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Sunday, December 2, 2018

Constitutional Hardball

For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: it consists of political claims and practices-legislative and executive initiatives-that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.  It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents' victory would be a serious, perhaps permanent setback to the political positions they hold. 
Matt Glassman writes:
But the way hardball took over in regard to the Senate rules should give us some pause about its application at the Constitutional level. One of the key lessons of watching the Senate escalate the war over the filibuster is that the hardball tactics, once employed, are hard to stop and really hard to reverse. Taking those tactics out of the Senate and using them to fundamentally alter another branch of the government seems patently dangerous, in the existential sense, for the separation of powers system. Would the Supreme Court even exist in any independent sense if unified majorities simply recreated a Court they preferred?
On a more grand scale, court-packing is one of the key moves of autocrats throughout the world, most recently in Honduras, Hungary, Poland, and Turkey. Whatever short-term benefit one might gain from a court-packing scheme, the long-term impact would undoubtedly be to fundamentally weaken the Court, which would only serve to empower either a president or a party that sought to consolidate power more generally.
I have long experience thinking about constitutional hardball because I wrote my doctoral dissertation on the statehood process, which is perhaps the weakest board in the Constitutional flooring for anyone seeking to play hardball (see below). The main relevant lesson I learned from studying statehood is that the flexibility of our Constitutional design is usually a source of its enduring strength, but in the wrong moments can become a profound weakness.
 Todd Richmond at AP 
Wisconsin Republicans released sweeping lame-duck legislation Friday that would move the 2020 presidential primary, restrict early voting and weaken both Democratic Attorney General-elect Josh Kaul and Gov.-elect Tony Evers.

The GOP aims to hold a hearing on the bills Monday and take floor votes on Tuesday, giving current Gov. Scott Walker a chance to reshape state government again before he leaves office in January.

"Wisconsin law, written by the legislature and signed into law by a governor, should not be erased by the potential political maneuvering of the executive branch," Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald said in a joint statement. "The legislature is the most representative branch in government and we will not stop being a strong voice for our constituents."

The package is loaded with contentious proposals, chief among them a plan to shift the 2020 presidential primary from the first Tuesday in April to the second Tuesday in March.

Republicans have acknowledged the shift is a purely political tactic as conservative state Supreme Court Justice Daniel Kelly, a Walker appointee, will be on the April ballot and the GOP fears a Democratic wave could cost him his job. They've said decoupling Kelly's race from the primary could help him.
Rob Christensen at The News & Observer:
Shortly before [Democrat Roy] Cooper took office, the GOP leaders called a special legislative session which slashed the governor’s appointments from 1500 to 300; required legislative confirmation of the governor’s Cabinet; and took away the governor’s power to appoint trustees to the campuses of the University of North Carolina system.
It turns out, the GOP lawmakers were just getting warmed up.
Now the legislature wants voters in November to pass two constitutional amendments that would further weaken the governor. One amendment would put the election machinery in the hands of the legislature by giving lawmakers control over who serves on the election board. Another would give the legislature a major role in filling judicial vacancies, increasing their power over the courts, which have been routinely ruling the legislature’s power grabs as illegal.
The five living former governors – three Democrats and two Republicans – have called for the amendments’ defeat. The state’s six former N.C. Supreme Court justices – four Democrats and two Republicans – are also urging voters to reject them.