Reprinted from Real Clear Politics.
“We have two years to show we can make things work,” Republican Mike Braun told Indiana voters in his Senate victory speech. He is wildly optimistic. Both parties are already on war footing, and, barring divine intervention, they will remain that way until 2020.
Their only bipartisanship is a shared commitment to push hard positions favored by their activist bases and enraged donors. President Trump’s unprecedented fight with the legacy media deepens the division. He attacks with ferocity; they take the bait, fill the airwaves with unremitting criticism, and crush underfoot the wall between hard-news reporting and opinion.
Calls for compromise ring hollow from the politicians who make them. In the same speech, they often issue a call-to-arms, as Nancy Pelosi did in claiming victory. The House’s minority leader, who is expected to take the speaker’s gavel in January, spoke softly and urged bipartisan legislation – but quickly added that she and fellow Democrats would stand their ground on all major issues. Trump did the same, even as he spoke about possible deals on taxes, infrastructure and immigration. If he seriously pursues those deals, he risks alienating the very voters who carried him to victory.
On cue, the Democrats who expect to head major House committees announced they will begin subpoenaing the Trump White House as soon as they take over. They say the president is using his office to enrich himself, so obviously they need to see all his financial records. Adam Schiff, who will head the House Judiciary Committee, says he wants to continue the “Russia collusion” investigation. Apparently, Robert Mueller’s small army of investigators, working for two years with grand jury powers, is not enough for Schiff. Meanwhile, several senior House Democrats have already called for impeachment. They will phone in their reasons later.
Even if Pelosi can restrain the incoming committee chairs and control her caucus, there is nothing she can do to stop the caravan of senators expected to run for president. A few, like Minnesota’s Amy Klobuchar, are positioning themselves on the center-left. But most are taking more extreme positions, turning up the volume and vitriol in order to be heard above the crowd. That’s just fine with President Trump, who runs best against such inviting, combative targets. Ask Michael Avenatti. Expect Trump to taunt them relentlessly. His path to re-election runs through a truculent House and screeching presidential candidates.
In this harsh environment, the prospects for major legislation are grim. A few compromises, such as infrastructure, might squeeze through, but only a few and only in the first year. Sen. Braun can forget about Year Two.
This prospective stalemate is more than a matter of parties or personalities. It is built into America’s constitutional framework, with its checks and balances, separation of powers, and federal structure. That framework is designed to make activist government difficult. Fearing any concentration of power would lead to tyranny, the Founders built a system with multiple veto points.
That’s a serious problem for those who want activist government, as progressives have since Woodrow Wilson and Franklin Roosevelt. They have responded to these constitutional shackles in three ways and see all of them at risk now.
First, they have vastly increased the president’s power. That’s what President Obama meant when he said that, if Congress didn’t pass legislation, he would simply decree it with his “pen and phone.” He never expected it to be undone the same way.
Second, with control of the federal judiciary, they have eviscerated the constitutional limits once placed on laws and executive actions. The crucial moment came during the presidency of Franklin Roosevelt, after the Supreme Court struck down several New Deal programs as unconstitutional. Roosevelt responded by threatening to appoint as many new Supreme Court justices as he needed to get the outcomes he wanted. The threat was credible since he controlled the Senate and could simply ignore the norm that the court had nine justices (since it was not written into the Constitution). The court caved, opening the door to vast, new executive powers and vast, new executive agencies. Progressive legal scholars justified—and celebrated—the changes with a theory of “legal realism,” focused on achieving their preferred policy outcomes. They cast aside a narrower focus on the texts of laws and regulations and the Constitution’s original meaning. Sustaining this change, now eight decades old, is why Supreme Court nominations have become so contentious. The fight goes beyond _Roe v. Wade_ and the Second Amendment, important as they are. Conservatives want a federal judiciary that restricts the scope of government.
Finally, as Washington’s powers have increased, the rules it imposes have become more detailed, cumbersome, and intrusive. They are costly to fulfill and even costlier to contest. Most are not statutes, passed by Congress and signed by the president. They are bureaucratic decrees, filling in the blanks in some broad, vague law. The same bureaucracies that pass these regulations are tasked with enforcing them and often hearing the appeals. In short, they combine the executive, legislative, and judicial functions so carefully separated by the Constitution.
Rolling back this expansive administrative state, or at least stopping its growth, is within sight for conservatives, especially if they can change the courts. Progressives rightly understand that aim as a mortal threat. That’s why both sides are heading for the mat.
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