This year’s presidential election has been marked less by a continued erosion of political norms than by a desperate and fatalist Republican Party abruptly jettisoning them.
GOP nominee Donald Trump has promised to jail his opponent Hillary Clinton if he becomes president. With macabre consistency, he and his allies let slip fantasies in which she is murdered or executed. They have recruited the FBI to influence the election, and the FBI has accepted the invitation. Trump has asked mobs of his supporters, many of them white nationalists and armed reactionaries, to flood urban precincts and intimidate minority voters, whom he’s accused of participating in a global scheme to steal the election.
In these waning days of the campaign, Trump and his surrogates, including down-ballot Republicans running for reelection to the Senate, have settled on a somewhat contradictory message: Trump is warning his supporters that the republic cannot withstand four or eight years of a Clinton administration, let alone decades of liberal control of the Supreme Court. But his minions in the GOP are suggesting that they won’t allow Clinton to flip Court’s ideological balance; some of them are going so far as to suggest there’s nothing about a Clinton presidency for Republican voters to worry about, since they will vanquish her agenda, and probably impeach her for good measure.
“I think if Clinton should get elected, I guarantee you in one year she’ll be impeached and indicted,” Trump’s top surrogate, Rudy Giuliani, told conservatives in Iowa on Wednesday. “It’s just going to happen. We’re going to sort of vote for a Watergate.”
Trump, who steps on his own messages with comical frequency, indulges this scenario as well, perhaps unaware that it contradicts his apocalyptic visions of a liberal Clinton onslaught.
Trump: If HRC elected, it would create "constitutional crisis" and "the work of government would grind to an unbelievable, unglorious halt."
— Sarah McCammon NPR (@sarahmccammon) November 1, 2016
We know from recent history what Republicans mean when they say, in effect, “elect us or there will be gridlock”: They mean they will paralyze government unless they control it all. In 2009 and 2010, this manifested in the weaponization of the filibuster. When Republicans cobbled together more power after the 2010 midterms, they threatened government shutdowns and took the country to within hours of an artificial solvency crisis that would’ve caused a national if not a worldwide economic crisis. Once Democrats began passing bills and issuing regulations, Republicans turned to federal courts, inventing novel, opportunistic legal theories and interpretations in the hope that conservative judges and the conservative Supreme Court would use them as pretext for vacating Obama’s agenda. In this, they have frequently succeeded.
It is thus tempting to imagine we’ve seen enough to know what divided government will look like in a Clinton administration. But that would be a mistake. The sheer alacrity with which Republicans have thrown political courtesies and democratic traditions overboard in the past months is a warning that as radicalized as they grew during the Obama presidency, they didn’t necessarily hit bottom. Things could get much worse, in ways that are staring us in the face.
Republicans only flirted with nullification during the Obama presidency, but under a Clinton presidency we could conceivably face a full-blown crisis of one kind or another within weeks—regardless of which party controls the Senate.
If Republicans retain the Senate, it’s likely that they will prevent Clinton from filling Supreme Court vacancies. Notably, almost nobody in the party is intervening to promise swift confirmation for qualified nominees, to counter those who are promising indiscriminate obstruction. This would amount to a legitimation crisis, unprecedented in our modern history, but astonishingly it wouldn’t constitute the most troubling possible outcome.
If Democrats reclaim the Senate, but can only confirm Clinton’s nominees by further eroding the filibuster, Republican voters will extend the presumption of illegitimacy from Clinton to her nominees and then to their legally binding decisions. Filling the existing vacancy with a liberal justice would effectively turn the Roberts Court into the Kagan Court, which would begin issuing decisions that conservatives abhor almost immediately. But if conservatives perceive the president who appointed the decisive justice as illegitimate, they will reject the new Court’s rulings and pressure their state governments to annul them. (If you think Republican states wouldn’t ignore court orders out of sheer determination or panic, you haven’t been paying attention this election cycle.)
A Republican-controlled Senate could make mischief well beyond judicial vacancies, too, by denying Clinton a cabinet or refusing to fill key administrative vacancies in agencies across government. Imagine, for instance, that Republicans investigate Clinton’s administration—as they’ve prematurely promised to do—and she claims executive privilege over White House communications. Republicans can simply refuse to confirm any more nominees of any kind until she hands the information over. They could concoct nearly any excuse for doing this, in fact, or they could do it just for sport.
When Clinton refuses to sign legislation to repeal the Affordable Care Act or cut taxes regressively or privatize Medicare, Republicans can attach those measures to legislation increasing the debt limit. An illegitimate president’s veto is itself illegitimate, after all, so the logical next step would be to impose a GOP agenda by extortion. When she calls their bluff, they’ll either back down, or destroy the economy and the international assumption of U.S. creditworthiness. Under Obama they caved; under Clinton it’s not clear they would.
These are just a few extreme possibilities. At a less apocalyptic level, Republicans could simply refuse to pass emergency appropriations after natural disasters. Under Obama, they sought and failed to condition disaster relief on cuts to unrelated domestic discretionary programs and specific bêtes noires like Planned Parenthood; under Clinton they might decide to stand pat, or simply to let flood, earthquake, tornado, and hurricane-ravaged communities fend for themselves.
Those of us contemplating a post-Trump GOP haven’t put our imaginations to full use. Under Obama, Republicans grounded government to a halt. Under Clinton, they may break it altogether. The closer Republicans come to victory on November 8, the more emboldened they will be. This is yet another reason why they deserve to be robbed throughly of their power.