When Inter-branch Norms Break Down: Of Arms-for-Hostages, 'Orderly Shutdowns,' Presidential Impeachments, and Judicial 'Coups'

Abstract

The orderly and effective operation of our national system of government was intended to depend to an exceptional degree upon certain norms of cooperation among its competing branches. The strength of those norms is essential to securing the primary political asset that our government design was intended to help realize: an especially robust form of democratic legitimacy. From this standpoint, it is constitutionally worrisome that norms critical to inter-branch cooperation are coming under heedless assault. To illustrate the problem, this article revisits four critical episodes that have involved destabilizing and antidemocratic initiatives, each undertaken by a branch of the national government while in the control of the current, very conservative generation of Republican party leadership: the Iran-Contra affair, the government shutdown of 1995, the impeachment of President Clinton, and the Senate stonewalling of President Clinton's judicial nominations. The repeated willingness of the Republican Party's most conservative elements to engage in such initiatives is not rooted in political conservatism per-se. It reflects rather the narrowing social and ideological base of the Republican Party, and is consistent with a contempt for democratic pluralism that characterizes the constitutional outlook of leading Republican legal theorists. Unless matters are improved, the United States may otherwise be headed towards a new political equilibrium that does considerable violence to America's modern practice of democratic legitimacy.