Franita Tolson


This short essay, written for Notre Dame Law Review’s conference on congressional gridlock, argues that gridlock is an expected and integral component of the legislative process. The bicameralism and presentment requirements of Article I of the U.S. Constitution make legislation difficult to pass in order to protect the public from the whims of shifting congressional majorities. Nevertheless, gridlock that is based primarily on partisan considerations rather than policy differences can be unconstitutional, as defined by Supreme Court caselaw, if it stymies legislation that is in the public interest. The remedy for “unconstitutional” gridlock is not judicial action, however; the solution lies in devolving policymaking authority down to the states, allowing them to address the problem as it manifests within their borders. While not ideal, this temporary fix has some federalism benefits as it encourages experimentalism in law and policy as well as citizen participation in democratic processes at the state level. Moreover, as illustrated by recent controversies over immigration reform, when states take the initiative and craft policy to address national problems, their assertiveness can help break the gridlock by forcing Congress’s hand.

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