Does the current impasse over the debt ceiling augur a constitutional collapse?

Founding Falter

MATTHEW YGLESIAS | July 7, 2011

James Madison

As the endless debt-ceiling debate drags on, the conventional take has become Washington Post writer Robert Samuelson’s: a pox on both the parties. More interestingly, over the weekend, David Brooks, albeit in the most polite way, joined with progressives to note that Republicans are acting insane and are largely responsible for the current gridlock in Washington.

Still, crazy and feckless politicians have always been around. It’s worth considering the possibility that the debt-ceiling fiasco reflects not an upsurge in insanity but long-simmering problems with the basic structure of American political institutions.

Americans love to heap praise on the Founders, especially in early July. But it is precisely because they were visionaries that they had little in the way of experience to guide them in thinking about how political institutions would evolve. In the intervening 200-plus years since the founders were around, scholars have learned a lot about constitutional systems.

In his classic 1990 article, “The Perils of Presidentialism,” [PDF], Princeton’s Juan Linz observed that “in a presidential system, the legislators, especially when they represent cohesive, disciplined parties that offer clear ideological and political alternatives, can also claim democratic legitimacy.” In other words, both an elected president and an elected House speaker can plausibly claim--and plausibly feel entitled to claim--that their agenda reflects the true desires of the people and deserves to carry the day.

Thus, both the president and the congress may believe they have a mandate from the public to enact their agenda. This is supposed to lead to a compromise, but the experience of a majority of presidential systems has been for the conflict of priorities to lead to a breakdown of the constitutional order. Linz observes that “the only presidential democracy with a long history of constitutional continuity is the United States.” Research from Jose Antonio Chebuib in 1999 notes that parliamentary regimes survive 73 years on average, to just 21 for presidential systems in which at some point, clashes between presidents and legislatures led either to a military coup or else presidential abrogation of congress.

If you’re an American, of course, that’s no minor exception. But Linz’s brief remarks on why American constitutionalism has survived in tact thus far should give us pause.

“To explain how American political institutions and practices have achieved this result would exceed the scope of this essay,” Linz wrote, “but it is worth noting that the uniquely diffuse character of American political parties--which, ironically, exasperates many American political scientists and leads them to call for responsible, ideologically disciplined parties--has something to do with it.”

That, of course, was over 20 years ago. In the intervening time, America’s political parties have become progressively more disciplined and ideologically coherent. What’s more, the Republican Party has evolved further in this direction than the Democratic Party, so it’s no coincidence that the GOP’s majority in a single chamber of Congress is provoking crisis in a way that the 110th Congress of 2007–2008 didn’t.

That doesn’t, of course, mean that the United States is heading for a coup d’état. In an insightful 2001 law review article (PDF), Yale law professor Bruce Ackerman argued that “it is possible, of course, to avoid the Linzian nightmare without redeeming the Madisonian hope.” He sketched a scenario of a crisis in governance, in which “the House will harass the executive, and the president will engage in unilateral action whenever he can get away with it.”

Presidents break legislative impasses by “solving” pressing problems with unilateral decrees that often go well beyond their formal constitutional authority; rather than protesting, representatives are relieved that they can evade political responsibility for making hard decisions; subsequent presidents use these precedents to expand their decree power further; the emerging practice may even be codified by later constitutional amendments. Increasingly, the house is reduced to a forum for demagogic posturing, while the president makes the tough decisions unilaterally without considering the interests and ideologies represented by the leading political parties in congress.

This is probably the best way to understand the Obama administration’s otherwise odd theory that the ongoing war in Libya doesn’t constitute “hostilities.” It’s also the best explanation of the amazing surge of interest in the previously obscure argument that Section 4 of the 14th Amendment makes the statutory debt ceiling unconstitutional. Ultimately, if House Republicans prefer default to reaching a compromise with the Obama administration, the country as a whole will find that it prefers a novel constitutional theory—one that lets the president take the reigns when Congress gets out of hand—to defaulting on the national debt.

This would be a good deal better than a coup. But it certainly looks like a step down the road toward lawlessness and breakdown. What’s more, though many liberals have criticized Obama’s assertions of executive authority in certain specific contexts, the preponderance of left-wing criticism of the president has been about his failure to act as a sufficiently zealous partisan and fully wield the powers of office. Representative Luis Gutierrez and other immigration-reform advocates urged Obama to unilaterally halt deportations of students who would be legalized by the DREAM Act if it passed. Environmentalists urge Obama to aggressively deploy the Environmental Protection Agency to halt carbon-dioxide emissions. Gay-rights advocates laud the decision to stop fighting for the Defense of Marriage Act in court. This all makes sense, just as it makes sense for people to be urging serious consideration of the constitutional objections to the debt ceiling. But add it all together, and you’ve got the somewhat frightening spectacle of a president consistently and forcefully doing end arounds to evade Congress. When the political system stops working, that becomes the only path available to activists. But at some point, the underlying crisis in governance itself deserves to become the center of attention.