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Could Democrats Render President Romney Powerless If They Wanted To?

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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.

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