Gaming the Constitution

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!”