The Republican-led Congress isn’t just watching the Trump administration gobble up its constitutional powers. It is enthusiastically turning them over to the White House.
G.O.P. lawmakers are doing so this week by embracing a stopgap spending bill that gives the administration wide discretion over how federal dollars are distributed, in effect handing off the legislative branch’s spending authority to President Trump. But that is just one example of how Congress, under unified Republican control, is proactively relinquishing some of its fundamental and critical authority on oversight, economic issues and more.
As they cleared the way for passing the spending measure on Tuesday, House Republicans leaders also quietly surrendered their chamber’s ability to undo Mr. Trump’s tariffs on Mexico, Canada and China in an effort to shield their members from having to take a politically tough vote. That switched off the only legislative recourse that Congress has to challenge the tariffs that are all but certain to have a major impact on their constituents.
Republicans have also stood by, many of them cheering, as the administration has upended federal departments and programs funded by Congress and fired thousands of workers with no notice to or consultation with the lawmakers charged with overseeing federal agencies. So far, no congressional committee has held an oversight hearing to scrutinize the moves or demand answers that would typically be expected when an administration undertakes such major changes….
Category Archives: legislation and legislatures
ELB Podcast 6:5: Fair Elections and Voting Rights: What Ahead in the Next Four Years? (Gardner, Karlan, Richer)
Season 6, Episode 5 of the ELB Podcast:
What will the new Trump Administration and the new Congress do when it comes to voting rights and fair elections?
What challenges face state and local election officials going forward?
Will the courts stand up for voting rights and fair elections in the years to come?
On Season 6, Episode 5 of the ELB podcast, we feature a discussion with Amy Gardner, Pam Karlan, and Stephen Richer.
You can subscribe on Soundcloud, Apple Podcasts, and Spotify.
Pennsylvania Republicans, in Jones Day Petition, Try Again to Get U.S. Supreme Court Interested in Second Guessing State Election Law Decisions Through Independent State Legislature Theory
SCOTUS recently passed on taking up a case out of Montana, but Pennsylvania Republicans are trying again, with this cert petition involving a PA Supreme Court ruling allowing under state law those voters who filed a technically defective mail-in ballot to cast a timely provisional ballot instead. Republicans argue that the state Supreme Court violated the Supreme Court’s Moore v. Harper decision through interpretation that “exceeded the ordinary bounds of judicial review” thereby purportedly arrogating the power of the state legislature.
Stay tuned.
(h/t Democracy Docket)
“Trump Kicks Congress to the Curb, With Little Protest From Republicans”
Congress passed a law shutting down TikTok, and President Trump flouted it. Congress required advance notification for firing inspectors general, and the Trump administration ignored it. Congress approved trillions of dollars in spending on a multitude of federal programs, and Mr. Trump froze it.
The new administration is quickly demonstrating that it does not intend to be bound by the legal niceties or traditional checks and balances of its relationship with Congress. That has infuriated Democrats but drawn shrugs and approval from Republicans who say Mr. Trump is delivering what he promised even if it comes at the expense of Congress’s authority and constitutional status as a coequal branch of government.
“President Trump clearly ran for office to be a disrupter, and he’s going to continue to do that,” said Senator John Barrasso of Wyoming, the No. 2 Republican.
Mr. Trump is also clearly embarking on a test of what he can cow a Congress under total Republican control into swallowing. Early indications are that it will be a lot….
The lack of pushback from congressional Republicans is a stark acknowledgment that Mr. Trump is large and in charge, controlling their political futures while executing an agenda that they believe Republican voters demanded. It is a distinct break from the past, when lawmakers of both parties would vigorously defend Congress’s power — particularly the spending power granted in Article I of the Constitution — no matter who was in the White House….
“Roberts Calls Court’s Relationship With Congress ‘Strained.’ Who’s to Blame?”
Jimmy Hoover for the NLJ.
I offered some thoughts in this one:
Many commentators say that a similar dynamic is responsible for today’s partisan rancor in light of the Supreme Court’s now solidly 6-3 supermajority of Republican appointees.
“The Supreme Court for the first time in modern history has all the conservatives appointed by one party and all the liberals appointed by the other,” said Rick Hasen of UCLA Law, a prominent Supreme Court scholar.
In the past, Hasen noted, several Republican appointees such as Justices John Paul Stevens and David Souter frequently voted with Democratic-appointed liberal justices in politically or socially fraught cases. No longer.
“It’s much easier to see and to describe the court as acting in partisan ways: ‘the Republican majority on the Supreme Court, the Democratic dissenters on the Supreme Court,’” Hasen said. “Language like that is accurate in a way that it wasn’t before.”
What’s more, this expanded conservative majority has not shied from wielding its power, often at the expense of the legislative and executive branches, and often without any of the court’s liberal members signing on, Hasen said. This past term’s blockbuster 6-3 decision establishing broad criminal immunity for former President Donald Trump and effectively delaying his trial over the 2020 election is a prime example.
“That was huge and I was wrong,” said Hasen.
“I was expecting the chief justice to be looking for some common ground and to be looking for a way for the court to speak, if not with one voice, at least with some bipartisan agreement, and that didn’t happen at all,” Hasen added. “Something has changed with John Roberts.”
Although Hasen faults the court for its failure to bridge partisan divide, he lays part of the blame at politicians such as Schumer who have only fanned the flames of division with their rhetoric.
“I do think that because of this partisan split, you often get hyperbole or worse coming from political actors,” Hasen said.
“It’s not as though every criticism of the court is well considered,” he added. “I thought that language was intemperate and not helpful.”
“Democrats rage as Johnson restricts their ability to oust him”
House Democrats are pushing back furiously against a proposed change to House rules that would allow only Republicans to force a vote on removing the speaker of the House.
Why it matters: Top Democrats are arguing the move would inhibit bipartisanship and effectively make House Speaker Mike Johnson (R-La.) answerable only to his members — not the entire House…
Driving the news: The 36-page rules package for the 119th Congress, unveiled on Wednesday, raises the threshold to introduce what is called a motion to vacate in multiple ways.
- Whereas in the last Congress, any single House member could introduce such a motion, now eight others have to co-sponsor the measure.
- But all nine of those lawmakers have to be members of the majority party — which will be the Republicans in this Congress.
- The rule change is part of a deal struck by House Republicans’ internal factions in November as the party renominated Johnson for speaker.
“State Law and Federal Elections After Moore v. Harper”
Carolyn Shapiro has written this article for the NYU Law Review. Here is the abstract:
In Moore v. Harper, the Supreme Court rejected the extreme proposition that state legislatures operate free from state constitutional constraints and judicial review when they regulate federal elections. The Court, however, left open the possibility that a state court might run afoul of the federal Constitution if, in striking down or construing state election law, it exceeds “the ordinary bounds of judicial review.” This Article explores the potential scope of that exception, and it proposes arguments and strategies to guard against undue and disruptive federal court intrusion on state election law. In particular, the Article relies on longstanding principles of federalism to develop substantive and procedural arguments that insist on federal court deference to state courts’ interpretation and application of their own law.
“The 118th Congress passed the fewest laws in decades”
If measured by the number of bills signed into law, the 118th Congress was by far the most unproductive since at least the 1980s, according to data from public affairs firm Quorum.
Why it matters: That is not the only metric of success, but the stunning stat is a marker of how difficult the chaos of the last two years made actual legislating.
- Every fiscal deadline led to brinksmanship between the Republican House and the Democratic Senate and White House.
- House Republicans were also beset by infighting and palace intrigue, most notably the ouster of former House Speaker Kevin McCarthy.
- Throughout the disarray, trust between House Democrats and Republicans reached a low ebb— making bipartisan compromise rare.
“A Razor-Thin House Majority Creates Headaches for Republicans”
They won, but barely.
Republicans held on to control of the House of Representatives in November by one of the thinnest margins in the country’s history—even smaller than in the current Congress—a result that will have them walking a tightrope again for the next two years. The drama starts next week when the party tries to elect a new speaker on the first day of the new session, with fresh grumblings about leadership setting the stage for an unpredictable vote.
Republicans won 220 seats to Democrats’ 215. One planned vacancy—that of former Rep. Matt Gaetz, who was elected to another term but said he won’t take office—will reduce Republicans to 219 when lawmakers reconvene on Jan. 3. Two resignations of lawmakers set to join the Trump administration—Reps. Elise Stefanik and Mike Waltz—will temporarily reduce GOP numbers to 217 later in January before special elections are held. President-elect Donald Trump starts his second term on Jan. 20.
While Republicans will have full control of Congress and the White House, the wafer-thin cushion in the House means any small handful of Republican defectors could trip up the GOP agenda by holding out for their leaders or their own terms. As the past two years have shown, it also means that a run of bad luck for Republicans—such as health setbacks or a string of resignations—could eat into the margin.
“We know how to work with a small majority; that’s our custom now,” House Speaker Mike Johnson (R., La.) told reporters earlier this month. “This is a team effort and we’ve got to all row in the same direction.”
At the extreme, Republicans could surrender the majority by attrition before the next election, something that actually happened in 1931, when Republicans lost a two-seat majority midway through then-President Herbert Hoover’s term….
“Trump says members of Jan. 6 committee should be jailed”
In his first post-election TV interview, on NBC.
In case you’re wondering, this is not, nor should it ever be confused with, normal. At least, not in a democracy.
“Election Day has long passed. In some states, legislatures are working to undermine the results.”
The AP notes a variety of ways in which legislatures may push back.
“Republicans in North Carolina pass sweeping changes to consolidate power”
Washington Post. North Carolina Republicans are back at it! The North Carolina legislature (controlled by Republicans) is seeking “last-minute inclusions” in a hurricane relief bill that “will strip the incoming Democratic governor and attorney general of significant authority before the GOP loses its legislative supermajority.”
Among the powers being stripped:
- Control over election boards: “The lame-duck bill will shift the ability to appoint members of the state and county elections boards from the governor to the state auditor. That will mean Republicans instead of Democrats will control those boards, which oversee ballot tallies, set voting rules and decide how many early-voting locations to open.”
- Control over judicial vacancies: “the governor must fill any vacancies on the state’s top courts with appointees recommended by the political party of the departing judge.”
The bill also makes it harder for voters to cast provisional ballots: Voters who do not bring a photo ID to the polls will only have three days (previously nine) to show up.
It is unclear if the NC GOP has the votes to pass the measure.
“Republicans Ran a Dysfunctional House. Voters Shrugged and Re-elected Them.”
A historically long and divisive fight to choose one speaker. A near default on the federal debt, followed by a mutiny on the House floor and multiple government shutdown scares. The ouster of the speaker, followed by weeks of paralysis and another vicious fight over who should lead next.
For almost two years, House Republicans have barely been able to overcome their own intraparty feuding to keep the government functioning. But despite it all, they emerged on Wednesday night, when The Associated Press declared that Republicans had effectively won control of the House, with a wafer-thin majority almost identical to the one they have now.
The apparent success of their battle to keep control of the House of Representatives suggests that they paid little political price for the chaos and dysfunction they presided over, a period when Congress struggled to carry out even the basics of governing.
And it suggests that members of both parties overestimated how much voters would judge them by their job performance….
“Dems say they will certify a Trump victory — even though some see him as ineligible for office”
Democrats in Congress for years have labeled Donald Trump an “insurrectionist,” impeached him for stoking violence on Jan. 6, 2021, and suggested he is constitutionally prohibited from returning to the White House.
But even as those lawmakers continue to doubt Trump’s eligibility for the presidency, they also say that if he wins at the polls, they don’t expect efforts to deny him his presidential electors on Jan. 6, 2025, when Congress meets to finalize the results.
Democratic leaders are saying publicly and privately they want a drama-free transfer of power — even if it means setting aside some members’ views that Trump is ineligible to return to the presidency because of the Constitution’s bar on insurrectionist officeholders.
The 14th Amendment prohibits any federal officeholders who have “engaged in” insurrection from holding office again, and Democrats have long suggested Trump ran afoul of it when he inflamed the violent mob that attacked the Capitol four years ago. At the time, House Democrats overwhelmingly voted to impeach Trump for “incitement of insurrection.” Their leader, Hakeem Jeffries, has routinely called Trump the “insurrectionist-in-chief.” But there appears to be little appetite among Democrats to challenge results during the Jan. 6 joint session.
“The integrity of our democratic process depends on the peaceful transfer of power. Donald Trump has decided that the only valid elections are elections he wins,” Minority Whip Katherine Clark (D-Mass.) said in a statement to POLITICO. “He is the only President who has supported an insurrection rather than accept the will of the American people. Democrats will always ensure every vote counts and that we uphold our democracy.”…
In its March opinion, the Supreme Court implied — though didn’t explicitly state — that Congress must pass legislation to lay out a procedure to determine whether a current or former officeholder has violated the insurrection clause. It’s a gap that leaves some uncertainty about what Congress’ obligations and options are in January.
But most constitutional scholars say it would be improper for lawmakers to make a subjective judgment about Trump’s eligibility without a forum to fully air and debate the facts.
“Congress does not have the capacity in the [Jan. 6] joint session to do so,” said Derek Muller, a University of Notre Dame constitutional law expert. “Because Congress is not in a position to decide the matter, Congress should count the votes.”
Edward Foley, an Ohio State University constitutional scholar who has written about the insurrection clause, said the Supreme Court left a gap on this issue but doesn’t think members of Congress will step into the breach.
“Everything I’ve seen indicates that Democrats in Congress won’t attempt this,” Foley said.
In a hypothetical scenario in which Trump’s opponents controlled the House and Senate, with enough votes to disqualify his electors — “which they won’t have,” Foley noted — he said it’s unclear whether courts would step in to block the decision.