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Could Democrats Render President Romney Powerless If They Wanted To?

[ 78 ] September 28, 2012 |

I missed this until it was pointed out by a commenter, but dsquared had actually already addressed Romney’s executive branch powers in a comment:

Nuh uh on anything that requires judicial or regulatory nominations, which are trivially easy to filibuster for a Congressional party that has even a modicum of spine.

This is obviously unworkable, for multiple reasons:

  • Especially with respect to executive branch appointments, a proposed strategy of “stop Romney from nominating anybody he would appoint to the executive branch” founders on the recess appointment power.   Left-wingers won’t control regulatory agencies by default if Democrats systematically filibuster Romney’s nominees.   (Recess appointments don’t replace lifetime appointments to the federal courts, granted.)
  • In addition, Romney doesn’t need any confirmations to just start issuing executive orders interpreting regulations narrowly or stopping the enforcement of laws, and given the even more completely gridlocked Congress Daniel envisions he would have extremely wide latitude to do so.
  • Let’s say Democrats could do what even contemporary Republicans couldn’t and stopped Romney from getting any replacement for Ginsburg and/or Breyer confirmed.   The result would be Court with 7 or 8 justices, fully legally empowered to issue rulings, with five conservative votes.   This does not strike me as something Republicans would be unhappy with.   (It’s true that there are informal norms under which the Court prefers not to issue rulings with temporarily short-staffed courts unless there are 5 votes in the majority anyway; it’s also pretty obvious that these norms would go out the window if the vacancies weren’t actually temporary, and that goes triple if it’s Democrats systematically filibustering the nominations of a Republican president.)   With the federal courts, there’s a similar issue — the result of  a systematic filibuster would be understaffed courts still heavily tilted towards conservative Republicans.  I’m not seeing the win here.
  • As is generally the case when people argue for Democrats adopting maximalist strategies, Daniel also isn’t taking into account that the interests here aren’t symmetrical.   An equilibrium in which federal agencies can’t be properly funded, staffed, and administered because of escalating cycles of retaliation would suit Republicans just fine — they don’t care if the NLRB ever meets a quorum again, if the EPA has any lawyers to file lawsuits, etc.   For progressives who actually want federal laws enforced, this is a rather less good outcome.

No matter how much “spine” the Democrats have, they’re not going to eliminate the after-the-fact powers of the executive branch, and doing as much as they can to do so would be disastrous for progressive interests anyway. It is true that, in terms of both appointments and legislation, that Romney will have a little bit more leeway both in terms of legislation and executive branch powers than Obama does because the Democrats are less disciplined. You can agree with Daniel that this is because Democrats are just feckless and could become a unified social democratic caucus with a little of the ol’ heighten-the-contradictions, or you can agree with me that this is is result of structural factors like the malapportionment of the Senate and the outsized role of money in American politics that can’t be corrected by third party campaigns or whatever, but either way it’s a marginal difference. Romney will have at least as much power as Obama does, and their are distinct limits on congressional power as well no matter how brilliant one’s strategizing.   Use of the filibuster can mitigate the damage of a Romney administration but it can’t come remotely close to eliminating it.

In conclusion, not everyone making a heighten-the-contradictions argument about U.S. presidential elections is a libertarian. But it is true that they only make sense if you’re a libertarian.

Comments (78)

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  1. Joe says:

    This is ridiculous. We’ve been thru this already not that long ago. See 2001-2009. The executive has a large amount of power, especially in the real world. The fantasy-land some put forth aside. As to filibustering. what? First, the House is now controlled by Republicans. Second, filibustering is harder there. Third, filibustering requires in effect not actually governing long term. Finally, Blue Dogs are not so passionately against Republicans that they will do that. On various issues, they in fact will work with them. See, e.g., the Military Commission Act.

    • david mizner says:

      Yeah, it’s just too bad the executive stopped being powerful in 2009.

      • Cody says:

        More like it’s too bad many Democratic Senators are really Republicans on most issues.

      • elm says:

        Are any of the things of Scott’s list new laws that require Congress to pass? Scott has always conceded that the President has lot of power in foreign policy, appointments, regulations, and agenda setting. Where he’s relatively weak is getting new legislation passed that Congress is unsupportive of. The only thing on Scott’s list that demands any Congressional legislation is cutting taxes for the rich, which Congress is likely to be quite supportive of.

        So your implicit charge of hypocrisy fails rather badly.

        • elm says:

          Oh, and also repeal of ACA, which Scott backed off on in a later post, then stepped back into again when it was pointed out Romney can render it mostly toothless through administrative action even if he can’t repeal it.

      • Scott Lemieux says:

        Yeah, it’s just too bad the executive stopped being powerful in 2009.

        I love the smell of burning straw in the morning!

        • david mizner says:

          Hey, I was responding to a comment that cited the years when the executive was powerful.

          I’m favorably disposed to the presidential-power-is-limited-argument; I just think it’s interesting how much popular it’s become in the last four years. That it has merit (and predates 2009) doesn’t mean it’s not a product of the Obama-apology industry.

          • Scott Lemieux says:

            My position on executive power has not changed an iota since 2009. Foolish arguments exaggerating executive legislative power, conversely, are certainly products of the leftier-than-thou industry.

            • charles pierce says:

              Pretty narrow, Scott. There are plenty of examples in history of presidents’ being foiled by determined opposition (JQA) or not assuming powers beyond the Constitution (to an extent, Madison). There are plenty of examples of vigorous executives steamrolling what they want (both Roosevelts, LBJ, Reagan in 1981, GWB 20 years later.)
              And whoever mentioned “filibustering in the House” above should know that there is no filibuster in the House, just in the Senate.

              • Scott Lemieux says:

                Well, yes, there’s no question that presidential powers are contingent; some are more successful than others. That doesn’t contradict my positions on executive power. It’s worth noting, though, that FDR and LBJ had unusually favorable conditions (massive congressional majorities and in the latter case a halo effect). And even so FDR’s steamroller was derailed after 1937.

                • charles pierce says:

                  Caro pretty much redefines the “halo effect” in interesting ways. It was there, but the LBJ effect — namely, his use of the dead guy as another lever of power — has been criminally underrated, especially by JFK acolytes who sought to give him no credit at all. And even then, both the CRA and the VRA were close-run things.

                • Scott Lemieux says:

                  Oh, absolutely no question. LBJ had certain advantages, but he also did more to exploit them than any president of the last century. The comparison with JFK makes his value-above-replacement pretty clear.

                  I will note, though, that while nobody’s going to win a comparison with LBJ, Obama looks damned good compared to Clinton and especially Carter (who did almost nothing with 4 years of a Democratic Congress.)

          • Joe says:

            Hey, I was responding to a comment that cited the years when the executive was powerful.

            I’m sorry. This is not what I said. The title of the piece is what “this” is referencing — that is, when Democrats in Congress hold back a Republican President from strongly using his/her executive power.

            Since executive power didn’t suddenly stop being strong in Jan. 2009, I didn’t think there would be confusion there. My bad.

            presidential-power-is-limited-argument

            My comment referenced the scenario the OP addressed & noted “The executive has a large amount of power, especially in the real world.”
            Note the current tense.

            The presidential power continues to be large today. I fear you are again responding to something I nor Scott actually said.

  2. TT says:

    Romney’s first budget would be the swing-for-the-fences Ryan Plan fever dream. It would not be subject to filibuster under reconciliation rules. In that case, would it be possible for a handful of determined Senate Dems to simply refuse unanimous consent in order to bring business to a complete halt?

    I agree completely that Romney would still be able to do enormous damage even with the filibuster in place and a hypothetical Senate Democratic minority. (Though I believe that the GOP will not resist abolishing the filibuster should Romney win and they take the Senate.) But the truly destructive priorities, i.e. repealing the New Deal and Great Society, could still be stopped in the Senate even without the filibuster, no?

  3. thusbloggedanderson says:

    I’m probably off-base since my comment to this effect went nowhere at CT, but Daniel’s notions about U.S. politics seem to presuppose UK-style party discipline, as well as equivocating between “[congressional] Dems are wimps” and “electing a Dem [to the White House] is of little moment.”

    He just doesn’t seem to grasp how things really work over here … we’re just not being British enough. (Which maybe we’d be better off doing, but reality says otherwise.)

    • njorl says:

      I agree. He’s uninformed.

    • Erik Loomis says:

      There’s a lot of this among left-leaning (at least) European commenters on American politics. They just don’t quite get how parties and political structures work over here.

    • Scott Lemieux says:

      This new argument that Democrats could render the president about as powerful as a HoR backbencher if they weren’t so feckless is an interesting contrast with his previous assumptions that Obama could be a Westminster Prime Minister if he wasn’t so feckless. It strikes me that both of these things can’t be true even if we overlook the fact that they’re both false.

      • Bijan Parsia says:

        I think the underlying structure is a dilemma, i.e., either Obama is (deliberately) failing to mobilze all the massive presidential powers to bring about the progressive paradise or the presidency is so weak that if the Dems in opposition would just show some spine there’s no big problem with a Romney presidency. The first horn gives you the imperative to opposed Obama from the left (i.e., the gain), and the second horn mitigates the downside.

        I don’t think it’s quite incoherent, though it’s certainly annoying. But it is the flip of the point that the presidency has a lot of power but that power is constrained in all sorts of ways that make some even small things really hard to accomplish. Thus, Obama has a FEMA that works but can’t appoint even low ranking judges.

        • thusbloggedanderson says:

          (Not that he has tried very hard on judges. You can’t get them confirmed if you won’t even nominate ‘em.)

          • Bijan Parsia says:

            This is true. Probably not the best example.

          • Joe says:

            How many judges were confirmed again? How many more would be if he nominated some more, putting them thru the ringer with FBI checks etc., just so we can say “hey, he nominated some!”?

            • JRoth says:

              Nonsense. The percentage of approved nominees isn’t zero. It’s baseless bullshit to say that, although 25% (or whatever – I think it’s higher) of the judges he actually bothered to nominate were accepted, 100% of additional nominees would have been rejected.

              See also: Federal Reserve. I actually blame Obama more for his egregious nomination record than for his international civil rights record, because there’s no bipartisan consensus in favor of simply ignoring the judiciary. Also, too, his neglect of his duty to appoint judges will ripple through the decades, as Bush nominees dominate American jurisprudence over the next 30 years.

              • Bijan Parsia says:

                One of the issues is that nominations consume senate time esp. in light of republican practices.

                This doesn’t excuse Obama’s undernominating and lack of use of recess appointments. I find it weird. I can only attribute it to a lack of sufficient energy.

                • thusbloggedanderson says:

                  Lots of dithering on U.S. attorneys, too.

                  (I’m a lawyer, hence my preoccupation with this judge/attorney stuff.)

                • Scott Lemieux says:

                  Yup. I mean to some extent it’s a chicken-and-the-egg question, but there’s no way Obama doesn’t have substantial responsibility for the lag in appointments. It’s never been something he put a high priority on.

              • Joe says:

                The percentage of approved nominees isn’t zero

                Instead of responding to things I didn’t say, why don’t someone put forth some numbers that provide an actual picture of how low his actual nomination numbers are.

                The last Congress under Bush confirmed 68 (58/10). The next one under Obama confirmed 60 (44/16) and two justices. Then, 100 (86/14). I’m not seeing the “egregious” yet.

                http://www.judiciary.senate.gov/nominations/judicial.cfm

                I’m actually interested in actual analysis since yet again I hear a lot of supposition, so I have to go out and look for the details. Ditto the actual blocking by Republicans vs. Democrats here in recent years.

                I ask again, maybe this time someone will answer, just how many more judges would actually be confirmed, noting the effort here is something of a zero sum game and it involves the nominees to be investigated etc., and on balance, how more valuable will it be?

                I don’t deny Dems like Clinton and Obama spend less time on this. I also don’t claim to know, with everything involved including two justices, the PPACA, etc. etc., just what the net balance works out to be.

                • Anderson says:

                  So unless we can answer a counterfactual, Obama can’t be criticized? Your argument, besides being silly … no, it’s just silly. Had he nominated NO ONE, you could still say, Oh, but how many would’ve been confirmed if he HAD nominated someone, huh, huh?

              • Heron says:

                Appointments, and also his treatment of prosecutors, investigators, and judges once they hold office. It doesn’t get a lot of coverage, but the Obama admin hasn’t been too terribly friendly with state AGs pursuing the banks for mortgage fraud and pension rip-offs, and of course there’s their deplorable response to attempts by detainees to get a fair hearing in court.

      • charles pierce says:

        Scott — You know as well as I do that the reason the D’s can’t do that is not because of dynamics inherent in the system, but because the D’s sold out to the DLC corporatists in the 1970′s, and because they tolerated disloyalty in a way the Republicans never would have. A “John Breaux” Republican simply does not exist.

        • Scott Lemieux says:

          I don’t think that’s right. It’s true that Republicans tolerate less disloyalty — but this has also made Republicans completely uncompetitive in states where they were traditionally uncompetitive. But because of the way the Senate was structured, and because just stopping things from happening is more important to reactionaries, Republicans can afford to more homogenous. If we had a unicameral legislature apportioned by population, we’d either have a lot more liberal Republicans or a much more moderate disciplined Republican Party.

          The Democrats are, it should be noted, as of now unusually disciplined for an American caucus. But it’s impossible to be as disciplined as the GOP unless you’re willing to surrender the Senate in all but the most favorable cycles.

  4. John says:

    If we have the House. For the love of God please donate to Patrick Murphy to help get Allen West the EFF out of Congress http://patrickmurphy2012.com/

  5. Chino says:

    How is maximalist obstruction in the Senate disastrous for progressive causes? No appointments is probably better than the majority of Romney appointments so we are left with the conservative judiciary status quo. If Republicans eliminate the filibuster then passing progressive legislation is much easier in the future. Romney would get a bunch of wingnuts on the bench but he most likely gets the majority of those nominees through the Senate if the Dems do not filibuster.

    • Cody says:

      It’s disastrous because a non-function federal government is the OPPOSITE of what Democrats want, but exactly what Republicans wants.

      This doesn’t mean that filibustering would be WORSE than allowing his crazy appointments through, but it carries a high political cost (unless you’re a Republican, who the media doesn’t seem to notice when they do these things).

    • Scott Lemieux says:

      It’s disastrous because it establishes a non-functional equilibrium. (Again, there’s a difference between filibustering targeted nominees — which is fine — and believing you can shut down Romney’s appointments entirely. I’m not talking about the damage that particularly radical appointments can do; I’m talking about the damage that generic Republican appointments can do.)

      • Chino says:

        The non-functional equilibrium is better in the short run than Republicans having their way. Democrats can end the stalemate by amending the Senate rules upon retaking the presidency and Senate in 2016.

        • Malaclypse says:

          Democrats can end the stalemate by amending the Senate rules upon retaking the presidency and Senate in 2016.

          Perhaps a better strategy would be to, perhaps, win now, rather than hope for a win in four years. Especially since winning now seems pretty likely.

      • Heron says:

        True, but then you’re just left in the position of always conceding to the madman on the other side of the table. If your counter-party knows they can take a maximal position without fearing that you, when you have the power to dictate terms, will do the same then they will always take the maximal position(Sadly, US politicians aren’t as sensible and reputation-seeking as the authors of Getting to Yes would lead you to believe). Witness, for instance, the last two years of debt limit negotiations and Obama’s current stated position of putting substantive cuts to medicare and SS services on the table for reaching a budget deal.

  6. Glenn says:

    As an example of the power of the executive to benefit progressive values (or to fail to do so):

    http://www.immigrationequality.org/2012/09/immigration-equality-praises-obama-administration-for-new-written-guidance-providing-discretionary-relief-to-lgbt-immigrant-families/

    Would be very interested in what Glenn Greenwald thinks of this, given his personal situation.

    • Heron says:

      Go read his archive; he wrote on the issue. He gave Obama due credit for it, took other commentators to task for getting overly emotional about it, then apologized for his tone and acknowledged it was an understandable reaction to an justly emotional situation, pointed out this doesn’t make the bad things Obama has done/is doing stop existing, then went back to covering the civil rights and international justice issues he always has. You don’t get to be a banner blogger by ignoring significant political events.

  7. L2P says:

    I would also remind everyone that one of the worst things the Bush administration did was replace line non-partisan line AUSA’s with partisan hacks.

    There is NO LEGISLATIVE REVIEW of the hiring of staff. Romney hiring SEC lawyers who think a business’s job is to lie and defraud investors (Caveat Emptor, baby!) is NOT A GOOD THING! Romney hiring DOJ attorneys who think Man’s place in the universe is to strip it of resources as quickly as possible WILL NOT HELP THE ENVIRONMENT!

    None of that has ANY legislative review.

  8. Lurker says:

    The last four years have been years of Obama’s hands being tied by the Republican minority in the Senate. Before that, the last two Bush years were relatively unproductive legislatively. Now we are talking about stalemating the Congress for four more years.

    Does it occur to anyone that under these circumstances, any president, whether democrat or republican, will look for avenues to expand executive power just to get things done? The ineffectiveness of the Congress is a danger to the Republic. Either the Congress loses its importance by small steps, as it has been under Obama, or it the Congress is forcibly removed when it proves to be too large an obstacle, which certain old-regime bushists might do.

    Every year of continued congressional stalemate brings a coup closer.

  9. T. Paine says:

    I was quite surprised to see dsquared’s line of argument on this. Things would certainly be different (not necessarily better) if the US were a parliamentary democracy. But we’re stuck with the system we’ve got, not the one that dsquared wishes we had.

    • L2P says:

      Yeah, it almost sounds like the third party protest vote is actually a vote in an imaginary parliamentary system. And a pony.

    • JRoth says:

      He lived in Oklahoma for a few years as a kid, and this seems to have convinced him that he has a deeper understanding of the American polity than, well, anyone.

      He’s an arrogant prick, but he usually has enough knowledge (and wit) to justify the arrogance. Not wrt American politics, however.

      • thusbloggedanderson says:

        He now says that he KNOWS the Dems act they way they do, it’s just that they SHOULD act better.

        Which, okay, sure, but I thought this began with “is it wrong not to vote for Obama?”

  10. David Hunt says:

    If a Democratic minority in the Senate managed to apply the brakes to a Romney administration in a major way, the filibuster would be voted out of the Senate rules straight away.

    Actually, I think the GOP would make alot of noise threatening to get rid of it first like they did in the Bush Administration to see if that would cow the Dems into letting most of their agenda be enacted. If that didn’t work…in the NBuclear Option!

    • David Hunt says:

      Oops bad typo, but at least I didn’t spell it “Nucluler”.

    • Gang of 1 says:

      The end of the filibuster is a good thing.
      I wish the Republicans would have done it 2005.
      I really wish the Democrats would have done it in 2009. We do not have to worry about it for the next several years since Romney is not going to win and the Republicans are not capturing the Senate. Maybe in 2017.

      • David Hunt says:

        I hope that you’re right that the Senate is not in play in 2012, but I don’t see any reason not worry about it being in play in 2014. I don’t know the distribution of the seats that are up for re-election that year, but I do know that we can’t be certain of what the political environment will be then. Unless the distribution of seats up for re-election are highly disproportionate GOP, I don’t think anyone can justify saying the Senate won’t be in play.

    • DrDick says:

      Based on past performance, there is absolutely no reason to believe that the Congressional Democrats will show any spine or unity, so the whole gridlock thing disintegrates into thin air.

    • Heron says:

      I seem to recall the Dems threatening to do something similar during the Shrub admin, then the Rs threatened to bypass the filibuster in some manner and they backed down.

      As much as the political coalition which the Rs now represent have relied upon the filibuster in the last century, that isn’t a threat I’d really take seriously, but I’m no mind-reader so it’d be unfair to accuse the Dems of grand-standing when they were really supportive or unconcerned about the measure they were threatening to block.

  11. david mizner says:

    Why take seriously any argument that presupposes spine (or liberalism) on the part of Dems?

    • Scott Lemieux says:

      He isn’t. He’s 1)making vastly exaggerated claims about what hypothetical Democrats with spine could do (apparently far more than even contemporary Republicans can) as 2)part of a non-sequitur about how Democrats can be made more liberal and spineful if the election is thrown to Romney because…look, it’s Halley’s Comet!

  12. Murc says:

    Democrats who were being as obstructive as Republicans are now (which ‘maximally’ obstructive but is pretty close) could indeed gum up a Romney Administration to an extent.

    I just wonder why they think a Romney Administration would CARE. Sure, they couldn’t eviscerate the welfare state (such as it is) but they’re willing to take ‘nothing gets done and things keep falling to pieces’ as a great second option.

    They don’t WANT to govern. Stopping them from governing is a lesser win but it’s still a win.

    And then you have all the stuff Scott said. Plus warmaking power. An obstructed Congress is just great from Romney’s perspective if he wants to launch some wars.

  13. laura says:

    “Spine” arguments are silly. The Congress won’t filibuster Romney’s nominees because of lack of “spine” but because plenty of Blue Dogs don’t agree with filibustering nominees, and neither do their constituents (to the degree they understand what it means). The “spine” argument presupposes that all elected Dems secretly share very liberal very partisan values and don’t act on them out of fear, but there is no evidence this is the case. In fact it’s extremely unlikely that a party like the Democrats who represent a coalition comprised of every non-insane-right political view in the country are going to be very disciplined compared to Republicans. I would argue it’s impressive how unified and liberal-oriented the Dems have been in the past few years, especially compared to historical precedent.

    • Chester Allman says:

      Agree entirely. “Spine” has nothing to do with anything. Even referring to “the Democrats” as if they were a single entity with any particular orientation or purpose is pretty much missing the point.

      We should be focusing much less on who has what kind of “spine,” and much more on the dynamics of coalition politics.

    • djw says:

      Right, it’s a brokerage party with substantial ideological diversity. Perhaps there’s a way for leadership or a bloc of voters on the left to change that fact (without shrinking the party too much), but if D2 and Farrell have any ideas on that front they’re certainly keeping the details under wraps.

      • Scott Lemieux says:

        You don’t understand — if Romney wins it will be easy to get liberal Senators elected in Nebraska and Missouri and North Dakota. I mean the horrible stuff Romney does will generate ineffectual protest! There might even be an uncle Sam on stilts! It’s the same strategy that turned Ben Nelson into one of the great fighting progressives in history — if only Barack Obama hadn’t forced him to be a greasy conservative hack.

    • commie atheist says:

      Yes, exactly. We have Democratic Senators from very conservative states who are indistinguishable from Republicans c. 2001. Take a country that is probably fairly evenly split ideologically, and add a political system that gives thinly-populated states disproportionate power, and you end up with a Senate that is right-of center, pretty much permanently.

  14. Steve LaBonne says:

    Daniel is just trolling. It’s one of his favorite activities and he’s good at it.

    God knows I’m unenthusiastic about Obama (and I’ve crossed swords with more than one regular around here about that) but Christ, the arguments offered against voting for him would insult the intelligence of a toddler.

  15. Matt says:

    Ultimately, this comes down to one simple thing: it’s not possible to disrupt the plans of people whose only goal is the non-functioning (preferably non-existence) of government by rendering the government non-functional.

    Until GOP primaries stop being a job interview where the winner is the guy who refuses to do the job the most, and who promises to be the most incompetent at anything he *does* happen to accidentally do, we’ll continue to have this problem.

    • Barry says:

      “Ultimately, this comes down to one simple thing: it’s not possible to disrupt the plans of people whose only goal is the non-functioning (preferably non-existence) of government by rendering the government non-functional.”

      The trick is that the parts they want to keep functional are those which most directly serve the interests of the elites. Those are the ones which are easiest to keep running, even amidst chaos.

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