Robert F. Jakubowicz: Playing Constitutional chicken


PITTSFIELD >> Democrats opposed to the current brand of Republicans should not be gloating over the congressional mess caused by a small group of the most conservative members of that party initially referred to as tea partiers and now known as the House Freedom Caucus. These lawmakers are determined to get their way even if it means causing constitutional crises by blocking the House of Representatives from acting in conjunction with the other two branches of government.

Lately, this group of lawmakers seem bent on playing a game of constitutional chicken with a congressional role of inaction to govern until their demands are met. For example, while there have been 17 government shut-downs from 1976 to 1996 because of the House's refusal to fund spending, they generally were short-lived, most lasting a day, without significant consequences. There has only been one such shutdown since, and that was in 2013. It resulted in a government shutdown for 16 days and was spurred on by the tea partiers.

This group has now seized on this political strategy of threatening a constitutional crises at the end of every government fiscal year by blocking funding measures. Additionally, they have now raised the political stakes in their game of constitutional chicken. They are determined to elect a leader who will bow to their demands. They forced the resignation of Speaker John Boehner and they are forcing his successor Rep. Paul Ryan (R-Wis.) to agree to their demands.

It appears that this time the threat of another shutdown has been averted by an agreement between the president and congressional leaders, but it remains to be seen whether Ryan can clean up the mess in the House and make that body function as a constitutional law-making branch of government. This eventual dysfunction of the operation of our federal government caused by the refusal of one branch of it to function was predictable in hindsight.

One of the basic staples extolled about the Constitution is the upside of the three branch system of government that prevents one of them from usurping the powers of the other two. But the overlooked downside, until now, was the ticking dysfunctional government time bomb that allows one branch to prevent the functioning of all three to govern.

The Founding Fathers miscalculated in failing to foresee that one of the branches would someday actually use a strategy of refusing to function as a political weapon until the policy demands of its members were met. Unfortunately, the Founders did not provide a constitutional remedy to override a refusal by one of our branches of federal government to function and cooperate with the other branches, except for voting the recalcitrant branch members out of office, or by amending the Constitution. But neither of these choices is practical.

No apparent solution

The current political division in this country prevents a successful vote for a constitutional amendment. Also the gerrymandering of congressional districts that have created safe election districts for the extreme conservative Republicans causing the mess in the House makes it practically impossible to vote them out of office.

Meanwhile, the candidates of both parties, who are seeking to be the presidential nominees, are campaigning as if there is a one-man or one woman rule in this nation. They are promising to do many things apparently singlehandedly from a huge wall along the Mexican border to leveling the economic inequality between the middle class and the extremely wealthy and much more. The next president, like all the presidents, has to have the cooperation of the congressional branch to rule. This is especially important regarding the House because of its role in initiating government funding measures.

But none of the wanabee presidential candidates are talking about how they are going to get such cooperation. Actually, they just seem to skip over this politically thorny but important issue. The only practical answer to this problem is for the House to get itself in order. It remains to be seen whether Ryan or successor Speakers can do this.

The big constitutional question is whether we have come to a point with the three branch system of government where it will be necessary for a political party to not only elect a president but also a congressional majority to get anything done. The big miscalculation by the Founding Fathers was the emergence and controlling influence of political parties in the nation's governance. Jefferson said if he had to join a political party to go to heaven, he would not do it. Washington said party members would vote for a "broomstick" if one was nominated by their party.

John Adams feared that political parties would cause a big political division in this nation. Political parties are not mentioned in the Constitution because the Founders feared their bad influence on the governance of this nation. Their fears seem to have been realized with today's big political division based on party lines and the congressional mess in based on party lines.

It now appears that this nation has arrived at a point with the three branch system of government whereby successful cooperation between a president and Congress will require that the former and a majority of the latter be members of the same political party.

Robert Frank Jakubowicz is a regular contributor to The Eagle.


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