Senate could make a comeback, depends on Democrats and GOP independence

 

Senate could make a comeback

Depends on Democrats and GOP independence

 

Gordon L. Weil

The U.S. Senate is in trouble. 

It is so evenly divided that it gets little done.  And its role as the deliberative institution of the government, moderating the supposedly short-term moves by the House, has been taken over by the Supreme Court.  Laws enacted by Congress, approved by the president and in effect for extended periods are being overturned by Court majorities.  It also reverses its own precedents.

If the Democrats gain Senate control, they could focus on whether to consent to President Trump’s judicial and executive appointments.  No Supreme Court vacancies now exist, but the age of the two most senior justices might make their retirements possible. 

If a Court vacancy should occur, the Democrats could follow the GOP precedents.  It refused even to review an Obama nominee almost 8 months before a presidential election.  That nominee was a moderate, thought possibly to gain bipartisan approval.  (Later, the GOP Senate approved a Trump nominee just a month before an election.)  

Other Trump nominations to the federal bench or executive agencies could face outright rejection.  And any Trump legislation would be threatened by the filibuster, if he were unable to find the needed 60 senators to allow a vote.

Democrats could pass spending bills by a simple majority, using the well-worn reconciliation mechanism that has allowed the GOP to pass budget bills while avoiding the filibuster.   Trump’s potential use of the veto could place Republican senators in the difficult position of voting against popular bills in favor of supporting their president.

Trump, who does not want to concede the outcome before the election, has wavered between declaring that he will reject Democratic bills and acknowledging the possibility of at least some compromise.  To get a bill that he could claim as part of his legacy, he might be willing to give some ground.

To get started, he would need to talk with Democratic congressional leaders instead of talking about them.  He should drop calling them “Dumocrats” and speaking of the “Democrat Party.”   The first step toward compromise would come from treating the Democrats with minimal respect and backing off campaign-style claims they are Socialists or Communists.

If the Democrats control both the House, which is likely, and the Senate, which is possible, they will have leverage in dealing with Trump.  The House could seek to impeach him leading to a trial by the Senate.  Under the Democrats, this trial could be a full-scale proceeding, even if there were no chance of convicting him.

Democrats could have a powerful way of putting pressure on him to negotiate.  Good faith talks between the two sides induce them to hold off on any meaningful impeachment effort.  Trump’s presidency is mostly about himself, so that could be a result greatly desired by him.

Even if the Senate comes under Democratic control, much will depend on just who the Democrats are.  While there will be both moderates and progressives among them, one side or the other might set the agenda.  Or they might find themselves more focused on their intra-party struggles than on Trump.

The Democratic mix could be critical for the next two years.  If the Party concludes that the message from the voters calls for broad change, progressives may make compromise impossible, leaving the party’s platform to the 2028 primaries.  If moderates control, they may seek to deal with Trump, assuming he’s willing.

Sen. Chuck Schumer, the potential Senate leader, and Rep. Hakeem Jeffries, the presumed new House Speaker, could follow Biden’s pattern and try to return to the post World War II brand of liberal politics.  That would not meet the popular demand for change.  And if the Democrats choose to investigate Trump, ultra-partisan hearings could promote divisiveness.

The GOP senators will also need to regroup.  Instead of worrying about Trump’s retaliation, given his lame duck status and weakened influence, they could stake out their own policies.  And they could join with Democrats on a few key pieces of legislation.

Before the new Congress is seated, Trump may stage an assault on the results, deploying his loyalists to challenge and undermine them.  The conflict between election officials, especially in states where upsets occurred, and Trump could be epic. 

Then, the Senate, with many presidential hopefuls, will immediately be somewhat overshadowed by the start of the 2028 presidential election campaign. 

Despite the clashes and controversies, both parties have an interest in placing limits on the Supreme Court’s ability to displace Congress when it overrules long-standing legislation.  Congress has the constitutional right to define and limit the Court’s jurisdiction, though ultimately a president would have to accept such reform legislation

The Senate should use its new term to start the lengthy process of recovering its role as the Constitution’s deliberative body.  If not, it may become even more irrelevant.

Trump is above the law

Trump is above the law

Enforcement is elusive

 

Gordon L. Weil

He broke international law!  He violated the Constitution!

Angered and frustrated by his actions, some of President Trump’s critics and political opponents utter these words.

So what? 

Nothing changes, largely because Trump firmly believes that he is smarter than his opponents and acts within the sweeping immunity the Supreme Court gave him two years ago.  His 2024 election victory makes him an all-powerful president.    

“Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior.  It is a fundamental aspect of any civilized society, providing the framework within which individuals and entities operate,” says a widely recognized definition.

Trump has said, “I don’t need international law.”  When asked what he would rely upon, he answered, “my own morality, my own mind. It’s the only thing that can stop me.”  Does international law apply?  “It depends on what your [my] definition of international law is.”  

These days, charges fly that Trump violates international law when he threatens Iran, writing, “A whole civilization will die tonight, never to be brought back again.”  It is easy to claim that threat violates international law, but where’s the enforcement?  While international courts exist, the U.S. has not accepted them for most matters.

International law is a collection of formal agreements and widely accepted customs that are meant to “regulate behavior” among nations.  The formal agreements, usually in the form of treaties, obligate the countries that have ratified them.  The customs are determined by their long-term use by a great many nations.

The obvious enforcement mechanism is self-interest.  For example, if a nation does not want foreign vessels within 12 miles of its shores, its boats will not venture that close to the shores of other countries.  Behind that rule is the possibility a coastal state will sink foreign vessels within the limit, an undesirable choice because of its potentially disastrous consequences.

That rule may take the form of a treaty, as it has. The U.S. has not ratified that treaty, but most major countries have.  Not the U.S., which, like China, may ignore it.

In the U.S., a government of laws is replaced by the will of a single person.  The form of government becomes elective authoritarian.

His warnings about leaving NATO become credible.  His threat to erase Iran’s civilization is credible.  Quitting an alliance or exercising coercion, both banned by treaties ratified by the U.S., is not lawful, but he believes he can do it.

If he pursues this belief, the international order fails, at least as far as the U.S. is concerned.  Allies will not support the U.S.  Ultimately, other countries could undertake economic retaliation and refuse to enter other agreements with the U.S.  He provides an incentive for other countries to use the system for their own relations, eventually isolating the U.S.

Trump believes that the U.S., with the foremost military and largest economy, can dictate its terms to the world.  But new trade agreements being reached among other countries and refusals by historic allies to fully back the U.S. in Iran are signs American power is weakening.

Ratified treaties are part of American law that should not be violated, as are the laws enacted by Congress. Yet Trump has often overridden “the supreme law of the land” without suffering any consequences in the U.S.  He can ignore the law in favor of his own “morality,” because his compliant party controls Congress and like-thinkers sit in the Supreme Court majority.

In the absence of court disapproval and congressional independence, he faces only two formal enforcement tools against unlimited power.

Two-thirds of both houses can suspend the president upon the recommendation of the vice president and a cabinet majority. Two-thirds of the Senate can remove the president from office after impeachment by a House majority.  These are drastic and disruptive procedures, unlikely to be used.  Still, Trump fears a third impeachment, which is possible. 

A congressional majority that will exercise control over presidential actions would reflect a national popular sentiment that Trump’s discretion must be limited.  Yet it is extremely unlikely that enough new senators would be elected to provide the two-thirds needed to overcome a presidential veto. 

But either house could reject presidential proposals, including for spending on military operations.  And an opposition majority could deal with the president, approving presidential initiatives in return for concessions or modifications.  This is governing through compromise, just what voters supposedly prefer and as the Framers of the Constitution intended.

In the final analysis, unchecked presidential power has become likely and easy.  Enforcement of the law to force presidential compliance is complex and difficult.  The problem is not about policy, but about process.  The solution comes in electing presidents willing and wise enough to submit to the constitutional process.