Do Democrats really want unity?
There are times when being a law professor ruins everything. You go to a great movie with your wife and get a sharp elbow after whispering in the theater that the character really cannot examine a witness like that. Or you watch a football game with friends and talk about the cameraman wiped out by the running back having a rather strong torts case.
In the middle of the beautiful inauguration, I fixated on Amy Klobuchar saying that she would be the first person to call Joe Biden the president. But she was wrong. Biden had been sworn into office early before noon, and Chief Justice John Roberts had just called him the president. Yet the president at that moment was in Florida, as Donald Trump would legally remain in office for ten more minutes under the 20th Amendment.
It was a fun bit of trivia for constitutional law nerds, but it was also telling. Almost everyone in Washington, including many Republicans, were eager to start the new administration and to end the last one. It should also be a cautionary tale as Democrats are moving swiftly to muscle an ambitious agenda through Congress that could raise serious constitutional issues and cause even greater political divisions in the current climate.
After he was sworn in, Biden set to work on a host of executive orders. In the first two days, he signed almost three dozen executive orders, from ending deportations of undocumented persons to extending a freeze on student loan payments and mandating masks to ensuring bathrooms and sports access for transgender children. Some of these executive orders, if enacted directly, could be challenged in court. However, Trump and other modern presidents have used such orders to set new policies.
What is happening on Capitol Hill is far more worrisome. Democrats are pushing Biden to take unilateral action, as did Barack Obama when faced with a divided Congress. Obama used his State of the Union address to declare his intent to circumvent the legislative branch after it refused to pass legislation in areas like the environment and immigration.
Senate Majority Leader Charles Schumer and other Democrats are calling on Biden to cancel loan debt up to $50,000 for each student, wiping out billions of dollars in potential federal revenue. This would be a significant unilateral decision, one without debate and deliberation, as the national debt nears $28 trillion. To be fair, students are crushed by the payments during the pandemic and, more importantly, Congress granted broader authority to the education secretary over debt management.
There are other calls for new decisions from immigration reform to wealth distribution. Democrats won both chambers and the White House, but this election was clearly not an overwhelming victory or endorsement. Rather, it shows a country divided down the middle. Though voters have rejected Trump and his controversies, they voted widely for Republican candidates in down ballot races. The Senate is divided in half and the majority is only possible if Vice President Harris votes to break ties on the floor.
Voters did not support the agenda of the far left, and many seem to have preferred a divided government. Yet many on the left do not want to wait for a broader mandate for their agenda. They are pushing for the District of Columbia to be made a new state, likely hanging an actual majority to Democrats in the Senate. Even more worrisome are the efforts to end the filibuster. Many Democrats are calling for Schumer to end that protection of minority rights in the Senate. Schumer has refused to promise that he will protect the filibuster tradition, even though he demanded that it be preserved during years of control by Republicans in the Senate.
Democrats are also calling for the possible expulsion of fellow members who voted to challenge electoral votes before the riots at the Capitol. I opposed that challenge, but it was not sedition or insurrection to vote for it. Federal law allows for such challenges, and Democrats have mounted them in past elections. These efforts highlight a crisis of leadership which remains a political powder keg. We have seen extreme violence on both the left and the right. Indeed, the inauguration this week occurred with 25,000 National Guard troops, thanks to the riots by the extreme right, and was followed by riots in various cities by the extreme left.
Yet despite an election that clearly favored compromise and divided power, those like Speaker Nancy Pelosi and others are fueling divisions. Representatives Steve Cohen, Mikie Sherrill, and others have accused members of giving tours to “insurrectionists” before the riots to provide “reconnaissance for the next day.” When she was confronted about this, Pelosi said Republicans were known to have given “aid and comfort” to those seeking to destroy the country. Such reckless rhetoric shows that lawmakers are seizing on our divisions instead of healing them.
But the greater concern is the total silence of Biden, who has spoken of healing the country but done little to seek unity. He can declare support for the filibuster, which he staunchly defended as a senator. It takes real leadership to support a rule that makes things more difficult for you but could force compromise and healing. Many were eager to declare Biden president at his inauguration. Now he needs to show there was a strong reason in their hope that he is not just another politician but a president who sees our divisions as a major threat to our entire country.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
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