Hardball and its Effects

Posted: January 5th, 2023

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Hardball and its Effects

Introduction

A government is highly likely to succeed in its practices and plans if the actors have a common perception or goal. Nevertheless, that is not usually the case, especially in cases where constitutional hardball causes contradicting views and opinions. The study discusses the issue of constitutional hardball and how it impacts on the U.S. government. Those taking part in constitutional hardball should consider whether the act is ethical or not, as well as look into the possible long-term impact of the practice on the government’s operations. Even though constitutional hardball allows Congress to regulate how the president exercises his power, the act results in conflicting ideologies that deters the government’s attention on its duty to members of the public.

Describing Hardball

Other than the conventional meaning of hardball that is associated with a game, constitutional hardball has political meaning. Balkin (580) describes constitutional hardball as political practices and claims formed by a political movement or party that are high stakes and are formed to change the existing structure of power relations. They are formed to play for keeps in a way that if prosperous, they will change political power to the winners and cement it for a particular duration. Therefore, constitutional hardball refers to strategies or techniques created to establish so firmly a movement or party’s power into the future (Balkin 580). On the other hand, the supporters or originators of constitutional hardball are likely to encounter a severe impediment to their political aspirations for indefinite period should they lose in the constitutional hardball. Mark Tushnet’s concept of constitutional hardball emanates out of his broader concept of constitutional orders where he asserts that American history comprises of a pattern of constitutional orders that exemplify primary institutional assumptions and arrangement regarding the relative power and authorities of various parts of the government, key assumptions regarding the objectives of leadership, key regulations that are center of controversy, and key interests and rights safeguarded (Tushnet 530). Besides, constitutional hardball refers to the way in which several political formations or gatherings try to alter prevailing guidelines into a freshly produced form. As Tushnet (530) puts it, the idea of constitutional hardball points out constitutional activities related to constitutional changes. Therefore, one should not expect to encounter cases of constitutional hardball at a time of ordinary politics.

A primary feature of constitutional hardball is that at least one of the sides in the tussle engages in acts or makes claims that the other party believes goes against pre-constitutional directives. Precisely, hardball entails things that go without saying in a working system of the government. They are difficult to recognize when it is not for crisis because they pass without saying (Balkin 581). In constitutional hardball, aspects that once passed without being mentioned or brought to the public domain are revealed made the bone of contention, with one party contending that the matter were fully addressed and the other part denying the claims (Balkin 581). As soon as one of the sides begins to take part in constitutional hardball, the other side will typically move in very fast with a contradicting dispute, because both sides recognize that an essential pact is at stake, and because no core actions are no longer considered in vein, but are now strongly opposed (Balkin 581). At this phase, not only are the underlying assumptions challenged, but also a matter of who commenced the tussle. Because the sides contend over pre-constitutional claims, understandings, and acts of constitutional hardball have a curious component (Balkin 581). They are at least credible or within the realms of existing constitutional doctrines. Critics, however, think that constitutional hardballs are inappropriate and incorrect in some way and tend to go against the spirit of the constitution or its key regulations as they comprehend them.

How it shapes how the Government is regulated

Constitutional hardball has significant impact on how the government is regulated, which requires the warring parties to consider quitting the practice. One of the possible adverse effects of constitutional hardball is that it results in unnecessary competition in the way the government works (Tushnet 533). Each side would not promote their ideologies, which in the long run cause conflicting ideologies.

However, constitutional hardball could be beneficial to how the government is governed because it provides power to Congress to monitor how the executive works. Shugerman (93) argues that constitutional hardball has fortified the roles of the executive in creating policies, as the leader of government become more probable to utilize powers of office to manipulate the legislature. Claims emerged that Obama’s application of particular executive orders to be an example of constitutional hardball (Shugerman 93). One particular case was in Executive Order 13668 that he made in 2014 with the objective of bringing to an end immunity offered to the Development Fund for the Iraqi and particular other properties and interests in Iraq. Some members of the Republican Party opposed the view terming it as ill-placed and one that would escalate the tensions between the U.S. and Iraq (Shugerman 93). However, the Democrats held that the move would save the country a lot of money that it loses towards the venture each year.

Long Term Effects

Supporters or those who engage in constitutional hardball must be conversant with the possible long-term effects associated with the practice. One of the possible long-term effects of constitutional hardball is that it may result in government shutdowns. Fishkin and Pozen (161) inform that at the time of writing, the U.S. government was in the midst of the most prolonged partial shutdowns in history. Hundreds of thousands of government workers have been compelled to work for longer hours without pay. Moreover, uncountable number of American people have had their lives unattended to (Fishkin and Pozen 161). In terms of sheer greatness and extent of disturbance, the closure appeared to be an upsurge of the shutdown hardballs that have occured in the recent years. Many questions whether the hardball played by President Trump or House Speaker Nancy Pelosi and her Democratic affiliates in Congress were responsible for the 2019 shutdown (Fishkin and Pozen 162). One of the most possible cause for the stalemate is that Trump asked for $5.7 billion to erect the border wall, but Democrats refused to approve the request. A similar shutdown happened in 1995 when President Bill Clinton and House Speaker Newt Gingrich who received overwhelming support from Republican affiliates in Congress played hardball by Gingrich’s team emerged the victor (Fishkin and Pozen 162).

The other possible long-term impact of constitutional hardball is that it results in recurring deals that do not have much impact on the country. Such a situation was apparent during the leadership of Obama when efforts to reach at a nuclear reduction pact with Iran. The case turned out to be a scenario of constitutional hardball. The deal according to Fishkin and Pozen (167) not only lies on an exaggerated account of the agreement’s formation, and one that completely overlooks the thrilling tactics of its rivals, but also disregards the essential details that Obama’s leadership framed the contract as a lawfully nonbinding political pacts on behalf of the United States for more than one century. Such agreements in many instances happen without Congress’ approval, to the length that such pacts are now ubiquitous.

Ethics

Based on the analysis of how constitutional hardball happens and its intentions, it is apparent that it is not ethical. The practice is unethical because it involves violating legal institutions, laws, and procedures by political players for individual and partisan benefits in ways that contravene pre-formed regulations and strength the limits of constitutionality and legality. In addition, the practice is not ethical because Shugerman (101) thinks that it undermines democracy, because it threatens shared perception of democratic standards and goes against the expectation that the other party will adhere to democratic expectations. Consequently, the utilization of constitutional hardball by one group of partisans compel other affiliated groups to react in similar ways.

It is easier to understand the non-ethical nature of constitutional hardball by examining how it relates with some of the ethical theories that differentiate between bad and good deeds. A suitable structure is utilitarianism, which supports acts that promote pleasure or happiness and discourages acts that result in harm or unhappiness (Devadasan 80). When asked to make decisions that would have political, economic, or social impact on many people, a utilitarian leader or part member would aspire to achieve results that presents benefits to the entire society rather than a small group of individuals (Devadasan 81). However, the way politicians engage in constitutional hardball contravene the three basic principles that act as the primary tenets of utilitarianism, which are happiness, pleasure, and equality. Moreover, the practices associated with constitutional hardball violate the requirements of deontology theory of ethics, which terms an ethical action as one that does not have inappropriate outcome (Devadasan 83). It is apparent that the outcomes of constitutional hardball may be harmful and could be more devastating to the entire nation. Politicians, therefore, should consider how the practice relates with ethical theories before taking part in the act.

Conclusion

The study focuses on the issues of constitutional hardball that appears to have adverse effects on the operations of a government. The practice entails taking measures where each side support their ideologies with the goal of safeguarding partisan interests. However, constitutional hardball result in unnecessary competition that makes it difficult to serve electorates. However, scholars believe that constitutional hardball makes it possible regulate how the president takes advantage of the Congress to make decisions that would not benefit the entire country. Further evidence reveal that constitutional hardball could result in government shutdown as it happened during Clinton and Trump’s administration in 1995 and 2019, respectively. Party members should shun constitutional hardball because it could result in the formation of international deals that do not have impact on the country, and which do not follow Congressional approval. Besides, the practice is not ethical and contravenes nearly all ethical theories.

Works Cited

Balkin, Jack. “Constitutional Hardball and Constitutional Crises.” QLR, vol. 26, 2008, pp. 579-598.  

Devadasan, Pradeep. “Study on the Rationality of Utilitarian Philosophy of Law – An Analysis.” International Journal of Case Studies in Business, IT and Education, vol. 2, no. 2, 2018, pp. 78-85.

Fishkin, Joseph and Pozen David. “Evaluating Constitutional Hardball: Two Fallacies and a Research Agenda.” Columbia Law Review Online, vol. 119, 2019, pp. 158-172.

Shugerman, Jed. “Hardball vs. Beanball.” Columbia Law Review, vol. 119, no. 3, 2019, pp. 85-122.  

Tushnet, Mark. “Constitutional Hardball.” The John Marshall Law Review, vol. 37, 2004, pp. 523-553.