This short essay, written for Notre Dame Law Review's conference on congressional gridlock, argues that gridlock is an expected and integral component of the legislative process. The bicameralism and presentment requirements of Article I of the U.S. Constitution make legislation difficult to pass in order to protect the public from the whims of shifting congressional majorities. Nevertheless, gridlock that is based primarily on partisan considerations rather than policy differences can be unconstitutional, as defined by Supreme Court caselaw, if it stymies legislation that is in the public interest. The remedy for "unconstitutional" gridlock is not judicial action, however; the solution lies in devolving policymaking authority down to the states, allowing them to address the problem as it manifests within their borders. While not ideal, this temporary fix has some federalism benefits as it encourages experimentalism in law and policy as well as citizen participation in democratic processes at the state level. Moreover, as illustrated by recent controversies over immigration reform, when states take the initiative and craft policy to address national problems, their assertiveness can help break the gridlock by forcing Congress's hand.
In September of 2012, Republicans in the U.S. Senate blocked a jobs bill that would have provided one billion dollars over five years to help military veterans find work. (1) Veterans have one of the highest unemployment rates in the country, exceeding the national average of 7.8%. (2) Most states are facing their own budget deficits, making it unlikely that they could fund such an initiative. Despite the importance of this legislation, the media reported that Republicans in the Senate blocked the bill in order to deny the Democratic President, Barack Obama, any legislative accomplishments prior to the November 2012 election. (3)
This struggle over legislation that was once supported by members of both parties illustrates how the United States political system is a paradox of contrasts. It is governed by a Constitution designed to minimize faction and disperse ambition, (4) yet political scientists concede that "democracy is unthinkable save in terms of parties." (5) Despite our reliance on them, however, political parties in Congress have been responsible for blocking legislation that would further the interests of their constituents and that solves problems that have proven intractable when approached on a state by state basis, like the Veterans Jobs Corp Act of 2012. The notion that our democracy cannot function without parties has led us to overlook whether the efforts of parties to block or defeat legislation in Congress that would otherwise be in the interest of the people is unconstitutional. Perhaps a more precise question would be whether there are constitutional safeguards in place that can and should prevent such gridlock from occurring. (6)
This Essay argues that gridlock that is "excessively partisan," as defined by U.S. Supreme Court precedent, is unconstitutional. Thanks to political parties, gridlock has reached beyond Congress and infected the states, and it has the potential to put the entire system into a state of paralysis. Nevertheless, the solution lies, not with the courts, but in those aspects of the constitutional structure that devolve lawmaking down to the states. In particular, the bicameralism and presentment requirements of Article I that make federal legislation difficult to pass allow states to experiment with different policies and procedures to address some of these problems on a local scale. (7)
The Framers of the Constitution adopted the bicameralism and presentment requirements to slow the process of federal lawmaking, permitting a certain level of gridlock to persist within the federal system. (8) This structural quirk makes excessively partisan and unconstitutional gridlock difficult to address, but the fact that states can exercise significant authority during these times suggests that partisan gridlock, although unconstitutional, may result in a net positive for helping to recalibrate the balance of power in our federal system. …