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A Theory of Constitutional Workarounds

By Jack M. Balkin

Sandy's latest post has inspired me to say a few words about the larger questions posed by his general critique of the Constitution's "hard-wired features." In reading the drafts of his excellent book, Our Undemocratic Constitution, it occurred to me that several of the examples of constitutional perversity he offered were not actually "hard-wired" at all, because there were various workarounds. Some problems rested on judicial glosses that could change like so many other doctrines have changed in the past. And some could be alleviated through ordinary Congressional legislation, the advise and consent process, the Twenty-Fifth Amendment, and so on.

In assessing whether a "hard-wired" feature of the Constitution is really "hard-wired" or not, we have to ask what it would take, short of Article V amendment, for various parties to agree to work around it. Then we have to consider what the veto points and costs of the work around would be. Finally, we have to ask the most important question: would the costs of the work around and the veto points that might block it be less arduous than the actual Article V amendment process or calling a new constitutional convention?

Those who have been schooled in American law schools in the past thirty years will recognize this line of reasoning as in the spirit of Ronald Coase. Given laws that create an entitlement, we ask how easy it is to bargain around the entitlement, and whether transaction costs prevent the bargain. In this case, the perverse rule that bequeaths power (or the ability to block others) is the "entitlement," and "bargaining" involves putting together a political coalition within the existing system to create a workaround. The equivalent of transaction costs are the costs of putting together the coalition to create the workaround, plus the costs of monitoring the bargain, preventing defection, and so on. We must also ask about the infelicities and difficulties created by the workaround which may not be exactly equivalent to what an amendment or a new constitution would produce.

The last step is to ask whether the workarounds, with all their costs, are less costly or less arduous than using Article V. If they are, this does not mean that the Constitution is fine just the way it is. Rather, it means that workarounds may be a better solution than Article V. At some point, workarounds will fail to address serious problems, and the cumulation of ad hoc workarounds might cause unexpected side effects that are very undesirable. Nevertheless, until that point is reached, it might be better to look for workarounds. Moreover, looking for workarounds might give us a better sense of what the strengths, weaknesses, and flexibilities of our constitutional system really are.

So take Sandy's latest example: In its final days, the outgoing Administration rushes through new administrative regulations that the next Administration opposes that will be difficult to overturn. Sandy attributes this problem to our choice of a Presidential system with a long transition between election and inaugural.

The key question to ask, it seems to me, is whether the problem is caused by the hard-wired features of the Constitution or the failure to adopt a plausible work around. (This is the analogy to the Coasean question of "what is a cost of what.") That is, is the harm caused by the hard wired feature or by the failure of political actors within the system to "take appropriate precautions" to avoid the alleged harm? If there is a plausible work around, how difficult would it be to create it? Who would be able to veto the changes, and why would they do so, and would the costs of overcoming these difficulties be less than or greater than amending the Constitution. If they are less this does not mean that the Constitution is without flaws, but rather that the system is not as broken as we think it is.

I can, off the top of my head, think of a number of possible workarounds. Since the power to create administrative rules comes from Congress's delegation of rulemaking authority, and the judicial power to review them is shaped by the Administrative Procedure Act, Congress could amend both the existing delegations and the APA in one omnibus bill. It could impose a moratorium on rulemaking between the election and the inauguration (or 30 days before the election and inauguration, if you like). It could require administrative agencies to issue special notices to Congress of any rules they may seek to create in the last 60 days before an election, and it could allow any party affected by a proposed regulation to go to court to enjoin a proposed rule making that threatened to fall within the prohibited period.

Others could tinker with these proposals to make them better, and I invite you to do so. In any case, the cumulative effect of these changes, and others like them, would force greater transparency and democratic accountability. They would place new rulemakings in the public eye and force the candidates for president to consider them (and possibly run against them) in the upcoming election. If an outgoing President did not want to hurt the chances of his party during the election, he would refrain from last minute rulemaking changes of the sort that Bush is now contemplating. Instead, he would be required to begin his administrative endgame (for that is what it is) earlier in the year before he leaves office.

These changes could be passed through simple legislation and would offend neither the idea of a "unitary executive" nor the delegation doctrine: they would merely lessen the scope of Congressional delegation and give the courts the power to enforce the terms of that delegation.

Of course, many people might object to the changes. But the difficulty of overcoming those objections is surely less than that of obtaining an Article V amendment that would limit the rulemaking process, or that would collapse the time between election and inauguration.

Does this mean that there is no problem with our current scheme of transitions? Surely not. Rather, it is that the problems are not as great as we might have thought, and that they are not really "hard-wired."

Full post as published by Balkinization on November 30, 2008 (boomark / email).