The Dysfunction is the Point
The powers that be don't just encourage gridlock; they're counting on it.
Last week, in the wake of yet another horrific school shooting in Nashville, Tennessee, Congressman Tim Burchett (R-TN) went viral for being brutally honest about a possible legislative response to the killing of three children:
"We're not gonna fix it," Burchett responded when asked what Congress would do about gun violence. Asked if there were other steps lawmakers could take to protect children like his daughter, Burchett replied, “Well, we homeschool her.”.
Burchett wasn’t the only one to admit defeat. President Joe Biden threw up his hands, telling reporters that he has exhausted all options to address gun violence through executive authority. “I can’t do anything except plead with Congress to act reasonably,” Biden said.
That Congress and our federal government is powerless to act in the face of catastrophic social problems is nothing new. It isn’t particularly surprsing that our elected officials have no interest or ability to do anything productive, especially if you are one of the millions of Americans that could benefit from government assistance. The last time a majority of Americans approved of the job Congress was doing, 9/11 had just happened. Even so, the stark admissions from both sides that they’ve tried nothing and they’re all out of ideas struck me as especially bleak. Not really the sort of thing you want to hear those in power say.
Political gridlock has long been a symptom of our political system. From powerful lobbyist groups and gerrymandering to Constitutionally created institutions that are themselves inherently anti-democratic, our system of government is strangled from doing anything to benefit the public. But if gridlock was once just a puzzle that policy wonks tried to solve with op-eds, it is now yet another tool in the arsenal of the very powerful, who can weaponize our dysfunctional government for their own gain.
Take for example the Supreme Court’s deliberations over President Biden’s plan to eliminate up to $20,000 in federally held student loans for qualifying borrowers via executive action. In the case, Nebraska v. Biden, conservative attorneys general argue that the Biden’s Education Department doesn’t have the authority to unilaterally cancel student loans under the HEROES Act. The law says that the Secretary of Education may “waive or modify” student loans, which sounds pretty clear to me. (What do I know? I”m just a schmuck with $19,000 in federally held student loans). Even Brett Kavanaugh, famous beer lover, agrees with me:
“Waive is an extremely broad word,” Kavanaugh said to Nebraska Solicitor General James Campbell. “Why not just read that as written?”
Luckily, the Supreme Court and the conservative legal movement have a solution to the pesky issue of reading the law as intended. It’s called the major questions doctrine, which you can read more about in depth, along with the detailed facts of the case, here. (Mark Joseph Stern, if you’re reading, I’m a big fan.)
The major questions doctrine allows the Supreme Court to challenge and strike down any policy they believe that Congress has not explicitly allowed. It’s incredibly vague by design. The major questions doctrine relies on cherrypicked readings of the law, requiring that Congress must very clearly allow executive agencies to decide matters of “vast economic and political significance”. Essentially, it requires that Congress must think of every possible issue that could ever happen, then plainly give an executive agency the authority to do something about it. Last summer, the court hamstrung the EPA’s ability to fight climate change in West Virginia v. EPA. Invoking the major questions doctrine, it ruled that Congress doesn’t give the EPA the power to regulate the power grid. The Supreme Court’s 6-3 conservative majority has also invoked the major questions doctrine in the student loan forgiveness case, although the justices seemed unsure what to think of the case. Still, the message is clear: if you want to enact a policy that makes systemic changes, Congress has to pass a law.
So all we need is for Congress to pass laws that regulate guns, enact clean energy standards, and forgive student loans. Seems simple enough, right?
The conservative legal movement is nothing if not incredibly savvy. They read the same news as you and I, and have done the political calculus. Two senators, with the help of the filibuster, have veto power over pretty much any major legislation. It doesn’t hurt that the senators, Joe Manchin and Kyrsten Sinema, are well-lobbied by the energy and financial industries. Manchin routinely defends his state of West Virginia’s coal industry, and Sinema is nakedly owned by special interest groups. Combined with a Republican controlled house, any legislation that might make a dent in the problems of today and help out ordinary people is dead on arrival. The conservative legal movement is counting on the dysfunction. When the courts put the ball in Congress’s court, they know that nobody is going to pick it up.
The dissolution of the administrative state has been a long stated goal of the American Right. Ronald Reagan famously said that the nine most terrifying words in the English language are “I'm from the Government, and I'm here to help.” The dream is a weak central government that can do nothing but fund the military and build highways, while public goods and services are sold wholesale to private enterprise. Now that the goal is realized, it isn’t enough. The courts now work to hamstring state governments from doing anything to stem the tide of gun violence. State legislatures, like in my home state of Texas, are now trying to take away autonomy from its liberal leaning cities. Gone is any semblance of government that regulates the public good. In its place is the tyranny of unelected judges and politicians who have gerrymandered their way to entrenched power.
What is the end result of the weaponization of dysfunction? It is an anomic state, one where the fate of millions of people hangs in the balance as we wait for nine wizards to decide whether or not we have to pay back our student loans. Rogue federal judges can now decide whether the poorest people live or die. All the while, our elected officials throw up their hands and wait for the next preventable tragedy to strike. I just hope that at a certain point, the dysfunction becomes too unbearable for most people, and we all do something about it. But in the haze of constant confusion, what that something is never seems clear.
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