How Can the Minority Party Use the Separation of Powers to Their Advantage?
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Heading into Inauguration Day this week, Democrats find themselves in a similar position to one Republicans were in eight years ago — in the minority of both chambers in Congress with an opposing president taking office who will have a chance to change the complexion of the Supreme Court.
While the ultimate remedy for Democrats to change their situation is a combination of electoral success and time, they do have some tools at their disposal in the meantime that we’ve broken down for you below:
The Filibuster
Senate rules allow one senator to hold the floor and talk about whatever they want for as long as they want until at least 60 of their colleagues vote to end the filibuster. This might be the most potent tool at Democrats’ disposal given that Republicans only control 52 seats in the Senate, but they won’t be able to use the filibuster in all situations.
For example, Democrats will have the ability to filibuster most bills that move through the Senate except for those passed using the reconciliation process, like the bill that gets the ball rolling on a repeal of Obamacare. They can also filibuster the president’s nominees to the Supreme Court, but when Democrats last controlled the Senate then-Majority Leader Harry Reid changed the rules to allow Cabinet nominations to advance with a simple majority, so they won’t be able to filibuster those.
The Power of the Purse
While Republicans may be in the majority, they’ll need Democratic support to move legislation through the Senate, and in order to avoid a filibuster GOP lawmakers may have to make concessions to get the needed bipartisan support for bills to fund and reform the government. Unless Democrats are willing to force a government shutdown, there will be issues that they have to relent on. But the threat of a filibuster will be enough to help Democrats get some of their priorities enacted, in part because of the mere threat of a shutdown.
The Constitution
If a law is enacted that Democrats find particularly objectionable or that they think may be unconstitutional, they can file a lawsuit in federal court and hope for a favorable ruling. And if it doesn’t go their way initially, they can appeal to a higher court for another chance. Given that the Supreme Court currently has eight justices, there likely won’t many precedent-setting decisions issued until it is back to its full complement of nine. But once President Donald Trump has a Supreme Court nominee confirmed, Democrats may try to keep the judicial branch busy making decisions on controversial issues.
Devolution of Power
There’s more than just the federal government — in some ways state and local governments may very well have a greater impact on your daily life than all the lawmakers and bureaucrats in D.C. States have considerable latitude in how they implement their laws, even for programs like Medicaid that are funded with federal dollars, and the Tenth Amendment of the Constitution protects the ability of states to mostly govern themselves. It’s likely that with Republican control of the federal government, states will be given even more discretion in how they administer various laws, so in states with Democratic governors and legislatures there could be more policy experimentation and laws resisting federal policies passed (which may end up in court).
Administrative Separation of Power
There are thousands of career professionals who work in the bureaucracy at all levels of government who are insulated from political change by civil service tenure laws. This means that while they’re tasked with implementing the laws of all administrations, the bureaucracies they work within won’t change drastically when political tides shift, which can have the effect of slowing the pace with which a new administration can implement their agenda.
You can use the Take Action button below to tell your reps how they should interact with the incoming administration.
— Eric Revell
(Photo Credit: Gage Skidmore.jpg) / Creative Commons)
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