The Anti-Partisan Principle
Gerard N. Magliocca
Indiana University Robert H. McKinney School of Law
July 21, 2014
Political parties are essential in a constitutional democracy, but there are unwritten constraints on what the two parties can do. These limits rest on a bundle of traditions that cannot be enforced in court, which means that they are hard to define and may look fragile to a lawyer. Nonetheless, arguments about partisan actions that are “legal but unconstitutional” have been integral to our discourse ever since John Adams named his infamous “Midnight Judges” in 1801. Indeed, some of America’s most important constitutional precedents were set by the majority party in defense of the ideal that one party may not use its power to gain an unfair advantage over the other.
This Article explores the contours of the anti-partisan principle in constitutional law. Much of the analysis centers on conventions in the British sense of that term, which are norms that influence political and institutional action. The chief precedents come from Congress, and what they show is that there is now a firm understanding that a party may not: (1) change the organization of the courts in its favor; (2) use a supermajority to purge judges or members of Congress who belong to the other party; or (3) transfer control of the presidency or vice-presidency from the other party without winning a presidential election. Some of these taboos were not observed in the nineteenth century, but since then the majority party has refrained from using its power to change radically the partisan makeup of the three branches. Anti-partisan conventions also play a significant role in the Supreme Court. These customs are also the product of slow and uneven growth, but now the Justices refrain from any involvement with party politics and choose not to retire in a presidential election year.
Many of the legal and political battles waged since President Obama took office are about the application of anti-partisan norms. When many presidential nominees were filibustered by Republicans, Senate Democrats contended that the broad use of that convention by the minority party was deeply wrong and replied by crafting a new custom to bar similar filibusters. When House Republicans clashed with a Democratic President over raising the debt ceiling in 2011 and in 2013, their procedural disagreement was partly about whether the use of that lawful tactic was unacceptable because it was being done for partisan purposes. And when the Supreme Court weighed the fate of the Affordable Care Act, Chief Justice Roberts may have been influenced by the thought that a decision by five Justices appointed by one party to invalidate the signature law of the other party during a presidential election year would be widely seen as illegitimate. None of these questions raise traditional legal issues. They are instead problems of constitutional etiquette.
Number of Pages in PDF File: 79working papers series
Date posted: July 23, 2014 ; Last revised: August 24, 2014
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