Have Republicans Been Engaging in "Asymmetric Constitutional Hardball"?

Hardball, yes. Asymmetric, not so much.

|The Volokh Conspiracy |

In this essay in the Columbia Law Review, Professors Joseph Fishin and David Pozen argue that while "constitutional hardball" has generally increased, for the most part Republicans have been the aggressors and the Democrats quiescent.

In my response, I demur. Here is the abstract:

This Response addresses Professors Joseph Fishkin and David Pozen's Asymmetric Constitutional Hardball. Fishkin and Pozen argue that Republicans have engaged in "asymmetric constitutional hardball" since 1993. This Response accepts the authors' contention that Republicans have increasingly engaged in constitutional hardball but casts doubt on the purported asymmetry.

Part I questions whether one of the authors' primary examples of Republican constitutional hardball—government shutdowns resulting from tensions over spending and other matters between Presidents Obama and Clinton on the one hand and congressional Republicans on the other—supports the authors' thesis, especially given that the shutdowns could at least as easily be blamed on the Presidents as on Congress.

Part II highlights important examples of Democratic constitu­tional hardball, especially hardball by the Obama Administration, that are omitted from the authors' analysis. Part II also briefly reviews reasons why Democrats have been increasingly inclined toward constitutional hardball.

Part III discusses in some detail a particularly important example of Obama Administration constitutional hardball—its efforts to reach and implement, over significant opposition in Congress, a nuclear agreement with Iran. These efforts circumvented Congress and involved lying to the public, engaging in legally aggressive lifting of sanctions on Iran, and even spying on the agreement's domestic opponents.

Among other contributions I think my response makes, I believe it goes into more detail about the "constitutional hardball" the Obama administration played regarding the Iran deal than any other single article. Anyone who still believes that the Obama administration was a paragon of truth and the rule of law should address how it negotiated, sold to the public, and implemented the deal.

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119 responses to “Have Republicans Been Engaging in "Asymmetric Constitutional Hardball"?

  1. The hypothesis assumes that “constitutional hardball” is aggressive. It could just as easily be defensive, and I think probably is, just as much gun uses (other than as a hobby or competition) are defensive in response to a threat.

    Most government expansion comes from Progressives, and seems in clear violation of the 9th and 10th amendments to a lot of people; not to mention the Commerce Clause, the Necessary and Proper Clause, and others which have been stretched beyond any reasonable 1788 interpretation. That will naturally result in a lot of constitutional challenges. Is that what they mean by “constitutional hardball”?

    1. “Most government expansion comes from Progressives”

      (citation needed).

      Conservatives ALSO like to jack up the size of the government. Here’s a hint of what to expect:

      progressives control all branches of government Goverment expands
      conservatives control all branches of government Government expands
      Split control of government Government expands.

      What the government is governing changes from one to the other, but not the upward trend.

      1. In case you were actually asking the question, take a look at Social Security, Medicare/aid, environmental spending, federal education, social support/welfare transfer payment growth (favored progressive programs) vs military growth (favored conservative programs).

        Wikipedia has a decent breakdown on the budget, if you really care.

        Now, if you want to make it interesting, see if you can show that tax cuts and their resulting GDP growth fail to offset the expenditures from progressive programs. That would be a neat comparison to read.

        1. “…take a look at Social Security, Medicare/aid, environmental spending, federal education, social support/welfare transfer payment growth…”

          These are programs that conservatives support, too. Social Security and Medicare/aid have not been touched by conservatives, even when they control all three branches. The National Environmental Policy Act passed the Senate unanimously and the House 372-15. Nixon proposed creation of the EPA. No Child Left Behind was coauthored by John Boehner and championed by the President. In the Senate, more Democrats voted against it than Republicans. Republicans supported it in the House 183-33. Since the Republican supported 1994 welfare reform, Republicans have held both houses of congress approximately half the time. Have they curbed welfare spending in that time, to your knowledge?

        2. Have to agree unfortunately. Too many (R) supported expansion of these programs. Medicare part D ring a bell. I would not have the issue with the expansion of the government if it was pushed down. It would be combatable through simple “marching with your feet” type of vote.

      2. FDR and LBJ are responsible for, what, 90% of the entitlement programs we have now? For Republicans we have Bush 43’s prescription plan, Nixon’s EPA. I’m sure there are a lot of programs I’ve left out, but that’s a pretty good start. It all comes down to what I said, that expanding the government in spite of the clear 9th and 10th amendments and various clear clauses is certain to generate constitutional challenges. I don’t recall very many Democratic constitutional challenges to Republican expansion.

        1. And Reagan’s SDI plan. And W’s education plan.

        2. “FDR and LBJ are responsible for…”

          None. They’re both dead. You’re more accountable for current entitlement spending than either of them.

    2. “Is that what they mean by “constitutional hardball”?”

      No. What other parts of the article do you want us to read for you?

  2. Another example of an analysis we hear from Team players – “the other Team is ruthless and efficient, we should be ruthless and efficient too but we’ve been too darn nice. Well, no more Mr. Nice Guy, grrr!”

    1. “But how can my Team, with its basic goodness and decency, hope to compete against the cynical ruthlessness of the other Team? My Team just will have to get tougher instead of being such pushovers!”

      1. And these arguments are quite effective, among members of one’s own team. And since an academic audience is generally limited to members of one particular team, academics generally don’t need to make arguments targeted at non-team members.

  3. “Have Republicans Been Engaging in “Asymmetric Constitutional Hardball?””

    I wish. But alas its not true.

    “In this essay in the Columbia Law Review, Professors Joseph Fishin and David Pozen”

    Political editorial pretending to be scholarship. They ought to be ashamed.

    1. Speaking of “ashamed”, an actual quote from these clowns:

      “install Judge Garland on the Court on a theory of implied or forfeited Senate consent, as some commentators urged as early as April 2016.”

      1. It seems like something like this would have been comfortably outside their definition of constitutional hardball.

        1. You’re loony, or mis-understood the suggestion.

          The suggestion is to seat Garland, who was nominated but never voted on by the Senate, on the Court.

          That’s some “Constitutional hardball”, all right. It’s a straight-up “sorry, Republicans, you control the Senate, but we’re choosing to ignore that”.

          1. “You’re loony, or mis-understood the suggestion.”

            Option 3: I actually read the article’s definition, which incorporates Tushnet’s definition, “po?litical claims and practices . . . that are without much question within the bounds of existing constitutional doctrine and practice but…”

            Diskant’s proposal was a batshit crazy suggestion that would have had no sane support, would have failed miserably, and have made Obama look ridiculous.

  4. It’s pretty dishonest to say that the government shutdowns were Republican Constitutional hardball since it was Clinton and then Obama that vetoed the spending bills which triggered the shutdowns. All constitutional of course, but the constitution clearly gives Congress the power of the purse, so if you are weighing which party was being more faithful to the spirit of the constitution it was the Republican Congress.

    1. The “reasonable opposing view” is that the Constitutional duty of the House is to pass appropriations bills to fund the legislation they passed, and failing to do so is their failure.

      1. You seem to be implying that failure to pass the second step is failure. Some people would say that needing two steps means the second step is optional. You seem to be saying we should combine the two steps.

        Whatever the case, quite a few business deals also fall through after the first step. Should that be cause for lawsuits?

      2. and of course funding can never be reduced because if it can be then they did that and your statement is a lie. They didn’t appropriate to the level the executive wished but that’s not your “reasonable opposing view” now is it.

    2. Why did the Government shut down?

      Because the GOP, not having the votes to repeal the ACA (and losing the last election where repealing it was their mandate) decided to try blackmailing Obama with the choice of defunding the ACA or shutting down the government.

      Holding the country hostage to exact policy concessions the voters rejected it exactly why the GOP is rightly considered the aggressor.

      1. The GOP voted to fund the government. The President vetoed the bill. The government shut down because the bill didn’t become law. This makes the veto the proximate cause of the shutdown, and the President in question was a Democrat.

        This is only blackmail if you assume Democrats are entitled to have their own spending priorities enacted into law.

        A contested assumption, to say the least.

        1. The issue is that the spending bill contained separate policy prescriptions that were properly the subject of an independent up-or-down vote.

          If the House passes a spending bill with a rider mandating that the President releases his tax returns from the last 2 decades, and Trump vetoes it, it won’t be because of the House’s power of the purse.

          1. “If the House passes a spending bill with a rider mandating that the President releases his tax returns from the last 2 decades, and Trump vetoes it, it won’t be because of the House’s power of the purse.”

            It will be because the President vetoed it, obviously. If a spending bill is passed out of Congress and vetoed, the subsequent shutdown is on the President. Regardless of party, or his motivation.

            1. This is idiotic.

              It implies that the President’s power to veto the spending bill, no matter the reason, is an illegitimate exercise of power – “Constitutional hardball.”

              Ridiculous.

              1. It implies that it’s hardball. Not that it’s necessarily illegitimate.

        2. This is a remarkable retelling.

    3. Could you be specific about the spending bill that President Obama vetoed, and that resulted in a shutdown?

  5. You know who else had asymmetric balls?

    1. Goering?
      Himmler?
      No wait, it must have been Hitler!

      1. Just to introduce Volokh readers to a pointless and silly game…

        Ask a question beginning “you know who else…” and to which a correct answer would be “Hitler.”

        Then offer answers other than “Hitler.”

        It’s actually funnier than I made it sound.

          1. But…the “you know who else” game has fixed and definite rules as set forth by the Godwin League. Your approach to the joke is pure anarchy.

            1. You know who else exploited an anarchic situation for his own purposes?

              1. Godwin? (William not Mike)

              2. Spartacus?

              3. Bill Clinton?
                George W Bush?

            2. My answer is the exception that proves your rule. Do not look a gift Hitler in the mouth.

        1. You know who else had asymmetric balls?

          Depends on the axis.

          1. Okay, that was a good one, assuming you meant the double meaning that Hitler was a leader of an axis power.

            1. I did.

              Thanks for the compliment, but not for doubts about my intent.

    2. Bowlers?

  6. There’s probably an interesting story to be written about this, but I’m pretty confident we haven’t seen it yet. A couple of observations :

    1. the hardness of any particular constitutional hardball has to be seen in the context of what precedents exist. Thus, for example, abolishing the filibuster on SCOTUS nominees would be a whole lot more aggressive if the other side had not recently abolished it on other nominees. Refusing to bring a SCOTUS nominee to a vote would be more aggressive if the other side had not done the same thing to Court of Appeal nominees. And so on.

    2. the extent of restraint also needs to be considered. What opportunies for hardball have one side or the other eschewed when given a good opportunity ? Thus, for example, the Rs talked about but did not go through with the nuclear option. The Ds went through with it. The Ds from 2009-11 and the Rs from 2017-2019 have had the opportunity to abolish the legislative filibuster. Neither side has taken it. The Rs have also had the opportunity to cut down the floor time the Ds can take to move nominees through to confirmation, despite unprecedented delay tactics by the Ds (an example of lack of restraint.)

    1. 3. it’s also worth noting that an R Congress has applied the same recess-prevention techniques to an R President as they applied to a D President. Another strike against the asymmetric thesis.

      I should not like this to be understood, in any sense, as a recommendation of the Rs. They are, as the saying goes, lower than vermin. But alas the Ds are lower yet.

    2. “Thus, for example, abolishing the filibuster on SCOTUS nominees would”

      Not be constitutional anything.

      1. I take this reply as an assertion that there’s nothing unconstitutional about abolishing the filibuster on SCOTUS nominees. If so, I think you’re missing the point. Bernstein summarises Fishin and Posen’s explanation of what they mean by “constutional hardball” thus :

        This can fairly be summarized as actions by government officials that deviate from widely accepted norms of official behavior and strain formal or informal constitutional convention for partisan, ideological, or political advantage

        ie “constitutional hardball” is not, or not necessarily, unconstitutional behavior, it’s behavior outside “accepted norms.”

        Obviously “accepted norms” are not forever fixed, since they may cease to be accepted, or cease to be norms. Or both. Thus for example it is, by now, hardly an “accepted norm” that a Senate should not change its rules mid-session by a simple majority, even though its rules say different.

        Since both parties have done it in the last five years. But as of 2013 it was normier than in was in 2017.

        1. “even though its rules say different.”

          From what I’ve read, that rule while followed in practice in relatively recent times has been effectively null and void for more than a century.

          There is a Supreme Court decision from the early 19th century, before the Civil War, 1830s IIRC that held that both houses of Congress have an absolute right to change their own rules by simple majority, even in the face of an internal rule that claims otherwise.

          1. Indeed. Both Houses have the right to do so.

            By custom they do not, and this is exactly the kind of informal convention to which the author was referring.

            1. ” and this is exactly the kind of informal convention to which the author was referring.”

              And the authors suggestion that such informal conventions are “constitutional” is stupid cubed.

              1. “Each House may determine the Rules of its Proceedings”
                –US Constitution, Article I, Section 5.

                Interpreting these words would seem to be a Constitutional issue.

      2. “Not be constitutional anything”

        Meh. It’s related to the separation of powers, which definitely is Constitutional anything.

        I think a preferable term to this “Constitutional hardball” is “monkey-wrenching”. When you try to sabotage the government because the other party is currently running things, that’s vandalism.

        1. I suppose you have to distinguish between “because the other party is currently running things”, and “because of the way the other party is currently running things”, because the latter could certainly get bad enough in theory to justify monkey wrenching.

          But with “constitutional hardball”, we’re not talking monkeywrenching, because as defined, monkey wrenching is done by the party out of power, and constitutional hardball by the party IN power.

        2. When you try to sabotage the government while your own party is controlling it, that’s vandalism too, but worse. And it’s SOP for Republicans. The fact they do that is Exhibit A against Bernstein’s argument.

          1. When you try to “sabotage” the government while your own party is controlling it, that’s just the out of power party describing a refusal to implement their policies anyway as “sabotage”.

            It’s no more “sabotage” for Republicans to refuse to govern as Democrats wish, than it is sabotage for Democrats to refuse to govern as Republicans wish.

            1. “When you try to “sabotage” the government while your own party is controlling it, that’s just the out of power party describing a refusal to implement their policies anyway as “sabotage”.”

              So, Senator McCain refusing to go along with his party’s priorities, and voting against ACA repeal, that’s just Democrats talking about the Republicans refusing to govern as Democrats want? Got it.

          2. Because nobody can have any priorities other than yours and government spending and authority can never be reigned in. got it.

    3. the hardness of any particular constitutional hardball has to be seen in the context of what precedents exist. Thus, for example, abolishing the filibuster on SCOTUS nominees would be a whole lot more aggressive if the other side had not recently abolished it on other nominees.

      Of course. Issuing executive orders is not, per se, “hardball,” unless they are of a scope far beyond orders by previous Presidents.

      1. Or, you know, beyond Presidential authority in the first place.

    4. Remember the extensive coverage when the Dems got rid of the filibuster for regular nominees?

      Remember the complete lack of coverage when the GOP did it?

      It wasn’t news because it wasn’t even a question. The GOP didn’t try to find a moderate SCOTUS candidate, they didn’t try to convince moderate democrats, they just went straight to nuking the filibuster and no one was slightly surprised.

      When it comes to extreme legislative tactics people hold the GOP to an extraordinarily low standard.

      Also notice Kavenaugh, they rushed the investigation of a serious crime and put a blatant perjurer on the Supreme Court. What use is a confirmation hearing if it can’t keep someone like that off the bench?

      1. There was nothing to cover when the GOP “did it”, because it was already accomplished by the Democrats, they just had to continue the Democratic party’s practice. Failure to revert to earlier rules is hardly ever reported.

        But I’ll assume by “did it”, you mean the extension of the rule to Supreme court nominees. It most certainly did get coverage. But, you should be aware that figures within the Democratic party, such as Reid, were publicly discussing plans to abolish the filibuster for the Supreme court after the election, on the assumption that they’d capture the White House and Senate.

        So it was very much a case of “How dare you do to me what I’d said I was going to do to you!”

        As for your last paragraph, continue chewing on the furniture, I assure you it’s persuasive.

      2. “What use is a confirmation hearing if it can’t keep someone like that off the bench?”

        The confirmation hearings have NEVER been anything other than useless political theater.

        The first ever confirmation hearings (for any nominee, not just judicial) didn’t happen until WWI. Prior to this, the appropriate committee would issue a recommendation without holding a hearing, but the committee did not control if/when the nominee got a full vote. There are multiple cases from the 19th century where nominations were ignored by the Senate.

        The Senate did not start regularly holding hearings on all nominees until after WWII.

        Confirmation hearings are not required.

        1. Note: if they had enough votes to do it, they could keep someone like that off the bench without holding a hearing. If they don’t have the votes to block the nominee going in, the hearing is exceedingly unlikely to change that.

  7. David Bernstein was opposed to the “Iran deal”. Did not see that coming.

    1. He and several other VC bloggers wrote pieces arguing against the “Iran Deal” at the time. If you didn’t see that coming, it’s because you weren’t paying attention.

      1. Weird comments, because I have not expressed an opinion on the merits of the Iran deal, and did not in the linked article, either.

  8. Proggies: Abolish the Electoral College! Institute Proportional Senate Representation!

    Repubs: We’ll nominate originalists and limpwrists who try to appear balanced to the bench.
    Proggies: We’ll nominate true activists whose first priority is to our agenda rather than preserving the Constitution to the bench, and we’ll call that philosophy, Living Constitutionalism!

    Proggies: Activate the Nuclear Option!

    Proggies: Mandatory Transgender bathrooms!
    Mandatory Gender Neutral Pronouns!
    Mandatory Funding of Sex changes for little children and convicted Felons!
    Ban Plastic Bags!
    Ban Light Bulbs!
    Ban Straws!
    MANDATORY
    MANDATORY
    MANDATORY
    BAN
    BAN
    BAN

    Repub: Uh I dunno…

    CNN/WAPO/BUZZFEED/GAWKER/MSNBC/YAHOO: WHY OH WHY ARE THE REPUBLICANS PLAYING HARDBALL??????!!!!

    1. Do they issue you a pair of partisan goggles when you buy the hat, or are they sold separately?

      1. I kind of liked his post.

  9. government shutdowns resulting from tensions over spending and other matters between Presidents Obama and Clinton on the one hand and congressional Republicans on the other?supports the authors’ thesis, especially given that the shutdowns could at least as easily be blamed on the Presidents as on Congress.

    Shutdowns should not necessarily be blamed on one or the other. If a serious major disagreement causes a shutdown then that should probably be seen as a flaw in the system that prevents a resolution. Let’s say Congress and the President are many billions of dollars apart on the defense budget, for example. That’s an honest policy dispute. That our political system offers no way to settle this without a shutdown is a problem, but you can’t blame either party for failing to simply yield.

    Where there is fault is when the issue is simply partisan cheerleading or ridiculous obstinacy – essentially posturing for the base. Then the side introducing the issue is at fault, IMO.

    And yes, I realize that there will be differences of opinion about cases.

    1. “That our political system offers no way to settle this without a shutdown is a problem”

      But it does… when elected officials are loyal to United States first, party second.

      1. Like that’s gonna happen very often. I read your answer as saying “There is definitely a problem.”

        1. I dunno, sometimes I worry about him. Terminal victimhood can go to some weird places.

          1. Terminal victimhood can go to some weird places.

            Liberal arts colleges, apparently… 😀

      2. Funny how you want loyalty to the government first, not the people of the United States first but then you can’t have a total state solution if you actually respect the individuals in the US.

  10. The authors definition of constitutional hardball is a Republican Congress obstructing a Democratic President. And the cherry-picked examples they cite support that definition. If you expand the definition to include actions by both parties (as Bernstein has done) the whole argument losing any foundation.

    “Professor Pozen, in common with many defenders of the Obama Administration, has suggested that Obama’s rhetoric and unilateral actions can best be seen as reactions to congressional Republicans ‘obstructionism and that his rhetoric often reflected the theme that he was forced into unilateralism by that obstructionism. I don’t read the rhetoric transcribed above as being so modest. But in any event, the “obstructionism” defense relies on the premise that Congress is obligated to cooperate with the President’s agenda. While this is a common perspective among laypersons, especially when a President they approve of is in office, the Constitution is designed to place primary lawmaking authority with Congress. A Republican Congress pursuing its own agenda at a Democratic President’s expense should be considered a normal exercise of congressional authority that requires presidential compromise, not a justification for the President to respond with hardball unilateralist tactics.”

  11. This post illustrates – is an example of – the problem it purports to address.

    The problem is a focus on internecine fighting and one-upmanship rather than any concept of the public and it’s good, of a sort that treats the public of essentially chattel property of the lordly class as they engage in their various jousts for power.

    Imagine a mobster indicted for performing hits on members a rival gang, who asks for dismissl of the indictment on grounds the rival gang had struck at them so often they had it coming to them, and an indictment that focuses on him is totally unfair.

    This is the moral climate, the atmosphere of public justice and stewardship, that we now find our leaders and even our law professors expressing. It is squabbling more worthy of a violent and greedy street gang, than the ostensibly respectable political leaders and educator class of what is supposed to be a great and honorable nation.

    1. “This post illustrates – is an example of – the problem it purports to address.”

      Well, it /is/ David Bernstein. But — just to look at it from the other side — in the present situation, one fails to address such claims at the peril of one’s actual positions.

  12. As usual, Bernstein’s partisanship leads him into exaggeration and outright error.

    Consider, from his paper,

    in 2014 every
    Democratic Senator who cast a vote did so in favor of a constitutional
    amendment that would subject any spending, by any corporation or
    individual, to “reasonable limits” if the goal of the spending was to
    “influence elections.”

    Whatever one thinks of the proposed amendment, and based on this description I don’t think much of it myself, it is completely unreasonable to describe supporting a Constitutional Amendment as “Constitutional hardball.”

    1. But for the fact that the authors I’m responding to DEFINE constitutional hardball as including, actions “reasonably viewed by the other side as attempting to shift settled understandings of the Constitution in an unusually aggressive or selfentrenching manner,” you would have a point. Constitutional amendments restricting freedom of speech certainly shift settled understanding in an unusually aggressive way.

      1. I would agree that attempting to amend the Constitution by formal amendment can’t really be considered constitutional hardball. In contrast with attempts to ‘amend’ it by judicial fiat, which very much belong in that category.

        It’s an effort to shift the settled understanding by shifting the actual words. That really is fundamentally more honest than living constitutionalism, and less “hardball” because ratifying amendments requires democratic support.

      2. Oh come on, David. That’s ridiculous. You can’t be serious.

        Proposing and supporting amendments is a perfectly reasonable, accepted, and orthodox way to try to ” shift settled understandings of the Constitution.”

        If it’s not, what is, or are you such a dedicated originalist that you even disapprove of amending the Constitution.

        1. You’re not grasping the concept of hardball. The fact that something is legal does not make it not hardball.

          1. I do grasp it. My point is that pushing for an amendment does not fall under the definition.

            As I note below, part of the definition is to turn a substantive position,

            into constitutional law in a more abrupt and self-serving fashion, without the extended period of public argumentation and mobilization and the incremental advances that typically enable such transformations.

            How supporting an amendment fits that, or violates any norms, or is anything other than a completely orthodox method of attempting Constitutional change, is beyond me.

    2. Pointing out that Bernstein is a partisan/ideological hack whose schtick entails calling others ideologically biased is like saying Beatlejuice 3 times; it summons him to the comments section where he switches to a defense of his substantive claims as opposed to him as the actual issue. Challenge your opponents impartiality, then when yours is pointed out, parry and return to a discussion of substance. If your opponent moves back to substance, switch back to questioning their impartiality and motives. How clever.

      Within the first couple pages of his article he pulls the “authors are liberals” cland throws in a footnote to argue that their self-deacribed “moderate” sources are actually liberals. I’m not sure if he writes anything that doesn’t start with a framing of partisan bias on the part of who he’s responding to. He has managed to make a career out of it though, so there’s that.

      But whatever you do, don’t mention the historian whose name is not to be apoken. It’s like feeding a mogwai after midnight.

      1. Give Bernstein props at least for engaging in the comments section. Several other VC commentators post and skedaddle, avoiding how they are savaged in the comments, and often by reasoned critiques.

        1. Indeed. It’s the mark of somebody who actually believes their own position defensible, that they’ll not shrink from defending it. When somebody won’t engage with their critics, you have to suspect they aren’t really confident of their own position.

          1. Ilya Somin’s posts on immigration are the perfect example of a post and flee commentator.

            However, I think the issue is that Somin really, really, believes what he believes, but also that it is to hurtful to him on a personal level to engage with someone who fundamentally disagrees, or even questions his premises.

            1. Maybe, but I suspect that he really, really believes what he believes on a moral/normative level, not so much a legal/constitutional level, and what he finds personally hurtful is having his self-image of a principled constitutionalist challenged.

              1. Ah ha, that’s a better assessment.

      2. TROLL alert. Here’s the structure of the argument. If you (a) assume arguendo that the authors’ definition of constitutional hardball is correct, for the purpose of critiquing how they utilize that definition, then (b) you must accept, not just arguendo, but as a factual matter, every other subjective judgment of the authors. F on logic, Loki.

        1. Is that a response to me, or to Loki?

          My point was that the vote you describe doesn’t fit the definition at all. Consider this further clarification from the Fishkin/Pozen article:

          to do something bolder: to take a substantive position that was up until that moment “off the wall”

          and turn it into constitutional law in a more abrupt and self-serving fashion, without the extended period of public argumentation and mobilization and the incremental advances that typically enable such transformations.

          So the amendment process is “abrupt,” in your view, and does not involve an “extended period of public argumentation and mobilization?”

  13. I feel like this same reasoning can be used all the way up to a military coup.

    ‘Well, you see, the other side said some pretty intemperate things about the tanks. Some even tried to damage them!’

    1. Oh, come on, he’s just pointing out that the definition of “constitutional hardball” they used had the conclusion built into it. Which was pretty obvious.

      When a Republican vetos a Democratic spending bill, the shutdown is blamed on the President’s party, when a Democrat vetos a Republican spending bill, the shutdown is blamed on the party in control of Congress. It isn’t a hard pattern to notice, and why should any Republican agree to accept it?

      1. As a post taken alone, I might agree, but the scope of his posts have a pretty clear pattern of not only being partisan, but ever arguing that despite peccadilloes on the right, the real partisans are those bastards on the other side.

        I mean, look at the comments. It’s full-on skub. And not in a fun, everybody-hates-Somin way.

  14. This is really a dumb argument over the pejorative “hardball.”

    When the other side does it, it’s “hardball.”

    Yeah…no…

    Each party should use all available, constitutional methods–our govt is designed to be confrontational.

    It’s rather snowflaky (and Fox-y) to describe political actions as “hardball.”

    1. I can’t entirely agree with that: The Constitution, not “partaking of the prolixity of a legal code”, can’t as a practical matter prohibit every action that would break the system.

      For instance, the Constitution makes each house of Congress the judge of its own members’ qualifications. So it would, technically, be constitutional for a Congressional majority of one party to simply refuse to seat every member of the opposing party, rather than, as intended, only those members whose election was somehow dubious.

      Would democracy survive that? Probably not.

      1. Brett is right. There are lots of constitutional actions that would kill our Republic; debate about which legal actions are legitimate is important.

        One of the more worrisome tendencies recently has been people arguing ‘this tactic is legal, therefore it’s okay.’ I, of course, think one side is much worse on this than the other, but the general point should be partisanly invariant.

        1. Worse, “There is a ‘not crazy’ argument that this action is legal, therefore it is both legal and okay.”

          1. Kinda the converse of ‘there oughta be a law.’

        2. The matrix is legal/OK, Legal/Not OK, Illegal/OK, Illegal/Not OK.

          I would assert that you have to be in a existentially dangerous situation for the Illegal/OK region to not be empty. And hopefully everybody agrees to keep out of the Illegal/Not OK corner.

          But distinguishing between Legal/OK and Legal/Not OK is very much a judgment call, unfortunately. And it’s what we really ought to be discussing.

          I would say that Legal/Not OK consists of actions aimed at entrenchment. Efforts to alter the composition of the electorate, rig election outcomes, silence political dissent, effectively abolish judicial review or use pretextual judicial review to deprive the elected branches of the power to make decisions that are honestly legal.

      2. ” refuse to seat every member of the opposing party”

        stop giving RAK ideas

    2. I’m not sure Fishkin and Pozen would thank you for “Fox-y” 🙂

  15. The Iran deal has come to mind in relation to the Huawei controversy. To recap: Canada arrested their CFO based on alleged violations of sanctions against Iran and will probably extradite to the U.S. Trump suggested he will use the CFO as a bargaining chip for trade deals.

    When Obama pushed through the nuclear deal that provided no real oversight, lifted sanctions and delivered $400 million that just so happened to coincide with the release of hostages, his Administration offered carefully structured, highly dubious arguments as to what it was all totally legitimate. They slathered on a coat of “peace” colored paint that looked suspiciously like “surrender” to many of us. Those shades are so similar, eggshell, ecru, who knows!

    Obama’s deal was orders of magnitude more terrible than that proposed by Trump. And if liberals were serious about the merit of Obama’s lifting of sanctions against Iran, Trump’s unserious treatment of the sanctions in this instance might merit praise. They should see it as a win-win. The fact that Trump is transparent about his casual treatment of sanctions violations is in some respect better than a non-credible but carefully structured legal argument. Our governance should not proceed on such flimsy bases.

    There is something to be said for the rule-of-law and consistency in application even where tricky international affairs are concerned. Trump’s gleeful flouting understandably makes the best of us cringe. Yet it is bluntly practical and honest.

    1. When Obama pushed through the nuclear deal that provided no real oversight, lifted sanctions and delivered $400 million that just so happened to coincide with the release of hostages, his Administration offered carefully structured, highly dubious arguments as to what it was all totally legitimate.

      The UN rather disagrees with you on this.

      1. Carefully structured the money shipments, too, in the financial regulation sense: It was structured as multiple payments to avoid reporting requirements.

        1. There were no payments, so there was no structuring Brett.

          It was all unfrozen assets.

      2. Appeal to authority noted. I rather disagree with the UN on a few things.

        It’s wrong at best and disingenuous at worst to say there were no payments because it was “unfrozen assets.” Before any of us were born, in 1979, Iran paid $400 million for military hardware that was never delivered. We returned cash we received as payment, however illegitimately. So we didn’t merely grant them access to accounts where they held money. And on top of that, we agreed to $1.3 billion in interest. And you say, “not a payment.”

        1. Your complaint is that they gave Iran it’s own money back, and then had the temerity to call it “not a payment”?

          ” So we didn’t merely grant them access to accounts where they held money.”

          Would you be OK if someone did this to you?
          “Oh, yeah, that’s totally YOUR money. No, you can’t have any of it.”

          1. James, no. My central complaint is the comparative treatment of Obama’s acts with Trump’s when it comes to the sanctions. And more importantly what we might learn from that.

            I do take Sarcastro to task for saying a payment to Iran is not a payment to Iran. As it relates to Obama, it’s not that the administration said it wasn’t a payment – as far as I recall they conceded it was a payment, just one properly owed to Iran. I don’t know why Sarcastro fights those facts.

            The issue I have with Obama’s handling relates to the motivation and timing (ie the real purpose) of the payment. After 35 years of holding that money, the payment was made (and substantial interest added) in exchange for hostages and to get a lousy deal wrapped up so Obama could get rid of a major political thorn, perhaps also based on a hopelessly naive or reckless view of the world. Hm, almost sounds like another president we know.

            You standing up for the successors to the Shah of Iran is ever so inglorious. And most absurd is your comparing an American citizen to the government of Iran. Your whole point, such as it is, is so underwhelming it doesn’t even qualify as specious.

            ‘Night.

            1. “After 35 years of holding that money, the payment was made (and substantial interest added) in exchange for hostages and to get a lousy deal wrapped up so Obama could get rid of a major political thorn”

              Sure, sure. And Reagan sold them weapons to get hostages released, and the man of principle who wouldn’t was Carter, and how’d that turn out for HIM?

              “You standing up for the successors to the Shah of Iran is ever so inglorious”

              Well, being that it exists only in your imagination, imagine it differently, or maybe even embrace reality.

            2. the payment was made (and substantial interest added)

              JFTR, that’s about 4.25% annual interest, not really a usurious rate. I don’t know how it was calculated, but it looks like no more that the Treasury would have paid on its bonds over that period.

              And yes, it was a “payment,” but refunds, which is what this was by your own description, for undelivered goods don’t seem so outrageous.

              Anyway, here is a more nuanced view, which suggests that it is possible this was as good a deal as the US was going to get.

        2. Ipse dixit about what the Iran deal was can be countered by appeal to authority, since it’s not a logical argument it’s an unsupported factual claim.

          1. Any discussion of the payment to Iran, such as that in Bernstein’s article, that fails to include the fact that it was money rightly owed, and that the interest paid was less than the Treasury would have paid had it borrowed $400 million in the open market for 35 years is simply dishonest.

            (In 1979 the rate on 30-year Treasuries fluctuated between about 8 and 10%. From 1979 to 2014 the one year rate was generally well above 4.25%, sometimes very much above.)

  16. I’d really like to read an article about the Democratic Party’s commitment to “asymmetric UNconstitutional hardball”. We might start with weaponizing the IRS to hamstring conservative groups that might oppose Obama policies, as Obama’s proxies Lois Lerner and others did at the IRS. Or weaponizing the National Security apparatus by improperly “unmasking” persons caught up in the NSA’s data collection program in direct violation of FISA regulations, by folks like Susan Rice and others. Or maybe examine the tendency of Democrats to try to criminalize political differences, starting with the cases brought against Tom Delay, Rick Perry, Scott Walker (which never made it to the indictment stage, only involving the improper use of John Doe warrants in a desperate search for a crime), and, of course, the latest witch hunt, the Mueller Investigation, a Special Counsel appointed without reference to ANY actual crime, and his latest attempt to criminalize hush money payments made out of personal funds (sleazy, yes, but NOT a crime). If the same standards had been used by Kenneth Starr, just how many of Bill Clinton’s “paramours” (or victims of sexual assault) do you think he might have located who were kept quiet by money (or threats) in the numerous efforts to control Clinton’s bimbo erruptions?

  17. The original essay was partisan nonsense. I remember reading it when it first came out. Not sure why you responded to something that was the equivalent of “old liberals yell at cloud.” Responding back just says “no you should yell at the ground too.”

  18. It’s impossible to engage in asymmetric warfare against the Left. From its very beginning, the Left has used every possible tactic imaginable. Its only rule of engagement is that there are no rules of engagement. Opponents who have any sort of self-restraints are always at a disadvantage when confronting a leftist.

    1. Do you get a free set of partisan goggles when you buy the hat, or are they sold separately?

    2. Pinochet, is that you?

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