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Toward a Practice of Bodycheck Constitutionalism

Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from mistreatment by the bully on the block. How about throwing some weight instead?

Senator Ron Johnson’s fists are stuffed in his pockets as he runs across the Capitol Plaza to the pillared edifice where parental figures in black robes dispense constitutional wisdom evidently inaccessible to the rest of us. The Wisconsin Republican is suing President Obama over the administrative agreement that protects members of Congress and their staff from the legal requirement—which, by the way, was the product of asinine posturing, but which is also, you know, law, which you can tell because it bears the President’s signature—that they purchase insurance on the Obamacare exchanges.

Johnson presents a creative argument for standing, asserting a personal injury in his capacity as manager of his Senate office. Fair enough. But the real argument here is for standing for members of Congress to sue when Presidents fail to faithfully execute the laws. That is a recipe for a litigious brew. It is also an abdication of the wide-ranging self-defensive tools members of Congress already possess but refuse to use. They need not appeal to the refs. The maneuver to which they need to resort—thanks to Richard Reinsch for the image—is the bodycheck.

Congress is the First Branch, and its arsenal is ample. Impeachment is the A-bomb of weapons, but there is plenty of effective ordnance short of it. Congress can refuse, as Justice Scalia noted in his Windsor dissent, to confirm nominees or approve funding for prized programs until presidents execute with the law.

This bodycheck constitutionalism is the intended form of self-defense—see Federalist 51, which makes no mention of judicial review in separation of powers cases—and it is, for several reasons, superior to the appeal to the refs. It keeps political disputes in the political realm of prudence, conversation and compromise rather than, as in the courts, absolute winners and losers. It would invigorate an enervated Congress for more frequent battle with overreaching executives.

Moreover, the political route leaves room for the rare instances, which ought not be precluded, in which Presidents refuse to execute laws they regard as unconstitutional—which, to be sure, is different from saying they ought to sign them one day and relegate them to non-enforcement the next, or, inexplicably, to do so simultaneously. This authority to decline to give force to unconstitutional laws imbeds further protection for liberty while engaging the president in constitutionalism, and it is also part of the system of departmental defense that maintains the separation of powers.

Bodycheck constitutionalism would, additionally, spare us the spate of suits almost certainly to be unleashed by any ruling giving members of Congress standing to sue over the enforcement of laws for which they vote. The alternative, moreover, is the further exaltation of the judiciary to the center of constitutional disputation in the United States. If one believes prudent wisdom flows from the water taps in the Supreme Court building, so be it. But if one holds judges to be as fallible as the rest of us—and if one is concerned, indeed, that such exaltation might go to the heads of mortals—one might want decisions made in a branch more easily susceptible of political correction.

The judiciary was never supposed to have the power to police separation-of-powers disputes, nor was any one department supposed to wield exclusive power over constitutional interpretation. To elevate one branch to that status is to render it superior to the others in one of the most elemental powers in the regime: declaring the rules of the game.

Bodycheck constitutionalism, by contrast, would unleash the clashing of clout that powers the constitutional regime. Indeed, so ample are the powers of bodycheck constitutionalism that the mystery is why Congress does not already engage in it. One reason, in fairness to Senator Johnson and his colleagues, is that constitutional issues are rarely politically salient. Americans worship at the holy altar of getting-things-done; the idea that they ought to get done in a certain way and by certain rules to which we have mutually agreed is a nuisance.

But that does not explain the collapse of the political psychology of the separation of powers, which presumes each branch defending its interests in the name of protecting its authority. In teaching Federalist 51, George W. Carey used to present this thought experiment to his American Political Thought classes: Can we conjure the image of a Presidential candidate whose only aspiration was the big house, the jet airplane and the other appurtenances of office consequently bartering all his future power to Congress in exchange for its electoral support? Of course not. Presidents are interested in exercising power.

Increasingly, though, this is precisely the bargain members of Congress strike. For growing numbers, the trappings of office seem more important than the power they exercise. According to the psychology of Federalist 51, they ought to be interested in protecting their own power regardless of the political punch of constitutional conversation. That they are not—that their first recourse is not to the bodycheck but to the refs—speaks well of neither them nor us.

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