The Twisted History Of An “Original” Concept

Guest Blogger

Where We are in Political Time - Biden's Reconstructive Strategy

JB

In yesterday's post on where we are in political time, I explained that we are currently in an interregnum following the collapse of the Reagan regime with two different candidates for reconstructive leadership, one by Trump, and the other by Biden and the Democrats. In the last post, I discussed the Trumpist alternative. In this post, I'll discuss Biden's approach to the interregnum.

Joe Biden's strategy for forming a new regime has been the opposite of Trump's Where Trump presents himself as a revolutionary, Biden presents himself as the apostle of sane, stable government, as the protector of democracy, and as the restorer of a sense of political unity and common purpose. Is it possible to become a reconstructive leader when what you promise is a return to normalcy and you are not at the head of a rising social movement? That does not exactly fit past examples of reconstructive leadership, but only time will tell. Reconstructive leaders from Jefferson onward have tried to present themselves as unifiers, even if their actual policies were revolutionary and partisan.

States of Denial

Guest Blogger

Where We are in Political Time - The Post- Reagan Interregnum and Trump's Revolutionary Politics

JB

My 2020 book, The Cycles of Constitutional Time, was finished in late 2019 and I made minor adjustments in 2020, just as the pandemic was starting but before the 2020 election and the January 6th, 2021 coup attempt. It's only three and a half years ago but it seems like ages.

In Cycles I argued that the Reagan regime was ending and that a new regime would form in the next five to ten years, probably one with the Democrats as the dominant party, although there was a chance that Trump would form a new Republican regime organized around White Christian nationalism. What do things look like today?

Christian Fritz on The Continuing Mysteries (and Challenges) of Constitutional Politics in a Federal System

Sandy Levinson

For the Balkinization symposium on Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023). 

Balkinization Symposium on Christian Fritz, Monitoring American Federalism

JB

This week at Balkinization we are hosting a symposium on Christian Fritz's new book, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023).

We have assembled a terrific group of commentators, including Jessica Bulman-Pozen (Columbia), Mark Graber (Maryland), Alison LaCroix (Chicago), Sandy Levinson (Texas), Grace Mallon (Oxford), Edward Purcell (New York Law School), and David Schwartz (Wisconsin).

At the conclusion, Chris will respond to the commentators.

The House Freedom Caucus is Revolting

David Super

     I could not resist.

     Last week, eleven House Members aligned with the House Freedom Caucus voted down the “rule” allowing debate on several hyper-partisan Republican message bills.  Because all Democrats also opposed the rule – a resolution limiting time and amendments in a debate – the rule failed.  The Republican rebels told the leadership they would block any other rule sent to the floor, and the House largely shut down. 

     Speaker Kevin McCarthy worked through the week to try to win back the dissidents, to no avail.  He and House Majority Leader Steve Scalise then traded blame in the news media.  That is not altogether surprising as Rep. Scalise has spent the year watching Rep. McCarthy like a cat eying the failing door to a canary’s cage.  Eventually, the leadership sent Members home with no prospect of being able to hold votes. 

     Last night, the Freedom Caucus rebels agreed to support a rule to allow a few select bills to move forward.  No doubt they were moved by the importance of these measures:  to prohibit the government from outlawing gas stoves (which it has no plans to do), to completely break administrative law (not being satisfied with the efforts of the Supreme Court and agency sclerosis in that regard), and to prevent federal agencies from outlawing gun braces favored by mass shooters.  The rebels indicated that this was a one-off agreement and they would continue to prevent the leadership from bringing most legislation to the floor until they perceived a return to the power-sharing agreement they believe they negotiated in January in exchange for making Rep. McCarthy speaker. 

     The immediate effect of this rebellion is real but hardly cosmic.  None of the bills they blocked has any chance of passing becoming law, even in modified form.  Because bipartisan compromise has become hypertoxic in the GOP, most of the House’s “work” consists of labor-intensive publicity stunts, never designed to change this nation’s laws.  Even bills that are real, such as appropriations bills, do not need to pass for several months.  House and Senate appropriators have often worked out de facto conference agreements on bills that had passed neither chamber. 

     And the House still has several ways to pass legislation.  Legislation with substantial bipartisan support can be brought up under a motion to suspend the rules.  Suspension requires a 2/3 majority, but that does not require any Freedom Caucus votes.  The Republican leadership also could negotiate with Democrats on rules to bring legislation to the floor.  By tradition, the majority party refuses to negotiate with the minority about the terms of a rule and the minority party unanimously votes against that rule.  Nothing in the structure of House procedure, however, entrenches that tradition.  Democrats will not agree to rules to bring up absurd Republican messaging bills, but they would on significantly bipartisan bills and they might even on some bills with wholly Republican support if given a fair chance to offer amendments.  If this episode opens the door to the kind of negotiated procedural agreements that are common in the Senate, it will make the House a much better place.

     Nonetheless, this is enough of a thorn in the leadership’s side that this impasse surely will not last.  The Freedom Caucus Members’ anger springs in part from their dissatisfaction with the debt limit deal Speaker McCarthy negotiated with President Biden.  They are demanding that the House unilaterally reduce discretionary spending far below the agreed-upon levels.  And on Monday, House Appropriations Chair Kay Granger promised to do just that.  The White House howled that this violates the Biden-McCarthy agreement. 

     It is difficult to predict where appropriations will end up.  This obviously illustrates the pitfalls of bitter opponents reaching an agreement that they know from the start will be represented very differently by both sides.  Speaker McCarthy did this with the Freedom Caucus in January and again with President Biden last month.  I suspect he is busily trying to do it a third time with the Freedom Caucus now. 

     The levels Rep. Granger is proposing could force Members to vote for painful cuts that interest groups and donors may dislike.  If they believe that those cuts will not survive negotiations with the Senate and the White House, they may resist “walking the plank for nothing.”  On the other hand, Rep. Granger may be able to take most of the cuts out of environmental, anti-poverty, civil rights, and other activities largely undefended by Republican-aligned interest groups.  

     Freedom Caucus Members may be satisfied with voting for austere appropriations bills in the House and accept conference agreements conforming to the Biden-McCarthy agreement, but that would be out of character.  Therefore, a government shutdown seems very possible in October.  Because Democrats agreed to an automatic, year-round continuing resolution with one-percent nominal (about five percent real) across-the-board cuts if full appropriations bills are not agreed by January 1, they may be reluctant to pass stop-gap extensions postponing the shutdown deeper into the fall.  On the other hand, the prospect of a five-percent real cut in defense spending may bring Republicans with bases or defense factories in their districts to the bargaining table. 

     Papering over unresolved differences through his phantom agreement with Speaker McCarthy did allow President Biden to avoid a national default.  A partial government shutdown will be far less damaging to the nation and hence a better venue for this fight.  On the other hand, using technical means or the Fourteenth Amendment to smite the debt limit dragon once and for all would have accomplished the same thing – and would have avoided the other substantive and rhetorical concessions be made in that deal.   

     More broadly, the Freedom Caucus revolt is taking us incrementally closer to a de facto multi-party system.  Speaker McCarthy lacks a loyal majority and will need the support of either the Freedom Caucus or the Democrats to pass anything.  Overwhelmingly he will choose to negotiate with the Freedom Caucus because many of his loyalists are vulnerable to primaries should they vote with Democrats and because significant Republican support is needed in the Senate for anything to become law.  But the more the Freedom Caucus begins to act like an independent party, and the more it changes House rules and customs to accommodate its desire to exercise an independent check on Speaker McCarthy, the more other factions may be inclined to do the same in the future.  As someone who believes our nation’s political differences are now too broad to be accommodated within two parties – and someone who believes most Republicans will not denounce right-wing demagogues without a safe political home in another party – I regard that as good news. 

     One immediate lesson I hope progressives will take from the Freedom Caucus’s revolt is that it is both wrong and dangerous to assume that the far right is foolish.  Some Freedom Caucus Members certainly are (although some Democrats are not the brightest bulbs in the chandelier, either).  But overall, the Freedom Caucus Members have shown impressive strategic judgment.  Perhaps most importantly, while some of its Members were blocking Speaker McCarthy’s accession in January and bringing the House to a halt last week, others with just as extreme views – such as Reps. Jim Jordan and Marjorie Taylor Greene – have been gaining influence within the leadership by steadfastly defending the Speaker.  If we end up seeing social programs and general government cut much more than President Biden claimed his deal allowed, I hope some progressives will ask themselves if they really are so much smarter than Reps. Andy Biggs and Marjorie Taylor Greene.  The far right’s effective inside-outside game demands a much more strategic response than posting videos in which this or that conservative is inarticulate or gets “taken down” by some progressive. 

     @DavidASuper1

Balkinization Symposium on David Schleicher', In a Bad State: Responding to State and Local Budget Crises - Collected Posts

JB

Here are the collected posts for our Balkinization symposium on David Schleicher's new book, In a Bad State: Responding to State and Local Budget Crises (Oxford University Press, 2023).

1. Jack Balkin, Introduction to the Symposium

2. Vince Buccola, Historical Empiricism and the Schleicher Trilemma

3. Noah Kazis, David Schleicher’s Trilemma Trilemma

4. Daniel B. Rodriguez, State Constitutions as Fiscal Fulcrum

5. Clayton P. Gillette, Can Courts Resolve the Trilemma?

6. Christopher J. Tyson, Response to In a Bad State

7. Sheila R. Foster, Planning for Fiscal Resiliency in a Fragmented World

8. Amy Monahan, Pension Underfunding is Just a Form of Debt

9. Miriam Seifter, The Future of State Politics: How Can We Get to a Good State?

10. Rick Hills, David Schleicher’s Lessons for Modern China

11, David Schleicher, Leaving Us In a Good State: Responses to and Appreciation for Comments on In a Bad State: Responding to State and Local Budget Crises

Honoring John Bingham

Gerard N. Magliocca

As I mentioned last week, I was in Cadiz, OH for John Bingham's first national honor. The local Post Office was renamed for him. Here is a news story on the event. 

A Confession of Error

Richard Primus

In 2018, in a law-review article titled "The Essential Characteristic:" Enumerated Powers and the Bank of the United States, I wrote that in Congress's 1791 debate over creating the Bank, New Jersey Representative Elias Boudinot read the Constitution's Preamble as a grant of powers, such that Congress was authorized to charter the Bank if doing so would advance the ends of government mentioned in the Preamble, even if nothing in the Constitution's subsequent Articles specifically authorized it to do so.  (See 117 Michigan Law Review 415, 463.)  This week I am re-reading the relevant original sources, and I have concluded that I misread Boudinot's argument.  I now think that he did not make the argument about the Preamble that I attributed to him in 2018.

I still believe that the more general argument I was making in my 2018 article is correct.  That argument was that several members of Congress argued that Congress's power to charter the Bank did not depend on any specific enumerated power--that is, that Congress could at least sometimes legislate on bases other than that of textually specified grants of power, and that chartering the Bank was one of those times.  That argument did not rest on my claim about Boudinot's reading of the Preamble alone, and it remains the case that members of Congress did make non-enumerated-power arguments for the Bank, including arguments from the Preamble.  But I should not have included this argument that I attributed to Boudinot among the evidence.  That was error.  

Leaving Us In a Good State: Responses to and Appreciation for Comments on In a Bad State: Responding to State and Local Budget Crises

Guest Blogger

First, I’d just like to thank everyone involved in this symposium.  Writing a book is a solitary experience, and it is just wonderful to have so many people I admire commenting on my work.  Special thanks to my wonderful colleague Jack Balkin for organizing it.  This blog is a wonder – I’ve been a fan for as long as it has existed -- and it’s an honor to get to have its pages devoted to comments on my book. 

Second, before I go through some specific responses, I want to note how excellent the responses are.  When writing the In a Bad State: Responding to State and Local Budget Crises, I had to make a number of choices about how to explain the ideas, what to include and what to exclude -- a book like this, which is on the shorter side for an academic work, has to make some pretty hard choices.  Further, the argument relies on some assumptions that I thought were reasonable but were certainly assumptions.   And then there are assumptions and choices that I didn’t quite realize I was making, but when pointed out and challenged, are clearly there. 

One of the great things about these responses is that they – to a post – find the soft spots in the argument, as well as (much too kindly!) noting the achievements of the book.  I hope that they are read alongside the book, a guide to understanding both how the book succeeds and its limitations.  I’ll respond to each in turn, but mostly just to appreciate how smart and well-done they all are.

On to the meat….

The Second Indictment of Donald Trump

Gerard N. Magliocca

After the first indictment of Donald Trump, I said that the decision in New York would make a second indictment more likely. Now we are about to see that prediction come true. The second indictment, of course, makes a third indictment (in Georgia) more likely.

Though neither the New York nor the federal indictment relate to January 6th, I think they will make people take a harder look at the argument that Trump is ineligible to serve in office again under Section Three of the Fourteenth Amendment. The exercise of discretion by election officials (most notably, state Secretaries of State) is informed by the legal zeitgeist. These criminal cases are not just noise.      

David Schleicher’s Lessons for Modern China

Guest Blogger

The Future of State Politics: How Can We Get to a Good State?

Guest Blogger

John Bingham Event in Ohio

Gerard N. Magliocca

On Friday, I will be in Cadiz for the official renaming of the town Post Office for John Bingham. This is the first national honor for Bingham. I will speak at the ceremony along with Representative Bill Johnson (R-OH) and Richard Aynes, the former Dean of the University of Akron Law School. I hope to share some pictures from the event next week.

Pension Underfunding is Just a Form of Debt

Guest Blogger

For the Balkinization symposium on David Schleicher, In a Bad State: Responding to State and Local Budget Crises (Oxford University Press, 2023).

Amy Monahan

State and local finance has an enormous impact on the lives of nearly all Americans, yet is too often ignored in favor of splashier or more digestible areas of public life. I was therefore delighted to see David Schleicher’s new book, In a Bad State: Responding to State and Local Budget Crises, take a sustained look at both the complex world of state and local finance, and how federal actors might think through whether and how to respond to state and local fiscal crises.

I will begin with a few disclaimers. First, there were so many interesting issues raised by this book that I had a difficult time limiting myself to a length appropriate for this online symposium. I have therefore chosen to highlight just one of many potential discussion points, which I hope will be of broad interest to readers. Second (and maybe in contradiction to my first disclaimer regarding broad interest), I am going to focus my comments on In a Bad State’s treatment of distressed state and local employee pension plans (referred to as “public pensions” for the sake of simplicity).

Budget Deal as Rorschach Test

David Super

     A month or so ago, I expressed skepticism that Speaker McCarthy had the authority to reach a budget deal that could get the Democratic votes necessary to pass.  Obviously, I was wrong.  Accordingly, I am doing what any serious academic does when events prove them wrong:  I am writing a long-form scholarly article explaining why I was actually correct after all.  (I say that only half-kidding.) 

     In the meantime, however, it seems useful to consider what factors allowed the deal to surmount the obstacles that polarization posed.  This analysis draws little from the “inside accounts” in the popular media that are almost entirely spin:  almost no disinterested parties are present in these discussions so what they tell the media is instructive only as to what they want the public to think about their side’s role in the process.  So, for example, Republican accounts emphasize White House staff’s role to further their narrative about President Biden’s incompetence; Democratic stories try to make this process sound as different as possible from the negotiation in 2011 – when Speaker John Boehner bullied and manipulated President Obama and his vice president – to fend off criticism that they learned little and repeated unpleasant history.

     The biggest surprise to me was Speaker McCarthy’s willingness to make himself dependent on Democratic votes – and most House Republicans’ willingness to allow that.  The rule that House Freedom Caucus negotiated in exchange for allowing Rep. McCarthy to become speaker allow a single Member to move to declare the speaker’s chair vacant.  If Democrats were to follow ordinary practice and vote against the Speaker, the Freedom Caucus’s votes would be more than enough to carry the motion to victory even if the vast majority of House Republicans stayed loyal.  One might expect Democrats would be pleased to vacate the speaker’s chair:  with no obvious replacement, House Republicans could become locked in another divisive and embarrassing public fight, supporting Democrats’ narrative that House Republicans are beholden to extremists. 

     The reason no Freedom Caucus Member has filed such a motion is clearly that they understand that Democrats have Speaker McCarthy’s back.  If forty or so Democrats abstain, the same Republican Members that backed him throughout the votes in January would be enough to preserve his gavel.  A Republican official depending on Democratic votes would ordinarily be disqualifying, but apparently the majority of their Members have wearied of the Freedom Caucus enough to accept it.  Rep. Thomas Massie, a right-wing Member added to the House Rules Committee at the Freedom Caucus’s insistence, recognized how embarrassing this situation is for the Speaker and voted to bring the deal to the floor so that the Speaker would not need Democratic votes in Committee.  But everyone knew Democrats would help if needed. 

     This does not mean that Speaker McCarthy is now a coalition speaker or that he will not zealously advocate for many extreme Freedom Caucus positions.  But it does mean that on issues where many of his Members agree with Democrats, such as aid to Ukraine, he has some latitude to bypass the Freedom Caucus.  Even without the Freedom Caucus, however, several election cycles of primaries and forced retirements have yielded a quite extreme set of House Republicans so little true moderation is likely. 

     Also surprising about the final budget deal was how effectively leaders on both sides managed to induce and manipulate wishful thinking by their Members.  On issue after issue, each leader managed to find just the right kind of complexity or ambiguity to allow Members to see what they wanted to see.

     For example, the deal has six years of spending caps that will force huge real cuts in what the federal                        government is able to do domestically.  Two of those caps are backed with the threat of sequestration; the other four are not.  Speaker McCarthy accordingly claimed that he had won six years of caps and calculated huge savings numbers.  Because his Members were seeking big numbers and had not bothered to identify particular policies to achieve those numbers, this went over well.  President Biden, on the other hand, played to the legalism of many Democrats by claiming that the final four years’ caps were “non-binding”, suggesting that he had outmaneuvered the Speaker. 

     In practice, because appropriations levels always require bipartisan agreement no matter who controls Congress or the White House, Republicans can, and presumably will, insist that Democrats agreed to these out-year caps and reject any appropriations bills that exceed them.  But Democrats like to think of Republicans as stupid so the outmaneuvering narrative stuck.

     Similarly, Speaker McCarthy won imposition of a three-month time limit on food assistance to unemployed and underemployed 50- to 54-year-old childless adults – what Republicans call “work requirements” even though they offer no chance to work for assistance.  The White House, again playing on Democrats’ conceit that they are more sophisticated than Republicans, included three exemptions that it claimed would actually increase the number of people eligible for food assistance.  This claim is incorrect for several reasons, most obviously that states are terrible at recognizing and applying those exemptions.  The largest group the White House claimed to have protected was the homeless, yet USDA issued guidance several years ago advising states that homeless people already were generally exempt.  States face audit penalties for providing food assistance to people who should be disqualified, they face no sanctions for denying food to people who should be exempt. 

     Finally, I was surprised at the willingness of Members of both parties to trust their leaders on the contents of side agreements not included in the legislation on which they were voting.  The explicit cut to IRS funding appears fairly moderate, but Speaker McCarthy claimed to have a side agreement for much deeper cuts that would hobble the agency’s ability to audit affluent tax cheats.  This question could potentially have a huge impact on the deficit as well as on the morale – and propensity to pay – of non-affluent taxpayers.  Similarly, the two sides appear to be contradicting one another on how much the appropriations caps in the first two years will be softened by side deals on “adjustments”.  On these issues and others, the vast majority of Members of both parties were content to tout their leader’s story despite clear evidence that the other side believed something very different.  For all both sides’ mutual distrust and demands for transparency, opacity won the day. 

     A side note is that nobody should put any real weight on how either representatives or senators voted.  Speaker McCarthy promised 150 Republican votes.  He missed that level slightly, but even if he had missed by a great deal the Democrats would have supplied whatever was needed (including some who took advantage of the solid majority for passage to vote “no”).  In the Senate, the Democrats’ majority made them responsible for corralling most of the needed votes.  Minority Leader McConnell was responsible for supplying only enough Republican votes to invoke cloture, plus a few more to cover for dissents from a few Democrats (who likely would have voted “yes” if Senator McConnell had stumbled). 

     Perhaps most interesting was the failure of Sens. Mike Lee or Rand Paul to filibuster:  Leaders Schumer and McConnell had the votes to end debate, but doing so would have taken several days, possibly preventing final passage before the June 5 deadline Secretary Yellen had announced.  They likely concluded that no viable vehicle existed for locking in additional concessions from Democrats so they would reap little reward from keeping their colleagues in Washington through the weekend.

     Finally, after months of complaining that the debt limit’s validity under the Fourteenth Amendment should be tested in court before he asserted it – not a terribly realistic expectation – President Biden threw away a perfect opportunity to obtain that ruling.  He had more than enough time for Treasury to auction off a token amount of bonds in excess of the debt limit, enabling a legal challenge, and then to sign the legislation and hold a regular Treasury auction to meet the government’s on-going expenses.  On each individual occasion, it may seem more beneficial to pay protection money than to rid oneself of extortionists, but the cumulative long-term effects are devastating. 

     @DavidASuper1