#Resistance and the Crisis of Authority in American Politics

When Leandra English, former chief of staff to the former director of the Consumer Financial Protection Bureau, asked a federal judge to block President Trump’s appointment of Mick Mulvaney to replace her departing boss Richard Cordray, and to install her as the CFPB’s rightful leader, Judge Timothy J. Kelly of the Federal District Court in Washington, D.C., denied her request. Yet English’s legal team, rejecting the idea that President Trump held the directorship in his hands pursuant to the Federal Vacancies Reform Act of 1988 and Article II of the Constitution, has since vowed to continue its resistance to the President’s action.

Regardless of what happens next in the CFPB matter, this episode illuminated a crisis of authority pervasive in American politics today. The dysfunction it laid bare tells us that we have forgotten what authority means and are thus no longer capable of identifying where it resides in our political system. The result is a post-political order that delegitimizes conflict and undermines the institutions on which we depend to resolve disagreement and forge compromise in a pluralistic society.

A long-overlooked Senate committee could save the Republican agenda

Even with last week’s progress on tax reform, 2017 has not been a great year for Republicans in Congress.

Back in January, they had reason to expect things to turn out differently. After all, the GOP controlled Congress and the presidency for the first time in more than a decade. It was Republicans’ best opportunity to enact their legislative agenda since 2005.

But despite the 11 months that have transpired between then and now, they have yet to capitalize on that opportunity. Republicans’ failure to deliver on longstanding commitments, like repealing Obamacare and reducing government spending, has exposed deep divisions within the party over important policy areas. Even the Republicans’ effort to reform the tax code has proven to be harder than many initially expected.

Age-old Senate rules might kill tax reform

This week’s rush by Republicans to pass tax reform reveals the limits of majority rule in the Senate.

Early in the year, Republicans decided to use the special budget process known as reconciliation to pass their tax bill in anticipation of Democratic obstruction. They did so because reconciliation bills cannot be filibustered. The support of a simple majority of senators is all that’s needed to overcome any effort to delay an up-or-down vote on final passage.

This feature of the reconciliation process is the most well-known, given the tendency common today to view Senate dysfunction solely through the lens of minority obstruction. From this perspective, reconciliation offers the majority party a way to pass its agenda over the objections of the minority party.

But this is a simplistic view of the legislative dynamics inherent in reconciliation. It overlooks other features of the process that complicate the majority’s efforts to pass tax reform and exacerbate the Senate’s underlying problems.

Putting individual mandate repeal in the tax reform bill only complicates the GOP's efforts

Senate Republicans have decided to repeal Obamacare’s individual mandate as part of their effort to reform the tax code. And they may have made their job harder in doing so.

According to the Congressional Budget Office, repealing the mandate would save approximately $338 billion over 10 years. Republicans want to use those savings to help offset the cost of lowering taxes in their reform effort. And they believe that the benefits of doing so outweigh any costs associated with injecting healthcare into the debate over tax reform.

But it’s too early to tell if their gambit will work.

The GOP is in a civil war, and Mitch McConnell is making it worse

The Republican Party is in the middle of a civil war. And instead of trying to resolve it, Senate Majority Leader Mitch McConnell, R-Ky., is making it worse.

According to a recent report, the Senate majority leader has decided to escalate his feud with Steve Bannon, the former adviser to President Trump and current Breitbart News executive chairman.

McConnell’s allies cite the decision as evidence of his toughness.

But it illustrates instead the limits of his leadership.

Jeff Flake’s Indictment of American Politics

Dudes and Pharisees. Mugwumps. Those were just some of the names that party regulars called the disaffected Republicans who refused to support James G. Blaine for President in 1884.

That contest, which pitted Blaine against Democrat Grover Cleveland, was one of the nastiest in American history. And it has much to teach us about Senator Jeff Flake’s indictment of American politics today.

Will the Reconciliation Route Work?

Republican efforts to reform the tax code received an important boost with last week’s passage of the annual budget resolution in the House of Representatives. But the GOP should not celebrate just yet. How Republicans overcome the remaining challenges will determine whether they actually cross the finish line.

Confusing GOP rhetoric made it harder for them to 'repeal' or 'reform' Obamacare.

The Republican Party is gearing up for a critical push to reform the tax code. After the spectacular collapse of its seven-year effort to repeal Obamacare this summer, the GOP is in desperate need of a victory.

And according to Republican leaders, that victory is all but assured. Earlier this week, Senate Majority Leader Mitch McConnell, R-Ky., observed, “If there’s anything that unifies Republicans, it’s tax reform.”

But it’s far from clear that’s the case.

Conspicuously absent from such platitudes is any indication of what, exactly, tax reform means.

That’s because it means different things to different people.

And therein lies the problem for Republicans. The vague language they use to communicate with voters implies a level of agreement within the GOP that may not exist.

The Course of the Confirmation Process Isn’t Supposed to Run Smoothly

The debate in Washington over who’s to blame for the slow pace in filling judicial vacancies (or whether the pace is even slow to begin with) reflects an assumption that is shared by both sides: that the Senate should generally defer to the President in the confirmation process.

But that represents a flawed understanding of the Constitution’s Appointments Clause and the separation-of-powers doctrine on which it is based. Senatorial deference, far from facilitating the proper working of the confirmation process, risks undermining the judiciary’s independence as a coequal branch of government by making the Senate less likely to check the President in determining the composition of the federal bench.

What is healthy, and constitutionally legitimate, is competition between the Senate and the President in the confirmation process. Competition makes it more likely that the judges and justices who are ultimately confirmed will discharge their duties in a manner consistent with the Framers’ designs.

Trump can't predict the future of the filibuster

Last week, President Trump called on Senate Republicans to nuke the filibuster, predicting the chamber's Democrats would not hesitate to do so in the future if their roles were reversed.

While Trump's assertion was intended to goad Republicans into action, it is based on speculation and should thus be viewed with skepticism. Just like in the real world, accurately predicting what will happen in some theoretical future Senate isn't that easy.

How Senate Leaders Can Use Existing Rules To End Democrat Stonewalling

Democrats have threatened to filibuster Republican efforts to debate important legislation on the Senate floor. But this is nothing new. The filibuster has been used in the past to frustrate both Democratic and Republican majorities. It has prevented both liberal and conservative policies from passing. This has made it the bane of Senate majorities, their co-partisans in the House of Representatives, and the president.

Consequently, senators have proposed various reforms over the years to clamp down on the minority’s ability to delay the legislative process. Most recently, Sen. James Lankford, R-Okla., called for changing the Senate’s rules to make it easier to start debate on the floor. He would do so by making the motion to proceed to legislation non-debatable (i.e., not subject to a filibuster).

But Lankford’s proposal is unnecessary. The Senate’s current rules already give majorities the power to end needless delays. And using those rules to clamp down on minority obstruction will be of greater benefit to Republicans than eliminating the filibuster, which would have long-term repercussions for the institution more generally.

What the budget process can tell us about the state of the Senate

Congress is running out of time to fund the federal government for the upcoming fiscal year that begins Oct. 1.

In July, the House of Representatives passed four appropriations bills bundled together in a so-called minibus. But senators chose to leave town for their August recess rather than take up that spending package.

And there won’t be much time to do so when they return in September. The Senate is currently scheduled to be in session for only 17 days next month. The House and Senate will be on the job at the same time for only 12 of those days.

That doesn’t leave a lot of time for the Senate to take up and debate the House-passed minibus, much less the other eight appropriation bills that have yet to be considered by the full House or Senate. A short-term continuing resolution to keep the government open while Congress finishes its work appears inevitable.

Senatorial Scrums Make Members into Rubber Stamps

Look behind every major legislative success the U.S. Senate has had in recent years and you will find a small group of senators who negotiated quietly in private. Working under the supervision of party leaders, these groups are tasked by the collective, explicitly or implicitly, with resolving difficult issues, writing legislation, and helping to structure the process by which the Senate considers important bills.

Under reconciliation, it'll be harder than you think to amend the Senate healthcare bill

Changing a reconciliation bill in the Senate is harder than you think. And the reason why has nothing to do with healthcare policy.

While senators are correct to note they have a "virtually unlimited opportunity" to offer amendments to reconciliation bills, the special rules governing that process make it less likely that alternative proposals will receive serious consideration on the floor. Given this, senators should not be quick to assume that beginning debate on the healthcare bill this week will lead to a different outcome if their amendments are not allowed to be debated openly and do not receive up-or-down votes on the merits. Ensuring this requires senators to know exactly what it is that they are amending.

Mitch McConnell delays the Senate's August recess, but showing up is only half the battle

Senate Republicans should be applauded. They were right to delay the start of their August recess.

Doing so gives them time to jump-start their stalled effort to repeal and replace Obamacare, devise an acceptable way to raise the debt ceiling, and forge a budget agreement to guide Congress's work in the appropriations process for the upcoming fiscal year, which begins on Oct. 1.

But Senate Republicans would be wrong to think that pushing back the start of their summer vacation by two short weeks is all that's needed to overcome the challenges they face. Indeed, it is going to take a lot more than simply showing up for work to pull the Senate out of the rut it is currently in. It's going to take a different approach to lawmaking.

Debt ceiling debate gives Congress opportunity to chart new fiscal course

The federal government creates an inflection point every time it hits the debt ceiling.

The decision to raise it, by how much, and for how long, confronts Congress with a turning point at that moment in the nation's politics. Regardless of one's views about the direction Congress should take today, everyone should agree that the nation's present fiscal course is unsustainable.

The upcoming debt debate gives members of Congress, and the people they represent, an opportunity to consider their options and to chart a new course. As part of that debate, members in the House and Senate should leverage the debt ceiling to enact much-needed policy and process reforms.

Not surprisingly, this is easier said than done.