Our politics are broken. A Supreme Court seat sits vacant due to the opposition party’s hopes that it can delay confirmation until a Republican assumes the presidency. The legislative process has more or less shut down outside a handful of must-pass bills, and it is far from clear that even those bills will pass in any given year. And the Republican party nominated a racist with little knowledge of government who openly brags about sexually assaulting women to be the next president.
If the polls are correct, Hillary Clinton will be the next President of the United States. But she will likely face off against GOP-controlled chambers of Congress. Due to gerrymandering and the GOP’s geographic advantages during the redistricting process, Democratic House candidates could potentially win the national popular vote by more than six points and still win only a minority of the seats in the House. And there’s a very real chance that the Senate will be under Republican control.
Should Republicans retain at least one house of Congress during a Clinton presidency, a constitutional crisis is likely. Indeed, there are four entirely predicable ways that this crisis could unfold: 1) a blockade on Clinton’s Supreme Court nominees; 2) a total blockade on all nominees; 3) an extended government shutdown; and, 4) a debt ceiling breach.
Notably, none of these are speculative examples. Three of the four involve tactics that the Republican Party has already deployed against President Obama, and the the fourth is only an escalation from a tactic the GOP is presently using against the president.
A Supreme Court blockade
At least three Republican senators have explicitly promised, in Sen. Richard Burr’s (R-NC) words, to “do everything I can do to make sure four years from now, we still got an opening on the Supreme Court” if Clinton prevails. Leading conservative voices, including Heritage Action and the Cato Institute’s primary Supreme Court advocate, also endorse this position. Meanwhile, while other Republican senators (including Burr himself, in a later statement) have tried to distance themselves from Burr’s explicit promise to reject anyone Clinton names to the Supreme Court, the emerging line offers only the illusion of moderation.
As Sen. Marco Rubio (R-FL) told The Guardian, he will oppose any nominee unless the nominee believes that “their job is to apply the constitution, according to its original intent,” a code word for a judges who will reach decisions consistent with the Republican Party’s preferences. (There are no current justices who actually believe that the Constitution should be interpreted “according to its original intent,” and very few scholars have advocated this position since it was largely discredited in the mid-1980s. Justice Samuel Alito, an extraordinarily conservative justice that Rubio presumably does not view as an ideologically unacceptable justice, is not an originalist of any kind.)
If Republicans succeed in holding the current Supreme Court vacancy open for the duration of Clinton’s term, they are already executing a plan that effectively allows them to continue the same judicial attacks on democratic governance that they would have executed if conservative Justice Antonin Scalia were still alive to give them a fifth vote.
When Texas’s Republican attorney general spearheaded a lawsuit challenging many of President Obama’s immigration policies, he filed the case in an obscure border city more than 300 miles from the state’s capital. Doing so all but ensured that the case would be assigned to Judge Andrew Hanen, a judge who often used his opinions to editorialize on why America needs harsher immigration policies.
After the case was indeed assigned to Hanen, the judge took the unusual step of issuing a nationwide injunction blocking the challenged policies. As an added bonus, federal court cases that arise out of Texas appeal to the United States Court of Appeals for the Fifth Circuit, an especially conservative appeals court, and this particular case was randomly assigned to two of the most conservative members of that court.
When the Supreme Court split on party lines regarding the legality of these policies, that tie vote permitted these lower court decisions to remain in place — effectively imposing the decision of a handful of very conservative judges, at least one of whom was hand-selected by the plaintiffs, on the rest of the nation.
Nor is this the only case where Republicans executed this strategy. In a separate case involving the rights of transgender Americans, Texas similarly manipulated the court system, landing their case in Judge Reed O’Connor’s courtroom. O’Connor’s record on LGBT rights is similar to Hanen’s record on immigration.
In the short term, a single vacancy on the Supreme Court will continue this practice where Republicans shop around for a judge of their choice, convince that judge to issue a nationwide injunction, then laugh as the Solicitor General begs one of the four conservative justices to object to this practice. In the longer term, however, much more serious problems could arise.
An undocumented immigrant from New York, for example, brought a case arguing that the administration is required to implement the immigration policies challenge by Texas, at least with respect to him. At an early hearing, moreover, a New York federal judge appeared sympathetic to this immigrant’s arguments. It’s possible that the United States will soon be subject to two conflicting court orders — one saying it must implement certain policies and another saying it must not. Without a functioning Supreme Court to resolve this conflict, it is far from clear what should happen.
Why should Clinton feel bound by 4–3 decisions handed down by a seven-justice Court with two vacancies held open by the opposition party’s scorched earth tactics?
A more troubling dilemma arises if one or more of the Court’s liberal members — two of whom are quite elderly — leaves the Court. It is one thing to expect President Hillary Clinton to obey the orders of a nine member Court made up of justices appointed through a fair and constitutional process. But why should Clinton feel bound by 4–3 decisions handed down by a seven-justice Court with two vacancies held open by the opposition party’s scorched earth tactics?
Given the choice between having her entire presidency held hostage by a rigged bench, and continuing to live in a nation with some semblance of governance, Clinton could easily choose not to obey such decisions — a possible workaround would be to only accept Supreme Court decisions joined by at least 5 justices. But such a move would strip the Court of what little legitimacy it retained after the GOP’s refusal to confirm anyone, potentially inspiring others to ignore Supreme Court decisions.
A total blockade on Clinton’s nominees
If Republicans can refuse to confirm any Supreme Court nominee Clinton offers up, there’s nothing requiring them to confirm anyone Clinton nominates for any Senate-confirmed position. Republicans could effectively hollow out the government by depriving it of cabinet secretaries, assistant secretaries, ambassadors, U.S. Attorneys, and other key officials. Moreover, after the Supreme Court’s decision in National Labor Relations Board v. Noel Canning, the president has minimal ability to fill vacancies through recess appointments.
Admittedly, the immediate impact of this tactic would be mitigated by the fact that Clinton would replace another president of the same party. So long as President Clinton can live with the team appointed by President Obama, she will not instantly find herself at the head of an empty executive team. But Obama’s team is not her own, and there’s no guarantee that they will work well with her. Maybe she doesn’t get along with Obama’s Secretary of Transportation, or she has different priorities than Obama’s Secretary of Health and Human Services.
And even if Clinton is able to fit seamlessly into her new role as general of someone else’s army, people retire. They move on to other job opportunities. Or they die. They also occasionally show such poor judgment that they need to be fired. But, without the ability to confirm a replacement, Clinton would face the choice between leaving an incompetent administrator in place or creating an unfillable vacancy.
There are workarounds that allow most agencies to keep running without some of its Senate-confirmed leaders in place, but these workarounds were not designed for a blanket blockade on confirmations. Federal law permits the president, for example, to designate an “acting officer,” who performs a senior role while a vacancy exists. But these acting appointments are temporary, and they can only be drawn from a limited pool of existing government employees. The fact that someone currently possesses the skills to be an excellent deputy assistant attorney general does not mean that they should be put in charge of the entire Justice Department. Yet, as more and more people leave senior positions in government, President Clinton would need to dig deeper and deeper into the remaining barrel of government employees to find replacements.
And there are also some agencies that effectively shut down if too many of certain key positions are left vacant. The most notable is the National Labor Relations Board, which has exclusive authority to enforce much of the law protecting workers right to unionize. In New Process Steel v. NLRB, however, the Supreme Court held that the Board cannot operate without at least three members of its five member board. The board members, it is also worth noting, serve time-limited terms.
The GOP, in other words, could effectively kill most of the legal framework protecting unions and unionized workers by simply waiting for at least three members of the NLRB to rotate off — and then refusing to confirm anyone to those three seats.
A long shutdown
A government shutdown is very likely if Republicans retain at least one house of Congress during a Clinton administration. Republicans tested President Bill Clinton’s resolve with a shutdown shortly after they took over Congress in 1995. They shutdown the government again in 2013 in a test of President Obama’s will to implement his signature health care law.
Both of these shutdowns, however, followed similar patterns. Republicans shut down the government, they took a political hit in the polls, and the shutdowns only lasted a few weeks. A more troubling question is what happens if an extended shutdown occurs — if Republicans refuse to reopen the government no matter what the polls have to say.
It’s not hard to game out how an extended shutdown could happen. Speaker Paul Ryan’s standing within his own party is at its lowest ebb. A recent poll found that 51 percent of Republicans prefer Trump’s views to Ryan’s — only 33 percent prefer the speaker. Ryan’s half-hearted support for Trump’s presidential run has not played well with the party base. It is questionable whether Ryan will remain speaker in the next Congress, and if he is replaced, there are early signs that the Freedom Caucus, an especially radical faction within the GOP, has its eyes on the speaker’s chair.
So Republicans could achieve the once-unlikely feet of electing a speaker even further to the right than Paul Ryan. And so long as a majority of the Republican caucus holds steady behind that speaker and a shutdown, the shutdown will continue.
Given the highly gerrymandered House districts, there’s no guarantee that the voters will be able to strip Republicans of their majority even if most of them would prefer to do so.
There’s no mechanism in our Constitution to deal with a legislature that simply refuses to fund the government. Though most of our peer democracies would call a snap election to resolve the impasse, our Constitution imposes a rigid, every-two-year schedule on congressional elections. Thus, if Republicans shut down the government in, say, July of 2017, the shutdown could last for a year-and-a-half before the voters can step in to stop it. Worse, given the highly gerrymandered House districts, there’s no guarantee that the voters will be able to strip Republicans of their majority even if most of them would prefer to do so.
There are extra-constitutional, but democratically legitimate steps that President Clinton could take to resolve such an impasse. Clinton could, for example, call a snap election anyway. Or she could call a referendum on a new constitution that includes a safety valve preventing extended shutdowns.
But these solutions would depend on the support of actors such as the military and internal police forces, who could potentially balk at an extra-constitutional solution to a national crisis. An immediate concern, for example, if a snap election deposed Republican supporters of the shutdown, is whether the Capitol Police would side with the deposed Republican lawmakers or the newly elected Democratic ones (and that’s assuming that a snap election returns a Democratic Congress).
Given the recent political attacks on Clinton from within the FBI, it is far from clear that she could depend on deep state actors within the government to back her play if she took extraordinary action to end a prolonged shutdown.
A debt ceiling breach
The threat of a debt ceiling breach is, sadly, something the United States has lived with for several years now. The debt ceiling is a superfluous legal restriction which prohibits the government from borrowing more than a certain amount of money, even if it has already incurred obligations that must be paid through borrowing or if Congress has already ordered the Treasury to pay money in excess of this borrowing limit.
By enacting such a debt limit, Congress effectively wrote a time bomb into federal law. Every time we approach the debt limit, we risk defaulting on our financial obligations and destroying our nation’s credit unless the debt ceiling is raised to accommodate these obligations.
If the debt ceiling is every breached, moreover, it would have catastrophic impacts on the world economy as one of the fundamental assumptions held by investors across the globe — that the United States can be relied upon to pay its creditors — would be immediately called into question. As Matthew O’Brien explains, defaulting on our debts “forever raises our borrowing costs and lowers our standard of living tomorrow.”
The Treasury Department offers an even more ominous warning. Breaching the debt limit could result in “a recession more severe than any seen since the Great Depression.”
Once we default on our debts, even once, and even only for a brief period of time, there will evermore be a cloud of doubt hanging over our ability to make good on our financial obligations.
Republicans attempted several times during the Obama presidency to use the threat of a debt ceiling breach to extort policy concessions from President Obama. They even succeeded once, reaching a deal that one lawmaker described as “a sugar-coated Satan sandwich.” Given this success in convincing a relatively inexperienced president to negotiate with extortionists, it is likely that a Republican Congress will repeat the same tactic in a Clinton presidency.
The biggest danger of a debt ceiling breach, moreover, is that it is irreversible. Once we default on our debts, even once, and even only for a brief period of time, there will evermore be a cloud of doubt hanging over our ability to make good on our financial obligations. The United States will never again have perfect credit, and that alone is enough to trigger catastrophic economic consequences.
In that sense, the risk from a debt ceiling breach is even greater than the risk presented by the other potential crises on this list. Republicans can refuse to confirm someone, and then change their mind. They can shut down the government, and then back down and reopen it. But once the debt ceiling is breached, we face permanent damage that can never be fully healed.