Branches Behaving Badly: The Predictable and Often Desirable Consequences of the Separation of Powers

Abstract

At the intersection of law and politics, Republicans have continually run red lights, committed hit-and-runs, and otherwise flouted constitutional norms. At least that is what Professor Peter Shane would have us believe. In his provocative paper, Professor Shane argues that over the past two decades Republicans (especially those in Congress) have repeatedly violated separation of powers norms in a manner that evinces contempt for pluralism and the Constitution's separation of powers. Professor Shane essentially makes three points. First, separation of powers norms are increasingly fragile and have been violated as they never have been before, and that their wobbly state is bad for the nation. Second, Republicans are the norm-breakers. Third, they are normbreakers for reasons congenital to the modem Republican Party, a narrow party that is homogeneous, white, dominated by the right-wing, and thus hostile to the Constitution's separation of powers. I disagree with each of these claims. To begin with, we ought not to lament changing interbranch norms. Given the predictable interbranch friction in a system of separated powers, interbranch norms inevitably will change over time. The inescapable creation and destruction of interbranch norms is not a process to be feared or despised. What matters is not merely whether some institution has broken a norm, but whether the norm supposedly violated is one worth preserving. For instance, if there were a norm of rubberstamping treaties, few ought to shed tears if the Senate began to examine treaties more carefully. Hence, the mere fact that interbranch norms might have changed recently is not reason for anyone to fret or panic. Assuming that interbranch norms have been changing lately, it is not obvious that the Republicans deserve all the credit (or blame). In the past, congressional Democrats have taken many of the actions that Professor Shane protests (such as stalling judicial nominees or presenting presidents with all-or-nothing appropriation bills). Nonetheless, they escape his censure because they took these actions while opposing supposedly unpopular presidents. Yet a norm's application cannot depend upon something as mercurial and uncertain as popularity. We will be able to say very little that is sensible and consequential about norms and their violation if we also have to check the Gallup polls of the era. Indeed, it seems unlikely that an interbranch norm exists at all if it does not apply when one or more branches are unpopular and therefore weak. Rather, it would seem that meaningful norms exist only if they apply generally, regardless of whether the application of the norm would cater to public opinion. If Professor Shane truly cherishes these norms, he should direct at least some of his indignation at Democrats in Congress. Finally, contrary to what Professor Shane seems to argue, the Grand Old Party, for all its faults, has no beef with "deliberative legitimacy." Nor is it opposed to democracy, accountability, or checks and balances.To be sure, it is opposed to the Democratic Party, and it may have had a hand in undermining some of the interbranch norms Professor Shane prizes. However, these facts do not mean that the Republicans are to be feared and loathed anymore than the Democratic Party should be feared and loathed for its opposition to the Republicans and its active participation in undermining the norms at issue. This is not to say that one cannot fault the Republicans for their politics and their policies. But to go further and claim that they are systematically hostile to the Constitution's checks and balances, or are somehow antidemocratic, as Professor Shane repeatedly claims, requires much more by way of evidence. Professor Shane simply has not made the case that the Republican Party is the party of angry, white, anti-separation of powers, antidemocratic, anti-deliberative, males.