Friday, January 6, 2012

Should We Call It "Nullification"?

I do think that the GOP tactic of attempting to keep agencies from functioning by filibustering any possible nominee is a big deal. I'm not sure whether it's an entirely new strategy -- wasn't there a similar situation with the FEC a few years back? -- but I do think it's a highly significant case of Constitutional hardball.

But is "nullification" the right word for it? Neither Tom Mann nor James Fallows is particularly quick to use overheated rhetoric, and they're the two that have pushed the term, and I'm reluctant to disagree with either of them. Seth Masket, however, argues that there's a key difference: Constitutional hardball (as Matt Glassman points out) is by definition staying within the literal rules of the game, while 19th century nullification was most certainly not doing so. So I'm sort of with Joshua Huder in not particularly feeling very good about calling the current GOP tactic by the same name.

I suspect this ship has sailed, but I wish I had an alternative name to substitute for "nullification" that would similarly denote the seriousness of this particular form of Constitutional hardball without implying that it actually crosses over into breaking the literal rules of the Constitutional system.

22 comments:

  1. Isn't historical nullification really tied to notions of federalism, federal supremacy, and state sovereignty? Although both involve undoing the effect of laws you don't like, this is more a case of fratricide within the federal level.

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  2. Fratricide, perhaps, but motivated by an ideology that holds virtually all positive actions of the federal government to be illegal and immoral. It's the same reading of "federalism" that reads the Constitution itself under the philosophy of its original opponents, as though the concessions to Anti-Federalist beliefs were the essence of the Constitution. One key contemporary expression of this approach is, of course, Ron Paul libertarianism. Another is Tea Partyism, especially in the form of "Constitutional Conservatism."

    So we see Paul - though he was doing this a lot more four years ago than this time around - waving his copy of THE CONSTITUTION as though it was Locke's Second Treatise on Government, as though the Anti-Federalists had carried the day, and as though the Founders unanimously shared his notions. The same patterns, though typically in less pronounced forms, dominate the thinking of most Constitutional Conservatives - and underlie their belief that Social Security was a mistake, Obamacare is treason, and so on. Paul and the other CCs talk as though they would have been on the other side when the Supreme Court, in its first decisions, determined that the Constitution was not absolute on the inviolability of private property. This kind of radicalism was a fringe belief for a a long time, but was re-introduced back into the mainstream by Reagan and by now is nearly a consensual orientation for True Conservative Republicans. It's an insane and impossible position vis-a-vis government, but that doesn't prevent people from believing it: The lunacy of Ron Paul is that he's just more consistent about it, for instance in regard to national defense and foreign affairs.

    OK, end of rant - the point is that "nullification" seems like the proper reference because the underlying theory and intent do in fact and in practice tie 19th Century Nullification and 21st Century "Constitutional Conservatism." And that's why Glassman may be right about the differences within a functional self-correcting system between Hardball and Nullification, but that his being right depends on continuing to (re-)separate Republicans from their central ideological commitments.

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  3. meh. we shouldn't need a particular term for this. before the reemergence of the partisan press, the media would just call bull$*t on the GOP obstruction tactics and then we'd all know what was going on. That feedback loop is gone now in American politics, so its irrelevant what "we" in these corners of the interblogs decide to call it. a more apt technical description of what is going on here by the GOP would be "egregious/unprecedented violation of information norms designed to politically weaken a president of the opposite party, as well as reinforce the ideological convictions of the obstructing party that government is weak and ineffective"

    but half the country lives in a different reality so, again, we're all just talking to ourselves here so I think we just call it bull$*t and move on.

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  4. Constitutional hardball (as Matt Glassman points out) is by definition staying within the literal rules of the game, while 19th century nullification was most certainly not doing so.

    This isn't correct; it reads our current understandings back into the historical record. The 19th-century advocates of nullification, like Hayne in the classic Hayne-Webster debate, argued that they were upholding the literal rules of the game, i.e. the Constitution -- because:

    "in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them."

    On the theory that the states had entered into a compact, and that there was no higher authority than themselves to declare on what terms they had entered it, one of the "rules" was that they not only could, but must, nullify unconstitutional federal laws. This theory suffered a blow in the Civil War, but was never killed off for good and has recently resurfaced in GOP rhetoric.

    In short: "nullification" is an apt term, capturing the fact that there is more continuity than discontinuity between the original Nullifiers' position and what's happening now (not to mention the fact that in both cases it's mostly Southerners causing the trouble).

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  5. Jeff,

    I don't agree. Yes, the original nullifiers claimed that they were acting Constitutionally, but (1) that was certainly contested, and (2) they were absolutely wrong -- it was settled in a practical way by the Civil War, but at least in my view they were just dead wrong from the start about what the Constitution was.

    The present-day "nullifiers", as far as I can tell, are acting clearly within the Constitution, and most people on both sides think so (although there are some who believe that extra-Constitutional supermajorities requirements in the Senate are unconstitutional, but even there the complaint would only somewhat overlap with what the nullifiers are up to).

    In fact, the basic idea here -- use the confirmation process to influence the bureaucracy -- is totally fine. It's just the particular weapon turns out to be a problem.

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  6. "Nullification" might be better applied to the states refusing to implement the ACA (although they are going to the Supreme Court, which is legitimate).

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  7. .....they were just dead wrong from the start about what the Constitution was.

    Unfortunately, JB, that was not James Madison's view. In the quote I gave above, Hayne was citing the earlier Virginia Resolutions, which Madison approved and defended at length:

    http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html

    So if our Constitutional system is "Madisonian," and if this interpretation is obviously dead wrong, then it follows that Madison was dead wrong about Madisonianism. Which is not impossible, I guess, but it seems a little strained.

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  8. Eh. I'm fully okay with things Madison said at various points being inconsistent wtih "Madisonianism." After all, he was a working politician. I mean, he was against parties also, but went on to be a party politician more or less, and parties are IMO essential to Madisonian democracy.

    Even for non-politicians, I have no real problem with saying there's a best version of some thinker or another that's worth listening to. Not that we should ignore the rest -- it often tells us a lot about the author at his or her best. And, at any rate, I don't think there's really much at stake in whether Madison was a Madisonian.

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  9. The whole point of the term "nullification" is that it helpfully emphasizes and accurately describes the motives behind the tactic. If I understand you correctly, you'd like there to be greater acknowledgement in the term/phase that the tactic involves some practices being performed "pro forma." So why not "pro forma nullification" as the term of art; granted, it's artless, but that in itself captures something of the complicated procedural quality to this whole affair, no?

    I have a related question, however, who among Democratic legislators insisted, during the course of passing Dodd-Frank, that that the CFPB could only start functioning fully after a head had been confirmed? That seems like an unnecessary condition to have added.

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  10. Let me correct some typos:

    I have a related question, however: Who among Democratic legislators insisted, during the course of passing Dodd-Frank, that the CFPB could only start functioning fully after a head had been confirmed? That seems like an unnecessary condition to have added.

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  11. I don't think there's really much at stake in whether Madison was a Madisonian.

    I agree in general, but on the specific question of whether the Nullifiers' belief that they were upholding the "rules" was just obviously and unarguably wrong, it's relevant that they could back up their constitutional theory by pointing to an authority like Madison. Interpreting laws (and compacts, treaties, constitutional provisions, etc.) based on what their flesh-and-blood authors said about them isn't just reasonable, it's standard in legal argument.

    Having said that, I too reject the Nullifiers' position on state power. But that's not because I think it was clearly ruled out at the Founding (would that it had been), it's because I think that generations of further historical experience have made clear that it just doesn't work and/or has seriously bad consequences.

    And likewise, I don't think we can distinguish nullification from some lesser "hardball" based on which one stays within or violates the "literal rules of the game." Nullification means nullifying, i.e. seeing to it that a given law (the tariff, Dodd-Frank, whatever) is a nullity, that it can't achieve what it was designed to. The important thing politically is to assign terms in ways that clarify what's actually going on.

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  12. "Virtual nullification", then. I'm not sure I recall a case as clear as the Cordray appointment where the minority party openly stated that they had no particular problems with the man, they just were refusing to allow anyone to start running the new agency.

    At least I found it a useful term to explain the actions of the Republican Senate caucus. The extraordinary actions of the GOP deserve an extraordinary call-out of their actions.

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  13. As I've written on my blog, I'm very uncomfortable with the term nullification. It's definitely a bad historical analogy to make what is going on now analogous to Calhounism/1832. But it's also appropriating a politically loaded term. Doing that has its place, but this doesn't strike me as one of them, especially if liberals plan to build a political strategy around this accusation.

    I also don't think it matches very well with the one well-known contemporary political use of the term: jury nullification. Both Calhounism and jury nullification imply something of a final disposition, an end point in which a law or proceeding is done, and the relevant political argument is over. That's not the case with the strategies being used now, which intend to render agencies de facto ineffective, not actually outright kill them. It could just as easily be accomplished by shorting their funding, and no one would call that "nullification."

    I think the conceptual terminology everyone is searching for is "paralysis." And the correct historical analogy is the opening of the 36th Congress in December 1859. There was a protracted contest for the Speakership in the House, because the balance of power between the Republicans and the Southern Democrats was held by a combination of anti-Lecompton northern Dems and American Party Know-Nothings. A Speaker was not elected for several months. But the key was that many of the southerners did not even seem interested in organizing the House --- they were just as happy with the federal government completely paralyzed. And so they used dilatory tactics to slow down the votes, and delayed as much as possible. Many fewer votes were taken than in the previous speakership contest in the 31st Congress in 1849.

    Now, I'm not saying the current GOP ideology has anything to do with the southern separatism in the 1850's, either in ideology or intensity. But the tactic of paralysis strikes me as very similar. It's not as broad --- contemporary Republicans aren't interested in completely paralyzing the federal government the way the southerners were on the eve of the war, but it's a very similar strategy toward a analogous end. And both instances are perfectly legal and legitimate (but problematic) hardball.

    matt

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  14. So it's an innovative, legitimate, non-democratic form of "paralysis" for rendering legitimate, democratically-created agencies de facto ineffective.

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  15. contemporary Republicans aren't interested in completely paralyzing the federal government the way the southerners were on the eve of the war

    Some are - or very much like to speak that way, even if they don't contemplate another civil war.

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  16. As I said above, I think "nullification" is accurate here, but I'm also wondering how much this matters. Yeah, it might be a bit overwrought to call up the specter of the Civil War and the events leading up to it, IF enough people recognized a given term as doing that. But the nullification controversy lies in the history books, not in living memory. The people on the right who have been trying to smear Obama with the term "socialism" have a similar problem -- that term is no longer as resonant as they would like with the public at large, although it's probably somewhat more so than "nullification."

    A term that is still seriously resonant, like "Holocaust," obviously has to be used carefully; you look like an insensitive idiot if you toss it around in a current context with much lower stakes. You don't have that downside with "nullification" but also less upside. If Democrats are smart (always a big "if"), they'll avoid reducing the matter at hand to a process-related slogan, and instead will stick to the substantive (and true) point that Republicans are on the side of big banks, high interest rates and more home foreclosures, not ordinary people.

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  17. OK, I'm really glad I threw the question out there, not because it was all that interesting or important, but because it generated such interesting stuff.

    Meanwhile -- yes, I agree with Jeff that the best strategy for the Dems is to talk about substance, not process.

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  18. Wait a minute. Process is the issue here. Whether you see it as the Republicans seeking to undo laws they don't like or as Democrats seeking to evade the rights of the Senate, the process goes to significant Constitutional matters, and it's about to take on a life of its own as the GOP and the Chamber of Commerce head to the courts. It's not unlikely that the Republicans will try to use Obama's "unconstitutional power grab"/"coup d'etat" to distract attention from more substantive issues (especially if the economy picks up), and it's probably too late to prevent it.

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  19. One point in favor of "paralysis" is that it refers to cases in which one branch is hindering itself through intra-factional political dispute that edges close to being illegitimate. And isn't that at base what's going on here? If the Senate majority under Reid had its say, there'd be no problem with following normal recess appointment procedure norms. But instead, the House under Boehner has found a new way to effectively force the Senate out of recess. This isn't even really an executive vs. legislative dispute; it emerges out of an intra-legislative Senate vs. House power play.

    A problem with 'nullification" is that its salient historical resonance is with an issue of federalism. So I'm re-iterating Scott Monje's concern, I guess.

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  20. If the issue is only "what term would help turn public opinion against the evildoers," then "Nullification" is no help at all, but accusing the Rs of playing "hardball" is worse, because in popular parlance it's a compliment. It's what the big boys play. It suggests that effeminate lefties want to play softball, but that the righties are tough, serious, committed, brave, macho. The proper political response is to be willing to take your lumps while making sure they come off worse than you. Which is kind of what the Prez is doing, and he doesn't need a term for it, he needs a strategy for doing damage and guarding his back.

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  21. Shouldn't the failure of Dodd/Frank to deal with the most obvious circumstance, exhibited in the MF Global affair call into question, the purpose
    of the enterprise

    http://www.ballardspahr.com/AlertsPublications/LegalAlerts/2011-01-26_CFS_CFPBSupervisionofNonBanks

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  22. Jonathan: How about "four corners politics"?

    The idea being they're willing to take actions only on their terms. The equivalent of only shooting layups or foul shots.

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