Maurice Emmer: Playing Trump’s political game
Don’t believe everything you see and hear in politics. Is the battle over President Donald Trump’s immigration executive order real or political theater?
Since the founding, senators could filibuster (hold endless debate) to stop legislation. A super-majority of the senate (currently 60 percent) can end a filibuster with a “cloture” vote. When neither side has 60 senate seats, the Senate can perform a mutual “circle-Kabuki” between Democrats and Republicans benefiting the politicians without moving legislation. Here’s how:
Say the Republicans want to claim they’re trying to control an agency. They offer a bill, but the Democrats mount a filibuster. The Republicans, having only 52 seats, can’t invoke cloture; the measure dies. The Republicans brag they tried but the Democrats stopped them. The Democrats brag they stopped the Republicans. Nothing changes but both parties’ politicians gain favor with voters. The next time it’s the Democrats who offer a bill to create national preschool care. The Republicans block that. Nothing changes, but the politicians get bragging rights and a political advantage.
Both sides arrange this in advance. It works for any measure the moving party wants to seem to advance but doesn’t really want passed.
Did the White House co-opt the circle-Kabuki? Trump has signed numerous executive orders in less than three weeks. There’s been criticism but little legal challenge. Then along comes the immigration suspension and all hell breaks loose.
During the campaign, candidate Trump constantly promised to bar immigration from dangerous areas pending improved screening. In fact, he promised a Muslim ban, but that wasn’t serious. Yet candidate Trump had many loyal followers who expected aggressive action on immigration.
The president already has tried to implement many key campaign promises. That’s important to moving his agenda and to keeping his supporters interested and motivated. But the immigration promises would be difficult to keep, as they were bound to attract broad criticism if not active resistance. Should the president view that as a problem or opportunity?
Would it be better to win an immigration fight, possibly encouraging supporters to demand even more immigration limits (which the president might not want), or better to appear to try but be sure to lose, at least for now? Enter the circle-Kabuki strategy.
If the White House wanted a successful immigration order, it would employ a success-driven strategy. Trump has the advisers to do it. This would include:
1. Drafting the order narrowly to achieve its objectives without unnecessary legal vulnerability.
2. Expedited vetting through all interested channels, including confidential vetting with congressional leadership to build support.
3. Arranging a “friendly” lawsuit (one filed by a party with a weak case who wants the order to stand) to be filed in a friendly venue immediately after the order was issued to generate a judicial decision validating the order.
4. Creating a top-notch legal team in advance to defend the order.
The White House did none of this. Instead, it wrote an over-broad order, it didn’t vet it with Congress and it allowed others (e.g., the state of Washington) to take the legal initiative in a venue virtually guaranteed to stop the order. When it was challenged, the White House employed mediocre legal resources to defend it, not a highly regarded and experienced appellate lawyer (many are available).
Following a course highly likely to fail looks a lot like one side in the Senate offering doomed legislation. It’s consistent with wanting the order not to succeed. The president now can appear to his supporters as a valiant hero and victim of the system, a role he plays well, without changing anything. And, in a few months, it will enable him to add a further argument for the Senate to use the nuclear option to confirm Neil Gorsuch.
Maurice Emmer is a retired tax attorney. He lives in Aspen.