Our Slow-Motion Constitutional Crisis

Harry Reid and the New House of Lords

A column by Kimberley Strassel in Friday's Wall Street Journal summarizes a lot of what I’ve been thinking about regarding the serial budget crises between the President and the House of Representatives.  Shorter version:  where’s Harry?

Her essay, “Harry Reid’s Great Disappearing Act” shines a spotlight on the role (or lack thereof) of the U.S. Senate in these disputes.  Strassel argues that Senate Majority Leader Harry Reid (D-Nevada) “has subverted the democratic process, successfully allowing him to both protect his party and keep the focus on Republicans."

It goes beyond the Senate not having passed a budget in 1,363 days.  It goes beyond the Senators generally not earning their pay.  What we have here is a slow-motion constitutional crisis.


As Strassel points out, what is not happening in the Senate goes against the very design of our system.  She writes,

“The Founders created a legislative process that was deliberately different from the parliamentary systems of Europe. In the "regular order" of things, the House works its will. The Senate works its will. Those two bodies meet in conference. The president may then sign or veto the resulting legislation.”

By not moving on legislation, Reid protects vulnerable Democrat members from taking difficult votes and keeps the media’s attention on whatever the Republican-controlled House of Representatives is up to.  Reid tries to shift the blame to “the filibuster.”  Even if the Republicans in the Senate want to, you cannot filibuster a budget resolution.

I’m sure that some will blame the situation on partisan politics.  As many are fond of pointing out, political parties are not mentioned in the Constitution.  As residents of British America, though, the founding fathers would have been familiar with the Tory and Whig parties of the contemporary British Parliament at the time they were drafting the Constitution.  With the care that the drafters put into the construction of the Constitution, it seems a stretch to think that they would have designed a system incompatible with parties.

Under Harry Reid, the do-nothing Senate appears to be consigning itself to something resembling a modern House of Lords.  In doing so, I fear that he is doing real, permanent damage to the institution and the nation.  Perhaps clever in securing short-term advantages, Reid’s multi-year strategy of stalling legislation does much to corrode confidence in his institution.  Even if individual Senators are happy to hold the world’s most prestigious no-show job, America should demand more.

In the regular order of things, as the cliché goes, “the President proposes and Congress disposes.”  In the current set of circumstance, there is not a whole lot of either going on.  The two houses of congress can’t seem get much to the President’s desk.  A House of Lords-type figurehead upper chamber encourages the Executive to act like one of the two late-Roman Republic Caesars and work through executive action, bypassing the legislature altogether.

From my non-constitutional-scholar viewpoint, there are at least two other theories under which a system will work.  We could have something closer to parliamentary supremacy, where the legislature passes laws and the executive merely implements and enforces.  Or we could have something closer to an absolute monarchy where the Crown may, from-time-to-time, summon a parliament when a decision needs to be ratified (usually to raise taxes).

Our system of separation of powers has worked well enough for more than 200 years, even during long periods of divided government.  But our system stops working when we are not pulling on both oars.  A do-nothing Senate neither checks nor balances.  At this point, we are moving beyond gridlock and entering an area that threatens the health of the Republic.

Harry Reid must go.