Saturday, December 31, 2016

Out of Control Executives and Filibusters

Look, I don't doubt that many Republicans and conservatives are sincere when they fulminate against an out-of-control executive and vow to stand forever in favor of legislative supremacy.

But they have extremely short memories.  They have forgotten when Reagan and Bush I controlled the White House and Democrats controlled Congress.  Back then Republicans favored executive power.  Or maybe they are not old enough to remember Reagan and Bush I.  But most of them are certainly old enough to remember when Bush II was in power and they held to his theory that the President could do anything, so long as he used the magic words "national security" first.

Well, Republicans may say, we still believe that.  We favor almost unlimited power for the President in foreign policy.  But in domestic policy Congress should be supreme.  Well, not exactly.  Diplomacy and treaty making is part of foreign policy, after all.  But Congress had no qualms about making diplomacy as difficult as possible for President Obama.  And internal surveillance is part of domestic policy.  But Congress seems quite willing to give the President unlimited leeway on that.

Once again, Republicans may respond that making treaties is really part of domestic policy because treaties have the force of law and are binding on internal U.S. matters.  And internal surveillance is really part of our war making power because we are at war with Islamic terrorists, so where ever Islamic terrorists are is a battlefield where the President's powers are unlimited.

Alternately, I might conclude that Republicans want the President to have unlimited power in exercising the government's daddy functions because they favor all daddy functions, but want Congress to be supreme on mommy functions in hopes that it will obstruct things so far as to make mommy functions impossible.

This is much closer to the truth, but I suspect that it wills soon transpire that Republicans like executive power a lot more even in domestic matters than they thought.  The reason, of course is the filibuster.

The way our government operates now, in order for a party to pass legislation it must control not only the White House and both houses of Congress, but also a super-majority of 60 in the Senate.  This was not always so.  There was a time when the filibuster was only rarely invoked, and only for very controversial measures.  There was a time when passing legislation by a simple majority of the Senate was not considered radical and dangerous.  Clarence Thomas, to take an obvious example, was confirmed by a vote of 52-48, an unimaginable thing today.  When Bush II took power in 2001, the Senate was split 50-50.  That meant the Vice President would vote to break a partisan tie.  But no one thought legislation was impossible as a result.

But today, with the nation split deeply divided by ideology and party and about half the country in each camp, the 60-vote threshold means that meaningful legislation will be impossible most of the time.  Because that would be catastrophic if passing a budget were impossible most of the time, the Senate has made an exception to allow budgetary matters to pass by a simple majority.  But regulatory legislation is impossible most of the time.  Republicans may be able to defund Obamacare, but Democrats will block any attempt at repealing any major regulatory legislation passed in the first two years of the Obama Administration.

So with Republicans desiring major regulatory rollbacks and Democrats able to block them (at least for now), what will they do?  It seems a safe assumption that the Trump Administration will set out to achieve its goals by administrative regulations and selective non-enforcement.  Exactly the way the Obama Administration did when regulatory legislation became impossible for it.  And doubtless there will be plenty of procedural hypocrisy on both sides.

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