A Tale of Four Parties: Can the Congressional Parties Keep it Together After CRomnibus?

The most recent appropriations bill passed on December 13, or the “CRomnibus”, as it was dubbed was a real feat of political gymnastics. As the bill’s nickname suggests, the budget bill was passed as a combination of both an “omnibus”, or traditional funding bill, and a “CR” budget measure, which Congress passes in an emergency situation. In this case, the emergency was to avoid yet another government shutdown as a result of a failed budget negotiation.

Unfortunately, this stopgap-type budget work is becoming a bit of a pattern lately. Last October, the budget finally passed by Congress was a CR measure, frantically pushed through in order to keep the government’s doors open after federal employees were furloughed for about 16 days because there was no money. This year, a government furlough, or “leave of absence”, was avoided because the budget was passed before money ran out.

This story is a familiar one for the federal government—Democrats and Republicans just can’t agree on how federal money gets spent. Although embarrassing for Congress, government shutdowns are not new. In fact, from 1981-1996, there were 11 government shutdowns after the House, Senate and White House were unable to decide on a federal budget. President Ronald Reagan’s administrations were especially prone to funding gaps that led to government shutdowns, with 8 separate shutdowns ranging from 1-3 days. President George H. W. Bush had one government shutdown lasting 5 days. President Bill Clinton had two—but one holds the record for longest shutdown at 21 days.

Data from Wikipedia

This time around, the debate was especially interesting because it exposed rifts in both political parties. President Obama himself advocated for the budget and pressed hard to get it passed in order to avoid a shutdown in January. Meanwhile, leadership in both the Senate and House shoehorned the budget through the system with a few interesting riders—a prohibition on the legalization of marijuana in DC, a pay freeze for Joe Biden, and the inclusion of white potatoes on the list of vegetables covered by WIC. The appropriations bill was so loaded with riders, that it became what lawmakers call a “Christmas tree”—a bill with many, often unrelated, amendments.

To make matter more complicated, outspoken outsiders from both parties took offense with the budget proposal, for very different reasons. Senator Ted Cruz, a conservative from Texas, opposed the bill because it did not cut off funding for Obama’s Deferred Action for Childhood Arrivals program. Cruz and Senator Mike Lee both argued that the CRomnibus was unconstitutional because it did not block Obama’s executive order. Cruz attempted to stall votes on the appropriations bill by forcing the Senate to go through procedural votes on Obama’s nominees before voting on the omnibus. His efforts pushed the budget vote back to Sunday morning. The Senate, however, rejected Cruz’ constitutional objections, and a majority—74 Senators—voted against his point of order against Obama’s immigration actions. The Senate’s rebuke may have come, in part, because Cruz shut down the government in 2013 over funding for Obamacare, which some Republicans argue gave the party a political “black eye”.

Senator Elizabeth Warren, who opposed the law because it reverses a key provision in the Dodd-Frank Wall Street Reform Act, championed the liberal argument against the CRomnibus. The 2010 Dodd Frank financial reform legislation was passed to protect Americans from predatory bank practices. The key provision weakened in the CRomnibus was designed to keep banks from making risking investments with federally guaranteed funds—money ultimately backed by taxpayers. Democrats were especially worried that this first attack against Dodd Frank would lead to others—and leaving Americans vulnerable to the same financial shenanigans that led to the recession in 2008. The White House, however, argued that enough of the law was kept intact to protect Americans, and that Democrats should overlook one line of the bill in order to pass the budget.

In the end, party line Democrats and Republicans worked together to pass the budget, while conservatives and liberals campaigned against it. Despite valiant efforts from Cruz and Warren, the budget was passed—but only because of intense campaigning by Obama, Boehner, Reid and Hoyer—a strange bipartisan coalition that was willing to compromise in order to avoid government shutdown. This vote exposed fascinating rifts in both national parties, a sign that both Democrats and Republicans in Congress need to do a bit of soul-searching. Going forward, this vote leaves us with several questions: Are the liberal and conservative factions associated with Warren and Cruz permanent? Are these factions closer to the will of the people than the more traditional party leadership? And as the balance of power in the Senate shifts to Republican control, we will have to see if these rifts widen, or if Democrats and Republicans can keep it together.

Bypassing Congress? The Executive Order and Immigration Reform

It may come as a surprise to many, but executive orders are almost as old as the Constitution itself. While executive orders are not explicitly mentioned in the Constitution, many presidents, including George Washington, have used them. President Franklin Roosevelt authored the most, with 3,522 over the course of his four terms as president. President Obama, by comparison, has written relatively few—only 168 from the beginning of his presidency until January 2014. While many presidents chose to use executive orders, the numbers vary dramatically.

Original graph here.

The use of executive orders—while not without precedent—has always been controversial. One of the most famous executive orders occurred during the Civil War when President Lincoln suspended the writ of habeus corpus, making it easier for the government to detain prisoners without bringing them before the court. While many argued that detaining enemies of the Union would be vital to the war’s success, his decision to take away a constitutional right was divisive. President Lincoln invited controversy again when he issued the Emancipation Proclamation as an executive order. Although the end of slavery was essential for America’s progression and growth as a nation, President Lincoln’s action to move on such a hot-button issue without Congress writing the actual legislation was bold—and some would say unconstitutional.

Unfortunately for more conservative scholars of the Constitution, the Supreme Court has struck down only two executive orders—ever. The first was in 1952, when President Truman attempted to bring steel mills under federal control so that strikes would not impact the Korean War. The second was in 1995, after President Clinton issued an executive order forbidding the federal government from contracting with companies who hire workers to break strikes. In both of these instances, the Supreme Court ruled that the presidents were attempting to write law rather than clarify or extend an existing law.

Controversy surrounding an executive order has boiled up again regarding President Obama’s recent actions last month to stay the deportations of millions of illegal immigrants. In 2012, citing Congress’ inaction on immigration reform, President Obama announced the creation of the Deferred Action for Childhood Arrivals (DACA) program. This program attempts to make it easier for young adults brought here illegally as children to become American citizens. While President Obama’s recent attempt this November to extend the DACA program through another executive action is controversial, it is not without some precedent—of sorts.

During the 1980s, both President Reagan and President George H. W. Bush issued executive orders granting scores of illegal immigrants temporary work visas. Wait—amnesty?  From Republican presidents? Yep—it happened. The last large immigration overhaul, the bipartisan Simpson-Mazzoli Act, was passed in 1986 while Ronald Regan was President. The law essentially had two parts: first, illegal immigrants who had been in the United States continuously since 1982 were awarded temporary work visas as long as they paid a fine; second, funding was provided for enhanced border security to prevent additional immigrants from crossing the border illegally.

Soon after the new law passed, however, issues began to arise. Although funding was provided to secure the border, it wasn’t nearly enough to stop an increasing flow of immigrants. Additionally, certain groups of immigrants weren’t covered by the “amnesty” part of the law—for example, recently married couples where one spouse was covered by the new law while the other wasn’t. As a result of these oversights, both Reagan and Bush issued executive orders that tried to fill in the gaps appearing in the Simpson-Mazzoli Act. Thus, their actions were not independent of Congress, but rather an attempt to further clarify an act of Congress.

So while Bush and Reagan both used executive orders to grant amnesty to certain illegal immigrants, President Obama’s executive action is a different case. Bush and Reagan were acting within their executive right to clarify an act of Congress. The distinction here is that the actual legislation was written by Congress, not by the presidents. So even though the current Congress refuses to act on immigration reform, President Obama doesn’t have the legal authority to go it alone.

In the end, the Constitution only grants legislative power to Congress, and for good reason. Whether or not President Obama’s plan for immigration reform is good policy doesn’t matter. His executive action will be too one-sided. When legislation begins in Congress, no matter how grid-locked and slow-moving the process may be, that legislation is bound to come out influenced, at least a little bit, by both sides. And we need both sides in order to make good policy— and besides, politics could always use a little more moderation.