Constitutional Showdowns
Eric A. Posner
*
Adrian Vermeule
**
Constitutional law and politics is full of (what the headlines call) “showdowns”between and among branches of government.
1
When the Democratic Congress beganinvestigating the dismissal of United States Attorneys, congressional committees issuedsubpoenas and the White House asserted executive privilege to block advisers to thePresident from being forced to testify.
2
This is a familiar Washington pattern, whichusually ends in a bargained compromise between the legislative and executive branches,but occasionally ends up in a large-scale showdown. In the latter case, the result may belitigation that creates a judicial precedent, a political settlement that creates a nonjudicialprecedent, or both.Showdowns occur between the President and the courts and between Congressand the courts as well as between the President and Congress. Indeed, some showdownsinvolve all three branches simultaneously, or threaten to do so. When congressionalcommittees issue subpoenas and the executive asserts privilege, the courts mayeventually be asked to enforce the subpoenas. When Franklin Roosevelt attempted topack the Supreme Court, the attempt implicated congressional as well as judicialprerogatives, because a bill was necessary to expand the number of seats on the Court.
*
Kirkland & Ellis Professor of Law, The University of Chicago.
**
Professor of Law, Harvard Law School. Thanks to David Abrams, Jacob Gersen, Todd Henderson, DarylLevinson, Adam Samaha, Matthew Stephenson, Cass Sunstein, Jonathan Wiener, and workshopparticipants at the University of Chicago Law School for helpful comments, and to Jennifer Shkabatur andElisabeth Theodore for helpful research assistance.
1
See, e.g.
, Reynolds Holding,
The Executive Privilege Showdown
, T
IME
, Mar. 21, 2007,
available at
http://www.time.com/time/nation/article/0,8599,1601450,00.html; Edward Epstein,
Dems Seek Showdownon War; House, Senate Leaders to Push Legislation That Would Force Bush to Withdraw Troops
, S.F.
C
HRON
., Mar. 9, 2007, at A1; Maura Reynolds,
Senate Vote Nears on Guantanamo Detainee Rights;Showdown Is Set Today on a Measure That Would Bar Prisoners' Access to Federal Court
, L.A.
T
IMES
,Nov. 15, 2005, at A14.
2
See
Sheryl Gay Stolberg,
Bush Moves Toward Showdown with Congress on Executive Privilege
, N.Y.
T
IMES
, June 29, 2007, at A23.
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