Sunday, April 28, 2019

"Preserving" the Repubic of Statutes

Mark Tushnet

David Super ends his post, "The legislative filibuster is crucial in preserving" the republic of statutes. The language of preservation is the language of the status quo.

The implicit argument is this: Suppose we make it easier for progressive majorities to enact new statutes. Doing so will make it easier for conservative majorities -- when they exist -- to repeal existing statutes. And we have more to fear from the repeal of existing statutes than we have to gain from enacting new ones. This might not be the best of all possible worlds, but we've reached a state of affairs that's good enough, and we shouldn't try to make it better by means than threaten -- under some political conditions -- a regression from where we are.

I think the argument would benefit from unpacking. Super argues that repealing statutes is easier than enacting them in the first place. So, the thought appears to be, if progressive Democrats eliminate the legislative filibuster and enact new laws (to extend our democracy, to protect against climate disaster, whatever), Republicans will be able to repeal the new laws easily enough.

Formally speaking, that's true when appropriate conditions hold. Here the key condition is that Republicans would have to regain control of the Presidency and the House of Representatives as well as the Senate. As long as Democrats control one elected branch they can block repeal. At the very least this means that legislation enacted after the hypothesized elimination of the legislative filibuster would be on the books for up to four years before repeal. And, as political scientists know, new policies make new politics. That is, during those three or four years the statutes might generate sufficient support to allow Democrats to retain control of one elected branch for an additional period (two or more additional years). So, retaining the filibuster doesn't mean merely protecting existing statutes against repeal when Republicans return to power in all three elected branches; it means forgoing whatever political benefits might accrue from enacting the progressive Democratic agenda when Democrats have the chance to do so.

The supposed asymmetry between enactment and repeal may not be as great as Super says. Consider Obamacare repeal. Even without the filibuster the Senate under Republican control was unable to get a majority for repeal. Super suggests that in a world without a legislative filibuster Republicans might have been able to present Obamacare repeal outside the reconciliation process and somehow have gotten a majority to support a free-standing repeal statute. I can imagine a sort of seven-dimensional chess game in which that might happen, but I'd like to see a more detailed analysis of how and why it would.

What of the fact that the Republican Senate didn't repeal the legislative filibuster when it had the chance? My view is that it didn't do so because Republican leaders thought that they could accomplish their priorities without doing so. They got tax cuts for the wealthy and judicial nominations by using procedures not subject to filibuster, and they thought -- mistakenly -- that they could do the same for Obamacare repeal. Those were their priorities and that's why they didn't change the filibuster rule. That choice tells us almost nothing about what Republican leaders would do in a world where their ability to accomplish their most pressing legislative goals was blocked solely by the existence of the legislative filibuster (and not, for example, by the existence of a Democratic majority in the House of Representatives).

(I put aside the so-called deconstruction of the administrative state, much of which can be accomplished by executive and judicial action. That is, Republicans can get a lot of deconstruction done without enacting new statutes, though they could have gotten more done by doing so. Which is to say, deconstructing the administrative state hasn't yet been a high legislative priority.)

I note finally that the core statutes of the "republic of statutes" -- civil rights legislation and environmental laws in particular -- might have been difficult to enact, but they have proved equally difficult to repeal. The technique of conservative choice with respect to those statutes has been judicial obstruction through narrowing interpretations and holdings of unconstitutionality. Which brings us back to the Court-packing question.

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