Notes on hardball and watchdogs


Constitutional conventions (quoting Pozen 2016)

  1. norms of domestic governmental behavior
  2. that emerge from decentralized processes,
  3. are regularly followed
  4. out of a sense of obligation
  5. and are not directly enforceable in court but rather
  6. are enforced by political sanctions, if not also by ‘the internalized sanctions of conscience'.

Possible examples

  • basic procedures for "advice and consent" on nominations and treaties: Senate consideration and vote
  • Senatorial courtesy?
  • Presidential use of removal power (vs. officials following legal requirements, as with Jackson and Treasury Secretary Duane)
  • Norms of executive privilege


Some episodes of constitutional hardball other than judicial nominations

  • Democrats' New Deal Actions
    • Emergency Banking Act of 1933 and subsequent presidential order and congressional resolutions requiring surrender of all gold to govt in exchange for $20.67 per ounce, and invalidating all gold clauses in public and private contracts. Upheld in the Gold Clause Cases (1935)
    • Court packing plan
  • Repubs’ 1995 govt shutdown over budget negotiations
  • Clinton impeachment 1998
  • voter suppression moves from Florida 2000 to present
  • Court decision in Bush v. Gore (2000)
  • 2003 Colorado and Texas Repub mid-decade redistricting plans
  • exclusion of congressional Democrats from conference committee deliberations in 2000s
  • Senate Dems’ 2007 pro forma sessions to block Bush recess appointments
  • REDMAP redistricting initiative 2010-11
  • Repubs’ 2011 threat of national debt default over budget negotiations
  • Initial lawsuits against ACA
  • Senate Repubs' refusal to permit any appointments to CFPB or NLRB.
  • Obama recess appointments to the CFPB and NLRB when Senate Republicans were holding pro forma sessions
  • Obama unilateral creation of DACA (and other similar actions)

This page compiled by Randall Calvert © 2018. Email comments and questions to calvert at wustl