November 22 2013
The Biggest Loser: The Constitution
One of the reasons for the ObamaCare debacle is that the Democrats rammed it through Congress with brute force and a slim majority that included not a single Republican vote.
This required novel legislative maneuvers and made the minority party helpless. The upshot was a health policy that the minority party cannot embrace. The consequent upheaval is astonishing even by the standards of contemporary Washington.
You’d think that the Democrats might have learned a lesson about the uses of power in the light of the crisis that followed the lopsided passage of ObamaCare. But, apparently, they learned the wrong lesson. That was evident yesterday.
On Thursday, Senator Harry Reid and his Democrats exercised the “nuclear option,” which eliminates the filibuster on judicial nominations.
Even some reliably liberal commentators don’t think the Senate did the right thing. Ruth Marcus of the Washington Post called the move “a mistake” but of course she blamed the Republicans for pushing the poor Democrats into this course of action.
Meanwhile, Dana Milbank of the Washington Post called the elimination of the filibuster a “naked power grab” on the part of Democrats:
If Congress wasn’t broken before, it certainly is now. What Reid (Nev.) and his fellow Democrats effectively did was take the chamber of Congress that still functioned at a modest level and turn it into a clone of the other chamber, which functions not at all. They turned the Senate into the House.
Alex Rogers echoes Milbank's contention:
The move also signals a major shift in the Senate, as it becomes nastier and more effective, like the majority-driven House.
The House is actually the more functional chamber of the Congress. It has passed budgets and other good legislation that is caught in limbo because of Senator Reid’s management of the Senate. Nevertheless, the Senate was designed to function in a different manner from the House. It was supposed to offer a cooling off process from the hotter deliberations of the House. Reid has abused that power, making the Senate the graveyard of budgets (and other pieces of legislation).
But there are two other reasons that elimination of the filibuster was a sad day for the U.S. One is that President Obama now has an opportunity to pack the federal bench, and the other is that today we are farther away from our Constitution that we were on Wednesday. The Democrats may have a short-term gain, but the GOP will turn the tables if they gain control of the Senate. Constitutional lawyer John Yoo writes that it is the Constitution that lost big:
The biggest loser, however, will not be Democrats or Republicans, but the American constitutional system. Like several other parts of the Obama administration’s political program, the filibuster’s end sacrifices unique constitutional and political features of the American government for short-term political gain.
Worried about minority rights, the Framers designed a Constitution that imposed a difficult, hazardous path before any government action could be taken. Legislation had to be able to run the gauntlet of the popular House, the state-chosen Senate, and the nationally elected president, before braving federalism’s limited enumeration on federal powers. “Hence a double security arises to the rights of the people,” James Madison explained in Federalist 51. “The different governments will control each other, at the same time that each will be controlled by itself.”
Under the Framers’ design, domestic action could flow only from high levels of political consensus built upon long and careful deliberation. It forced the political parties to compromise — if President Bush had truly wanted [Miguel] Estrada on the courts, he should have traded political favors with Senate Democrats. Though ever frustrating to those who demand immediate reform or unchecked majority rule, the filibuster rule bolstered these unique features of the American Constitution. They imparted a stability to government and a resistance to sudden impulses that spared the United States the trials and tribulations of Europe, where parliamentary government has often led to wild swings of policy. As political sociologist Louis Hartz observed long ago, there is a reason why the United States never suffered the evils of socialism or Communism.
When you want to transform the country, as is President Obama’s stated goal, you probably don’t lament the abolition of Constitutional niceties. No surprise, President Obama, who was adamantly opposed to the nuclear option when the GOP toyed with the idea, enthusiastically endorsed the Senate's rules change yesterday.
Veronique de Rugy writes on this turnabout:
It is worth noting that while the Republicans were making the case in 2005 for the legality of changing the rules, they refrained in the end. Now the question is: What will they do when they are back in power?
Will they reverse the change or will they use it to their advantage? I am afraid they won’t reverse the change and may even extend it to other areas if it benefits them at the time. Politicians tend to be short-sighted.
Nope, the GOP probably won’t re-establish the filibuster on judicial nominations. So we are farther away from the Framers, who created a system of government that kept the rash impulses of elected officials in check for more than two centuries.
Fasten your seatbelts.