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Volokh Conspiracy

Have Republicans Been Engaging in "Asymmetric Constitutional Hardball"?

Hardball, yes. Asymmetric, not so much.


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.