Wednesday, December 22, 2010

Lame Ducks Behaving Badly

I really can understand any Republican who might want to label the post-election sessio as "lame ducks behaving badly." Democrats are taking advantage of the last days of their control of Congress to push through as much of their agenda as possible. I do understand why Republicans may see this as dirty.* I am obviously biased here, because I like the substantive agenda Democrats are pursuing, but let me give them two procedural defenses.

First of all, lame ducks behaving badly are a venerable American tradition. The practice goes back as far as 1800 when, after losing to the Jeffersonians, the Federalist Congress created a huge number of new federal judgeships and John Adams packed them with a bunch of Federalist judges. And it has continued all the way down to Bill Clinton's last minute administrative regulations to achieve what he could not get through Congress.

Second, and more importantly, this really is not as egregious as what Bill Clinton did as a lame duck. What made Clinton's actions so outrageous was that not that they took place in the lame duck period, but that they were frankly an attempt to bypass to legislative process altogether and act as an elective dictator in the face of clear Congressional opposition. This would be objectionable on separation of powers grounds no matter when it took place. That it was an attempt to impose a fait accompli on his successor mere compounds the offense; it does not create it. Congress, in passing a bunch of bills during the lame duck session that they could not pass with an election pending, is exercising legitimate, constitutional legislative powers, even if the etiquette is not so good. Granted, in his showdowns with a Republican Congress, President Obama may very well end up trying to sidestep the legislative process and do administratively what he could not get through Congress. But let's cross that bridge when we come to it.
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*It can't help that Democrats are also giving the lie to the assumption that Republicans are much better than Democrats at maintaining party discipline. This rule apparently only applies in the house, not the Senate.

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