What Minnesota Can Teach America About Avoiding Future Government Shutdowns: Don’t do What we did, Adopt an Automatic Continuing Resolution Law

The US government shutdown is over and now the obviously and entirely predictable boring ping pong match begins.  By that, the entire focus will be on one side gloating that Democrats and Nancy Pelosi won and Donald Trump lost.  Over-quoted and deserved to be ignored conservatives like Ann Coulter on cue bemoan how Trump lost and the Rachel Maddows of the world  respond to her equally on cue, all as part of a click-bait politainment process to hype ratings.  This column will not use the phrase “cave in” more than once, but as of Saturday morning (January 26, 2019) that phrase had 15,300,000 results on a Google search.
The real focus now should be on the causes and consequences of the shutdown and how to prevent a future one.  Technically the government shuts down when there is no legal authorization to spend money. There is a simple way to prevent shutdowns whether in three weeks or the future and it is the same solution I have argued for in Minnesota for the past 15 years–pass a law enabling an automatic continuing resolution to continue funding the government in the event that no budget agreement or normal continuing resolution are adopted.
Minnesotans know a lot about government shutdowns.  We have had three since 2001–more than any government in the US, if not the world.   What we have learned about what causes and ends them might tell Americans something about why the current US shutdown occurred and what it will take to end it and perhaps prevent future ones.
Minnesota is a microcosm of the US.  It once enjoyed a  pristine image political image.  Touted in the 1970s with then governor Wendell Anderson on the cover of Time Magazine as the state that works, the reality is that Minnesota has become a partisanly divided state that has impacted the performance of its state government.  Minnesota is the only state with split partisan control of the legislature. Similar to the federal government which has a budget process and deadlines, Minnesota has one too. 
Yet since the beginning of the twenty-first century, the state has more often than not missed statutory deadlines, resulting in government closures and court fights.  In 2001 with Democrats in control of the Senate, Republicans in the House, and Independence Party Governor Jesse Ventura, the state started its new fiscal year without a budget but was saved from a shutdown with a last minute deal.  With a similar partisan legislative split in 2005 and Republican Tim Pawlenty as governor, there was a partial shutdown of nine days, and in 2011 with Republicans controlling both houses of the legislature and Democrat Mark Dayton as governor, there was a 20-day partial shutdown. In each case, state courts intervened to order essential governmental functions to be funded, and the shutdowns ended when public pressure and political self-interest drove leaders to compromise.  It also did not hurt that the inability to issue beer licenses added to the public pressure.
In addition to these shutdowns, in 2009 Tim Pawlenty sought to use special powers referred to unallotment to end a budget impasse (perhaps similar to President Trump’s threat to use the National Emergencies Act to build the wall), only to see the state supreme court reject it.  In 2017 Governor Dayton used his line-item veto to eliminate funding for the state legislature’s operations in retaliation for the latter’s refusal to follow his budget wishes.  In 2018 he vetoed an omnibus spending bill the Republicans had adopted, containing 80% of all the substantive legislation they had adopted that year.
The causes of Minnesota’s budget woes are multiple. The state has an antiquated budget process, built for a horse and buggy era seeking to operate in a twenty-first century environment.  The budget process is highly decentralized, imposes unrealistic deadlines, and has built into it simply bad policies such as a requirement counting inflation for the sake of revenue but ignoring it when it comes to obligations.  The defective formal process is compounded by partisan divides and polarization not anticipated when the budget process was first designed, as well as by inflated egos, partisan ambitions, and lack of leadership.  When a flawed process is accompanied by petty politics, the result is political dysfunction.  The way the shutdowns ended was a combination of court interventions, public pressures, and fear of electoral reprisal.
Much of what we see in Minnesota is exactly what we see at the federal level.  The formal budget process as articulated in the 1974 Congressional Budget and Impoundment Act simply is broken and needs to be remade. It was legislation adopted post Watergate when there still existed a high degree of consensus on spending priorities and when federal spending was significantly less than it is today. Over time, the process has only four times produced a budget on time (the last in 1997), with most of the time the federal government operating on a series of continuing  resolutions. Fast forward more than 40 years, the budget process is too weak to combat the partisan divide and lack of leadership in Washington, demonstrating that now it is completely broken.
Process and procedure are important, but the history of Minnesota’s and the federal budgeting demonstrate that formal procedures can only go so far.  A bad process makes it hard to do good budgeting.  But processes are only as good as the people who use them.  Budget disputes and government shutdowns are the product of significant political dissensus and failures of leadership.  So much of the US government, from the days of the constitutional framers to the present, was premised upon a basic underlying consensus and commitment to the public good that has evaporated.  Unfortunately, what is needed are new institutional rules to address this reality.
For the last 15 years in Minnesota I have argued for adoption of an automatic continuing resolution that would keep it funded no matter what.  The same should be adopted at the federal level.  The federal government should also consider biennial as opposed to annual budgets, and consider changing committee structures and time lines to streamline the process.  But even with these fixes, they will not solve the core problem driving government shutdowns–polarization, political pettiness, and a crisis of leadership.  After each of its shutdowns Minnesota failed to learn from it mistakes, making no changes in the budget process or adopting the automatic continuing resolution idea.  Instead, the focus was on who was the winner and loser.  The same is now occurring after this federal shutdown.  We will learn little from it and set the country up perhaps for another shutdown in three weeks or in the future.

Nancy Pelosi is Wrong–Congress is not co-equal to the president, the framers intended it to be superior.

House Speaker Nancy Pelosi got it wrong in recently declaring Congress as co-equal to the
president.  The reality is that the Constitution and its framers endorsed the concept of legislative  supremacy where Congress is supposed to be the dominate branch of government.   This supremacy  is the key to checking abuses of presidential power.
When Speaker Pelosi initially invited President Trump to deliver the State of the Union speech to Congress on January 29, she wrote: "The Constitution established the legislative, executive and judicial branches as co-equal branches of government, to be a check and balance on each other."
As the framers wrote the Constitution, they did so with the belief in legislative supremacy and the idea that Congress would be the most powerful branch of the government.  Separation of powers and checks and balances were critical features to the new constitution, but  branch co-equality was not.
Consider first the intellectual and historical circumstances surrounding the writing of the Constitution.  The American revolutionary war, as described in the Declaration of Independence, was largely about fear of the British monarchical executive power of King George III.  Much of the Declaration reads as a bill of particulars against the abuses of the king.  In arguing against monarchical powers, the framers were part of a long intellectual and historical tradition going back to seventeenth century England, if not to the Magna Charta,  arguing against the absolute power of kings and queens and in favor of a parliament. 
The British civil wars and the Glorious Revolution were about that.  The American founders were heavily influenced by British political philosopher John Locke who argued precisely in favor of parliamentary supremacy, against monarchical absolutism, and in favor of separation of powers.  Similarly, French political philosopher Baron de Montesquieu, who also  influenced the framers of the Constitution, too argued for separation of powers, but never asserted that the three branches of government would be co-equal.  Instead, he saw legislative authority as supreme and needing checks on it.
At the 1787 constitutional convention several of the framers argued the case that the legislature (Congress) needed to be checked because it was so powerful and, almost quoting Montesquieu verbatim,  could threaten the executive branch.  In part, the fear of Congress’ power was in part the basis of bicameralism (dividing the legislature in two to check its power) and giving the president a veto.
Further proof of legislative supremacy can be found in the text of the Constitution.  Article I which vests legislative power in Congress contains far more enumerated and implied powers than does Article II which vests executive powers in the president.  If a simple listing of the number of powers assigned to each branch means anything in terms of how to assess the relative powers of the two branches, by far Congress was more powerful.
But turn also to the Federalist Papers, considered by many including numerous Supreme Court Justices the definitive statement by Alexander Hamilton, James Madison, and John Jay regarding what the Constitution was supposed to mean.  In Federalist 39 Madison states:
But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature.

Additionally, in Federalist 48 Madison declares:
The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.

History and framers’ intent do not support the idea of co-equality.  Historian Arthur Schlesinger, Jr.  in his 1973 The Imperial Presidency made the same point, as did political scientist David Siemer in his 2018 The Myth of Coequal Branches: Restoring the Constitution’s Separation of Functions.   
What has happened over time is that both as a result of executive branch usurpation and congressional  acquiescence, the president has become too powerful.  Post-Watergate, there were efforts to correct this balance, but they lapsed. And as we have seen in the last few administrations, presidents continue to exercise too much power through executive orders and other actions,  and they need to be checked.  Congress reasserting itself as the dominant branch of the national government is one way to do that.

Presidential Emergency Power: Can Trump Build a Wall?

The more President Trump changes his mind about declaring a national emergency to build his wall the less likely it is that he has the authority to do it.  But even if he had declared a national emergency immediately, it is unlikely the Constitution or congressional statute allows him to do it.  That is perhaps why Trump has not invoke emergency powers to build the wall–basic principles of American law suggest he lacks the authority to do it.
The US Constitution is a power conferring document.  There are no extra-constitutional powers.  Before the president or any branch of the national government does something it needs to trace authority back to the explicit text of the Constitution or the power must be necessarily implied.  In the case of the president, his authority comes from Article II of the Constitution, or he may be delegated some additional authority to him from Congress via Article I.
Under Article II section 1, executive power is vested in the president.  Under Article II, section 3, the president shall take care that the laws are faithfully executed.  Through either of these clauses the president can issue an executive order and declare a national emergency, but what does that really mean?  Does it mean presidents can ignore existing law or do whatever they want for whatever reason?  Doubtful.  President’s cannot manufacture an emergency and then invoke undefined  powers to ignore the law or the Constitution; this idea violates the very idea of rule of law and the concept of American constitutionalism.
Presidents do not get the right to decide what is an emergency and do whatever they want.  The Supreme Court said this arguably one of the most important cases of all time, Youngstown v Sawyer, 343 U.S. 579 (1952).  Here President Truman declared an emergency and nationalized the steel mills during the Korean War to prevent a labor strike that would have affected production.  If ever there was a crisis, war was it, and the Court ruled against Truman.  In Youngstown many legal scholars think Justice Jackson’s concurrence is best statement ever on presidential power.  Acting with congressional assent presidents have  enhanced power, with congressional silence they only have the powers given to them by Article II, and acting against congressional wishes, presidents have diminished authority.  Truman was acting on his own and lacked the authority to act.  However this third scenario is where Trump is right now when it comes to the wall and the emergency here is no greater than what Truman faced.  There are at least two laws that limit Trump’s discretion to act.
The first law is the 1974 National Emergencies Act.  Responding to abuse by previous presidents, this Act sought to constrain unregulated use of presidential declarations of national emergencies.  Unfortunately, the Act does not define what a national emergency is, leaving it up to the president’s discretion, subject to congressional veto or check on the declaration.  However, there are three problems with this Act. 
First, the original concept of this legislative veto is arguably unconstitutional  as a result of other Supreme Court decisions such as INS v. Chadha, 462 U.S. 919 (1983).  Second, it is not clear that Congress can give the president unbridled or unrestricted discretion to act, especially to disregard  other congressional statutes or provisions, unless it specifically says so.  While the Court is reluctant to invoke the delegation doctrine to limit presidential authority and has not done so since the New Deal, the wide-open language of the National Emergencies Act is a perfect place for the Roberts Court to do this.
But third, there is another law that points to why the president cannot invoke the National Emergencies Act to build the wall.  It is the 1974 Budget Act.  Responding to abuses by Richard Nixon who impounded or refused to spend money allocated by Congress, the Act placed limits on the ability of the president to do this.   In Train v. City of New York, 420 U.S. 35 (1975), the Supreme Court upheld the Budget Act saying that once Congress has allocated money for something the president is not free to disregard the law and spend or not as he wishes. 
The question is, does the authority grant to the president under the National Emergencies Act supersede the Budget Act?  There is no indication that the latter was meant to free the president to disregard spending priorities mandated by Congress.  If there were, Congress would have said so in the Act.  But even if such an intent or purpose was implied, it is doubtful given the purposes of the Budget and National Emergencies Acts that these statutes could be interpreted to be expanding as opposed to contracting presidential authority.  But, as noted above, if Congress did intend this,  it is unconstitutional.  Finally, supposedly Trump is looking at raiding money from hurricane  relief funds.  There is no indication that in allocating this money Congress intended it to be diverted for other purposes.  Whatever general intent the Emergencies Act has, it cannot override specific intent or a mandate to spend as decided by a particular statute. 
There are two addition  problems with Trump invoking the National Emergencies Act.  First, the Act is not for politically manufactured emergencies, especially ones created by the president himself.    Trump today could end the emergency by agreeing to sign a spending bill or continuing resolution.  Giving presidents the ability to invoke a national emergency during negotiations with Congress so that they can get their way is like letting someone take their bat and ball and going home if they are losing.  The National Emergencies Act is not a tool to bypass the Constitution.   Under Chevron v. NRDC, 468 U.S. 1227 (1984), courts are supposed to give deference to reasonable executive agency determinations of ambiguous statutes.  Conservatives, including Justice  Gorsuch, have increasingly questioned Chevron deference and there many be a majority either unwilling to give Trump the benefit of doubt regarding what a national emergency is, finding his use  or interpretation is unreasonable.
Second,  the longer and more Trump delays or vacillates in declaring an emergency the more it shows that the border problem is not an emergency in any ordinary dictionary meaning of the term.
Perhaps then why the President is not invoking the National Emergency Act simply is that  he has been told he will not win this legally, on top of the fact that he is not winning this fight politically.

Alexandria Ocasio-Cortez and High Taxes on the Wealthy: Do they matter?

Let me tell you how it will be
There's one for you, nineteen for me
'Cause I'm the taxman, yeah, I'm the taxman.

–Beatles, The Taxman

Taxes impede economic growth and high taxes kill the economy, right?. This is the belief among many who criticize Representative Alexandria Ocasio-Cortez’s proposal to raise taxes on the wealthy to 70% or more.  But what does the evidence really tell us?

Do high taxes really hurt the economy as much as they believe, and will lowering them have much of an impact on stimulating it? The economic literature is clear — tax breaks to encourage economic relocation or investment decisions are inefficient and wasteful. Hundreds of studies reach this conclusion. When businesses are surveyed regarding factors important to their investment decisions, taxes often come in behind proximity to markets, suppliers, and the quality of the labor force. These other factors occupy a larger percentage of a business's budget than do taxes, and all of them are far more critical to long-term success than are taxes. Businesses occasionally admit this. Nearly 62 percent of those interviewed in a California study on hiring tax credits indicated that they had never or rarely affected their decision to employ individuals.

Anecdotal stories and illustrations also confirm the tax fallacy. High tax states such as Minnesota have generally fared better in terms of economic growth, unemployment, median family incomes, and location of Fortune 500 companies than low tax ones such as Mississippi and Alabama. In many situations high taxes, and with that, government expenditures on education, workforce training, and infrastructure, correlate positively with income, low unemployment, and business retention. One needs to look not just a one side of the equation—taxes—but the other side too—what taxes buy—to see what value businesses get out of them in terms of educated workforces and infrastructure investments. Most debates fail to do this.

Bureau of Economic Analysis statistics demonstrate how economic growth is related to tax rates. One can compare annual economic growth as measured by the percent change in the gross domestic product (GDP) percent based on current dollars to the highest federal individual tax rate and the top corporate tax rate since 1930. If taxes are a factor affecting economic growth, one should see an inverse relationship between growth of the U.S. economy and higher tax rates. The GDP should grow more quickly when top individual and corporate tax rates are lower. If taxes are a major factor deterring economic growth, lines on a graph should go in opposite directions: As tax rates go up the GDP should go down.

No such pattern emerges between high taxes and GDP growth over 80 years. During the Depression of the 1930s corporate and individual taxes rates increased, but in 1934 through 1937 the GDP grew by 17%, 11%, and 14% annually. Top corporate tax rates climbed to over 50% through the 1960s, again with no discernable pattern associated with decreased economic growth. The same is true with top tax rates on the richest which were 91% into the 1960s. Conversely, since the 1980s after Kemp-Roth and then after 2001 with the Bush era tax cuts, there is no evidence that the economy grew more rapidly than in eras with significantly higher tax rates on the wealthy and corporations.  The same is true even of the much heralded 1960s Kennedy tax cuts.  While at one time economists thought they had an almost magical impact on the economy, more recent evidence questions that.

Looking at time periods when tax rates were at their highest, GDP often grew more robustly than when taxes were cut.

Pictures are worth a thousand words, but statistics are priceless. Statistically, if a tax hurts economic growth, the correction with it is -1. If they positively facilitate growth the relationship is 1, and if they have no impact the relationship is 0. The correlation between GDP and top individual taxes is 0.29, between GDP and top corporate taxes is 0.32, and among the three it is 0.14. Statistically, there is a slight positive impact on either top individual or corporate taxes or economic growth, but overall almost no connection between tax rates on the wealthy and corporations and economic growth in the United States.

But what about taxes as job killers? Again running similar statistical tests, there is little connection. Using Bureau of Labor Statistics data on unemployment rates since 1940, the correlation among top individual and corporate taxes and the annual unemployment rate is -0.02—essentially no connection at all.

The simple claim that high tax rates on the wealthy and corporations hurt economic growth and job production is false. The evidence is simply not there to support assertions that high taxes alone hurt the economy or that cutting them will have the stimulus effect asserted.  Representative Alexandria Ocasio-Cortez may be correct that increasing taxes on the wealthy will not only be more fair, but an efficient means to stimulate the economy, help the poor, and generate the resources necessary to fund a fair and equitable America.

Taxing Politics in the 2019 Minnesota Legislative Session

Taxes are always a contentious issue in Minnesota politics.   Who pays, how much, and for what purposes divides the DFL and Republican parties.  The same will be true in the 2019 session.  While the focus going into the session has been Governor Walz’s plan to raise the gas tax to pay for long term infrastructure maintenance to roads, bridges, and highways, four or five other taxes could shape the session and complicate the gas tax debate.

First, one of the items left undone from the 2018 legislative session was changing Minnesota tax law to conform with federal changes in 2017.  It was passed by the Republican legislature and vetoed by Governor Dayton.  The failure to pass tax conformity makes it more complicated by taxpayers to do their state taxes, but it also will cost them more if the state does not change its tax code. One estimate is the the failure to change the law will cost taxpayers nearly $60 million;  conversely conformity potentially means less money coming into the state.

Second, the Minnesota Health Care Provider tax expires at the end of the year.  It generates $700 million annually, paying for programs such as MinnesotaCare, the insurance for the working poor.  Tim Walz and the DFL wish to renew it, Republicans views it as a  "sick tax."  Were this tax to expire it would leave a major hole in the state budget, complicating Democrat's plans to create a single payer health care law in the state.

Third, Minnesota like every other state has an infrastructure problem.  There is insufficient money  to pay for transportation infrastructure maintenance.  Even though the Minnesota Constitution has language authorizing a gas tax, the revenues it generates are insufficient for the needs in the state.  Simply put, we have more roads, bridges, and highways than ever, more people driving on them than ever before.  Current revenues are not keeping pace with needs, therefore necessitating additional money.

The obvious revenue source is the gas tax.  On the one hand increasing the gas tax makes sense–it is sort of like a  user few on driving.  The more you drive or use the roads the more of a fee or tax you pay.  On the other hand, there are several problems with the gas tax.  First, it is not directly  a user fee on driving–it is really a carbon fuels fee that in theory acts to discourage people from polluting.  Second, the gas tax is regressive, hurting people more heavily who are low income and have to drive to work and may not have a mass transit alternative (including in rural areas).  Third, as cars become more fuel efficient, the gas tax produces less revenue.  Finally, increasing the gas tax is politically explosive.  When it was last raised under Governor Pawlenty and several Republicans  voted for it they were ousted from the party in primaries or elections.  Governor Dayton wanted a gas tax as part of a more permanent fix for Minnesota’s infrastructure spending, but it went nowhere.

Enter Tim Walz.  He too wants to fix and fund Minnesota’s infrastructure deficit, looking  at the gas tax as a possible solution.  His cabinet appointments, such as Margaret Anderson Kelleher as MNDOT commissioner, point to this as a priority because she was the Speaker of the House when the last gas tax was adopted.  But Republican opposition to a gas tax persists, and the illusionary  $1.5 billion budget surplus complicates any argument to raise taxes. Why, for Republicans, should we raise taxes when there is a surplus?  Use it to pay for infrastructure.

This surplus is illusionary for several reasons.  First, state law still factors in inflation for revenue projections but not obligations.  This was the pact Tim Pawlenty and Roger Moe made in 2002 when they were in the legislature and running for governor and they wanted to deal with a budget deficit though cooking the state’s books.  Adjust for inflation, a lot of the surplus disappears.  Second, part of the surplus must go into a rainy day fund.  Third, even at its full value, $1.5 billion  is barely three-percent in a $50+ state budget.  Fourth,  the surplus assumes  status quo in terms of some revenue sources.  For example, if the Health Care Provider tax were to expire it alone might cut into half of the projected surplus.  Finally, as the recent state fiscal forecast pointed out, revenue estimates can changes with a slowing economy projected to occur in 2020. The point is that the surplus really does not exist, but the belief that it does will harden opposition to a gas tax.

Yet there are three other potential taxes or sources of revenue out there that could serve as bargaining tools for infrastructure and much of the budget negotiations this year.  First, last June 2018 the Supreme Court ruled in South Dakota v. Wayfair that states, including Minnesota, could require Internet and out of state businesses such as Amazon to collect sales or use taxes on purchases.  While short term the windfall from Wayfair could be significant, short term it has not so far generated much.  Nonetheless, Internet sales taxes open up one new revenue stream.

Second, another Supreme Court decision, Murphy v. NCAA, struck down a federal law preventing states from legalizing sports gambling.  This decision opens the possibility for Minnesota to legalize a new revenue stream with potential large payoffs.  However, tribal casinos, non-profits (the latter who do charitable gambling), and the state lottery may oppose this.

Finally, Forbes magazine recently ran an article depicting Minnesota as one of a handful of states likely to legalize recreational marijuana.  It is not clear that will happen and if so, what legalization will look like.  But one possibility is also to allow for commercial sale.  Commercial, if done as it has occurred in Colorado, too could be a source of tens of millions of dollars of new revenue.  Whether there is a political coalition to support this option is unclear.

But given the options of Internet sales tax, sports betting, and marijuana taxes, their possibilities may complicate demands for a gas tax.   One could also see strange options, with calls to legalize marijuana or sports betting  and tax them to pay for infrastructure or replace the Health Care Provider tax.  Or perhaps federal tax conformity--something more prized by Republicans perhaps, is traded for something else such as expansion of sports gaming, the gas tax, or the Provider tax. . Perhaps trading tax options might build support, even among Republicans, for legalizing marijuana or supporting spending programs the Walz administration wants.

Democrats vs. Trump: Why Status Quo Ante and Obamaism are Not Enough

Today's blog originally appeared in Counterpunch.


Beginning January 3, the Democrats have a choice:  Do they act simply as anti-Trumps, seeking to reverse his policies and revert to status quo ante Obama- politics, or do they move toward something more transformational?  If they are politically smart, they do the latter and build policies and a coalition more permanent.  If they do the former they set themselves for failure and position themselves for setting up the conditions that led to their demise over the last generation.  The challenge for Democrats is navigating this choice, and it is not clear they can successfully do it given the distinct interests within their party.

Democrats, especially in the US House, face complex challenges governing.  In part, their agenda is determined by the lessons of 2016 and 2018 elections.  Theory one is that Clinton and the Democrats lost in 2016 because they failed to take Trump seriously.  Clinton was a weak candidate with a poor message and campaign strategy who ran on the politics of the status quo in an election whose geography came down to a handful of swing states.   She and her party lost because  critical voters, such as women, people of color, and those under the age of 30 stay home because Democrats assumed they would show up to vote, and they did not, while at the same time angry white men did.

Democrats  won in 2018 because Trump was despised, especially by female voters in more affluent and better educated suburbs where Democrats ran candidates who worked hard to get out the vote and mobilize voters who stayed home in 2016.  If this is the theory of what happened, then the Democratic agenda is set: Reverse Trumpism, bring back Obama-era policies, and take on the president with aggressive investigations and checks that could include impeachment.  Do this and many of those lost white, working class voters will return to the party.

Theory two is that the lesson of 2016 and 2018 is tht the Democrats lost because of 40 years of complicity in neoliberal politics, transcending the Bill Clinton and Barack Obama administrations, and which Hillary Clinton personified.  It was a set of policies where Democrats, having embraced  big money from Wall Street, did little to address the rising gap between the rich and poor, where trade, industrial, and tax policies disproportionally hit those lacking a college education, and where the primacy of identity politics ignored the plight of white working class America–still the largest voting block in the country.  When the Great Recession of 2009 hit, Democrats bailed out the banks but not the people, ignored  unions who wanted labor laws updated, and adopted a tepid Republican-inspired health care bill.  If this is the theory of what happened, simply going back to Obama-era policies is not enough.  Democrats need a more transformative agenda, linking policy change to constituencies, including  major voting rights and elections reform, health care, education funding, and addressing the gap between the rich and poor.

The reality is that the lessons of 2016 and 2018 may be a little bit both theories.  For many  simple reversal and opposition of Trumpism is enough, and this might appeal to the suburban voters and establishment Democrats.  Tinkering with Obama-era policies may be the limit of what these voters want.  But for others, especially many of the Millennial and Gen Z voters located in the urban cores, they want a more transformational agenda because the legacy of the Democratic Party’s Neo-liberalism have left them broke, holding significant college loans, or in the case of people of color, policies that failed to address all the disparities between them and White America.

The Democrats challenge is knitting together a set of policies that make sense of both theories about why they won and lost and hold together a coalition that may have very different perceptions of what it means to be anti-Trumpism.  While short-term expediency may require Democrats to moderate their policies to hold suburban voters in their fold, longer term this strategy  clashes with the more progressive agenda needed to hold the other wing of the coalition together.  However, thinking that simply returning to Obamaism is enough will fail to hold either of these constituencies.  Even the more moderate and suburban voters want more than the return of Obamacare.  Democrats need to delivery on reality of  making health care and education more affordable.  They want safer schools with fewer guns, they want a clearer environment, and they want an economy where they feel they are treated fairly.  Simple Obamaism was not enough to do that, and it will do nothing to bring back white working class voters to the Democrats, although it is not clear really anything will move the core base of Trump to switch their vote.

The 2016, 2018, and 2020 elections are potentially producing what political scientists call a critical realignment in American politics that redefines party coalitions, agendas, and policies.  The Democrats lost because they failed to adopt and adapt politics to an emerging new coalition in America while also ignoring or taking for granted their base.  There is no question that Democrats have lost some voters and will never recapture them, but if it has any hope at  building a new permanent coalition it cannot simply be the Obama antithesis party to Trump.

Congress, Trump, and U.S. Foreign Policy

Note:  Today's blog also appears in the International Policy Digest.

With Democratic Party control of the US House of Representatives, most of the speculation is about how they will check Donald Trump’s domestic policy or use their investigatory powers to probe executive branch criminality or perhaps impeach the president. Neglected, yet equally important, is how Congress may influence Trump’s foreign policy. While Congress has imposed some limits on Trump in this area such as mandating Russian sanctions and expressing disapproval of the way he handled the Khashoggi murder, for the most part, they have given him a free hand to direct American foreign policy. This hands-off approach potentially will change.

Trump’s foreign policy record is well known. He pulled the US out the Paris Accords, the Trans Pacific Partnership and the Iran Nuclear Agreement. He has withdrawn the US from UN Human Rights Council, moved the US embassy in Israel to Jerusalem, sought a Muslim travel ban, tightened up on immigration, restricted political asylum, and continues to demand a wall along the US southern border. He has also announced troop pullouts in Syria and Afghanistan, initially threatened war with North Korea, engaged in tariff and trade wars with China, praised Vladimir Putin and Kim Jong-Un and fought with Angela Merkel and Emmanuel Macron. He rejects liberal democratic interventionism as a guiding principle of US foreign policy, preferring nationalism and has given us the definite impression that he is indifferent to human rights.

US Presidents have significant leeway and authority over foreign policy. They have been given that authority both through the Constitution and congressional legislation. In United States v. Curtiss-Wright Export Corporation (299 U.S. 304, 1936,) the US Supreme Court declared that whatever constitutional powers limit presidents domestically, they have more authority to act in foreign affairs.

Youngstown Sheet and Tube v. Sawyer (343 U.S. 579, 1952) also known as the “Steel Seizure” case, may be one of the most influential cases on foreign policy in the Court’s history—at least it has become so. While the Court struck down President Truman’s effort to nationalize the steel industry in order to avert a strike and the interruption of steel production during the Korean War, Justice Jackson’s concurring opinion described a tripartite division of presidential power in foreign affairs depending on whether the chief executive is acting alone or with or against congressional approval.

Presidents from Lyndon Johnson to George Bush cite it to support their military ventures, especially when they can point to congressional resolutions endorsing their actions. It seems to suggest, following Curtiss-Wright, that Congress can augment presidential power in foreign affairs by authorizing the chief executive to act. Finally, in Dames & Moore v. Regan (453 U.S. 654, 1981), the Court upheld President’s Carter’s authority to resolve the Iran hostage crisis and make private claims against the Iranian government. Collectively, these three cases and others suggest that presidents have broad authority over foreign policy.

Yet this power is not unlimited. Textually, Article I of the Constitution gives Congress more foreign policy authority than the president, if they opt to use it. The problem has been that Congress over time has abdicated much of its authority. Trump’s incoherent if not destructive (to many observers) foreign policy decisions gives Congress the occasion to act.

Congress has at least four broad powers it can use to control US foreign policy–budgetary, statutory, investigatory, and advice and consent. The House and the Senate can use the power of the purse to specifically fund or refuse to pay for various Trump foreign policy initiatives. It could refuse to fund covert or military activities, or not fund his wall. Second, Congress could impose statutory obligations on the president to fund or provide certain programs, fill diplomatic posts, withdraw or limit discretion to impose tariffs or sanctions or constrain his ability to affect immigration. Third, congressional investigatory authority can force the president to be more accountable and disclose actions or information he is undertaking. Finally, the Senate’s advice and consent role can check presidential appointments and treaty actions. Many of the powers that Congress has to check the president can be imposed even in the face of a veto or if the Democratic House and Republican Senate do not agree. Particularly, withholding budgetary authority or using its investigatory power can be accomplished unilaterally by the House.

Congress had the authority to check Trump’s international agenda and one can expect that it will. Reigning in this aspect of the Trump presidency has been one of the ignored consequences of the 2018 elections. But control of US foreign policy, specifically over several issues such as China, Korea, trade, immigration, and military matters, will be one the areas where Congress and Trump will clash for the next two years.