Political maneuverings in recent years, in Washington and
elsewhere, seem an outgrowth of the Nintendo Entertainment System era.
In current events, President Obama is preparing a nomination
to replace Antonin Scalia on the Supreme Court.
However, within hours of Scalia’s death earlier this month, Senate Majority Leader Mitch McConnell announced, “This vacancy should not be filled
until we have a new president”. This launched
a number of discussions, such as: the timing of such a statement, what the
statement said about McConnell and the Republicans’ respect (or lack thereof)
for President Obama, and how the President should respond. It also raised the question of whether or not
what McConnell stated was constitutionally valid.
Republicans have been making the following case: Yes, in Article II, Section 2 of the United
States Constitution, we read that the President has the power to make
appointments to the Supreme Court “by and with the Advice and Consent of the
Senate”. But, nothing in that Section or
anywhere else says that the Senate has to give Consent – that the Senate has to
agree to whoever the President nominates – nor, that there is any timeline for
agreeing, or not agreeing, with the President’s choice. Even though the longest time that has ever passed from nomination to vote for a Supreme Court justice has been 125 days,
there is nothing in the Constitution – the source code of our government – that
requires such a vote. That’s what the
Republicans have been saying, and the argument reminds me of how Madden NFL has
affected play in the National Football League.
As reported by Wired, in a Denver-Cincinnati football game
in 2009, the Broncos were losing 7-6 with 28 second left in the game. The ball was on Denver’s 13-yard line. A dramatic play started with Broncos
quarterback Kyle Orton throwing to his wide receiver Brandon Stokley, who then
headed downfield to score the go-ahead, and probably winning, touchdown. Then this happened:
Just before he reached the end
zone, with 17 seconds remaining, Stokley cut right at 90 degrees and ran across
the field. Six seconds drained off the clock before, at last, he meandered
across the goal line to score the winning touchdown. For certain football fans,
the excitement of a last-minute comeback now commingled with the shock of the
familiar: It’s hard to think of a better example of a professional athlete
doing something so obviously inspired by the tactics of videogame football.
Stokley’s maneuver was to delay crossing the goal line in
order to take time off the clock at the end of the game and greatly decrease
the chance that the Bengals would find a way to score their own touchdown to
win. It was a tactic that veterans of football simulation video games knew all
about, from playing games like Madden in their living rooms and man caves. Andrew Filch has reported on other examples from sports, from soccer, NASCAR, and NFL football. What do the they have in common? An
unprecedented move that the source code of the video game allowed (so it was
not technically against the rules)
and helped raise the odds of victory.
Sounds like McConnell’s scheme.
We’ve seen this play out many times over the past decade in
politics. There was the “game of chicken”on the debt limit in 2011 – unprecedented but constitutional. In order to prevent presidential recess appointments, this clause from Article I has been used to maintain pro forma sessions: “Neither House, during the Session of
Congress, shall, without the Consent of the other, adjourn for more than three
days.” State legislatures have been
exploring the meaning of this clause from Article II: “Each State shall appoint, in such Manner as
the Legislature thereof may direct …”, the voters in the Electoral
College. Well, to be more precise,
Legislatures that are under Republican control in states won by Obama are
considering changing their manner of appointing electors so that if a Democrat
wins these states again in 2016, some of the electors will nevertheless be
assigned to the Republican candidate.
(And there is more to that story.)
And, in Michigan, the Republican legislature and governor now routinely
take advantage of a rule in the state constitution that prevents repeal
referenda on laws that have any sort of government spending attached. This tactic was used recently when some state
election laws were changed.
So far, all the examples I have given of “Gaming the Constitution”
have been due to Republicans. But
Democrats have not been completely innocent.
I’m certain the way this clause from Article I has been gamed started
with Democrats when they controlled Congress:
“All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with Amendments as on
other Bills.” President Obama’s “grant
of deferred action” executive order to stop deportation of some DreamAct-eligible students is an example.
Article II states that “The executive Power shall be vested in a
President …”, and later, “… he shall take Care that the Laws be faithfully
executed …”, but there is nothing in the “source code” that requires the
Department of Justice to follow up on every
case of a federal law being violated, right?
But, to my Democratically-biased eyes, I believe that the
gaming behavior of the Republicans the past several years has differed in
degree and kind, and in contemptuousness for the Democrats and for
tradition. Ironic, for a conservative party. But not inconsistent with the idea of a living Constitution, with an evolving, progressive interpretation, which is usually
considered to be in the DNA of the Democratic party.
What might we prepare ourselves to expect when it comes to future
constitutional gaming tactics? Should we
brace ourselves for unprecedented application of these clauses?
- “Times, Places and Manner of holding Elections for Senators and Representatives” (Article I, Section 4)
- “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members” (Article I, Section 5)
- “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports” (Article I, Section 10)
- “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” (Article IV, Section 2)
- “The United States … shall protect … on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” (Article IV, Section 4)
- “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Amendment IX)
- “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.” (Amendment XXV)
I guess we will see.
As time passes and more and more new Congressmen arrive in Washington,
raised, on video games, we may see even more gaming of the Constitution.
One last thought on this matter: Instead of being influenced by some fanciful Washington 2016 from EA Systems, maybe
the true source of all this is Ross from Friends:
“We were on a break!”
