Congress, Go Big or Go Home: Amend the Budget Act to Avert Government Shutdowns

 My latest appears in The Messenger. 

Yet another federal government shutdown is upon us. The choice should be not whether to allow a partial shutdown, but whether Congress should “go big or go home.” The real choice should be a total government shutdown or none at all.

A small group of anti-government zealots evidently want to play “chicken” with the federal budget and its credit score. Odds are, there will be a shutdown. But essential government functions — such as prisons, the military, Social Security, Medicare and Medicaid — will be funded, at least for now. Members of Congress will be paid, too, although their staff will not. Vulnerable Americans, those receiving WIC or SNAP benefits, may feel the pain immediately. Most Americans, however, will not feel the effects of a partial shutdown; the pain will not be spread evenly.

That is the problem with a partial shutdown. Many who dislike the government or specific programs will not be affected — at least not in the short term, or in ways that affect the poor. 

We need a better way.

One option is to let the government actually shut down, totally and completely. Reject the false distinction that there are “essential” and “non-essential” governmental functions. If Congress cannot come to an agreement, there is no funding and no government operations. Give the zealots what they want and let them live with the consequences of their choice. Courts, prisons and military bases would temporarily close. Seniors would not get their Social Security checks or health insurance.

It sounds cruel but maybe it would be effective. It would show the true value and importance of the government. It would demonstrate that all functions are essential. It also would force Congress — who, under this scenario, would not get paid — to confront the reality of its inaction. Right now, a partial shutdown bails out Congress; it can be irresponsible, and most of the government will continue to operate.

The problem with this option, however, is that the risks are too high: Vulnerable Americans will be hurt with a full shutdown, just as they are with a partial one.

Backfire: Keeping Trump off the Ballot and Impeaching Biden May Get you Something Worse

 

            Don’t wish for something, it might happen. When it comes to American politics in 2024, that might be the warning for Democrats seeking to keep Donald Trump off the ballot in Minnesota or Colorado or for Republicans trying to impeach Joe Biden.  For every political action there is an opposite reaction and for both parties what they might get is a backfire  that could do the opposite of what they want.

            Consider the state of contemporary politics.  It is a polarized winner-take-all-environment.  There are maybe five states—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin that are in play.  Within those states, only a handful of swing voters in a handful of swing precincts will decide the race to 270 electoral votes  to win the presidency.  The US House and Senate are closely divided, with  perhaps no more than 20 suburban House seats and six Senate seats in play that will determine partisan control. Trump and Biden are tied in the national polls. 

Nearly forty states have partisan trifectas, giving  one party complete control of the legislative process.  These trifectas show the importance of winner-take-all politics  versus split government gridlock.

Now consider the current strategies.  Democrats in Colorado and Minnesota and perhaps in other states want to use the insurrection clause of  Section Three of the  Fourteenth Amendment to keep Trump off the ballot in those states.  Using a clause designed to remedy post-Civil War concerns regarding the  1866 election to keep former Confederates from serving in office and of which many legal historians question its applicability today, the strategy is to have election officials or state courts declare Trump and insurrectionist and therefore ineligible to appear on the ballot.

Keeping Trump off the Ballot in Minnesota

            Let’s consider the possibility of this in a quadfecta  state such as Minnesota where Democrats control both houses of the legislature, the governorship, the state supreme court, and even the secretary of state as the top election official.

The attraction or lure is great.  Exclude Trump from the ballot in Minnesota and one is guaranteed ten electoral votes without much work.  The resources can then be shifted to Wisconsin or another swing state.  Never mind no Republican has won statewide office since 2006 and no Republican presidential candidate since 1972.

But there are powerful downsides to this strategy.  One, if there is not even the semblance of a competitive presidential race in  Minnesota, it may be hard to motivate Democrats to come out to vote. Trump draws out Democrats to vote.  Without a competitive presidential race, down ballot races may be impacted.

Two,  if a 6-1 Democratic Party majority on the Minnesota Supreme Court throws Trump off the ballot it will only further add fuel to  the national claim of rigged elections. Minnesota will become the rallying cry to motivate Republican voters to come out in record numbers to support their guy.

Three, even if the Minnesota Supreme Court does not remove Trump from the ballot, the damage may already be done.  Even the hint of doing this raises the  stolen election fear both in the state and nationally, thereby propelling Republicans to the ballot.

Finally, now  consider one more issue—abortion.  The US Supreme Court overturning Roe v. Wade and abortion rights was a blessing for Democrats in the 2022 midterm elections.  It is still a salient issue. But in 2023 Democrats in Minnesota  went beyond codifying Roe, enacting legislation arguably going beyond what most of the state’s public opinion supports.  Republicans already plan to use the phrase “abortion on demand” to motivate their base in 2024, including a highly motivated pro-life anti-abortion constituency.

Rumor has it that the Democrats  want to go beyond codification of abortion rights and put it in a constitutional amendment and on the ballot in 2024.  In part the reasoning is to motivate their base.

Yet Democrats need to remember 2012 when a Republican legislature thought  a voter ID and marriage amendment would  juice up their base  and win them the elections. The result backfired and Democrats took over the legislature and single-party control of the state.

 

Impeaching Biden

            Biden enjoys tepid support among Democrats going into 2024.  He has low approval ratings among the general public and he does not garner enthusiasm among Democrats.  He is vulnerable in part because Democrats may not come out for him.

            The best thing Biden has going for him so far going into the 2024 election is Trump may be his opponent and that the House of Representatives is controlled by Republicans.  He gets to run against both next year.  But that still may not be enough to save him.

            Enter impeachment.

            The Republican House will likely impeach Biden later this year or in 2024.  The validity of the impeachment grounds do not matter.  Impeach Biden is meant to handicap him while running for re-election.  It is political tit-for-tat.  Trump was impeached, impeach Biden.  Trump has legal problems, divert attention from them and his trials by impeaching Biden and forcing a Senate trial on to television and into the social media.  It levels the legal playing field between Trump and Biden, and it serves as a way to motivate Republican donors and voters.

            Except perhaps not. There is no way a Democratic Party-controlled Senate will convict Biden.  There is even no guarantee it will hold a trial.  But much in the same way the Trump’s first impeachment motivated his voters  (and had it not been for Covid and his mishandling of it  he might have won him the 2020 election) after the 2018 midterm elections, a failed impeachment of Biden might simply be the thing Democrats need to rally their voters around Biden and bring them to the polls in 2024.

            The lesson is don’t wish for something because if you get it, it may backfire on you.

Saving American Democracy From Donald Trump-- Does the Fourteenth Amendment Provide a Solution?

 Winston Churchill once exclaimed that " democracy is the worst form of government, except for all those

other forms that have been tried from time to time."  With democracy facing challenges in the US the likes that perhaps not seen since the Civil War, the question is what to do. 

            This question takes on exceptional salience with the coming 2024 presidential elections and the prospect that Donald Trump could again be re-elected.   This has prompted some to call for some to employ the Fourteenth Amendment to declare Trump an insurrectionist and declare him ineligible for office.  As attractive as this solution may sound, it is a dangerous tool to solve  a pressing problem.

            Democracies can produce their own antithesis. The Democratic German Weimar Republic elected Hitler and the Nazis who annihilated the popular government. Across the world we see similar problems in Hungary, Poland, and perhaps Israel.  Our constitutional framers saw this potential too.

Democracy, including that in the US, is an experiment in the people ruling, and it is still not clear if it works.  The American Experiment according to historian James McGregor Burns was that of being the first popular government in history. While one can challenge whether the elite framers who were slaveholders truly were interested  in popular government, let’s assume they were.  For James Madison, perhaps the principal architect of the Constitution and one of the authors of the Federalist Papers the challenge of popular government or what we call representative democracy today is to protect it from majority faction, mob rule, populism, or what others have called the tyranny of the majority.

The fear was that the passions of the people would swell up and produce a majority faction, defined as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The political solution to the problem of  populism was  creating a system placing breaks on the mobilization of power through separation of powers, checks and balances, federalism, staggered political terms, and an electoral college.  Yet somewhere along the line these mechanisms have failed .

Political science research tells  us that democracies need elite and mass support to work.  Yet polls suggest the American public increasingly worries about  our democracy or no longer trusts it, and many elites too have lost confidence in it.  Among those Donald Trump.

No matter how you cut it, Trump is the worst nightmare of our constitutional framers.  He is why we had an electoral college to prevent his selection as president.  But nonetheless, he was elected once due to structural features in the electoral college that have reduced presidential elections down to what a few voters in a few swing states think.  We have a democracy that is not  purely majority rule nor  purely capable of containing the excesses of democracy.  We have a democracy where the wealth of a few drives the agenda.  We have a democracy where wealth inequalities as well as racial, geographic, and partisan polarization divide America.  We have a democracy with institutions designed for the eighteenth century seeking to operate in the twenty-first century.

Simply put, there are many reasons to fear the crisis of a house divided.  There are  many reasons why  the likes of Donald Trump appeal to so many.  Yet what is scary is that his efforts to overturn the 2020 election results  and whether as a result of it he should be considered a viable presidential candidate divide America.  It ought to be a no brainer—What he did on January 6, 2021, was  simply wrong.  He encouraged a storming of the US capitol with the goal of effecting a coup d’état and overturning an  election.

He is an insurrectionist and should be barred from office under Section Three of  the Fourteenth Amendment.  At least this is the conclusion of a forthcoming article co-written by a former professor and colleague of mine Michael Stokes Paulsen.

The Fourteenth Amendment was one of three Post-Civil War Amendments and a host of legislation adopted as part of the Reconstruction.  The relevant part of Section Three states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The question is what does this section mean and how does it apply to Trump, if at all?

            Central to Paulsen’s argument is a historical analysis of the Amendment with an argument that concludes that the Section Three exclusion was written to address specific circumstances growing out of the Civil War and the need to prevent former Confederacy members from serving in office and impeding Reconstruction.  But one can read Section three more broadly, as is true of Section One with regards to Duer Process and Equal Protection, to still be part of the Constitution and applicable beyond the Civil War and Reconstruction.   We can read it to apply to future events and use it to exclude Trump from future office because of what he did on or around January 6, 2020.

            I am not a professional historian—I am trained with a Ph.D. in political science as well as a JD and master’s in law as well as advanced degrees in philosophy and astronomy.  It is possible that Paulsen is correct that Section Three applies beyond the facts of Civil War Reconstruction and it has the meaning  he ascribes to it.  However, I decided to defer to some of the best American legal historians regrading Section Three’s meaning.

             Urofsky and Finkelman’s A March of Liberty (volume I, p. 502) describes Section Three as a “severe sanction” to those who  held office before joining the Confederacy.   Kelly, Harbison, and Belz’s  The American Constitution (volume II, p. 333) as originally proposed  “unconditionally  disenfranchised  all participants in the late  rebellion until March 4, 1870.”  But many moderate rebellions objected to the provision as two severe and too temporary and therefore substituted the present language to prevent all those who formerly held office and engaged in rebellion from holding office unless permitted to do so by Congress.

            Foner’s The Second Founding (p. 85) dismisses Section Three  in one sentence as “long since faded into history.”  Foner’s masterpiece, Reconstruction:  America’s Unfinished Revolution acknowledges the Fourteenth Amendment can only be understood within the  content of the  1866 (257), the elections that year, and the fear that the present Andrew Johnson would undo efforts to  enfranchise former freed slaves (254).  Finally Maline and Rauch’s Empire for Liberty (volume II, p. 12) effectively ruled out all of the “South’s leaders” and was detested by  Southerners.

            At best historical evidence is mixed when it comes to the meaning and interpretation of Section Three.  Most  historians see it as time bound or limited to the circumstances immediately following the Civil War.   Yes, as Paulsen contends, other parts of the Fourteenth Amendment such as Section One may have a life beyond  the Civil War or Reconstruction, but just because one section is not limited by time and historical circumstances does not mean the entire Amendment is.

            The task here is not to criticize the historical claims.  One can concede the  history of Section Three and one can also concede that Trump encouraged an insurrection on January 6.  Yet it may nonetheless be bad policy to use Section Three to bar him from the office.

            Trump deserves to be punished for what he allegedly did.  This is why we have courts, due process, and rule of law. Let the criminal justice process do its job. Additionally, one has to feel uncomfortable  letting election officials make determinations of ballot access.  While such decisions are subject to judicial review, there is already a problem in the US with minor parties and candidates seeking ballot access and having to spend significant amounts of money to fight restrictive laws.  Granted their case is different from Trump’s but we should not empower more discretion in election officials to deny access to the ballot.

            Additionally, a generation ago in 2000 the Supreme Court’s Bush v. Gore  was criticized for resolving the election dispute in Florida.  Many said the Court picked the president.  Here if the Insurrection Clause is used to keep Trump off the Ballot,  courts again may determine who is the next president.  This is especially with the likelihood that the Supreme  Court may eventually review any lower court decision.

            But there is also a problem of precedent. Deny Trump access now and Section Three will turn into a partisan tool much in the same way the impeachment has eroded into gotcha politics.  In a polarized political environment such as the US is experiencing, keeping a candidate off the ballot does nothing to overcome that.

            Finally, keeping an opposition candidate off the ballot reeks of tactics that governments do in less than democratic states. 

            American democracy is in trouble and Trump is trouble for democracy.  He is a symptom of a deeper problem that keeping him off the ballot will not solve.  Short term political mobilization, especially in the critical five or six swing states that will decide the 2024 presidential election, is the solution.   Organize to defeat Trump.  But longer term there are major obstacles regarding race, class, and gender discrimination.  There are problems with election laws unfair to minor parties and candidates.  There is a need to address political disinformation.  The institutions of democracy need to be fixed.  Barring Trump from office will not accomplish that.

Sprawl v. Densification: A Hobson Environmental Choice for Cities

 

A Minnesota court and law has just dealt a major blow to the latest trend in urban planning theory—

densification and the elimination of single-family zoning. The implications of this decision should force cities and metropolitan areas to rethink the environmental tradeoffs between continued sprawl and urban density.

            New Urbanism declared urban sprawl bad for many reasons.  Among them, sprawl produced inefficient use of land and resources.  It forced the  use of cars on paved roads resulting in pollution and the use of carbon fuels.  It resulted in mega homes too costly to heat or cool and green lawns that used up too much water.  Sprawl was an environmental problem.

            The solution was  densification.  If cities were eliminate single-family zoning and encourage greater density of housing and business, it would be good for the environment, especially if coupled with the encouragement of  mass transit.  It would   yield a better use of land, provide for less use of carbon fuels and private cars to move people around.  Additionally, elimination of single-family zoning would encourage the building of more affordable housing and address the legacy of residential racial segregation.

            Minneapolis was the first on board with this idea.  Its 2040 comprehensive plan was heralded by the planning community as a major progressive reform.  It provided the model for other cities contemplating similar action to addressing a host of problems.

            But somewhere along the line the City of Minneapolis and reformers neglected to think about the environmental impact of densification.  A coalition of environmental groups challenged the Minneapolis 2040 plan, contending that it violated Minnesota’s Environmental Rights Act.  They brought suit contend that comp plans were subject to state environmental impact statement reviews.  The Minnesota Supreme Court ultimately agreed and finally on September 5, 2023 a Minnesota Court reached  a final order  declaring the 2024 Plan in violation of  state environmental laws and enjoined it enforcement.

            In reaching its decision a Minnesota District Court reached several findings of fact.  It found that densification and the plan to add nearly 150,00 residents to the city by 2040  would include among other things  increased noise impacts, pedestrian traffic, vehicle traffic and  vehicle congestion and idling.  It would result in decreased air quality, increased parking constraints, reductions of privacy, increased light and glare from buildings, decreased access to light for surrounding properties, shadowing of adjacent properties,  and impacts of existing solar panels on neighboring structures.  The  Court also noted that densification would produce more hard surfaces, exacerbating water runoffs and heat island effects.  Overall, simple densification would produce significant problems that the City had not accounted for.

            For now and pending appeals, Minneapolis cannot enforce the 2040 Comp Plan and it must continue to use the existing one.  But longer term the court opinion, if upheld, poses a Hobson’s choice for planners and metro areas.  Urban sprawl  poses  environmental problems as does renewed urban densification. 

How we assess the competing environmental tradeoffs in these competing  approaches suggest that  there needs to be a better balance or assessment in how cities and suburbs are constructed, and that will require  a rethinking of the types of housing built and where, and how we move people from place to place.  We also need to rethink  issues such as greenspace location and a host of other issues.    Perhaps the pandemic  and then changing patterns of where people are choosing to live  and work is the opportunity for this.  But for now the Minnesota courts are forcing reformers to rethink the environmental consequences of the latest  trend in planning.