Separation of Parties?
posted by Gerard Magliocca
Three years ago Rick Pildes and Daryl Levinson wrote a terrific piece in the Harvard Law Review called “Separation of Parties, Not Powers.” They argued there that separation of powers did not work the way that Madison envisioned because politicians identify more with their party than with their branch. So when the White House and Congress are controlled by different parties, they check each other vigorously. When we have unified government, though, Congress more or less rolls over, plays dead, and lets the Executive Branch have its way. This is a powerful insight that led Pildes and Levinson to make some thoughtful suggestions about the need to strengthen the rights of the minority party in Congress and about how the courts should review separation-of-powers claims differently depending on whether the challenged statute was produced under divided or unified government. But there is a problem with their theory that the health care debate is exposing.Democrats in Congress are not marching in lockstep to support the President’s health care initiative as the “Separation of Powers” thesis would suggest. Instead, they are functioning more like a traditional Congress that resists the White House. Why is that? One possible answer is that health care is such an important issue that the normal rules don’t apply. Another thought, though, is that Pildes and Levinson relied too much on a distorted sample — the deferential behavior of the GOP Congress towards the Bush Administration from 2002-2006.
My research suggests that in the initial stages of a generational turnover (from one constitutional regime to another) the cohesion of the President’s party is quite weak. You can see this in Lincoln’s “Team of Rivals,” Jackson’s fight with Calhoun, and FDR’s difficulties with Huey Long. In part, this is because a new movement like Obama’s takes time to reach a consensus on first principles. Furthermore, a party in these moments of transition always contains a “g0-slow” or holdover faction. Reagan had to deal with “Rockefeller Republicans,” FDR was impeded by Dixiecrats, and now Obama has “Blue Dog Democrats.” By contrast, in the later stages of a party system a greater consensus is reached and party discipline is enhanced by years of campaigning and the hardening of loyalties. Thus, the power of separation of parties and powers depends on when you look in political time.
September 19, 2009 at 10:20 am
Posted in: Constitutional Law
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Responses (4)
Andrew Harrison - September 19, 2009 at 1:53 pm
An interesting thesis. I would like to see what role the time variable played in the eventuality of cohesion in examples of past unified government.
Maryland Conservatarian - September 21, 2009 at 3:09 am
It’s tough to say that Congressional Democrats have fought the President on this issue when he refuses to articulate what exactly he will or will not sign.
“One possible answer is that health care is such an important issue that the normal rules don’t apply.”
Yeah – they’re such a thoughtful bunch on the Hill. Anything that comes out of this Congress will be owned completely by the Democrats..and the first to feel the peoples’ “gratitude” for such paternalism will be Congress. My suspicion is that the President will sign just about anything sent to him so why should certain Congressional Democrats take on any unnecessary political baggage.
“Another thought, though, is that Pildes and Levinson relied too much on a distorted sample — the deferential behavior of the GOP Congress towards the Bush Administration from 2002-2006.”
Was any part of that during “the later stages of a party system” when “a greater consensus is reached and party discipline is enhanced by years of campaigning and the hardening of loyalties”?
Gerard Magliocca - September 21, 2009 at 5:06 am
I probably should have said “limited” instead of “distorted.”
Gerard
DCLawyer - September 21, 2009 at 2:29 pm
Interesting thesis – very good points raised for thought and discussion in both the Pildes / Levinson piece and the followup.
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