Though he no longer has a Republican majority in Congress, President Trump is continuing to inflict awful damage on the United States through his executive authority. Just in the last few weeks, his administration has used its authority to protect poison-spewing coal power plants, shift money around to fund more mass deportation, gut the Endangered Species Act, make it easier for federal contractors to discriminate on the basis of race, religion, or LGBTQ status, relax rules on how long truckers can drive without sleep, and more.
Many of these actions will no doubt undergo legal challenge, and some might be overturned. But while Trump's goals are appalling, his tactics provide an important lesson in hardball politics for a future Democratic president. When trying to use executive authority to repair the sucking chest wounds Trump has punched in the national fabric, ask for forgiveness, not permission.
Trump's administration is following in the footsteps of George W. Bush and Reagan before him: extreme goals achieved through procedural maximalism and tendentious legal theories. That's the story of Bush's illegal torture program and his warrantless wiretapping, Reagan's Iran-Contra scandal, and dozens of other atrocities. Republicans always push the envelope as far as they can, especially when they're doing something horrible, and hope the partisan hacks they have installed in the judiciary will rubber-stamp their decisions.
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Of course, one wouldn't want Democrats to adopt similar goals, and neither should they resort to outright illegality (as Republicans very often do). But they have every right to fight fire with fire when it comes to say, protecting immigrants or the environment, attacking monopoly power, boosting unions, and so forth. Indeed, not doing so directly enables Republican extremism, by making it clear they will actually benefit from Democratic timidity.
For the last few years, the Democratic leadership has mulishly refused to understand this basic logic of playground bullies (at least when it comes to confronting the right; they have been plenty aggressive when it comes to funneling money to Wall Street or stomping down leftist critics). Instead, there have been repeated attempts to reestablish broken norms by performatively adhering to them personally. There was Obama's ludicrously extensive vetting process for nominees (which often held up nominations for months, only for Republicans to block them anyway), or Senate Democrats' years-long reluctance to abolish the filibuster for judicial nominations. There was Sen. Patrick Leahy's (D-Vt.) indulgence of the "blue slip rule" allowing senators to stop any federal court nominee in their home state, which Republican senators used to prevent any nominee whatsoever. There was the grinding reduction of the budget deficit, which directly harmed Democratic political fortunes in the name of appearing responsible. And so on.
But as was extremely obvious would happen at the time, Republicans did not return any of these favors when they came to power. Instead they pocketed the gains, and gleefully returned to pushing the envelope as far as possible. The blue slip rule was gone as soon as it held up one of Trump's nominees — who are typically the youngest and most extreme bulge-eyed crackpots the Federalist Society can decant out of their cloning vats, vetting be hanged. All Obama's precious deficit reduction (about which he boasted continually) was wrapped up with a nice bow and handed directly to the rich in the form of tax cuts — and the economy further stoked by boosting federal spending, mainly on the military.
As a result, borrowing will exceed $1 trillion this year. (It is certain that the very second Democrats return to national power, Republicans will instantly start screaming hysterically about the enormous deficit they created and demand huge spending cuts on social programs to lower it.)
Many Democrats seemingly believe that a totally one-sided demonstration of good faith will win them Responsibility Points among the electorate. But what it really shows is that they are suckers who are easily bullied.
Again, it would not be wise to completely mirror Republican extremism and bad faith. But Democrats could press the attack very much harder than they have of late without trampling on democracy. Instead of nominating bland Big Law liberals to the federal bench, find some fire-breathing ACLU zealots or public defenders and confirm them as fast as possible. Instead of spending literally years trying to protect new regulations or executive orders from conservative lawsuits (an impossible task in any case as they will just think up goofy arguments no matter what you do), make them aggressive and put them out as fast as possible. Bury the conservative legal societies under a swarm of attacks from every side, and whenever one rule or interpretation goes down, think up a different one to take its place.
Perhaps most importantly, instead of capitulating to conservative readings of legislation like the National Labor Relations Act or various anti-trust laws, appoint federal regulators who will interpret their powers broadly — and federal judges who will back them up. On paper, agencies like the National Labor Relations Board or the Federal Trade Commission have sweeping authority, they have just been gradually neutered through a combination of tendentious conservative judicial activism and liberals' learned helplessness.
This approach will result in a lot of losses, no question. But this is how Republicans came to dominate national politics — always attack, always force the enemy to play defense if possible, and never admit defeat. Perhaps someday American politics might become more respectful, but so long as the GOP refuses to play nice, Democrats shouldn't either.
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