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Tuesday, January 19, 2016

Terry Moe Triumphant? Do Collective Action Problems Plague Judicial as Well as Political Safeguards Against Presidential Power?

One can view the controversy over President Obama’s DAPA policy, now elevated to the major case of the term by SCOTUS’s cert grant today in Texas v. United States, as an illustration of one fundamental truth: Partisan politics trumps institutional loyalty. Liberals who denounced Bush’s allegedly imperial signing statements now predictably embrace Obama’s allegedly imperial guidance documents. Conservatives who were devoted to the unitary executive under Bush II now predictably denounce Obama’s imperial presidency. Both Democratic and Republican pots and kettles predictably accuse the other of blackest hypocrisy about their constitutional principles – and, of course, both are correct. Partisan disloyalty to abstract constitutional arrangements is a matter of bipartisan consensus.

According to Terry Moe, all Presidents, regardless of their political party or campaign promises, will always stretch presidential prerogatives to the limit, because their high visibility impels them to satisfy their constituents’ demands for action. (For Moe's own summary of the institutional literature on the Presidency, see here). Congress’ push-back will be flabby and ineffective, because Congress suffers from collective action problems. Hog-tied by bicameralism and lacking a leader capable of rallying a united rank-and-file (Speaker Ryan’s bully pulpit is surely as lowly as Speaker Pelosi’s), Congress will always be less popular, less energetic, and less unified than the executive branch. The result is, for better or worse, relentless expansion of presidential prerogatives.

Moe’s theory undermines theories about the political safeguards of separation of powers. But does it follow that SCOTUS’s active review is an effective antidote to the imperial presidency? The obvious problem is that SCOTUS is plagued by collective action problems as well. A particular partisan majority on a collegial bench might, in abstract, embrace a principle like the unitary executive or the Color-Blind Constitution -- but will they stick with that abstract theory when their party's ox is being gored? Only if the other side can make a credible commitment to return the compliment when the partisan tables are turned. Stare decisis and crisp constitutional doctrine might be the foundation of such commitments -- but can the doctrine ever be crisp and credible enough to constitute a pact capable of surmounting the hyper-partisan passions of our times? As I noted with respect to the Color-Blind Constitution, liberal and conservative justices seem rationally to trim their sails based on partisan considerations, because the flabbiness of the relevant doctrines does not give either side assurance that the other side will stick to the doctrine when it disfavors that side's party loyalties. Scalia’s dissent in Zivitofsky v. Kerry suggests (et tu, Nino?) that his loyalty to the unitary presidency might be GOP deep -- and rationally so, if he believes that liberal justices will not protect a conservative president's conservative foreign policy prerogatives. The same distrust, of course, applies to the opposite side of the bench. Moreover, even if one side can muster a 5-4 majority to spank the president in this case, will such a precedent last – or will it dissolve, limited to its facts, when the partisan tables are turned and a judicial majority shares the President’s Party? Stare decisis, after all, is the sort of abstract institutional principle that partisan bile dissolves just as effectively as the unitary presidency.

But maybe I am unduly pessimistic about the power of constitutional abstractions to unite a court across cases? (I should tip my own ideological hand by noting that, on the merits of this particular assertion of Presidential power, I share Ilya's support for DAPA as a justified assertion of presidential enforcement discretion. But that might just be because, like Ilya, I am an immigration libertarian).

Posted by Rick Hills on January 19, 2016 at 09:33 PM | Permalink


Texas v United States may be the case in which all these chickens come home to roost.

Posted by: Adam | Jan 20, 2016 12:44:09 AM

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