Frictionless Government and Foreign Relations

57 Pages Posted: 15 Feb 2024

See all articles by Kristen Eichensehr

Kristen Eichensehr

University of Virginia School of Law

Ashley Deeks

University of Virginia School of Law

Date Written: February 15, 2024

Abstract

In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus should sometimes trigger concern, not celebration. We call these worrisome situations “frictionless government.” Frictionless government occurs when there is overwhelming bipartisan and bicameral consensus about a particular set of policies, as well as consensus between Congress and the President. Frictionless situations have inherent weaknesses, including the loss of interbranch checks and balances that the constitutional Framers envisioned, the loss of partisan checks that typically flow from a “separation of parties,” the reduction of inter- and intra-agency checks within the executive branch, and an increased risk of cognitive biases, such as groupthink, that hamper wise policy-making.

Frictionless situations tend to involve foreign relations, and commonly arise when the United States is attacked or otherwise finds itself in a conflict with external enemies. In such high-stakes moments, frictionless government has led to policy decisions taken with overwhelming consensus that go off the rails by sparking or escalating conflict, triggering actions by U.S. adversaries that undercut U.S. security goals, and unlawfully targeting domestic constituencies perceived to be linked to foreign adversaries. Such decisions eventually provoke substantial opposition and often repeal, but only after causing serious harms.

Celebration of unified, bipartisan action in frictionless government should not overwhelm appreciation of the risks that can result from a rush to act. This Article draws on historical examples, including the U.S. internment of Japanese-Americans during World War II, the conduct of the Vietnam War, and the U.S. response to the September 11 attacks, and then considers more recent actions including the U.S. response to Russia’s full-scale invasion of Ukraine and ongoing tensions with China. The Article ultimately argues that recognizing the perils of frictionless government early is the best way to avoid the excesses that have plagued past eras of frictionlessness, and it proposes ways to reintroduce productive friction back into policy-making processes, including via self-imposed actions by Congress and the Executive and via external actors, such as companies, foreign governments, and state and local governments.

Keywords: Separation of powers, checks and balances, foreign relations, national security, China, Russia, semiconductors, sanctions, civil rights, Constitution, administrative law

Suggested Citation

Eichensehr, Kristen and Deeks, Ashley, Frictionless Government and Foreign Relations (February 15, 2024). 110 Virginia Law Review (forthcoming 2024), Virginia Public Law and Legal Theory Research Paper No. 2024-17, Available at SSRN: https://ssrn.com/abstract=4727989

Kristen Eichensehr (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Ashley Deeks

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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