Frictionless Government and Foreign Relations

*Deeks is the Class of 1948 Professor of Scholarly Research in Law at the University of Virginia School of Law. Eichensehr is the David H. Ibbeken ’71 Research Professor of Law at the University of Virginia School of Law and the Samuel Williston Visiting Professor of Law at Harvard Law School (2024–2025). For helpful comments and conversations, we are grateful to Curt Bradley, Michael Gilbert, Jack Goldsmith, Andrew Hayashi, Rebecca Ingber, Vicki Jackson, Jon Michaels, David Moore, Sai Prakash, Richard Re, George Rutherglen, John Setear, Paul Stephan, Ed Swaine, and Amy Zegart, and to participants in the 2023 Virginia-Chicago Foreign Relations Law Roundtable, Harvard Law School’s Global Justice Workshop, and UVA Law’s summer workshop. For excellent research assistance, we thank Soraya Batmanghelidj, Alex Chen, Katrina Meyer, Denny Phane, Justin Roberts, Abby Thompson, Divya Vijay, Jessica Williams, and David Yih. Thanks to the Virginia Law Review editors, especially Andrew White, for their thoughtful suggestions and careful editing. The Article reflects developments through early November 2024, when it was finalized for publication.Show More

In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus should sometimes trigger concern, not celebration. We call these worrisome situations “frictionless government.” Frictionless government occurs when there is overwhelming bipartisan and bicameral consensus about a particular set of policies, as well as consensus between Congress and the President. Frictionless situations have inherent weaknesses, including the loss of inter-branch checks and balances that the constitutional Framers envisioned, the loss of partisan checks that typically flow from a “separation of parties,” the reduction of inter- and intra-agency checks within the executive branch, and an increased risk of cognitive biases, such as groupthink, that hamper wise policy-making.

Frictionless situations tend to involve foreign relations and commonly arise when the United States is attacked or otherwise finds itself in a conflict with external enemies. In such high-stakes moments, frictionless government has led to policy decisions taken with overwhelming consensus that go off the rails by sparking or escalating conflict, triggering actions by U.S. adversaries that undercut U.S. security goals, and unlawfully targeting domestic constituencies perceived to be linked to foreign adversaries. Such decisions eventually provoke substantial opposition and often repeal, but only after causing serious harms.

Celebration of unified, bipartisan action in frictionless government should not overwhelm appreciation of the risks that can result from a rush to act. This Article draws on historical examples, including the U.S. internment of Japanese Americans during World War II, the conduct of the Vietnam War, and the U.S. response to the September 11 attacks, and then considers more recent actions including the U.S. response to Russia’s full-scale invasion of Ukraine and ongoing tensions with China. The Article ultimately argues that recognizing the perils of frictionless government early is the best way to avoid the excesses that have plagued past eras of “frictionlessness,” and it proposes ways to reintroduce productive friction back into policy-making processes, including via self-imposed actions by Congress and the executive and via external actors, such as companies, foreign governments, and state and local governments.

Introduction

The phrase “frictionless government” may seem like an oxymoron to many observers of U.S. politics today. In 2023 alone, the House twice faced steep challenges in selecting its Speaker,¹ 1.Lindsey McPherson, Laura Weiss & Caitlin Reilly, McCarthy Wins Speaker Election, Finally, Roll Call (Jan. 7, 2023, 1:38 AM), https://rollcall.com/2023/01/07/mccarthy-wins-spe‌aker-election-finally/ [https://perma.cc/XCN4-RAPB]; Luke Broadwater, Republicans Tap Jordan for Speaker, but Delay Vote as Holdouts Balk, N.Y. Times (Oct. 17, 2023), https://www.nytimes.com/2023/10/13/us/politics/house-speaker-jordan-scalise.html.Show More and both houses together have almost failed to raise the debt ceiling² 2.Christopher M. Tuttle, Out of the Debt Ceiling Fire, but Still in the Frying Pan, Council on Foreign Rels. (June 2, 2023, 9:46 AM), https://www.cfr.org/blog/out-debt-ceiling-fire-stil‌l-frying-pan [https://perma.cc/Q7SR-BTNE].Show More and fund the government.³ 3.David Wessel, What Is a Government Shutdown?, Brookings Inst. (Mar. 23, 2024), https://‌www.brookings.edu/articles/what-is-a-government-shutdown-and-why-are-we-likely-to-hav‌e-another-one/#:~:text=In%20a%20surprise%2C%20Congress%20avoided,year%27s%20le‌vels%20for%2045%20days [https://perma.cc/8JBC-8LSZ].Show More Research shows that Congress is more polarized now than it has been for the past fifty years.⁴ 4.Drew Desilver, The Polarization in Today’s Congress Has Roots That Go Back Decades, Pew Rsch. Ctr. (Mar. 10, 2022), https://www.pewresearch.org/short-reads/2022/03/10/the-pol‌arization-in-todays-congress-has-roots-that-go-back-decades/ [https://perma.cc/6AYT-F3‌6K].Show More Not surprisingly, referring to Congress as “broken” has become a common trope.⁵ 5.Betsey Stevenson, Congress Is Even More Dysfunctional Than It Looks, Bloomberg Tax (Oct. 13, 2023, 7:00 AM), https://news.bloombergtax.com/daily-tax-report/congress-is-more-dysfunctional-than-it-looks-betsey-stevenson; Peter King, I Served in the House for 28 Years. It’s Now More Dysfunctional Than Ever., The Hill (Sept. 25, 2023, 3:00 PM), https://thehill‌.com/opinion/campaign/4221898-i-served-in-the-house-for-28-years-its-now-more-dysfuncti‌onal-than-ever/; Yuval Levin, What We Can Do to Make American Politics Less Dysfunctional, N.Y. Times (Oct. 9, 2023), https://www.nytimes.com/2023/10/09/opinion/am‌erican-politics-congress-reform.html.Show More As a result, many are skeptical that Congress can do much at all.

Yet even as Congress has struggled with this increasing polarization, it continues to enact hundreds of bills every session, including National Defense Authorization Acts (“NDAAs”), producing approximately 4 to 6 million words of new law in each Congress.⁶ 6.Statistics and Historical Comparison, GovTrack.us, https://www.govtrack.us/congress/bill‌s/statistics [https://perma.cc/VP6N-CK2T] (last visited Oct. 4, 2024).Show More In some cases, Congress enacts these laws with large majorities voting in favor of the bills.⁷ 7.For example, the 2024 NDAA passed the House of Representatives and the Senate with 310 and 87 yeas, respectively. Roll Call 723 | Bill Number: H.R. 2670, U.S. House of Representatives: Clerk (Dec. 14, 2023, 10:40 AM), https://clerk.house.gov/Votes/2023723 [https://perma.cc/‌4ASF-2KJU]; Roll Call Vote 118th Congress—1st Session, U.S. Senate (Dec. 13, 2023, 6:46 PM), https://www.senate.gov/legislative/LIS/roll_call_votes/vote1181/v‌ote_118_1_003‌43.htm [https://perma.cc/ERZ5-Z3LR].Show More This is often true when the legislation implicates foreign relations, and especially when the United States faces a perceived external threat.⁸ 8.See infra note 173 and accompanying text (discussing adoption of the 2001 Authorization for Use of Military Force).Show More Where Congress passes a bill with large majorities and the President strongly supports the law, we might see this as a cause to celebrate, not hesitate. But this Article takes the counterintuitive position that for as much attention as government dysfunction engenders, certain instances of overwhelming and bipartisan consensus should also prompt concern.

This Article focuses on a particular subset of foreign policy decision-making that we term “frictionless government.” By this term, we mean to capture situations in which there is overwhelming bipartisan and bicameral consensus about a particular set of policies, as well as consensus between Congress and the executive. In such cases, the normal checks and balances that typically arise during policy-making weaken and, in some cases, disappear entirely, creating a risk of policy going off the rails. The usual tensions between congressional and executive desires disappear; the rough-and-tumble partisan interactions between Republicans and Democrats fade; and the often-contentious inter-agency negotiations inside the executive branch are streamlined. These conditions can amplify the cognitive biases that often arise in decision-making, including optimism bias, confirmation bias, and groupthink, and often result in governmental actions that spark or escalate conflict, trigger actions by U.S. adversaries that undercut U.S. security goals, and unlawfully target domestic constituencies perceived to be linked to foreign adversaries. Such policy decisions eventually come to be viewed as problematic, both legally and from a policy perspective, but only too late to avoid their costs.

Historical examples illustrate that frictionless situations tend to arise when the United States is attacked or otherwise finds itself in conflict with external enemies. Common across the historical frictionless examples that this Article identifies are laws and policies adopted with overwhelming bipartisan support from across the U.S. government that eventually come to provoke substantial opposition and often repeal. The U.S. internment of Japanese Americans during World War II, the conduct of the Vietnam War, and the use of renditions and torture as part of the U.S. response to the September 11 attacks are among the most serious U.S. foreign policy mistakes of the twentieth and twenty-first centuries. Yet all were based on or supported by statutes that passed Congress by very wide, bipartisan margins and with the encouragement of the White House.

Not all situations of frictionless government necessarily produce poor policies. The Article highlights the response to Russia’s full-scale invasion of Ukraine as a recent example of frictionless government that, to date, has not produced the same pathologies as past examples. But there are enough examples of serious foreign policy errors made under frictionless government that it is worth reconsidering the virtues of—and highlighting the vices of—frictionlessness. This analysis is crucial in light of current tensions between the United States and China, which are producing elements of frictionlessness in U.S. policy-making that raise cause for concern.

This Article’s goal in identifying the existence of frictionless situations is to ensure that, going forward, celebration of unified, bipartisan action in frictionless government will not overwhelm the appreciation of the risks that can result from a rush to act against perceived threats. Recognizing the perils of frictionless government is the best way to ensure that actors inside and outside government take steps to avoid replicating the excesses of past frictionless situations. Instead of being able to rely on inter-branch or inter-party checks, we will need to look elsewhere for supplemental checks on U.S. policy in these situations, to avoid groupthink and ensure that the United States is striking the right balance in national security or foreign policy settings that often have generational impacts. In some cases, Congress and the executive could choose to deliberately reintroduce some level of friction into their decision-making, to ensure that the President is presented with a wider range of options and that there are requirements to revisit policy decisions periodically. External actors may also provide useful friction in the form of litigation by affected parties, resisting or slow-rolling policy implementation, and lobbying governmental actors.

To be clear, there are sound reasons to want the United States to be able to respond quickly and effectively to very real threats to its current and future security. But even—and maybe particularly—in the face of these threats, it is to the long-term advantage of U.S. national security to ensure ongoing, iterative checks and balances on U.S. policies in this space.

The Article proceeds as follows. Part I defines “frictionless government” and explains the inherent weaknesses of such situations, including the loss of inter-branch checks and balances that the constitutional Framers relied upon, the loss of partisan checks that typically flow from a “separation of parties,” the limiting of inter- and intra-agency checks within the executive branch, and the risk of fostering groupthink and other cognitive biases that hamper wise policy-making. Part I concludes by discussing the lifecycle of frictionless situations, especially when they arise and how they ultimately fade away, and by considering possible counterarguments to our concerns about frictionless situations. Moving from the theoretical to the practical, Part II addresses frictionless government in practice, identifying and analyzing several historical and more recent examples of frictionless situations to derive categories of pathologies that frictionlessness produces. Part III then proposes ways to reintroduce checks and balances into frictionless government situations, drawing on both friction that can be self-imposed by the political branches and friction introduced by external actors, including regulated companies, foreign governments, and state and local governments.

1.  Lindsey McPherson, Laura Weiss & Caitlin Reilly, McCarthy Wins Speaker Election, Finally, Roll Call (Jan. 7, 2023, 1:38 AM), https://rollcall.com/2023/01/07/mccarthy-wins-spe‌aker-election-finally/ [https://perma.cc/XCN4-RAPB]; Luke Broadwater, Republicans Tap Jordan for Speaker, but Delay Vote as Holdouts Balk, N.Y. Times (Oct. 17, 2023), https://www.nytimes.com/2023/10/13/us/politics/house-speaker-jordan-scalise.html. ↑
2.  Christopher M. Tuttle, Out of the Debt Ceiling Fire, but Still in the Frying Pan, Council on Foreign Rels. (June 2, 2023, 9:46 AM), https://www.cfr.org/blog/out-debt-ceiling-fire-stil‌l-frying-pan [https://perma.cc/Q7SR-BTNE]. ↑
3.  David Wessel, What Is a Government Shutdown?, Brookings Inst. (Mar. 23, 2024), https://‌www.brookings.edu/articles/what-is-a-government-shutdown-and-why-are-we-likely-to-hav‌e-another-one/#:~:text=In%20a%20surprise%2C%20Congress%20avoided,year%27s%20le‌vels%20for%2045%20days [https://perma.cc/8JBC-8LSZ]. ↑
4.  Drew Desilver, The Polarization in Today’s Congress Has Roots That Go Back Decades, Pew Rsch. Ctr. (Mar. 10, 2022), https://www.pewresearch.org/short-reads/2022/03/10/the-pol‌arization-in-todays-congress-has-roots-that-go-back-decades/ [https://perma.cc/6AYT-F3‌6K]. ↑
5.  Betsey Stevenson, Congress Is Even More Dysfunctional Than It Looks, Bloomberg Tax (Oct. 13, 2023, 7:00 AM), https://news.bloombergtax.com/daily-tax-report/congress-is-more-dysfunctional-than-it-looks-betsey-stevenson; Peter King, I Served in the House for 28 Years. It’s Now More Dysfunctional Than Ever., The Hill (Sept. 25, 2023, 3:00 PM), https://thehill‌.com/opinion/campaign/4221898-i-served-in-the-house-for-28-years-its-now-more-dysfuncti‌onal-than-ever/; Yuval Levin, What We Can Do to Make American Politics Less Dysfunctional, N.Y. Times (Oct. 9, 2023), https://www.nytimes.com/2023/10/09/opinion/am‌erican-politics-congress-reform.html. ↑
6.  Statistics and Historical Comparison, GovTrack.us, https://www.govtrack.us/congress/bill‌s/statistics [https://perma.cc/VP6N-CK2T] (last visited Oct. 4, 2024). ↑
7.  For example, the 2024 NDAA passed the House of Representatives and the Senate with 310 and 87 yeas, respectively. Roll Call 723 | Bill Number: H.R. 2670, U.S. House of Representatives: Clerk (Dec. 14, 2023, 10:40 AM), https://clerk.house.gov/Votes/2023723 [https://perma.cc/‌4ASF-2KJU]; Roll Call Vote 118th Congress—1st Session, U.S. Senate (Dec. 13, 2023, 6:46 PM), https://www.senate.gov/legislative/LIS/roll_call_votes/vote1181/v‌ote_118_1_003‌43.htm [https://perma.cc/ERZ5-Z3LR]. ↑

8.  See infra note 173 and accompanying text (discussing adoption of the 2001 Authorization for Use of Military Force). ↑