Recent headlines have been full of references to “constitutional showdowns,” as the President asserts executive privilege against a Congressional investigation of the firing of U.S. Attorneys, and as Congress threatens to restrict the President’s discretion to deploy troops in Iraq. See (for example) here, here, and here.
The constitutional showdown is a category with real-world importance, but no theoretical backbone. What is a showdown, and are they bad, or good? Why and under what conditions?
Adrian Vermeule and I have recently posted a draft paper that analyzes constitutional showdowns, asks what rate and level of showdowns would be socially optimal, and asks whether socially optimal showdowns will be supplied by government institutions acting to promote their policy preferences and institutional interests. Our tentative conclusions:
(1) The basic tradeoff is that showdowns distract current institutions from pursuing their preferred policies, and produce a variety of transaction costs; but showdowns also clarify the lines of constitutional authority for future generations, thus saving transaction costs in the future.
(2) There is no general mechanism that guarantees that decentralized institutions competing for power, and to institute their preferred policies, will produce socially optimal showdowns.
(3) Against the widespread assumption that showdowns should be avoided where possible, a real risk is that there will too few showdowns, because current actors do not internalize the benefits of certainty and clarity that showdowns confer on future generations. Those who worry that current institutions show too little concern for the future, in areas such as climate change and fiscal policy, should also worry about the undersupply of showdowns, for similar reasons.
(4) Normatively, under the conditions sketched above, we would do well to celebrate the “active virtues”: a policy or attitude that emphasizes the benefits of answering, rather than avoiding, constitutional questions. The active virtues are the opposite of the “passive virtues” lauded by generations of process-oriented constitutional theorists. The benefit of the active virtues is just to clarify the distribution of constitutional powers; it does not entail judicial “activism” or robust judicial review. Clarification is a process benefit, bracketing the content of the constitutional rules; the clear arrangement might end up being, for example, that judges have only a tightly restricted power to invalidate statutes and policies.