How will the balance of power be in the U.S. federal government as a result of this year's recent midterm elections?
The U.S. Senate
The Midterm Election Results
As a result of today's election, in January of 2019, there will be 53 Republicans and 47 senators who caucus with the Democrats in the U.S. Senate. In the event of a tie vote, Republican Vice President Mike Pence, would vote with the Republicans, so Democrats need to win over 4 out of the 53 Republicans to secure a majority vote on anything. This represents a net loss of two Democratic party held U.S. Senate seats. To a great extent, this setback was a naturally expected consequence of the fact that more red states had Senate elections scheduled for the midterm elections in 2018 than blue states.
The closest U.S. Senate race this year was the U.S. Senate race in Florida, which incumbent Senator Bill Nelson (one of the most conservative Democrats in the U.S. Senate, first elected in the year 2000) lost by a fraction of a percentage point in the face of significant voter suppression by the Republican Secretary of State, significant election administration irregularities, and the largest proportion of voters in the nation disqualified from voting due to prior felony convictions (about 1.4 million voters, who are disproportionately black).
The Lame Duck Session
This result removes pressure on Republicans to ratify Presidential nominations before the next session of Congress, since they will have a stronger majority then than they have now.
Unless the Senate exercise the "nuclear option" to eliminate the filibuster for ordinary legislation during the lame duck session, to take advantage of the brief period when Republicans control the House, the Senate and the Presidency before the representatives elected in November take office, it will not be able to pass any new legislation in the lame duck session without bipartisan support. Legislative filibuster reform will provide Republicans with little practical advantage, however, once Democrats control the House in January of 2019.
The 2020 Elections
A third of U.S. Senators face voters in 2020.
Senate races can't be gerrymandered, but the U.S. Senate has a built in red state advantage, so Democrats need significantly more than a majority of the national popular vote in U.S. Senate elections to win a majority of seats in the U.S. Senate.
The End Of The Filibuster
Also, it has become much more important to have a majority in the U.S. Senate over the last four years, as the filibuster, which used to require the de facto approval of 60 Senators to approve almost any legislation was eliminated for votes on Presidential nominations. And, the precedent, invoked once by each party now, of the mechanism by which it was eliminated in those cases, means that the filibuster could be eliminated in any other circumstances by any future majority determined enough to do so. Prior to this reform in the Senate rules, it was almost impossible to pass any legislation or nominations in the Senate without bipartisan support except in the rare years where one party had a 60 seat plus majority in the Senate, providing a significant check on the ability of either party to take any actions without bipartisan support. So, the Senate provides much less of a check on the majority party which also holds the Presidency than it has for almost all of living memory.
Changes in 2013 and 2017 now require only a simple majority to invoke cloture on nominations, although legislation still requires 60 votes. On November 21, 2013, the Senate used the so-called "nuclear option," voting 52–48 — with all Republicans and three Democrats opposed — to eliminate the use of the filibuster on executive branch nominees and judicial nominees, except to the Supreme Court. On April 6, 2017, the Senate eliminated the sole remaining exception to the 2013 change by invoking the "nuclear option" for Supreme Court nominees. This was done in order to allow a simple majority to confirm Neil Gorsuch to the Supreme Court (after the Republican controlled U.S. Senate refused to hold hearings on or vote upon President Obama's U.S. Supreme Court nominee, despite teh fact that the nomination was made well before the end of the Congressional session and this had never been done before in the history of the Congress). The vote to change the rules was 52 to 48 along party lines. The same rule was later used to confirm Brett Kavanaugh to the Supreme Court.
The Demise Of Moderate Senators
The mere party labels also obscure the fact that the partisan divide between the Republican and the Democratic caucus in the U.S. Senate will be deeper in 2019 than it was in 2017, because many of the most moderate Senators in both parties have been replaced by solidly partisan Democrats or Republicans. Also, there are fewer Democrats in the Senate serving from red states and fewer Republicans serving from blue states.
This trend is likely to continue in 2019, because the most vulnerable incumbent Senators in those races will be incumbent moderates in their respective parties, especially moderate Republicans like Susan Collins of Maine, the sole remaining Republican in either house of Congress from New England, who has taken a more conservative stance in her Senate voting record in the last year.
Other Senate Powers
The Senate has unilateral power to approve Presidential nominees for judgeships and senior executive branch positions in the federal government, mostly without having to worry about filibusters.
The Senate also has the power to approve treaties without U.S. House participation, although this requires a two-thirds majority vote. This means that if the Republicans are united in wanting to ratify a treaty proposed by the President, they need at least 14 out of 47 Senators who caucus with the Democrats to support the treaty for it to be approved. In practice, this means that any new U.S. treaty will require support from the Democratic party.
To try impeachments, although an official impeached by the U.S. House by a majority vote there can only be removed with a two-thirds majority vote of the U.S. Senate. So even if the Democrats are united in wanting to impeach the President or a lower executive branch or judicial branch official, they need 20 out of 53 Republicans to vote to remove that person from office following a Senate trial of the impeachment. In practice, this means that it will take support for the Republican party to remove any federal official from office following a trial on an impeachment made by the House. While this is a quasi-judicial function, in practice, Republicans would block any impeachment of a strong conservative partisan in the absence of overwhelming evidence of wrongdoing inconsistent with that person continuing to hold office. In particular, it makes removing Donald Trump or a conservative U.S. Supreme Court justice from office via impeachment virtually impossible.
Because an override of a Presidential veto takes a two-thirds vote of both the House and the Senate, it takes only 34 of the 53 Republicans in the U.S. Senate to uphold a Presidential veto. So, even if two-thirds of Representatives in the House vote to override a Presidential veto, all 47 Senators who caucus with the Democrats in the Senate are united, and 19 Republicans in the Senate break ranks with the President to attempt to override his veto, the veto will be sustained. In practice, this means that no veto can be overridden without support from both the Republican party and the Democratic party.
It also takes a two-thirds majority of each house of Congress to propose a new constitutional amendment, so this requires support of both Senate Republicans and Senate Democrats. The equal rights amendment, however, which would prohibit discrimination based upon sex as a matter of the express provisions of the U.S. Constitution, is still open for the states to ratify without further Congressional action, and will take effect if three-quarters of states ratify it.
The U.S. House
The Midterm Election Results
In the U.S. House elections this year, Democrats won 234 seats and are leading by a small margin in CA-21, while Republicans won 200 seats. Assuming that Democrats win a total of 235 seats, they will have had a net gain of 40 seats in the House. This is on the high end of expected range of Democratic seat pickups in this year's midterm elections, and would have been even higher were it not for significant gerrymandering in states such as North Carolina and Texas, and voter suppression efforts in many red states, especially in the South.
Notable Geographic Features Of The Midterm House Races
In California, assuming that the Democrats win CA-21, Democrats will control 46 out of 53 U.S. House seats in California (as well as both of its Senate seats). Five of the seats still controlled by Republicans are inland, in a contiguous block of territory mostly east of the Sierra Nevada mountain range. Two of the seats held by Republicans, including the seat of Duncan Hunter who is currently under indictment for various felonies, are adjacent districts in the suburbs of San Diego. None of these seven seats, interestingly, have any of the Pacific coastline. The two swaths of Republican controlled House districts are separated by just a few miles from each other at their nearest point. Republicans won six of these seats by wide margins and probably would have won Duncan Hunters southern suburban San Diego seat by a more secure margin than the 51.8% of the vote that he received had their candidate in the district not been under indictment and personally compromised as a result. The Democratically controlled House District in California form a single contiguous block that continues up the entire Pacific coast of Oregon. The only seats that Republicans control on the entire Pacific coast are its one seat in Alaska and one seat in Southwest Washington State.
On the Atlantic Coast from Maine to Delaware in the Northeast, Republicans also hold only two U.S. House districts, one on the eastern part of Long Island (NY-1), and one in New Jersey (NJ-4). On the other hand, however, Democrats control only three U.S. House District on the Gulf Coast. One in Key West (FL-26), one in Tampa, Florida (FL-14), and one at the southern tip of Texas (TX-34). Likewise, Democrats control only four seats on the Atlantic Coast south of Delaware, unless you count the sheltered coasts in Maryland: VA-2, VA-3, SC-1 and FL-20.
There is more geographic analysis of the midterm election results here.
Practical Implications
Notable Geographic Features Of The Midterm House Races
In California, assuming that the Democrats win CA-21, Democrats will control 46 out of 53 U.S. House seats in California (as well as both of its Senate seats). Five of the seats still controlled by Republicans are inland, in a contiguous block of territory mostly east of the Sierra Nevada mountain range. Two of the seats held by Republicans, including the seat of Duncan Hunter who is currently under indictment for various felonies, are adjacent districts in the suburbs of San Diego. None of these seven seats, interestingly, have any of the Pacific coastline. The two swaths of Republican controlled House districts are separated by just a few miles from each other at their nearest point. Republicans won six of these seats by wide margins and probably would have won Duncan Hunters southern suburban San Diego seat by a more secure margin than the 51.8% of the vote that he received had their candidate in the district not been under indictment and personally compromised as a result. The Democratically controlled House District in California form a single contiguous block that continues up the entire Pacific coast of Oregon. The only seats that Republicans control on the entire Pacific coast are its one seat in Alaska and one seat in Southwest Washington State.
On the Atlantic Coast from Maine to Delaware in the Northeast, Republicans also hold only two U.S. House districts, one on the eastern part of Long Island (NY-1), and one in New Jersey (NJ-4). On the other hand, however, Democrats control only three U.S. House District on the Gulf Coast. One in Key West (FL-26), one in Tampa, Florida (FL-14), and one at the southern tip of Texas (TX-34). Likewise, Democrats control only four seats on the Atlantic Coast south of Delaware, unless you count the sheltered coasts in Maryland: VA-2, VA-3, SC-1 and FL-20.
There is more geographic analysis of the midterm election results here.
Practical Implications
In 2019, the House will be the sole source of Democratic power in the federal government (something it entirely lacks now), although it is a significant one. Among other things, all ordinary legislation must pass the U.S. House and all appropriations must be initiated with a U.S. House bill. The power to control appropriations, moreover, because it must be exercised on an annual basis to prevent a federal government shutdown, can be used as leverage to obtain agreements from the President and Republicans in Congress on pretty much anything, to the extent that they want the federal government which they control to remain open for business, and Democrats are wiling to credibly threaten to do so.
The Lame Duck Session
Up until January 3, 2019, Republicans in the lame duck Congress can still pass legislation that they will not be able to pass when they lose the majority in the U.S. House at that time. But, since Democrats could filibuster legislation in the U.S. Senate unless Republicans exercise the "nuclear option" to eliminate that element of the filibuster as well (even though eliminating it will provide Republicans with little short term benefit after Democrats regain control of the House).
The 2020 Elections
All of these Representatives will face voters again in 2020, the last Congressional election before House seats are re-allocated between states and Congressional Districts are redrawn in 2022 based upon the results of the 2020 census, which will be conducted by Donald Trump's administration.
The Demise Of Moderates In The House
The mere party labels also obscure the fact that the partisan divide between the Republican and the Democratic caucus in the U.S. House will be deeper in 2019 than it was in 2017, because many of the most moderate Representatives in both parties have been replaced by solidly partisan Democrats or Republicans. Also, there are fewer Democrats in the House serving from red states and fewer Republicans serving from blue states.
Other House Powers
Because an override of a Presidential veto takes a two-thirds vote of both the House and the Senate, it takes only 146 of the 200 Republicans in the U.S. House to uphold a Presidential veto. So, even if two-thirds of Senators vote to override a Presidential veto, all 235 Democrats in the House are united, and 54 Republicans in the House break ranks with the President to attempt to override his veto, the veto will be sustained. In practice, this means that no veto can be overridden without support from both the Republican party and the Democratic party.
It also takes a two-thirds majority of each house of Congress to propose a new constitutional amendment, so this requires the support of both House Republicans and House Democrats. The equal rights amendment, however, which would prohibit discrimination based upon sex as a matter of the express provisions of the U.S. Constitution, is still open for the states to ratify without further Congressional action, and will take effect if three-quarters of states ratify it.
The Presidency
President Donald Trump and Vice President Mike Pence are Republicans, of course.
The Powers Of The President
The President has the power to veto any legislation (which is impossible to override without strong Republican support in both the House and the Senate), the power to nominate candidates to fill all judicial vacancies and all significant executive branch officials, many (but not all) of whom serve at the pleasure of the President and are obligated to follow his orders.
The President is also the power to act as commander in chief of the U.S. military, has broad (but not unlimited) power to conduct U.S. diplomacy, and has broad (but not unlimited) power to issue regulations interpreting federal law, and broad (but not unlimited) to determine how the federal bureaucracy will enforce federal laws. The main checks on these powers are judicial review (which may ultimately be weaker when conservatives control the U.S. Supreme Court) and Congressional action primarily in the form of appropriations bills limiting his ability to spend money in a way that furthers particular items of the President's agenda with respect to carrying out and enforcing federal laws.
The President also proposes an annual budget for the federal government, which is routinely significantly reworked by Congress, that nonetheless serves as a starting point for annual budget negotiations and benefits from the President's greater access to information about what funding various federal agencies need, want and can use.
The 2020 Election
President Trump and Vice President Pence must win both a Republican party primary and the general election in order to be re-elected for a second four year term in 2020.
Despite the fact that President Trump is very unpopular with the general population of likely voters in the United States he still has very strong support among the members of the Republican party who decide who the Republican party nominee for President will e in 2020, so his re-nomination, either with Vice President Pence, or a different Vice Presidential running mate of his choice, is virtually guaranteed in the Presidential primary season in 2020, assuming that he chooses to run for re-election (he will be 74 year old at that point and is not a picture of good mental or physical health).
If the Presidential election were held today, Trump would lose to a generic Democratic Presidential candidate in a landslide. In 2016, Trump eked out a victory with wins in three critical states (Wisconsin, Michigan and Pennsylvania) by the slimmest of margins, and support for him has fallen significantly since then. But, the next Presidential election is not for two more years, and the Democratic candidate will be someone in particular, who may exceed expectations, or underperform, relative to a generic Presidential candidate.
Presidential races can't be gerrymandered and electoral vote counts for each state will not change in 2020 from 2016, but the electoral college has a built in red state advantage (due to the unequal division of U.S. Senate seats relative to population which, in practice, favors red states), so Democrats need significantly more than a majority of the national popular vote to win a Presidential election.
The U.S. Supreme Court
Five of the nine justice on the U.S. Supreme Court are solidly conservative leaning. Four of them Thomas (age 70), Alito (age 68), Gorsuch (age 51) and Kavanaugh (age 53) are very far right Republicans. Chief Justice Roberts (age 63) is still solidly conservative but not quite as extremely conservative leaning as the other four. And, none of them are likely to need to be replaced on account of old age or death, for many years.
Moreover, one of the liberal leaning justices on the U.S. Supreme Court, Ruth Bader Ginsberg, is 85 years old, and needs to stay on the bench at least another 25 months to have any chance of being replaced by another liberal justice, and liberal leaning U.S. Supreme Court Justice Stephen Beyer is 80 years old. The other two liberal leaning U.S. Supreme Court Justices, Sotomayor (64) and Kagan (58) are significantly younger.
The odds the President Trump will have an opportunity to appoint an unprecedented third justice to the U.S. Supreme Court replacing at least one of the four remaining liberal justices on the U.S. Supreme Court, most likely one or its two oldest justices, giving conservatives a six to three majority on the high court, is significant, even if he is not re-elected in 2020.
The lower federal courts currently mostly lean left due to eight years of President Obama's judicial appointments and appointed by earlier Democratic Presidents. But, there are plenty of conservative justices in the lower federal courts and that number rises as Donald Trump makes more appointments.
Also, of course, all courts in the United States, both state and federal, must follow precedents established by the U.S. Supreme Court, regardless of an individual judge's liberal or conservative leanings, so the partisan composition of the U.S. Supreme Court is a huge prize.
Overall
In The Short Term
Basically, at this point, after January of 2019, no new legislation changing the status quo can be passed without bipartisan support, and the only real leverage Democrats have to influence the status quo or to force Republicans to compromise and accept some of their legislation, is their ability to shut down the federal government by refusing to approve new appropriations bills if their demands are not met.
Basically, at this point, after January of 2019, no new legislation changing the status quo can be passed without bipartisan support, and the only real leverage Democrats have to influence the status quo or to force Republicans to compromise and accept some of their legislation, is their ability to shut down the federal government by refusing to approve new appropriations bills if their demands are not met.
So, any conservative legislation that Trump or the Republicans want to pass has to clear Congress by the end of the year during the lame duck session. And, because the Republicans currently hold only 51 seats in the Senate, and the filibuster is still in place with respect to ordinary legislation, they will be hard pressed to pass much legislation in this way.
In the 2020 Election
The 2020 election could (and have a decent chance of) allowing Democrats to retake the Presidency and the U.S. Senate. And, the 2020 Census will almost probably result in a modest shift of House seats from red states to blue states, and from red areas within states to blue areas within states as they redistrict (in some cases subject to strictly anti-gerrymandering regulations adopted at the state level or via federal court cases).
Ironically, one of the greatest failures for Democrats in the last two years, the establishment of a very conservative U.S. Supreme Court majority, may also defuse a major issue that has been used to rally social conservatives behind Republicans for years, which is the need to secure a conservative U.S. Supreme Court majority in order to accomplish goals like narrowing or ending the abortion rights created by Roe v. Wade. Populist social conservatives have far less of an incentive to go along with Republican economic policies that they are not strongly committed to, now that they have accomplished this goal.
In the same way, in Colorado, the Taxpayer's Bill of Rights, a.ka. TABOR, while it has been horrible for good governance, has also made it much easier for affluent moderates on social issues to vote for Democrats without worrying that their taxes will go up as a result, defusing the "tax and spend liberal" arguments used against Democrats in elections before TABOR was adopted and elsewhere in places where TABOR does not exist.
The Long Term Implications For The U.S. Supreme Court
But, these victories will not change the long term secure hold that conservatives will have on the U.S. Supreme Court short of a Kavanaugh indictment or impeachment, or a court packing plan that increases the size of the U.S. Supreme Court creating enough vacancies for a Democratic President and a U.S. Senate controlled by Democrats to give the court a liberal majority (i.e. at least two more seats, and possibly more). The legislation necessary to pack the court would also require Democrats to control the U.S. House and might require them to exercise the "nuclear option" to overcome a filibuster of this legislation.
Until Democrats reach that level of complete control of the elected offices of the federal government, however, the conservative domination of the U.S. Supreme Court will remain in place fro a very long time, possibly decades. And, it has been a very long time since there was a liberal majority on the U.S. Supreme Court. For most of recent memory, the swing vote on the U.S. Supreme Court has been, effectively, a very moderate Republican vote (something that is virtually an endangered species everywhere).
Those poses a host of potential problems for Democrats seeking to regain power and exercise it, both at the federal level and the state level, and will probably have the practical effect of substantially curtailing many constitutional rights and of invalidating some kinds of liberal legislation (for example, on the subject of gun control, election law, and religious exemptions to discrimination laws).
Since liberals have few avenues for recourse to restrain executive branch excesses other than the courts at this point, they have no choice but to enter this forum even though the justices at the top are inclined to disfavor their efforts.
One approach liberal public law and social and economic justice oriented litigators can use is to try to stay within settled precedents as much as possible, rather than pushing the envelope, to reduce the likelihood of negative U.S. Supreme Court intervention. Also, as a legislative matter, Democrats can work to narrow the jurisdictional scope of the federal courts, which will increasingly be an unfriendly forum to be used only when absolutely necessary relative to state courts, an agenda for which they may be able to receive bipartisan support, because this also shifts litigation in red states to conservative leaning state courts.
Another approach is to litigate in friendly state courts in blue states, pushing for recognition of state constitutional rights that are stronger than those under the federal constitution even when the texts have identical wording, and utilizing state legislation that is more liberal than any federal legislation in place on the same subject.
In the 2020 Election
The 2020 election could (and have a decent chance of) allowing Democrats to retake the Presidency and the U.S. Senate. And, the 2020 Census will almost probably result in a modest shift of House seats from red states to blue states, and from red areas within states to blue areas within states as they redistrict (in some cases subject to strictly anti-gerrymandering regulations adopted at the state level or via federal court cases).
Ironically, one of the greatest failures for Democrats in the last two years, the establishment of a very conservative U.S. Supreme Court majority, may also defuse a major issue that has been used to rally social conservatives behind Republicans for years, which is the need to secure a conservative U.S. Supreme Court majority in order to accomplish goals like narrowing or ending the abortion rights created by Roe v. Wade. Populist social conservatives have far less of an incentive to go along with Republican economic policies that they are not strongly committed to, now that they have accomplished this goal.
In the same way, in Colorado, the Taxpayer's Bill of Rights, a.ka. TABOR, while it has been horrible for good governance, has also made it much easier for affluent moderates on social issues to vote for Democrats without worrying that their taxes will go up as a result, defusing the "tax and spend liberal" arguments used against Democrats in elections before TABOR was adopted and elsewhere in places where TABOR does not exist.
The Long Term Implications For The U.S. Supreme Court
But, these victories will not change the long term secure hold that conservatives will have on the U.S. Supreme Court short of a Kavanaugh indictment or impeachment, or a court packing plan that increases the size of the U.S. Supreme Court creating enough vacancies for a Democratic President and a U.S. Senate controlled by Democrats to give the court a liberal majority (i.e. at least two more seats, and possibly more). The legislation necessary to pack the court would also require Democrats to control the U.S. House and might require them to exercise the "nuclear option" to overcome a filibuster of this legislation.
Until Democrats reach that level of complete control of the elected offices of the federal government, however, the conservative domination of the U.S. Supreme Court will remain in place fro a very long time, possibly decades. And, it has been a very long time since there was a liberal majority on the U.S. Supreme Court. For most of recent memory, the swing vote on the U.S. Supreme Court has been, effectively, a very moderate Republican vote (something that is virtually an endangered species everywhere).
Those poses a host of potential problems for Democrats seeking to regain power and exercise it, both at the federal level and the state level, and will probably have the practical effect of substantially curtailing many constitutional rights and of invalidating some kinds of liberal legislation (for example, on the subject of gun control, election law, and religious exemptions to discrimination laws).
Since liberals have few avenues for recourse to restrain executive branch excesses other than the courts at this point, they have no choice but to enter this forum even though the justices at the top are inclined to disfavor their efforts.
One approach liberal public law and social and economic justice oriented litigators can use is to try to stay within settled precedents as much as possible, rather than pushing the envelope, to reduce the likelihood of negative U.S. Supreme Court intervention. Also, as a legislative matter, Democrats can work to narrow the jurisdictional scope of the federal courts, which will increasingly be an unfriendly forum to be used only when absolutely necessary relative to state courts, an agenda for which they may be able to receive bipartisan support, because this also shifts litigation in red states to conservative leaning state courts.
Another approach is to litigate in friendly state courts in blue states, pushing for recognition of state constitutional rights that are stronger than those under the federal constitution even when the texts have identical wording, and utilizing state legislation that is more liberal than any federal legislation in place on the same subject.
No comments:
Post a Comment