Trump Embraces ‘Constitutional Hardball’

The administration’s census decision is the latest example of Republicans straining conventions for partisan ends.
Updated on

Founding weaknesses.

Photographer: William Thomas Cain/Getty Images

The census is important. But the bigger threat posed by the Commerce Department's decision to add a question about citizenship is not about the damage to Democrats or degrading an essential data source. The basic health of American democracy is at stake.

The Trump administration's move is best seen as another example of the Republican party playing "constitutional hardball," defined by law professors Joseph Fishkin and David Pozen as a "political maneuver" that "violates or strains constitutional conventions for partisan ends." Some examples include:

  • Republicans pushing through redistricting at the state level just after securing majorities. Traditionally, lines are drawn following the next census.
  • The impeachment of Bill Clinton over a relatively minor (and mainly personal) matter. Impeachment was previously understood as a last resort when the president was abusing his power.
  • The Republican Senate majority refusing to consider President Barack Obama's choice for a vacant Supreme Court seat in 2016. Perfect precedents are hard to find, but generally shutting down confirmations at the end of a presidential administration was a reserved for the final few months -- not when the president still had a year remaining in office. 1

Messing with the census is a great example. Without question, the census is part of the constitutional system, mandated in Article I and again in the 14th amendment, where it's clear that the "whole number of persons in each state" need to be counted, not just citizens. And yet the citizenship question is pretty clearly an attempt to undercount groups that traditionally vote for Democrats.

It may or may not turn out to be legal; several states will argue in court that it is not. But even if the Commerce Department has found a legal loophole, it's simply not consistent with how the Constitution has been interpreted by political leaders for over two centuries. In short, it "violates or strains constitutional conventions for partisan ends."

Fishkin and Pozen argue that both parties have occasionally played constitutional hardball. But Republicans have been most guilty of it since the mid-1990s.

Indeed, the evidence keeps getting stronger that Republicans are increasingly reliant on this dangerous practice. So far this year, we've seen Republicans messing with the census; threatening to impeach state judges in Pennsylvania because of a decision that hurt the party; and refusing to schedule special elections in Wisconsin and Michigan for partisan reasons.

The pattern is the same in each case. Republicans seek out areas in which the regular constitutional order depends on shared understandings rather than explicit law; then they attempt to exploit them for partisan gain.

And that's not counting the ways in which President Donald Trump personally runs roughshod over norms of democracy virtually every day.

The problem with constitutional hardball isn't just the substance of norm violations. 2  It's that democracy just can't work unless political actors agree to play by generally understood rules. Of course the written rules are the most important, but every polity depends on some shared understandings about what to do when the rules don't cover various situations.

In some cases, the courts can help -- Republicans in Wisconsin may well fail in trying to delay special elections. Taking everything to court, however, makes it extremely difficult to run the government.

When one party regularly resorts to constitutional hardball, the other is forced into an impossible choice: refuse to play that game, and suffer real disadvantages; retaliate and speed the demise of the political system, and especially democratic governance.

Democracy relies on relatively stable institutions and processes. Only insiders and specialists benefit from constantly changing rules. Most citizens -- even ones inclined to devote themselves to political participation -- don't have the time and resources to keep up.

It's also not exactly a healthy democratic practice to spend so much time trying to win elections and policy fights by bending the rules rather than campaigning, compromising, and coming up with new policy solutions to old problems.

Fishkin and Pozen are absolutely correct that this is a very tricky area to discuss with any clarity. A certain amount of pushing on the rules of the game is only natural. Almost everything claimed as an example of constitutional hardball can be argued as just normal use of the rules. (I'd argue against including the 1995-1996 and 2013 government shutdowns as examples of constitutional hardball, and would argue against including what appears to have been a relatively normal use of reconciliation in the passage of the Affordable Care Act in 2010. Others disagree.)

There's no way to set up a bright line standard for distinguishing exactly where a real violation of norms begins. Overall, however, the pattern is as clear as it is destructive: The Republican Party has been playing constitutional hardball for more than 20 years, protecting itself at the expense of our democracy.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
  1. See Fishkin and Posen for a more thorough discussion of these and many other examples. See also Mark Tushnet, who coined the term and originally developed the concept. 

  2. In fact, sometimes the specific norm being violated is totally arbitrary, or even harmful. 

To contact the author of this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor responsible for this story:
Mike Nizza at mnizza3@bloomberg.net

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