The Supreme Court, Legislative Obstructionism, and Presidential Dictatorship

Before commentary, a bit of recent personal history: from December 28th through the Virginia Democratic Primary (March 1st, Super Tuesday), I was employed by Bernie 2016, my main goal since leaving my position as an Assistant Professor at Colgate nearly a year ago.  I was the Field Organizer (lowest rung of the ladder) for "V1D," an area of Virginia centered in Charlottesville, where Jasmine & I moved at the end of last summer, and including a huge swath of 16 surrounding counties.

It was the best of times, it was the worst of times.  I did a huge amount of work, I learned a huge amount about campaigns and campaign work in the trenches, met hundreds of wonderful volunteers, and saw lots of parts of Virginia that I never otherwise would have seen.  In the end, Bernie lost the Virginia primary by 29%, but in V1D turf, he only lost by 3%, and we won 7 of the 17 counties (in all, Bernie won 15 out of Virginia's 143 counties) in the turf.  My volunteers did an amazing job.  I was super-exhausted by the end of my "deployment," which lasted a week or so after the primary campaign itself.  During my employment, as a functionary of the Bernie Campaign, I could not blog, or even comment much on facebook, since I'd be seen as an official representative the campaign--even if I were blogging about something totally unrelated (as I am today).

Now, however, that I am no longer professionally attached to Bernie 2016, I am free to present my opinions again.

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Juan Linz wrote in the 1990s of the "Perils of Presidentialism," that in democracies where power is increasingly centered in a directly elected executive, there is a great danger of instability, and also of presidents taking on so much authority that democracy is seriously threatened.  Guillermo O'Donnell had similar worries over "Delegative Democracy," a version of a democracy where the one-shot election of a chief executive (the moment of "delegation" by the people) was seen as so centrally decisive that all parts of the system waited for their decisions on that single mandate every half-decade or so.  If and when, during the course of his or her term, such a president came informally to be seen as a lame duck, no business could get done until another president took over.  If a country faced a crisis during such a period, but nobody thought the sitting president carried the mantle of mandate to take dramatic steps, the country would languish in crisis with the looming threat of extra-constitutional methods of getting a new president "early."

Both of these worries imply a legislature where nothing important can be decided, which cannot originate policy or act as a political agent and "first-mover," but must merely re-act to whatever the super-empowered executive does.  How a legislature comes to be so weak and vestigial is an important question.  In some cases, especially in very new democracies, an incredibly weak or "rubber-stamp" legislature is written into the constitution.  But all constitutions are "living documents," and the informal patterns and traditions that grow up are more powerful than the written rules themselves.

In the United States, the oldest and most vibrant democracy in the world, we are seeing a pattern of legislative-executive interaction that promotes this vestigialization of the legislature, and ironically, it is emerges from the legislature itself, and in particular from the party that opposes the president.

In an interview from October 23rd, 2010, then Senate Minority Leader Mitch McConnell claimed that the most important thing his party could achieve would be to make Barack Obama a one-term president.  This quote has gotten plenty of air-time as evidence of how terribly recalcitrant McConnell and the Republican Party are, of their prioritizing political victory over the nation's business, of the mindlessness of their opposition to our country's first African-American president.

But in hindsight, it's more than that: it is an indicator of the party's acceptance of the proposition that no policy change can happen in a way that it desires unless it holds the presidency: the soon-to-be Tea Party wave sweeping Republicans into the majority in the House would not give Republicans leverage enough to work with Obama to get something they wanted out of negotiated policies, nor would the 2014 takeover of the Senate.

The Republican Party has shown that no matter how much power it has in the legislature, it expects to get zero done while a Democrat sits in the White House.  The party would rather shut down the government, perhaps drive the country into loan default (hardly a "fiscally responsible" move), and obstruct any major legislation than use its legislative power to get something out working together with a Democratic president.

Nowhere is this self-minimization of the legislative branch more evident than in the response to the president's nomination of Merrick Garland to the Supreme Court.  We now see the next shoe dropping in the path the Republican party has put us on to a delegative democracy, like those O'Donnell saw unfolding in the early 1990s in places like Perú, Venezuela, and Russia: 

The Republican leader apparently goes beyond accepting the idea that a legislative majority cannot fruitfully initiate new policy, or cooperate with a president from the other party, but even a presdient with over 20% of his term remaining is not endowed with a mandate to fulfill his constitutional duty of nominating someone to fill a vacancy in the judicial branch.  And indeed, when we consider the huge backlog of judicial and even executive branch appointments that the Republicans have stalled through Obama's two (count 'em: 2!) terms in office, we see that perhaps in the mind of Republican leaders, only at the very beginning of a four-year term in office does enough "delegative" authority attach to the president, from winning a quadrennial election, to actual carry out any policy change or appoint key figures as required by the constitution.

The Republican agenda of the last six years has made frightening progress in establishing new patterns and traditions in America's democracy: a legislature cannot fruitfully initiate new policy or even work with an executive to make headway on the policy goals of its members if it faces a president from a different party; and now, a president should not even fulfill the duties a constitution charges him or her with if a new election looms within a year (or more?).  

Regardless of who is elected as president in the fall of 2016, these patterns, if they become institutionalized, will endow that person with a terrifying degree of informal mandate come January 20, 2017, since there will be so much waiting for his or her attention, and the tacit acceptance that nothing can be decided before that day will put everything in his or her hands--probably much more than ought to be.  Moreover, unless the legislature is controlled by the same party, the pattern would make us expect merely war and stalemate between legislature and executive until Jan 20, 2021, when we'll have a new president (unless we impeach the one elected in 2016).  And finally, regardless of legislative or executive party control, this new pattern would make us expect no government action at all after a certain honeymoon period in the new president's term.  How long will that period be?  2 years?  Should we expect it to even last until the campaigns for the 2018 midterm election get under way?  100 days?

The United States is the oldest and most stable democracy in the world--it also happens to be my favorite.  But the patterns and informal institutions set in place by Republican reactions to the presidency of Barack Obama threaten to make it unrecognizable a decade from now--and perhaps no more a democracy than places like Venezuela and Russia.