gun Club, 663 P.2d 287, 298 (Idaho 1983) (Bistline, J., dissenting).
299. See, e.g., Douglas Ivor Brandon et al., Special Project, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand. L. Rev. 845, 911-37 (1984) (reviewing cases on "self-help in commercial transactions," including numerous corporate transactions).
300. See Robert C. Ellickson, Order Without Law 130-32 (1991).
301. Celia R. Taylor, Self-Help in Contract Law: An Exploration and Proposal, 33 Wake Forest L. Rev. 839, 842 (1998) ("Despite a long history, to date there has been little discussion of selfhelp as a unified theme …." (citation omitted)).
302. cf. Adam B. Badawi, Self-Help and the Rules of Engagement, 29 Yale J. on Reg. 1, 1 (2012) ("Self-help is a ubiquitous, yet understudied, concept.").
303. Douglas Lichtman, How the Law Responds to Self-Help, 1 J.L. Econ. & Pol'y 215 (2005), and an exhaustive review of state cases and rules by a Vanderbilt Special Project.
304. See, e.g., Douglas Ivor Brandon et al., Special Project, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand. L. Rev. 845, 911-37 (1984) (reviewing cases on "self-help in commercial transactions," including numerous corporate transactions).
305. Celia R. Taylor, Self-Help in Contract Law: An Exploration and Proposal, 33 Wake Forest L. Rev. 839, 842 (1998) ("Despite a long history, to date there has been little discussion of selfhelp as a unified theme …." (citation omitted)).
306. See Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. Econ. & Pol'y 1, 3 (2005) (noting such definitions and criticizing them as "incautiously broad").
307. Motivated cognition refers to "the ubiquitous tendency of people to form perceptions, and to process factual information generally, in a manner congenial to their values and desires." Dan M. Kahan et al., "They Saw a Protest": Cognitive Illiberalism and the Speech-Conduct Distinction, 64 Stan. L. Rev. 851, 853 (2012).
308. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1218 (2006) (observing that "the avoidance canon appears fairly often in the work of at least some executive components").
309. Celia R. Taylor, Self-Help in Contract Law: An Exploration and Proposal, 33 Wake Forest L. Rev. 839, 842 (1998) ("Despite a long history, to date there has been little discussion of selfhelp as a unified theme …." (citation omitted)).
310. See Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. Econ. & Pol'y 1, 3 (2005) (noting such definitions and criticizing them as "incautiously broad").
311. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 Yale L.J. 1165, 1195 (1996).
312. Donald Black, Crime as Social Control, 48 Am. Soc. Rev. 34, 34 (1983).
313. See U.C.C. § 2-717 (2012) (providing for unilateral deduction of damages from the price).
314. See Sonia K. Katyal, Privacy vs. Piracy, 7 Yale J.L. & Tech. 222, 320 (2005) (describing traditional "exceptions to the law of trespass to permit self-help repossession of chattels kept on private property").
315. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
316. But see, e.g., Cliff Sloan & David McKean, The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court 124 (2009) (describing Representative John Rutledge Jr.'s physical assault of Senator Christopher Ellery in 1802).
317. Gregg M. McCormick, Note, Personal Conflict, Sectional Reaction: The Role of Free Speech in the Caning of Charles Sumner, 85 Tex. L. Rev. 1519 (2007) (describing Representative Preston Brooks's physical assault of Senator Charles Sumner in 1856).
318. See generally Tonja Jacobi, The Senatorial Courtesy Game: Explaining the Norm of Informal Vetoes in Advice and Consent Nominations, 30 Legis. Stud. Q. 193 (2005).
319. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1496-97 (1987).
320. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1496-97 (1987).
321. Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791, 1840 (2009).
322. Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791, 1840 (2009).
323. Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in International Regimes 1, 18 (Stephen D. Krasner ed., 1983).
324. U.N. Charter art. 51. Article 51 qualifies Article 2(4)'s prohibition on the nonconsensual use or threat of force.
325. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
326. Ashley S. Deeks, "Unwilling or Unable": Toward a Normative Framework for Extraterritorial Self-Defense, 52 Va. J. Int'l L. 483 (2012) (summarizing relevant law and exploring circumstances in which states may use force in self-defense against nonstate groups within the territory of other states that are "unable or unwilling" to suppress the threat posed by those groups).
327. Memorandum from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, Dep't of Justice, to Att'y Gen. Eric Holder 12 (Apr. 1, 2011). In these arguments, the international regime of self-help intersects with, and potentially alters, the domestic balance of powers. Over the past two decades, a vigorous debate has erupted over whether the U.N. Charter's prohibition on the use of force is or should be further qualified with an exception for humanitarian intervention, often referred to as a "responsibility to protect" or "R2P."
328. See generally Int'l Comm'n on Intervention & State Sovereignty, The Responsibility to Protect, at XI (2001) (introducing the term "responsibility to protect" and advocating that it trump the principle of nonintervention "[w]here a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it").
329. Int'l Coalition for the Responsibility to Protect, http://www.responsibilitytoprotect.org [http://perma.cc/KCL6-BN7B] (collecting resources on R2P).
330. Abraham D. Sofaer, International Law and Kosovo, 36 Stan. J. Int'l L. 3-4, 12-21 (2000).
331. Antonio Cassese, Ex Iniuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 Eur. J. Int'l L. 23 (1999).
332. Jane Stromseth, Rethinking Humanitarian Intervention: The Case for Incremental Change, in Humanitarian Intervention 232, 243-44 (J.L. Holzgrefe & Robert O. Keohane eds., 2003).
333. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
334. See David J. Bederman, Counterintuiting Countermeasures, 96 Am. J. Int'l L. 817, 827 (2002).
335. See Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. Econ. & Pol'y 1, 3 (2005) (noting such definitions and criticizing them as "incautiously broad").
336. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
337. See Elena Katselli Proukaki, The Problem of Enforcement in International Law 69-71 (2010).
338. see also Denis Alland, The Definition of Countermeasures, in The Law of International Responsibility 1127 (James Crawford et al. eds., 2010) (discussing definitional nuances).
339. See Omer Yousif Elagab, The Legality of Non-forcible Counter-measures in International Law 6-41 (1988) (tracing their development from the seventeenth century).
340. Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 I.C.J. 7 (Sept. 25).
341. Air Serv. Agreement of 27 Mar. 1946 (U.S. v. Fr.), 18 R.I.A.A. 417 (1978).
342. For the leading discussion of the case, see Lori Fisler Damrosch, Retaliation or Arbitration-Or Both? The 1978 United States-France Aviation Dispute, 74 Am. J. Int'l L. 785 (1980).
343. Vienna Convention on the Law of Treaties art. 60, opened for signature May 23, 1969, 1155 U.N.T.S. 331.
344. see also John Norton Moore, Enhancing Compliance with International Law: A Neglected Remedy, 39 Va. J. Int'l L. 881 (1999) (discussing the role of nonforcible treatybased retaliation in international law more broadly).
345. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
346. The Articles were commended "to the attention of Governments" by the U.N. General Assembly in 2002. G.A. Res. 56/83, U.N. Doc. A/RES/56/83 (Jan. 28, 2002).
347. Numerous states have described the Articles as "authoritative" in official U.N. forums. See, e.g., U.N. Secretary General, Responsibility of States for Internationally Wrongful Acts: Rep. of the Secretary General 3, 6, U.N. Doc. A/62/63 (Mar. 9, 2007) (statements of the Nordic countries and the United Kingdom).
348. See Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 95 Am. J. Int'l L. 626, 626-28 (2001) (summarizing the U.S. government's March 1, 2001 written comments to the ILC).
349. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
350. see also Daniel Bodansky & John R. Crook, Symposium: The ILC's State Responsibility Articles: Introduction and Overview, 96 Am. J. Int'l L. 773, 779-81 (2002) (questioning the coherence of the distinction between "primary" and "secondary" rules and contending that "[w]hat defines the scope of the articles is not their 'secondary' status but their generality").
351. see also Daniel Bodansky & John R. Crook, Symposium: The ILC's State Responsibility Articles: Introduction and Overview, 96 Am. J. Int'l L. 773, 779-81 (2002) (questioning the coherence of the distinction between "primary" and "secondary" rules and contending that "[w]hat defines the scope of the articles is not their 'secondary' status but their generality").
352. cf. Martins Paparinskis, Equivalent Primary Rules and Differential Secondary Rules: Countermeasures in WTO and Investment Protection Law, in Multi-Sourced Equivalent Norms in International Law 259, 288 (Tomer Broude & Yuval Shany eds., 2011) ("The treatment of all breaches of international law as giving rise to a single regime of secondary rules is a powerful normative expression of the unity of the international legal order.").
353. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
354. see also James Crawford, The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect, 96 Am. J. Int'l L. 874, 879-80 (2002) (disputing the characterization of the Articles as "one-size-fits-all").
355. See Elena Katselli Proukaki, The Problem of Enforcement in International Law 69-71 (2010).
356. cf. Martins Paparinskis, Equivalent Primary Rules and Differential Secondary Rules: Countermeasures in WTO and Investment Protection Law, in Multi-Sourced Equivalent Norms in International Law 259, 288 (Tomer Broude & Yuval Shany eds., 2011) ("The treatment of all breaches of international law as giving rise to a single regime of secondary rules is a powerful normative expression of the unity of the international legal order.").
357. See David J. Bederman, Counterintuiting Countermeasures, 96 Am. J. Int'l L. 817, 827 (2002).
358. see also Special Rapporteur on State Responsibility, Third Rep. on State Responsibility, Int'l Law Comm'n, ¶ 4, U.N. Doc. A/CN.4/440 & Add.1 (July 19, 1991) (by Gaetano Arangio-Ruiz).
359. [1991] 2 Y.B. Int'l L. Comm'n 1, 7-8, U.N. Doc. A/CN.4/SER.A/440 & Add.1 ("One of the crucial aspects of the Commission's task appears to be to devise ways and means which … could reduce the impact of the great inequality revealed among States in the exercise of their faculté … to apply countermeasures, which is such a major cause of concern.").
360. Alan Nissel, Book Review, The ILC Articles on State Responsibility: Between Self-Help and Solidarity, 38 N.Y.U. J. Int'l L. & Pol. 355, 358 (2006) (characterizing the ILC's mandate as "maximum enforcement and minimal vigilantism").
361. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
362. See David J. Bederman, Counterintuiting Countermeasures, 96 Am. J. Int'l L. 817, 827 (2002).
363. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
364. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
365. See Yuji Iwasawa & Naoki Iwatsuki, Procedural Conditions, in The Law of International Responsibility, 1152-53.
366. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
367. See generally Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 Am. J. Int'l L. 715 (2008) (discussing the central role of proportionality in countermeasures doctrine and related areas of international law). There is some support for the view that, to serve the goal of inducing compliance by the responsible state, proportionality may tolerate limited amounts of escalation.
368. See David J. Bederman, Counterintuiting Countermeasures, 96 Am. J. Int'l L. 817, 827 (2002).
369. For the leading discussion of the case, see Lori Fisler Damrosch, Retaliation or Arbitration-Or Both? The 1978 United States-France Aviation Dispute, 74 Am. J. Int'l L. 785 (1980).
370. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
371. Art. 53, at 137.
372. cf. Adam B. Badawi, Self-Help and the Rules of Engagement, 29 Yale J. on Reg. 1, 1 (2012) ("Self-help is a ubiquitous, yet understudied, concept.").
373. Oona Hathaway & Scott J. Shapiro, Outcasting: Enforcement in Domestic and International Law, 121 Yale L.J. 252, 308-24 (2011) (endeavoring to explain why different legal regimes that rely on nonviolent, nonhierarchical enforcement take the form they do). Hathaway and Shapiro's article offers a comprehensive theory of decentralized enforcement in international law, of which countermeasures is just one element.
374. Or so it seems from the academic commentary. I claim no expertise on these private law subjects and rely heavily on the small body of theoretically oriented self-help works.
375. See, e.g., Douglas Ivor Brandon et al., Special Project, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand. L. Rev. 845, 911-37 (1984) (reviewing cases on "self-help in commercial transactions," including numerous corporate transactions).
376. See Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. Econ. & Pol'y 1, 3 (2005) (noting such definitions and criticizing them as "incautiously broad").
377. Mark P. Gergen, A Theory of Self-Help Remedies in Contract, 89 B.U. L. Rev. 1397, 1399-1430 (2009).
378. See Grant S. Nelson, The Contract for Deed as a Mortgage: The Case for the Restatement Approach, 1998 BYU L. Rev. 1111, 1136-38.
379. cf. Adam B. Badawi, Self-Help and the Rules of Engagement, 29 Yale J. on Reg. 1, 1 (2012) ("Self-help is a ubiquitous, yet understudied, concept.").
380. cf. Adam B. Badawi, Self-Help and the Rules of Engagement, 29 Yale J. on Reg. 1, 1 (2012) ("Self-help is a ubiquitous, yet understudied, concept.").
381. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2008).
382. Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004).
383. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2008).
384. Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004).
385. see also Mark Tushnet, Response, 26 Quinnipiac L. Rev. 727, 732 (2008) ("For me, constitutional hardball is-definitionally-a transitional phenomenon that occurs when one side sees an opportunity to shift the constitutional order ….").
386. see Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715, 743-44 (2012) (explaining that, whatever else it protects, the Speech or Debate Clause "clear[ly]" ensures that "members of Congress cannot be held criminally or civilly liable for speech acts … performed in Congress").
387. It is the substance of these charges, not the precise wording, that matters here. While the term "proportionality" may at present have a European flavor, American lawyers are comfortable with concepts like reasonableness, tailoring, and fit, which get at the same basic idea.
388. Meet the Press (NBC television broadcast July 14, 2013), http://www.nbcuni .com/corporate/newsroom/meet-the-press-clips-transcript-sunday-july-14 [http://perma.cc /Q4HZ-KEJQ] (statement of Sen. Minority Leader Mitch McConnell).
389. see also 159 Cong. Rec. S5628-29 (daily ed. July 11, 2013) (statement of Sen. Minority Leader Mitch McConnell) (asserting that the Democratic proposal for filibuster reform would "fundamentally change" the Senate and "break[] the rules … to change the rules").
390. See Thomas E. Mann & Norman J. Ornstein, The Broken Branch 162-69 (2006) (describing and assailing the "nuclear option").
391. See generally Todd Garvey & Alissa M. Dolan, Cong. Research Serv., RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (2012).
392. See, e.g., 159 Cong. Rec. S27-S28 (daily ed. Jan. 22, 2013) (statement of Sen. Tom Udall) ("The reforms we propose are modest-some would say too modest-but they would discourage the excessive use of filibusters.").
393. 157 Cong. Rec. S37-S38 (daily ed. Jan. 5, 2011) (statement of Sen. Jeff Merkley) ("These … are not radical concepts. They are modest steps toward saying that in this incredibly partisan environment we now operate in … we have to … start to restore the Senate as a place of dialog and debate.").
394. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 Yale L.J. 1165, 1195 (1996).
395. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 Yale L.J. 1165, 1195 (1996).
396. See generally Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 Am. J. Int'l L. 715 (2008) (discussing the central role of proportionality in countermeasures doctrine and related areas of international law). There is some support for the view that, to serve the goal of inducing compliance by the responsible state, proportionality may tolerate limited amounts of escalation.
397. In a recent article, British legal theorist Nicholas Barber divides institutional "self-defense" mechanisms into positive and negative variants. N.W. Barber, Self-Defence for Institutions, 72 Cambridge L.J. 558 (2013).
398. Bradley J. Bondi, No Secrets Allowed: Congress's Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings, 25 J.L. & Pol. 145, 155 n.59 (2009).
399. Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821).
400. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
401. Michael Les Benedict, Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction, and the Transformation of the American Constitution, 108 Yale L.J. 2011, 2028 (1999).
402. Christopher R. Green, Loyal Denominatorism and the Northern-Authored Fourteenth Amendment: Reconstruction History (Jan. 31, 2014) (unpublished manuscript), http://ssrn.com/abstract=2317471 [http://perma.cc/GDF8-MBVM].
403. Michael Les Benedict, Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction, and the Transformation of the American Constitution, 108 Yale L.J. 2011, 2028 (1999).
404. See Amy Steigerwalt, Battle over the Bench: Senators, Interest Groups, and Lower Court Confirmations 75-94 (2010).
405. Brian R.D. Hamm, Note, Modifying the Filibuster: A Means to Foster Bipartisanship While Reining in Its Most Egregious Abuses, 40 Hofstra L. Rev. 735, 745-48 (2012).
406. See Thomas E. Mann & Norman J. Ornstein, It's Even Worse than It Looks: How the American Constitutional System Collided with the New Politics of Extremism 91-100 (2012).
407. See, e.g., Sam Stein, Lindsey Graham: Richard Shelby Was "Wrong" to Place Blanket Hold on Obama Nominees, Huffington Post (Apr. 16, 2010), http://www.huffingtonpost.com /2010/02/14/lindsey-graham-richard-sh_n_461832.html [http://perma.cc/ZDF4-PRAS].
408. Brian R.D. Hamm, Note, Modifying the Filibuster: A Means to Foster Bipartisanship While Reining in Its Most Egregious Abuses, 40 Hofstra L. Rev. 735, 745-48 (2012).
409. Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1082 (2013). The "big-C," or "large-C," Constitution is the canonical document that dates from 1787.
410. On the historical and cultural significance of "off-the-wall" to "on-the-wall" transformations more generally, see Jack M. Balkin, Constitutional Redemption 12, 61, 69-70, 88, 119, 177-83 (2011). I thank Ryan Williams for stimulating discussion on these points and for the suggestion to include Table II.
411. Executive branch officials subject to impeachment or contempt-Congress's key conditional self-help powers-are given relatively elaborate forms of notice and an opportunity to be heard, but these affordances are grounded in constitutional text or judicial doctrine, not in convention. See generally Elizabeth B. Bazan, Cong. Research Serv., 7-5700, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice 8-10 (2010) (summarizing enumerated constitutional limitations on the impeachment power).
412. See generally Todd Garvey & Alissa M. Dolan, Cong. Research Serv., RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (2012).
413. Letter from James M. Cole, U.S. Deputy Att'y Gen., to Darrell E. Issa, Chair, H. Comm. on Oversight and Gov't Reform, at 4 (June 20, 2012), http://www.mainjustice.com/wp-admin /documents-databases/93-1-Dep.-AG-Cole-letter-to-Issa-on-executive-privilege.pdf [http:// perma.cc/Z8KS-CARW] [hereinafter Cole Privilege Letter].
414. Cf. Michael J. Gerhardt, Norm Theory and the Future of the Federal Appointments Process, 50 Duke L.J. 1687, 1712 n.92 (2001) (discussing the alleged breach and subsequent reaffirmation of this convention under President Clinton).
415. This practice was memorialized several decades ago in the International Agreement Consultation Resolution, S. Res. 536, 95th Cong. (1978), which as a unicameral resolution does not carry the force of law.
416. see also Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119 Yale L.J. 140, 192-93 (2009) (discussing additional codified rules and enforcement difficulties in this area).
417. See, e.g., Memorandum from the White House for the Heads of Exec. Dep'ts and Agencies (Mar. 9, 2009), http://www.whitehouse.gov/the-press-office/memorandum-presidential -signing-statements [http://perma.cc/CB6Q-8HHA] (affirming the principle that "[t]he executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation").
418. This convention was enshrined in statute in 2002. 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 202, 116 Stat. 1758, 1771-75 (2002) (codified at 28 U.S.C. § 530D (2006)).
419. Cf. David E. Pozen, Deep Secrecy, 62 Stan. L. Rev. 257, 311 (2010) (observing that with respect to "deep secrets," or unknown unknowns, "we do not have any significant public tradition of their usage, or of congressional, judicial, and popular acceptance thereof" (emphasis omitted)).
420. See, e.g., Jack Goldsmith, The Terror Presidency 181 (2007) (criticizing the way in which Bush Administration officials "blew through" certain national security-related laws "in secret").
421. Stephanie Cooper Blum, What Really Is at Stake with the FISA Amendments Act of 2008 and Ideas for Future Surveillance Reform, 18 B.U. Pub. Int. L.J. 269, 286 (2009) ("The problem with the [Terrorist Surveillance Program] was not so much in what it did, but how the Bush administration went about doing it."). President Obama repudiated this brand of secrecy immediately upon taking office.
422. President Barack Obama, Remarks by the President in Welcoming Senior Staff and Cabinet Secretaries to the White House (Jan. 21, 2009), http://www.whitehouse.gov/the-press-office/remarks-president-welcoming -senior-staff-and-cabinet-secretaries-white-house [http://perma.cc/MY28-VUZA] ("Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency.").
423. Presidential Auth. to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 201 (1994).
424. See Aziz Z. Huq, Enforcing (but Not Defending) 'Unconstitutional' Laws, 98 Va. L. Rev. 1001, 1069-70 (2012).
425. Neal Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112 Colum. L. Rev. 507, 517 (2012).
426. See, e.g., The Att'y Gen.'s Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4 A Op. O.L.C. 55, 56 & n.1 (1980). Devins and Prakash dismiss this approach in their recent article: "There is no textual warrant for saying that clearly unconstitutional laws are not laws for purposes of the [Take Care] Clause," they remark, "but that statutes merely more likely than not unconstitutional are laws within the meaning of the Clause."
427. Neal Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112 Colum. L. Rev. 507, 517 (2012).
428. cf. Adam B. Badawi, Self-Help and the Rules of Engagement, 29 Yale J. on Reg. 1, 1 (2012) ("Self-help is a ubiquitous, yet understudied, concept.").
429. As Curtis Bradley and Neil Siegel detail in a forthcoming article, the perceived clarity of constitutional text is itself partially constructed through extratextual practices. See Curtis A. Bradley & Neil S. Siegel, Constructed Constraint and the Constitutional Text, 64 Duke L.J. (forthcoming 2015).
430. While it may be unthinkable today that Congress would pursue any strong version of this strategy against the Supreme Court, in light of the failure of President Franklin Roosevelt's "court-packing" plan, conventional wisdom continues to view the strategy as legally available. See Akhil Reed Amar, America's Unwritten Constitution 355 (2012) ("A strong case can be made that the written Constitution was designed precisely to allow Congress to rein in or resize a Court that Congress believes has acted improperly.").
431. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
432. See Draft Articles and Commentary on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int'l L. Comm'n 31, 128, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC Articles and Commentary] (explaining that the term "reprisals" has become synonymous with "belligerent reprisals").
433. See generally Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 Am. J. Int'l L. 715 (2008) (discussing the central role of proportionality in countermeasures doctrine and related areas of international law). There is some support for the view that, to serve the goal of inducing compliance by the responsible state, proportionality may tolerate limited amounts of escalation.
434. See, e.g., Andrew T. Guzman, How International Law Works: A Rational Choice Theory 33 (2008) (arguing that "reputation, reciprocity, and retaliation … are the keys to understanding why states comply with international obligations").
435. Cf. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 708 n.167 (2011) ("What counts as an interpretation of the constitutional text as opposed to a nontextual norm or convention depends on the operative theory of interpretation.").
436. see also Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. Rev. 773, 806-08 (2002) (cataloguing structural, institutional, and ideological factors believed to conduce to constitutional stability).
437. For the classic statement of the distinction between law in action and law in books, see generally Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12 (1910).
438. Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821).
439. Jon Elster, Alchemies of the Mind: Rationality and the Emotions 341 (1999) (emphasis omitted).
440. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2008).
441. See generally Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 Am. J. Int'l L. 715 (2008) (discussing the central role of proportionality in countermeasures doctrine and related areas of international law). There is some support for the view that, to serve the goal of inducing compliance by the responsible state, proportionality may tolerate limited amounts of escalation.
442. Cf. Jack M. Beard, Law and War in the Virtual Era, 103 Am. J. Int'l L. 409, 427-28 (2009) ("[T]hrough … frequent application, it can be argued that proportionality has in fact shed much of its indeterminacy and for this reason has often played an important role in modulating various types of conflict between states." (internal quotation marks omitted)).
443. Cf. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 708 n.167 (2011) ("What counts as an interpretation of the constitutional text as opposed to a nontextual norm or convention depends on the operative theory of interpretation.").
444. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 Yale L.J. 1165, 1195 (1996).
445. Cf. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 708 n.167 (2011) ("What counts as an interpretation of the constitutional text as opposed to a nontextual norm or convention depends on the operative theory of interpretation.").
446. Cf. Josh Chafetz, The Political Animal and the Ethics of Constitutional Commitment, 124 Harv. L. Rev. F. 1, 11 (2011) (emphasizing the "force of ethical reasoning" as a basis for constitutional commitment).
447. See generally Tonja Jacobi, The Senatorial Courtesy Game: Explaining the Norm of Informal Vetoes in Advice and Consent Nominations, 30 Legis. Stud. Q. 193 (2005).
448. See Genetic Fallacy, in The Oxford Companion to Philosophy 331 (Ted Honderich ed., 2d ed. 2005) (describing "the fallacy of confusing the causal origins of a belief with its justification").
449. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
450. I do not mean to deny the heuristic value of those sports metaphors, or to suggest that additional work on the origins and empirics of intragovernmental self-help would not be valuable. Scholars could, for instance, draw on rational choice theory to develop testable hypotheses regarding how such self-help occurs. Here are two. It seems plausible that the principal forms of conditional executive self-help described in Part I (nonenforcement, nondefense, constitutional avoidance, and executive privilege) tend to increase during periods of divided government, second presidential terms, and wartime. It also seems plausible that comparatively opaque strategies of executive self-help, such as creative legal interpretation and constitutional avoidance, are preferred to comparatively salient strategies, such as the avowed nonenforcement of statutes, when the underlying congressional policy remains popular.
451. Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).
452. see also Louis Fisher, The Efficiency Side of Separated Powers, 5 J. Am. Stud. 113, 114 (1971) (discussing the influence of Justice Brandeis's dictum).
453. For a sampling of the literature on this point, see W.B. Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution 32-36 (1965).
454. N.W. Barber, Prelude to the Separation of Powers, 60 Cambridge L.J. 59, 64-66 (2001).
455. see also Louis Fisher, The Efficiency Side of Separated Powers, 5 J. Am. Stud. 113, 114 (1971) (discussing the influence of Justice Brandeis's dictum).
456. Cass R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421, 432-33 (1987).
457. Paul R. Verkuil, Separation of Powers, The Rule of Law, and the Idea of Independence, 30 Wm. & Mary L. Rev. 301, 303 (1989).
458. See Matthew C. Stephenson, Essay, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940, 972 (2013).
459. See Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times, Apr. 22, 2012, http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers -let-obama-bypass-congress.html [http://perma.cc/A6H4-YZST] (describing "We Can't Wait" as a comprehensive strategy, devised and labeled by the President himself in the fall of 2011, "to more aggressively use executive power to govern in the face of Congressional obstructionism").
460. Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. _, 2012 WL 168645, at *4 (Jan. 6, 2012) [hereinafter 2012 OLC Opinion].
461. NLRB v. Canning, 134 S. Ct. 2550 (2014).
462. See Defendants' Opposition to Plaintiffs' Application for Preliminary Injunctive Relief at 2, 17-21.
463. see also U.S. Dep't of Educ., ESEA Flexibility 1 (2012) [hereinafter ESEA Flexibility], http://www.ed.gov/esea/flexibility/documents/esea-flexibility-acc.doc [http:// perma.cc/7XNY-SJSA] (characterizing the Department's waiver policy as allowing states and localities to "move forward" with reforms "in a manner that was not originally contemplated by the No Child Left Behind Act of 2001").
464. This paragraph and the next are adapted from a blog post of mine. David Pozen, Interpretation and Retaliation in the Obama Administration, Just Security (June 9, 2014), http://justsecurity.org/11388/david-pozen-countermeasures-interpretation-retaliation -obama-administration [http://perma.cc/9U-T4CU].
465. Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1082 (2013). The "big-C," or "large-C," Constitution is the canonical document that dates from 1787.
466. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1218 (2006) (observing that "the avoidance canon appears fairly often in the work of at least some executive components").
467. See Press Release, White House, President Obama Announces Recess Appointments to Key Administration Posts (Jan. 4, 2012), http://www.whitehouse.gov/the-press-office/2012 /01/04/president-obama-announces-recess-appointments-key-administration-posts [http:// perma.cc/L9CL-7MB3].
468. This pattern has not always held. President Obama, for example, prominently declined to adopt a latitudinarian reading of the Fourteenth Amendment's Public Debt Clause after House Republicans violated the convention against holding the debt ceiling hostage. See Jackie Calmes, Obama Will Not Unilaterally Raise Debt Limit, N.Y. Times, Oct. 3, 2013, http://www.nytimes.com/news/fiscal-crisis/2013/10/03/obama-will-not-unilaterally -raise-debt-limit [http://perma.cc/V5AU-P2MU].
469. Nor, it seems, has the President sought to enlist congressional allies to make these arguments. For an example of what such congressional support might look like, see Akhil Reed Amar & Timothy Noah, How to Resolve the Recess Appointment Crisis: An Elegant Legal Solution, New Republic (Jan. 6, 2012), http://www.newrepublic.com/article/politics/99285 /how-resolve-the-recess-appointment-crisis-elegant-legal-solution [http://perma.cc/YE9CUQL8] (arguing that, in order to endorse President Obama's January 2012 recess appointments while also constraining their precedential force, Senate Majority Leader Harry Reid should have generated a letter "signed by 51 senators stating that the president is entitled to make a recess appointment when the Senate actively denies him that constitutional power through procedural gimmic[k]").
470. For a summary of this colloquy and the Justices' reactions in person and in print, see Josh Blackman, Gridlock and Executive Power 10-19 (July 15, 2014) (unpublished manuscript), http://ssrn.com/abstract=2466707 [http://perma.cc/FU89-2YYU].
471. See generally Richard H. Pildes, Institutional Formalism and Realism in Constitutional and Public Law, 2013 Sup. Ct. Rev. 1 (exploring the tension between formalistic and realistic approaches to reviewing the actions of government institutions, and noting the Supreme Court's tendency to privilege the former).
472. That is to say, the Solicitor General's remarks at oral argument evoked, but did not do the hard work of detailing or theorizing, both the claim that current levels of Senate intransigence were sufficiently problematic to trigger a conditional self-help power and the claim that the recess appointment in question was an appropriately limited exercise of that power.
473. see Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715, 743-44 (2012) (explaining that, whatever else it protects, the Speech or Debate Clause "clear[ly]" ensures that "members of Congress cannot be held criminally or civilly liable for speech acts … performed in Congress").
474. See Jeremy W. Peters, In Landmark Vote, Senate Limits Use of the Filibuster, N.Y. Times, Nov. 22, 2013, http://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps -to-limit-use-of-filibuster.html [http://perma.cc/UB49-BMQ6].
475. Cf. Mark Tushnet, 1937 Redux? Reflections on Constitutional Development and Political Structures, 14 U. Pa. J. Const. L. 1103, 1109 (2012) (stating that, in hardball, "each side contends that the other breached the relevant implicit understandings first").
476. See, e.g., Russell Hardin, Liberalism, Constitutionalism, and Democracy 3 (1999) ("Workability … is far less demanding in its requirement of mutual advantage than is normative theory.").
477. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2008).
478. see also Adrian Vermeule, Conventions in Court 2 (Nov. 14, 2013) (unpublished manuscript), http://ssrn.com /abstract=2354491 [http://perma.cc/7PNC-8NQ7] (asserting that the decentralized manner in which conventions arise "undermines the deliberateness, responsiveness and accountability" of democratic lawmaking).
479. In a recent article, British legal theorist Nicholas Barber divides institutional "self-defense" mechanisms into positive and negative variants. N.W. Barber, Self-Defence for Institutions, 72 Cambridge L.J. 558 (2013).
480. U.S. Const. art. II, § 3.
481. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2316 (2006). In Levinson and Pildes's telling, party competition has largely displaced institutional identification as the engine of legislative-executive checks and balances.
482. At this writing, Democratic Senator Dianne Feinstein's feud with the Central Intelligence Agency is one of the most riveting dramas in Washington. See Steve Coll, The Senator vs. the C.I.A., New Yorker, Mar. 24, 2014, http://www.newyorker.com/talk/comment/2014/03/24 /140324taco_talk_coll [http://perma.cc/7ZTU-SWWS].
483. Darren Samuel Sohn, Dianne Feinstein-CIA Feud Enters Uncharted Territory, Politico (Mar. 23, 2014), http://www.politico .com/story/2014/03/dianne-feinstein-cia-feud-104927.html [http://perma.cc/J8B6-WS2N].
484. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2008).
485. It would take another paper to elaborate the details, but as this Article's examples suggest, partisan dynamics inspire certain retaliatory efforts while suffocating others.
486. Support certain norms of moderation and fair play while subverting others.
487. Generate an ever-shifting array of cross-branch alliances.
488. Foster different underlying orientations to constitutional unilateralism, duty, and convention.
489. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2316 (2006). In Levinson and Pildes's telling, party competition has largely displaced institutional identification as the engine of legislative-executive checks and balances.
490. See Curtis A. Bradley & Trevor W. Morrison, Essay, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097, 1140 (2013) (noting the "pervasive existence of public 'law talk'" in the United States, as part of which the "executive branch almost always endeavors to argue that its actions are lawful-and to rebut criticisms to the contrary").
491. William G. Howell, Power Without Persuasion: The Politics of Direct Presidential Action 178 (2003) (contending that, with the notable exception of the budget process, "Congress rarely can mount an effective and timely response to the President").
492. In his Response to this Article, William Marshall warns that this concern is very severe indeed, as Presidents are in a "far better position" than Congress "to take effective advantage" of self-help and are liable to do so in destructive ways. See William P. Marshall, Warning!: Self-Help and the Presidency, 124 Yale L.J. F. (forthcoming 2014). Marshall's forceful argument provides a basis for concluding that it would be desirable to strengthen or at least to reaffirm the existing limits on executive self-help. I have a lot of sympathy for this position.
493. The general theory of the second best supports the point. This theory "holds that where it is not possible to satisfy all the conditions necessary for an economic system to reach an overall optimum, it is not generally desirable to satisfy as many of those conditions as possible." Adrian Vermeule, The System of the Constitution 29 (2011) (citing R.G. Lipsey & Kelvin Lancaster, The General Theory of Second Best, 24 Rev. Econ. Stud. 11, 11-12 (1956)). As Vermeule has shown, the theory's basic insight can be deployed to undermine the assumption that when one actor in government-say, Congress-departs from some normative benchmark-as by violating the Constitution-the best approach is for every other actor to continue to conform their conduct to the benchmark.
494. See David J. Bederman, Counterintuiting Countermeasures, 96 Am. J. Int'l L. 817, 827 (2002).
495. See David J. Bederman, Counterintuiting Countermeasures, 96 Am. J. Int'l L. 817, 827 (2002).
496. Michel Foucault, Discipline and Punish 82-89, 257-92 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977). The French term is illégalismes, a neologism that better captures the ambivalent character of these practices.
497. See, e.g., Douglas Ivor Brandon et al., Special Project, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand. L. Rev. 845, 911-37 (1984) (reviewing cases on "self-help in commercial transactions," including numerous corporate transactions).
498. See, e.g., William P. Marshall, Essay, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. Rev. 505 passim (2008) (describing factors driving an "exponential[]" expansion in presidential power since the Founding and a resulting "constitutional imbalance").
499. Hubert Lesaffre, Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Countermeasures, in The Law of International Responsibility, at 469-470.
500. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2316 (2006). In Levinson and Pildes's telling, party competition has largely displaced institutional identification as the engine of legislative-executive checks and balances.
501. See generally Vincent Blasi, The Pathological Perspective and the First Amendment, 85 Colum. L. Rev. 449 (1985). Blasi expressly limited his argument about fashioning constitutional doctrines "for the worst of times" to the First Amendment context.
502. H. Jefferson Powell, The Executive and the Avoidance Canon, 81 Ind. L.J. 1313 (2006).
503. See Elena Katselli Proukaki, The Problem of Enforcement in International Law 69-71 (2010).
504. Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1182 (2013).
505. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2316 (2006). In Levinson and Pildes's telling, party competition has largely displaced institutional identification as the engine of legislative-executive checks and balances.
506. See Walter J. Oleszek, Congressional Procedures and the Policy Process 259 (9th ed. 2014) ("Senators regularly place holds on diplomatic and other nominations to extract concessions from … federal agencies.").
507. Eric Biber, The More the Merrier: Multiple Agencies and the Future of Administrative Law Scholarship, 125 Harv. L. Rev. F. 78, 78 (2012).
508. For some evidence supporting an affirmative answer to this question with regard to highlevel U.S. officials, see David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 586-605 (2013).
509. See Paul Finkelman, Turning Losers into Winners: What Can We Learn, if Anything, from the Antifederalists?, 79 Tex. L. Rev. 849, 892 (2001) (book review) (observing that late nineteenth-century secessionists resurrected the tradition of early nineteenth-century nullificationists and "ultimately replaced the antifederalists as the greatest political losers in American political history").
510. Jessica Bulman-Pozen & Heather K. Gerken, Essay, Uncooperative Federalism, 118 Yale L.J. 1256, 1259 (2009).
511. see also Abbe R. Gluck, Essay, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534, 572 (2011) (noting "the potential for some states to be less eager, less effective, or even rebellious implementers of federal law").
512. Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077, 1080-82, 1096-1108 (2014). On Bulman-Pozen's conception, it is the political parties, rather than distinctive state interests, that drive these confrontations.
513. States are not so much the authors of autonomous resistance as they are the vehicles of partisan self-help.
514. Jessica Bulman-Pozen & Heather K. Gerken, Essay, Uncooperative Federalism, 118 Yale L.J. 1256, 1259 (2009).
515. Arizona v. United States, 132 S. Ct. 2492, 2521 (2012) (Scalia, J., concurring in part and dissenting in part).
516. Pratheepan Gulasekaram & S. Karthick Ramakrishnan, Immigration Federalism: A Reappraisal, 88 N.Y.U. L. Rev. 2074, 2089 (2013) (describing and critiquing "the early twenty-first century's resurgence of subfederal immigration regulation").
517. See Frank I. Michelman, The Supreme Court, 1985 Term-Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4, 16-17, (1986).
518. Alasdair MacIntyre, Secularization and Moral Change 24 (1967).
519. James G. Wilson, American Constitutional Conventions: The Judicially Unenforceable Rules that Combine with Judicial Doctrine and Public Opinion to Regulate Political Behavior, 40 Buff. L. Rev. 645, 659 (1992).