Gridlock, Legislative Supramecy and the Problem of Arbitrary Inaction

INTRODUCTION Gridlock has Congress in a headlock. Gripped by stalemate, America's chief lawmaking body can barely muster the ability to make law. Some argue that this is as it should be--or, at least, as the Framers planned. (1) In actuality, rather than furthering the Framers' vision, gridlock undermines many principles that, together, establish our governmental structure. Specifically, gridlock threatens the fundamental constitutional doctrines of separation of powers and legislative supremacy. Moreover, as many scholars have noted, (2) the Framers were concerned with preventing arbitrary governmental action. Gridlock not only makes the arbitrary exercise of governmental power more likely, but also implicates a new concern: the problem of arbitrary inaction. From tax cuts and the budget deficit, to immigration policy, to taking up key executive and judicial nominations, gridlock prevents Congress from acting on matters that undoubtedly rest within the proper realm of the federal government. My central thesis, then, is this: congressional gridlock threatens our constitutional structure--both as originally constructed in 1787 and as it currently stands. As discussed below, stalemate undermines the core constitutional principles of separation of powers and legislative supremacy, while heightening the risk of arbitrary government decisions--and indecision. Though these core ideas are linked, I will discuss each concept in turn, in hopes of better illustrating the constitutional problems posed by congressional gridlock. I. WHAT IS GRIDLOCK? This Symposium rests on a basic premise: congressional gridlock presents a problem serious enough to warrant a day and valuable ink spent discussing it. I agree. But what is "gridlock?" Put simply, gridlock--or stalemate, as I will use these terms interchangeably--is the inability of Congress to make substantive policy decisions. (3) In other words, the failure by Congress to enact legislation is not, in and of itself, gridlock. Nor are plummeting confirmation rates for judicial and executive branch nominees necessarily signs that the Senate is suffering from stalemate. If Congress chooses to maintain the status quo or if the Senate decides to reject a nominee, that amounts to a substantive decision. But that's not what is happening. With increasing frequency, Congress fails to make policy decisions. For that reason, we've seen far fewer laws enacted during recent Congresses than in the past; (4) the percentage of nominees for whom the Senate takes no action is increasing; (5) the number of cloture votes is at record highs; (6) and Congress is routinely turning to new legislative procedures and gimmicks to overcome gridlock, but those often serve only to allow Congress to avoid making substantive policy decisions. (7) Moreover, gridlock does not always result in preserving the status quo. It depends instead on the default rules in place. Take the recent example of the tax cuts enacted during President George W. Bush's first term. Those cuts were set to expire on December 31, 2012. (8) President Obama and congressional Democrats supported renewing the tax cuts for Americans earning less than $250,000. (9) Republicans preferred to extend the cuts across the board. (10) Despite the shared desire to maintain the tax cuts for most people, gridlock nearly kept Congress from enacting any extension. In that case, the absence of a substantive decision from Congress would have been a change in the status quo. There are many possible causes of gridlock: congressional rules (11)--and specifically, the Senate rules surrounding the filibuster (12)--gerrymandered congressional districts, (13) and a polarized electorate, (14) to name a few. The purpose of this piece, however, is not to debate the causes of, and possible fixes to, congressional stalemate. Instead, the focus is on the constitutional concerns raised by this period of acute gridlock, no matter its roots. …