Demosclerosis redux

Following the drama of the recent US mid-term elections, the IBA’s US Correspondent makes a clear-eyed assessment of what a divided government will look like under President Trump.

The term, ‘demosclerosis’ was coined after the first mid-term vote of Bill Clinton’s presidency. Then, as now, the party that had been shut out of power regained the House of Representatives and Washington was seen as too riven to pass laws. In fact, the Clintonian Democrats tacked toward the centre to reform welfare.

With Trumpist Republicans retaining the presidency and Senate, legal sclerosis will be more of a reality. House Democrats will block their agenda of repealing Obamacare, gutting entitlements and defunding regulators. Even where compromise is conceivable, as in infrastructure, the parties would need to overcome divergent policy approaches and universal ill will. Deadlock over building a wall is more likely than a kumbaya over building bridges.

But Congress will not be wholly paralysed, for each chamber has unilateral powers, and as the norms of restraint erode, those powers will be deployed aggressively. The two-year forecast is for a downpour of House oversight subpoenas and Senate judicial confirmations.

What we won’t see is a replay of impeachment. The 1990s taught us that impeachment is worthless without a Senate supermajority to convict and will only boost the President’s popularity. Leading Democrats plan instead to use strategically the investigatory powers that come with a House majority.

For starters, the House Committee on Ways and Means may now demand the President’s tax returns from the Secretary of the Treasury. This would hardly be a surprise, as the Democrats symbolically asked for the President’s tax returns 17 times while they were in the minority. According to incoming House Speaker Nancy Pelosi, ‘That is one of the first things we’d do – that’s the easiest thing in the world.’


“Everyone knows Senate Majority Leader Mitch McConnell kept open a Supreme Court seat for President Trump to fill. Less well-known is that he kept open 108 lower court vacancies


Rather than impeach the President, Representative Jerrold Nadler will use the House Committee on the Judiciary to probe if the President’s business conflicts amount to unconstitutional emoluments. Representative Elijah Cummings, set to chair the House Committee on Oversight and Government Reform, aims to focus on Trump administration corruption more broadly. Representatives Adam Schiff and Maxine Waters, who will head the Intelligence and Financial Services Committees respectively, share a keen interest in Russian money laundering and the Trump Organization.

Just as Nadler may complement and backstop court litigation over emoluments, so may Schiff complement and backstop the Special Counsel report. Ultimately, in the event that the President succeeds in hobbling the Special Counsel, Schiff may summon Robert Mueller to testify in Congress himself.

During the Teapot Dome bribery scandal of the 1920s, the Supreme Court affirmed Congress’ power to subpoena witnesses or documents, and noted that power is at its peak in probes of executive corruption. A tax law inspired by Teapot Dome specifically mandates that if a tax committee requests a tax return, the Treasury Secretary ‘shall’ provide it.

After the Watergate scandal, Congress acquired the right to enforce its subpoenas through civil litigation under the Ethics in Government Act, on penalty of contempt. Then, in a crucial but forgotten example of norm erosion, 2015 Republican rule changes expanded the power of several House committee chairs, including Judiciary and Financial Services.

The majority party may now issue House subpoenas without the minority party’s consent, and rarely needs to bother with consultation. Panicked Republicans, foreseeing this summer that they would lose the House, circulated a list of over 100 investigations that they have blocked Democrats from pursuing during the start of the Trump era.

Though Republicans expect a steady stream of hassle and embarrassment, they are far from powerless. The Trump administration will broadly assert executive privilege against subpoenas. In particular, presidential lawyer Rudy Giuliani has said he will relish the fight if Congress seeks the President’s tax returns. As straightforward as these cases might seem, both of the last two Presidents have shown that obstructionist lawyers can tie up a subpoena in the courts, conceivably until the next election.

Court fights over the President’s tax returns and congressional subpoenas might take their place alongside the emoluments litigation, not to mention a showdown with Mueller on issues ranging from the legality of his appointment to the publication of his report, to a presidential self-pardon. Beyond these tests of executive power, legal battles loom over countless policies, from the politicisation of the United States Census to the unravelling of Obamacare, to the rollbacks of the Clean Power Plan and tailpipe emission standards.

For all these reasons and more, Republicans are grateful to have kept the Senate power of judicial confirmation.

President Trump campaigned on transforming the courts with ‘great judges, conservative, all picked by the Federalist Society’. Everyone knows Senate Majority Leader Mitch McConnell kept open a Supreme Court seat for President Trump to fill. Less well-known is that he kept open 108 lower court vacancies, or about an eighth of the federal bench. In his last two years, President Obama saw only one appeal judge confirmed. Even an impeached President Clinton managed 13 at the end of the first demosclerotic age.

Thanks to McConnell’s norm-breaking, President Trump has filled the bench at a record rate at every level. In addition to creating a new conservative majority on the Supreme Court, he has already swung the Republican share of appellate judges from 41 per cent to 53 per cent.

Justices of the US Supreme Court attend the Presidential Medal of Freedom award ceremony on 16 November 2018 in Washington, DC. Sitting from left to right are: Brett Kavanaugh, Neil Gorsuch, Elena Kagan, Samuel Alito, Ruth Bader Ginsburg and Chief Justice John Roberts.

That matters because the lower courts have, until now, been the strongest structural check on the President. District courts batted down the President’s policy of separating border-crossers from their children, and dismissed as ‘cynical’ his request to instead detain children long-term. After other trial courts demanded actual proof of voter fraud, the White House abandoned the charade of its ‘election integrity’ commission, ‘rather than engage in endless legal battles’. In regulating methane leakage and flaring by oil and gas drillers, courts have ordered environmental agencies to comply with existing rules, and forced them to do the hard, uncertain work of developing new rules rather than simply ‘suspending’ the old ones.

Other victories have been less permanent. The Supreme Court notoriously reversed the lower courts to uphold the President’s final Muslim travel ban. The justices also vacated a circuit ruling that struck down the President’s ban on teens in immigration custody obtaining abortions. Lower courts have provisionally struck down the President’s ban on transgender soldiers, his betrayal of the promise that ‘Dreamers’ may avoid deportation and his defunding of ‘sanctuary cities’ that resist deportation. As the Senate continues to transform the judiciary, will these rulings stand? Will the courts remain a check on the President?

Realists may note with despair that Justice Brett Kavanaugh is so expansive on executive power and privilege that he would have sided with Richard Nixon in Watergate, having opined that all nine justices were wrong when they ordered the President to hand over his secret recordings in United States v Nixon.

Formalists would argue that party is not destiny. In last year’s Sessions v Dimaya, Justice Neil Gorsuch joined the liberal bloc to void as unconstitutionally vague a provision that made aliens deportable for ‘crimes of violence’ because that phrase could cover any felony that might be committed with violence. The point is that the new justices’ strict constructionism will sometimes yield a progressive result. By the same token, Justices Gorsuch and Kavanaugh share a bias against regulatory lawmaking. And, because deregulation requires rule-making, that may paradoxically impede President Trump’s deregulatory agenda.

Hope for judicial independence is certainly alive at the circuit level, where Democrats still hold majorities on seven of the 13 courts, including the influential DC, Ninth and Second Circuits. One reason is that Republican appeal judges are inefficiently concentrated in a few flyover regions. The other reason is that most recent retirees were Republican. Much as the Supreme Court’s fate rests on Justice Ruth Bader Ginsburg, so the Circuits’ future turns on the vitality of 36 elderly Democrats.

More fundamentally, jurists at every level and of every party can see that the President’s uninformed and unprincipled demagoguery is antithetical with the law’s veneration for facts and argument, fairness and due process.

‘Why have courts been so willing to stand up to Trump?’ asks the Head of the American Civil Liberties Union David Cole. ‘One reason may be that Trump is so contemptuous of constitutional law – and indeed, of courts themselves.’

Whatever the weather in Washington, and however many judges are confirmed over the next two years, the President and the law are sure to maintain their mutual disdain.

Michael Goldhaber is the IBA’s US Correspondent. He can be contacted at michael.goldhaber@int-bar.org